EXHIBIT 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
CITY TRUCK & TRAILER PARTS, INC.
TO THE JUDGE OF PROBATE
JEFFERSON COUNTY, ALABAMA:
Pursuant to the provisions of Ala. Code, (S)(S) 10-2B-10.06 and 10-2B-10.07
(1994), City Truck & Trailer Parts, Inc., an Alabama corporation (the
"Corporation") hereby adopts the following Amended and Restated Articles of
Incorporation:
FIRST: The name of the Corporation is:
- -----
CITY TRUCK & TRAILER PARTS, INC.
SECOND: The text of the Amended and Restated Articles of Incorporation is as
- ------
follows:
The undersigned, for the purpose of forming a corporation pursuant to the
provisions of the Alabama Business Corporation Act and any amendment thereto
or supplement thereof (hereinafter referred to as the "Act"), does hereby
certify as follows:
1. NAME. The name of the corporation is HDA PARTS SYSTEM, INC. (hereinafter
----
called the "Corporation").
2. PURPOSES.
--------
(a) GENERAL PURPOSES. The purposes for which the Corporation is organized
----------------
are to engage in any lawful business, act or activity for which a corporation
may be organized under the Act, it being the purpose and intent of this Article
to invest the Corporation with the broadest purposes, objects and powers
lawfully permitted a corporation formed under the Act; and to carry on any and
all aspects, ordinary or extraordinary, of any lawful business and to enter into
and carry out any transaction, ordinary or extraordinary, permitted by law,
having and exercising in connection herewith all powers given to corporations by
the Act and all other applicable laws of the State of Alabama.
(b) SPECIFIC PURPOSES. Without limiting the scope and generality of the
-----------------
foregoing, the Corporation shall have the following purposes, objects and
powers:
(1) To own, buy, sell, lease, rent and generally to engage in the
business of buying, selling and distributing truck and automobile parts and
related accessories.
1
(2) To manufacture, purchase or otherwise acquire, and to hold, own,
mortgage, pledge, sell, assign and transfer, exchange or otherwise dispose of,
and invest, trade and deal in and with goods, wares and merchandise and personal
property of every class and description, wherever situated, whether or not the
same specifically pertain to the classes of business specified in this Article;
and to own and operate mines, plants, factories, mills, warehouses, yards,
merchandise stores, commissaries and all other installations or establishments
of whatever character or description, together with the equipment, rolling stock
and other facilities used or useful in connection with or incidental thereto.
(3) To engage in the business of exploiting natural resources, to
search, prospect and explore for useful or valuable substances, to acquire and
extract such substances, to sell and dispose of such substances, and to refine
such substances and manufacture and sell and dispose of products and by-products
derived therefrom.
(4) To purchase or otherwise acquire, hold, use, sell, assign, lease,
mortgage or in any manner dispose of, and to take, exchange and grant licenses,
or other rights therein, in respect of letters patent of the United States or
any foreign country, patent rights, licenses and privileges, inventions,
improvements, processes, formulae, methods, copyrights, trademarks and trade
names, know how, and trade secrets, relating to or useful in connection with any
business, objects or purposes of the Corporation.
(5) To acquire, by purchase, subscription or otherwise, and to own,
hold, sell and dispose of, exchange, deal in and with stocks, bonds, debentures,
obligations, evidences of indebtedness, promissory notes, mortgages and
securities executed by any individual or by any corporation in Alabama or any
other state or foreign countries, whether public or private, government or
municipality or otherwise, and to issue and exchange for all such stocks, bonds,
debentures, obligations, evidences of indebtedness, promissory notes, mortgages
or securities, the stock, bonds, debentures or other evidences of indebtedness
of the Corporation, and the Corporation shall have express power to hold, sell,
assign, transfer, mortgage, pledge or otherwise dispose of the shares of capital
stock, bonds, debentures, promissory notes, mortgages and securities so acquired
by it and, while the owner thereof, to exercise all the rights, privileges and
powers of ownership, including the right to vote thereon, to the same extent as
a natural person may do, subject to the limitations, if any, on such rights now
or hereafter provided by the laws of Alabama.
(6) To endorse, lend its credit to, or otherwise guarantee, or become
a surety with respect to, or obligate itself for, or pledge or mortgage all or
any part of its properties to secure the payment of the principal and interest,
or either, on any bonds, debentures, notes, scrip, coupons, or other obligations
or evidences of indebtedness (including the obligations of others for whom it
can make guarantees, whether or not a guarantee is made), or the performance of
any contract, lease, mortgage, or obligation, of any subsidiary, affiliated or
related corporation or any other corporation or association, domestic or
foreign, or of any person, firm, partnership or joint venture. Without limiting
the generality of the foregoing, the Corporation may: (i) make contracts of
guarantee and
2
suretyship and indemnity agreements that are necessary or convenient to the
conduct, promotion or attainment of the business of the Corporation; and (ii)
make contracts of guarantee and suretyship and indemnity agreements that are
necessary or convenient to the conduct, promotion or attainment of the business
of (1) an entity that is wholly owned, directly or indirectly, by the
Corporation; (2) a person that owns, directly or indirectly, all of the
outstanding capital stock of the Corporation; or (3) an entity that is wholly
owned, directly or indirectly, by a person that owns, directly or indirectly,
all of the outstanding capital stock of the Corporation.
(7) To enter into, make and perform contracts of every kind for any
lawful purpose without limit as to amount, with any person, firm, association,
partnership, limited partnership, corporation, municipality, county, state,
territory, government, governmental subdivision, or body politic.
(8) To acquire the good will, rights, assets and properties, and to
undertake the whole or any part of the liabilities of any person, firm,
association or corporation; to pay for the same in cash, the stock or other
securities of the Corporation, or otherwise; to hold, or in any manner dispose
of, the whole or part of the property so acquired; to conduct in any lawful
manner the whole or any part of the business so acquired and to exercise all the
powers necessary or convenient in and about the conduct and management of any
such business.
