Exhibit 3
RESTATED
ARTICLES OF INCORPORATION
OF
DYCOM INDUSTRIES, INC.
Pursuant to Section 607.1007 of the Florida Business Corporation Act,
the Articles of Incorporation (the "Articles") of the undersigned corporation
(the "Corporation") are hereby restated in their entirety as follows:
ARTICLE I
The name of the proposed corporation shall be:
DYCOM INDUSTRIES, INC.
ARTICLE II
This Corporation shall have and exercise all the powers conferred by
the laws of the State of Florida upon business corporations, as fully and to the
same extent as natural persons might or could do in all parts of the world. This
Corporation may do all and everything necessary, suitable or proper for the
accomplishments of any purpose or object either alone or in association with
other corporations, firms or individuals to the same extent and as fully as
individuals might or could do as principals, agents, contractors or otherwise.
ARTICLE III
(a) The aggregate number of shares which the Corporation shall have
authority to issue, divided into two classes, is as follows:
(1) 150,000,000 shares of common stock having a par value of
$0.33 1/3 per share (the "Common Stock"); and
(2) 1,000,000 shares of Preferred Stock of a par value of
$1.00 per share (the "Preferred Stock").
(b) The Board of Directors of the Corporation is hereby authorized to
issue the Preferred Stock at any time and from time to time, in one or more
series and for such consideration, but not less than the par value thereof, as
may be fixed from time to time by the Board of Directors. The number of shares
which shall comprise each such series, which number may be increased (except
where otherwise provided by the Board of Directors in creating such series) or
decreased (but not below the number of shares thereof then outstanding) shall be
determined from time to time by the Board of Directors. The Board of Directors
is hereby expressly authorized, before issuance of any shares of a particular
series, to determine any and all rights, preferences and limitations pertaining
to such series, including but not limited to:
(1) Voting rights, if any, including without limitation the
authority to confer multiple votes per share, voting rights as to
specified matters or issues such as mergers, consolidation or sales of
assets, or voting rights to be exercised either together with holders
of Common Stock as a single class, or independently as a separate
class;
(2) Rights, if any, permitting the conversion or exchange of
any such shares, at the option of the holder, into any other class or
series of shares of the Corporation and the price or prices or the
rates of exchange and any adjustments thereto at which such shares will
be convertible or exchangeable;
(3) The rate of dividends, if any, payable on shares of such
series, the conditions and the dates upon which such dividends shall be
payable and whether such dividends shall be cumulative or
non-cumulative;
(4) The amount payable on shares of such series in the event
of any liquidation, dissolution or winding up of the affairs of the
Corporation;
(5) Redemption, repurchase, retirement and sinking fund
rights, preferences and limitations, if any, the amount payable on
shares of such series in the event of such redemption, repurchase or
retirement, the terms and conditions of any sinking fund, the manner of
creating such fund or funds and whether any of the foregoing shall be
cumulative or non-cumulative; and
(6) Any other preference and relative, participating, optional
or other special rights and qualifications, limitations or restrictions
of shares of such series not fixed and determined herein, to the extent
permitted to do so by law.
(c) All shares of Preferred Stock shall be of equal rank and shall be
identical, except with respect to the particulars that may be fixed by the Board
of Directors pursuant to paragraph (b) of this Article III and as to the date
from which dividends thereon, if any, shall be cumulative if made cumulative by
the Board of Directors,
(d) All shares of Common Stock shall be of equal rank and shall be
identical. Each holder of record of Common Stock shall have the right to one
vote for each share of Common Stock standing in his name on the books of the
Corporation. The Common Stock shall have the following rights relative to the
Preferred Stock:
(1) After the requirements, if any, with respect to
preferential dividends on the Preferred Stock shall have been satisfied
and after the Corporation shall have complied with all of the
requirements, if any, with respect to the setting aside of sums as
sinking funds or redemption, repurchase or retirement accounts, then
and not otherwise, the holders of Common Stock shall be entitled to
receive such dividends as may be declared from time to time by the
Board of Directors; and
(2) After distribution in full of the preferential amount, if
any, required to be distributed to the holders of the Preferred Stock
in the event of the voluntary or involuntary liquidation, dissolution
or winding up of the affairs of the Corporation, the holders of the
Common Stock shall be entitled to receive all the remaining assets of
the Corporation, tangible and intangible, of whatever kind available
for distribution to shareholders, ratably in proportion to the number
of shares of Common Stock held by them respectively.
2
(e) No holder of any class of stock of the Corporation, as such, shall
have or be entitled to any preemptive rights whatsoever.
(f) SERIES A PREFERRED STOCK.
(1) DESIGNATION AND AMOUNT. The shares of such series shall be
designated as "Series A Preferred Stock," par value $1.00 per share
(the "Series A Preferred Stock"), and the number of shares constituting
such series shall be 100,000.
