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EXHIBIT 3
[Restated electronically for SEC
filing purposes only]
AMENDED AND RESTATED CHARTER
OF
DYERSBURG CORPORATION
Pursuant to the provisions of Section 48-20-107 of the Tennessee
Business Corporation Act, Dyersburg Corporation hereby adopts the following
Amended and Restated Charter:
1. The name of the corporation is Dyersburg Corporation.
2. The duration of the corporation is perpetual.
3. The street address, zip code, and county of the registered
office and the registered agent of the corporation in the State of
Tennessee shall be:
The Prentice-Hall Corporation System, Inc.
Maclellan Building, 3rd Floor
722 Chestnut Street
Chattanooga, Tennessee 37402
Hamilton County
4. The street address and zip code of the principal office of
the corporation in the State of Tennessee shall be:
Dyersburg Corporation
1315 East Phillips Street
Dyersburg, Tennessee 38024
Dyer County
5. The corporation is for profit.
6. The purposes for which the corporation is organized are to
do any and all things and to exercise any and all powers, rights, and
privileges which a corporation may now or hereafter be organized to do,
or to exercise, under the Tennessee Business Corporation Act, as
amended.
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7. The maximum number of shares of stock the corporation is
authorized to issue is:
(a) Forty million (40,000,000) shares of common stock, $.01
par value per share.
(b) Five million (5,000,000) shares of preferred stock
without par value. Shares of preferred stock may be issued
from time to time in one or more classes or series, each such
class or series to be so designated as to distinguish the
shares thereof from the shares of all other classes and
series. The Board of Directors is hereby vested with the
authority to divide preferred stock into classes or series and
to fix and determine the relative rights, preferences,
qualifications, and limitations of the shares of any class or
series so established.
Pursuant to the authority vested in the Board of Directors in
accordance with the provisions of this Article 7 of the Charter, the
Board of Directors does hereby create, authorize and provide for the
issuance of the Series A Junior Preferred Stock out of the class of
5,000,000 shares of preferred stock, no par value per share (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:
Section 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 200,000. Such number of
shares may be adjusted by appropriate action of the Board of
Directors.
Section 2. Dividends and Distributions. 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, dividends at
the same rate as dividends are paid with respect to the Common
Stock. In the event that the corporation shall at any time
after May 27, 1999 (the "Rights Dividend 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 are outstanding immediately after such event and
the denominator of which shall be
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the number of shares of Common Stock that were outstanding
immediately prior to such event.
Section 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 Dividend
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 matters submitted to a vote of shareholders of the
corporation.
(C) 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.
Section 4. Reacquired Shares. Any Units of Series A
Preferred Stock purchased or otherwise acquired by the
corporation in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such
Units shall, upon their cancellation, become authorized but
unissued Units of Preferred Stock to be created by resolution
or resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth herein.
Section 5. Liquidation. Upon any liquidation, dissolution
or winding up of the corporation, whether voluntary or
involuntary, the holders of Units of Series A Preferred Stock
shall be entitled to share in any assets remaining ratably
with the holders of the Common Stock. In the event the
corporation shall at any time after the Rights Dividend
Declaration Date (i) increase by way of stock split or similar
transaction the number of outstanding shares of Common Stock,
(ii) subdivide the outstanding shares of Common Stock, or
(iii)
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combine the 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 prior to such event 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.
Section 6. 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 Dividend 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 Units of Series A Preferred Stock shall be adjusted by
multiplying such amount by a fraction the numerator of which
shall be the number of shares of Common Stock that are
outstanding 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.
Section 7. 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 Bylaws of the corporation.
Section 8. 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.
Section 9. 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
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affirmative vote of the holders of a majority or more of the
outstanding Units of Series A Preferred Stock, voting
separately as a class.
Section 10. 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.
8. 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 consisting of not
less than three nor more than twelve directors, the exact number of
directors to be determined in the manner provided in the Bylaws of the
corporation. The directors shall be divided into three classes,
designated Class I, Class II, and Class III. Each class shall consist,
as nearly as may be possible, of one-third of the total number of
directors constituting the entire Board of Directors. The term of the
initial Class I directors shall terminate on the date of the 1993
annual meeting of shareholders; the term of the initial Class II
directors shall terminate on the date of the 1994 annual meeting of
shareholders; and the term of the initial Class III directors shall
terminate on the date of the 1995 annual meeting of shareholders. At
each succeeding annual meeting of shareholders beginning in 1993,
successors to the class of directors whose term expires at that annual
meeting shall be elected for a three-year term. If the number of
directors is changed, any increase or decrease shall be apportioned
among the classes so as to maintain the number of directors in each
class as nearly equal as possible, but in no case will a decrease in
the number of directors shorten the term of any incumbent director. A
director shall hold office until the annual meeting for the year in
which his or her term expires and until his or her successor shall be
elected and shall qualify, subject, however, to prior death,
resignation, retirement, disqualification, or removal from office. Any
vacancy on the Board of Directors that results from an increase in the
number of directors shall be filled only by a majority of the Board of
Directors then in office, and any other vacancy occurring in the Board
of Directors shall be filled only by a majority of the directors then
in office, although less than a quorum, or by a sole remaining
director.
