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EXHIBIT 3.1
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
MAXXIS GROUP, INC.
ARTICLE I
The name of the corporation is "Maxxis Group, Inc." The principal
executive office of the corporation is 1901 Montreal Road, Suite 108, Tucker,
Georgia 30084.
ARTICLE II
The corporation shall have authority to issue not more than 210,000,000
shares of capital stock which shall consist of:
(i) 15,000,000 shares of Class A Common Stock, no par value
per share (the "Class A Common Stock"); and
(ii) 85,000,000 shares of Class B Common Stock, no par value
per share (the "Class B Common Stock," and together with the Class A
Common Stock, the "Common Stock"); and
(iii) 10,000,000 shares of preferred stock, no par value per
share (the "Preferred Stock").
A. Common Stock.
The holders of Class A Common Stock and Class B Common Stock shall have
the following specific powers, designations, preferences and relative
participating rights and privileges:
(a) Voting. Each holder of Class A Common Stock shall be entitled to
ten votes per share, whether in person or by proxy, for each share of Class A
Common Stock outstanding in his name on the transfer books of the corporation.
Each holder of Class B Common Stock shall be entitled to one vote per share,
whether in person or by proxy, for each share of Class B Common Stock
outstanding in his name on the transfer books of the corporation. Except as
otherwise provided by the Georgia Business Corporation Code, as amended (the
"Act"), or these Amended and Restated Articles of Incorporation, (i) the holders
of Class A Common Stock and Class B Common Stock shall vote together as a
combined class on all matters to be voted on by the shareholders of the
corporation, and (ii) a majority of the votes entitled to be cast on a matter as
determined for the combined class shall constitute a quorum of the single class
for action on that matter.
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(b) Conversion. On the closing date of an Initial Public Offering, each
share of Class A Common Stock then outstanding shall automatically be converted
into one fully paid and nonassessable share of Class B Common Stock. Upon such
conversion, the certificates which theretofore evidenced the shares of Class A
Common Stock shall be deemed to evidence shares of Class B Common Stock until
such time, if any, as new certificates for the shares of Class B Common Stock
are issued pursuant to procedures established by the corporation for such
purpose. For purposes hereof, "Initial Public Offering" shall mean a public
offering of the corporation's capital stock for cash which is offered and sold
in a transaction that is registered under the Securities Act of 1933, as
amended, and through one or more underwriters, pursuant to an underwriting
agreement between the corporation and such underwriters, resulting in aggregate
net proceeds of at least $5,000,000 to the corporation.
(c) Dividends. Holders of the Common Stock shall be entitled to receive
such dividends and other distributions in cash, stock or property of the
corporation as may be declared thereon by the Board of Directors from time to
time out of assets or funds of the corporation legally available therefor.
(d) Ranking. In the event of any dissolution, liquidation or winding up
of the corporation, whether voluntary or involuntary, after there shall have
been paid, or set aside for payment, to the holders of shares of any class
having preference over the Common Stock in the event of dissolution, liquidation
or winding up, the full preferential amounts to which they are respectively
entitled, then the holders of shares of Common Stock shall participate equally
with the holders of shares of any other class or series of stock entitled to
participate with the Common Stock in the event of dissolution, liquidation or
winding up, in the distribution of any remaining assets of the corporation.
B. Preferred Stock.
In addition to the Common Stock, the corporation shall have the
authority, exercisable by its Board of Directors, to issue up to 10,000,000
shares of Preferred Stock, any part or all of which shares of Preferred Stock
may be established and designated from time to time by the Board of Directors by
filing an amendment to these Amended and Restated Articles of Incorporation,
which shall be effective without shareholder action, in accordance with the
appropriate provisions of the Act, and any amendment or supplement thereto (a
"Preferred Stock Designation"), in such series and with such preferences,
limitations and relative rights as may be determined by the Board of Directors.
The number of authorized shares of Preferred Stock may be increased or decreased
(but not below the number of shares thereof then outstanding) by the affirmative
vote of a majority of the votes of the Common Stock, without a vote of the
holders of the shares of Preferred Stock, or of any series thereof, unless a
vote of any such holders is required by law or pursuant to the Preferred Stock
Designation or Preferred Stock Designations establishing the series of Preferred
Stock.