(2) DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the prior and superior rights of the
holders of any shares of any other series of Preferred Stock
or any other shares of preferred stock of the Corporation
ranking prior and superior to the shares of Series A Preferred
Stock with respect to dividends, each holder of one
ten-thousandth (1/10,000) of a share (a "UNIT") of Series A
Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally
available for that purpose, (i) quarterly dividends payable in
cash on the last day of March, June, September and December in
each year (each such date being a "QUARTERLY DIVIDEND PAYMENT
DATE"), commencing on the first Quarterly Dividend Payment
Date after the first issuance of such Unit of Series A
Preferred Stock, in an amount per Unit (rounded to the nearest
cent) equal to the greater of (a) $0.01 or (b) subject to the
provision for adjustment hereinafter set forth, the aggregate
per share amount of all cash dividends declared on shares of
the Common Stock (as defined in Section (f)(12)) since the
immediately preceding Quarterly Dividend Payment Date, or,
with respect to the first Quarterly Dividend Payment Date,
since the first issuance of a Unit of Series A Preferred
Stock, and (ii) subject to the provision for adjustment
hereinafter set forth, quarterly distributions (payable in
kind) on each Quarterly Dividend Payment Date in an amount per
Unit equal to the aggregate per share amount of all non-cash
dividends or other distributions (other than a dividend
payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock, by reclassification or
otherwise) declared on shares of Common Stock since the
immediately preceding Quarterly Dividend Payment Date, or with
respect to the first Quarterly Dividend Payment Date, since
the first issuance of a Unit of Series A Preferred Stock. In
the event that the Corporation shall at any time after April
4, 2001 (the "RIGHTS DECLARATION DATE") (i) declare any
dividend on outstanding shares of Common Stock payable in
shares of Common Stock, (ii) subdivide outstanding shares of
Common Stock or (iii) combine outstanding shares of Common
Stock into a smaller number of shares, then in each such case
the amount to which the holder of a Unit of Series A Preferred
Stock was entitled immediately prior to such event pursuant to
the preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which shall be the
number of shares of Common Stock that are outstanding
immediately after such event and the denominator of which
shall be the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or
distribution on Units of Series A Preferred Stock as provided
in paragraph (A) above immediately after it
3
declares a dividend or distribution on the shares of Common
Stock (other than a dividend payable in shares of Common
Stock); PROVIDED, HOWEVER, that, in the event no dividend or
distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date
and the next subsequent Quarterly Dividend Payment Date, a
dividend of $0.01 per Unit on the Series A Preferred Stock
shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and shall be
cumulative on each outstanding Unit of Series A Preferred
Stock from the Quarterly Dividend Payment Date next preceding
the date of issuance of such Unit of Series A Preferred Stock,
unless the date of issuance of such Unit is prior to the
record date for the first Quarterly Dividend Payment Date, in
which case, dividends on such Unit shall begin to accrue from
the date of issuance of such Unit, or unless the date of
issuance is a Quarterly Dividend Payment Date or is a date
after the record date for the determination of holders of
Units of Series A Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment
Date, in either of which events such dividends shall begin to
accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest.
Dividends paid on Units of Series A Preferred Stock in an
amount less than the aggregate amount of all such dividends at
the time accrued and payable on such Units shall be allocated
pro rata on a unit-by-unit basis among all Units of Series A
Preferred Stock at the time outstanding. The Board of
Directors may fix a record date for the determination of
holders of Units of Series A Preferred Stock entitled to
receive payment of a dividend or distribution declared
thereon, which record date shall be no more than 30 days prior
to the date fixed for the payment thereof.
(3) VOTING RIGHTS. The holders of Units of Series A Preferred
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment
hereinafter set forth, each Unit of Series A Preferred Stock
shall entitle the holder thereof to one vote on all matters
submitted to a vote of the shareholders of the Corporation. In
the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on outstanding
shares of Common Stock payable in shares of Common Stock, (ii)
subdivide outstanding shares of Common Stock or (iii) combine
the outstanding shares of Common Stock into a smaller number
of shares, then in each such case the number of votes per Unit
to which holders of Units of Series A Preferred Stock were
entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction the numerator of which
shall be the number of shares of Common Stock outstanding
immediately after such event and the denominator of which
shall be the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law,
the holders of Units of Series A Preferred Stock and the
holders of shares of Common Stock shall vote
4
together as one class on all matters submitted to a vote of
shareholders of the Corporation.
(C) (i) If at any time dividends on any Units of
Series A Preferred Stock shall be in arrears in an amount
equal to six quarterly dividends thereon, then during the
period (a "default period") from the occurrence of such event
until such time as all accrued and unpaid dividends for all
previous quarterly dividend periods and for the current
quarterly dividend period on all Units of Series A Preferred
Stock then outstanding shall have been declared and paid or
set apart for payment, all holders of Units of Series A
Preferred Stock, voting separately as a class, shall have the
right to elect two Directors.
(ii) During any default period, such voting rights of
the holders of Units of Series A Preferred Stock may be
exercised initially at a special meeting called pursuant to
subparagraph (iii) of this Section (f)(3)(C) or at any annual
meeting of shareholders, and thereafter at annual meetings of
shareholders, provided that neither such voting rights nor any
right of the holders of Units of Series A Preferred Stock to
increase, in certain cases, the authorized number of Directors
may be exercised at any meeting unless one-third of the
outstanding Units of Preferred Stock shall be present at such
meeting in person or by proxy. The absence of a quorum of the
holders of Common Stock shall not affect the exercise by the
holders of Units of Series A Preferred Stock of such rights.
