EXHIBIT 3.2
ARTICLES OF AMENDMENT
OF C3, INC.
C3, Inc., a North Carolina corporation (the "Corporation"), hereby
submits these Articles of Amendment for the purpose of amending its Amended and
Restated Articles of Incorporation to determine the preferences, limitations,
and relative rights of a new series of Preferred Stock, no par value per share:
(1) The name of the Corporation is C3, Inc.
(2) Pursuant to authority granted by Article II, Paragraph B of the
Amended and Restated Articles of Incorporation of the Corporation and in
accordance with the provisions of Section 55-6-02 of the North Carolina
Business Corporation Act, the Board of Directors of the Corporation duly adopted
on February 21, 1999, the following amendment to the Amended and Restated
Articles of Incorporation of the Corporation:
Article II of the Corporation's Amended and Restated Articles of
Incorporation are hereby amended by adding the following as Paragraph E:
E. Series A Junior Participating Preferred Stock. There is hereby
created a new series of Preferred Stock designated "Series A Junior
Participating Preferred Stock." The number of shares constituting such series
initially shall be one million (1,000,000). Such number of shares may be
increased or decreased by the Board of Directors; provided, however, that no
decrease shall reduce the number of shares of Series A Junior Participating
Preferred Stock to a number less than the number of shares then outstanding plus
the number of shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any outstanding securities
issued by the Corporation convertible into Series A Junior Participating
Preferred Stock. The Series A Junior Participating Preferred Stock shall have
the preferences, limitations and relative rights set forth below:
(a) Dividends and Distributions.
(i) Subject to the prior and superior rights of the
holders of any shares of any series of Preferred Stock ranking
prior and superior to the shares of Series A Junior Participating
Preferred Stock with respect to dividends, the holders of shares
of Series A Junior Participating Preferred Stock, in preference
to the holders of Common Stock and of any other junior stock,
shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available therefor,
quarterly dividends payable in cash on the first day of February,
May, August and November in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the
first issuance of a share or fraction of a share of Series A
Junior Participating Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $1.00
or (b) subject to the provision for adjustment hereinafter set
forth, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount (payable
in kind) 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 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 any share or fraction of a share of
Series A Junior Participating Preferred Stock. In the event the
Corporation shall on or at any time after February 21, 1999 (the
"Rights Declaration Date") (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine or consolidate the
outstanding shares of Common Stock into a smaller number of
shares, then in each such case the amount to which holders of
shares of Series A Junior Participating Preferred Stock were
entitled immediately prior to such event under clause (b) of the
preceding sentence shall be adjusted by multiplying such amount
by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(ii) The Corporation shall declare a dividend or
distribution on the Series A Junior Participating Preferred Stock
as provided in paragraph (i) above immediately after it declares
a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that,
subject to the requirements of applicable law and the Amended and
Restated Articles of Incorporation, 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
$1.00 per share on the Series A Junior Participating Preferred
Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(iii) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Junior Participating Preferred
Stock from the Quarterly Dividend Payment Date next preceding the
date of issue of such shares of Series A Junior Participating
Preferred Stock, unless the date of issue of such shares is prior
to the record date for the first Quarterly Dividend Payment Date,
in which case dividends on such shares shall begin to accrue
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from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of shares of Series
A Junior Participating 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 the shares of Series A Junior Participating
Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of Series
A Junior Participating Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon, which
record date shall be no more than 60 days prior to the date fixed
for the payment thereof.
(b) Voting Rights. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting rights:
(i) Subject to the provision for adjustment hereinafter
set forth, each share of Series A Junior Participating Preferred
Stock shall entitle the holder thereof to 100 votes on all
matters submitted to a vote of the shareholders of the
Corporation. In the event the Corporation shall at any time on or
after the Rights Declaration Date (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivide
the outstanding Common Stock, or (iii) combine or consolidate the
outstanding Common Stock into a smaller number of shares, then in
each such case the number of votes per share to which holders of
shares of Series A Junior Participating Preferred Stock were
entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to
such event.
(ii) Except as otherwise provided herein, in any other
amendment to the Amended and Restated Articles of Incorporation
of the Corporation or bylaw, the holders of shares of Series A
Junior Participating Preferred Stock and the holders of shares of
Common Stock shall vote together as one group on all matters
submitted to a vote of shareholders of the Corporation.
(iii) Except as set forth herein, holders of Series A
Junior Participating Preferred Stock shall have no special voting
rights and their
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consent shall not be required (except to the extent they are
entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
(c) Certain Restrictions.
(i) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating
Preferred Stock as provided in Paragraph (a) are in arrears,
thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A
Junior Participating Preferred Stock outstanding shall have been
paid in full, the Corporation shall not:
(A) declare or pay dividends on, redeem or purchase
or otherwise acquire for consideration, or make any other
distributions on any shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution
or winding up) to the Series A Junior Participating
Preferred Stock;
(B) declare or pay dividends on, redeem or purchase
or otherwise acquire for consideration, or make any other
distributions on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution
or winding up) with the Series A Junior Participating
Preferred Stock, provided that there may be declared and
paid ratably dividends on the Series A Junior
Participating Preferred Stock and all such parity stock on
which dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such shares
are then entitled; and, provided further, that the
Corporation may at any time redeem or purchase or
otherwise acquire shares of any such parity stock in
exchange for shares of any stock of the Corporation
ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A
Junior Participating Preferred Stock; or
(C) purchase or otherwise acquire for consideration
any shares of Series A Junior Participating Preferred
Stock, or redeem or purchase or otherwise acquire any
shares of stock ranking on a parity with the Series A
Junior Participating 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 shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend
rates and other relative rights and
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preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(ii) The Corporation shall not permit any subsidiary of
the Corporation (for the account of such subsidiary) to purchase
or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (i) of
this Paragraph (c), purchase or otherwise acquire such shares at
such time and in such manner.
