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EXHIBIT 3.1
CERTIFICATE REGARDING
SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION OF
CROWN CRAFTS, INC.
The undersigned Secretary of CROWN CRAFTS, INC., a Georgia corporation
(the "Corporation"), does hereby certify pursuant to Sections 14-2-602(d) and
14-2-1007(d) of the Georgia Business Corporation Code (the "Code") as follows:
I.
The name of the Corporation is Crown Crafts, Inc.
II.
The Restated Articles of Incorporation of the Corporation have been
restated as the text set forth in the Second Amended and Restated Articles of
Incorporation attached as Exhibit A hereto.
III.
Such Second Amended and Restated Articles of Incorporation contain an
amendment and restatement of Article 5 of the Restated Articles of the
Corporation, which was adopted by the Board of Directors pursuant to its
authority under Section 14-2-601 of the Code. Such amendment did not require
shareholder approval.
IN WITNESS WHEREOF, the undersigned does hereby set his/her hand as of
this 23rd day of July, 2001.
By: /s/ Robert A. Enholm
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Its: Secretary
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EXHIBIT A
SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
CROWN CRAFTS, INC.
1 .
The name of the Corporation is Crown Crafts, Inc. (the "Corporation").
2.
The Corporation is organized pursuant to the provisions of the Georgia
Business Corporation Code.
3.
The period of duration of the Corporation is perpetual.
4.
The general nature of the business of the Corporation is the
manufacture and sale of home furnishings products, and the Corporation shall
have the power to engage in any and all other types of business.
5.
(a) Authorized Classes and Series and Numbers of Shares. The
capital stock of the Corporation shall consist of a single class of common
stock, $1.00 par value per share. The maximum number of shares of all series of
capital stock of such class which the Corporation shall have authority to issue
is 50,000,000 shares, consisting of (i) 34,377,748 shares of $1.00 par value
Series A Common Stock (the "Series A Common Stock"), 10,246,329 shares of $1.00
par value Series B Common Stock (the "Series B Common Stock") and 5,375,923
shares of $1.00 par value Series C Common Stock (the "Series C Common Stock")
(the Series C Common Stock together with the Series A Common Stock and the
Series B Common Stock being collectively referred to hereinafter as the "Common
Stock"). The preferences, limitations and relative rights in respect of the
shares of Series A Common Stock, Series B Common Stock and Series C Common Stock
shall be as hereinafter provided in this Article 5.
(b) Certain Definitions. For the purposes of the designations that
follow, the following terms shall have the meanings specified:
"Additional Shares of Series A Common Stock" shall mean all shares of
Series A Common Stock issued or sold (or deemed to be issued pursuant to Article
5(d)(viii) or 5(d)(ix)) by the Corporation after the Original Issue Date of the
Series B Common Stock or the Series C Common Stock, whether or not subsequently
reacquired or retired by the Corporation, other than shares of Series A Common
Stock issued (i) upon the exercise or partial exercise of the Warrants, (ii)
upon the conversion of the Series B Common Stock or the Series C Common
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Stock into shares of Series A Common Stock; or (iii) pursuant to that certain
Stock Plan of the Corporation dated on or about the date of the filing of these
Second Amended and Restated Articles of Incorporation with the Secretary of
State of Georgia.
"Affiliate" with respect to a particular person shall mean a person
that directly or indirectly controls, is controlled by, or is under common
control with such person; control for such purpose meaning the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of a person, whether through the ownership of voting
securities, by contract or otherwise.
"Business Day" shall mean any day on which banks are open for business
in Atlanta, Georgia and New York City (other than a Saturday, Sunday or legal
holiday in the States of New York, New Jersey or Georgia), provided, that any
reference to "days" (unless Business Days are specified) shall mean calendar
days.
"Conversion Price" shall have the meaning given to such term in Article
5(d)(v)(A) hereof.
"Conversion Rate" shall have the meaning given to such term in Article
5(d)(v)(A) hereof.
"Convertible Securities" shall mean any evidences of indebtedness,
shares of capital stock (other than Series A Common Stock) or other securities
that are or may be at any time directly or indirectly convertible into or
exchangeable for Additional Shares of Series A Common Stock.
"Credit Agreement" shall mean that certain Credit Agreement between the
Corporation among the Company, Churchill Weavers, Inc., Hamco, Inc., and Crown
Crafts Infant Products, Inc., as borrowers, and Wachovia Bank, N.A., as a lender
and as agent for the lenders thereunder and dated on or about the date on which
these Second Amended and Restated Articles of Incorporation were filed with the
Secretary of State of Georgia.
"Fair Value" shall mean, with respect to any securities or other
property, the fair value thereof as of a date that is within fifteen (15) days
of the date as of which the determination is to be made (a) determined by
agreement between the Corporation and the Required Holders, or (b) if the
Corporation and the Required Holders fail to agree, determined jointly by an
independent investment banking firm retained by the Corporation and by an
independent investment banking firm retained by the Required Holders, either of
which firms may be an independent investment banking firm regularly retained by
the Corporation, or (c) if the Corporation or the Required Holders shall fail so
to retain an independent investment banking firm within ten (10) Business Days
of the retention of such a firm by the Required Holders or the Corporation, as
the case may be, determined solely by the firm so retained, or (d) if the firms
so retained by the Corporation and by such holders shall be unable to reach a
joint determination within fifteen (15) Business Days of the retention of the
last firm so retained, determined by another independent investment banking firm
which is not a regular investment banking firm of the Corporation chosen by the
first two such firms.
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"Invested Amount" per share of Series B Common Stock or Series C Common
Stock shall mean the price per share at which shares of such series are issued
on the Original Issue Date thereof (as such price is adjusted for changes in the
shares of such series by stock split, stock dividend, or the like occurring
after such Original Issue Date).
"Liquidation" shall mean the liquidation, dissolution or winding up of
the Corporation, or such of the Corporation's subsidiaries the assets of which
constitute all or substantially all the assets of the business of the
Corporation and its subsidiaries taken as a whole.
"Loan Agreement" shall mean that certain Subordinated Note and Warrant
Purchase Agreement among the Corporation and Wachovia Bank, N.A., The Prudential
Insurance Company of America, and Bank of America, N.A. and dated on or about
the date on which these Second Amended and Restated Articles of Incorporation
were filed with the Secretary of State of Georgia.
"Loan Closing Date" shall mean the closing date of the transactions
contemplated by the Credit Agreement and the Loan Agreement.