(9) To borrow and lend money, without security, or upon the giving or
receipt of such security as the Board of Directors of the Corporation may deem
advisable by way of mortgage, pledge, transfer, assignment, or otherwise, of
real and personal property of every nature and description, or by way of
guaranty, or otherwise, and to enter into revolving credit agreements or other
loan agreements of any kind with banks or other financial or institutional
investors.
(10) To draw, make, accept, endorse, discount, execute and issue
promissory notes, drafts, bills of exchange, warrants, debentures and other
negotiable or transferable instruments.
(11) To issue bonds, debentures or other securities or obligations
and to secure the same by mortgage, pledge, deed of trust, or otherwise.
(12) To act as agent, jobber, broker or attorney-in-fact in buying,
selling and dealing in real and personal property of every nature and
description and leases respecting the same and estates and interests therein and
mortgages and securities thereon, in making and obtaining loans, whether secured
by such property or not, and in supervising, managing and protecting such
property and loans and all interests in and claims affecting the same.
(13) To purchase, take, receive, redeem, exchange, or otherwise
acquire, hold, own, pledge, transfer or otherwise dispose of the Corporation's
own shares of common or other stock, whether or not redeemable (so far as may be
permitted by law),
3
and its bonds, debentures, notes, scrip or other securities or evidences of
indebtedness, and to hold, sell, transfer or reissue the same.
(14) To enter into any plan or project for the assistance and welfare
of its employees, to lend money and use its credit to assist its employees, and
to pay pensions and establish pension plans, pension trusts, profit sharing
plans, stock bonus plans, stock option plans, employee stock ownership plans and
other incentive or welfare plans for any or all of the Corporation's directors,
officers and employees.
(15) To enter into any lawful arrangements for sharing of profits,
union of interest, reciprocal concession, or cooperation, as partner (general or
limited), joint venturer, or otherwise, with any person, partnership,
corporation, association, combination, organization, entity or other body
whatsoever, domestic or foreign, carrying on or proposing to carry on any
business which the Corporation is authorized to carry on, or any business or
transaction deemed necessary, convenient or incidental to the carrying out of
any of the purposes of the Corporation.
(16) To have one or more offices to carry on all of the Corporation's
operations and business without restriction or limit as to amount, in any of the
states, districts, territories or possessions of the United States, and in any
and all foreign countries, subject to the laws of such state, district,
territory, possession, or country.
(17) To do any and all of the things herein set out and such other
things as are incidental or conducive to the attainment of the objects and
purposes of the Corporation, to the same extent as natural persons might or
could do and in any part of the world, as principal, factor, agent, contractor,
or otherwise, either alone or in conjunction with any person, firm, association,
partnership, corporation or any entity of whatsoever kind, and to do any and all
such acts and things and to have and exercise any and all such powers to the
full extent authorized or permitted to a corporation under any laws that may now
or hereafter be applicable or available to the Corporation.
(c) CONSTRUCTION. The foregoing clauses, and each phrase thereof, shall
------------
be construed, in their broadest sense, not only as purposes and objects for
which the Corporation has been organized, but also as powers of the Corporation
in addition to those powers specifically conferred upon the Corporation by law,
and it is hereby expressly provided that the foregoing specific enumeration of
such purposes, objects and powers shall not be held to limit or restrict in any
manner the powers of the Corporation otherwise granted by law. All words,
phrases and provisions in this Article are used in their broadest sense, are not
limited by reference to, or inference from, any other words, phrases or
provisions and shall be so construed. For purposes of these Articles of
Incorporation, the term "person" means and includes any individual or entity.
3. SHARES.
------
The Board of Directors of the Corporation deems it to be desirable and in
the best interests of the Corporation to further amend and restate the
Corporation's Amended and
4
Restated Articles of Incorporation to increase the authorized capital stock of
the Corporation and to effect a reverse stock split of the shares of Series B
Preferred Stock, par value $.01 per share. Upon these Amended and Restated
Articles of Incorporation becoming effective in accordance with the Alabama
Business Corporation Act, every issued and outstanding share of Series B
Preferred Stock shall be changed into 1/100th of a validly issued, fully paid
and nonassessable share of Series B Preferred Stock, par value $.01 per share.
Fractional shares resulting from such reverse split will be issued, and no cash
will be paid in lieu thereof.
(a) AUTHORIZED SHARES. The total number of shares of all classes of stock
-----------------
which the Corporation shall have authority to issue is 1,100,000, consisting of
250,000 shares of Common Stock, par value $.01 per share (the "Common Stock"),
and 850,000 shares of Preferred Stock, par value $.01 per share (the "Preferred
Stock"). The Preferred Stock may be divided into such number of series as the
Board of Directors may determine. Except as otherwise provided below with
respect to the Series A Preferred Stock and Series B Preferred Stock, the Board
of Directors is authorized to determine and alter the preferences, limitations
and relative rights (including, without limitation, voting rights and powers)
and restrictions granted to and imposed upon the Preferred Stock or any series
thereof with respect to any wholly unissued class or series of Preferred Stock,
and to fix the number of shares of any series of Preferred Stock and the
designation of any such series of Preferred Stock. The Board of Directors,
within the limits and restrictions stated in any resolution or resolutions of
the Board of Directors originally fixing the number of shares constituting any
series, may increase or decrease (but not below the number of any series then
outstanding) the number of shares of any series subsequent to the issue of
shares of that series.
(b) DESIGNATION OF COMMON STOCK. The following is a statement of the
---------------------------
designations and powers, preferences and rights, and the qualifications,
limitations or restrictions thereof, in respect of the Common Stock:
(1) Dividends. Subject to the preferential rights, if any, of the
---------
Preferred Stock, the holders of shares of Common Stock shall be entitled to
receive, when and if declared by the Board of Directors, out of the assets of
the Corporation which are by law available therefor, dividends payable either in
cash, in property or in shares of Common Stock.
(2) Voting Rights. Except as otherwise required by law or as
-------------
otherwise provided in this Article, at every annual or special meeting of
shareholders of the Corporation, every holder of Common Stock shall be entitled
to one vote, in person or by proxy, for each share of Common Stock standing in
his name on the books of the Corporation.
