Exhibit 3.9
RECORD OF CHARTERS, 46-47, STATE OF MISSISSIPPI
- --------------------------------------------------------------------------------
MISSISSIPPI, PTG. CO. VICKSBURG 27930
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No. 123 W THE CHARTER OF INCORPORATION OF
SOUTHERN JITNEY JUNGLE COMPANY
1. The corporate title of said company is Southern Jitney Jungle Company.
2. The names of the incorporators are:
W. H. Holman Postoffice Jackson, Miss.
Elise M. Holman Postoffice Jackson, Miss.
W. B. McCarty Postoffice Jackson, Miss.
Elizabeth A. McCarty Postoffice Jackson, Miss.
J. M. Holman Postoffice Jackson, Miss.
Charline G. Holman Postoffice Jackson, Miss.
3. The domicile is at Jackson, Mississippi.
4. Amount of capital stock and particulars as to class or classes thereof:
$50,000.00 of capital stock, all of the same class.
5. Number of shares for each class and par value thereof: 500 shares
capital stock, all of the same class, having a par value of $100.00 per share.
6. The period of existence (not to exceed fifty years) is 50 years.
7. The purpose for which it is created: To acquire by purchase, or
otherwise, to own and operate a chain of retail grocery stores and markets in
various cities and towns in the state of Mississippi, and elsewhere, together
with such bakery, delicatessen, lunch counter, or lunch room departments as may
be desirable; and to buy, own, hold, lease, improve, enlarge and use such real
estate and personal property, and to construct such buildings as may be
necessary or useful in the conduct of such business, and to sell, mortgage or
hypothecate the same, and generally to do and perform all such acts, and enter
into and perform such contracts, and to borrow such money, with security or
otherwise as may be usual, incident or necessary to the business aforesaid.
The rights and powers that may be exercised by this corporation, in
addition to the foregoing, are those conferred by Chapter 4, Title 21, Code of
Mississippi of 1942, and amendments thereto.
8. Number of Shares of each class to be subscribed and paid for before the
corporation may begin business.
100 shares of capital stock, all of the same class.
W. B. McCarty
Charline G. Holman
Elise M. Holman
J. M. Holman
W. H. Holman
Elizabeth A. McCarty Incorporators
ACKNOWLEDGMENT
STATE OF MISSISSIPPI )
COUNTY OF HINDS. )
This day personally appeared before me, the undersigned authority in
and for said county and state, W. H. Holman, Elise M. Holman, W. B. McCarty,
Elizabeth A. McCarty, J. M. Holman and Charline G. Holman incorporators of the
corporation known as the Southern Jitney Jungle Company who acknowledged that
(they) signed and executed the above and foregoing articles of incorporation as
(their) act and deed on this the 24th day of April, 1946.
(SEAL OF NOTARY PUBLIC) Eckford Bell, Notary Public
My Commission Expires April 22, 1947.
Received at the office of the Secretary of State this the 24th day of
April, A. D., 1946, together with the sum of $110.00 deposited to cover the
recording fee, and referred to the Attorney General for his opinion.
Walker Wood, Secretary of State
Jackson, Miss., April 25th, 1946.
I have examined this charter of incorporation and am of the opinion
that it is not violative of the Constitution and laws of the state, or of the
United States.
Greek L. Ride, Attorney General
By W. B. Fontaine, Assistant Attorney General
STATE OF MISSISSIPPI
EXECUTIVE OFFICE, JACKSON.
The within and foregoing Charter of Incorporation of SOUTHERN JITNEY
JUNGLE COMPANY is hereby approved.
(GREAT SEAL) In testimony whereof, I have hereunto set my hand and caused
the Great Seal of the State of Mississippi to be affixed, this
Twenty-fifth day of April, 1946.
By the Governor: Thos. L. Bailey, GOVERNOR
Walker Wood, Secretary of State
Recorded: April 25th, 1946.
See File $20.00 702203
================================================================================
State of Mississippi
[SEAL]
Office of Secretary of State
Jackson
CERTIFICATE OF AMENDMENT
of
SOUTHERN JITNEY JUNGLE COMPANY
The undersigned, as Secretary of State of the State of Mississippi, hereby
certifies that duplicate originals of Articles of Amendment to the Articles of
Incorporation of the above corporation duly signed and verified pursuant to the
provisions of the Mississippi Business Corporation Act, have been received in
this office and are found to conform to law.
ACCORDINGLY the undersigned, as such Secretary of State, and by virtue of
the authority vested in him by law, hereby issues this Certificate of Amendment
to the Articles of Incorporation and attaches hereto a duplicate original of the
Articles of Amendment.
Given under my hand and Seal of Office,
this the 26th day of June 1986.
Seal
/s/ [Illegible]
SECRETARY OF STATE.
C-11
================================================================================
FILED
JUN 26, 1986
Dick Molpus
SECRETARY
OF STATE
(TO BE EXECUTED IN DUPLICATE)
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
SOUTHERN JITNEY JUNGLE COMPANY
Pursuant to the provisions of Section 61 of Mississippi Business
Corporation Act, the undersigned corporation adopts the following Articles of
Amendment to its Articles of Incorporation:
FIRST: The name of this corporation is Southern Jitney Jungle Company.
SECOND: The following amendment of the Articles of Incorporation was
adopted by the shareholders of the corporation on June 25, 1986 in the manner
prescribed by the Mississippi Business Corporation Act:
(Insert Amendment)
"The corporation elects not to be governed by the Mississippi
Shareholder Protection Act, Mississippi Code Annotated Section
79-25-1."
THIRD: The number of shares of the corporation outstanding at the time of
such adoption was 489 and the number of shares entitle to vote thereon was
489.
FOURTH: The designation and number of outstanding shares of each class
entitled to vote thereon as a class were as follows:
Class (Note 1) Number of Shares
None
C-10 -1-
FIFTH: The number of shares voted for such amendment was 471; and the
number of shares voted against such amendment was 0.
SIXTH: The number of shares of each class entitled to vote thereon as a
class voted for and against such amendment; respectively, was:
Number of Shares Voted
Class (Note 1) For Against
None
SEVENTH: The manner, if not set forth in such amendment, in which any
exchange, reclassification, or cancellation of issued shares provided for in the
amendment shall be effected, is as follows: (Note 2)
No Change
EIGHTH: The manner in which such amendment effects a change in the amount
of stated capital, and the amount of stated capital (expressed in dollars) as
changed by such amendment, are as follows: (Note 2)
No Change
Dated June 25, 1986 Southern Jitney Jungle Company
-----------------------------------
(Exact Corporate Title)
By /s/ W.H. Holman, Jr.
-------------------------------
Its ____________ President
Notes: 1. If inapplicable, insert "None",
2. If inapplicable, insert "No Change".
By /s/ Roger P. Friou
-------------------------------
Its ____________ Secretary
STATE OF MISSISSIPPI }
} SS.