"Market Price" shall mean with respect to Series A Common Stock, as of
any date specified herein, the amount per share equal to (i) the average sale
price of the last sale price of shares of Series A Common Stock, regular way, or
of shares of such stock (or equivalent equity interests) for the immediately
preceding twenty (20) Business Days or, if no such sale takes place on any such
date, the average of the closing bid and asked prices thereof on such date, in
each case as officially reported on the principal national securities exchange
on which the same are then listed or admitted to trading; or (ii) if no shares
of Series A Common Stock are then listed or admitted to trading on any national
securities exchange, the average sale price of the last sale price of shares of
Series A Common Stock, regular way, for the immediately preceding twenty (20)
Business Days; or, if no such sale takes place on any such date, the average of
the reported closing bid and asked prices thereof on such date, in each case as
quoted in the Nasdaq National Market, as published by the National Quotation
Bureau, Incorporated or any similar successor organization; and, in either case,
as reported by any member firm of the New York Stock Exchange selected by the
Corporation; or (iii) if no shares of Series A Common Stock are then listed or
admitted to trading on any national securities exchange or quoted or published
in the over-the-counter market, the higher of (x) the book value thereof as
determined by any firm of independent certified public accountants of recognized
national standing selected by the Board of Directors of the Corporation, as of
the last day of any month ending within sixty (60) days preceding the date as of
which the determination is to be made or (y) the Fair Value thereof; provided,
that all determinations of the Market Price shall be appropriately adjusted for
any stock dividends, stock splits or other similar transactions during such
period.
"Options" shall mean rights, options or warrants to subscribe for,
purchase or otherwise acquire either Additional Shares of Series A Common Stock
or Convertible Securities.
"Original Issue Date" with respect to each of the Series B Common Stock
and the Series C Common Stock shall mean the date on which shares of such series
are first actually issued by the Corporation pursuant to exercise of any
Warrants.
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"Required Holders" shall mean the holders of at least 66-2/3% of all
the shares of Series B Common Stock and Series C Common Stock at the time
outstanding, determined on the basis of the number of shares of Series A Common
Stock into which such shares could be converted (assuming for this purpose that
all conditions for conversion have been satisfied, whether or not such is
actually the case).
"Sale or Merger" shall mean any of the following:
(i) the merger, reorganization or consolidation of the
Corporation or such subsidiary or subsidiaries of the Corporation the
assets of which constitute all or substantially all the assets of the
business of the Corporation and its subsidiaries taken as a whole into
or with another corporation in which the shareholders of the
Corporation or such subsidiaries immediately preceding such merger,
reorganization or consolidation (solely by virtue of their shares or
other securities of the Corporation or such subsidiaries) shall own
fewer than fifty percent (50%) of the voting securities of the
surviving corporation;
(ii) the sale, transfer or lease (but not including a
transfer or lease by pledge or mortgage to a bona fide lender), whether
in a single transaction or pursuant to a series of related
transactions, of all or substantially all the assets of the
Corporation, whether pursuant to a single transaction or a series of
related transactions or plan (which assets shall include for these
purposes fifty percent [50%] or more of the outstanding voting
interests of such of the Corporation's subsidiaries the assets of which
constitute all or substantially all the assets of the Corporation and
its subsidiaries taken as a whole);
(iii) the sale, transfer or lease (but not including a
transfer or lease by pledge or mortgage to a bona fide lender), whether
in a single transaction or pursuant to a series of related
transactions, of all or substantially all the assets of such of the
Corporation's subsidiaries the assets of which constitute all or
substantially all of the assets of the Corporation and such
subsidiaries taken as a whole; or
(iv) the sale or transfer, whether in a single transaction
or pursuant to a series of related transactions, of securities of the
Corporation such that all holders of securities of the Corporation that
are entitled to vote by virtue of holding such securities with respect
to matters generally that are voted on by shareholders of the
Corporation (and not any matter requiring an additional series or other
special vote) (collectively, the "Corporation's Voting Power")
immediately prior to such transaction or series of related transactions
do not hold after such transaction such securities of the Corporation
that constitute more than a majority of the Corporation's Voting Power.
"Series A Common Stock Equivalents" shall mean securities or rights
convertible into or entitling the holder thereof to purchase or receive shares
of Series A Common Stock.
"Warrants" shall mean those certain Series B Common Stock Purchase
Warrants and that certain Series C Common Stock Purchase Warrant (as the same
may be divided or combined in accordance with their terms) of even date
therewith issued pursuant to the Loan Agreement.
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(c) Series A Common Stock. The following is a statement of the
preferences, limitations and relative rights in respect of the Series A Common
Stock.
(i) Voting Rights. With respect to all such matters upon
which shareholders are entitled to vote or give consent, each holder of
Series A Common Stock shall be entitled to one (1) vote (in person or
by proxy) for each share of Series A Common Stock held by such holder
on the record date for the determination of shareholders entitled to
vote.
(ii) Dividends. Subject to the provisions of applicable
law, the holders of shares of Series A Common Stock shall be entitled
to receive, when and as declared by the Board of Directors, out of the
assets of the Corporation legally available therefor, dividends or
other distributions, whether payable in cash, property or securities of
the Corporation.
(iii) Liquidation. In the event of a Liquidation or other
similar event, whether voluntary or involuntary, after payment or
provision for payment of the debts and other liabilities of the
Corporation, the assets of the Corporation shall be distributed ratably
to the holders of Series A Common Stock in proportion to the number of
shares held by them.
(d) Series B Common Stock and Series C Common Stock. The following
is a statement of the designations and preferences, limitations and relative
rights in respect of each of the Series B Common Stock and the Series C Common
Stock.
(i) Rank. Each of the Series B Common Stock and the
Series C Common Stock shall, with respect to dividend rights and rights
on Liquidation, rank pari passu with the Series A Common Stock on the
basis of the number of shares of Series A Common Stock that each share
of Series B Common Stock or Series C Common Stock could be converted in
accordance with Article 5(d)(v) hereof.
(ii) Voting Rights. Except as otherwise provided in
Article 5(d)(xvii) hereof or as otherwise provided by law, the holders
of Series B Common Stock and of Series C Common Stock shall have no
voting rights.
(iii) Dividends. In the event that any dividends are
declared or paid on the Series A Common Stock (other than dividends
paid in shares of additional Series A Common Stock or Series A Common
Equivalents that are subject to Article 5[d][x]), the holder of each
share of Series B Common Stock and of Series C Common Stock shall be
entitled to receive like dividends on the basis of the number of shares
of Series A Common Stock into which such share of Series B Common Stock
or Series C Common Stock, as the case may be, could be converted in
accordance with Article 5(d)(v) hereof, assuming for such purposes that
all conditions for conversion have been satisfied, whether or not such
is actually the case.
