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EXHIBIT 4(a)
COMPOSITE RESTATED
ARTICLES OF INCORPORATION
OF
RUSSELL CORPORATION
1. The name of the corporation is Russell Corporation.
2. The period of its duration is perpetual.
3. The purpose or purposes for which the corporation is
organized are the transaction of any or all lawful business for which
corporations may be incorporated under the Alabama Business Corporation Act,
including, but not limited to, the manufacture and sale of textile products.
4. (a) The aggregate number of shares of capital
stock which the corporation shall have authority to issue is one hundred sixty
million (160,000,000) shares, of which ten million (10,000,000) shares, par
value $.01 per share, are to be preferred stock (hereinafter called "Preferred
Stock"), and one hundred fifty million (150,000,000) shares, par value $.01 per
share, are to be common stock (hereinafter called "Common Stock").
(b) The Preferred Stock may be issued in such one
or more series as shall from time to time be created and authorized to be
issued by the board of directors of the corporation as hereinafter provided.
The board of directors is hereby expressly authorized, by
resolution or resolutions from time to time adopted providing for the issuance
of Preferred Stock, to fix and determine, to the extent not fixed by the
provisions hereinafter set forth, the relative rights and preferences of the
shares of each series of Preferred Stock, including (but without limiting the
generality of the foregoing) any of the following with respect to which the
board of directors may make specific provisions:
(i) the distinctive name and any serial designations;
(ii) the annual dividend rate or rates and the dividend
payment dates;
(iii) with respect to the declaration and payment of
dividends upon each series of the Preferred Stock, whether such
dividends are to be cumulative or noncumulative, preferred,
subordinate or equal to dividends declared and paid upon other series
of the Preferred Stock or upon any other shares of stock of the
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corporation, and the participating or other special rights, if any, of
such dividends;
(iv) the redemption provisions, if any, with respect to
any series, and, if any series is subject to redemption, the manner
and time of redemption and the redemption price or prices;
(v) the amount or amounts of preferential or other
payment to which any series of Preferred Stock is entitled over any
other series of Preferred Stock or over the Common Stock on voluntary
or involuntary liquidation, dissolution or winding-up, subject to the
provisions set forth in paragraph (d) (ii) of this Article 4;
(vi) any sinking fund or other retirement provisions and
the extent to which the charges therefor are to have priority over the
payment of dividends on or the making of sinking fund or other like
retirement provisions for shares of any other series of Preferred
Stock or for shares of the Common Stock;
(vii) any conversion, exchange, purchase or other
privileges to acquire shares of any other series of Preferred Stock or
of the Common Stock;
(viii) the number of shares of such series; and
(ix) the voting rights, if any, of such series, subject to
the provisions set forth in paragraph (d) (i) of this Article 4.
Each share of each series of Preferred Stock shall have the
same relative rights and be identical in all respects with all the other shares
of the same series.
Before the corporation shall issue any shares of Preferred
Stock of any series authorized as hereinbefore provided, a statement setting
forth a copy of the resolution or resolutions with respect to such series
adopted by the board of directors of the corporation pursuant to the foregoing
authority vested in the board of directors shall be made, filed and recorded in
accordance with the then applicable requirements, if any, of the laws of the
State of Alabama, or, if no statement is then so required, a certificate shall
be signed and acknowledged on behalf of the corporation by its Chairman of the
Board, President or a Vice-President and its corporate seal shall be affixed
thereto and attested by its Secretary or an Assistant Secretary and such
certificate shall be filed and kept on file at the principal office of the
corporation in the State of Alabama and in such other place or places as the
board of directors shall designate.
(c) The authority of the board of directors to
provide for the issuance of any shares of the corporation's stock shall
include, but shall not be limited to, authority to issue shares of stock of the
corporation for any purpose and in any manner (including issuance pursuant to
rights, warrants, or other options) permitted by law, for delivery as all or
part of the consideration for or in connection with the acquisition of all or
part of the stock of another corporation or of all or part of the assets of
another corporation or enterprise, irrespective of
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the amount by which the issuance of such stock shall increase the number of
shares outstanding (but not in excess of the number of shares authorized).
(d) The following relative rights and preferences
of the capital stock of the corporation are fixed as follows:
(i) Voting Rights.
(A) Common Stock. At all elections of directors of the
corporation, and in respect of all other matters as to which the vote
or consent of shareholders of the corporation shall be required to be
taken, the holders of the Common Stock shall be entitled to one (1)
vote for each share held by them.
