FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 6, 1999 (June 30, 1999)
Morrison Management Specialists, Inc.
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(Exact name of registrant as specified in its charter)
Georgia 1-14194 63-1155966
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
1955 Lake Park Drive, SE, Suite 400, Smyrna, Georgia 30080-8855
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (770) 437-3300
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Morrison Health Care, Inc.
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(Former name or former address, if changed since last report.)
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Item 5. Other Events
Pursuant to the filing of Articles of Restatement and Certificate
Regarding the Amended and Restated Articles of Incorporation of Morrison
Health Care, Inc. (the "Company") with the Georgia Secretary of State,
effective as of 5:00 p.m. on June 30, 1999, the Company changed its name
to "Morrison Management Specialists, Inc."
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Item 7. Financial Statements and Exhibits
(c) Exhibits.
99.1 Amended and Restated Articles of Incorporation of Morrison
Management Specialists, Inc. as filed with the Georgia
Secretary of State on June 30, 1999.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: July 6, 1999 MORRISON MANAGEMENT SPECIALISTS, INC.
By: /S/ K. Wyatt Engwall
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Name: K. Wyatt Engwall
Title: Senior Vice President, Finance
(Senior Vice President and
Principal Accounting Officer)
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
MORRISON MANAGEMENT SPECIALISTS, INC.
The undersigned, for the purposes of forming a corporation pursuant to the
Georgia Business Corporation Code, does hereby certify as follows:
I.
NAME
The name of the corporation is "Morrison Management Specialists, Inc."
(hereinafter the "Corporation").
II.
BUSINESS
The purpose for which the Corporation is organized is to engage in any
lawful act or activity for which corporations may be organized under the Georgia
Business Corporation Code.
III.
CAPITALIZATION
(a) The total number of shares of capital stock which the Corporation
shall have authority to issue is One Hundred Million Two Hundred Fifty Thousand
(100,250,000), divided into two classes as follows:
(1) One Hundred Million (100,000,000) shares of common stock, $.01
par value per share ("Common Stock"); and
(2) Two Hundred Fifty Thousand (250,000) shares of preferred stock,
$.0l par value per share ("Preferred Stock").
(b) The preferences, limitations and relative rights of the Common Stock
and the Preferred Stock are as follows:
(1) The holders of Common Stock shall be entitled to one vote for
each share on all matters required or permitted to be voted on by
stockholders of the Corporation.
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After payment or provision for the payment of dividends on any
series of Preferred Stock then outstanding to the extent provided by the
Board of Directors of the Corporation in resolutions providing for the
issuance thereof, the Board of Directors of the Corporation may declare
and pay dividends on the Common Stock as and to the extent permitted by
law.
(2) The Preferred Stock entitles the holders thereof to the rights
and preferences set out or determined as provided below.
Any unissued shares of Preferred Stock may be issued from time to
time in one or more series. All shares of Preferred Stock shall be
identical and of equal rank, except with respect to particular variations
in the relative rights and preferences as between different series which
may be fixed and determined by the Board of Directors of the Corporation
as hereinafter provided, and each share of any series of Preferred Stock
shall be identical in all respects with the other shares of such series
except that, if dividends thereon are cumulative, as to the date from
which dividends thereon shall accumulate.
Different series of Preferred Stock shall not be construed to
constitute different classes of stock for the purpose of voting by
classes, except to the extent such voting by classes is expressly required
by law.