(iv) Liquidation. In the event of a Liquidation or other
similar event, each holder of a share of Series B Common Stock or
Series C Common Stock shall be entitled to receive a share of the
proceeds thereof identical to those received by the holders of the
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Series A Common Stock on the basis of the number of shares of Series A
Common Stock into which a share of Series B Common Stock or Series C
Common Stock could be converted in accordance with Article 5(d)(v)
hereof, assuming for such purpose that all conditions for conversion
have been satisfied, whether or not such is actually the case.
(v) Conversion Price and Rate.
(A) Subject to and in compliance with the
provisions of this Article 5(d)(v), shares of Series B Common
Stock and of Series C Common Stock may, at the option of the
holder, be converted after the occurrence of one of the events
listed below with respect to a particular series into fully
paid and nonassessable shares of Series A Common Stock at the
rate (the "Conversion Rate" of such series) of one share of
Series B Common Stock or Series C Common Stock, as the case
may be, to the number of shares of Series A Common Stock that
equals the quotient obtained by dividing the Invested Amount
of the series in question by the Conversion Price of such
series (defined hereinafter). Thus, the number of shares of
Series A Common Stock to which a holder of Series B Common
Stock or Series C Common Stock shall be entitled upon any
conversion provided for in this Article 5(d)(v) shall be the
product obtained by multiplying the Conversion Rate of such
series by the number of shares of such series being converted.
Such conversion shall be deemed to have been made immediately
prior to the close of business on the date of the surrender of
the shares of the series to be converted in accordance with
the procedures described in this Article 5(d)(v)(B). The
"Conversion Price" of each of the Series B Common Stock and
the Series C Common Stock shall be equal to the Invested
Amount thereof, except as otherwise adjusted as provided
hereunder in Article 5(d)(vi) through (xiv). The initial
Conversion Rate of each of the Series B Common Stock and the
Series C Common Stock shall be one share of such series for
1.43036586 shares of Series A Common Stock.
(1) Each share of Series B Common Stock
may be converted at any time at the option of the
holder thereof into shares of Series A Common Stock
following the transfer of such share of Series B
Common Stock by the person to which the Corporation
originally issued such share (the "Original Series B
Holder") to a person not an Affiliate of the Original
Series B Holder.
(2) The shares of Series C Common Stock
may be converted at any time at the option of the
holders thereof into shares of Series A Common Stock
following the earliest to occur of the following
events:
(a) with respect to a
particular share of Series C Common Stock,
the transfer of such share of Series C
Common Stock by the person to which the
Corporation originally issued such share
(the "Original Series C Holder") to a person
not an Affiliate of the Original Series C
Holder;
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(b) with respect to all shares
of Series C Common Stock then outstanding,
the closing of a Sale or Merger of the
Corporation;
(c) with respect to all shares
of Series C Common Stock then outstanding,
the transfer (whether in one or a series of
transactions over time) after the Loan
Closing Date by the individuals constituting
the Corporation's Management Group (defined
for this purpose to mean the President,
Chief Executive Officer, Chief Operating
Officer, Chief Financial Officer and each
Vice President) of greater than fifty
percent (50%) of the Series A Common Stock
represented on an as-converted or
as-exercised basis by the shares of Series A
Common Stock and Series A Common Stock
Equivalents held in the aggregate by the
Management Group as of the Loan Closing
Date; provided, however, that such transfer
shall not include any pledge of shares of
Series A Common Stock made pursuant to a
bona fide loan transaction that creates a
mere security interest or any transfer to a
trust for the benefit of a member of
Management Group or for the benefit of an
ancestor, descendant or spouse of such
member, provided also that such member
retains control over voting such shares;
(d) with respect to all shares
of Series C Common Stock then outstanding,
the transfer after the Loan Closing Date by
those persons who constitute, as of the Loan
Closing Date, the three largest shareholders
of the Corporation, in one or a series of
transactions over time, of greater than
seventy-five percent (75%) of the Series A
Common Stock represented on an as-converted
or as-exercised basis by the shares of
Series A Common Stock and Series A Common
Stock Equivalents outstanding on the Loan
Closing Date;
(e) with respect to all shares
of Series C Common Stock then outstanding,
the occurrence of an Event of Default (as
defined in the Loan Agreement or the Credit
Agreement) by the Corporation following the
Loan Closing Date consisting of the
nonpayment of principal, interest or any
other amount due and owing to The Prudential
Insurance Company of America or its
successors or assigns under either the
Credit Agreement or the Loan Agreement;
(f) with respect to all shares
of Series C Common Stock then outstanding,
the failure by the Corporation to pay an
aggregate of $250,000 in indebtedness,
whether principal or interest, in addition
to that described in clause (e) above;
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(g) with respect to all shares
of Series C Common Stock then outstanding,
the resignation, removal or death at one
time or over time of one third (1/3) of the
members of the Board of Directors and the
election of substitutes therefor at any time
following the Loan Closing Date; and
(h) the breach following the
Loan Closing Date of any of the financial
covenants made by the Corporation in the
Loan Agreement or the Credit Agreement.
In the event that any of the events described in this Article (5)(d)(A)(2) shall
occur prior to the Original Issue Date of the Series C Common Stock, all the
holders of shares of Series C Common Stock shall be entitled to exercise the
conversion rights provided in this Article 5(d)(v) at any time following
issuance of such shares.
(B) Mechanics of Conversion. Notwithstanding
Article 5(d)(v)(A), the Corporation shall not be obligated to
issue certificates evidencing the shares of Series A Common
Stock issuable upon conversion unless the certificates
evidencing the shares of Series B Common Stock or Series C
Common Stock being converted are either delivered to the
Corporation or its transfer agent as provided below, or any
holder of any such certificates notifies the Corporation or
its transfer agent that such certificates have been lost,
stolen or destroyed and executes an agreement satisfactory to
the Corporation to indemnify the Corporation from any loss
incurred by it in connection with such certificates. Upon the
occurrence of such conversion, the holders of Series B Common
Stock or Series C Common Stock subject thereto shall surrender
the certificates representing such shares at the office of the
Corporation or any transfer agent for the same, and shall give
written notice to the Corporation at such office of the name
or names in which such holder wishes the certificate or
certificates for shares of Series A Common Stock to be issued,
if different from the name shown on the books and records of
the Corporation. The Corporation shall, as soon as practicable
thereafter and in no event later than twenty (20) days after
the surrender of the certificates of the shares of the series
sought to be converted, issue and deliver at such office to
the holder of such shares, or to the nominee or nominees of
such holder as provided in such notice, a certificate or
certificates for the number of shares of Series A Common Stock
into which the shares of Series B Common Stock or Series C
Common Stock (as the case may be) were convertible on the date
on which such conversion was effective to which such holder
shall be entitled as provided in such sections. The delivery
of the new certificates may be conditioned on the person or
persons to which the holder has requested delivery making such
written representations as may reasonably be required by the
Corporation to the effect that the shares to be received upon
conversion are not being acquired and will not be transferred
in any way that might violate the then applicable securities
laws. The person or persons entitled to receive the shares of
Series A Common Stock issuable upon a conversion pursuant to
Article 5(d)(v)(A) shall be treated for all purposes as the
record holder
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or holders of such shares of Series A Common Stock as of the
effective date of conversion specified in such subsection.
