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EXHIBIT 3.1
RESTATED CHARTER
OF
FIRST AMERICAN CORPORATION
(herein sometimes the "Corporation")
AS RESTATED ON JANUARY 13, 1997
Pursuant to the provisions of Section 48-20-107 of the Tennessee Business
Corporation Act, the undersigned corporation adopts the following restated
charter (hereinafter the "Charter"):
ARTICLE I
The name of the corporation is First American Corporation.
ARTICLE II
The duration of the Corporation is perpetual.
ARTICLE III
The address of the principal office of the Corporation in the State of
Tennessee shall be First American Center, Nashville, Tennessee 37237, County of
Davidson.
ARTICLE IV
The Corporation is for profit.
ARTICLE V
A. The purpose for which the Corporation is organized is to transact the
business of a holding company with all of the powers granted generally to
corporations for profit by the Statutes of Tennessee, and without limiting in
any manner the scope and generality of the foregoing, the Corporation shall have
the following purposes and powers:
1. To acquire by purchase, subscription, or otherwise, and to receive,
hold, own, guarantee, sell, assign, exchange, transfer, mortgage, pledge, or
otherwise dispose of or deal in and with any and all securities, as such term is
hereinafter defined, issued or created by any corporation, firm, organization,
association or other entity, public or private, whether formed under the laws of
the United States of America or of any state, commonwealth, territory,
dependency or possession thereof, or of any foreign country or of any political
subdivision, territory, dependency, possession or municipality thereof, or
issued or created by the United States of America or any state or commonwealth
thereof of any foreign country, or by any agency, subdivision, territory,
dependency,
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possession or municipality of any of the foregoing, and as owner thereof to
possess and exercise all the rights, powers and privileges of ownership,
including the right to execute consents and vote thereon.
The term "securities" as used in this Charter shall mean any and
all notes, stocks, treasury stocks, bonds, debentures, evidences of
indebtedness, certificates of interest or participation in any profit-sharing
agreement, collateral-trust certificates, preorganization certificates or
subscriptions, transferable shares, investment contracts, voting trust
certificates, certificates of deposit for a security, fraction undivided
interests in oil, gas, or other mineral rights, or, in general, any interests or
instruments commonly known as "securities," or any and all certificates of
interest or participation in, temporary or interim certificates for, receipts
for, guaranties of, or warrants or rights to subscribe to or purchase, any of
the foregoing.
2. To make, establish and maintain investments in securities, and to
supervise and manage such investments.
3. To cause to be organized under the laws of the United States of
America or of any state, commonwealth, territory, dependency or possession
thereof, or of any foreign country or of any political subdivision, territory,
dependency, possession or municipality thereof, one or more corporations, firms,
organizations, associations or other entities and to cause the same to be
dissolved, wound up, liquidated, merged or consolidated.
4. To acquire by purchase or exchange, or by transfer to or by merger
or consolidation with the Corporation or any corporation, firm, organization,
association or other entity owned or controlled, directly or indirectly, by the
Corporation, or to otherwise acquire, the whole or any part of the business,
good will, rights, or other assets of any corporation, firm, organization,
association or other entity, to operate and/or carry on the business of same,
and to undertake or assume in connection therewith the whole or any part of the
liabilities and obligations thereof, to effect any such acquisition in whole or
in part by delivery of cash or other property, including securities issued by
the Corporation, or by any other lawful means.
5. To make loans and give other forms of credit, with or without
security, and to negotiate and make contracts and agreements in connection
therewith.
6. To aid by loan, subsidy, guaranty or in any other lawful manner any
corporation, firm, organization, association or other entity of which any
securities are in any manner directly or indirectly held by the Corporation or
in which the Corporation or any such corporation, firm, organization,
association or entity may be or become otherwise interested; to guarantee the
payment of dividends on any stock issued by any such corporation, firm,
organization, association or entity; to guarantee or, with or without recourse
against any such corporation, firm, organization, association or entity, to
assume the payment of the principal of, or the interest on, any obligations
issued or incurred by such corporation, firm, organization, association or
entity; to do any and all other acts and things for the enhancement, protection
or preservation of any securities which are in
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any manner, directly or indirectly, held, guaranteed or assumed by the
Corporation, and to do any and all acts and things designed to accomplish any
such purpose.
7. To borrow money for any business, object or purpose of the
Corporation from time to time, without limit as to amount; to issue any kind of
indebtedness, whether or not in connection with borrowing money, including
evidences of indebtedness convertible into stock of the Corporation, to secure
the payment of any evidence of indebtedness by the creation of any interest in
any of the property or rights of the Corporation, whether at that time owned or
thereafter acquired.
8. To render service, assistance, counsel and advice to, and to act as
representative or agent in any capacity (whether managing, operating, financial,
purchasing, selling, advertising or otherwise) of, any corporation, firm,
organization, association, or other entity.
B. The Corporation shall possess and may exercise all powers and privileges
necessary or convenient to effect any or all of the foregoing purposes, or to
further any or all of the foregoing powers, and the enumeration herein of any
specific purposes or powers shall not be held to limit or restrict in any manner
the exercise by the Corporation of the general powers now or hereafter conferred
by the laws of the State of Tennessee upon corporations formed under the General
Corporation Act of Tennessee.
ARTICLE VI
A. Authorized Shares. The maximum number of shares which the Corporation
shall have authority to issue is FIFTY MILLION (50,000,000) shares of common
stock with a par value of FIVE dollars ($5.00) per share and TWO MILLION FIVE
HUNDRED THOUSAND (2,500,000) shares of preferred stock without par value.
B. No Preemptive Rights. No shareholder of any class of stock of the
Corporation shall, because of his ownership of stock, have a preemptive or other
right to purchase, subscribe for, or take any part of any stock or any part of
the notes, debentures, bonds or other securities convertible into or carrying
options or warrants to purchase stock of the Corporation issued, optioned, or
sold by it after its incorporation. Any part of the capital stock and any part
of the notes, debentures, bonds, or other securities convertible into or
carrying options or warrants to purchase stock of the Corporation authorized by
this Charter or by an amendment thereto duly filed, may at any time be issued,
optioned for sale, and sold or disposed of by the Corporation pursuant to
resolution of its Board of Directors to such persons and upon such terms as may
to such Board seem proper without first offering such stock or securities or any
part thereof to existing shareholders.
