Exhibit 3.1
AMENDED
AND
RESTATED
ARTICLES OF INCORPORATION
OF
CHEMFIRST INC.
ARTICLE I.
The corporate title of this corporation is: ChemFirst Inc.
ARTICLE II.
The names and post office addresses of the incorporators are:
NAME POST OFFICE ADDRESS
---- -------------------
William R. Jordan P.O. Box 1249
700 North Street
Jackson, Mississippi 39205
Ann R. Moeller P.O. Box 1249
700 North Street
Jackson, Mississippi 39205
ARTICLE III.
The authorized capital stock is as follows:
COMMON STOCK:
The total amount of the authorized capital stock of the corporation is one
hundred million (100,000,000) shares with a par value of ONE AND NO/100 DOLLARS
($1.00) per share.
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The common stock of the corporation shall be issued in such amounts and
shall be sold at such price or prices, not less than par, as the Board of
Directors may from time to time and at any time determine.
Dividends upon common stock shall be payable as and when declared by the
Board of Directors in their discretion.
The voting privileges of the shares of common stock shall be: Each share
of common stock shall be entitled to one vote in the election of directors and
in all other matters upon which stockholders are entitled to vote. Votes shall
not be cumulated in elections of directors.
PREFERRED STOCK:
The total amount of authorized preferred stock of the corporation is twenty
million (20,000,000) shares.
The preferred stock of the corporation shall be issued in such form, class,
series or amounts and shall be sold at such price or prices, not less than par,
as the Board of Directors may from time to time at any time determine.
Dividend, conversion rates, conversion prices, par value, voting
privileges, redemption prices, maturity dates, and any other terms and
conditions relative to the issuance of preferred stock will be determined by the
Board of Directors in their discretion.
Convertible Preferred Stock
The following terms and conditions govern certain series of convertible
preferred stock of the corporation set forth below:
Designation of Each Series: Issuable Upon Conversion Of:
1987-A Series Convertible 1987-A Series Convertible
Preferred Stock Subordinated Debentures
1988-A Series Convertible 1988-A Series Convertible
Preferred Stock Subordinated Debentures
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1988-1 Series Convertible 1988-1 Series Convertible
Preferred Stock Subordinated Debentures
1989-A Series Convertible 1989-A Series Convertible
Preferred Stock Subordinated Debentures
1989-1 Series Convertible 1989-1 Series Convertible
Preferred Stock Subordinated Debentures
1989-2 Series Convertible 1989-2 Series Convertible
Preferred Stock Subordinated Debentures
1990-1 Series Convertible 1990-1 Series Convertible
Preferred Stock Subordinated Debentures
1990-2 Series Convertible 1990-2 Series Convertible
Preferred Stock Subordinated Debentures
1991-1 Series Convertible 1991-1 Series Convertible
Preferred Stock Subordinated Debentures
1991-2 Series Convertible 1991-2 Series Convertible
Preferred Stock Subordinated Debentures
1992-1 Series Convertible 1992-1 Series Convertible
Preferred Stock Subordinated Debentures
1994-1 Series Convertible 1994-1 Series Convertible
Preferred Stock Subordinated Debentures
The above series of preferred stock of the corporation shall be available
for issuance solely upon conversion of applicable series of convertible
subordinated debentures, which, in turn, will be available for issuance in
accordance with and upon exercise of certain options, all of which have been
granted pursuant to the corporation's 1980 Long-Term Incentive Plan or 1988
Long-Term Incentive Plan, entitling the holders thereof to purchase such series
of debentures (the applicable date of grant of the aforementioned options being
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referred to as the "Original Grant Date"). Each series of convertible preferred
stock shall consist of the number of shares as follows:
Series Number of Shares
- ------ ----------------
1987-A Series Convertible 97,000
Preferred Stock
1988-A Series Convertible 156,000
Preferred Stock
1988-1 Series Convertible 11,000
Preferred Stock
1989-A Series Convertible 103,000
Preferred Stock
1989-1 Series Convertible 45,000
Preferred Stock
1989-2 Series Convertible 11,000
Preferred Stock
1990-1 Series Convertible 138,000
Preferred Stock
1990-2 Series Convertible 11,000
Preferred Stock
1991-1 Series Convertible 155,000
Preferred Stock
1991-2 Series Convertible 11,000
Preferred Stock
1992-1 Series Convertible 11,000
Preferred Stock
1994-1 Series Convertible 1,000
Preferred Stock
The rights, preferences and other terms and conditions of each series of
convertible preferred stock shall be as follows:
1. PAR VALUE. The par value for each series of convertible preferred
stock shall be $1.00 per share.