Before any shares of Preferred Stock of any particular series shall
be issued, the Board of Directors of the Corporation shall, by resolution
adopted, fix and determine, and is hereby expressly empowered to fix and
determine, in the manner provided by law, the following provisions, rights
and preferences of shares of any such series:
(A) The distinctive designation of such series and the number
of shares which shall constitute such series, which number may be
increased (except where otherwise provided by the Board of Directors
of the Corporation in creating such a series) or decreased (but not
below the number of shares thereof then issued) from time to time by
action of the Board of Directors of the Corporation;
(B) The amount of capital of such series;
(C) The annual rate of any dividends which may be payable on
shares of such series, whether dividends shall be cumulative, and
the conditions upon which and the date when such dividends shall
begin to accumulate on all shares of such series issued prior to the
record date for the first dividend of such series;
(D) Whether the shares of any such series shall be redeemable,
and if so, the time or times when, the conditions under which and
the price or prices at which shares of such series shall be
redeemable and the purchase, retirement or sinking fund provisions,
if any, for the purchase or redemption of such shares;
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(E) The amount payable on shares of such series in the event
of voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the Corporation;
(F) The rights, if any, of the holders of shares of such
series to convert such shares into, or exchange such shares for,
shares of Common Stock or shares of any other series of Preferred
Stock and the terms and conditions of such conversion or exchange;
and
(G) Whether or not the holders of shares of such series have
voting rights, and the extent of such voting rights, if any.
The holders of Preferred Stock are entitled to receive, when and as
declared by the Board of Directors of the Corporation, but only from funds
legally available for the payment of dividends, cash dividends at the
annual rate for each particular series as fixed and determined by the
Board of Directors of the Corporation as herein authorized, and no more;
such dividends shall be payable before any dividend on Common Stock shall
be paid or set apart for payment. Any arrearages in the payment of
dividends shall not bear interest.
In the event of any dissolution, liquidation or winding up of the
affairs of the Corporation, whether voluntary or involuntary, after
payment or provisions for payment of the debts and other liabilities of
the Corporation, the holders of shares of each series of Preferred Stock
shall be entitled to receive in cash, out of the net assets of the
Corporation, an amount equal to the amount fixed and determined by the
Board of Directors of the Corporation in any resolution providing for the
issuance of any particular series of Preferred Stock, plus an amount equal
to any dividends payable to such holder which are then unpaid, either
under the provisions of the resolution of the Board of Directors of the
Corporation providing for the issuance of such series of Preferred Stock
or by declaration of the Board of Directors of the Corporation, on each
such share up to the date fixed for distribution, and no more, before any
distribution shall be made to the holders of Common Stock. Neither the
merger or consolidation of the Corporation, nor the sale, lease or
conveyance of all or a part of its assets, shall be deemed to be a
liquidation, dissolution or winding up of the affairs of the Corporation.
(3) Fifty Thousand (50,000) shares of Preferred Stock shall be
designated as "Series A Junior Participating Preferred Stock" and shall
have the preferences, limitations and relative rights set forth on Exhibit
A hereto.
IV.
TREASURY SHARES
Shares of Common Stock and Preferred Stock reacquired by the Corporation
shall become and remain treasury shares until and unless cancelled by the
Corporation, at which time such cancelled treasury shares shall return to the
status of authorized but unissued shares.
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V.
CORPORATE EXISTENCE
The existence of the Corporation shall be perpetual.
VI.
BOARD OF DIRECTORS
(a) The business and affairs of the Corporation shall be managed by, or
under the direction of, a Board of Directors comprised as follows:
(1) The initial number of directors shall be such as may be
determined by the incorporator and thereafter the number of directors of
the Corporation shall be not less than three and not more than twelve, the
exact number within such minimum and maximum limits to be fixed and
determined from time to time by resolution of a majority of the Board of
Directors or by the affirmative vote of the holders of at least 80% of all
outstanding shares entitled to be voted in the election of directors,
voting together as a single class.
(2) At the first Special Meeting of Stockholders, the Board of
Directors shall be divided into three classes, each consisting, as nearly
as may be possible, of one-third of the total number of directors
constituting the entire Board of Directors. At the first Special Meeting
of Stockholders, the first class of directors shall be elected for a year
term expiring upon the next following Annual Meeting of Stockholders and
upon the election and qualification of their respective successors, the
second class of directors shall be elected for a term expiring upon the
second next Annual Meeting of Stockholders and upon the election and
qualification of their respective successors, and the third class of
directors shall be elected for a term expiring upon the third next Annual
Meeting of Stockholders and upon the election and qualification of their
respective successors. At each succeeding Annual Meeting of Stockholders,
successors to the class of directors whose term expires at that Annual
Meeting of Stockholders shall be elected for a three-year term. If the
number of directors has 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, and any additional director of any
class elected to fill a vacancy resulting from an increase in such a class
shall hold office for a term that shall coincide with the remaining term
of that class, unless otherwise required by law, but in no case shall a
decrease in the number of directors for a class shorten the term of an
incumbent director.