C. Issuance of Preferred Stock in Series. The Board of Directors is
expressly authorized at any time, and from time to time, to provide for the
issuance of shares of preferred stock in one or more series, with such voting
powers, full or limited but not to exceed one vote per share, or without voting
powers and with such designations, preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, as shall be stated and expressed in the resolution or
resolutions providing for the issue thereof adopted by the Board of Directors,
and
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as are not stated and expressed in this Charter or any amendment thereto,
including (but without limiting the generality of the foregoing) the following:
(i) The designation of such series.
(ii) The dividend rate of such series, the conditions and dates upon
which such dividends shall be payable, the preference or relation which such
dividends shall bear to the dividends payable on any other class or classes or
of any other series of capital stock, and whether such dividends shall be
cumulative or noncumulative.
(iii) Whether the shares of such series shall be subject to redemption
by the Corporation, and, if made subject to such redemption, the times, prices
and other terms and conditions of such redemption.
(iv) The terms and amount of any sinking fund provided for the
purchase or redemption of the shares of such series.
(v) Whether or not the shares of such series shall be convertible into
or exchangeable for shares of any other class or classes or of any other series
of any other class or classes of capital stock of the Corporation, and, if
provision be made for conversion or exchange, the times, prices, rates,
adjustments, and other terms and conditions of such conversion or exchange.
(vi) The extent, if any, to which the holders of the shares of such
series shall be entitled to vote as a class or otherwise with respect to the
election of the directors or otherwise; provided, however, that in no event
shall any holder of any series of preferred stock be entitled to more than one
vote for each share of such preferred stock held by him.
(vii) The restrictions, if any, on the issue or reissue of any
additional preferred stock.
(viii) The rights of the holders of the shares of such series upon the
dissolution of, or upon the distribution of assets of, the Corporation.
D. $2.375 Cumulative Preferred Stock
1. Designation. The initial series of preferred stock without par value
shall be known and designated as $2.375 Cumulative Preferred Stock (hereinafter
referred to as the "Cumulative Preferred Stock"), and shall consist of THREE
HUNDRED THOUSAND (300,000) shares without par value and shall have the rights,
preferences and characteristics set forth below.
2. Dividends.
(a) The holders of shares of Cumulative Preferred Stock shall be
entitled to receive dividends at the rate of $2.375 per share per annum, when,
as and if declared by the Board of
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Directors out of funds legally available therefor. Dividends shall accrue from
the date of original issue and shall be payable on the first days of October,
January, April and July, commencing October 1, 1978. The record dates for
determining holders entitled to receive such dividends shall be such dates as
may be fixed by the Board of Directors.
(b) Dividends on the Cumulative Preferred Stock shall be
cumulative from the date of original issue. If such dividends shall not have
been paid, or declared and set apart for payment upon all outstanding shares of
Cumulative Preferred Stock, the deficiency shall be fully paid, or declared and
set apart for payment, before any dividends are paid or declared upon any shares
of Common stock or any class or series of stock ranking as to dividends or
assets junior to the Cumulative Preferred Stock. Whenever full cumulative
dividends on all outstanding shares of Cumulative Preferred Stock shall have
been paid, or declared and set apart for payment, the Board of Directors may
declare dividends upon the Common Stock or any other class or series of stock
junior to the Cumulative Preferred Stock, payable then or thereafter, and no
holder of Cumulative Preferred Stock shall be entitled to share therein by
virtue of such holding.
3. Liquidation. Upon any dissolution, liquidation or winding up of
the Corporation, whether voluntary or involuntary, the holders of the Cumulative
Preferred Stock shall be entitled to be paid from the assets (whether capital or
surplus) of the Corporation the following amounts:
(i) upon involuntary dissolution, liquidation or winding up, $25
per share;
(ii) upon voluntary dissolution, liquidation or winding up, an
amount per share equal to the optional redemption price prevailing on the date
on which such dissolution shall have become legally effective or such
liquidation or winding up shall have been authorized, or if such date shall be
prior to June 1, 1980, $26.75 per share;
plus, in every case, an amount equal to all accumulated and unpaid
dividends accrued to the date fixed for final distribution to such holders,
whether or not earned or declared, before any payment or distribution shall be
made to the holders of the Common Stock or any class or series ranking junior as
to dissolution, liquidation or winding up to the Cumulative Preferred Stock.
After payment in full of such amounts to the holders of the Cumulative Preferred
Stock, the holders of the Cumulative Preferred Stock, as such, shall have no
right or claim to any of the remaining assets of the Corporation, and the same
shall be distributed to the holders of the Common Stock and any other class or
series of stock junior as to dissolution, liquidation or winding up to the
Cumulative Preferred Stock in accordance with their respective rights.
4. Optional Redemption
(a) Subject to the provisions of this subsection D4, the
Corporation may redeem, on or after June 1, 1980, the Cumulative Preferred
Stock, or any part thereof, at the option of the Board of Directors, at the then
applicable optional redemption price plus an amount equal to all accumulated and
unpaid dividends accrued to the redemption date of the shares redeemed, whether
or not earned
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or declared, provided, however, that not less than (30) days nor more than (60)
days prior to the date fixed for redemption, (the "Redemption Date"), a notice
specifying the time and place of redemption and the redemption price shall be
given to the holders of record of the shares to be redeemed by publication of
such notice in one newspaper published and of general circulation in the City of
Nashville, Tennessee, and in one newspaper published and of general circulation
in the Borough of Manhattan, The City of New York and by mailing such notice to
such holders at their addresses, as the same appear upon the stock registry
books; provided, however, that if all shares of Cumulative Preferred Stock are
to be redeemed, no failure to mail such notice nor any defect therein or in the
mailing thereof shall affect the validity of such redemption.
(b) The optional redemption price of shares of Cumulative
Preferred Stock redeemed at the option of the Board of Directors shall be as
follows:
$26.75 if redeemed on or after June 1, 1980 and prior to June 1, 1981;
$26.50 if redeemed on or after June 1, 1981 and prior to June 1, 1982;
$26.25 if redeemed on or after June 1, 1982 and prior to June 1, 1983;
$26.00 if redeemed on or after June 1, 1983 and prior to June 1, 1984;
$25.75 if redeemed on or after June 1, 1984 and prior to June 1, 1985;
$25.50 if redeemed on or after June 1, 1985 and prior to June 1, 1986;
$25.25 if redeemed on or after June 1, 1986 and prior to June 1, 1987;
$25.00 if redeemed on or after June 1, 1987 or thereafter.
The optional redemption price, plus dividends accrued and unpaid to the
Redemption Date, shall be paid on the Redemption Date.