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2. DIVIDENDS. The holders of record of shares of series convertible
preferred stock shall be entitled to receive, out of funds legally
available therefor, cash dividends at the rate of $.05 per share per
quarter. All dividends payable hereunder shall be payable quarterly or
otherwise as the Board of Directors may from time to time determine when
and as declared by the Board of Directors. The right to such dividends on
shares of series convertible preferred stock shall not be cumulative and no
right shall accrue to the holders of such shares by reason of the fact that
dividends on such shares are not declared in any prior year. The holders of
shares of series convertible preferred stock shall be entitled to no other
cash dividends in excess of the dividends at said rate.
3. REDEMPTION. Shares of each series of convertible preferred stock may
be redeemed, in whole or in part, at the option of the corporation by vote
of its Board of Directors, at any time or from time to time, at a
redemption price per share equal to the "Purchase Price," as defined below,
plus an amount equal to all dividends declared but unpaid at the date fixed
for redemption, and such price, plus such dividends, is herein-after
referred to as the "Redemption Price." The Purchase Price per share shall
be the market value, as determined by the Board of Directors, of one share
of the corporation's Common Stock on the Original Grant Date.
In case of the redemption of only a part of any outstanding series
convertible preferred stock, this corporation shall designate by lot the
shares to be redeemed or shall effect such redemption pro rata.
Not more than 60 days, but at least 20 days prior to the date fixed for
redemption, a written notice shall be mailed to each holder of record of
each series of convertible preferred stock whose shares are to be redeemed,
by certified mail with postage prepaid, addressed to each such holder at
his address as shown on the records of the corporation (a) notifying each
holder of the election of the corporation to redeem such shares, (b)
stating the date fixed for redemption thereof, (c) setting forth the
Redemption Price, and (d) stating the place at which each such holder may
obtain payment of the Redemption Price upon surrender of his share
certificates.
On or after the date fixed in such notice of redemption, each holder of the
series convertible preferred stock to be redeemed shall present and
surrender his certificate or certificates representing such stock to this
corporation at a place designated in such notice and thereupon the
Redemption Price of such
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shares shall be paid to or on the order of the person whose name appears on
such certificate or certificates as the owner thereof and each surrendered
certificate shall be canceled. In case less than all of the shares
represented by any such certificate are redeemed, a new certificate shall
be issued representing the unredeemed shares. From and after the date fixed
in any such notice as the date of redemption, unless default is made in the
payment of the Redemption Price, all rights of the holders thereof as
shareholders of the corporation, except the right to receive the Redemption
Price, shall cease and determine, and such shares shall not thereafter be
transferred on the books of the corporation, and such stock shall not be
deemed to be outstanding for any purpose whatsoever.
The corporation may at its option at any time after such notice of
redemption has been given, deposit a sum sufficient to redeem, on the date
fixed for redemption, the shares of each series of convertible preferred
stock called for redemption and not yet redeemed with a bank or trust
company in Mississippi, as a trust fund for the benefit of the respective
holders of the shares designated for redemption, and such deposit, from and
after the date fixed for redemption, shall constitute full payment of the
Redemption Price of the shares to the holders thereof and shall be
conclusive evidence that no default shall be made in the payment of the
Redemption Price as to such shares.
Shares of a series of convertible preferred stock redeemed by the
corporation shall not thereafter be disposed of as shares of such series,
but upon acceptance by the Secretary of State of Mississippi for filing of
a statement of cancellation relating to the redeemed shares, such shares
shall become authorized and unissued shares of preferred stock which may be
designated as shares of any other series.
4. LIQUIDATION PREFERENCE. In the event of any voluntary or involuntary
dissolution, liquidation or winding up of the corporation, the holders of
any shares of any series of convertible preferred stock outstanding shall
be entitled to receive, or to have deposited in trust for them as provided
in Section 3 hereof, out of assets of the corporation, before any
distribution of any assets shall be made to the holders of Common Stock or
other shares junior to the series of convertible preferred stock as to
distribution of assets, an amount which shall be equal to the Purchase
Price, as defined above, for such shares plus declared but unpaid dividends
thereon. After the holders of any series convertible preferred Stock shall
have received such amount, they shall not participate in any remaining
assets and surplus funds of the corporation.