Any director may be removed from office but only for cause and
only by (a) the affirmative vote of the holders of a majority of the
voting power of the shares entitled to vote for the election of
directors, considered for this purpose as one class, unless a vote of a
specific voting group is otherwise required by law, or (b) the
affirmative vote of a majority of the entire Board of Directors then in
office.
Notwithstanding the foregoing, whenever the holders of any one
or more classes or series of preferred stock issued by the corporation
shall have the right, voting separately by class or series, to elect
directors at an annual or special meeting of shareholders, the
election, term of office, filling of vacancies, and other features of
such directorships shall be governed by the terms of this Charter
applicable thereto, and such
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directors so elected shall not be divided into classes pursuant to this
Article 8 unless expressly provided by such terms. In the event of a
vacancy among the directors so elected by the holders of preferred
stock, the remaining directors elected by the holders of preferred
stock may fill the vacancy.
Notwithstanding any other provisions of this Charter, the
affirmative vote of holders of three-quarters of the voting power of
the shares entitled to vote at an election of directors shall be
required to amend, alter, change, or repeal, or to adopt any provision
as part of this Charter or as part of the corporation's Bylaws
inconsistent with the purpose and intent of, this Article 8.
9. To the fullest extent permitted by the Tennessee Business
Corporation Act as the same is in effect on the date hereof or as may
hereafter be amended from time to time, a director of the corporation
shall not be liable to the corporation or its shareholders for monetary
damages for breach of fiduciary duty as a director. If the Tennessee
Business Corporation Act or any successor statute is amended after
adoption of this provision to authorize corporate action further
eliminating or limiting the personal liability of directors, then the
liability of a director of the corporation shall be eliminated or
limited to the fullest extent permitted by the Tennessee Business
Corporation Act, as so amended from time to time, or such successor
statute. Any repeal or modification of this Article 9 by the
shareholders of the corporation shall not adversely affect any right or
protection of a director of the corporation existing at the time of
such repeal or modification or with respect to events occurring prior
to such time.
10. The Bylaws of this corporation may be amended, altered,
modified, or repealed by resolution adopted by the Board of Directors,
subject to any provisions of law then applicable.
11. The corporation shall indemnify every person who is or was
a party or is or was threatened to be made a party to any action, suit,
or proceeding, whether civil, criminal, administrative, or
investigative, by reason of the fact that he or she is or was a
director or officer or is or was serving at the request of the
corporation as a director, officer, employee, agent, or trustee of
another corporation or of a partnership, joint venture, trust, employee
benefit plan, or other enterprise, including service on a committee
formed for any purpose (and, in each case, his or her heirs, executors,
and administrators), against all-expense, liability, and loss
(including counsel fees, judgments, fines, ERISA excise taxes,
penalties, and amounts paid in settlement) actually and reasonably
incurred or suffered in connection with such action, suit, or
proceeding, to the fullest extent permitted by applicable law, as in
effect on the date hereof and as hereafter amended. Such
indemnification may include advancement of expenses in advance of final
disposition of such action, suit, or proceeding, subject to the
provision of any applicable statute.
The indemnification and advancement of expenses provisions of
this Article 11 shall not be exclusive of any other right which any
person (and his or her heirs, executors,
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and administrators) may have or hereafter acquire under any statute,
this Charter, the corporation's Bylaws, resolution adopted by the
shareholders, resolution adopted by the Board of Directors, agreement
or insurance, purchased by the corporation or otherwise, both as to
action in his or her official capacity and as to action in another
capacity. The corporation is hereby authorized to provide for
indemnification and advancement of expenses through its Bylaws,
resolution of shareholders, resolution of the Board of Directors, or
agreement, in addition to that provided by this Charter.
12. In taking or not taking any action in response to an
Acquisition Proposal (as defined below), the Board of Directors of the
corporation may consider the social and economic effects of
consummation of the Acquisition Proposal on the employees, customers,
suppliers, and other constituents of the corporation and its
subsidiaries and on the communities in which the corporation and its
subsidiaries operate or are located and the desirability of maintaining
the corporation's independence from other entities. For purposes of
this Article 12, "Acquisition Proposal" means an offer of any person or
entity (other than the corporation) 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 entity, or (c)
purchase or otherwise acquire all or substantially all of the
properties and assets of the corporation and its subsidiaries.
13. The corporation shall hold a special meeting of
shareholders only in the event (a) of a call of the Board of Directors
of the corporation or the officers authorized to do so by the Bylaws of
the corporation, or (b) the holders of at least fifteen percent of all
the votes entitled to be cast on any issue proposed to be considered at
the proposed special meeting sign, date, and deliver to the
corporation's secretary one or more written demands for the meeting
describing the purpose or purposes for which it is to be held.
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