(B) Preferred Stock. The holders of each series of the
Preferred Stock shall have such voting rights as may be fixed by
resolution or resolutions of the board of directors providing for the
issuance of each such series.
(ii) Liquidation, Dissolution, etc. In the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the
corporation, the assets of the corporation available for distribution to the
shareholders (whether from capital or surplus) shall be distributed among those
of the respective series of the outstanding Preferred Stock, if any, as may be
entitled to any preferential amounts and among the respective holders thereof
in accordance with the relative rights and preferences, if any, fixed and
determined for each such series and the holders thereof by resolution or
resolutions of the board of directors providing for the issue of each such
series of the Preferred Stock; and after payment in full of the amounts payable
in respect of the Preferred Stock, if any, the holders of any series of the
outstanding Preferred Stock who are not entitled to preferential treatment
pursuant to resolutions of the board of directors providing for the issue
thereof and the holders of the outstanding Common Stock shall be entitled (to
the exclusion of the holders of any series of the outstanding Preferred Stock
entitled to preferential treatment pursuant to resolutions of the board of
directors providing for the issue thereof) to share ratably in all the
remaining assets of the corporation available for distribution to its
shareholders.
A merger, consolidation or reorganization of the corporation
with or into one or more corporations, or a sale, lease or other transfer of
all or substantially all the assets of the corporation, that does not result in
the termination of the enterprise and distribution of the assets to
shareholders, shall not be deemed to constitute a liquidation, dissolution or
winding-up of the corporation within the meaning of this paragraph (d)(ii),
notwithstanding the fact that the corporation may cease to exist or may
surrender its Restated Articles of Incorporation.
(iii) Dividends and Other Distributions. Dividends on any
stock of the corporation shall be payable only out of earnings, surplus or
assets of the corporation legally available for the payment of such dividends
and only as and when declared by the board of directors. The board of
directors of the corporation may, from time to time, distribute to the
shareholders of the corporation out of the capital surplus of the corporation a
portion of the assets of the corporation to the extent and in the manner
provided by law.
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(e) The corporation shall have the right to
purchase, take, receive or otherwise acquire, hold, own, pledge and transfer or
otherwise dispose of its own shares. Purchases by the corporation of its own
shares, whether direct or indirect, may be made to the extent of unreserved and
unrestricted earned surplus and capital surplus of the corporation available
therefor.
(f) No holder of any share or shares of any class
of stock of the corporation shall have any preemptive right to subscribe for
any shares of stock of any class of the corporation now or hereafter authorized
or for any securities convertible into or carrying any optional rights to
purchase or subscribe for any shares of stock of any class of the corporation
now or hereafter authorized.
5. The mailing address of the registered office of the
corporation is Russell Corporation, P. O. Box 272, Alexander City, Alabama
35010, and the name of its registered agent at such address is James D. Nabors.
6. The number of directors constituting the present
board of directors of the corporation is eleven, and the names and addresses of
the persons who are serving as directors until the next annual meeting of
shareholders or until their successors are elected and qualify are as follows:
Name Address
E. C. Gwaltney Russell Corporation
P. O. Box 272
Alexander City, Alabama 35010
Dwight L. Carlisle, Jr. Russell Corporation
P. O. Box 272
Alexander City, Alabama 35010
Frank K. Hall Russell Corporation
P. O. Box 272
Alexander City, Alabama 35010
George W. Hardy Russell Corporation
P. O. Box 272
Alexander City, Alabama 35010
Emil Hess Russell Corporation
P. O Box 272
Alexander City, Alabama 35010
H. Scott Howell Russell Corporation
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Name Address
P. O. Box 272
Alexander City, Alabama 35010
Glenn Ireland, II Russell Corporation
P. O. Box 272
Alexander City, Alabama 35010
Crawford T. Johnson, III Russell Corporation
P. O. Box 272
Alexander City, Alabama 35010
Finis Morgan Russell Corporation
P. O. Box 272
Alexander City, Alabama 35010
Benjamin Russell Russell Corporation
P. O. Box 272
Alexander City, Alabama 35010
John R. Thomas Russell Corporation
P. O. Box 272
Alexander City, Alabama 35010
7. The names and addresses of the original incorporators are as follows:
Name Address
B. Russell Russell Corporation
P. O. Box 272
Alexander City, Alabama 35010
T. C. Russell Russell Corporation
P. O. Box 272
Alexander City, Alabama 35010
O. J. Thomas Russell Corporation
P. O. Box 272
Alexander City, Alabama 35010
J. H. Henderson Russell Corporation
P. O. Box 272
Alexander City, Alabama 35010
A. L. Harlan Russell Corporation