(c) If less than all outstanding shares of Cumulative Preferred
Stock are to be redeemed, and except as otherwise hereinafter required by the
provisions of this subsection D4, such redemption shall be pro rata from each
holder of record, provided that the Corporation shall not redeem a fraction of a
share. If, on a strictly pro rata basis, a record holder would otherwise be
entitled to have redeemed whole shares and a fractional share, only the whole
shares shall be redeemed; however, if, on a strictly pro rata basis, a record
holder would otherwise be entitled to have redeemed only a fractional share (and
no whole shares), one full share shall be redeemed from such record holder.
In the event of any such partial redemption, the notice of
redemption mailed as aforesaid shall inform each holder of record of shares
called for redemption of the total number or proportion of shares registered in
his name that have been called for redemption, but the notice of
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redemption to be published as aforesaid need not contain such information.
(d) From and after the Redemption Date, unless default is made in
the payment of the optional redemption price when due, the shares so called for
redemption shall cease to be outstanding, and the holders thereof shall cease to
be shareholders with respect to such shares and shall have no interest in or
claim against the Corporation with respect to such shares, other than to receive
the optional redemption price on and after the date fixed for redemption without
interest thereon, upon surrender of their certificates with endorsement thereof
if required.
(e) At any time after notice of optional redemption shall have
been given as hereinabove provided, the Corporation may deposit, or cause to be
deposited in trust, to be applied to the redemption of the shares of Cumulative
Preferred Stock so called for redemption, with First American National Bank of
Nashville, Nashville, Tennessee, or with some other bank or trust company
organized and doing business under the laws of the United States of America or
the State of Tennessee and having capital surplus and undivided profits
aggregating at least ten million dollars ($10,000,000), the aggregate amount to
be paid on optional redemption to the holders of the shares so to be redeemed
upon surrender of the certificates for such shares. In case any holder of shares
of Cumulative Preferred Stock which shall have been called for redemption shall
not, within six years after such deposit, have claimed the amount deposited with
respect to the redemption thereof, such bank or trust company, upon demand,
shall pay over to the Corporation such unclaimed amount and shall thereupon be
relieved of all responsibility in respect thereof to such holder, and such
holder shall look only to the Corporation for the payment thereof. Any interest
accrued on funds so deposited shall be paid to the Corporation from time to
time.
(f) Notwithstanding the foregoing optional redemption provisions,
if at any time the Corporation shall have failed to declare or pay dividends in
full on all shares of Cumulative Preferred Stock outstanding, then and until all
arrearages of such dividends shall have been paid, or declared and set apart for
payment, the Corporation shall not purchase or redeem or otherwise acquire for
value (nor may moneys be paid or made available to any sinking fund for the
redemption of) any shares of Cumulative Preferred Stock or any shares of Common
Stock or any shares of any class or series of stock ranking as to dividends or
assets equally with or junior to the Cumulative Preferred Stock except in the
case of (i) a redemption of all outstanding shares of Cumulative Preferred Stock
at the redemption price determined in accordance with subsections D4(a) and
D4(b) above; or (ii) a purchase or other acquisition for value of shares of
Cumulative Preferred Stock pursuant to and in accordance with a purchase or
exchange of or made by the Corporation to all holders of record of the
Cumulative Preferred Stock.
5. Voting Rights
(a) Except as set forth in this subsection D5 or in any applicable
statute, the holders of Cumulative Preferred Stock shall have no voting powers,
nor shall they be entitled to notice of any meeting of the shareholders of the
Corporation.
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(b) If any time the Corporation shall be arrears in dividends on
any shares of Cumulative Preferred Stock in an amount equal to six full
quarterly dividends thereon, then, until all arrearages of dividends accumulated
on all shares of Cumulative Preferred Stock shall have been paid or declared and
set apart for payment, the holders of the Cumulative Preferred Stock, voting
separately as a class, shall have the sole right, to the exclusion of any other
class of stock, at all annual or special meetings of the shareholders of the
Corporation at which directors are to be elected, to vote for and elect TWO (2)
directors. At all annual or special meetings for election of directors so long
as such right to elect directors shall continue, the holders of the Cumulative
Preferred Stock, voting separately as a class, shall vote for and elect the
directors which they are entitled to elect as aforesaid, and thereafter the
holders of the Common stock and of any other stock of the Corporation having
voting powers, in accordance with their respective rights, shall vote for and
elect the remaining directors. At any meeting of the shareholders at which the
holders of the Cumulative Preferred Stock shall have the right to vote, they
shall have one vote for each share of Cumulative Preferred Stock registered on
the record date for such meeting in their name on the stock registry books. The
holders of the Cumulative Preferred Stock shall be entitled to notice of any
meeting of the shareholders called for the election of directors at which such
holders shall be entitled to vote as provided in this subsection D5(b), and at
any such election the holders of one-third of the shares of Cumulative Preferred
Stock outstanding shall constitute a quorum for the election of the directors
whom the holders of shares of Cumulative Preferred Stock are entitled to elect,
and a plurality of all votes of the Cumulative Preferred Stock represented at
the meeting shall be sufficient to elect such directors.
Whenever all arrearages of dividends on the Cumulative
Preferred Stock as aforesaid shall have been paid or declared and set apart for
payment, all powers of the holders of the Cumulative Preferred Stock to vote for
directors shall terminate, the term of office of all directors elected by them
shall forthwith automatically come to an end, and the number of directors shall
be the number elected by the other shareholders of the Corporation.
If the date upon which such right of the holders of the
Cumulative Preferred Stock shall become vested shall be more than one hundred
fifty days preceding the date of the next ensuing annual meeting of shareholders
as fixed by the by-laws of the Corporation or by the Board of Directors pursuant
to the By-Laws, the size of the Board of Directors shall automatically be
increased by two members, and the President of the Corporation shall call a
special meeting of the holders of the Cumulative Preferred Stock, to be held
within sixty (60) days after such right became vested or as promptly thereafter
as possible, for the purpose of electing two persons to the Board of Directors
to serve until the next annual meeting and until their successors shall be
elected and shall qualify. Notice of such meeting shall be mailed to each holder
of record of Cumulative Preferred Stock not less than ten (10) days prior to the
date of such meeting.
Whenever the holders of Cumulative Preferred Stock shall be
entitled to elect two directors, any holder of such Cumulative Preferred Stock
shall have the right, during regular business hours, in person or by duly
authorized representative, to examine and to make transcripts of the stock
records of the Corporation for the Cumulative Preferred Stock for the purpose of
communicating with other holders of such Cumulative Preferred Stock with respect
to the exercise of such right of
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election.