(3) A director shall hold office until the Annual Meeting of
Stockholders upon which his term expires and until his successor shall be
elected and qualified, subject, however, to prior death, resignation,
retirement, disqualification or removal from office.
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Directors may be removed only for cause by the vote of at least 80% of the
outstanding shares entitled to vote at an election of directors, at a
meeting of stockholders called expressly for that purpose.
(4) Nominations for the election of directors may be made by the
Board of Directors or a committee appointed by the Board of Directors, or
by any stockholder entitled to vote generally in the election of
directors; provided, however, any stockholder entitled to vote generally
in the election of directors may nominate one or more persons for election
as directors at a meeting only if written notice of such stockholder's
intent to make such nomination or nominations has been given, either by
personal delivery or by the United States mail, postage prepaid, to the
Secretary of the Corporation not later than (i) with respect to any
election to be held at the Annual Meeting of Stockholders, 90 days in
advance of such meeting, and (ii) with respect to any election to be held
at a Special Meeting of Stockholders for the election of directors, the
close of business on the seventh day following the date on which notice of
such meeting is first given to stockholders. Each such notice shall set
forth:
(A) the name and address of the stockholder who intends to
make the nomination and of the person or persons to be nominated;
(B) a representation that the stockholder is a holder of
record of shares of the Corporation entitled to vote at such meeting
and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice;
(C) a description of all arrangements or understandings
between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder;
(D) such other information regarding each nominee proposed by
such stockholder as would be required to be included in a proxy
statement filed pursuant to the then current proxy rules of the
Securities and Exchange Commission, if the nominees were to be
nominated by the Board of Directors; and
(E) the consent of each nominee to serve as a director of the
Corporation if so elected.
The chairman of the meeting may refuse to acknowledge the nomination of
any person not made in compliance with the foregoing procedure.
(5) Any vacancy on the Board of Directors that results from an
increase in the number of directors or from prior death, resignation,
retirement, disqualification or removal from office of a director shall be
filled by a majority of the Board of Directors then in office, though less
than a quorum, or by the sole remaining director. Any
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director elected to fill a vacancy resulting from prior death,
resignation, retirement, disqualification or removal from office of a
director, shall have the same remaining term as that of his predecessor.
(6) At any meeting of stockholders with respect to which notice of
such purpose has been given, the entire Board of Directors or any
individual director may be removed, with cause, by the affirmative vote of
the holders of 80% of all outstanding shares entitled to be voted at an
election of directors.
(7) 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 Stockholders, the election,
term of office, filling of vacancies and other features of such
directorships shall be governed by the terms of these Articles of
Incorporation or the resolutions of the Board of Directors creating such
class or series, as the case may be, applicable thereto, and such
directors so elected shall not be divided into classes pursuant to this
Section (a) of Article VI unless expressly provided by such terms.
(b) Except as may be prohibited by law, by the Bylaws of the Corporation,
or by these Articles of Incorporation, the Board of Directors shall have the
right to make, alter, amend, change, add to, or repeal the Bylaws of the
Corporation, and have the right (which, to the extent exercised, shall be
exclusive) to establish the rights, powers, duties, rules and procedures that
from time to time shall govern the Board of Directors, each of its members,
including without limitation, the vote required for any action and the election
of officers of the Corporation by the Board of Directors, and that from time to
time shall affect the directors' powers to manage the business and affairs of
the Corporation; no Bylaw shall be adopted by stockholders that shall impair or
impede the implementation of the foregoing.
(c) The directors of the Corporation shall not be required to be elected
by written ballots.