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If the amounts which the holders of any shares of a particular series of
convertible preferred stock, and any other series of preferred stock of the
corporation ranking equally thereto as to distribution of assets with the
such shares, are entitled to receive in such events are not paid, or
deposited in trust, in full, the shares of that particular series of
convertible preferred stock and of such other series shall share ratably in
any distribution of assets in accordance with the amounts which would be
payable on such distribution if all amounts to which the holders of the
particular series of convertible preferred stock and of each such series
are entitled were paid, or deposited in trust, in full.
Neither the merger of the corporation with or into any other corporation
nor the sale of all or substantially all of its assets shall be deemed a
dissolution, liquidation or winding up of the corporation within the
meaning of this Section.
5. CONVERSION RIGHTS. The holders of shares of series convertible
preferred stock shall have conversion rights as follows:
(a) Shares of any series of convertible preferred stock shall be
convertible, at the option of the respective holders thereof, at the office
of the corporation into fully paid and nonassessable shares of Common Stock
of the corporation, as follows:
(i) The number of shares of Common Stock into which a share of
any series of convertible preferred stock is to be converted shall be
determined by multiplying one share times the "Conversion Multiplier," as
described below. On the "Original Grant Date," as defined above, the
Conversion Multiplier shall be one, and unless and until the Conversion
Multiplier is adjusted as provided below, each share of any series of
convertible preferred stock shall be convertible into one share of Common
Stock.
(ii) In the event of a reclassification, recapitalization,
merger, consolidation, reorganization, issuance of warrants, rights or
debentures, stock dividend, stock split or reverse stock split, cash
dividend, property dividend, including, without limitation, a
distribution of the stock of a subsidiary, combination or exchange of
shares, repurchase of shares, or any other change in corporate
structure which in the judgment of the Board of Directors materially
affects the value of the Common Stock subsequent to the Original Grant
Date, the Board of Directors shall determine the appropriate
adjustments, if any, to the number of shares of Common Stock issuable
upon conversion of convertible preferred stock under the preceding
subsection.
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(b) Before any holder of any shares of series convertible preferred
stock shall be entitled to convert the same into shares of Common Stock, he
shall surrender the certificate or certificates therefor, duly endorsed, at
the office of the corporation and shall give written notice to the
corporation that he elects to convert the same and shall state in writing
therein the name or names in which he wishes the certificate or
certificates for shares of Common Stock to be issued. If the holder fails
to specify the name in which certificates are to be issued, they shall be
issued in his name. The corporation, as soon as practicable thereafter,
shall issue and deliver at such office to such holder of shares of series
convertible preferred stock, or to his nominee or nominees, certificates
for the number of full shares of Common Stock to which he shall be entitled
as aforesaid, together with cash in lieu of any fraction of a share as
hereinafter provided. Such conversion shall be deemed to have been made as
of the date of such surrender of the shares of series convertible preferred
stock to be converted (or, in the event of a proposed redemption and if the
corporation so allows, on the date of receipt of satisfactory notice of
conversion if certificates of the series convertible preferred stock so
converted are thereafter delivered to the corporation within 30 days), 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 said date.
(c) In case:
(i) the corporation shall take a record of the holders of shares
of its Common Stock for the purpose of entitling them to receive a
dividend, or any other distribution, other than ordinary cash dividends; or
(ii) the corporation shall take a record of the holders of
shares of its Common Stock for the purpose of entitling them to subscribe
for or purchase any shares of stock of any class or to receive any other
rights; or
(iii) of any capital reorganization of the corporation,
reclassification of the capital stock of the corporation (other than a
subdivision or combination of its outstanding shares of Common Stock),
consolidation or merger of the corporation with or into another
corporation, or conveyance of all or substantially all of the assets of the
corporation into another corporation; or
(iv) of the voluntary or involuntary dissolution, liquidation or
winding up of the corporation,
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then the corporation shall cause to be mailed to the holders of record of
series convertible preferred stock or any security convertible into series
convertible preferred stock at their last addresses as they shall appear on
the records of the corporation, at least 20 days (or 10 days in any case
specified in clauses (1) and (2) above) prior to the applicable record date
hereinafter specified, a notice stating (1) the date on which a record is
to be taken for the purpose of such dividend or distribution of rights, or,
if a record is not to be taken, the date as of which the holders of Common
Stock of record would be entitled to such dividend or distribution of
rights, or (2) the date on which such capital reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up is expected to become effective, and the date as of which it is
expected that the holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities or other assets
deliverable upon such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding up.