If, during any interval between annual meetings of
shareholders for the election of directors and while the holders of the
Cumulative Preferred Stock shall be entitled to elect two directors, the number
of directors in office who have been so elected by the holders of the Cumulative
Preferred Stock or who succeeded a director so elected shall, by reason of
resignation, death or removal, be less than two, such vacancy shall be filled by
vote of the remaining director then in office who was elected by vote of the
holders of the Cumulative Preferred Stock or succeeded a director so elected or,
if there be no such remaining director then in office or if such vacancy or
vacancies be not so filled within forty (40) days after the creation thereof,
the President of the Corporation shall promptly call a special meeting of the
holders of the Cumulative Preferred Stock and such vacancy or vacancies shall be
filled by vote at such special meeting.
Any director elected by the holders of the Cumulative
Preferred Stock or who succeeded a director so elected may be removed from
office by vote of the holders of a majority of the shares of such stock. A
special meeting of the holders of shares of such stock may be called by a
majority vote of the Board of Directors for the purpose of removing such a
director. The President of the Corporation shall, as promptly as practicable
after delivery to the Corporation at its principal office of a request to such
effect signed by the holders of at least ten percent (10%) of the outstanding
shares of Cumulative Preferred Stock, call a special meeting of the holders of
such stock for such purpose to be held within SIXTY (60) days or as soon
thereafter as possible after the delivery of such request.
(c) So long as any Cumulative Preferred Stock shall be
outstanding, the Corporation shall not without the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66 2/3%) of all shares of
Cumulative Preferred Stock at the time outstanding (but may do so with such vote
when so authorized by its Board of Directors and also by vote of the holders of
any other class or series of stock which may then be required) (i) authorize or
create or increase the authorized amount of any stock ranking as to dividends or
assets prior to the Cumulative Preferred Stock or any security convertible into
or exchangeable for or carrying rights to purchase any such prior stock; (ii)
otherwise alter, change or cancel any of the provisions, preferences, rights or
powers of any shares of Cumulative Preferred Stock in any manner which will
adversely affect any shares of Cumulative Preferred Stock then outstanding;
(iii) sell, transfer or lease (otherwise than as security) its property and
assets as an entirety or substantially as an entirety, provided that this
restriction shall not apply to such a sale, transfer or lease if none of the
provisions, preferences, rights or powers of the Cumulative Preferred Stock will
be adversely affected; or (iv) merge or consolidate with or into any other
corporation, provided, however, that this restriction shall not apply to, nor
shall it operate to prevent, the consolidation of merger of the Corporation with
or into another corporation if none of the provisions, preferences, rights or
powers of the Cumulative Preferred Stock or the holders thereof will be
adversely affected thereby.
(d) So long as any Cumulative Preferred Stock shall be
outstanding, the Corporation shall not without the affirmative vote of the
holders of at least a majority of the shares of Cumulative
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Preferred Stock present in person or by proxy at a meeting at which holders of
at least a majority of the outstanding shares of Cumulative Preferred Stock are
so present (but may do so with such vote when so authorized by its Board of
Directors and also by vote of the holders of any other class or series of stock
which may then be required: (i) authorize or create or increase the authorized
amount of any other class or series of stock ranking as to dividends or assets
equally with the Cumulative Preferred Stock or of any security convertible into
or exchangeable for or carrying rights to purchase any such pari passu stock, or
(ii) increase the authorized amount of Cumulative Preferred Stock.
(e) Notwithstanding the provisions of subsections D5(b), D5(c) or
D5(d) hereof, the holders of the Cumulative Preferred Stock shall not have any
rights under the provisions of this subsection D5 to vote on any matter
specified therein if, in connection with the accomplishment of such matter,
provision is to be made for the redemption of all the Cumulative Preferred Stock
at the time outstanding.
6. Redemption in the Event of Owner's Death.
(a) Subject to the limitations set forth in this subsection D6,
from and after January 1, 1979, the Corporation, upon the death of any owner of
any shares of Cumulative Preferred Stock, shall redeem within sixty (60) days
following receipt by the Corporation of written notice therefor from such
owner's personal representative(s) or surviving joint tenant(s), and of such
deceased owner's shares as shall be specified in such notice at a redemption
price of $25.00 per share plus accrued and unpaid dividends. The maximum number
of shares of Cumulative Preferred Stock which the Corporation shall be required
to redeem in any calendar year pursuant to this subsection D6 shall be 7,500
shares, and such shares will be redeemed in order of their tender to the
Corporation for redemption. The Corporation may, but shall not be obligated to,
redeem shares prior to January 1, 1979 and redeem in any calendar year shares of
Cumulative Preferred Stock in excess of the 7,500 share maximum. If shares in
excess of the 7,500 share maximum are tendered in a calendar year by the
personal representative(s) or surviving joint tenant(s)of a deceased owner, such
excess shares will be held by the Corporation and will be redeemed (up to the
7,500 maximum) as soon as possible in the next calendar year, unless the tender
for redemption is withdrawn by the personal representative(s) or surviving joint
tenants(s) by written notice received by the Secretary of the Corporation prior
to payment of the redemption price therefor. Shares tendered pursuant to this
subsection D6 must be accompanied by (1) a written request for redemption signed
by the personal representative(s) or surviving joint tenant(s), (2) appropriate
evidence of ownership and authority, (3) the certificates for the shares to be
redeemed, and (4) such waivers by taxing authorities and other documents as may
be required by counsel to the Corporation.
The Corporation shall not be required to redeem any shares
pursuant to this subsection D6, if such redemption would be prohibited by
subsection D4(f) hereof or the provisions of any law or statute, or the
provisions of any loan agreement or indenture to which the Corporation or any of
its subsidiaries is now or may hereafter be bound; provided, however neither the
Corporation nor any of its subsidiaries will enter into any loan agreement or
indenture which would immediately upon its execution or effectiveness prohibit
such redemption by its express terms or by the operation of any
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formula contained herein.
E. Series A Junior Preferred Stock. Pursuant to the authority vested in the
Board of Directors in accordance with the provisions of this Article VI of the
Charter, the Board of Directors does hereby create, authorize and provide for
the issuance of Series A Junior Preferred Stock out of the class of 2,500,000
shares of preferred stock, no par value (the "Preferred Stock"), having the
voting powers, designation, relative, participating, optional and other special
rights, preferences, and qualifications, limitations and restrictions thereof
that are set forth as follows:
1. Designation and Amount. The shares of such series shall be
designated as Series A Junior Preferred Stock ("Series A Preferred Stock") and
the number of shares constituting such series shall be 250,000. Such number of
shares may be adjusted by appropriate action of the Board of Directors.