(d) The Board of Directors of the Corporation, when evaluating any offer
of another party to (a) make a tender or exchange offer for any equity security
of the Corporation, (b) merge or consolidate the Corporation with another
corporation or (c) purchase or otherwise acquire all or substantially all of the
properties and assets of the Corporation, shall, in evaluating what is in the
best interests of the Corporation and its stockholders, consider not only the
consideration being offered by another party, in relation to the then current
market price, but also in relation to the then current value of the Corporation
in a freely negotiated transaction and in relation to the Board of Directors'
then estimate of the future value of the Corporation as an independent entity.
Furthermore, the Board of Directors is authorized, in connection with the
exercise of its judgment in determining what is in the best interests of the
Corporation and its stockholders, to give due consideration to all relevant
factors, including, without limitation, the social, legal, and economic effects
on the employees, customers, suppliers and management services clients under
contract to the Corporation and its subsidiaries, and on the communities in
which the Corporation and its subsidiaries operate or are located.
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(e) Notwithstanding any other provisions of these Articles of
Incorporation or the Bylaws of the Corporation (and notwithstanding the fact
that a lesser percentage for separate class vote for certain actions may be
permitted by law, by these Articles of Incorporation or by the Bylaws of the
Corporation), the affirmative vote of the holders of not less than 80% of the
votes entitled to be cast by the holders of all then outstanding shares of
capital stock, voting together as a single class, shall be required to make,
alter, amend, change, add to or repeal any provision of these Articles of
Incorporation or the Bylaws of the Corporation which is or which is proposed to
be inconsistent with this Article VI; provided, however, that this Section (e)
shall not apply to, and such 80% vote shall not be required to alter, amend,
change, add to or repeal any provisions of the Bylaws relating to this Article
VI, or Article VI of these Articles of Incorporation, recommended by not less
than 80% of the members of the Board of Directors.
(f) The invalidity or unenforceability of this Article VI or any portion
hereof, or of any action taken pursuant to this Article VI, shall not affect the
validity or enforceability of any other provision of these Articles of
Incorporation, any action taken pursuant to such other provision, or any action
taken pursuant to this Article VI.
VII.
DIRECTORS' LIABILITY
To the fullest extent permitted by the Georgia Business Corporation Code,
as the same exists or may hereafter be amended, a director of the Corporation
shall not be liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director.
VIII.
INDEMNIFICATION
Except as prohibited by law, the Corporation may indemnify any person who
is or was a director, officer, employee or agent of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise (including, without limitation, any employee benefit plan) and may
take such steps as may be deemed appropriate by the Board of Directors,
including purchasing and maintaining insurance, entering into contracts
(including, without limitation, contracts of indemnification between the
Corporation and its directors and officers), creating a trust fund, granting
security interests or using other means (including, without limitation, a letter
of credit) to ensure the payment of such amounts as may be necessary to effect
such indemnification.
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IX.
STOCKHOLDER VOTE FOR CERTAIN MATTERS
(a) In addition to any affirmative vote required by law, these Articles of
Incorporation, or the Bylaws of the Corporation and except as otherwise
expressly provided in Section (b) of this Article IX, a Business Combination (as
hereinafter defined) shall require the affirmative vote of the holders of not
less than 80% of the Voting Stock (as hereinafter defined), voting together as a
single class. Such affirmative vote shall be required notwithstanding that no
vote may be required or that a lesser percentage or separate class vote may be
allowed by law, any agreement with any national securities exchange or the
National Association of Securities Dealers, Inc. (the "NASD"), or otherwise.
(b) The provisions of Section (a) of this Article IX shall not be
applicable to any particular Business Combination, and such Business Combination
shall require only such affirmative vote, if any, as is required by law, by any
other provision of these Articles of Incorporation or the Bylaws of the
Corporation, or by any agreement with any national securities exchange or the
NASD, if all of the conditions specified in either of the following Paragraphs
(1) or (2) are met:
(1) The Business Combination shall have been approved by 80% of the
Continuing Directors (as hereinafter defined), whether such approval is
made prior or subsequent to the acquisition of beneficial ownership of the
Voting Stock that caused the Interested Stockholder (as hereinafter
defined) to become an Interested Stockholder.