At any meeting at which the holders of Units of Series A
Preferred Stock shall exercise such voting rights initially
during an existing default period, they shall have the right,
voting separately as a class, to elect Directors to fill up to
two vacancies in the Board of Directors, if any such vacancies
may then exist, or, if such right is exercised at an annual
meeting, to elect two Directors. If the number which may be so
elected at any special meeting does not amount to the required
number, the holders of the Series A Preferred Stock shall have
the right to make such increase in the number of Directors as
shall be necessary to permit the election by them of the
required number. After the holders of Units of Series A
Preferred Stock shall have exercised their right to elect
Directors during any default period, the number of Directors
shall not be increased or decreased except as approved by a
vote of the holders of Units of Series A Preferred Stock as
herein provided or pursuant to the rights of any equity
securities ranking senior to the Series A Preferred Stock.
(iii) Unless the holders of Series A Preferred Stock
shall, during an existing default period, have previously
exercised their right to elect Directors, the Board of
Directors may order, or any shareholder or shareholders owning
in the aggregate not less than 25% of the total number of the
Units of Series A Preferred Stock outstanding may request, the
calling of a special meeting of the holders of Units of Series
A Preferred Stock, which meeting shall thereupon be called by
the Secretary
5
of the Corporation. Notice of such meeting and of any annual
meeting at which holders of Units of Series A Preferred Stock
are entitled to vote pursuant to this paragraph (C)(iii) shall
be given to each holder of record of Units of Series A
Preferred Stock by mailing a copy of such notice to him at his
last address as the same appears on the books of the
Corporation. Such meeting shall be called for a time not
earlier than 20 days and not later than 60 days after such
order or request or in default of the calling of such meeting
within 60 days after such order or request, such meeting may
be called on similar notice by any shareholder or shareholders
owning in the aggregate not less than 25% of the total number
of outstanding Units of Series A Preferred Stock.
Notwithstanding the provisions of this paragraph (C)(iii), no
such special meeting shall be called during the 60 days
immediately preceding the date fixed for the next annual
meeting of the shareholders.
(iv) During any default period, the holders of shares
of Common Stock and Units of Series A Preferred Stock, and
other classes or series of stock of the Corporation, if
applicable, shall continue to be entitled to elect all the
Directors until holders of the Units of Series A Preferred
Stock shall have exercised their right to elect two Directors
voting as a separate class, after the exercise of which right
(x) the Directors so elected by the holders of Units of Series
A Preferred Stock shall continue in office until their
successors shall have been elected by such holders or until
the expiration of the default period, and (y) any vacancy in
the Board of Directors may (except as provided in paragraph
(C)(ii) of this Section (f)(3) be filled by vote of a majority
of the remaining Directors theretofore elected by the holders
of the class of capital stock which elected the Director whose
office shall have become vacant. References in this paragraph
(C) to Directors elected by the holders of a particular class
of capital stock shall include Directors elected by such
Directors to fill vacancies as provided in clause (y) of the
foregoing sentence.
(v) Immediately upon the expiration of a default
period, (x) the right of the holders of Units of Series A
Preferred Stock as a separate class to elect Directors shall
cease, (y) the term of any Directors elected by the holders of
Units of Series A Preferred Stock as a separate class shall
terminate, and (z) the number of Directors shall be such
number as may be provided for in the Articles or By-laws
irrespective of any increase made pursuant to the provisions
of paragraph (C)(ii) of this Section (f)(3) (such number being
subject, however, to change thereafter in any manner provided
by law or in the Articles or By-laws). Any vacancies in the
Board of Directors effected by the provisions of clauses (y)
and (z) in the preceding sentence may be filled by a majority
of the remaining Directors.
(vi) The provisions of this paragraph (C) shall
govern the election of Directors by holders of Units of
Preferred Stock during any
6
default period notwithstanding any provisions of the Articles
to the contrary.
(D) Except as set forth herein, holders of Units of
Series A Preferred Stock shall have no special voting rights
and their consents shall not be required (except to the extent
they are entitled to vote with holders of shares of Common
Stock as set forth herein) for taking any corporate action.
(4) CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other dividends
or distributions payable on Units of Series A Preferred Stock
as provided in Section (f)(2) are in arrears, thereafter and
until all accrued and unpaid dividends and distributions,
whether or not declared, on outstanding Units of Series A
Preferred Stock shall have been paid in full, the Corporation
shall not:
(i) declare or pay dividends on, make any
other distributions on, or redeem or purchase or
otherwise acquire for consideration any shares of
junior stock (as defined in Section (f)(12));
(ii) declare or pay dividends on or make any
other distributions on any shares of parity stock (as
defined in Section (f)(12)), except dividends paid
ratably on Units of Series A Preferred Stock and
shares of all such parity stock on which dividends
are payable or in arrears in proportion to the total
amounts to which the holders of such Units and all
such shares are then entitled;
(iii) redeem or purchase or otherwise
acquire for consideration shares of any parity stock,
PROVIDED, HOWEVER, that the Corporation may at any
time redeem, purchase or otherwise acquire shares of
any such parity stock in exchange for shares of any
junior stock;
(iv) purchase or otherwise acquire for
consideration any Units of Series A Preferred Stock,
except in accordance with a purchase offer made in
writing or by publication (as determined by the Board
of Directors) to all holders of such Units.