(3) Liquidation, Dissolution or Winding-Up. In the event of any
--------------------------------------
voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Corporation, after payment or provision for payment of the debts and
other liabilities of the
5
Corporation and of the preferential amounts, if any, to which the holders of
Preferred Stock shall be entitled, the holders of all outstanding shares of
Common Stock shall be entitled to share ratably in the remaining net assets of
the Corporation.
(c) DESIGNATION OF SERIES A PREFERRED STOCK. The following is a statement
---------------------------------------
of the designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof, in respect of the Series A
Preferred Stock:
(1) Designation. A series of the Preferred Stock of the Corporation
-----------
is hereby designated as "Series A Preferred Stock" (hereinafter called the
"Series A Preferred Stock") consisting initially of 40,000 shares. Shares of
the Series A Preferred Stock shall rank prior to the Corporation's Common Stock
with respect to the payment of dividends and upon liquidation, dissolution,
winding-up or otherwise. Unless specifically designated as junior to the Series
A Preferred Stock with respect to the payment of dividends or upon liquidation,
dissolution, winding-up or otherwise, all other series of Preferred Stock and
other classes of preferred stock of the Corporation shall rank on parity with
the Series A Preferred Stock with respect thereto.
(2) Dividends.
---------
(i) Each holder of shares of Series A Preferred Stock will be
entitled to receive dividends on each such share, at the rate of ten and
one-half percent (10 1/2%) per annum (computed on the basis of $200.00 per
share), if, as and when declared by the Board of Directors of the
Corporation, out of funds legally available for the payment of dividends,
in respect of the period from and including the date of the original
issuance of each such share of Series A Preferred Stock, to and including
June 30, 1998 (the "Initial Dividend Period"), and for each quarterly
dividend period thereafter ("Quarterly Dividend Period") which Quarterly
Dividend Periods shall commence on July 1, October 1, January 1 and April 1
in each year and shall end on and include the day immediately preceding the
first day of the next Quarterly Dividend Period. Dividends on the shares of
Series A Preferred Stock shall be payable on June 30, September 30,
December 31 and March 31 of each year (a "Dividend Payment Date"),
commencing June 30, 1998. Each such dividend shall be paid to the holders
of record of the Series A Preferred Stock as they shall appear on the stock
register of the Corporation on such record date, not exceeding 45 days nor
less than 10 days preceding such Dividend Payment Date, as shall be fixed
by the Board of Directors of the Corporation or a duly authorized committee
thereof. Such dividends shall be payable in cash up to June 1, 1999, but
shall thereafter only accrue and compound as provided below.
If, on any Dividend Payment Date, the holders of the Series A
Preferred Stock shall not have received the full dividends provided for in
cash, then such dividends shall cumulate, whether or not earned or
declared, with additional dividends thereon, compounded quarterly, at the
dividend rate of six percent (6%)
6
per annum (computed on the basis of $200.00 per share), for each succeeding
full Quarterly Dividend Period during which such dividends shall remain
unpaid.
(ii) The amount of any dividends accrued on any share of the
Series A Preferred Stock on any Dividend Payment Date shall be deemed to be
the amount of any unpaid dividends accumulated thereon, to and including
such Dividend Payment Date, whether or not earned or declared. The amount
of dividends accrued on any share of the Series A Preferred Stock on any
date other then a Dividend Payment Date shall be deemed to be the sum of
(i) the amount of any unpaid dividends accumulated thereon, to and
including the last preceding Dividend Payment Date, whether or not earned
or declared, (ii) an amount determined by. multiplying (a) $200.00 by (b)
the result (the "Multiplier") of multiplying two and five-eighths percent
(2 5/8%) by a fraction, the numerator of which shall be the number of days
from the last preceding Dividend Payment Date, to and including the date on
which such calculation is made, and the denominator of which shall be the
full number of days in such Quarterly Dividend Period, and (iii) an amount
determined by multiplying the amount set forth in clause (i) above by the
Multiplier.
(iii) Declaration Prior to Redemption or Liquidation.
----------------------------------------------
Immediately prior to authorizing or making any distribution in redemption
or liquidation with respect to the Series A Preferred Stock (other than a
purchase or acquisition of Series A Preferred Stock pursuant to a purchase
or exchange offer made on the same terms to (holders of all outstanding
Series A Preferred Stock), the Board of Directors shall, to the extent of
any funds legally available therefor, declare a dividend in cash on the
Series A Preferred Stock, payable on the distribution date in the amount
equal to any accrued and unpaid dividends on the Series A Preferred Stock
as of such date.
(3) Redemption.
----------
(i) Optional Redemption. Prior to June 1, 1999, the Series A
-------------------
Preferred Stock may be redeemed, in whole or in part, at any time at the
election of the Corporation by resolution of its Board of Directors, on
notice as set forth in subsection 3(iii), below, at the redemption price of
$200.00 per share of Series A Preferred Stock, plus an amount equal to
accrued and unpaid dividends to the redemption date (the "Redemption
Price").
In the event that at any time less than all of the Series A
Preferred Stock outstanding is to be redeemed, the shares to be redeemed
will be redeemed pro rata. Notwithstanding anything to the contrary, the
Corporation may not redeem less than all of the Series A Preferred Stock
outstanding unless all accrued and unpaid dividends have been paid on all
then outstanding shares of Series A Preferred Stock.
7
(ii) Mandatory Redemption. Upon the first to occur of (i) an
--------------------
initial public offering of the Common Stock of the Corporation, (ii) the
sale of all or substantially all of the assets of the Corporation or (iii)
any sale, transfer or issuance or series of sales, transfers or issuances
of the Corporation's capital stock by the Corporation or any holders
thereof which results in any person, entity or group of persons (as such
term "group" is used under the Securities Exchange Act of 1934, as amended)
(other than the holders of Common Stock as of the date of the closing of
the transactions pursuant to that certain Stock Purchase Agreement dated as
of May 29, 1998 by and among the Corporation and certain other parties
named therein), owning more than 50% of the stock of the Corporation
possessing the voting power (under ordinary circumstances) to elect a
majority of the Corporation's Board of Directors, the Corporation, shall
redeem all remaining outstanding shares of Series A Preferred Stock at a
redemption price per share equal to the Redemption Price.