COUNTY OF HINDS }
I, Lora Dean, a notary public, do hereby certify that on this 25th day of
June, 1986, personally appeared before me W.H. Holman, Jr., who, being by me
first duly sworn, declared that he is the President of Southern Jitney Jungle
Company, that he executed the foregoing document as President of the
corporation, and that the statements therein contained are true.
/s/ Lora Dean
----------------------------------
Notary Public
My commission expires My Commission Expires Sept. 16, 1988
(NOTARIAL SEAL)
C-10 -2-
STATE OF MISSISSIPPI }
} SS.
COUNTY OF HINDS }
I, Lora Dean, a notary public, do hereby certify that on this 25th day of
June, 1986, personally appeared before me Roger P. Friou, who, being by me first
duly sworn, declared that he is the Secretary of Southern Jitney Jungle Company,
that he executed the foregoing document as Secretary of the corporation, and
that the statements therein contained are true.
/s/ Lora Dean
----------------------------------
Notary Public
My commission expires My Commission Expires Sept. 16, 1988
(NOTARIAL SEAL)
[Illegible]
228213
ARTICLES OF AMENDMENT
(Attach conformed copy)
|X| PROFIT |_| NONPROFIT
(Mark appropriate box)
The undersigned corporation, pursuant to Section 79-4-10.06 (if a profit
corporation) or Section 79-11-305 (if a nonprofit corporation) of the
Mississippi Code of 1972, hereby executes the following document and sets forth:
1. The name of the corporation is Southern Jitney Jungle Company
2. Set forth the text of each amendment adopted. (Attach page.)
3. If a profit amendment provides for an exchange, reclassification, or
cancellation of issued shares, set forth the provisions for implementing
the amendment if they are not contained in the amendment itself. (Attach
page.)
4. The amendment(s) was (were) adopted July 20, 1986 by Shareholders on
Board's recommendation
FOR PROFIT CORPORATION
(a) adopted by |_| the incorporators |_| directors without shareholder
action and shareholder action was not required. (Check appropriate
box.)
FOR NONPROFIT CORPORATION
(b) adopted by |_| board of directors |_| incorporators without member
action and member action was not required. (Check appropriate box.)
FOR PROFIT CORPORATIONS
5. If the amendment was approved by shareholders:
(a) The designation, number of outstanding shares, number of votes
entitled to be cast by each voting group entitled to vote separately
on the amendment, and the number of votes of each voting group
indisputably represented at the meeting was:
No. outstanding No. of votes No. of votes
Designation shares entitled to be cast indisputably represented
----------- --------------- ------------------- ------------------------
All Common Stock 491 491 413
- ---------------- --------------- ------------------- ------------------------
- ---------------- --------------- ------------------- ------------------------
(b) Either the total number of votes cast for and against the amendment
by each voting group entitled to vote separately on the amendment
was:
Total no. of Total no. of
Voting group votes cast FOR votes cast AGAINST
------------ -------------- ------------------
All Common Stock 413 0
--------------------- --------------------- ------------------
--------------------- --------------------- ------------------
or the total number of undisputed votes cast for the amendment by
each voting group was:
Total no. of undisputed
Voting group vote cast FOR the plan
------------ ----------------------
-------------------- ----------------------------
-------------------- ----------------------------
and the number cast for the amendment by each voting group was sufficient
for approval by that voting group.
FOR NONPROFIT CORPORATIONS
6. If the amendment was approved by the members:
(a) The designation, number of memberships outstanding, number of votes
entitled to be cast by each class entitled to vote separately on the
amendment, and number of votes of each class indisputably
represented at the meeting was:
No. memberships No. of votes No. of votes
Designation outstanding entitled to be cast indisputably represented
----------- --------------- ------------------- ------------------------
- ---------------- --------------- ------------------- ------------------------
- ---------------- --------------- ------------------- ------------------------
(b) Either
(i) the total number of votes cast for and against the amendment
by each class entitled to vote separately on the amendment
was:
Total no. of votes cast Total no. of votes cast
Voting class FOR the amendment AGAINST the amendment
------------ ----------------------- -----------------------
--------------------- ------------------------ ------------------------
--------------------- ------------------------ ------------------------
or
(ii) the total number of undisputed votes cast for the amendment by
each class was:
Total no. of
undisputed votes cast
Voting group FOR the amendment
------------ ---------------------
-------------------- ----------------------------
-------------------- ----------------------------
and the number cast for the amendment by each class was sufficient for
approval by that voting group.
BY Roger P. Friou, Executive Vice-President & Secretary /s/ Roger P. Friou
-----------------------------------------------------------------------------
PRINTED NAME/CORPORATE TITLE SIGNATURE
[Letterhead of Elise V. Williams]
August 3, 1988
Secretary of State
Corporations Division
P.O. Box 136
Jackson, MS 39205
Dear Sir:
Enclosed please find an original and two copies of the Articles of
Amendment for Southern Jitney Jungle Company and a check payable to the
Secretary of State in the amount of Fifty Dollars ($50.00).
If everything is in order, please return a conformed copy to me.
Thank you for your assistance in this matter.
Sincerely,
/s/ Elise V. Williams
Elise V. Williams
EVW:mc
Encls.
ARTICLES OF AMENDMENT
PROFIT
The undersigned corporation, pursuant to Section 79-4-10.06 of the
Mississippi Code of 1972, hereby executes the following document and sets forth:
1. The name of the corporation is Southern Jitney Jungle Company.
2. The text of the amendment adopted to Article 6 is attached as Exhibit "A".
3. The amendment was adopted October 16, 1991.
4. The amendment was adopted by the board of directors without shareholder
action, and shareholder action was not required.
5. The text of the amendment adopted as Article 10 is attached as Exhibit
"B".
6. The amendment was adopted October 16, 1991.
7. (a) The designation, number of outstanding shares, number of votes
entitled to be cast by each voting group entitled to vote separately on
the amendment, and the number of votes of each voting group indisputably
represented at the meeting was:
No. of Votes No. of Votes
Designation No. Outstanding Entitled to be Indisputably
of Shares Shares Cast Represented
- ------------ --------------- -------------- ------------
Common stock 4910 4910 4070
(b) The total number of votes cast for and against the amendment by each
voting group entitled to vote separately on the amendment was:
Total No. of Total No. of Votes
Voting Group Votes Cast FOR Cast AGAINST
- ------------- -------------- ------------------
Common stock 4070 -0-
----------------------
Time: 8:00 A.M.
Amount Received:
$50.00
Filed 12/12/91
[Illegible]
--------------------
Secretary of State
State of Mississippi
----------------------
DATED: November 29, 1991.