P. O. Box 272
Alexander City, Alabama 35010
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8. (a) Number, Election and Terms. All corporate
powers shall be exercised by or under the authority of, and the business and
affairs of the corporation shall be managed under the direction of, a board of
directors which, except as otherwise fixed by or pursuant to the provisions of
Article 4 hereof relating to the rights of the holders of any series of
Preferred Stock to elect additional directors under specified circumstances,
shall consist of not less than nine nor more than fifteen persons. The exact
number of directors within the minimum and maximum limitations specified in the
preceding sentence shall be fixed from time to time by the board of directors
pursuant to a resolution adopted by a majority of the entire board of
directors. At the annual meeting of shareholders of the corporation held in
1988, the directors shall be divided into three classes, as nearly equal in
number as possible, with the term of office of the first class of directors to
expire at the annual meeting of shareholders of the corporation to be held in
1989, the term of office of the second class of directors to expire at the
annual meeting of shareholders of the corporation to be held in 1990 and the
term of office of the third class of directors to expire at the annual meeting
of shareholders of the corporation to be held in 1991. At each annual meeting
of shareholders of the corporation following such initial classification and
election, and except as otherwise so fixed by or pursuant to the provisions of
Article 4 hereof relating to the rights of the holders of any series of
Preferred Stock to elect additional directors under specified circumstances and
except as provided below in this Article 8 in the case of electing a successor
to a director elected by the board of directors to fill a vacancy occurring in
the membership of the board of directors, directors elected to succeed those
directors whose terms expire at such annual meeting shall be elected for a term
of office to expire at the third succeeding annual meeting of shareholders of
the corporation after their election.
(b) Vacancies and Newly Created
Directorships. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, any vacancy occurring in the board
of directors may be filled by the affirmative vote of a majority of
the remaining directors though less than a quorum of the board of
directors. A director so elected to fill a vacancy shall be elected
to serve until the next annual meeting of shareholders, at which time
a director shall be elected to fill the unexpired portion of the term
of office of the director whose successor was elected by the remaining
directors. Any directorship to be filled by reason of an increase in
the number of directors shall be filled by election at an annual
meeting or at a special meeting of shareholders called for that
purpose, unless applicable law then permits such directorship to be
filled by the affirmative vote of a majority of the remaining
directors (even though less than a quorum of the board of directors).
No decrease in the number of directors constituting the board of
directors shall shorten the term of any incumbent director.
(c) Continuance in Office.
Notwithstanding the foregoing provisions of this Article 8, any
director whose term of office has expired shall continue to hold
office until his successor shall be elected and qualify.
(d) Removal. Subject to the rights of
the holders of any series of Preferred Stock then outstanding, any
director, or the entire board of
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directors, may be removed from office at any time, without cause, but
only by the affirmative vote of at least seventy-five percent (75%) of
the total number of votes entitled to be cast by the holders of all of
the shares of capital stock of the corporation then entitled to vote
generally in the election of directors. The holder of each share of
capital stock entitled to vote thereon shall be entitled to cast the
same number of votes as the holder of such shares is entitled to cast
generally in the election of each director. Subject to the rights of
the holders of any series of Preferred Stock then outstanding, a
director, or the entire board of directors, may be removed from office
at any time, with cause, in the manner provided by law.
(e) Amendment, Repeal, etc.
Notwithstanding any other provisions of these Restated Articles of
Incorporation or the Bylaws of the corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, these
Restated Articles of Incorporation or the Bylaws of the corporation),
the affirmative vote of at least seventy-five percent (75%) of the
total number of votes entitled to be cast by the holders of all of the
shares of capital stock of the corporation then entitled to vote
generally in the election of directors shall be required to amend,
alter, change or repeal, or to adopt any provision as part of these
Restated Articles of Incorporation inconsistent with, this Article 8.
The holder of each share of capital stock entitled to vote thereon
shall be entitled to cast the same number of votes as the holder of
such shares is entitled to cast generally in the election of each
director.