(iii) Notice of Redemption. Notice of any redemption pursuant
--------------------
to this Section shall be mailed, postage prepaid, at least 15 days but not
more than 60 days prior to said redemption date to each holder of record of
the Series A Preferred Stock to be redeemed at its address as the same
shall appear on the stock register of the Corporation. Each such notice
shall state: (1) the date fixed for such redemption, (2) the place or
places where certificates for such shares of Series A Preferred Stock are
to be surrendered for payment, (3) the Redemption Price, and (4) that
unless the Corporation defaults in making the redemption payment, dividends
on the shares of Series A Preferred Stock called for redemption shall cease
to accrue on and after the date of redemption. If less than all the shares
of the Series A Preferred Stock owned by such holder are then to be
redeemed, such notice shall also specify the number of shares thereof which
are to be redeemed and the numbers of the certificates representing such
shares.
If such notice of redemption shall have been so mailed and if
prior to the date of redemption specified in such notice, all said funds
necessary for such redemption shall have been irrevocably deposited in
trust, for the account of the holders of the shares of the Series A
Preferred Stock to be redeemed (and so as to be and continue to be
available therefor), with a bank or trust company named in such notice
doing business in Los Angeles, California and having capital surplus and
undivided profits of at least $50,000,000, thereupon, and without awaiting
the redemption date, all shares of the Series A Preferred Stock with
respect to which such notice shall have been so mailed and such deposit
shall have been so made, shall, notwithstanding that any certificate for
shares of Series A Preferred Stock shall not have been surrendered for
cancellation, be deemed to be no longer outstanding and all rights with
respect to such shares of the Series A Preferred Stock shall forthwith upon
such deposit in trust cease and terminate, except for the right of the
holders thereof on or after the redemption date to receive from such
deposit the amount payable upon the redemption, but without interest. In
case the holders of shares of the Series A Preferred Stock which shall have
been called for
8
redemption shall not within two years (or any longer period if required by
law) after the redemption date claim any amount so deposited in trust for
the redemption of such shares, such bank or trust company shall, if
permitted by applicable law, pay over to the Corporation any such unclaimed
amount so deposited with it, and shall thereupon be relieved of all
responsibility in respect, thereof, and thereafter the holders of such
shares shall, subject to applicable escheat laws, look only to the
Corporation for payment of the redemption price thereof, but without
interest.
(iv) Status of Shares. Shares of Series A Preferred Stock
----------------
redeemed, purchased or otherwise acquired by the Corporation shall, after
such acquisition, have the status of authorized and unissued shares of
Preferred Stock and may be reissued by the Corporation at any time as
shares of any series of Preferred Stock, other than shares of Series A
Preferred Stock.
(4) Priority.
--------
(i) Priority as to Dividends. Subject to subsection (ii) below,
------------------------
no dividends (other than dividends payable in Common Stock or in another
stock ranking, with respect to the payment of dividends and upon
liquidation, dissolution, winding-up or otherwise, junior to, or on a
parity with, the Series A Preferred Stock) shall be declared or paid or set
apart for payment on the Preferred Stock of any series, or stock of any
other class which, in either case, ranks, as to dividends and upon
liquidation, dissolution, winding up or otherwise, (x) junior to the Series
A Preferred Stock ("Junior Stock") or (y) on a parity with the Series A
Preferred Stock ("Parity Stock") for any period unless at the time of such
declaration or payment or setting apart for payment (i) full cumulative
dividends have been or contemporaneously are declared and paid (or declared
and a sum sufficient for the payment thereof set apart for such payment) on
the Series A Preferred Stock for the Initial Dividend Period and all
Quarterly Dividend Periods terminating on or prior to the date of payment
of such dividends on Junior Stock or Parity Stock, (ii) the Corporation
shall not be in default with respect to any obligation to redeem shares of
Series A Preferred Stock, and (iii) an amount equal to the dividends
accrued on the Series A Preferred Stock from the last Dividend Payment Date
to the date of payment of such dividends on Junior Stock or Parity Stock
has been declared and set apart in cash for payment on the Series A
Preferred Stock.
(ii) Notwithstanding anything to the contrary in subsection (i)
hereof, cumulative dividends on any Parity Stock may be paid if cumulative
dividends shall be declared upon shares of Series A Preferred Stock and
such Parity Stock on a pro rata basis so that in all cases the amount of
dividends declared per share on the Series A Preferred Stock and such
Parity Stock shall bear to each other the same ratio that accrued dividends
per share on the shares of Series A Preferred Stock and on such Parity
Stock bear to each other.
9
(iii) Priority on Redemption. The Corporation shall not,
----------------------
directly or indirectly, redeem or purchase or otherwise acquire for value
any Junior Stock or Parity Stock unless, at the time of making such
redemption, purchase or other acquisition the Corporation shall have
redeemed, or shall contemporaneously redeem, all of the then outstanding
shares of Series A Preferred Stock at the applicable redemption price (or
shall have irrevocably committed to redeem all of the then outstanding
shares of Series A Preferred Stock and have set aside a sum sufficient for
the payment thereof at the applicable Redemption Price on the date of such
subsequent redemption).
(5) Liquidation Preference.
----------------------
(i) In the event of any liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or involuntary, after
payment or provision for payment of the debts and other liabilities of the
Corporation, the holders of shares of the Series A Preferred Stock shall be
entitled to receive for each share of Series A Preferred Stock then held,
out of the assets of the Corporation, whether such assets are capital or
surplus and whether or not any dividends as such are declared, an amount
equal to the applicable Redemption Price on the date fixed for
distribution, and no more, before any distribution shall be made to the
holders of the Common Stock or Junior Stock with respect to the
distribution of assets.