(vi) Adjustment for Additional Shares of Series A Common
Stock. In case the Corporation, at any time or from time to time after
the Original Issue Date of the Series B Common Stock and of the Series
C Common Stock, respectively, shall issue or sell Additional Shares of
Series A Common Stock, including Additional Shares of Common Stock
deemed to be issued pursuant to Article 5(d)(viii) and 5(d)(ix),
without consideration or for a consideration per share (determined
pursuant to Article 5[d][ix]), less than the Market Price of such
series in effect on the date of and immediately prior to such issue or
sale, then, and in each such case, subject to Article 5(d)(xiv), the
Conversion Price of such series shall be reduced, concurrently with
such issue or sale, to a price determined by multiplying the Conversion
Price of such series then in effect by a fraction,
(A) the numerator of which shall be equal to (i)
the number of shares of Series A Common Stock outstanding
immediately prior to such issue or sale plus (ii) the number
of shares of Series A Common Stock which the aggregate
consideration received by the Corporation for the total number
of such Additional Shares of Series A Common Stock so issued
or sold would purchase at the greater of the Market Price then
in effect or the Conversion Price of the Series B Common Stock
or the Series C Common Stock then in effect; and
(B) the denominator of which shall be equal to
the number of shares of Series A Common Stock outstanding
immediately after such issue or sale of Additional Shares of
Series A Common Stock,
provided that, for the purposes of this Article 5(d)(vi), (x) immediately after
any Additional Shares of Series A Common Stock are deemed to have been issued
pursuant to Article 5(d)(viii) or 5(d)(ix), such Additional Shares of Series A
Common Stock shall be deemed to be outstanding, and (y) treasury shares shall
not be deemed to be outstanding. Any adjustment to the Conversion Price of the
Series B Common Stock or the Series C Common Stock shall cause simultaneously a
corresponding adjustment to the Conversion Rate of such series.
(vii) Extraordinary Dividends and Distributions. In case
the Corporation at any time or from time to time after the Original
Issue Date of the Series B Common Stock or the Series C Common Stock,
as the case may be, shall declare, order, pay or make a dividend or
other distribution (including, without limitation, any distribution of
other or additional stock or other securities or property or Options by
way of dividend or spin-off, reclassification, recapitalization or
similar corporate rearrangement and any redemption or acquisition of
any such stock or Options on the Series A Common Stock) other than a
dividend described in Article 5(d)(iii) or Article 5(d)(x) or payable
in Additional Shares of Series A Common Stock or in Options for Common
Stock, then and in each such event provision shall be made so that the
holders of Series B Common Stock or Series C Common Stock shall receive
upon conversion thereof, in addition to the number of shares of Series
A Common Stock receivable thereupon, the amount of securities and other
property of the Corporation which they would have received had
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their shares of Series B Common Stock or Series C Common Stock been
converted into Series A Common Stock on the date of such event and had
they thereafter, during the period from the date of such event to and
including the date of conversion, retained such securities and other
property receivable by them as aforesaid during such period, subject to
all other adjustments called for during such period under Article
5(d)(vi) through (xiv) with respect to the rights of the holders of the
Series B Common Stock and the Series C Common Stock.
(viii) Treatment of Options and Convertible Securities. In
case the Corporation, at any time or from time to time after the
Original Issue Date of the Series B Common Stock or the Series C Common
Stock, as the case may be, shall issue, sell, grant or assume, or shall
fix a record date for the determination of holders of any series of
securities entitled to receive, any Options or Convertible Securities,
whether or not such Options or the right to convert or exchange any
such Convertible Securities are immediately exercisable, then, and in
each such case, the maximum number of Additional Shares of Series A
Common Stock (as set forth in the instrument relating thereto, without
regard to any provisions contained therein for a subsequent adjustment
of such number) issuable upon the exercise of such Options or, in the
case of Convertible Securities, issuable upon the conversion or
exchange of such Convertible Securities (or the exercise of such
Options for Convertible Securities and subsequent conversion or
exchange of the Convertible Securities issued), shall be deemed to be
Additional Shares of Series A Common Stock issued as of the time of
such issue, sale, grant or assumption or, in case such a record date
shall have been fixed, as of the close of business on such record date;
provided that such Additional Shares of Series A Common Stock shall not
be deemed to have been issued unless the consideration per share
(determined pursuant to Article 5(d)[ix]) of such shares would be less
than the Market Price of the Series B Common Stock or the Series C
Common Stock, as the case may be, in effect, in each case, on the date
of and immediately prior to such issue, sale, grant or assumption or
immediately prior to the close of business on such record date or, if
the Series A Common Stock trades on an ex-dividend basis, on the date
prior to the commencement of ex-dividend trading, as the case may be;
provided, further, that in any such case in which Additional Shares of
Common Stock are deemed to be issued,
(A) if an adjustment of the Conversion Price (or
the corresponding Conversion Rate) of either the Series B
Common Stock or the Series C Common Stock shall be made upon
the fixing of a record date as referred to in the first
sentence of this Article 5(d)(viii), no further adjustment of
such Conversion Price (or the corresponding Conversion Rate)
shall be made as a result of the subsequent issue or sale of
any Options or Convertible Securities for the purpose of which
such record date was set;
(B) no further adjustment of such Conversion
Price (or the corresponding Conversion Rate) shall be made
upon the subsequent issue or sale of Additional Shares of
Common Stock or Convertible Securities upon the exercise of
such Options or the conversion or exchange of such Convertible
Securities;
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(C) if such Options or Convertible Securities by their
terms provide, with the passage of time or otherwise, for any change in
the consideration payable to the Corporation, or change in the number
of Additional Shares of Series A Common Stock issuable, upon the
exercise, conversion or exchange thereof (by change of rate or
otherwise), such Conversion Price (and corresponding Conversion Rate)
computed upon the original issue, sale, grant or assumption thereof (or
upon the occurrence of the record date with respect thereto), and any
subsequent adjustments based thereon, shall, upon any such change
becoming effective, be recomputed to reflect such change insofar as it
affects such Options, or the rights of conversion or exchange under
such Convertible Securities, which are outstanding at such time;