(B) The Corporation shall not permit any subsidiary
of the Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation unless
the Corporation could, under paragraph (A) of this Section
(f)(4), purchase or otherwise acquire such shares at such time
and in such manner.
(5) REACQUIRED SHARES. Any Units of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such Units shall, upon their cancellation,
become authorized but unissued Units of Preferred Stock and may be
reissued as part of a new series of Preferred Stock to be created by
resolution or
7
resolutions of the Board of Directors, subject to the conditions and
restrictions on issuance set forth herein.
(6) LIQUIDATION, DISSOLUTION OR WINDING UP.
(A) Upon any voluntary or involuntary liquidation,
dissolution or winding-up of the Corporation, no distribution
shall be made (i) to the holders of shares of junior stock
unless the holders of Units of Series A Preferred Stock shall
have received, subject to adjustment as hereinafter provided
in paragraph (B), the greater of either (a) $0.01 per Unit
plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not earned or declared, to
the date of such payment, or (b) the amount equal to the
aggregate per share amount to be distributed to holders of
shares of Common Stock, or (ii) to the holders of shares of
parity stock, unless simultaneously therewith distributions
are made ratably on Units of Series A Preferred Stock and all
other shares of such parity stock in proportion to the total
amounts to which the holders of Units of Series A Preferred
Stock are entitled under clause (i)(a) of this sentence and to
which the holders of shares of such parity stock are entitled,
in each case upon such liquidation, dissolution or winding-up.
(B) In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend on
outstanding shares of Common Stock payable in shares of Common
Stock, (ii) subdivide outstanding shares of Common Stock, or
(iii) combine outstanding shares of Common Stock into a
smaller number of shares, then in each such case the aggregate
amount to which holders of Units of Series A Preferred Stock
were entitled immediately prior to such event pursuant to
clause (i)(b) of paragraph (A) of this Section (f)(6) shall be
adjusted by multiplying such amount by a fraction the
numerator of which shall be the number of shares of Common
Stock that are outstanding immediately after such event and
the denominator of which shall be the number of shares of
Common Stock that were outstanding immediately prior to such
event.
(7) CONSOLIDATION, MERGER, ETC. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction
in which the shares of Common Stock are exchanged for or converted into
other stock or securities, cash and/or any other property, then in any
such case Units of Series A Preferred Stock shall at the same time be
similarly exchanged for or converted into an amount per Unit (subject
to the provision for adjustment hereinafter set forth) equal to the
aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each
share of Common Stock is converted or exchanged. In the event the
Corporation shall at any time after the Rights Declaration Date (i)
declare any dividend on outstanding shares of Common Stock payable in
shares of Common Stock, (ii) subdivide outstanding shares of Common
Stock, or (iii) combine outstanding Common Stock into a smaller number
of shares, then in each such case the amount set forth in the
immediately preceding sentence with respect to the exchange or
conversion of Units of Series A Preferred Stock shall be adjusted by
multiplying such amount by a fraction the numerator of which shall be
the number of shares of Common Stock that are outstanding
8
immediately after such event and the denominator of which shall be the
number of shares of Common Stock that were outstanding immediately
prior to such event.
(8) REDEMPTION. The Units of Series A Preferred Stock shall
not be redeemable.
(9) RANKING. The Units of Series A Preferred Stock shall rank
junior to all other series of the Preferred Stock and to any other
class of preferred stock that hereafter may be issued by the
Corporation as to the payment of dividends and the distribution of
assets, unless the terms of any such series or class shall provide
otherwise.
(10) AMENDMENT. The Articles, including, without limitation,
this resolution, shall not hereafter be amended, either directly or
indirectly, or through merger or consolidation with another corporation
in any manner that would alter or change the powers, preferences or
special rights of the Series A Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of a majority or
more of the outstanding Units of Series A Preferred Stock, voting
separately as a class.
(11) FRACTIONAL SHARES. The Series A Preferred Stock may be
issued in Units or other fractions of a share, which Units or fractions
shall entitle the holder, in proportion to such holder's fractional
shares, to exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of holders of
Series A Preferred Stock.
(12) CERTAIN DEFINITIONS. As used herein with respect to the
Series A Preferred Stock, the following terms shall have the following
meanings:
(A) The term "COMMON STOCK" shall mean the class of
stock designated as the common stock, par value $0.33-1/3 per
share, of the Corporation at the date hereof or any other
class of stock resulting from successive changes or
reclassification of such common stock.
(B) The term "JUNIOR STOCK" (i) as used in Section
(f)(4), shall mean the Common Stock and any other class or
series of capital stock of the Corporation hereafter
authorized or issued over which the Series A Preferred Stock
has preference or priority as to the payment of dividends and
(ii) as used in Section (f)(6), shall mean the Common Stock
and any other class or series of capital stock of the
Corporation over which the Series A Preferred Stock has
preference or priority in the distribution of assets on any
liquidation, dissolution or winding up of the Corporation.