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 one-hundredth
(1/100) 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 1st day of
January, April, July and October 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 (x) $.01 or (y)
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 of the
Corporation, par value $5.00 per share, (the "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, 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 December 27, 1988 (the "Rights Declaration
Date") (i) declare or pay any dividend on outstanding shares of Common Stock
payable in shares of Common Stock, or (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 were outstanding immediately prior to such
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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 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 $.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 together as one class on all
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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, at the next
meeting of shareholders called for the election of directors (the "Next
Meeting"), to elect two directors (the "New Directors" or individually, "New
Director"), which directors shall be in addition to the number previously set by
the Board of Directors pursuant to Article III of the by-laws. One of the New
Directors shall serve as a member of the class of directors being elected for a
three-year term and the other New Director shall serve as a member of the class
of directors whose remaining term at the Next Meeting is two years and until
their successors are elected by such holders and qualified or their earlier
resignation, removal or incapacity or until such earlier time as all accrued and
unpaid dividends upon the outstanding Units of Series A Preferred Stock shall
have been paid (or set aside for payment) in full. The New Directors may be
removed and replaced by such holders, and vacancies in such directorships may be
filled only by such holders (or the remaining directors elected by such holders
if there be one) in the manner permitted by law. After the holders of Units of
Series A Preferred Stock 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.
(ii)Immediately upon the expiration of a default period (x)
the right of 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 prior to any increase made pursuant to the provisions of paragraph
3(c)(i) of this paragraph 3 (such number being subject, however, to change
thereafter in any manner provided by law or in the Charter 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.
(iii) The provisions of this paragraph (c) shall govern the
election of directors by holders of Units of Series A Preferred Stock during any
default period notwithstanding any provisions of the Charter to the contrary.
(d) Except as set forth herein or required by law, holders of
Units of Series A Preferred Stock shall have no special voting rights and their
consent 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 the taking of
any corporate action.
4. Certain Restrictions.
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(a) Whenever quarterly dividends or other dividends or
distributions payable on Units of Series A Preferred Stock as provided in
paragraph 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 (or set aside for payment) 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
stock ranking junior to the Series A Preferred Stock;
(ii)declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity as to dividends with
the Series A Preferred Stock, except for 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 stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A Preferred 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
stock ranking junior (both as to dividends and upon liquidation, dissolution or
winding up) to the Series A Preferred Stock; or
(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 paragraph 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 canceled 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 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,
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(i) to the holders of shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred 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 (y) $80.00 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 (z) 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 stock ranking on a parity upon liquidation, dissolution or
winding up with the Series A Preferred 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)(y) 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, or (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)(z) of paragraph (a) of this paragraph 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. Share Exchange, Merger, Etc. In case the Corporation shall enter
into any share exchange, 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, or (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 shares 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 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 at the option of the Corporation or any holder thereof.
Notwithstanding the foregoing sentence of this Section, the Corporation may
acquire Units of Series A Preferred Stock in any other manner permitted by law
and the Charter or by-laws of the Corporation.
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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 Charter, including without limitation the provisions
hereof, shall not hereafter be amended, either directly or indirectly, or
through merger or share exchange 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 the holders thereof 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.
ARTICLE VII
The amount of capital with which this Corporation will begin business shall
be (not less than one thousand) One Thousand ($1,000.00) Dollars; and when such
amount so fixed shall have been subscribed for, all subscriptions of the stock
of this Corporation shall be enforceable and it may proceed to do business in
the same manner and as fully as though the maximum number of shares authorized
under the provisions of the preceding section hereof shall have been subscribed
for.
ARTICLE VIII
A. By-laws. The by-laws of the Corporation may be made, altered, amended
or repealed by the Board of Directors.
B. Indemnification. Indemnification for directors, officers, employees
and agents of the Corporation may be provided either directly or through the
purchase of insurance, by the Corporation from time to time to the fullest
extent and in the manner permitted by law.
To the full extent from time to time permitted by law, including
without limitation the Tennessee Business Corporation Act, as currently in
effect or as it may be amended from time to time, no director of the corporation
shall be personally liable to the corporation or its shareholders for monetary
damages for breach of any fiduciary duty as a director. Neither the amendment or
repeal of this Article VIII (B), nor the adoption of any provision of this
Charter inconsistent with this Article VIII (B), shall reduce or eliminate the
protection afforded by this Article VIII (B) to a director in respect of any
matter which occurred, or any cause of action or claim which but for this
Article VIII (B) would have accrued or arisen, prior to such amendment, repeal
or adoption.
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C. Issuance of Bonds, Debentures or Obligations. Authority is hereby
expressly vested in the Board of Directors to issue bonds, debentures or
obligations of this Corporation and to fix all of the terms thereof including
without limitation the interest to be paid thereon, the convertibility or non-
convertibility thereof and other provisions with regard thereto.
ARTICLE IX
The Board of Directors may take without a meeting on written consent any
action which they are required or permitted to take by the Charter, by-laws or
statutes provided such consent sets forth the action taken and is signed by all
the directors.
ARTICLE X
A. Voting Requirement. In addition to any affirmative vote required by law
or any other Article of this Charter, and except as otherwise expressly provided
in Section B of this Article, any Business Combination shall require an
affirmative vote of (i) seventy-five percent (75%) of the votes entitled to be
cast by all holders of Voting Stock (as defined herein) voting together as a
single class at a meeting of shareholders called for such purpose and, in
addition thereto, (ii) a majority of the votes entitled to be cast by all
holders of Voting Stock, other than shares of Voting Stock which are
Beneficially Owned (as defined herein) by the Interested Shareholder (as defined
herein), voting together as a single class at a meeting of shareholders called
for such purpose. Such affirmative vote shall be required notwithstanding the
fact that a vote would not otherwise be required, or that a lesser percentage
may be specified by law or in any agreement with any national securities
exchange or otherwise.