(D) upon the expiration of any such Options or of the
rights of conversion or exchange under any such Convertible Securities
that shall not have been exercised (or upon purchase by the Corporation
and cancellation or retirement of any such Options that shall not have
been exercised or of any such Convertible Securities the rights of
conversion or exchange under which shall not have been exercised), such
Conversion Price (and corresponding Conversion Rate) computed upon the
original issue, sale, grant or assumption thereof (or upon the
occurrence of the record date with respect thereto), and any subsequent
adjustments based thereon, shall, upon such expiration (or such
cancellation or retirement, as the case may be), be recomputed as if:
(1) in the case of Options for Series A Common
Stock or in the case of Convertible Securities, the only
Additional Shares of Series A Common Stock issued or sold (or
deemed issued or sold) were the Additional Shares of Series A
Common Stock, if any, actually issued or sold upon the
exercise of such Options or the conversion or exchange of such
Convertible Securities and the consideration received therefor
was (a) an amount equal to (i) the consideration actually
received by the Corporation for the issue, sale, grant or
assumption of all such Options, whether or not exercised, plus
(ii) the consideration actually received by the Corporation
upon such exercise, minus (iii) the consideration paid by the
Corporation for any purchase of such Options which were not
exercised, or (b) an amount equal to (i) the consideration
actually received by the Corporation for the issue, sale,
grant or assumption of all such Convertible Securities which
were actually converted or exchanged, plus (ii) the additional
consideration, if any, actually received by the Corporation
upon such conversion or exchange, minus (iii) the excess, if
any, of the consideration paid by the Corporation for any
purchase of such Convertible Securities, the rights of
conversion or exchange under which were not exercised, over an
amount that would be equal to the Fair Value of the
Convertible Securities so purchased if such Convertible
Securities were not convertible into or exchangeable for
Additional Shares of Series A Common Stock; and
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(2) in the case of Options for Convertible
Securities, only the Convertible Securities, if any, actually
issued or sold upon the exercise of such Options were issued
at the time of the issue, sale, grant or assumption of such
Options, and the consideration received by the Corporation for
the Additional Shares of Series A Common Stock deemed to have
then been issued was an amount equal to (a) the consideration
actually received by the Corporation for the issue, sale,
grant or assumption of all such Options, whether or not
exercised, plus (b) the consideration deemed to have been
received by the Corporation (pursuant to Article 5[d][ix])
upon the issue or sale of the Convertible Securities with
respect to which such Options were actually exercised, minus
(c) the consideration paid by the Corporation for any purchase
of such Options which were not exercised;
(E) no recomputation pursuant to subsection (C) or (D)
above shall have the effect of increasing such Conversion Price then in
effect by an amount in excess of the amount of the adjustment thereof
originally made in respect of the issue, sale, grant or assumption of
such Options or Convertible Securities; and
(F) no Additional Shares of Series A Common Stock shall
be deemed to have been issued merely by virtue of an adjustment to the
Conversion Price (and corresponding Conversion Rate) in accordance with
this Article 5(d)(vi) through (viii).
(ix) Computation of Consideration. For the purposes of Article
5(d)(vi) through (viii):
(A) The consideration for the issue or sale of any
Additional Shares of Series A Common Stock or for the issue, sale,
grant or assumption of any Options or Convertible Securities,
irrespective of the accounting treatment of such consideration,
(1) insofar as it consists of cash, shall be
computed as the amount of cash received by the Corporation,
and insofar as it consists of securities or other property,
shall be computed as of the date immediately preceding such
issue, sale, grant or assumption as the Fair Value of such
consideration (or, if such consideration is received for the
issue or sale of Additional Shares of Series A Common Stock
and the Market Price of such securities is less than the Fair
Value of such consideration, then such consideration shall be
valued at the Market Price of such Additional Shares of Series
A Common Stock), in each case without deducting any expenses
paid or incurred by the Corporation, any commissions or
compensation paid or concessions or discounts allowed to
underwriters, dealers or others performing similar services or
any accrued interest or dividends in connection with such
issue or sale, and
(2) in case Additional Shares of Series A Common
Stock are issued or sold or Options or Convertible Securities
are issued, sold,
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granted or assumed together with other stock or securities or
other assets of the Corporation for a consideration that
covers both, shall be the proportion of such consideration so
received, computed as provided in clause (i) above, allocable
to such Additional Shares of Series A Common Stock or Options
or Convertible Securities, as the case may be, all as
determined in good faith by the Board of Directors or the
Corporation.
(B) All Additional Shares of Series A Common Stock,
Options or Convertible Securities issued in payment of any dividend or
other distribution on any class or series of stock of the Corporation
and all Additional Shares of Series A Common Stock issued to effect a
subdivision of the outstanding shares of Series A Common Stock into a
greater number of shares of Series A Common Stock (by reclassification
or otherwise than by payment of a dividend in Series A Common Stock)
shall be deemed to have been issued without consideration.
(C) Additional Shares of Series A Common Stock deemed to
have been issued for consideration pursuant to Article 5(d)(viii),
relating to Options and Convertible Securities, shall be deemed to have
been issued for a consideration per share determined by dividing
(1) the total amount, if any, received and
receivable by the Corporation as consideration for the issue,
sale, grant or assumption of the Options or Convertible
Securities in question, plus the minimum aggregate amount of
additional consideration (as set forth in the instruments
relating thereto, without regard to any provision contained
therein for a subsequent adjustment of such consideration)
payable to the Corporation upon the exercise in full of such
Options or the conversion or exchange of such Convertible
Securities or, in the case of Options for Convertible
Securities, the exercise of such Options for Convertible
Securities and the conversion or exchange of such Convertible
Securities, in each case computing such consideration as
provided in the foregoing subsection (A);
by
(2) the maximum number of shares of Series A
Common Stock (as set forth in the instruments relating
thereto, without regard to any provision contained therein for
a subsequent adjustment of such number) issuable upon the
exercise of such Options or the conversion or exchange of such
Convertible Securities.