(d) The corporation will at all times reserve and keep available out
of its authorized Common Stock and/or shares of its Common Stock then owned
or held by or for the account of the corporation, solely for the purpose of
delivery upon conversion of shares of series convertible preferred stock,
such number of shares of Common Stock as shall then be deliverable upon the
conversion of all outstanding or potentially issuable shares of series
convertible preferred stock. All shares of Common Stock which shall be so
deliverable shall be duly and validly issued and fully paid and
nonassessable.
(e) If any shares of Common Stock required to be reserved for
purposes of conversion of series convertible preferred stock require
registration with or approval of any governmental authority under any
federal or state law, or listing upon any national securities exchange,
before such shares may be issued upon conversion, the corporation will in
good faith and as expeditiously as possible endeavor to cause such shares
to be duly registered, approved or listed, as the case may be.
(f) The corporation will pay any and all issue and other taxes that
may be payable in respect of any issue or delivery of shares of Common
Stock on conversion of shares of each series of convertible preferred stock
pursuant hereto. The corporation shall not, however, be required to pay any
tax which may be pay-able in respect of any transfer involved in the issue
and delivery of shares of Common Stock in a name other than that in which
the shares of series convertible preferred stock so converted were
registered, and no such issue or delivery shall be made unless and until
the person requesting such issue has paid
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to the corporation the amount of any such tax, or has established, to the
satisfaction of the corporation, that such tax has been paid.
(g) No fractional shares of Common Stock shall be issued upon the
conversion of shares of series convertible preferred stock. If any
fractional interest in a share of Common Stock would, except for the
provisions of the Subsection, be deliverable upon the conversion of shares
of series convertible preferred stock, the corporation shall, in lieu of
delivering the fractional share therefor, adjust such fractional interest
by payment to the holder of such surrendered shares of series convertible
preferred stock of an amount in cash equal (computed to the nearest cent)
to the current market value of such fractional interest, as determined in
good faith by the Board of Directors of the corporation.
6. VOTING RIGHTS. Except as provided by law or as provided above, the
holders of any series convertible preferred stock shall not be entitled to
notice of stockholders' meetings or to vote upon the election of directors
or upon any other matter.
Series X Junior Participating Preferred Stock
- ---------------------------------------------
The following information, terms and conditions relate to the Series X
Junior Participating Preferred Stock:
1. Designation and Amount. The shares of such series shall have par value
of $1.00 per share and shall be designated as "Series X Junior
Participating Preferred Stock" and the number of shares constituting
such series shall be 1,000,000.
2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any shares
of any series of Preferred Stock ranking prior and superior to the shares
of Series X Junior Participating Preferred Stock with respect to dividends,
the holders of shares of Series X Junior Participating Preferred Stock
shall be entitled to receive, when, as an if declared by the Board of
Directors out of funds legally available for the purpose, quarterly
dividends payable in cash (1) on the nineteenth business day after the
first working day of the last month in each quarter (based on a calendar
year), except in the quarter in which the annual meeting is held, in which
case on the (2) nineteenth business day after the last day of the quarter,
in each year (each such date being referred to herein as a "Quarterly
Dividend Payment Date") after the first issuance of a share or fraction of
a share of Series X Junior Participating Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $6.00 or
(b) subject to the
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provision for adjustment hereinafter set forth, 100 times the aggregate per
share amount of all cash dividends, and 100 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other distributions
other than a dividend payable in shares of Common Stock or a subdivision of
the outstanding shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock, par value $1.00 per share, of the corporation
(the "Common Stock") since the immediately preceding Quarterly Dividend
Payment Date, or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a share of
Series X Junior Participating Preferred Stock. In the event the corporation
shall at any time after October 30, 1996 (the "Rights Declaration Date")
(i) declare any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such
case the amount to which holders of shares of Series X Junior Participating
Preferred Stock were entitled immediately prior to such event under clause
(b) of the preceding sentence shall be adjusted by multiplying such amount
by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which
is the number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) The corporation shall declare a dividend or distribution on the Series
X Junior Participating Preferred Stock as provided in paragraph (A) above
immediately after it declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock); provided
that, in the event no dividend or distribution shall have been declared on
the Common Stock during the period between any Quarterly Dividend Payment
Date and the next subsequent Quarterly Dividend Payment Date, a dividend of
$6.00 per share on the Series X Junior Participating Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding shares
of Series X Junior Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares of
Series X Junior Participating Preferred Stock, unless the date of issue of
such shares is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or unless the
date of issue is a Quarterly Dividend Payment Date or is a date after the
record date for the
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determination of holders of shares of Series X Junior Participating
Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series X Junior Participating Preferred
Stock in an amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated prorata on a
share-by-share basis among all such shares at the time outstanding. The
Board of Directors may fix a record date for the determination of holders
of shares of Series X Junior Participating Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which
record date shall be no more than 30 days prior to the date fixed for the
payment thereof.