SOUTHERN JITNEY JUNGLE COMPANY
BY: /s/ Roger P. Friou
----------------------------------
Roger P. Friou
Vice Chairman of the Board, Chief
Financial Officer and Secretary
2
EXHIBIT "A"
to
ARTICLES OF AMENDMENT
SOUTHERN JITNEY JUNGLE COMPANY
6. The duration of the corporation is perpetual.
EXHIBIT "B"
TO
ARTICLES OF AMENDMENT
SOUTHERN JITNEY JUNGLE CORPORATION
10. A director of the corporation shall not be liable to the corporation or its
shareholders for monetary damages for any action taken, or any failure to
take action, as a director, except liability for: (i) the amount of a
financial benefit received by a director to which he is not entitled; (ii)
an intentional infliction of harm on the corporation or the shareholders;
(iii) a violation of Miss. Code Ann. Section 79-4-833 (1972), as amended;
or (iv) an intentional violation of criminal law. No amendment or repeal
of this article shall apply to or have any effect on the liability or
alleged liability of any director of the corporation for or concerning any
action by a director occurring prior to such amendment or repeal.
RESOLUTION
At the annual meeting of the stockholders of Southern Jitney Jungle
Company, held at its office in the City of Jackson, Mississippi on July 20,
1988, pursuant to due notice, of which stockholders representing a majority of
issued and outstanding stock were present, on motion, duly seconded, the
following Resolution, the adoption of which was recommended to the stockholders
by the Board of Directors of this Corporation, was unanimously adopted:
RESOLVED, that the second and third lines of Paragraph No. 5 of the
Charter of Incorporation of Southern Jitney Jungle Company be
amended to read "Five Thousand (5000) shares of capital stock, all
of the same class, having a par value of Ten Dollars ($10.00) per
share"; that each share of common stock issued and outstanding be
split into ten common shares through a share dividend, with each
share having a par value of Ten Dollars ($10.00); that the proper
officers of the corporation are hereby authorized to make,
subscribe, acknowledge and execute and file or cause to be filed,
such certificate or certificates as may be required under the
Mississippi Business Corporation "Act for the purpose of effecting
the foregoing changes; and that the Board of Directors do or cause
to be done such other acts and things as in its discretion may be
necessary or advisable in connection with said split effect in the
form of a dividend.
F0013 - Page 1 of 3 OFFICE OF THE MISSISSIPPI SECRETARY OF STATE
P.O. BOX 136, JACKSON, MS 39205-0136 (601) 359-1333
[Bar Code] Articles of Merger or Share Exchange
Profit Corporation
The undersigned corporation pursuant to Section 79-4-11.05, as amended, hereby
executes the following document and sets forth:
1. Name of Corporation 1
--------------------------------------------------------------------------
==> McLemore's Wholesale & Retail Stores, Inc.
--------------------------------------------------------------------------
2. Name of Corporation 2
--------------------------------------------------------------------------
==> Southern Jitney Jungle Company
--------------------------------------------------------------------------
3. Name of Corporation 3
--------------------------------------------------------------------------
==>
--------------------------------------------------------------------------
FILED
Mar 01 1996
ERIC CLARK
Secretary of State
State of Mississippi
---------------------------
4. The future effective date is March 5, 1996 at 9:00 a.m.,
(Complete if applicable) Central Standard Time
---------------------------
5. The plan of merger or share exchange. (Attach page)
6. Mark appropriate box.
------
==> X (a) Shareholder approval of the plan of merger or share exchange
was not required.
------
OR
------
==> (b) If approval of the shareholders of one or more corporations
party to the merger or share exchange was required
------
(i) the designation, number of outstanding shares, and
number of votes entitled to be cast by each class
entitled to vote separately on the plan as to each
corporation were
Name of Corporation Designation No. of outstanding No. of votes
shares entitled to be cast
------------------- ----------- ------------------ -------------------
==>
------------------- ----------- ------------------ -------------------
------------------- ----------- ------------------ -------------------
==>
------------------- ----------- ------------------ -------------------
------------------- ----------- ------------------ -------------------
==>
------------------- ----------- ------------------ -------------------
F0013 - Page 2 of 3 OFFICE OF THE MISSISSIPPI SECRETARY OF STATE
P.O. BOX 136, JACKSON, MS 39205-0136 (601) 359-1333
[Bar Code] Articles of Merger or Share Exchange
Profit Corporation
AND EITHER
a. the total number of votes cast for and against the plan by each
class entitled to vote separately on the plan was
Name of Corporation Class Total no. of votes Total no. of votes
cast FOR the Plan cast AGAINST the Plan
------------------- ----------- ------------------ -------------------
==>
------------------- ----------- ------------------ -------------------
------------------- ----------- ------------------ -------------------
==>
------------------- ----------- ------------------ -------------------
------------------- ----------- ------------------ -------------------
==>
------------------- ----------- ------------------ -------------------
OR
b. the total number of undisputed votes cast for the plan separately
by each class was
Name of Corporation Class Total no. of undisputed
votes cast FOR the Plan
------------------- ----------- -----------------------
==>
------------------- ----------- -----------------------
------------------- ----------- -----------------------
==>
------------------- ----------- -----------------------
------------------- ----------- -----------------------
==>
------------------- ----------- -----------------------
and the number of votes cast for the plan by each class was sufficient for
approval by that class.
Name of Corporation 1
--------------------------------------------------------------------------
McLemore's Wholesale & Retail Stores, Inc.
--------------------------------------------------------------------------
By: Signature (Please keep writing within blocks)
------------------------
/s/ W. H. Holman, Jr.
------------------------
------------------------ -------------
Printed Name W. H. Holman, Jr. Title President
------------------------ -------------
F0013 - Page 3 of 3 OFFICE OF THE MISSISSIPPI SECRETARY OF STATE
P.O. BOX 136, JACKSON, MS 39205-0136 (601) 359-1333
[Bar Code] Articles of Merger or Share Exchange
Profit Corporation
Name of Corporation 2
- --------------------------------------------------------------------------------
Southern Jitney Jungle Company
- --------------------------------------------------------------------------------
By: Signature (Please keep writing within blocks)
------------------------
/s/ W. H. Holman, Jr.
------------------------
------------------------ -------------
Printed Name W. H. Holman, Jr. Title President
------------------------ -------------
Name of Corporation 1
--------------------------------------------------------------------------
--------------------------------------------------------------------------
By: Signature (Please keep writing within blocks)
------------------------
------------------------
------------------------ -------------
Printed Name Title
------------------------ -------------
NOTE
1. If shareholder approval is required, the plan must be approved by each
voting group entitled to vote on the plan by a majority of all votes
entitled to be cast by that voting group unless the Act or the articles of
incorporation provide for a greater vote, but not less than a majority of
all votes cast at a meeting.
2. The articles cannot be filed unless the corporation(s) has (have) paid all
fees and taxes (and delinquencies) imposed by law.
3. The articles must be similarly executed by each corporation that is a
party to the merger.