(iii) No dividend shall be declared and paid, or set apart
for payment on, any share of the Series A Junior Participating
Preferred Stock or any share of any other series of Preferred
Stock or any share of any class of stock, or series thereof,
ranking on a parity with the Series A Junior Participating
Preferred Stock as to dividends, for any dividend period unless
at the same time a like proportionate dividend for the same
dividend period, ratably in proportion to the respective
dividends applicable thereto, shall be declared and paid, or set
apart for payment on, all shares of the Series A Junior
Participating Preferred Stock and all shares of all other series
of Preferred Stock and all shares of any class, or series
thereof, ranking on a parity with the Series A Junior
Participating Preferred Stock as to dividends, then issued and
outstanding and entitled to receive dividends.
(d) Reacquired Shares. Any shares of Series A Junior
Participating 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 shares shall upon their
cancellation become authorized but unissued shares of Preferred Stock
and may be reissued as part of a new series of Preferred Stock, subject
to the conditions and restrictions on issuance set forth herein, in the
Amended and Restated Articles of Incorporation of the Corporation
(including Articles of Amendment duly adopted in accordance with the
North Carolina Business Corporation Act) creating a series of Preferred
Stock or any similar stock, or as otherwise required by law.
(e) Liquidation, Dissolution or Winding Up.
(i) Upon any liquidation (voluntary or otherwise),
dissolution or winding up of the Corporation, no distribution
shall be made to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Junior Participating Preferred Stock
unless, prior thereto, the holders of shares of Series A Junior
Participating Preferred Stock shall have received $100 per share,
plus an
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amount equal to all accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of
such payment (the "Series A Liquidation Preference"). Following
the payment of the full amount of the Series A Liquidation
Preference, no additional distributions shall be made to the
holders of shares of Series A Junior Participating Preferred
Stock unless, prior thereto, the holders of shares of Common
Stock shall have received an amount per share (the "Common
Adjustment") equal to the quotient obtained by dividing (a) the
Series A Liquidation Preference by (b) 100 (as appropriately
adjusted as set forth in subparagraph (iii) below to reflect such
events as stock splits, stock dividends and recapitalizations
with respect to the Common Stock) (such number in clause (b), the
"Adjustment Number"). Following the payment of the full amount of
the Series A Liquidation Preference and the Common Adjustment in
respect of all outstanding shares of Series A Junior
Participating Preferred Stock and Common Stock, respectively,
holders of Series A Junior Participating Preferred Stock and
holders of shares of Common Stock shall receive their ratable and
proportionate share of the remaining assets to be distributed in
the ratio of the Adjustment Number to one (1) with respect to
such Series A Junior Participating Preferred Stock and Common
Stock, on a per share basis, respectively.
(ii) In the event, however, that there are not sufficient
assets available to permit payment in full of the Series A
Liquidation Preference and the liquidation preferences of all
other series of Preferred Stock, if any, which rank on a parity
with the Series A Junior Participating Preferred Stock, then such
remaining assets shall be distributed ratably to the holders of
the Series A Junior Participating Preferred Stock and such parity
shares in proportion to their respective liquidation preferences.
In the event that there are not sufficient assets available to
permit payment in full of the Common Adjustment, then such
remaining assets shall be distributed ratably to the holders of
Common Stock.
(iii) In the event the Corporation shall at any time on or
after the Rights Declaration Date (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivide
the outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares, then in each such
case the Adjustment Number in effect immediately prior to such
event shall be adjusted by multiplying such Adjustment Number by
a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
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(iv) Neither the sale, lease or conveyance of all or
substantially all of the property or business of the Corporation,
nor the merger, consolidation or statutory share exchange of the
Corporation into or with any other corporation or the merger,
consolidation or statutory share exchange of any other
corporation into or with the Corporation, shall be deemed to be a
liquidation, dissolution or winding-up, voluntary or involuntary,
for the purposes of this Paragraph (e).
(f) Statutory Share Exchange, Merger Consolidation, etc. In case
the Corporation shall enter into any statutory share exchange, merger,
consolidation, combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the
shares of Series A Junior Participating Preferred Stock shall at the
same time be similarly exchanged or changed in an amount per share
(subject to the provision for adjustment hereinafter set forth) equal to
100 times 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 changed or exchanged. In the event
the Corporation shall at any time on or after the Rights Declaration
Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine or consolidate the outstanding Common Stock into a smaller
number of shares, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of
Series A Junior Participating Preferred Stock shall be adjusted by
multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(g) No Redemption. The shares of Series A Junior Participating
Preferred Stock shall not be redeemable.
(h) Ranking. The Series A Junior Participating Preferred Stock
shall rank junior to all other series of the Corporation's Preferred
Stock as to the payment of dividends and the distribution of assets,
unless the terms of any such series shall provide otherwise.
(i) Amendment. The Amended and Restated Articles of Incorporation
of the Corporation shall not be further amended in any manner which
would materially alter or change the powers, preferences or special
rights of the Series A Junior Participating Preferred Stock so as to
affect them adversely, except in accordance with the provisions of
Section 55-10-04 of the North Carolina Business Corporation Act, or as
otherwise permitted by law.
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(j) Fractional Shares. Series A Junior Participating Preferred
Stock may be issued in fractions of a share (which shall be integral
multiples of one one-hundredth of a share of Series A Junior
Participating Preferred Stock), which 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 Junior Participating
Preferred Stock.
This 23rd day of February, 1999.
C3, INC.
By: /s/ Robert S. Thomas
----------------------------
Name: Robert S. Thomas
Title: President
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