3. Voting Rights. The holders of shares of Series X Junior Participating
Preferred Stock shall have the following voting rights:
(A) Each share of Series X Junior Participating Preferred Stock shall
entitle the holder thereof to one (1) vote on all matters submitted to a
vote of the stockholders of the corporation.
(B) Except as otherwise provided herein or by law, the holders of shares of
Series X Junior Participating Preferred Stock and the holders of shares of
Common Stock shall vote together as one class on all matters submitted to a
vote of stockholders of the corporation.
(C) (i) If at any time dividends on any Series X Junior Participating
Preferred Stock shall be in arrears in an amount equal to six (6) quarterly
dividends thereon, the occurrence of such contingency shall mark the
beginning of a period (herein called a "default period") which shall extend
until such time when all accrued and unpaid dividends for all previous
quarterly dividend periods and for the current quarterly dividend period on
all shares of Series X Junior Participating Preferred Stock then
outstanding shall have been declared and paid or set apart for payment.
During each default period, all holders of Preferred Stock (including
holders of the Series X Junior Participating Preferred Stock) with
dividends in arrears in an amount equal to six (6) quarterly dividends
thereon, voting as a class, irrespective of series, shall have the right to
elect two (2) Directors.
(ii) During any default period, such voting right of the holders of
Series X Junior Participating Preferred Stock may be exercised initially at
a special meeting called pursuant to subparagraph (iii) of this Section
3(C) or at any annual meeting of stockholders, and thereafter at annual
meetings of stockholders,
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provided that neither such voting right nor the right of the holders of any
other series of Preferred Stock, if any, to increase, in certain cases, the
authorized number of Directors shall be exercised unless the holders of ten
percent (10%) in number of shares of Preferred Stock outstanding shall be
present in person or by proxy. The absence of a quorum of the holders of
Common Stock shall not affect the exercise by the holders of Preferred
Stock of such voting right. At any meeting at which the holders of
Preferred Stock shall exercise such voting right initially during an
existing default period, they shall have the right, voting as a class, to
elect Directors to fill such vacancies, if any, in the Board of Directors
as may then exist up to two (2) Directors or, if such right is exercised at
an annual meeting, to elect two (2) Directors. If the number which may be
so elected at any special meeting does not amount to the required number,
the holders of the Preferred Stock shall have the right to make such
increase in the number of Directors as shall be necessary to permit the
election by them of the required number. After the holders of the Preferred
Stock shall have exercised their right to elect Directors in any default
period and during the continuance of such period, the number of Directors
shall not be increased or decreased except by vote of the holders of
Preferred Stock as herein provided or pursuant to the rights of any equity
securities ranking senior to or pari passu with the Series X Junior
Participating Preferred Stock.
(iii) Unless the holders of Preferred Stock shall, during an existing
default period, have previously exercised their right to elect Directors,
the Board of Directors may order, or any stockholder or stockholders owning
in the aggregate not less than ten percent (10%) of the total number of
shares of Preferred Stock outstanding, irrespective of series, may request,
the calling of special meeting of the holders of Preferred Stock, which
meeting shall thereupon be called by the President, a Vice-President or the
Secretary of the corporation. Notice of such meeting and of any annual
meeting at which holders of Preferred Stock are entitled to vote pursuant
to this paragraph (C) (iii) shall be given to each holder of record of
Preferred Stock by mailing a copy of such notice to him at his last address
as the same appears on the books of the corporation. Such meeting shall be
called for a time not earlier than 20 days and not later than 60 days after
such order or request or in default of the calling of such meeting within
60 days after such order or request, such meeting may be called on similar
notice by any stockholder or stockholders owning in the aggregate not less
than ten percent (10%) of the total number of shares of Preferred Stock
outstanding. Notwithstanding the provisions of this paragraph (C)(iii), no
such special meeting shall be called during the period within 60 days
immediately preceding the date fixed for the next annual meeting of the
stockholders.