9. Certain Provisions Respecting Business Combinations:
Section 9.01. Definitions. For the purposes of this
Article 9:
(a) An "Affiliate" of, or a person "Affiliated" with, 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.
(b) "Announcement Date" means, with respect to any Business
Combination, the date of the first public announcement of such Business
Combination.
(c) "Associate," when used to indicate a relationship with any
person, means (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 10 percent or more of any class of
equity securities, (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
who is a director or officer of the corporation or any of its parents or
subsidiaries.
(d) A person shall be a "beneficial owner" of any Voting Stock:
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(i) which such person or any of its Affiliates or
Associates beneficially owns, directly or indirectly; or
(ii) which such person or any of its Affiliates or
Associates has (A) the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise,
or (B) the right to vote or direct the vote pursuant to any agreement,
arrangement or understanding; or
(iii) which is beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of
capital stock of the corporation;
provided, however, that no director or officer of the corporation (nor any
Affiliate or Associate of such director or officer) shall, solely by reason of
any or all of such directors or officers acting in their capacities as such, be
deemed the "beneficial owner" of any shares of Voting Stock that are
beneficially owned by any other such director or officer.
(e) For the purposes of determining whether a person is an
Interested Shareholder pursuant to paragraph (1) of this Section 9.01, the
number of shares of Voting Stock deemed to be outstanding shall include shares
deemed owned by the Interested Shareholder through application of paragraph (d)
of this Section 9.01, but shall not include any other shares of Voting Stock
which may be issuable pursuant to any agreement, or upon exercise of conversion
rights, warrants or options, or otherwise.
(f) "Board" means the board of directors of the corporation.
(g) A "Business Combination" shall mean any one or more of the
following:
(i) any merger or consolidation of the corporation or any
Subsidiary with or into (A) any Interested Shareholder or (B) any
other corporation (whether or not itself an Interested Shareholder)
which is, or after such merger or consolidation would be, an Affiliate
of an Interested Shareholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of transactions)
to or with any Interested Shareholder or any Affiliate of any
Interested Shareholder of any assets of the corporation or any
Subsidiary having an aggregate Fair Market Value of $1,000,000 or
more; or
(iii) the issuance, pledge, transfer or other disposition by
the corporation or any Subsidiary (in one transaction or a series of
transactions) of any securities of the corporation or any Subsidiary
to any Interested Shareholder or any Affiliate of any Interested
Shareholder in exchange for cash, securities or other property
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(or a combination thereof) having an aggregate Fair Market Value of
$1,000,000 or more; or
(iv) the adoption of any plan or proposal for the
liquidation or dissolution of the corporation proposed by or on behalf
of an Interested Shareholder or an Affiliate of any Interested
Shareholder; or
(v) any reclassification of securities (including any
reverse stock split), or recapitalization of the corporation, or any
merger or consolidation of the corporation with any of its
Subsidiaries or any similar transaction (whether or not with or into
or otherwise involving an Interested Shareholder) which has the
effect, directly or indirectly, of increasing the proportionate share
of the outstanding shares of any class of equity securities, or
securities convertible into equity securities, of the corporation or
any Subsidiary, including, without limitation, any class or series of
Protected Stock, which is directly or indirectly owned by any
Interested Shareholder or any Affiliate of any Interested Shareholder;
or
(vi) any agreement, contract or other arrangement
providing for any one or more of the actions specified in the
foregoing clauses (i) through (v).
(h) "Consummation Date" means, with respect to any Business
Combination, the date on which such Business Combination is effected.
(i) "Determination Date" means, with respect to any Interested
Shareholder, the date on which such Interested Shareholder first became an
Interested Shareholder.
(j) "Disinterested Director" means any member of the Board who is
not an Affiliate, nominee or representative of the Interested Shareholder and
was a member of the Board prior to the time that the Interested Shareholder
became an Interested Shareholder, and any successor of a Disinterested Director
who is a member of the Board and who is not an Affiliate, nominee or
representative of the Interested Shareholder and was recommended or elected to
succeed a Disinterested Director by a majority of Disinterested Directors on
the Board at the time of such recommendation or election.