If, upon any such liquidation, dissolution or other winding up of
the affairs of the Corporation, the assets of the Corporation distributable
among the holders of all outstanding shares of the Series A Preferred Stock
and of any Parity Stock shall be insufficient to permit the payment in full
to such holders of the preferential amounts to which they are entitled,
then the entire assets of the Corporation remaining after the payment or
provision for payment of the debts and other liabilities of the Corporation
shall be distributed among the holders of the Series A Preferred Stock and
of any Parity Stock ratably in proportion to the full amounts to which they
would otherwise be respectively entitled.
(ii) Written notice of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, stating a
payment date and the place where the distributive amounts shall be payable,
shall be given by mail, postage prepaid, not less than 30 days prior to the
payment date stated therein, to the holders of record of the Series A
Preferred Stock at their respective addresses as the same shall appear on
the books of the Corporation.
(iii) No payment on account of such liquidation, dissolution or
winding up of the affairs of the Corporation shall be made to the holders
of any Parity Stock, unless there shall likewise be paid at the same time
to the holders, of the Series A Preferred Stock like proportionate
distributive amounts, ratably, in
10
proportion to the full distributive amounts to which they and the holders
of such Parity Stock are respectively entitled with respect to such
preferential distribution.
(6) Voting Rights. The holders of the Series A Preferred Stock shall
-------------
not be entitled to vote on any matter.
(d) DESIGNATION OF SERIES B PREFERRED STOCK. The following is a statement
---------------------------------------
of the designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof, in respect of the Series B
Preferred Stock:
(1) Designation. A series of the Preferred Stock of the Corporation
-----------
is hereby designated as "Series B Preferred Stock" (hereinafter called the
"Series B Preferred Stock") consisting initially of 810,000 shares. Shares of
the Series B Preferred Stock shall rank prior to the Corporation's Common Stock
with respect to the payment of dividends and upon liquidation, dissolution,
winding-up or otherwise. Unless specifically designated as junior to the Series
B Preferred Stock with respect to the payment of dividends or upon liquidation,
dissolution, winding-up or otherwise, all other series of Preferred Stock and
other classes of preferred stock of the Corporation shall rank on parity with
the Series B Preferred Stock with respect thereto.
(2) Dividends.
---------
(i) Each holder of shares of Series B Preferred Stock will be
entitled to receive dividends on each such share, at the rate of six
percent (6%) per annum (computed on the basis of $100.00 per share), if, as
and when declared by the Board of Directors of the Corporation, out of
funds legally available for the payment of dividends, in respect of the
period from and including the date of the original issuance of each such
share of Series B Preferred Stock, to and including June 30, 1998 (the
"Initial Dividend Period"), and for each quarterly dividend period
thereafter ("Quarterly Dividend Period") which Quarterly Dividend Periods
shall commence on July 1, October 1, January 1 and April 1 in each year and
shall end on and include the day immediately preceding the first day of the
next Quarterly Dividend Period. Dividends on the shares of Series B
Preferred Stock shall be payable on June 30, September 30, December 31 and
March 31 of each year (a "Dividend Payment Date"), commencing June 30,
1998. Each such dividend shall be paid to the holders of record of the
Series B Preferred Stock as they shall appear on the stock register of the
Corporation on such record date, not exceeding 45 days nor less than 10
days preceding such Dividend Payment Date, as shall be fixed by the Board
of Directors of the Corporation or a duly authorized committee thereof.
If, on any Dividend Payment Date, the holders of the Series B
Preferred Stock shall not have received the full dividends provided for in
this Section 3 in cash, then such dividends shall cumulate, whether or not
earned or declared, with additional dividends thereon, compounded
quarterly, at the dividend
11
rate of six percent (6%) per annum, for each succeeding full Quarterly
Dividend Period during which such dividends shall remain unpaid.
(ii) The amount of any dividends accrued on any share of the
Series B Preferred Stock on any Dividend Payment Date shall be deemed to be
the amount of any unpaid dividends accumulated thereon, to and including
such Dividend Payment Date, whether or not earned or declared. The amount
of dividends accrued on any share of the Series B Preferred Stock on any
date other then a Dividend Payment Date shall be deemed to be the sum of
(i) the amount of any unpaid dividends accumulated thereon, to and
including the last preceding Dividend Payment Date, whether or not earned
or declared, (ii) an amount determined by multiplying (a) $100.00 by (b)
the result (the "Multiplier") of multiplying one and one-half percent (1
1/2%) by a fraction, the numerator of which shall be the number of days
from the last preceding Dividend Payment Date, to and including the date on
which such calculation is made, and the denominator of which shall be the
full number of days in such Quarterly Dividend Period, and (iii) an amount
determined by multiplying the amount set forth in clause (i) above by the
Multiplier.
(iii) Declaration Prior to Liquidation. Immediately prior to
--------------------------------
authorizing or making any distribution in liquidation with respect to the
Series B Preferred Stock (other than a purchase or acquisition of Series B
Preferred Stock pursuant to a purchase or exchange offer made on the same
terms to holders of all outstanding Series B Preferred Stock), the Board of
Directors shall, to the extent of any funds legally available therefor,
declare a dividend in cash on the Series B Preferred Stock payable on the
distribution date in the amount equal to any accrued and unpaid dividends
on the Series B Preferred Stock as of such date.
(3) Prohibition on Redemption. The Company has no right to redeem any
--------------------------
shares of Series B Preferred Stock and no holder of shares of Series B Preferred
Stock has any right to require the Company to redeem such holder's shares of
Series B Preferred Stock.
(4) Priority.