AGREEMENT AND PLAN OF MERGER OF
McLEMORE'S WHOLESALE & RETAIL STORES, INC.,
A LOUISIANA CORPORATION, INTO
SOUTHERN JITNEY JUNGLE COMPANY,
A MISSISSIPPI CORPORATION, AS THE SURVIVOR
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and entered
into as of the 26th day of February, 1996, by and between McLEMORE'S WHOLESALE &
RETAIL STORES, INC., a Louisiana corporation ("McLemore's"), and SOUTHERN JITNEY
JUNGLE COMPANY, a Mississippi corporation ("Southern"), and being the
constituent corporations in the merger provided for herein (collectively, the
"Constituent Corporations").
W I T N E S S E T H:
WHEREAS, McLemore's is a wholly-owned subsidiary of Southern;
WHEREAS, the Board of Directors of each of the Constituent Corporations
deems it desirable and in the best interest of the corporation that McLemore's
be merged into Southern; and
WHEREAS, in order to accomplish the objective set forth above, the
Constituent Corporations desire to merge pursuant to this Agreement and
consistent with the applicable laws of the States of Mississippi and Louisiana;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties agree as follows:
ARTICLE I
THE PLAN OF MERGER
1.01 Names of Parties. The names of the corporations proposing to merge
are: McLemore's Wholesale & Retail Stores, Inc., a Louisiana corporation, and
Southern Jitney Jungle Company, a Mississippi corporation. The name of the
surviving corporation upon the merger is "Southern Jitney Jungle Company."
1.02 Terms and Conditions of Merger.
(a) Effective Time. The merger of McLemore's into Southern (the "Merger")
shall become effective at 9:00 a.m., Central Standard Time, on March 5, 1996
(the "Effective Time").
(1) McLemore's shall be merged with and into Southern and Southern shall
continue its corporate existence and be the corporation surviving the Merger
(the "Surviving Corporation"). The Merger shall be pursuant to the provisions
of, and with the effect provided in, the Mississippi Business Corporation Act
and the laws of the State of Louisiana to the extent applicable thereto. At the
Effective Time, the separate corporate existence of McLemore's shall thereupon
cease, and said corporation shall be merged into Southern with the effect
provided in section 79-4-11.06 of the Mississippi Business Corporation Act and
La. R.S. 12:112(G), et seq.
(2) The Articles of Incorporation, as amended, of Southern shall be the
Articles of Incorporation of the Surviving Corporation, until amended as
provided by law.
(3) Until altered, amended or repealed as therein provided or otherwise in
accordance with law, the Bylaws of Southern that are in effect at the Effective
Time shall be the Bylaws of the Surviving Corporation.
(4) The directors of Southern shall be the directors of the Surviving
Corporation until their respective successors are duly elected and qualified
subject to the Bylaws thereof. Subject to the authority of the Board of
Directors of the Surviving Corporation, the officers of Southern shall be the
officers of the Surviving Corporation.
(5) The corporate existence of McLemore's shall be merged into and
continued in the Surviving Corporation. The established offices and facilities
of Southern immediately prior to the Merger shall become the established offices
and facilities of the Surviving Corporation. All rights, privileges, immunities,
powers and franchises of McLemore's in and to every type of property, real,
personal and mixed, and choses in action shall be transferred to and vested in
the Surviving Corporation by virtue of such Merger without any deed or other
document of transfer. At the Effective Time and thereafter, the Surviving
Corporation, without any order or other action on the part of any court or
otherwise, shall possess all rights, privileges, immunities, powers and
franchises, whether of a public or private nature, and be subject to all the
restrictions, disabilities and duties of each of the Constituent Corporations;
and all of each of the rights, privileges, immunities powers and franchises of
each of the Constituent Corporations, and all property, real, personal and
mixed, of each of the Constituent Corporations, and all debts and all other
choses in action and each and every interest, of or belonging to or due to
either of the
-2-
Constituent Corporations on whatever account, shall be vested in the
Surviving Corporation; and all property, rights, privileges, immunities,
powers, franchises and leasehold interests, and all and every other
interest shall be thereafter as effectively the property of the Surviving
Corporation as they were of the Constituent Corporations, and the title to
any real or personal property, vested by deed or otherwise in either of
the Constituent Corporations, shall not revert or be in any way impaired
by reason of the Merger; provided, however, that all rights of creditors
and all liens upon any property of any of the Constituent Corporations
shall be preserved unimpaired, limited in lien to the property affected by
such liens immediately prior to the Effective Time, all debts, liabilities
and duties of McLemore's shall thence forth attach to the Surviving
Corporation and may be enforced against the Surviving Corporation to the
extent as if such debts, liabilities or duties had been incurred or
contracted by the Surviving Corporation; and any claim existing or action
or proceeding pending by or against McLemore's may be prosecuted as if
such Merger had not taken place, or the Surviving Corporation may be
substituted in its place.
1.03 Exchange of Shares. The mode of carrying into effect the Merger and
the manner and basis of converting or exchanging the shares of each of the
Constituent Corporations into shares of the Surviving Corporation shall be as
follows:
(a) Constituent Corporation Common Stock. Upon the Effective Time of the
Merger, each issued share of Common Stock of McLemore's at such Effective Time
shall be surrendered and canceled as of the Effective Time, and no shares of
Common Stock of the Surviving Corporation shall be issued in exchange for all of
the issued and outstanding Common Stock of McLemore's.
(b) Surviving Corporation Common Stock. None of the shares of Common Stock
of the Surviving Corporation issued and outstanding at the Effective Time shall
be converted as a result of the Merger, but all of such shares shall remain
issued and outstanding shares of Common Stock of the Surviving Corporation.
1.04 Additional Terms.
(a) Waiver of Mailing Requirement. Southern, being the sole shareholder of
McLemore's, hereby waives the statutory requirements under La. R.S. 12: 112
(C)(1) of the Louisiana Business Corporation Act that a copy or summary of this
Agreement be mailed to each shareholder of McLemore's expressly for the purpose
of permitting McLemore's and Southern to deliver the Certificate of Merger to
the Secretary of State of Louisiana and Articles of Merger to the Secretary of
State of Mississippi for filing prior to thirty (30)
-3-
days after the date of mailing a copy of the Agreement to each shareholder of
McLemore's who does not waive the mailing requirement, as permitted by La.
R.S. 12:73 (D) of the Louisiana Business Corporation Act.
(b) Termination. This Agreement may be terminated at any time prior to the
Effective Time as provided in Article II of this Agreement.
ARTICLE II
TERMINATION OF AGREEMENT AND
ABANDONMENT OF MERGER
Anything herein to the contrary notwithstanding, this Agreement, and the
Merger contemplated hereby, may be terminated at any time prior to the filing of
the Articles of Merger with the Secretary of State of Mississippi or the filing
of a Certificate of Merger with the Secretary of State of Louisiana by the Board
of Directors of the Surviving Corporation.
In the event of the termination or abandonment of this Agreement pursuant
to the provisions of this Article II, this Agreement shall forthwith become null
and void and have no effect, and there shall be no liability on the part of
either party hereto.