B. When Voting Requirement Not Applicable. The provisions of Section A of
this Article shall not be applicable to any Business Combination which shall
have been approved by a majority of the Disinterested Directors or as to which
all of the conditions specified in subsections B(1), B(2) and B(3) shall have
been met:
1. Fair Prices. The aggregate amount per share of the cash and the Fair
Market Value (as defined herein), as of the Announcement Date, of the
consideration other than cash to be received in such Business Combination by
holders of shares of the respective classes and series of outstanding capital
stock of the Corporation shall be at least equal to the highest of the
following:
(a) if applicable, the highest per share price (adjusted for any
subsequent stock dividends, splits, combinations, recapitalizations,
reclassifications or other such reorganizations) paid to acquire any shares of
such respective classes and series Beneficially Owned by the Interested
Shareholder during the Pre-announcement period (as defined herein);
(b) The highest per share price (adjusted for any subsequent stock
dividends, splits, combinations, recapitalizations, reclassifications or other
such reorganizations) paid to acquire any shares of such respective classes and
series Beneficially Owned by the Interested Shareholder in the
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transaction in which the Interested Shareholder became an Interested
Shareholder;
(c) The Fair Market Value per share of such respective classes
and series on the Announcement Date (as defined herein);
(d) The Fair Market Value per share of such respective classes
and series on the Determination Date (as defined herein); or
(e) The amount per share of any preferential payment to which
shares of such respective classes and series are entitled in the event of a
liquidation, dissolution or winding up of the Corporation.
2. Form of Consideration. The consideration to be received by holders
of each particular class and series of outstanding capital stock of the
Corporation in a Business Combination shall be: (i) cash or (ii) if the majority
of the shares of any particular class or series of the capital stock of the
Corporation Beneficially Owned by the Interested Shareholder shall have been
acquired for a consideration in a form other than cash, the same form of
consideration used to acquire the largest number of shares of such class or
series previously acquired and Beneficially Owned by the Interested Shareholder.
3. Other Requirements. After such Interested Shareholder has become
an Interested Shareholder and prior to the consummation of such Business
Combination, except as approved by a majority of the Disinterested Directors,
there shall have been:
(a) No failure to declare and pay in full, when and as due, any
dividends on any class or series of Preferred Stock (as defined herein) (whether
cumulative or not), except on any class or series of Preferred Stock as to which
dividends were in arrears on the Determination Date;
(b) No reduction in the quarterly rate of dividends on the
Corporation's Common Stock below the dividends paid during the dividend quarter
of the Corporation ended immediately prior to the Determination Date, except any
reduction in dividends necessary to fairly reflect any stock dividend, split,
recapitalization, reclassification or other such reorganization;
(c) No failure to increase the quarterly rate of any dividends per
share paid on the Corporation's Common Stock to fairly reflect any stock
combination, recapitalization, reclassification or other such reorganization
which has the effect of reducing the number of outstanding shares of Common
Stock;
(d) No increase in the number of shares of the capital stock of
the Corporation Beneficially Owned by the Interested Shareholder, except: (i) as
a part of the transaction that resulted in the Interested Shareholder becoming
an Interested Shareholder or (ii) to consummate the Business Combination in
compliance with the provisions of this Article.
19
(e) No loans, advances, guarantees, pledges or other financial
assistance or tax credits or other tax advantages provided by the Corporation or
its subsidiaries for the benefit, directly or indirectly, of the Interested
Shareholder, whether in anticipation of or in connection with such Business
Combination or otherwise;
(f) No material change in the Corporation's business or capital
structure or the business or capital structure of any subsidiary of the
Corporation effected, directly or indirectly, by or for the benefit of the
Interested Shareholder; and
(g) A proxy or information statement mailed at least thirty (30)
days prior to the completion of the Business Combination to all the holders of
Voting Stock (whether or not shareholder approval of the Business Combination is
required) which proxy or information statement shall (i) describe the Business
Combination, (ii) include in a prominent place the recommendations, if any, of a
majority of the Disinterested Directors as to the advisability or inadvisability
of the Business Combination; (iii) if deemed advisable by a majority of the
Disinterested Directors, include an opinion of a reputable investment banking
firm or other expert as to the fairness or unfairness of the terms of the
Business Combination from the point of view of the shareholders other than the
Interested Shareholder (such investment banking firm to be selected by a
majority of the Disinterested Directors and to be paid a reasonable fee for
their services by the Corporation upon receipt of such opinion) and (iv) be
responsive to the pertinent provisions of the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder, or any laws supplementing
or superseding such Act, rules and regulations, whether or not such proxy or
information statement is required by law to be furnished to any holders of
Voting Stock.
C. Definitions. As used in Articles X, XI, and XII:
1. "Business Combination" means any of the transaction described
below:
(a) Any merger or consolidation of the Corporation or any
Subsidiary (as defined herein) with: (i) any Interested Shareholder or (ii) any
corporation (whether or not itself an Interested Shareholder) which is, or after
such merger or consolidation would be, an Affiliate (as defined herein) of an
Interested Shareholder;
(b) Any sale, lease, exchange, mortgage, pledge, transfer or other
disposition, in one transaction or a series of transactions: (i) to or with any
Interested Shareholder or Affiliate of any Interested Shareholder of any assets
(including securities) of the Corporation or any Subsidiary having an aggregate
Fair Market Value of $1,000,000 or more or (ii) to or with the Corporation or
any Subsidiary of any assets (including securities) of any Interested
Shareholder or any Affiliate of an Interested Shareholder having an aggregate
Fair Market Value of $1,000,000 or more;
(c) The issuance or transfer 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 an Affiliate of
any Interested Shareholder in exchange for cash, securities or other
20
property, or a combination thereof, having an aggregate Fair Market Value of
$1,000,000 or more;
(d) 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 any Affiliate of any Interested Shareholder;
(e) Any reclassification of securities (including any reverse
stock split) or any recapitalization or reorganization of the Corporation, or
any merger or consolidation of the Corporation with any of its Subsidiaries or
any other 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 of the Corporation or any Subsidiary (including securities
convertible into equity securities) which is directly or indirectly owned by any
Interested Shareholder or any Affiliate of any Interested Shareholder; or
(f) Any other transaction or series of transactions that is
similar in purpose or effect to those referred to in (a) through (e) of this
subsection C(1).
2. "Voting Stock" means the Common Stock and those classes of
Preferred Stock which would then be entitled to vote in the election of
directors.
3. "Beneficially Owned," with respect to any securities, means the
right or power (directly or indirectly through any contract, understanding or
relationship) (i) vote or direct the voting of such securities (ii) to dispose
or direct the disposition of such Securities, or (iii) to acquire such voting or
investment power, whether such right or power is exercisable immediately or only
after the passage of time.
4. "Interested Shareholder" means any Person (as defined herein) or
member of a Group of Persons (as defined herein) who or which, together with any
Affiliate or Associate (as defined herein) of such Person or member,
Beneficially Owns (within the meaning of subsection C(3) above) ten percent or
more of the outstanding Voting Stock of the Corporation.
5. "Person" means any individual, firm, corporation, partnership,
joint venture or other entity.