(k) "Fair Market Value" means (i) in the case of stock, the
highest closing sale price during the thirty-day period immediately preceding
the date in question of a share of such stock on the Composite Tape for New
York Stock Exchange, Inc. Listed Stocks, or, if such stock is not quoted on
the Composite Tape, on the New York Stock Exchange, Inc., or, if such stock is
not listed on the New York Stock Exchange, Inc., on the principal United States
securities exchange registered under the Securities Exchange Act of 1934 on
which such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to a share of such
stock during the thirty-day period preceding the date in question as reported
by the National Association of Securities Dealers, Inc. Automated Quotations
System or any system then in use, or if no such quotation is available, the
fair market value on the date in question of a share of such stock as
determined in good faith by a majority of the Disinterested Directors; and (ii)
in the case of property other than cash or stock, the fair market
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value of such property on the date in question as determined in good faith by a
majority of the Disinterested Directors.
(l) "Interested Shareholder" shall mean, in respect of any
Business Combination, any person (other than the corporation or any
wholly-owned Subsidiary and other than any profit-sharing, employee stock
ownership or other employee benefit plan of the corporation or any wholly-owned
Subsidiary or any person organized, appointed or established by the corporation
or any wholly-owned Subsidiary for or pursuant to the terms of any such plan)
who or which, as of the date of the first public announcement of such Business
Combination, or on the day immediately prior to the consummation of any such
Business Combination:
(i) is the beneficial owner, directly or indirectly, of
Voting Stock entitled to cast ten percent or more of the total number
of votes entitled to be cast in respect of all the outstanding shares
of Voting Stock in any vote of shareholders which may be taken
pursuant to this Article 9; or
(ii) is an Affiliate of the corporation and at any time
within two years prior thereto was the beneficial owner, directly or
indirectly, of Voting Stock then entitled to cast ten percent or more
of the total number of votes entitled to be cast in respect of all the
outstanding shares of Voting Stock in any vote of shareholders which
may be taken pursuant to this Article 9; or
(iii) is an assignee of or has otherwise succeeded to any
shares of Voting Stock of the corporation which were at any time
within the two-year period immediately prior to the date in question
beneficially owned by any Interested Shareholder, if 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;
provided, however, there shall be disregarded in determining whether a person
is an Interested Shareholder in respect of any Business Combination the
beneficial ownership, both direct and indirect, of the voting power of the
Voting Stock owned beneficially by such person or an ancestor of such person on
March 9,1988, which for purposes of this paragraph (l) shall include any
beneficial ownership of Voting Stock resulting from stock splits (including
reverse stock splits), stock dividends or recapitalizations of such Voting
Stock occurring subsequent to March 9,1988, unless such person has acquired
subsequent to March 9, 1988, other than by gift, devise, bequest or intestate
succession, beneficial ownership, either direct or indirect, of one percent
(1%) or more of the voting power of the outstanding Voting Stock in addition to
the Voting Stock beneficially owned by such person or such person's ancestor on
March 9,1988.
(m) A "person" shall mean any individual, firm, corporation or
other entity.
(n) "Protected Stock" means all Voting Stock and all other shares
of capital stock of the corporation having, or which may have upon the
happening of some contingency, the right to vote for the election of some or
all of the directors of the corporation, regardless of whether at the time in
question such shares then have a present right to so vote.
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(o) "Subsidiary" means any corporation of which a majority of any
class of equity security is owned, directly or indirectly, by the corporation.
(p) "Voting Stock" means, at any time, all shares of capital stock
of the corporation entitled to vote generally in the election of directors,
which shares shall be considered for the purpose of any vote required by this
Article 9 as, and shall vote together in any such vote as, one class. In any
vote required by this Article 9, the holder of each share of Voting Stock shall
be entitled to cast with respect to such share the same number of votes as such
holder could cast generally in the election of each director with respect to
such share.
(q) In the event of any Business Combination in which the
corporation survives, the phrase "consideration other than cash to be received"
as used in clauses (i) and (ii) of paragraph (b) of Section 9.03 of this
Article 9 shall include the shares of Common Stock and/or the shares of any
other class of outstanding Protected Stock retained by the holders of such
shares.
Section 9.02. Higher Vote for Certain Business Combinations.
In addition to any affirmative vote required by law or these Restated Articles
of Incorporation, and except as otherwise expressly provided in Section 9.03 of
this Article 9, any Business Combination shall require the affirmative vote of
at least seventy-five percent (75%) of the total number of votes entitled to be
cast in respect of all the outstanding shares of Voting Stock. Such
affirmative vote shall be required notwithstanding the fact that no vote may be
required, or that some lesser percentage or separate class vote may be
specified, by law or under the rules of, or in any agreement with, any United
States securities exchange registered under the Securities Exchange Act of
1934, or any successor act thereto, on which any of the Voting Stock is listed,
or otherwise.