(C) The term "PARITY STOCK" (i) as used in Section
(f)(4), shall mean any class or series of stock of the
Corporation hereafter authorized or issued ranking PARI PASSU
with the Series A Preferred Stock as to the payment of
dividends and (ii) as used in Section (f)(6), shall mean any
class or series of capital stock ranking PARI PASSU with the
Series A Preferred Stock in the distribution of assets on any
liquidation, dissolution or winding up of the Corporation.
9
ARTICLE IV
This Corporation shall have perpetual existence, unless sooner
voluntarily dissolved according to law.
ARTICLE V
The principal office and mailing address of the Corporation shall be at
4440 PGA Boulevard, Suite 500, Palm Beach Gardens, Florida 33410. However, this
Corporation shall have the power to transact business in other place or places
both within and without the State of Florida and throughout the world.
Meetings of the shareholders and Directors of this Corporation for any
and all purposes, except the annual meeting of shareholders may be held at
places other than the principal office of the Corporation, within or outside the
State of Florida, and the place or places for the holdings of such meetings may
be specified in the By-Laws or by the Board of Directors. The annual meeting of
shareholders shall be held at or near the principal offices of the Corporation.
ARTICLE VI
(a) The number of Directors which shall constitute the entire Board of
Directors shall be determined from time to time by resolution of the Board of
Directors. The Directors shall be elected at the annual shareholders' meetings,
except as provided in paragraph (c) of this Article VI. The Directors shall be
divided into three classes, each of which shall be as nearly equal in number as
possible. At the annual shareholders' meeting in 1983, one class of Directors
shall be elected for a one-year term, one class for a two-year term and one
class for a three-year term. Commencing with the annual shareholders' meeting in
1984 and at each succeeding annual shareholders' meeting, successors to the
class of Directors whose term expires at such annual shareholders' meeting shall
be elected for a three-year term. If the number of such Directors shall be
changed, any such increase or decrease in directorships shall be apportioned
among the classes so as to maintain the number of Directors comprising each
class as nearly equal as possible; PROVIDED, HOWEVER, that any decrease in the
number of Directors which shall cause a Director to be removed prior to the
expiration of his term shall be subject to the provisions of paragraph (b) of
this Article VI.
(b) A Director shall hold office until the annual shareholders' meeting
for the year in which his term expires and until his successor shall have been
elected and qualified, or until his earlier resignation, removal from office or
death. Directors may be removed by the shareholders only for cause. Except as
may otherwise be provided by law, cause for removal shall be construed to exist
only if the Director whose removal shall be proposed shall have been convicted
of a felony by a court of competent jurisdiction and such conviction shall no
longer be subject to direct appeal, or shall have been adjudged by a court of
competent jurisdiction to be liable for negligence or misconduct in the
performance of his duty to the Corporation in a matter of substantial importance
to the Corporation, and such adjudication shall no longer be subject to direct
appeal.
(c) If any vacancy shall occur in the Board of Directors caused by the
death, resignation, retirement or removal from office of any Director, or
otherwise, or if any new
10
directorship shall be created by an increase in the authorized number of
Directors, a majority of the Directors in office, though less than a quorum, may
choose a successor or successors, or fill the newly created directorship. Any
Director thus elected to fill a vacancy shall hold office only until the next
annual shareholders' meeting.
(d) During the period when the holders of any one or more series of
Preferred Stock, voting as a class, shall be entitled to elect a specified
number of Directors by reason of dividend arrearages or other contingencies
giving them the right to do so, then and during such time as such right shall
continue to be asserted: (1) the then otherwise authorized number of Directors
constituting the entire Board of Directors shall be increased by such specified
number of Directors and the holders of such Preferred Stock shall be entitled to
elect the additional Directors so provided for, pursuant to the provisions of
such Preferred Stock; (2) each such additional Director shall not be a member of
one of the three classes of Directors provided for in paragraph (a) of this
Article VI, but shall serve only until the next annual shareholders' meeting or
until his successor shall have been elected and qualified, or until his right to
hold such office shall terminate pursuant to the provisions of such Preferred
Stock, whichever shall be earlier; and (3) whenever the holders of such
Preferred Stock shall be divested of such right to elect a specified number of
Directors pursuant to the provisions of such Preferred Stock, the terms of
office of all Directors elected by the holders of such Preferred Stock pursuant
to such provisions, or elected to fill any vacancies resulting from the death,
resignation or removal of Directors so elected by the holders of such Preferred
Stock, shall forthwith terminate and the authorized number of Directors
constituting the entire Board of Directors shall be reduced accordingly.
(e) In case of an equality of votes on any question before the Board of
Directors, the Chief Executive Officer of the Corporation shall have a second
and deciding vote.
(f) Amendment or deletion of this Article VI shall require the
affirmative vote of the holders of at least 80% of the shares of the Corporation
entitled to vote thereon.