(x) Treatment of Stock Dividends, Stock Splits and the Like. In
case the Corporation, at any time or from time to time after the Original Issue
Date of the Series B Common Stock or the Series C Common Stock, as the case may
be, shall declare or pay any dividend or other distribution on any class or
series of securities of the Corporation payable in shares of Series A Common
Stock, or shall effect a subdivision of the outstanding shares of Series A
Common Stock into a greater number of shares of Series A Common Stock (by
reclassification or otherwise than by payment of a dividend in
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Series A Common Stock), then, and in each such case, Additional Shares of Series
A Common Stock shall be deemed to have been issued (A) in the case of any such
dividend or other distribution, immediately after the close of business on the
record date for the determination of holders of any class or series of
securities entitled to receive such dividend or other distribution (or if no
such record is taken, then immediately prior to such payment or other
distribution), or (B) in the case of any such subdivision, at the close of
business on the day immediately prior to the day upon which such corporate
action becomes effective.
(xi) Adjustments for Combinations and the Like. In case at any time
or from time to time after the Original Issue Date of the Series B Common Stock
or the Series C Common Stock, the outstanding shares of Series A Common Stock
shall be combined or consolidated, by reclassification or otherwise, into a
lesser number of shares of Series A Common Stock, the Conversion Price of the
Series B Common Stock or the Series C Common Stock, as applicable, in effect
immediately prior to such combination or consolidation shall, concurrently with
the effectiveness of such combination or consolidation, be proportionately
increased.
(xii) Adjustments for Reclassification, Exchange and Substitution.
If the Series A Common Stock issuable upon conversion of the Series B Common
Stock or the Series C Common Stock shall be changed into the same or a different
number of shares of any other class or series of stock, whether by capital
reorganization, reclassification or otherwise (other than a subdivision or
combination of shares provided for above), the Conversion Price (and the
corresponding Conversion Rate) then in effect with respect to the Series B
Common Stock or the Series C Common Stock, as the case may be, shall,
concurrently with the effectiveness of such reorganization or reclassification,
be proportionately adjusted such that the Series B Common Stock and the Series C
Common Stock shall be convertible into, in lieu of the number of shares of
Series A Common Stock that the holders would otherwise have been entitled to
receive, that number of shares of such other class or series of stock equal to
the number of shares of Series A Common Stock issuable upon conversion of the
Series B Common Stock or the Series C Common Stock (adjusted for any
combinations, consolidations, stock splits, or stock distributions or dividends
with respect to such shares) immediately prior to such capital reorganization or
reclassification as would have been subject to receipt by the holders upon
conversion of such series immediately before that change.
(xiii) Reorganizations, Mergers, Consolidations and Sales of Assets.
If at any time or from time to time, there is a capital reorganization of the
Series A Common Stock (other than a recapitalization, subdivision, combination,
reclassification, exchange or substitution of shares provided for elsewhere in
this Article 5[d]), then, as a part of such capital reorganization, provision
shall be made so that the holders of each of the Series B Common Stock and the
Series C Common Stock shall thereafter be entitled to receive upon conversion of
shares of such series the number of shares of stock or other securities or
property of the Corporation to which a holder of the number of shares of Series
A Common Stock deliverable upon conversion of the applicable series would have
been entitled on such capital reorganization, subject to adjustment in respect
of such stock or securities by the terms thereof. In any such case, appropriate
adjustment shall be made in
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applying the provisions of this Article 5(d) with respect to the rights of the
holders of the Series B Common Stock and the Series C Common Stock after the
capital reorganization to the end that the provisions of Article 5(d)(vi)
through (xii) (including adjustment of the Conversion Price of such series then
in effect and the number of shares issuable upon conversion of the Series B
Common Stock and the Series C Common Stock, respectively) shall be applicable
after that event and be as nearly equivalent as practicable.
(xiv) Minimum Adjustment of Exercise Price. If the amount of any
adjustment of the Conversion Price of the Series B Common Stock or the Series C
Common Stock required hereunder would be less than 1% of such Conversion Price
in effect at the time such adjustment is otherwise so required to be made, such
amount shall be carried forward and adjustment with respect thereto made at the
time of and together with any subsequent adjustment which, together with such
amount and any other amount or amounts so carried forward, shall equal in the
aggregate at least 1% of such Conversion Price.
(xv) Notice of Adjustment. Upon the occurrence of any event
requiring an adjustment of the Conversion Price of the Series B Common Stock or
the Series C Common Stock, then and in each such case the Corporation shall
promptly deliver to each holder of such shares of such stock an officer's
certificate stating the applicable Conversion Price resulting from such
adjustment and the increase or decrease, if any, in the number of shares of
Series A Common Stock issuable upon conversion thereof, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Within ninety (90) days after the end of each fiscal year
in which any such adjustment shall have occurred, or within thirty (30) days
after any request therefor by any holder of Series B Common Stock or Series C
Common Stock stating that such holder contemplates the conversion of such stock,
the Corporation will obtain and deliver to such holder the opinion of its
regular independent auditors or another firm of independent public accountants
of recognized national standing selected by the Board of Directors, which
opinion shall confirm the statements in the most recent officer's certificate
delivered under this Article 5(d)(xv). It is understood and agreed that the
independent public accountants rendering any such opinion shall be entitled
expressly to assume in such opinion the accuracy of any determination of fair
value made by the Board of Directors pursuant to Article 5(d)(ix).