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(iv) In any default period, the holders of Common Stock, and other
classes of stock of the corporation if applicable, shall continue to be
entitled to elect the whole number of Directors until the holders of
Preferred Stock shall have exercised their right to elect two (2) Directors
voting as a class, after the exercise of which right (x) the Directors so
elected by the holders of Preferred Stock shall continue in office until
their successors shall have been elected by such holders or until the
expiration of the default period, and (y) any vacancy in the Board of
Directors may (except as provided in paragraph (C)(ii) of this Section 3)
be filled by the holders of the class of stock which elected the Director
whose office shall become vacant.
(v) Immediately upon the expiration of a default period, (x) the right
of the holders of Preferred Stock as a class to elect Directors shall
cease, (y) the term of any Directors elected by the holders of Preferred
Stock as a class shall terminate, and (z) the number of Directors shall be
such number as may be provided for in the certificate of incorporation or
by-laws irrespective of any increase made pursuant to the provisions of
paragraph (C)(ii) of this Section 3 (such number being subject, however, to
change thereafter in any manner provided by law of in the certificate of
incorporation or by-laws).
(D) Except as set forth herein, holders of Series X Junior Participating
Preferred Stock shall have no special voting rights and their consent shall
not be required (except to the extent they are entitled to vote with
holders of Common Stock as set forth herein) for taking any corporation
action.
4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series X Junior Participating Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of Series X
Junior Participating Preferred Stock outstanding shall have been paid in
full, the corporation shall not
(i) declare or pay dividends on, make any other distributions on, or
redeem or purchase or otherwise acquire for consideration any shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series X Junior Participating Preferred
Stock;
(ii) declare or pay dividends on or make any other distributions on
any shares of stock ranking on a parity (either as
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to dividends or upon liquidation, dissolution or winding up) with the
Series X Junior Participating Preferred Stock, except dividends paid
ratably on the Series X Junior Participating Preferred Stock and all such
parity stock on which dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series X Junior
Participating Preferred Stock, provided that the corporation may at any
time redeem, purchase or otherwise acquire shares of any such parity stock
in exchange for shares of any stock of the corporation ranking junior
(either as to dividends or upon dissolution, liquidation or winding up) to
the Series X Junior Participating Preferred Stock;
(iv) purchase or otherwise acquire for consideration any shares of
Series X Junior Participating Preferred Stock, or any shares of stock
ranking on a parity with the Series X Junior Participating Preferred Stock,
except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors, after consideration
of the respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective
series or classes.
(B) The corporation shall not permit any subsidiary of the corporation to
purchase or otherwise acquire for consideration any shares of stock of the
corporation unless the corporation could, under paragraph (A) of this
Section 3, purchase or otherwise acquire such shares at such time and in
such manner.
5. Reacquired Shares. Any shares of Series X Junior Participating
Preferred Stock purchased or otherwise acquired by the corporation in any
manner whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and may be reissued as
part of a new series of Preferred Stock to be created by resolution to the
conditions and restrictions on issuance set forth herein.
6. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation (voluntary or otherwise), dissolution or winding
up of the corporation, no distribution shall be made to the holders of
shares of stock ranking junior (either as to
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dividends or upon liquidation, dissolution or winding up) to the Series X
Junior Participating Preferred Stock unless, prior thereto, the holders of
shares of Series X Junior Participating Preferred Stock shall have received
$100 per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment
(the "Series X Liquidation Preference"). Following the payment of the full
amount of the Series X Liquidation Preference, no additional distributions
shall be made to the holders of shares of Series X Junior Participating
Preferred Stock unless, prior thereto, the holders of shares of Common
Stock shall have received an amount per share (the "Common Adjustment")
equal to the quotient obtained by dividing (i) the Series X Liquidation
Preference by (ii) 100 (as appropriately adjusted as set forth in
subparagraph C below to reflect such events as stock splits, stock
dividends and recapitalizations with respect to the Common Stock) (such
number in clause (ii), the "Adjustment Number"). Following the payment of
the full amount of the Series X Liquidation Preference and the Common
Adjustment in respect of all outstanding shares of Series X Junior
Participating Preferred Stock and Common Stock, respectively, holders of
Series X Junior Participating Preferred Stock and holders of shares of
Common Stock shall receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio of the Adjustment Number to
1 with respect to such Preferred Stock and Common Stock, on a per share
basis, respectively.