ARTICLE VII
(a) (1) In addition to any affirmative vote required by law or under
any other provision of these Articles, and except as otherwise
expressly provided in this Article VII,
(A) any merger or consolidation of the Corporation or
any Subsidiary (as hereinafter defined in paragraph (c)(8) of
this Article VII) with or into (i) any Substantial Stockholder
(as hereinafter defined in paragraph (c)(2) of this Article
VII) or (ii) any other corporation (whether or not itself a
Substantial Stockholder) which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined
in paragraph (c)(7) of this Article VII) of a Substantial
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series
of related transactions) to or with any Substantial
Stockholder or any Affiliate of a Substantial Stockholder of
any Substantial Part (as hereinafter defined in paragraph
(c)(9) of this Article VII) of the assets of this Corporation
or of any Subsidiary, or
11
(C) the issuance or transfer by the Corporation or by
any Subsidiary (in one transaction or a series of related
transactions) of any Equity Security (as hereinafter defined
in paragraph (c)(11) of this Article VII) of the Corporation
or any Subsidiary to any Substantial Stockholder or any
Affiliate of a Substantial Stockholder in exchange for cash,
securities or other property (or a combination thereof) having
an aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation if, as of the
record date for the determination of shareholders entitled to
notice thereof and to vote thereon, any person shall be a
Substantial Stockholder, or
(E) any reclassification of securities (including any
reverse stock split) or recapitalization of the Corporation,
or any reorganization, merger or consolidation of the
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving a Substantial Stockholder; which has the effect,
directly or indirectly, of increasing the proportionate share
of the outstanding securities of any class of equity
securities of the Corporation or any Subsidiary which is
directly or indirectly Beneficially Owned (as hereinafter
defined in paragraph (c)(3) of this Article VII) by any
Substantial Stockholder, shall (except as otherwise expressly
provided in these Articles) require the affirmative vote of
the holders of then outstanding Voting Shares (as hereinafter
defined in paragraph (c)(10) of this Article VII entitled to
cast at least 80% of the votes entitled to be cast by the
holders of all of the then outstanding Voting Shares;
PROVIDED, HOWEVER, that such affirmative vote must include the
affirmative vote of the holders of Voting Shares entitled to
cast a majority of the votes entitled to be cast by the
holders of all the then outstanding Voting Shares not
beneficially owned by any Substantial Stockholder. Each such
affirmative vote shall be required notwithstanding that no
vote may be required, or that some lesser percentage may be
specified, by law or pursuant to any agreement with any
national securities exchange or otherwise.
(2) The term "Business Combination" as used in this Article
VII shall mean any transaction which is described in any one or more of
clauses (A) through (E) of paragraph (a)(1) of this Article VII.
(b) (1) The provisions of this Article VII shall not be applicable to
any Business Combination if:
(A) prior to the date the Substantial Stockholder
which is a party thereto or whose proportionate share of the
outstanding securities of any class of Equity Security of the
Corporation or any Subsidiary is increased by reason thereof,
or in the case of a Business Combination described in clause
(D) of paragraph (a)(1) of this Article VII, prior to the date
any Substantial Stockholder affected by such Business
Combination became a Substantial Stockholder, the terms of
such transaction were approved by the Corporation's Board of
Directors, or
12
(B) after the date referred to in subparagraph (A)
above, the terms of such transaction were approved by both
two-thirds of the Whole Board (as hereinafter defined in
paragraph (c)(6) of this Article VII), and a majority of those
members of the Board of Directors who shall constitute
Continuing Directors (as hereinafter defined in paragraph
(c)(5) of this Article VII).
(2) The Board of Directors of the Corporation, when evaluating
any Business Combination shall, in connection with the exercise of its
judgment in determining what is in the best interests of the
Corporation and its shareholders, give due consideration to all
relevant factors, including without limitation the social and economic
effects of such Business Combination on the employees, customers,
suppliers and other constituents of the Corporation and its
Subsidiaries and on the communities in which the Corporation and its
Subsidiaries operate or are located.
(c) For the purposes of this Article VII:
(1) A person, shall mean any individual, firm, corporation or
other entity.
(2) "Substantial Stockholder" shall mean any person (other
than the Corporation or any Subsidiary) who or which, as of the record
date for the determination of shareholders entitled to notice of and to
vote on any Business Combination, or immediately prior to the
consummation of any such Business Combination (other than a Business
Combination referred to in paragraph (a)(1)(D) of this Article VII):
(A) is the Beneficial Owner, directly of indirectly,
of more than 20% of the Voting Shares (determined solely on
the basis of the total number of Voting Shares so beneficially
owned in relation to the total number of Voting Shares issued
and outstanding), or
(B) is an Affiliate of the Corporation and at any
time within three years prior to the date in question was the
Beneficial Owner, directly or indirectly, of more than 20% of
the then outstanding Voting Shares (determined an aforesaid),
or
(C) is an assignee of or has otherwise succeeded to
any shares of capital stock of the Corporation which were at
any time within three years prior to the date in question
Beneficially Owned by any Substantial Stockholder, or
Affiliate of a Substantial Stockholder, and such assignment or
succession shall have occurred in the course of a transaction
or series of transactions not involving a public offering
within the meaning of the Securities Act of 1933, as amended.