Section 9.03. When Higher Vote Is Not Required. The
provisions of Section 9.02 of this Article 9 shall not be applicable to any
particular Business Combination, and such Business Combination shall require
only such affirmative vote, if any, as is required by law and any other Article
of these Restated Articles of Incorporation, if all of the conditions specified
in either of the following paragraphs (a) and (b) are met:
(a) Approval by the Disinterested Directors. The Business
Combination shall have been approved, either specifically or as a transaction
which is within an approved category of transactions, by a majority of the
Disinterested Directors (whether such approval is made prior to or subsequent
to the acquisition of, or announcement or public disclosure of the intention to
acquire, beneficial ownership of the Voting Stock that caused or will cause the
Interested Shareholder to become an Interested Shareholder).
(b) Price and Procedure Requirements. All of the following
conditions shall have been met:
(i) Common Stock. The aggregate amount of the cash and
the Fair Market Value as of the Consummation Date of consideration
other than cash to be received by holders of the Common Stock of the
corporation in such Business Combination, computed on a per share
basis, shall be at least equal to the higher of the following:
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(A) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by the Interested Shareholder for any shares of
Common Stock acquired by the Interested Shareholder (I) within
the two-year period immediately prior to the Announcement Date
or (II) in the transaction or transactions by which the
Interested Shareholder became an Interested Shareholder, as
adjusted for any subsequent stock split, stock dividend,
subdivision or reclassification with respect to the Common
Stock, whichever is higher; or
(B) the Fair Market Value per share of the Common Stock on the
Announcement Date or the Determination Date, as adjusted for
any subsequent stock split, stock dividend, subdivision or
reclassification with respect to the Common Stock, whichever
is higher.
(ii) Protected Stock. The aggregate amount of the
cash and the Fair Market Value as of the Consummation Date of
consideration other than cash to be received per share by holders of
shares of any other class of outstanding Protected Stock regardless of
whether the Interested Shareholder has previously acquired any shares
of a particular class of such Protected Stock shall be at least equal
to the highest of the following:
(A) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by the Interested Shareholder for any shares of
such class of Protected Stock acquired by the Interested
Shareholder (I) within the two-year period immediately prior
to the Announcement Date or (II) in the transaction or
transactions by which the Interested Shareholder became an
Interested Shareholder, as adjusted for any subsequent stock
split, stock dividend, subdivision or reclassification with
respect to such Protected Stock, whichever is higher;
(B) the highest preferential amount per share to which the holders
of shares of such class of Protected Stock are entitled in the
event of any voluntary or involuntary liquidation, dissolution
or winding up of the corporation, regardless of whether the
Business Combination to be consummated constitutes such an
event; or
(C) the Fair Market Value per share of such class of Protected
Stock on the Announcement Date or the Determination Date, as
adjusted for any subsequent stock split, stock dividend,
subdivision or reclassification with respect to such Protected
Stock, whichever is higher.
(iii) Form of Consideration. The consideration to be
received by holders of a particular class or series of outstanding
Protected Stock (including Common Stock) shall be in cash or in the
same form paid by or on behalf of the Interested Shareholder for
shares of such class of Protected Stock prior to the
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Consummation Date. If there have been varying forms of the
consideration so paid for shares of any class of Protected Stock, the
form of consideration to be received by the holders of such class of
Protected Stock shall be either cash or the form used to acquire the
largest number of shares of such class of Protected Stock previously
so acquired.
(iv) Maintain Dividends. After such Interested
Shareholder has become an Interested Shareholder and prior to the
consummation of such Business Combination: (A) except as approved by a
majority of the Disinterested Directors, there shall have been no
failure to declare and pay at the regular date therefor any full
quarterly dividends (whether or not cumulative) on any outstanding
Preferred Stock of the corporation; and (B) there shall have been (I)
no reduction in the annual rate of dividends paid on the Common Stock
except as necessary to reflect any subdivision of the Common Stock,
except as approved by a majority of the Disinterested Directors, and
(II) an increase in such annual rate of dividends as necessary to
reflect any reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction which has
the effect of reducing the number of outstanding shares of the Common
Stock unless the failure so to increase such annual rate is approved
by a majority of the Disinterested Directors.