ARTICLE III
MISCELLANEOUS
3.01 Waiver. Any of the terms or conditions of this Agreement may be
waived at any time by either party hereto.
3.02 Amendment. This Agreement shall be amended, extended or canceled only
by written instrument executed by or on behalf of each of the parties hereto.
3.03. Entire Contract. This Agreement constitutes the entire contract
between the parties and supersedes all other understandings with respect to the
subject matter hereof.
3.04 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Mississippi.
-4-
IN WITNESS WHEREOF, the parties have caused this Agreement and Plan of
Merger to be executed by duly authorized officers as of the 26th day of
February, 1996.
McLEMORE'S WHOLESALE & RETAIL
STORES, INC., a Louisiana
corporation
By: /s/ W. H. Holman, Jr., President
--------------------------------------
W. H. Holman, Jr., President
Attest: /s/ David R. Black
-------------------------
David R. Black,
Assistant Secretary
SOUTHERN JITNEY JUNGLE COMPANY,
a Mississippi corporation
By: /s/ W. H. Holman, Jr., President
--------------------------------------
W. H. Holman, Jr., President
Attest: /s/ David R. Black
-------------------------
David R. Black,
Assistant Secretary
-5-
FILED
MAR 05 1996
ERIC [ILLEGIBLE]
SECRETARY
OF STATE
ARTICLES OF MERGER OR SHARE EXCHANGE
PROFIT
The undersigned corporations, pursuant to Section 79-4-11.05, as amended, hereby
execute the following articles of merger and share exchange and set forth.
1. The names of the corporations are Southern Jitney Jungle Company, a
Mississippi corporation (the "Surviving Corporation") and JJ (Southern),
Inc. a Delaware corporation (the "Merging Corporation")
2. The plan of merger or share exchange. (Attached)
3. (Mark appropriate box.)
( ) (a) Shareholder approval of the plan of merger was not required.
(X) (b) If approval of the shareholders of one or more corporations party
to the merger or share exchange was required:
(i) the designation, number of outstanding shares, and number
of votes entitled to be cast by each voting group entitled to vote
separately on the plan as to each corporation were:
Number of No. of votes
Name of outstanding entitled to be
Corporation Designation shares cast
----------- ----------- ----------- --------------
Southern Jitney Jungle Company Common 4910 4910
JJ (Southern), Inc. Common 1000 1000
(ii) And either
against the plan by each voting group entitled to vote separately on the plan
was:
Total Number of Total Number of
Name of votes cast FOR votes cast
Corporation Voting Group the plan AGAINST the plan
----------- ------------ --------------- ----------------
Southern Jitney Jungle Company Common 4910 0
JJ (Southern), Inc. Common 1000 0
OR
3. b. the total number of undisputed votes cast for the plan separately by
each voting group was:
Total Number of
Name of Undisputed Votes Cast
Corporation Voting Group FOR the Plan
-------------- ------------ ---------------------
- --------------------- -----------------------
- --------------------- -----------------------
- --------------------- -----------------------
and the number cast for the plan by each voting group was sufficient for
approval by that voting group.
Southern Jitney jungle Company
- --------------------------------------------------------------------------------
NAME OF CORPORATION
By: W. H. Holman, Jr./President /s/ W. H. Holman
- --------------------------------------------------------------------------------
PRINTED NAME/CORPORATE TITLE SIGNATURE
JJ (Southern), Inc.
- --------------------------------------------------------------------------------
NAME OF CORPORATION
By: Harold 0. Rosser, II/President /s/ Harold 0. Rosser
- --------------------------------------------------------------------------------
PRINTED NAME/CORPORATE TITLE SIGNATURE
- --------------------------------------------------------------------------------
NAME OF CORPORATION
By: Harold 0. Rosser, II/President
- --------------------------------------------------------------------------------
PRINTED NAME/CORPORATE TITLE SIGNATURE
NOTE
1. If shareholder approval is required, the plan must be approved by each
voting group entitled to vote on the plan by a majority of all votes
entitled to be cast by that voting group unless the Act or the articles of
incorporation provide for a greater or lesser vote, but not less than a
majority of all votes cast at a meeting.
2. The articles cannot be filed unless the corporation(s) has (have) paid all
fees and taxes (and delinquencies) imposed by law.
3. The articles must be similarly executed by each corporation that is a
party to the merger.
AGREEMENT AND PLAN OF MERGER
SOUTHERN JITNEY JUNGLE COMPANY AND JJ (SOUTHERN), INC.
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement and Plan of Merger"),
dated as of March 5, 1996, is made and entered into by and between JJ
(Southern), Inc., a Delaware corporation (the "Merging Corporation"), and
Southern Jitney Jungle Company, a Mississippi corporation (the "Surviving
Corporation") (such Corporations being sometimes collectively referred to
hereinafter as the "Constituent Corporations").
WITNESSETH:
WHEREAS, the Constituent Corporations desire to effect a merger of the
Merging Corporation with and into the Surviving Corporation pursuant to
provisions of the Mississippi Business Corporation Act (the "MBCA") and the
Delaware General Corporation Law (the "DGCL");
WHEREAS, the respective Boards of Directors of the Merging Corporation and
the Surviving Corporation have determined that it is advisable and in the best
interests of each of the Constituent Corporations that the Merging Corporation
merge with and into the Surviving Corporation upon the terms and subject to the
conditions herein provided;
WHEREAS, the respective Boards of Directors of the Merging Corporation and
the Surviving Corporation have, by resolutions duly adopted, (a) approved this
Agreement and Plan of Merger and directed that it be executed by the undersigned
officers and (b) have directed that it be submitted to a vote of the
shareholders of the Merging Corporation and the shareholders of the Surviving
Corporation, respectively;
WHEREAS, the shareholders of the Merging Corporation and the shareholders
of the Surviving Corporation have approved this Agreement and Plan of Merger
NOW THEREFORE, in consideration of the approval of the agreements herein
contained, the parties agree that the Merging Corporation shall be merged with
and into the Surviving Corporation, and that the terms and conditions of such
merger shall be as hereinafter set forth.
I. THE MERGER
1.1. Surviving Corporation. Subject to the terms and provisions of this
Agreement and Plan of Merger, and in accordance with the MBCA and the DGCL, at
the Effective Time (as defined in Section 1.8 hereof) the Merging Corporation
shall be merged with and into the Surviving Corporation (the "Merger"). The
Surviving Corporation shall be the surviving corporation of the Merger and shall
continue its corporate existence under the laws of the State of Mississippi. At
the Effective Time the separate corporate existence of the Merging Corporation
shall cease.
1.2. Registered Office of Surviving Corporation. The Surviving
Corporation's registered office in the State of Mississippi is located at 1770
Ellis Avenue, Suite 200, County of Hinds, Jackson, Mississippi 39204, and the
name of its registered agent in the State of Mississippi is W. H. Holman, Jr.