(xvi) Other Notices. In case at any time:
(A) the Corporation shall declare to the holders of
Series A Common Stock any dividend in cash, whether or not a regular
cash dividend;
(B) the Corporation shall declare or pay any dividend
upon Series A Common Stock payable in stock or make any special
dividend or other distribution (other than cash dividends) to the
holders of Series A Common Stock;
(C) the Corporation shall offer for subscription pro rata
to the holders of Series A Common Stock any additional shares of stock
of any class or series or other rights;
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(D) there shall be any capital reorganization or
reclassification of the capital stock of the Corporation or Sale or
Merger;
(E) there shall be a voluntary or involuntary Liquidation
or any partial liquidation of the Corporation or distribution to
holders of Series A Common Stock;
(F) there shall be made any tender offer for any shares
of capital stock of the Corporation; or
(G) the Series A Common Stock shall cease to be or shall
be suspended from being a publicly traded security, (i) listed on the
New York Stock Exchange or the American Stock Exchange, (ii) quoted by
the Nasdaq Market or any successor thereto or comparable system, or
(iii) quoted or published in the over-the-counter market;
then, in any one or more of such cases, the Corporation shall give to
each holder of shares of Series B Common Stock or Series C Common Stock (1) at
least fifteen (15) days prior to any event referred to in subsection (A) or (B)
above, at least thirty (30) days prior to any event referred to in subsection
(C), (D) or (E) above, and within five (5) days after it has knowledge that any
of the events specified in subsections (F) and (G) is imminent, written notice
of the date on which the books of the Corporation shall close or a record shall
be taken for such dividend, distribution or subscription rights or for
determining rights to vote in respect of any such reorganization,
reclassification, consolidation, Sale or Merger, Liquidation, or partial
liquidation or the date by which shareholders must tender shares in any tender
offer and (2) in the case of any such reorganization, reclassification,
consolidation, Sale or Merger, Liquidation, partial liquidation or tender offer
known to the Corporation, at least thirty (30) days' prior written notice of the
date (or, if not then known, a reasonable approximation thereof by the
Corporation) when the same shall take place. Such notice in accordance with the
foregoing clause (1) shall also specify, in the case of any such dividend,
distribution or subscription rights, the date on which the holders of Series A
Common Stock shall be entitled thereto, and such notice in accordance with the
foregoing clause (2) shall also specify the date on which the holders of Series
A Common Stock shall be entitled to exchange their Series A Common Stock for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, Sale or Merger, Liquidation, partial
liquidation or tender offer, as the case may be. Such notice shall also state
that the action in question or the record date is subject to the effectiveness
of a registration statement under the Securities Act of 1933, as amended, or to
a favorable vote of security holders, if either is required.
(xvii) Prohibition of Certain Actions. In addition to any
other rights provided by law, at any time when shares of Series B
Common Stock or Series C Common Stock are outstanding, except where the
vote or written consent of the holders of a greater number of shares of
the Corporation is required by law, and in addition to any other vote
required by law, without the consent of the holders of at least
two-thirds (66 2/3%) of the then outstanding shares of Series B Common
Stock and Series C Common Stock, given in writing or by a vote in a
meeting, consenting or voting (as the case may be) separately as a
single group, the Corporation will not, by amendment of the Articles of
Incorporation
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or by-laws or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed by the
Corporation under this Article 5(d), but will at all times in good
faith assist in the carrying out of all the provisions of this Article
5(d) and in the taking of all such action as may reasonably be
requested by any holder of shares of Series B Common Stock or Series C
Common Stock in order to protect the privileges of each holder against
dilution or other impairment, consistent with the tenor and purpose of
this Article 5(d). Without limiting the generality of the foregoing,
the Corporation (A) will not increase the par value of any shares of
Series A Common Stock receivable upon the conversion of shares of
Series B Common Stock or Series C Common Stock above the applicable
Conversion Price then in effect, (B) will take all such action as may
be necessary or appropriate in order that the Corporation may validly
and legally issue fully paid and nonassessable shares of Series A
Common Stock, free and clear of any liens, charges or encumbrances upon
the conversion of shares of Series B Common Stock or Series C Common
Stock from time to time outstanding, (C) will not take any action which
results in any adjustment of the applicable Conversion Price if the
total number of shares of Series A Common Stock issuable after the
action upon the conversion of all outstanding shares of Series B Common
Stock and Series C Common Stock would exceed the total number of shares
of Series A Common Stock then authorized by these Articles of
Incorporation and available for the purpose of issue upon such
conversion, (D) will not issue any capital stock of any class or series
which has the right to more than one vote per share or any capital
stock of any class or series which is preferred as to dividends or as
to the distribution of assets upon voluntary or involuntary
dissolution, liquidation or winding-up, unless the rights of the
holders thereof shall be limited to a fixed sum or percentage (or
floating rate related to market yields) of par value or stated value in
respect of participation in dividends and a fixed sum or percentage of
par value or stated value in any such distribution of assets, and (E)
will not otherwise amend, alter or change the designations or the
powers, preferences, rights, privileges or restrictions of the Series B
Common Stock or the Series C Common Stock materially or adversely.
(xviii) Stock to be Reserved. The Corporation will at all
times reserve and keep available out of its authorized but unissued
Series A Common Stock, solely for the purpose of issue upon the
conversion of all outstanding shares of Series B Common Stock and
Series C Common Stock, such number of shares of Series A Common Stock
as shall then be issuable upon the conversion of all outstanding shares
of Series B Common Stock and Series C Common Stock, and the Corporation
will maintain at all times all other rights and privileges sufficient
to enable it to fulfill all its obligations hereunder. The Corporation
covenants that all shares of Series A Common Stock that shall be so
issuable shall, upon issuance, be duly authorized, validly issued,
fully paid and nonassessable, free from preemptive or similar rights on
the part of the holders of any shares of capital stock or securities of
the Corporation or any other person, and free from all taxes, liens,
charges and encumbrances with respect to the issue thereof. The
Corporation will take all such action as may be necessary to assure
that such shares of Series A Common Stock may be so issued without
violation of any applicable law or regulation, or of any applicable
requirements of the National Association of Securities
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Dealers, Inc. and of any domestic securities exchange upon which the
Series A Common Stock may be listed.
(xix) Effect on Outstanding Common Stock. The redesignation
of the Corporation's outstanding shares of Common Stock as "Series A
Common Stock" effected by the adoption and filing of this Second
Amended and Restated Articles of Incorporation shall be automatic and
shall not require the surrender by any shareholder of any certificates
representing the same that bear the former designation.
6.
No holder of any of the shares of stock of the Corporation, whether now
or hereafter authorized or issued, shall have any pre-emptive rights or
preference rights, or be entitled, as of right, to purchase or subscribe for (a)
any unissued stock of any class, or (b) any additional stock of any class to be
issued by reason of any increase in the authorized capital stock of the
Corporation of any class, or (c) any warrants, options or rights to purchase or
subscribe for shares of stock of the Corporation of any class, or to purchase or
subscribe for any convertible or exchangeable obligations, whether now or
hereafter authorized or whether unissued or issued and thereafter acquired by
the Corporation. Any such stock or other securities herein enumerated may be
issued and disposed of pursuant to resolutions of the Board of Directors at such
prices and upon such terms as may be deemed advisable to the Board of Directors
in the exercise of its discretion.
7.
(a) 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 14-2-154 of the Georgia Business Corporation Code; or (iv) for
any transaction from which the director derived an improper personal benefit.
The provisions of this article shall not apply with respect to acts or omissions
occurring prior to the effective date of this article.