--------
(i) Priority as to Dividends. Subject to subsection (ii) below,
-------------------------
no dividends (other than dividends payable in Common Stock or in another
stock ranking, with respect to the payment of dividends and upon
liquidation, dissolution, winding-up or otherwise, junior to, or on a
parity with, the Series B Preferred Stock) shall be declared or paid or set
apart for payment on the Preferred Stock of any series, or stock of any
other class which, in either case, ranks, as to dividends and upon
liquidation, dissolution, winding up or otherwise, (x) junior to the Series
B Preferred Stock ("Junior Stock") or (y) on a parity with the Series B
Preferred Stock ("Parity Stock") for any period unless at the time of such
declaration or payment or setting apart for payment (i) full cumulative
dividends have been or
12
contemporaneously are declared and paid (or declared and a sum sufficient
for the payment thereof set apart for such payment) on the Series B
Preferred Stock for all Dividend Periods terminating on or prior to the
date of payment of such dividends on Junior Stock or Parity Stock, and (ii)
an amount equal to the dividends accrued on the Series B Preferred Stock
from the last Dividend Payment Date to the date of payment of such
dividends on Junior Stock or Parity Stock has been declared and set apart
in cash for payment on the Series B Preferred Stock.
(ii) Notwithstanding anything to the contrary in subsection (i)
above, cumulative dividends on any Parity Stock may be paid if cumulative
dividends shall be declared upon shares of Series B Preferred Stock and
such Parity Stock on a pro rata basis so that in all cases the amount of
dividends declared per share on the Series B Preferred Stock and such
Parity Stock shall bear to each other the same ratio that accrued dividends
per share on the shares of Series B Preferred Stock and on such Parity
Stock bear to each other.
(5) Liquidation Preference.
----------------------
(i) In the event of any liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or involuntary, after
payment or provision for payment of the debts and other liabilities of the
Corporation, the holders of shares of the Series B Preferred Stock shall be
entitled to receive for each share of Series B Preferred Stock then held,
out of the assets of the Corporation, whether such assets are capital or
surplus and whether or not any dividends as such are declared, an amount
equal to $100.00 per share of Series B Preferred Stock, plus an amount
equal to accrued and unpaid dividends thereon, on the date fixed for
distribution, and no more, before any distribution shall be made to the
holders of the Common Stock or Junior Stock with respect to the
distribution of assets.
If, upon any such liquidation, dissolution or other winding up of
the affairs of the Corporation, the assets of the Corporation distributable
among the holders of all outstanding shares of the Series B Preferred Stock
and of any Parity Stock shall be insufficient to permit the payment in full
to such holders of the preferential amounts to which they are entitled,
then the entire assets of the Corporation remaining after the payment or
provision for payment of the debts and other liabilities of the Corporation
shall be distributed among the holders of the Series B Preferred Stock and
of any Parity Stock ratably in proportion to the full amounts to which they
would otherwise be respectively entitled.
(ii) Written notice of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, stating a
payment date and the place where the distributive amounts shall be payable,
shall be given by mail, postage prepaid, not less than 30 days prior to the
payment date stated therein,
13
to the holders of record of the Series B Preferred Stock at their respective
addresses as the same shall appear on the books of the Corporation.
(iii) No payment on account of such liquidation, dissolution or
winding up of the affairs of the Corporation shall be made to the holders
of any Parity Stock, unless there shall likewise be paid at the same time
to the holders of the Series B Preferred Stock like proportionate
distributive amounts, ratably, in proportion to the full distributive
amounts to which they and the holders of such Parity Stock are respectively
entitled with respect to such preferential distribution.
(6) Voting Rights. Except as otherwise required by law, the holders
--------------
of the Series B Preferred Stock shall be entitled to vote along with the Common
Stock (and not as a separate class) on all matters and shall be entitled to one
vote per share of Series B Preferred Stock.
(e) DENIAL OF SHAREHOLDER'S PREEMPTIVE RIGHTS. Except as otherwise
-----------------------------------------
provided in any agreement among the Corporation and its shareholders, no
shareholder shall be entitled as a matter of right to subscribe for, purchase,
or receive any shares of stock, or other securities convertible into stock, of
the Corporation which it may issue, or sell, whether such shares are now or
hereafter authorized, but all such additional shares of stock or other
securities may be issued and disposed of by the Board of Directors to such
persons and upon such terms as in its absolute discretion it may deem advisable.
No shareholder of any shares of stock shall have any preemptive rights with
respect to the issuance of any class of stock, including treasury shares.
(f) SHAREHOLDERS' AGREEMENT; RESTRICTIONS ON TRANSFER. The Bylaws of the
-------------------------------------------------
Corporation, an agreement among shareholders of the Corporation, or an agreement
between such shareholders and the Corporation may impose restrictions on the
transfer or registration of transfer of shares of the Corporation, and notice is
hereby given that any such bylaw provision or agreement may exist restricting
the transfer or registration of transfer of shares of the Corporation. If such
bylaw provision or agreement exists, the restriction on transfer or registration
of transfer of shares of the Corporation imposed thereby will be noted
conspicuously on the front or back of the certificate or certificates evidencing
the shares to which the restriction relates. Even if not so noted, such a
restriction is enforceable against a person with actual knowledge of the
restriction. The Corporation may, from time to time, lawfully enter into any
agreement to which all, or less than all, of the holders of record of the issued
and outstanding shares of the Corporation shall be parties, restricting the
transfer of any or all shares upon such reasonable terms and conditions as may
be approved by the Board of Directors of the Corporation, and containing such
other provisions and agreements between the Corporation and its shareholders, or
among the shareholders, as may be permitted by the Act.
(g) LIEN ON SHARES. The Corporation shall have a lien on its shares for
--------------
any debt or liability incurred to it by its shareholders on account of
subscription obligations of such shareholders for the payment of newly issued
shares of the Corporation before notice
14
of transfer of or levy on such shares,
which lien may be exercised by cancellation, forfeiture, or public or private
sale, upon reasonable notice, of such shares, which remedies are cumulative to
an action to enforce payment or other remedies provided by law.
4. REGISTERED OFFICE AND AGENT. The street address of the registered
---------------------------
office of the Corporation, and the name of its registered agent at such
address are as follows:
CSC - Lawyers Incorporating Services Incorporated
57 Adams Avenue
Montgomery, Alabama 36104-4045
5. DIRECTORS.
---------
(a) AUTHORITY OF THE BOARD OF DIRECTORS. All corporate powers shall be
-----------------------------------
exercised by or under the authority of, and the business and affairs of the
Corporation managed under the direction of, its Board of Directors, subject to
any limitations set forth in these Articles of Incorporation or in an agreement
authorized under the Act.