1.3. Effects of the Merger. At the Effective Time, the Merger shall have
the effects provided for herein and in Section 79-4-11.06 of the MBCA and
Sections 252 and 259 of the DGCL
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1.4. Articles of Incorporation. As of the Effective Time, the Amended and
Restated Articles of Incorporation attached hereto as Exhibit A shall become the
Amended and Restated Articles of Incorporation of the Surviving Corporation (the
"Articles of Incorporation") until thereafter duly altered, amended or repealed
in accordance with the provisions thereof and applicable law.
1.5. By-Laws. As of the Effective Time, the By-Laws of the Surviving
Corporation as in effect immediately prior to the Effective Time shall become
the By-Laws of the Surviving Corporation (the "By-Laws") until thereafter duly
altered, amended or repealed in accordance with the provisions thereof, the
Articles of Incorporation and applicable law.
1.6. Directors of the Surviving Corporation. At the Effective Time, the
directors of JJ (Southern), Inc. immediately prior to the Merger shall become
the directors of the Surviving Corporation and each such person shall serve as a
director of the Surviving Corporation until his successor is duly elected and
qualified in the manner provided in the By-Laws or as otherwise provided by law
or until his earlier death, resignation or removal in the manner provided in the
By-Laws or as otherwise provided by law.
1.7. Officers of the Surviving Corporation. At the Effective Time, each
person who is an officer of the Surviving Corporation immediately prior to the
Effective Time shall become an officer of the Surviving Corporation with each
such person to hold the same office in the Surviving Corporation, in accordance
with the By-Laws, as he or she held in the Surviving Corporation immediately
prior to the Effective Time.
1.8. Effective Time. The Merger shall become effective upon filing (the
"Effective Time"), provided that a certificate of merger has been filed with the
Secretary
-3-
of State of the State of Delaware in accordance with Section 252 of the DGCL and
articles of merger have been filed with the Secretary of State of the State of
Mississippi in accordance with the provisions of Section 79-4-11.05 of the MBCA.
II. MANNER AND BASIS OF EXCHANGING OR CONVERTING SHARES
2.1. Capitalization of Constituent Corporations.
(a) The present capitalization of the Surviving Corporation consists
of 5,000 shares of Common Stock, par value $10.00 per share ("Surviving
Corporation Common Stock"), 4,910 shares of which are issued and outstanding.
(b) The present capitalization of the Merging Corporation consists
of 1,000,000 shares of Common Stock, par value $.01 per share ("Merging
Corporation Common Stock"), 1,000 shares of which are issued and outstanding and
1,000,000 shares of Preferred Stock, par value $.01 per share, none of which is
issued and outstanding.
2.2. Exchange or Conversion of Shares. At the Effective Time, by virtue of
the Merger and without any action on the part of the holder thereof, all of the
shares of Merging Corporation Common Stock shall be cancelled and all of the
Surviving Corporation Common Stock issued and outstanding immediately prior to
the Effective Time shall remain as fully paid and nonassessable shares of
Surviving Corporation Common Stock.
2.3. Effect of Conversion. At and after the Effective Time, each share
certificate which immediately prior to the Effective Time represented
outstanding shares of Surviving Corporation Common Stock (a "Surviving
Corporation Certificate") shall be deemed for all purposes to evidence ownership
of, and to represent, the number of
-4-
shares of Surviving Corporation Common Stock represented by such certificates
immediately prior to the Effective Time pursuant to Section 2.2 hereof. The
registered owner of any Surviving Corporation Certificate outstanding
immediately prior to the Effective Time as such owner appears in the books and
records of the Surviving Corporation immediately prior to the Effective Time,
shall, until the Surviving Corporation Certificate is surrendered for transfer
or exchange, have and be entitled to exercise any voting and other rights with
respect to and, subject to Section 2.4 hereof, to receive any dividends or other
distributions on the shares of Surviving Corporation Common Stock.
2.4. Surrender of Certificates. The holder of a Merging Corporation
Certificate shall surrender the Merging Corporation Certificate after the
Effective Time to the Surviving Corporation for cancellation.
2.5. Effect of Dissenters' Rights. All shares of stock of the Constituent
Corporations have been voted in favor of the Merger; therefore, no shareholders
are entitled to elect dissenters rights.
III. APPROVAL; AMENDMENT; TERMINATION
3.1. Approval. This Agreement and Plan of Merger has been approved by the
shareholders of the Surviving Corporation pursuant to Section 79-4-11.03 of the
MBCA and by the shareholders of the Merging Corporation pursuant to Section
251(c) of the DGCL.
3.2. Abandonment. At any time prior to the Effective Time, this Agreement
and Plan of Merger may be terminated and the Merger may be abandoned by the
Board of
- 5 -
Directors of either of the Constituent Corporations, or both, notwithstanding
approval of this Agreement and Plan of Merger by the shareholders of the Merging
Corporation and the shareholders of the Surviving Corporation.
3.3. Amendment. This Agreement and Plan of Merger may be amended, modified
or supplemented by written agreement of the Constituent Corporations at any time
prior to the Effective Time, except as provided in Section 251(d) of the DGCL
IV. MISCELLANEOUS
4.1. Additional Actions.
(a) Subject to Section 3.3 hereof, if either party hereto shall so
request prior to the Effective Time, the other party hereto shall from time to
time and at any reasonable time execute and deliver to the other party such
other and further documents, instruments and assurances and take such other
actions as may be reasonably necessary, appropriate or convenient in order to
carry out the purpose and intent of this Agreement and Plan of Merger and the
transactions contemplated hereby.
(b) If, at any time after the Effective Time, the Surviving
Corporation shall consider or be advised that the execution and delivery of any
further documents, instruments or assurances or the taking of any other actions
may be necessary, appropriate or convenient to (i) vest, perfect or confirm, of
record or otherwise, in the Surviving Corporation, title to and possession of
any property or right of the Merging Corporation acquired or to be acquired by
reason of, or as a result of, the Merger or (ii) otherwise carry out the purpose
and intent of this Agreement and Plan of Merger and the transactions
contemplated hereby, the Merging Corporation and its proper officers
-6-
and directors shall be deemed to have granted hereby to the Surviving
Corporation an irrevocable power of attorney to execute and deliver all such
documents, instruments and assurances and to take all actions necessary,
appropriate or convenient to vest, perfect or confirm title to and the
possession of such property or rights in the Surviving Corporation and otherwise
to carry out the purpose and intent of this Agreement and Plan of Merger and the
transactions contemplated hereby and the proper officers and directors of the
Surviving Corporation are hereby fully authorized in the name of the Merging
Corporation or otherwise to take any and all such action.
4.2. Notices. All notices and other communications required or permitted
hereunder shall be in writing and, unless otherwise provided in this Agreement
and Plan of Merger, shall be deemed to have been duly given when delivered to
the addressees at the addresses specified below:
(a) If to the Merging Corporation:
JJ (Southern), Inc.