(3) "Beneficially Owned" shall be determined pursuant to Rule
13d-3 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended (or any successor rule or statutory
provision), or, if said Rule 13d-3 shall be rescinded and there shall
be no successor rule or statutory provision thereto, pursuant to said
Rule 13d-3 as in effect on May 1, 1983; PROVIDED, HOWEVER, that a
person shall, in any event, also be deemed to be the "Beneficial Owner"
of any Voting Shares:
13
(A) which such person or any of its Affiliates or
Associates (as hereinafter defined in subparagraph (7) of this
paragraph (c)) Beneficially Owns, directly or indirectly, or
(B) which such person or any of its Affiliates or
Associate has, directly or indirectly, (i) the right to
acquire (whether such right is exercisable immediately or only
after the passage of time), pursuant to any agreement,
arrangement or understanding (but shall not be deemed to be
the Beneficial Owner of any Voting Shares solely by reason of
any agreement, arrangement or understanding with the
Corporation to affect a Business Combination) or upon the
exercise of conversion rights, exchange rights, warrants or
options, or otherwise, or (ii) sole or shared voting or
investment power with respect thereto pursuant to any
agreement, arrangement, understanding or relationship, or
otherwise (but shall not be deemed to be the Beneficial Owner
of any Voting Shares solely by reason of a revocable proxy
granted for a particular meeting of shareholders, pursuant to
a public solicitation of proxies for such meeting, with
respect to shares of which neither such person nor any such
Affiliate or Associate is otherwise deemed the Beneficial
Owner), or
(C) which are Beneficially Owned, directly or
indirectly, by any other person with which such
first-mentioned person or any of its Affiliates or Associates
act as a partnership, limited partnership, syndicate or other
group pursuant to any agreement, arrangement or understanding
for the purpose of acquiring, holding, voting or disposing of
any shares of capital stock of the Corporation;
and PROVIDED FURTHER, however, that (i) no Director or Officer
of the Corporation, nor any Associate or Affiliate of any such
Director or Officer, shall, solely by reason of any or all of
such Directors and Officers acting in their capacities as
such, be deemed, for any purposes hereof, to Beneficially Own
any Voting Shares Beneficially Owned by any other such
Director or Officer (or any Associate or Affiliate thereof),
and (ii) no employee stock ownership or similar plan of the
Corporation or any Subsidiary nor any trusts with respect
thereto, nor any Associate or Affiliate of any such trustee,
shall, solely by reason of such capacity of such trustee, be
deemed, for any purposes hereof to Beneficially Own any Voting
Shares held under any such plan.
(4) For purposes of computing the percentage Beneficial
Ownership of Voting Shares of a person in order to determine whether
such person is a Substantial Stockholder, the outstanding Voting Shares
shall include shares deemed owned by such person through application of
subparagraph (3) of this paragraph (c) but shall not include any other
Voting Shares which may be issuable by the Corporation pursuant to any
agreement, or upon the exercise of conversion rights, warrants or
options, or otherwise. For all other purposes, the outstanding Voting
Shares shall include only Voting Shares then outstanding and shall not
include any Voting Shares which may be issuable by the Corporation
pursuant to any agreement, or upon the exercise of conversion rights,
warrants or options, or otherwise.
14
(5) "Continuing Director" shall mean a person (i) who was
elected as a Director at the 1983 annual shareholders' meeting, or (ii)
who was thereafter elected by the shareholders or appointed by the
Board of Directors of the Corporation prior to the date as of which the
Substantial Stockholder (or Substantial Stockholders) in question
became a Substantial Stockholder (or Substantial Stockholders) or (iii)
who was designated (before his initial election or appointment as a
Director) as a Continuing Director by a majority of the Whole Board,
but only if a majority of the Whole Board shall then consist of
Continuing Directors, or, if a majority of the Whole Board shall not
then consist of Continuing Directors, by a majority of the then
Continuing Directors.
(6) "Whole Board" shall mean the total number of Directors
which the Corporation would have if there were no vacancies.
(7) An "Affiliate" of a specified person is a person that
directly, or indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with, the person
specified. The term "Associate" used to indicate a relationship with
any person shall mean (i) any corporation or organization (other than
the Corporation or a Subsidiary) of which such person is an officer or
partner or is, directly or indirectly, the beneficial owner of any
class of Equity Security, (ii) any trust or other estate in which such
person has a substantial beneficial interest or as to which such person
serves as trustee or in a similar fiduciary capacity, and (iii) any
relative or spouse of such person, or any relative of such spouse, who
has the same home as such person, or is an officer or director of any
corporation controlling or controlled by such person.
(8) "Subsidiary" shall mean any corporation of which a
majority of any class of Equity Security is owned, directly or
indirectly, by the Corporation, PROVIDED, HOWEVER, that for the
purposes of the definition of Substantial Stockholder set forth in
subparagraph (2) of this paragraph (c), the term "Subsidiary" shall
mean only a corporation of which a majority of each class of Equity
Security is owned, directly or indirectly, by the Corporation.
(9) "Substantial Part" shall mean assets having a fair value
in excess of 10% of the value of the total consolidated assets of the
Corporation as shown on the Corporation's certified balance sheet at
the end of its most recent fiscal year ending prior to the time the
determination is made.