(b) NUMBER OF DIRECTORS. The number of directors shall be as set forth in,
-------------------
or as determined in accordance with, the Bylaws. The number of directors may be
increased or decreased from time to time by amendment to the Bylaws or in the
manner provided for therein.
(c) INITIAL BOARD OF DIRECTORS. The names and addresses of the persons who
--------------------------
served as the initial directors are listed in the original Articles of
Incorporation.
(d) LIMITATION ON LIABILITY OF DIRECTORS. A director of the Corporation
------------------------------------
shall have no personal liability to the Corporation or its shareholders for
money damages for any action taken, or any failure to take any action, as a
director, except liability for (i) the amount of any financial benefit received
by a director to which he or she is not entitled; (ii) an intentional infliction
of harm on the Corporation or the shareholders; (iii) a violation of Section 10-
2B-8.33 of the Act as the same now exists or may hereafter be amended; (iv) an
intentional violation of criminal law; or (v) a breach of the director's duty of
loyalty to the Corporation or its shareholders. If the Act, or any successor
statute thereto, is hereafter amended to authorize the further elimination or
limitation of the liability of a director of a corporation, then the liability
of a director of the Corporation, in addition to the limitations on liability
provided herein, shall be limited to the fullest extent permitted by the Act, as
amended, or any successor statute thereto. No amendment to or repeal of this
Section shall apply to or have any effect on the liability or alleged liability
of any director of the Corporation for or with respect to any acts or omissions
of such director occurring prior to such amendment or repeal.
15
6. INDEMNIFICATION.
---------------
(a) In amplification and not in limitation of applicable provisions of the
Act:
(1) Except as provided in subsection (4) of this Section (a), the
Corporation (which term, for purposes of this Article, includes 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) shall indemnify an individual who is or was a director, officer,
employee or agent of the Corporation or an individual who, while a director,
officer, employee or agent of the Corporation, is or was serving at the
Corporation's request as a director, officer, partner, trustee, employee or
agent of another foreign or domestic corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise (an "Indemnitee", which term
includes, unless the context requires otherwise, the estate or personal
representative of such individual) who was, is or has threatened to be made a
named defendant or respondent (a "Party") in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal (a "Proceeding") because he or she
is or was a director, officer, employee or agent of the Corporation or, while a
director, officer, employee or agent of the Corporation, is or was serving at
the Corporation's request as a director, officer, partner, trustee, employee or
agent of another foreign or domestic corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against the obligation to pay
a judgment, settlement, penalty, fine (including an excise tax assessed with
respect to an employee benefit plan), all reasonable expenses, including counsel
fees, incurred with respect to a Proceeding ("Liability") incurred in the
Proceeding if:
(i) the Indemnitee conducted himself or herself in good faith;
and
(ii) the Indemnitee reasonably believed:
(A) in the case of conduct in his or her Official Capacity
(meaning thereby (y) when used with respect to a director, the office of
director in the Corporation; and (z) when used with respect to an
individual other than a director, the office in the Corporation held by an
officer or the employment or agency relationship undertaken by the employee
or agent on behalf of the Corporation; "Official Capacity" does not include
service for any other foreign or domestic corporation or any partnership,
joint venture, trust, employee benefit plan or other enterprise) with the
Corporation, that the conduct was in its best interest; and
(B) in all other cases that the conduct was at least not
opposed to its best interest; and
(iii) in case of any criminal Proceeding the Indemnitee had no
reasonable cause to believe his or her conduct was unlawful.
16
(2) An Indemnitee is considered to be serving an employee benefit
plan at the Corporation's request if his or her duties to the Corporation also
impose duties on, or otherwise involve services by, the Indemnitee to the plan
or to participants in or beneficiaries of the plan. An Indemnitee's conduct with
respect to an employee benefit plan for a purpose he or she reasonably believed
to be in the interests of the participants in, and beneficiaries of, the plan is
conduct that satisfies the requirement of subsection (1)(ii)(B) of this Section
(a).
(3) The termination of a Proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent is
not, of itself, determinative that the Indemnitee did not meet the standard of
conduct described in this Section (a).
(4) The Corporation shall not indemnify an Indemnitee under this
Section:
(i) in connection with a Proceeding by or in the right of the
Corporation in which the Indemnitee was adjudged liable to the Corporation;
or
(ii) in connection with any other Proceeding charging improper
personal benefit to the Indemnitee, whether or not involving action in his
or her Official Capacity, in which the Indemnitee was adjudged liable on
the basis that personal benefit was improperly received by him or her.
(5) Indemnification permitted under this Section in connection
with a Proceeding by or in the right of the Corporation is limited to reasonable
expenses, including counsel fees, incurred in connection with the Proceeding.
(b) The Corporation shall indemnify an Indemnitee who was successful, on
the merits or otherwise, in the defense of any Proceeding, or of any claim,
issue or matter in such Proceeding, where he or she was a Party because he or
she is or was a director, officer, employee or agent of the Corporation or,
while a director, officer, employee or agent of the Corporation, is or was
serving at the Corporation's request as a director, officer, partner, trustee,
employee or agent of another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, against reasonable
expenses, including counsel fees, incurred in connection therewith,
notwithstanding that he or she was not successful on any other claim, issue or
matter in any such Proceeding.
(c) (1) The Corporation may pay for or reimburse the reasonable expenses,
including counsel fees, incurred by an Indemnitee who was a party to a
Proceeding in advance of final disposition of the Proceeding if:
(i) the Indemnitee furnishes the Corporation a written
affirmation of good faith and belief that he or she has met the standard of
conduct described in Section (a)(1) above;
17
(ii) the Indemnitee furnishes the Corporation a written
undertaking, executed personally or on the Indemnitee's behalf, to repay
the advance if it is ultimately determined that the Indemnitee did not meet
the standard of conduct, or is not otherwise entitled to indemnification
under section (a)(4) above unless an indemnification is approved by the
court under the provisions of the Act; and
(iii) a determination is made that the facts then known to those
making the determination would not preclude indemnification under this
Article.