(v) Acquisition of Additional Shares. After such
Interested Shareholder has become an Interested Shareholder and prior
to the consummation of such Business Combination, such Interested
Shareholder shall not have become the beneficial owner of any
additional shares of Voting Stock except (A) as part of the
transaction which results in such Interested Shareholder becoming an
Interested Shareholder or (B) in a transaction which would not result
in any increase in the percentage of beneficial ownership by the
Interested Shareholder of any class or series of Voting Stock.
(vi) No Disproportionate Benefits. After such Interested
Shareholder has become an Interested Shareholder, such Interested
Shareholder shall not have received the benefit, directly or
indirectly (except proportionately as a shareholder), of any loans,
advances, guarantees, pledges or other financial assistance or any tax
credits or other tax advantages provided by the corporation, whether
in anticipation of or in connection with such Business Combination or
otherwise.
(vii) Furnish Information. A proxy or information
statement describing the proposed Business Combination and complying
with the requirements of the Securities Exchange Act of 1934 and the
rules and regulations thereunder (or any subsequent provisions
replacing such Act, rules or regulations) shall be mailed to all
shareholders of the corporation at least thirty days prior to the
consummation of such Business Combination (whether or not such proxy
or information statement is required to be mailed pursuant to such Act
or any such subsequent provisions). Such proxy or information
statement shall contain on the first page thereof, in a prominent
place, any statement as to the advisability (or
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inadvisability) of the Business Combination that the Disinterested
Directors, or any of them, may choose to make.
(viii) Absence of Certain Changes. Such Interested
Shareholder shall not have made any substantial change in the business
or equity capital structure of the corporation without the approval of
a majority of the Disinterested Directors.
Section 9.04. Powers of Board of Directors. A majority of
the Disinterested Directors of the corporation shall have the power and duty to
determine for the purposes of this Article 9 on the basis of the information
known to them after reasonable inquiry, (1) the number of shares of Voting
Stock beneficially owned by any person, (2) whether a person is an Interested
Shareholder or is an Affiliate or Associate of another person, (3) whether a
person has an agreement, arrangement or understanding with another as to the
matters referred to in paragraph (d) of Section 9.01 of this Article 9, (4)
whether the assets which are the subject of any Business Combination have, or
the consideration to be received for the issuance or transfer of securities by
the corporation or any Subsidiary in any Business Combination has, an aggregate
Fair Market Value of $1,000,000 or more, or (5) whether the requirements of
paragraph (a) or (b) of Section 9.03 of this Article 9 have been met with
respect to any Business Combination.
Section 9.05. No Effect on Fiduciary Obligations of
Interested Shareholders. Nothing contained in this Article 9 shall be
construed to relieve any Interested Shareholder from any fiduciary obligation
imposed by law.
Section 9.06. No Fiduciary Duty Imposed on Board. The fact
that any Business Combination complies with the foregoing sections of this
Article 9 shall not be construed to impose any fiduciary duty, obligation or
responsibility on the Board, or any member thereof, to approve such Business
Combination or recommend its adoption or approval to the shareholders of the
corporation nor shall such compliance limit, prohibit or otherwise restrict in
any manner the Board, or any member thereof, with respect to evaluations of or
actions and responses taken with respect to such Business Combination.
Section 9.07. Amendment, Repeal, Etc. Notwithstanding any
other provisions of these Restated Articles of Incorporation or the Bylaws of
the corporation (and notwithstanding the fact that some lesser percentage may
be specified by law, these Restated Articles of Incorporation or the Bylaws of
the corporation), the affirmative vote of at least seventy-five percent (75%)
of the total number of votes entitled to be cast in respect of all of the
outstanding shares of Voting Stock shall be required to amend, alter, change or
repeal, or to adopt any provision as part of these Restated Articles of
Incorporation inconsistent with, this Article 9.
Each article set forth above amends the corresponding
provision of the original Articles of Incorporation as theretofore amended, and
the Restated Articles of Incorporation, which amend in its entirety the
original Articles of Incorporation of the corporation and all amendments
thereto, supersede the original Articles of Incorporation and all amendments
thereto.
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Dated this 29th day of April, 1982.
By /s/ DWIGHT L. CARLISLE, JR.
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Its President
By /s/ JAMES D. NABORS
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Its Secretary
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