6. "Group of Persons" means any two or more Persons who or which are
acting or have agreed to act together for the purpose of acquiring, holding,
voting or disposing of any Voting Stock of the Corporation.
7. "Disinterested Director" means any member of the Board of Directors
of the Corporation who is not an Interested Shareholder or an Affiliate or
Associate of an Interested Shareholder and who (i) was a member of the Board of
Directors prior to the time the Interested Shareholder became an Interested
Shareholder or (ii) was elected or recommended to succeed a Disinterested
Director by a majority of the Disinterested Directors then on the Board of
Directors.
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8. "Fair Market Value" means: (i) in the case of stock, the highest
sale price during the 30 day period immediately preceding the date in question
of a share of such stock on the NASDAQ National Market System, or if such stock
is listed on an exchange registered under the Securities Exchange Act of 1934,
on the principal exchange on which such stock is listed, or if no such
quotations are available, the fair market value on the date in question of a
share of such stock as determined by a majority of the Disinterested Directors
in good faith; and (ii) in the case of property other than cash or stock, the
fair market value of such property on the date in question as determined by a
majority of the Disinterested Directors in good faith.
9. "Pre-announcement Period" means the two-year period ending at
11:59 p.m., Nashville time, on the Announcement Date.
10. "Announcement Date" means the date of the first public
announcement of the proposal of the Business Combination.
11. "Determination Date" means the date on which the Interested
Shareholder becomes an Interested Shareholder.
12. "Subsidiary" means any corporation of which a majority of any
class of equity security is owned, directly or indirectly, by the Corporation.
13. "Affiliate," used to indicate a relationship with a specified
Person, means another Person that directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such specified Person.
14. "Associate," used to indicate a relationship with a specified
Person, means (i) any corporation or other similar organization (other than the
Corporation or a Subsidiary) of which such specified Person is an officer or
partner or is, directly or indirectly, the beneficial owner of ten percent or
more of any class of equity securities, (ii) any trust or estate in which such
specified Person has a substantial beneficial interest or as to which such
specified Person serves as trustee or in a similar fiduciary capacity, (iii) any
relative or spouse of such specified Person, or any relative of such spouse who
has the same home as such Person and (iv) any other Person or Affiliate of a
Person who directly or indirectly has received more than $50,000 for services or
property from the specified Person or from an Affiliate of the specified Person
during any year of the preceding five calendar years or who can reasonably be
expected to receive more than such amount in the current calendar year under any
existing agreement or agreements or understandings with such specified Person or
an Affiliate of such specified Person.
15. "Preferred Stock" means all classes or series of the Corporation's
capital stock other than Common Stock.
D. Powers of Disinterested Directors. A majority of the Disinterested
Directors of the Corporation shall have the power and duty to determine, on the
basis of information known to them
22
after reasonable inquiry, all facts necessary to determine compliance with this
Article, including without limitation (i) whether a Person is an Interested
Shareholder, (ii) the number of shares of Voting Stock beneficially owned by any
Person, (iii) whether a Person is an Affiliate or Associate of another, (iv)
whether the requirements of Section B, have been met with respect to any
Business Combination, and (v) 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. The good
faith determination of a majority of the Disinterested Directors on such matters
shall be conclusive and binding for all purposes of this Article.
E. No Effect on Preferential Rights. The provisions of this Article shall
not affect in any way the amount or form of consideration that any holder of
shares of the Corporation's capital stock is entitled to receive upon the
liquidation or dissolution of the Corporation or any other preferential rights
of the holders of such shares.
F. No Effect on Fiduciary Obligations of Interested Shareholders.
Nothing contained in this Article shall be construed to relieve any Interested
Shareholder from any fiduciary obligation imposed by law.
G. Amendment or Repeal. In addition to any affirmative vote required by
law, an affirmative vote at least equal to the vote of seventy-five percent
(75%) of the votes entitled to be cast by all holders of Voting Stock voting
together as a single class, and addition thereto and (ii) a majority of the
votes entitled to be cast by all holders of Voting Stock, other than shares of
Voting Stock which are Beneficially Owned by an Interested Shareholder, voting
together as a single class, shall be required to amend or repeal, or adopt any
charter provisions inconsistent with this Article. Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that a
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
ARTICLE XI
A. The Board of Directors shall consist of not less than nine (9) nor more
than twenty-seven (27), the exact number of directors to be established from
time to time exclusively by the Board of Directors pursuant to a resolution
adopted by a majority of the total number of authorized directors (whether or
not there exist any vacancies in previously authorized directorships at the time
any such resolution is presented to the Board for adoption). At the annual
meeting of shareholders held in 1985, the directors shall be divided into three
classes, as nearly equal in number as possible with a one year term of office
for the first class, a two year term of office for the second class and a three
year term of office for the third class. At each annual meeting of shareholders
following such initial classification and election, directors elected to succeed
those directors whose terms expire shall be elected for a three year term of
office. Each director shall hold office for the term for which that person was
elected and until his or her successor shall have been elected or qualified.
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B. Subject to the rights of the holders of any series of Preferred Stock
then outstanding, newly created directorships resulting from any increase in the
authorized number of directors or any vacancies in the Board of Directors
resulting from death, resignation, retirement, disqualification, removal from
office or other cause shall be filled only by a majority vote of the directors
then in office, though less than a quorum, and directors so chosen shall hold
office for the unexpired term of his or her predecessor, or if there is no such
predecessor, until the next annual meeting of shareholders. No decrease in the
number of authorized directors constituting the entire Board of Directors shall
shorten the term of any incumbent director.
C. Subject to the rights of the holders of any series of Preferred Stock
then outstanding, any director, or the entire Board of Directors, may be removed
(but only for cause as defined in the Tennessee General Corporation Act) from
office at any time by the affirmative vote of seventy-five percent (75%) of the
votes entitled to be cast by all holders of voting stock, voting together as a
single class at a meeting called for such purpose. If the holders of any series
of Preferred Stock then outstanding are entitled to elect one or more directors,
the provision of the foregoing sentence shall not apply, in respect of the
removal of a director or directors so elected, to the vote of the holders of the
outstanding shares of that series and the rights of the holders of such shares
shall be as set forth in this Charter and in the certificate of designation
establishing such series.
D. Notwithstanding any other provision of this Charter or any provision of
applicable law which might otherwise permit a lesser vote or no vote, but in
addition to any affirmative vote of holders of any particular class or series of
the capital stock of the Corporation entitled to vote by applicable law or by
the terms of such class or series, this Article may not be altered, amended or
repealed except upon the affirmative vote of the holders of seventy-five percent
(75%) of the votes entitled to be cast by all holders of Voting Stock, voting
together as a single class at a meeting called for such purpose, and, in
addition thereto (ii) a majority of the votes entitled to be cast by all holders
of voting stock, other than shares of voting stock which are Beneficially Owned
by an Interested Shareholder, voting together as a single class.