(2) The undertaking required by subsection (1)(ii) above must be an
unlimited general obligation of the Indemnitee but need not be secured and may
be accepted without reference to financial ability to make repayment.
(3) Determinations and authorizations of payment under this Section
shall be made in the manner specified in Section (d) below.
(d) (1) The Corporation may not indemnify an Indemnitee under Section (a)
above unless authorized in the specific case after a determination has been made
that indemnification of the Indemnitee is permissible in the circumstances
because the Indemnitee has met the standard of conduct set forth in Section
(a)(1) above.
(2) The determination shall be made:
(i) by the Board of Directors of the Corporation by a majority
vote of a quorum consisting of directors not at the time Parties to the
Proceeding;
(ii) if a quorum cannot be obtained under subdivision (i) above,
by a majority vote of a committee duly designated by the Board of Directors
(in which designation directors who are Parties may participate) consisting
solely of two or more directors not at the time Parties to the Proceeding;
(iii) by special legal counsel;
(A) selected by the Board of Directors or committee in the
manner prescribed in subdivision (i) or (ii) above; or
(B) if a quorum of the Board of Directors cannot be obtained
under subdivision (i) and a committee cannot be designated under
subdivision (ii), selected by a majority vote of the full Board of
Directors (in which selection directors who are Parties may participate);
or
(iv) by the shareholders, but shares owned or voted under the
control of Indemnitees who are at the time Parties to the Proceeding may
not be voted on the determination. A majority of the shares that are
entitled to vote on the transaction by virtue of not being owned by or
under the control of such
18
Indemnitees constitutes a quorum for the purpose of taking action under this
Section (d).
(3) Authorization of indemnification and evaluation as to
reasonableness of expenses shall be made in the same manner as the determination
that indemnification is permissible, except that if the determination is made by
special legal counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under subsection
(2)(iii) above to select counsel.
(e) The Corporation may purchase and maintain insurance, or furnish similar
protection (including but not limited to trust funds, self-insurance reserves or
the like), on behalf of an individual who is or was a director, officer,
employee or agent of the Corporation, who, while a director, officer, employee
or agent of the Corporation, is or was serving at the request of the Corporation
as a director, officer, partner, trustee, employee or agent of another foreign
or domestic corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise, against Liability asserted against or incurred by him
or her in that capacity or arising from his or her status as a director,
officer, employee or agent, whether or not the Corporation would have the power
to indemnify him or her against the same Liability under Sections (a) or (b)
above.
(f) Any indemnification, or advance for expenses, authorized under this
Article shall not be deemed exclusive of and shall be in addition to that which
may be contained in the Corporation Bylaws, a resolution of its shareholders or
Board of Directors, or in a contract or otherwise.
(g) This Article does not limit the Corporation's power to pay or reimburse
expenses incurred by an Indemnitee in connection with the Indemnitee's
appearance as a witness in a Proceeding at a time when he or she has not been
made or named defendant or respondent to the Proceeding.
7. BYLAWS; AMENDMENT OF ARTICLES.
-----------------------------
(a) BYLAWS. The initial Bylaws of the Corporation shall be adopted by the
------
Board of Directors. The power to alter, amend or repeal the Bylaws or adopt new
Bylaws shall be vested in the Board of Directors, which power may be exercised
in the manner and to the extent provided in the Bylaws; provided, however, that
the Bylaws so altered, amended or repealed by the Board of Directors may be
altered, amended or repealed by the shareholders; and provided further, that the
Board of Directors may not alter, amend or repeal any bylaw or resolution that
was adopted by the shareholders and specifically provides that it cannot be
altered, amended or repealed by the Board of Directors. The Bylaws may contain
any provision for the regulation of the business and affairs of the Corporation
that is not inconsistent with law or these Articles of Incorporation.
(b) AMENDMENT OF ARTICLES. The Corporation reserves the right to amend,
---------------------
alter, change or repeal any provision contained in these Articles of
Incorporation in the manner now or hereafter prescribed or permitted by the Act,
and all rights conferred upon
19
officers, directors and shareholders herein are granted subject to such
reservation. Any such amendment for which voting by voting group is required by
the Act shall be effective only if each voting group approves in addition to
approval of all shareholders entitled to vote.
8. SUBSEQUENTLY ADOPTED CORPORATION LAWS. Any and every statute of the State
-------------------------------------
of Alabama hereinafter enacted whereby the rights, powers and privileges of the
shareholders of corporations organized under the general laws of the State of
Alabama are increased, diminished or in any way affected, or whereby effect is
given to the action taken by any part but less than all of the shareholders of
any such corporation, shall apply to the Corporation and to every shareholder
thereof, to the same extent as if such statute had been in force at the date of
the making and filing of these Articles of Incorporation.
THIRD: The foregoing Amended and Restated Articles of Incorporation were
- -----
unanimously adopted by the shareholders and the directors of the Corporation on
July 7, 1998 pursuant to Ala. Code (S)(S) 10-2B-10.03, 10-2B-10.06 and 10-2B-
10.07 (1994).
FOURTH: The number of shares of Common Stock and Series B Preferred Stock of
- ------
the Corporation outstanding at the time of the adoption of the foregoing Amended
and Restated Articles of Incorporation were 85,897 and 374,391.024,
respectively, and the number of shares entitled to vote thereon was in the
aggregate 460,288.024. The number of shares voting in favor of the Amended and
Restated Articles of Incorporation was 460,288.024 and the number of shares
voting against the Amended and Restated Articles of Incorporation was zero (0).
20
IN WITNESS WHEREOF, the Corporation has caused these Amended and
Restated Articles of Incorporation to be signed by its Assistant Secretary on
July 8, 1998.
/s/ John W.Cash
----------------
John Cash
Assistant Secretary
The foregoing document was prepared by:
Mary J. Yoo, Esq.
Latham & Watkins
633 West Fifth Street, Suite 4000
Los Angeles, California 90071-2007
21