126 East 56th Street
29th Floor
New York, NY 10022
Attention: Harold 0. Rosser II, President
(b) If to the Surviving Corporation:
Southern Jitney Jungle Company
1770 Ellis Avenue
Suite 200
Jackson, MS 39204
Attention: W.H. Holman, Jr.
or to such other address or addresses as either party may from time to time
designate as to itself by like notice.
- 7 -
4.3. Waiver. The Merging Corporation, on the one hand, and the Surviving
Corporation, on the other hand, by written notice to the other, may waive,
modify or extend the time for performance of any of the obligations or other
actions of the other under this Agreement and Plan of Merger; provided, however,
that neither party may without the consent of the other make or grant such
extension of time, waiver or modification of performance with respect to its own
obligations hereunder. Except as provided in the preceding sentence, no action
taken pursuant to this Agreement and Plan of Merger shall be deemed to
constitute a waiver of either party's rights hereunder and shall not operate or
be construed as a waiver of any subsequent breach, whether of a similar or
dissimilar nature.
4.4. Entire Agreement. This Agreement and Plan of Merger supersedes any
other agreement, whether written or oral, that may have been made or entered
into by the Merging Corporation or the Surviving Corporation (or by any
director, officer or representative of such parties) relating to the matters
contemplated hereby. This Agreement and Plan of Merger constitutes the entire
agreement by and between the parties on the subject hereof and there are no
agreements or commitments except as expressly set forth herein.
4.5. Limitations on Rights of the Parties. Nothing expressed or implied in
this Agreement and Plan of Merger is intended or shall be construed to confer
upon or give any person, firm or corporation other than the parties hereto and
their successors and permitted assigns any rights or remedies under or by reason
of this Agreement and Plan of Merger or any transaction contemplated hereby.
-8-
4.6. Applicable Law. This Agreement and Plan of Merger and the legal
relations between the parties hereto shall be governed by and construed in
accordance with the substantive laws of the State of Mississippi, without giving
effect to the principles of conflict of laws thereof, except to the extent that
the effectiveness of the Merger may be subject to specific requirements of
Delaware law.
4.7. Execution in Counterparts. This Agreement and Plan of Merger may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same agreement.
4.8. Titles and Headings. Titles and headings to articles and sections
herein are inserted for convenience of reference only, and are not intended to
be a part of or to affect the meaning or interpretation of this Agreement and
Plan of Merger.
4.9. Partial Invalidity. If any term or provision of this Agreement and
Plan of Merger or the application thereof to any party or circumstance shall, to
any extent, be held invalid and unenforceable, the remainder of this Agreement
and Plan of Merger, or the application of such term or provision to persons or
circumstances other than those as to whom or which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Agreement and Plan of Merger shall be valid and enforceable to the fullest
extent permitted by law.
-9-
IN WITNESS WHEREOF, the Merging Corporation and the Surviving Corporation
have caused this Agreement and Plan of Merger to be executed by their respective
duly authorized officers as of the date first above written.
MERGING CORPORATION:
JJ (SOUTHERN), INC., a
Delaware corporation
By: /s/ Harold O. Rones II
----------------------------------------
Name: Harold O. Rones II
Title: President
SURVIVING CORPORATION:
SOUTHERN JITNEY JUNGLE COMPANY,
a Mississippi corporation
By: /s/ W. H. Holman, Jr.
----------------------------------------
Name: W. H. Holman, Jr.
Title: President
-10-
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
SOUTHERN JITNEY JUNGLE COMPANY
FIRST: The name of the corporation is Southern Jitney Jungle Company.
SECOND: The corporation is authorized to issue 5,000 shares of Common
Stock, par value of $10.00 per share. Shareholders shall not have the right to
cumulate their votes for directors nor shall the shareholders be entitled to
multiply the number of votes they are entitled to cast by the number of
directors for whom they are entitled to vote and cast the product for a single
candidate or distribute the product among two (2) or more candidates.
THIRD: The street address of the corporation's registered office is 453
North Mill Street, Jackson, Mississippi 39202, and the name of its registered
agent at that office is W. H. Holman, Jr.
FOURTH: A director of the corporation will not be liable to the
corporation or to its shareholders for monetary damages for any action taken, or
any failure to take action, as a director, except liability for: (i) the amount
of a financial benefit received by a director to which he is not entitled; (ii)
an intentional infliction of harm on the corporation or the shareholders; (iii)
a violation of Section 79-4-8.33 of the Mississippi Code of 1972, as amended; or
(iv) an intentional violation of criminal law. If the Mississippi Business
Corporation Act is amended 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 Mississippi Business Corporation Act, as so amended. Any repeal
or modification of this Article 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.
FIFTH: Provisions with respect to indemnification are as follows:
(A) Definitions. In this article:
(1) "corporation" includes this corporation and any domestic or foreign
predecessor entity of the corporation in a merger or other transaction in which
the predecessor's existence ceased upon consummation of the transaction;
(2) "director" means an individual who is or was a director of the
corporation or an individual who, while a director of the corporation, is or was
serving at the corporation's request as a director, officer, partner, trustee,
employee or agent of another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise. A director shall be
considered to be serving an employee benefit plan at the
-----------
EXHIBIT
"A"
____
-----------
involve services by, him to the plan or to participants in or beneficiaries of
the plan. "Director" includes, unless the context requires otherwise, the estate
or personal representative of a director;
(3) "expenses" include counsel fees;
(4) "liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employee
benefit plan), or reasonable expenses incurred with respect to a proceeding;
(5) "official capacity" means: (i) when used with respect to a director,
the office of director in the corporation; and (ii) when used with respect to an
individual other than a director as contemplated in Section (G) hereof, the
office in the corporation held by the officer or the employment or agency
relationship undertaken by the employee or agent on behalf of the corporation.
As used herein, "official capacity" does not include service for any other
foreign or domestic corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise;
(6) "party" includes an individual who was, is, or is threatened to be
made a named defendant or respondent in a proceeding;
(7) "proceeding" means any threatened, pending, or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative and
whether formal or informal;
(B) Authority to Indemnify. (a) Except as provided in subsection (d)
hereof, the corporation shall indemnify any individual made a party to a
proceeding because he is or was a director against liability incurred in the
proceeding if:
(1) He conducted himself in good faith; and
(2) He reasonably believed:
(i) In the case of conduct in his official capacity with the
corporation, that his conduct was in its best interests; and
(ii) In all other cases, that his conduct was at least not opposed
to its best interests; and
(3) In the case of any criminal proceeding, he had no reasonable cause to
believe his conduct was unlawful.
(b) A director's conduct with respect to an employee benefit plan for a
purpose he reasonably believed to be in the interest of the participants in and
beneficiaries of the plan is conduct that satisfies the requirement of
subsection (a)(2)(ii) of Section (B) hereof.
2
(c) The termination of a proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director did not meet the standard of conduct
described in this section.