ARTICLE XII
The Board of Directors of the Corporation, when evaluating any offer of a
Person, other than the Corporation itself, to (a) make a tender or exchange
offer for any equity security of the Corporation or any other security of the
Corporation convertible into an equity security, (b) merge or consolidate the
Corporation with another Person or purchase or (c) otherwise acquire all or
substantially all of the properties and assets of the Corporation (an
"Acquisition Proposal"), shall consider all relevant factors, including without
limitation, the consideration being offered in the Acquisition Proposal in
relation to the then-current market price, in relation to the then-current value
of the Corporation in a freely negotiated transaction, and in relation to the
Board of Directors' then estimate of the future value of the Corporation as an
independent entity, the social and economic effects on the employees, customer,
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 and the desirability of maintaining the Corporation's independence from
other entities.
24
ARTICLES OF CORRECTION
TO THE RESTATED CHARTER
OF
FIRST AMERICAN CORPORATION
Pursuant to the provisions of Section 48-11-305 of the Tennessee
Business Corporation Act ("TBCA"), the undersigned hereby adopts the following
Articles of Correction.
A. The document to be corrected is the Restated Charter of First
American Corporation (the "Restated Charter") which was filed
with the office of the Tennessee Secretary of State on January
13, 1997.
B. The incorrect statement, located in Article VI, Section D(1) of
the Restated Charter, was the result of a typographical error
and reads as follows:
D. $2.375 Cumulative Preferred Stock
Designation. The initial series of preferred stock
without par value shall be known and designated as $2.375
Cumulative Preferred Stock (hereinafter referred to as
the "Cumulative Preferred Stock"), and shall consist of
TWO MILLION FIVE HUNDRED THOUSAND (2,500,000) shares
without par value and shall have the rights, preferences
and characteristics set forth below.
C. Article VI, Section D(1) of the Restated Charter is hereby
corrected to read as follows:
D. $2.375 Cumulative Preferred Stock
Designation. The initial series of preferred stock
without par value shall be known and designated as $2.375
Cumulative Preferred Stock (hereinafter referred to as
the "Cumulative Preferred Stock"), and shall consist of
300,000 shares without par value, and shall have the
rights, preferences and characteristics set forth below.
FIRST AMERICAN CORPORATION
By: /s/ Mary Neil Price
--------------------------------
Mary Neil Price
Executive Vice President, Deputy
General Counsel and Assistant
Corporate Secretary
25
ARTICLES OF AMENDMENT TO THE RESTATED CHARTER
OF
FIRST AMERICAN CORPORATION
Pursuant to the provisions of Section 48-16-102 and 48-20-106 of the
Tennessee Business Corporation Act, the undersigned corporation hereby adopts
the following Articles of Amendment to its Charter:
1. The name of the corporation is First American Corporation.
2. The amendment adopted is as follows:
Subsection (E)(1) of Article VI of the corporation's Charter is
amended to read as follows:
"1. Designation and Amount. The shares of such series
shall be designated as Series A Junior Preferred Stock ("Series
A Preferred Stock") and the number of shares constituting such
series shall be 500,000. Such number of shares may be adjusted
by appropriate action of the Board of Directors."
3. The amendment was duly adopted by the Board of Directors on March
20, 1997, without shareholder action, no such action being
required.
4. The amendment shall become effective upon filing.
FIRST AMERICAN CORPORATION
By: /s/ Mary Neil Price
--------------------------------
Mary Neil Price
Executive Vice President
Deputy General Counsel
26
ARTICLES OF AMENDMENT TO THE RESTATED CHARTER
OF
FIRST AMERICAN CORPORATION
Pursuant to the provisions of Sections 48-20-102 and 48-20-106 of the
Tennessee Business Corporation Act, the undersigned corporation hereby adopts
the following Articles of Amendment to its Charter:
1. The name of the corporation is First American Corporation.
2. The amendment adopted is as follows:
Section (A) of Article VI of the corporation's Charter is amended
to read as follows:
"A. Authorized Shares. The maximum number of shares which the
Corporation shall have authority to issue is ONE HUNDRED MILLION
(100,000,000) shares of common stock with a par value of TWO
dollars and FIFTY cents ($2.50) per share and TWO MILLION FIVE
HUNDRED THOUSAND (2,500,000) shares of preferred stock without par
value."
3. The amendment was duly adopted by the Board of Directors on April
17, 1997, without shareholder action, no such action being
required.
4. The amendment shall become effective at 12:01 AM on May 9, 1997.
FIRST AMERICAN CORPORATION
By: /s/ Mary Neil Price
--------------------------------
Mary Neil Price
Executive Vice President
Deputy General Counsel
27
ARTICLES OF AMENDMENT TO THE RESTATED CHARTER
OF
FIRST AMERICAN CORPORATION
Pursuant to the provisions of Sections 48-16-102, 48-20-102, 48-20-103
and 48-20-106 of the Tennessee Business Corporation Act, the undersigned
corporation hereby adopts the following Articles of Amendment to its Restated
Charter:
1. The name of the corporation is First American Corporation.
2. The amendments adopted are as follows:
Section (A) of Article VI of the corporation's Restated
Charter is amended to read as follows:
"A. Authorized Shares. The maximum number of shares which the
Corporation shall have authority to issue is TWO HUNDRED
MILLION (200,000,000) shares of common stock with a par value
of TWO dollars and FIFTY cents ($2.50) per share and TWO
MILLION FIVE HUNDRED THOUSAND (2,500,000) shares of preferred
stock without par value."
Subsection (E)(1) of Article VI of the corporation's Charter
is amended to read as follows:
"1. Designation and Amount. The shares of such series shall be
designated as Series A Junior Preferred Stock ("Series A
Preferred Stock") and the number of shares constituting such
series shall be 1,250,000. Such number of shares may be
adjusted by appropriate action of the Board of Directors."
3. On April 16, 1998, the amendment of Section (A) of Article VI
was duly adopted by the shareholders. The amendment of
Subsection (E)(1) of Article VI was duly adopted by the Board
of Directors on April 16, 1998, without shareholder action, no
such action being required.
28
4. These amendments shall become effective on the date of filing.
FIRST AMERICAN CORPORATION
By: /s/ Mary Neil Price
------------------------
Mary Neil Price
Executive Vice President
General Counsel