(B) In the event, however, that there are not sufficient assets available
to permit payment in full of the Series X Liquidation Preference and the
liquidation preferences of all other series of preferred stock, if any,
which rank on a parity with the Series X Junior Participating Preferred
Stock, then such remaining assets shall be distributed ratably to the
holders of such parity shares in proportion to their respective liquidation
preferences. In the event, however, that there are not sufficient assets
available to permit payment in full of the Common Adjustment, then such
remaining assets shall be distributed ratably to the holders of Common
Stock.
(C) In the event the corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares
of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number of shares, then
in each such case the amount set forth in the preceding sentence with
respect to the exchange or change of shares of Series X Junior
Participating Preferred Stock shall be adjusted by multiplying such amount
by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such
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event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
7. No Redemption. The shares of Series X Junior Participating Preferred
Stock shall not be redeemable.
8. Ranking. The Series X Junior Participating Preferred Stock shall rank
junior to all other series of the corporation's Preferred Stock, as to the
payment of dividends and the distribution of assets, unless the terms of
any such series shall provide otherwise.
9. Amendment. The Amended and Restated Articles of Incorporation of the
corporation shall not be further amended in any manner which would
materially alter or change the powers, preferences or special rights of the
Series X Junior Participating Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of a majority of the
outstanding shares of Series X Junior Participating Preferred Stock, voting
separately as a class.
10. Fractional Shares. Series X Junior Participating Preferred Stock, may
be issued in fractions of a share which shall entitle the holder, in
proportion to such holders fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of
all other rights of holders of Series X Junior Participating Preferred
Stock.
ARTICLE IV.
The Board of Directors shall be divided into three groups which shall be as
nearly equal as may be possible. At each annual stockholders meeting the
successors of the group of directors whose terms expire in that year shall be
elected to hold office for a term of three years, so that the term of office of
one group of directors shall expire each year; provided, however, that the term
of office of the directors of each group shall continue until the election and
qualification of the successors to the directors of such group. After the
division of directors into groups, any additional directors who may be elected
as provided in the bylaws shall be
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assigned to the various groups so as to maintain the number in each group
as nearly equal as possible.
ARTICLE V.
(A) Notwithstanding this provision of the Amended and Restated
Articles of Incorporation, except as set forth in paragraph (B) of this
Article, the affirmative vote or consent of the holders of not less than
four-fifths of the outstanding shares of stock of this corporation entitled
to vote in elections of directors shall be required:
(1) to adopt any agreement for, or to approve, the merger or
consolidation of the corporation with or into any other person
(as hereinafter defined),
(2) to authorize any sale, transfer or exchange to any other person
of all or substantially all of the assets of the corporation, or,
(3) to authorize the issuance or transfer by the corporation or any
subsidiary of any voting securities of the corporation in
exchange or payment for the securities or assets of any other
person, if such authorization is otherwise required by law or by
agreement between the corporation and any national securities
exchange or by any other agreement to which the corporation is a
party.
(B) The provisions of paragraph (A) of this Article shall not apply,
and the provisions of Mississippi law shall apply, to (1) any transaction
described therein if the Board of Directors by resolution shall have
approved by two-thirds vote of all directors a memorandum of understanding
with such other person setting forth the principal terms of such
transaction and such transaction is substantially consistent therewith; or
(2) any transaction described therein if such other person is a corporation
of which a majority of the outstanding shares of all classes of stock
entitled to vote in elections of directors is owned of record or
beneficially by the corporation or its subsidiaries.
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(C) The affirmative vote or consent of the holders of not less than
four-fifths of the outstanding shares of stock of the corporation entitled
to vote in elections of directors shall be required for the adoption of any
plan for the dissolution of the corporation if the Board of Directors shall
not have, by resolution adopted by two-thirds vote of all directors,
recommended to the stockholders the adoption of such plan for dissolution
of the corporation. If the Board of Directors shall have so recommended to
the stockholders such plan for dissolution of the corporation, the
provisions of Mississippi law shall apply.