(d) The corporation may not indemnify a director under this section:
(1) In connection with a proceeding by or in the right of the
corporation in which the director was adjudged liable to the
corporation; or
(2) In connection with any other proceeding charging improper
personal benefit to him, whether or not involving action in
his official capacity, in which he was adjudged liable on the
basis that personal benefit was improperly received by him.
(e) Indemnification permitted under this section in connection with a
proceeding by or in the right of the corporation shall be limited to reasonable
expenses incurred in connection with the proceeding.
(C) Mandatory Indemnification. Unless otherwise limited by these articles
of incorporation, the corporation shall indemnify a director who was wholly
successful, on the merits or otherwise, in the defense of any proceeding to
which he was a party because he is or was a director of the corporation against
reasonable expenses incurred by him in connection with the proceeding.
(D) Advance for Expenses. (a) The corporation shall pay for or reimburse
the reasonable expenses incurred by a director who is a party to a proceeding in
advance of final disposition of the proceeding if:
(1) The director furnishes the corporation a written affirmation
of his good faith belief that he has met the standard of
conduct described in subsection 2 of Section (B) hereof;
(2) The director furnishes the corporation a written undertaking,
executed personally or on his behalf, to repay the advance if
it shall be ultimately determined that he did not meet the
standard of conduct; and
(3) A determination shall be made that the facts then known to
those making the determination would not preclude
indemnification under this article.
(b) The undertaking required by subsection (a) (2) of Section (D) hereof
must be an unlimited general obligation of the director but need not be secured
and may be accepted without reference to financial ability to make repayment.
3
(c) Determination and authorizations of payments under this section shall
be made in the manner specified in Section (F) hereof.
(E) Court Ordered Indemnification. Unless these articles of incorporation
provide otherwise, a director of the corporation who is a party to a proceeding
may apply for indemnification to the court conducting the proceeding or to
another court of competent jurisdiction.
(F) Determination and Authorization of Indemnification. (a) The
corporation may not indemnify a director under Section (B) hereof unless
authorized in the specific case after a determination has been made that
indemnification of the director shall be permissible in the circumstances
because he has met the standard of conduct set forth in Section (B) hereof.
(b) The determination shall be made:
(1) By the board of directors by majority vote of a quorum
consisting of directors not at the time parties to the
proceeding;
(2) If a quorum cannot be obtained under subsection (b)(1) of
Section (F) hereof, by majority vote of a committee duly
designated by the board of directors (in which designation
directors who are parties may participate), consisting solely
of two (2) or more directors not at the time parties to the
proceeding;
(3) By special legal counsel:
(i) Selected by the board of directors or its committee in
the manner prescribed in subsection (b)(1) or (b)(2) of
Section (F) hereof; or
(ii) If a quorum of the board of directors cannot be obtained
under subsection (b)(1) of Section (F) hereof and a
committee cannot be designated under subsection (b)(2)
of Section (F) hereof, selected by a majority vote of
the full board of directors (in which selection
directors who are parties may participate); or
(4) By the shareholders, but shares owned by or voted under the
control of directors who are at the time parties to the
proceeding may not be voted on the determination.
(c) Authorization of indemnification and evaluation as to reasonableness
of expenses shall be made in the same manner as the determination that
indemnification shall be permissible, except that if the determination shall be
made by special legal counsel,
4
authorization of indemnification and evaluation as to reasonableness of expenses
shall be made by those entitled under subsection (b)(3) of Section (F) hereof to
select counsel.
(d) The corporation agrees to submit requests for indemnification or
advancement of expenses to the board of directors of the corporation or to the
shareholders of the corporation, as applicable, within a reasonable time after
the director requests in writing that the corporation indemnify the director or
advance expenses to him.
(G) Indemnification of Officers, Employees and Agents. Unless otherwise
provided herein:
(1) An officer of the corporation who is not a director shall be entitled
to mandatory indemnification under Section (C) hereof, and shall be entitled to
apply for court-ordered indemnification under Section (E) hereof, in each case
to the same extent as a director;
(2) The corporation shall indemnify and advance expenses under this
article to an officer of the corporation who is not a director to the same
extent as to a director; and
(3) The corporation shall also indemnify and advance expenses to an
officer who is not a director to the extent, consistent with public policy, that
may be provided by the articles of incorporation, bylaws, general or specific
action of the board of directors or contract.
(H) Right of Corporation to Insure. The corporation may purchase and
maintain insurance on behalf of an individual who is or was a director, officer,
employee or agent of the corporation or who, while a director, officer, employee
or agent of the corporation, is or was serving at the request of the corporation
as a director, officer, partner, trustee, employee or agent of another foreign
or domestic corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise, against liability asserted against or incurred by him
in that capacity or arising from his status as a director, officer, employee or
agent, whether or not the corporation would have power to indemnify him against
such liability under Sections (B) or (C) hereof or applicable law.
(I) Application of Article. (a) Unless these articles of incorporation
provide otherwise, any authorization of indemnification in the articles of
incorporation or the bylaws shall not be deemed to prevent the corporation from
providing the indemnity permitted or mandated by applicable law.
(b) The board of directors of the corporation shall have power to make any
further indemnity, including advance of expenses, to and to enter contracts of
indemnity with any director, officer, employee or agent, except an indemnity
against his gross negligence or willful misconduct. Any determination as to any
further indemnity shall be made in accordance with subsection (b) of Section (F)
hereof. Each such indemnity may
5
continue as to a person who has ceased to have the capacity referred to above
and may inure to the benefit of the heirs, executors and administrators of such
person.
(c) The corporation shall pay or reimburse expenses incurred by a director
in connection with his appearance as a witness in a proceeding at a time when he
has not been made a named defendant or respondent to the proceeding when his
appearance as a witness is in connection with his serving as a director of the
corporation.
(J) Right to Bring Action to Enforce. The rights to indemnification and to
the advancement of expenses conferred under this article shall be contract
rights. If a claim under this article is not paid in full by the corporation
within 90 days after a written claim has been received by the corporation, the
director making such claim may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the director shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action that the
director has not met the standards of conduct which make it permissible under
this article or the laws of the State of Mississippi for the corporation to
indemnify the director for the amounts claimed, but the burden of proving such
defense shall be on the corporation. Neither the failure of the corporation
(including its board of directors, independent legal counsel, or its
shareholders) to have made a determination prior to the commencement of such
action that indemnification of the director shall be proper in the circumstances
because he has met the applicable standard of conduct set forth under the laws
of the State of Mississippi or under these articles of incorporation, nor an
actual determination by the corporation (including its board of directors,
independent legal counsel, or its shareholders) that the director had not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that the director had not met the applicable standard of conduct.
Dated: March 5, 1996.
SOUTHERN JITNEY JUNGLE COMPANY
By: /s/ W. H. Holman, Jr.
-------------------------------------
W. H. Holman, Jr., Chairman and CEO
6