(b) 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 a director of the
Corporation with respect to any act or omission occurring prior to the effective
date of such repeal or modification.
(c) If the Georgia Business Corporation Code hereafter 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 liability provided herein, shall be limited to the fullest
extent permitted by the amended Georgia Business Corporation Code. Specifically,
and not in limitation of the foregoing sentence, in the event that the Georgia
Business Corporation Code is amended to permit the elimination of the reference
to a lack of "good faith" in clause (ii) of paragraph (a) of Article Seven
above, then, effective immediately upon the effective date, if any, of such
amendment, clause (ii) of paragraph (a) of this Article 7 shall be deemed to
read
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exactly as the corresponding provision of the Georgia Business Corporation Code,
as so amended.
(d) In the event that any of the provisions of this article
(including any provision within a single sentence) are held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable, the
remaining provisions are severable and shall remain enforceable to the fullest
extent permitted by law.
8.
(a) Any director, or the entire Board of Directors, may be removed
from office at any time, with or without cause, but only by the affirmative vote
of the holders of at least seventy-five percent of the outstanding shares of
capital stock of the Corporation entitled to vote in the election of directors
at a meeting called for that purpose.
(b) Vacancies on the Board of Directors shall be filled as
follows:
(i) any vacancy resulting from removal of a director from
office by the shareholders shall be filled by the affirmative vote of
the holders of a majority of the outstanding shares of capital stock of
the Corporation entitled to vote thereon; and
(ii) any vacancy resulting from any other event may be
filled by a vote of the majority of the directors then in office,
though less than a quorum, or by the sole remaining director or, if
there are no directors in office, by the affirmative vote of the
holders of a majority of the outstanding shares of capital stock of the
Corporation entitled to vote thereon.
(c) Notwithstanding any other provision of these articles or the
by-laws of the Corporation (and in addition to any other vote that may be
specified by law, these articles or the by-laws), the provisions of this article
may not be repealed or amended in any respect, nor may any provision of these
articles or the by-laws be adopted inconsistent with this article, unless such
action is approved by the affirmative vote of the holders of not less than
seventy-five percent of the outstanding shares of capital stock of the
Corporation entitled to vote in the election of directors.
9.
Subject to the provisions of Articles 8 and 10 hereof, the Corporation
shall have the power to amend its articles of incorporation upon the affirmative
vote of the holders of two-thirds of the Corporation's outstanding Common Stock;
and all rights conferred upon stockholders, directors and officers herein are
granted subject to this reservation.
10.
(a) Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute, may be called by the Board of
Directors or the Chairman of the Board, and shall be called by the Chairman of
the Board or the Secretary at the request in writing
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of the holders of not less than seventy-five percent of the outstanding shares
of capital stock of the Corporation entitled to vote in the election of
directors.
(b) Nominations by shareholders of persons for election by the
shareholders to the Board of Directors of the Corporation may be made at a
meeting of shareholders at which directors are to be elected only (i) by or at
the direction of the Board of Directors or (ii) by any shareholder of the
Corporation entitled to vote in the election of directors at the meeting who
gives written notice of such nomination to the Secretary of the Corporation in
accordance with this paragraph (b). Such notice shall be delivered or mailed to
and received at the principal executive offices of the Corporation not more than
90 days nor less than 60 days prior to the date of an annual meeting; and, in
the case of a special meeting, not later than the close of business on the 15th
day following the day on which notice of the date of the special meeting was
mailed to the shareholders. Such notice shall set forth (i) as to each person
whom the shareholder giving notice proposes to nominate for election or
reelection as a director, all information relating to such person that is
required to be disclosed in solicitations or proxies for election of directors,
or is otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended, and shall include each such
person's written consent to serve as a director if elected; and (ii) as to the
shareholder giving the notice (x) the name and address of such shareholder as
they appear on the Corporation's books, and (y) the series and number of shares
of the Corporation's capital stock that are beneficially owned by such
shareholder. At the request of the Board of Directors, any person nominated by
the Board of Directors for election as a director shall furnish to the Secretary
of the Corporation that information required to be set forth in a shareholder's
notice of nomination which pertains to the nominee. No person shall be eligible
for election by the shareholders as a director of the Corporation unless
nominated in accordance with the provisions of this paragraph (b). The officer
of the Corporation or other person presiding at the meeting shall, if the facts
so warrant, determine and declare to the meeting that a nomination was not made
in accordance with such provisions and, if he shall so determine and declare,
the nomination shall be disregarded.
(c) At any meeting of the shareholders, only such business shall
be conducted as shall have been brought before the meeting (i) by or at the
direction of the Board of Directors or (ii) by any shareholder of the
Corporation who is entitled to vote with respect thereto and who gives written
notice of such business to the Secretary of the Corporation in accordance with
this paragraph (c). Such notice must be delivered or mailed to and received at
the principal executive offices of the Corporation not more than 90 days nor
less than 60 days prior to the date of an annual meeting and, in the case of a
special meeting, not later than the close of business on the 15th day following
the day on which notice of the date of the special meeting was mailed to the
shareholders. Such notice shall set forth as to each matter such shareholder
proposes to bring before the meeting (i) a brief description of the business
desired to be brought before the meeting and the reasons for conducting such
business at the meeting, (ii) the name and address, as they appear on the
Corporation's books, of the shareholder proposing such business, (iii) the
series and number of shares of the Corporation's capital stock that are
beneficially owned by such shareholder, and (iv) any material interest of such
shareholder in such business. Notwithstanding anything in the Corporation's
by-laws to the contrary, no business shall be brought before or conducted at a
meeting except in accordance with the provisions of this paragraph.
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(d) The officer of the Corporation or other person presiding at
the meeting shall, if the facts so warrant, determine and declare to the meeting
that business was not properly brought before the meeting in accordance with
such provisions and, if he shall so determine and declare, such business shall
not be transacted. Notwithstanding the provisions of this paragraph (d), if the
Corporation is subject to Rule 14a-8 under the Securities Exchange Act of 1934,
business consisting of a proposal properly included in the Corporation's proxy
statement with respect to a meeting pursuant to such Rule may be transacted at a
meeting.
(e) Notwithstanding any other provisions of these articles or the
by-laws (and in addition to any other vote that may be specified by law, these
articles or the by-laws), the provisions of this article may not be repealed or
amended in any respect, nor may any provision of these articles or the by-laws
be adopted inconsistent with this article, unless such action is approved by the
affirmative vote of the holders of not less than seventy-five percent of the
outstanding shares of capital stock of the Corporation entitled to vote in the
election of directors.
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