ARTICLE III
The corporation shall have not more than fifteen directors, and the
number of directors shall be set by the Board of Directors as set forth in the
corporation's Amended and Restated Bylaws. The Board of Directors shall be
divided into three classes to be known as Class I, Class
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II, and Class III, which shall be as nearly equal in number as possible. Except
in case of death, resignation, disqualification or removal for cause, each
director shall serve for a term ending on the date of the third annual meeting
of shareholders following the annual meeting at which the director was elected;
provided, however, that each initial director in Class I shall hold office until
the first annual meeting of shareholders after his election; each initial
director in Class II shall hold office until the second annual meeting of
shareholders after his election; and each initial director in Class III shall
hold office until the third annual meeting of shareholders after his election.
Despite the expiration of a director's term, he shall continue to serve until
his successor, if there is to be any, has been elected and qualified. In the
event of any increase or decrease in the authorized number of directors, the
newly created or eliminated directorships resulting from such an increase or
decrease shall be apportioned among the three classes of directors so that the
three classes remain as nearly equal in size as possible; provided, however,
that there shall be no classification of additional directors elected by the
Board of Directors until the next meeting of shareholders called for the
purposes of electing directors, at which meeting the terms of all such
additional directors shall expire, and such additional directors positions, if
they are to be continued, shall be apportioned among the classes of directors
and nominees therefor shall be submitted to the shareholders for their vote. Any
vacancy occurring on the Board of Directors, including a vacancy resulting from
an increase in the number of directors, may only be filled by the affirmative
vote of the remaining directors even if the remaining directors constitute less
than a quorum of the Board of Directors.
ARTICLE IV
No director of the corporation shall be personally liable for monetary
damages to the corporation or its shareholders for breach of the duty of care or
any other duty as a director, except that such liability shall not be eliminated
for:
(i) any appropriation, in violation of the director's
duties, of any business opportunity of the corporation;
(ii) acts or omissions which involve intentional misconduct
or a knowing violation of law;
(iii) liability under Section 14-2-832 (or any successor
provision or redesignation thereof) of the Act; and
(iv) any transaction from which the director received an
improper personal benefit.
If at any time the Act shall have been amended to authorize the further
elimination or limitation of the liability of a director, then the liability of
each director of the corporation shall be eliminated or limited to the fullest
extent permitted by the Act, as so amended, without further action by the
shareholders, unless the provisions of the Act, as amended, require further
action by the shareholders. Any repeal or modification of the foregoing
provisions of this Article IV shall not adversely affect the elimination or
limitation of liability or alleged liability pursuant hereto of any director of
the corporation for or with respect to any alleged act or omission of the
director occurring prior to such repeal or modification.
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ARTICLE V
All actions by the shareholders shall be taken at a meeting, with prior
notice which complies with the notice provisions of the corporation's Amended
and Restated Bylaws, and with a vote of the holders of the outstanding stock of
each voting group entitled to vote thereon.
ARTICLE VI
In discharging the duties of their respective positions and in
determining what is believed to be in the best interests of the corporation, the
Board of Directors, committees of the Board of Directors and individual
directors, in addition to considering the effects of any action on the
corporation or its shareholders, may consider the interests of the employees,
customers, suppliers and creditors of the corporation and its subsidiaries, the
communities in which offices or other establishments of the corporation and its
subsidiaries are located and all other factors such directors consider
pertinent; provided, however, that any such provision shall be deemed solely to
grant discretionary authority to directors and shall not be deemed to provide to
any constituency any right to be considered.
The amendments contained herein were duly approved by the written
consents of holders of a majority of the shares of the Class A and Class B
Common Stock of the corporation, voting as a single group, in accordance with
Section 14-2-1003 of the Georgia Business Corporation Code.
IN WITNESS WHEREOF, the undersigned has executed these Amended and
Restated Articles of Incorporation as of the 9th day of October, 1997.
/s/ Thomas O. Cordy
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Thomas O. Cordy
President and Chief Executive Officer