(10) "Voting Shares" shall mean any shares of capital stock of
the Corporation entitled to vote generally in the election of
Directors.
(11) "Equity Security" shall have the meaning given to such
term under Rule 3a11-1 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended, as in effect on May 1,
1983.
(12) "Fair Value" shall mean, with respect to any securities,
property, assets or other consideration, the fair market value thereof
at any time 90 days prior to the date of the consummation of any
transaction, which value and time shall be determined by a majority of
the Continuing Directors who shall be advised on such value by an
investment banking firm selected by them.
15
(d) A majority of the Whole Board shall have the power to determine,
but only if a majority of the Whole Board shall then consist of Continuing
Directors, or, if a majority of the Whole Board shall not then consist of
Continuing Directors, a majority of the then Continuing Directors shall have the
power to determine, for the purposes of this Article VII, on the basis of
information known to them, (i) the number of Voting Shares Beneficially owned by
any person, (ii) whether a person is an Affiliate or Associate of another, (iii)
whether a person has an agreement, arrangement or understanding with another as
to any matter referred to in subparagraph (3)(C) of paragraph (c) of this
Article VII, (iv) whether the assets subject to any Business Combination
constitute a Substantial Part of the assets of the corporation in question
and/or (v) any other factual matter relating to the applicability or effect of
this Article VII.
(e) A majority of the Whole Board shall have the right to demand, but
only if a majority of the Whole Board shall then consist of Continuing
Directors, or if a majority of the Whole Board shall not then consist of
Continuing Directors, a majority of the then Continuing Directors shall have the
right to demand, that any person who it is reasonably believed is a Substantial
Stockholder (or holds of record Voting Shares Beneficially Owned by any
Substantial Stockholder) supply the Corporation with complete information as to
(i) the record owner(s) of all shares Beneficially Owned by such person who it
is reasonably believed is a Substantial Stockholder, (ii) the number of, and
class or series of, shares Beneficially Owned by such person who it is
reasonably believed is a Substantial Stockholder and held of record by each such
record owner and the number(s) of the stock certificate(s) evidencing such
shares and (iii) any other factual matter(s) relating to the applicability or
effect of this Article VII as may be reasonably requested of such person, and
such person shall furnish such information within 10 days after receipt of such
demand.
(f) Any determinations by the Board of Directors or by the Continuing
Directors, as the case may be, made pursuant to this Article VII in good faith
and on the basis of such information and assistance as shall be then reasonably
available for such purpose, shall be conclusive and binding upon the Corporation
and its shareholders, including any Substantial Stockholder.
(g) Any amendment, alteration, change or repeal of this Article VII
shall, in addition to any other vote or approval required by law or by these
Articles, require the affirmative vote of the holders of then outstanding Voting
Shares entitled to cast at least 80% of the votes entitled to be cast by the
holders of all of the then outstanding Voting Shares (and such affirmative vote
must include the affirmative vote of the holders of Voting Shares entitled to
cast a majority of the votes entitled to be cast by the holders of all Voting
Shares not Beneficially Owned by any Substantial Stockholder); PROVIDED,
HOWEVER, that this paragraph (g) shall not apply to, and such 80% vote (and such
further majority vote) shall not be required for, any amendment, alteration,
change or repeal declared advisable by the Board of Directors by the affirmative
vote of two-thirds of the Whole Board and submitted to the shareholders for
their consideration, but only if a majority of the members of the Board of
Directors acting upon such matter shall be Continuing Directors.
(h) Nothing contained in this Article VII shall be construed to relieve
any Substantial Stockholder from any fiduciary obligation imposed by law.
16
(i) In the event that any paragraph (or portion thereof) of this
Article VII shall be found to be invalid, prohibited or unenforceable for any
reason, the remaining provisions (or portions thereof) of this Article VII shall
be deemed to remain in full force and effect and shall be construed as if such
invalid, prohibited or unenforceable provision had been stricken herefrom or
otherwise rendered inapplicable, it being the intent of the Corporation and its
shareholders that each such remaining provision (or portion thereof) of this
Article VII remain, to the fullest extent permitted by law, applicable and
enforceable as to all shareholders, including Substantial Stockholders,
notwithstanding any such finding.
ARTICLE VIII
(a) No action required or permitted to be taken at any annual or
special meeting of the shareholders of the Corporation may be taken without a
meeting, and the power of the shareholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
(b) In addition to any other provision of these Articles, there shall
be required to amend, alter, change or repeal any of the provisions of this
Article VIII the affirmative vote of the holders of 80% of all classes of stock
of the Corporation entitled to vote in elections of Directors, considered for
this purpose as one class.
ARTICLE IX
The street address of the Corporation's registered office and the name
of its registered agent at such address is as follows:
Name of Registered Agent Address of Registered Agent
------------------------ ---------------------------
Marc R. Tiller Dycom Industries, Inc.
4440 PGA Boulevard, Suite 500
Palm Beach Gardens, Florida 33410
IN WITNESS WHEREOF, the undersigned, for the purpose of restating the
Corporation's Articles of Incorporation, has executed these Restated Articles of
Incorporation as of May 22, 2002.
17