(2) All of the following price and procedural conditions shall have
been met:
(A) The aggregate amount of cash and the Fair Market Value (as
hereinafter defined), as of the date of the consummation of the
Business Combination (the "Consummation Date"), of the consideration
other than cash to be received per share by the holders of Common
Stock pursuant to such Business Combination shall be at least equal
to the higher amount determined under the following clauses (i) and
(ii):
(i) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested Stockholder
for any share of Common Stock acquired by it (x) within the
two-year period immediately prior to the first public
announcement of the proposal of the Business Combination (the
"Announcement Date"), or (y) the transaction in which the
Interested Stockholder became an Interested Stockholder,
whichever is higher; plus interest compounded annually from
the date on which the Interested Stockholder became an
Interested Stockholder (the "Determination Date") through the
Consummation Date at the rate of interest announced by
SunTrust Bank in Atlanta, Georgia (or other major bank
headquartered in Atlanta, Georgia, selected by a majority of
the Continuing Directors) from time to time as its "prime
rate," less the aggregate amount of any cash dividends paid
and the Fair Market Value of any dividends paid other than
in cash, per share of Common Stock from the Determination Date
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through the Consummation Date in an amount up to but not
exceeding the amount of such interest payable per share of
Common Stock; or
(ii) (if applicable) the Fair Market Value per share of
the Common Stock on the Announcement Date or on the
Determination Date, whichever is higher.
(B) The aggregate amount of the cash and the Fair Market Value
as of the Consummation Date of the consideration other than cash to
be received per share by the holders of shares of any class or
series of outstanding Capital Stock (as hereinafter defined), other
than Common Stock, in such Business Combination shall be at least
equal to the highest amount determined under clauses (i), (ii) and
(iii) below (it being intended that the requirements of this
Paragraph (2)(B) of this Section (b) shall be required to be met
with respect to every such class or series of outstanding Capital
Stock, whether or not the Interested Stockholder has previously
acquired any shares of a particular class or series of Capital
Stock):
(i) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested Stockholder
for any share of such class or series of Capital Stock
acquired by it (x) within the two-year period immediately
prior to the Announcement Date, or (y) the transaction in
which the Interested Stockholder became an Interested
Stockholder, whichever is higher; plus interest compounded
annually from the Determination Date through the Consummation
Date at the rate of interest announced by SunTrust Bank in
Atlanta, Georgia (or other major bank headquartered in
Atlanta, Georgia, selected by a majority of the Continuing
Directors) from time to time as its "prime rate," less the
aggregate amount of any cash dividends paid and the Fair
Market Value of any dividends paid other than in cash, per
share of such class of Capital Stock from the Determination
Date through the Consummation Date in an amount up to but not
exceeding the amount of such interest payable per share of
such class of Capital Stock;
(ii) (if applicable) the Fair Market Value per share of
such class or series of Capital Stock on the Announcement Date
or on the Determination Date, whichever is higher; or
(iii) (if applicable) the highest preferential amount
per share to which the holders of shares of such class or
series of Capital Stock would be entitled in the event of any
voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Corporation, regardless of whether
the Business Combination to be consummated constitutes such an
event.
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(C) The consideration to be received by holders of a
particular class or series of outstanding Capital Stock in such
Business Combination shall be in cash or in the same form as
previously has been paid by or on behalf of the Interested
Stockholder in connection with its direct or indirect acquisition of
beneficial ownership of shares of such class or series of Capital
Stock. If the consideration so paid for shares of a class or series
of Capital Stock varies as to form, the form of consideration for
such class or series of Capital Stock shall either be cash or the
form used to acquire beneficial ownership of the largest number of
shares of such class or series of Capital Stock previously acquired
by the Interested Stockholder; provided that if the Interested
Stockholder acquired equal portions of such shares by forms of
consideration other than cash, the form of consideration to be paid
to the holders of a class or series of Capital Stock shall be the
form last paid by the Interested Stockholder for previously acquired
shares.