(D) For the purposes of this Article,
(1) a "subsidiary" is any corporation more than 49 percent of the
voting securities of which are owned, directly or indirectly by
the corporation;
(2) a "person" is any individual, corporation, or other entity.
(E) The Board of Directors shall have the power and duty to
determine, for purposes of this Article, on the basis of information known
to such Board, whether a proposed transaction is substantially consistent
with any memorandum of understanding of the character referred to in
paragraph (B) of this Article.
Any such determination shall be conclusive and binding for all
purposes of this Article.
ARTICLE VI.
Any or all of the directors of the corporation may be removed from
office at any time, but only for cause and only by the affirmative vote of
the holders of a majority of the outstanding shares of the corporation then
entitled to vote generally in the election of directors, considered for
purposes of this Article VI as one class.
ARTICLE VII.
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The corporation shall hold a special meeting of shareholders (1) on
call of its Board of Directors or the Chief Executive Officer; or (2) if
the holders of at least twenty percent (20%) of all the votes entitled to
be cast on any issue proposed to be considered at the proposed special
meeting sign, date and deliver to the corporation's secretary one or more
written demands for the meeting, describing the purpose or purposes for
which it is to be held. Special meetings of the shareholders of the
corporation may not be called by any other person or persons.
ARTICLE VIII.
The bylaws of the corporation may only be adopted, repealed, altered
or amended by (1) action by the Board of Directors consistent with the
terms of the bylaws, or (2) the favorable vote of two-thirds of the
outstanding voting stock of the corporation entitled to vote thereon,
unless a higher shareholder vote is expressly required by the bylaws for
the adoption, repeal, alteration or amendment of any provision thereof.
ARTICLE IX.
Notwithstanding this provision of the Amended and Restated Articles of
Incorporation and any provisions of the bylaws of the corporation, no
amendment to the Amended and Restated Articles of Incorporation shall
amend, modify, or repeal any or all of the provisions of Article IV,
Article V, Article VI, Article VII, Article VIII or this Article IX of the
Amended and Restated Articles of Incorporation, unless so adopted by the
affirmative vote or consent of the holders of not less than four-fifths of
the outstanding shares of stock of the corporation entitled to vote in
elections of directors; provided, however, that in the event the Board of
Directors of the corporation shall by resolution adopted by two-thirds of
all directors recommend to the stockholders the adoption of any such
amendment, the stockholders of
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record holding two-thirds of the outstanding shares of stock of the corporation,
entitled to vote in elections of directors may amend, modify, or repeal Article
IV, Article V, Article VI, Article VII, Article VIII and Article IX.
ARTICLE X.
The corporation shall not be subject to the provisions of the Mississippi
Control Share Act, Miss. Code Ann. Section 79-27-1, et seq.
ARTICLE XI.
A director of the corporation shall not be personally liable to the
corporation or its shareholders for monetary damages for breach of duty of care
or other duty as a director except for liability (i) for any appropriation, in
violation of his duties, of any business opportunity of the corporation; (ii)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law; (iii) of the types set forth in Section 79-4-8.33
of the Mississippi Business Corporation Act; or (iv) for any transaction from
which the director derived an improper personal benefit. These provisions of
this Article shall not apply with respect to acts or omissions occurring prior
to the effective date of this Article.
Any repeal or modification of the provisions of this Article by the
shareholders of the corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of the director of the
corporation with respect to any act or omission occurring prior to the effective
date of such repeal or modification.
If the Mississippi Business Corporation Act hereinafter is amended to
authorize the further elimination or limitation of the liability of directors,
then the liability of a director of the corporation, in addition to the
limitation on personal liability provided herein shall be limited to the fullest
extent permitted by the amended Mississippi Business Corporation Code.
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In the event that any of the provisions of this Article (including any
provision within a single sentence) is held by a court of competent jurisdiction
be invalid, void or otherwise unenforceable, the remaining provisions are
severable and shall remain enforceable to the fullest extent permitted by law.
For purposes of this Article the term "corporation" includes this
corporation and any domestic or foreign predecessor entity of the corporation in
a merger or other transaction in which the predecessor's existence ceased upon
consummation of the transaction or in which all or part of the predecessor's
operating assets were transferred to this corporation upon consummation of the
transaction.