(D) The holders of all outstanding shares of Capital Stock not
beneficially owned by the Interested Stockholder prior to the
consummation of such Business Combination shall be entitled to
receive in such Business Combination cash or other consideration for
their shares in compliance with Paragraphs (2)(A), (2)(B) and (2)(C)
of this Section (b) (provided, however, that the failure of any such
holders who are exercising their statutory rights to dissent from
such Business Combination and receive payment of the fair value of
their shares to exchange their shares in such Business Combination
shall not be deemed to have prevented the condition set forth in
this Paragraph (2)(D) of this Section (b) from being satisfied).
(E) After the Determination Date and prior to the Consummation
Date:
(i) there shall have been no failure to declare and pay
at the regular date therefor any full quarterly dividends
(whether or not cumulative) payable in accordance with the
terms of any outstanding Capital Stock, except as approved by
a majority of the Continuing Directors;
(ii) there shall have been no reduction in the annual
rate of dividends paid on the Capital Stock (other than as
necessary to reflect any stock split, stock dividend or
subdivision of the Capital Stock), except as approved by a
majority of the Continuing Directors;
(iii) there shall have been an increase in the annual
rate of dividends paid on the Common Stock as necessary to
reflect any reclassification (including any reverse stock
split), recapitalization, reorganization, or any similar
transaction that has the effect of reducing the number of
outstanding shares of Common Stock, except as approved by a
majority of the Continuing Directors; and
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(iv) such Interested Stockholder shall not have become
the beneficial owner of any additional shares of Capital Stock
except as part of a transaction that results in such
Interested Stockholder becoming an Interested Stockholder.
(F) After the Determination Date, the Interested Stockholder
shall not have received the benefit, directly or indirectly (except
proportionately as a stockholder of the Corporation), of any loans,
advances, guarantees, pledges or other financial assistance or any
tax credits or other tax advantages provided by or through the
Corporation, whether in anticipation of or in connection with such
Business Combination or otherwise.
(G) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (the "Exchange Act"), shall be
mailed to all stockholders of the Corporation at least 30 days prior
to the consummation of such Business Combination (whether or not
such proxy or information statement is required to be mailed under
the provisions of the Exchange Act). The proxy or information
statement shall contain on the first page thereof, in a prominent
place (or, if required, as near as practicable to the first page
thereof and in a prominent place), any statement regarding the
advisability (or inadvisability) of the Business Combination that a
majority of the Continuing Directors chooses to make, and if deemed
advisable by a majority of the Continuing Directors, the opinion of
an investment banking firm selected by a majority of the Continuing
Directors, concerning the fairness (or unfairness) of the terms of
the Business Combination from a financial viewpoint to the holders
of the outstanding shares of Capital Stock other than the Interested
Stockholder and its Affiliates or Associates (as hereinafter
defined), such investment banking firm to be paid a reasonable fee
for its services by the Corporation.
(c) For the purpose of this Article IX, the following terms shall have the
respective meanings set forth below:
(1) "Affiliate" shall have the meaning ascribed to it in Rule 12b-2
promulgated under the Exchange Act as in existence on the date this
Article IX was approved by the stockholders of the Corporation. (The term
"registrant" as used in Rule 12b-2 shall mean, in this case, the
Corporation.)
(2) "Associate" shall have the meaning ascribed to it in Rule 12b-2
promulgated under the Exchange Act as in existence on the date this
Article IX was approved by the stockholders of the Corporation. (The term
"registrant" as used in Rule 12b-2 shall mean, in this case, the
Corporation.)
(3) "Beneficial Owner" shall mean a person who, either itself or
through any of its Affiliates or Associates,
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(A) beneficially owns, directly or indirectly, any
Capital Stock;
(B) has, directly or indirectly,
(i) the right to acquire (whether such right is
exercisable immediately or subject only to the passage of
time) any Capital Stock pursuant to any agreement, arrangement
or understanding or upon the exercise of any conversion
rights, exchange rights, warrants, options or otherwise; or
(ii) the right to vote any Capital Stock pursuant to any
agreement, arrangement or understanding; or
(C) beneficially owns, directly or indirectly, Capital Stock
through any other Person with which such Person or Affiliate or
Associate of such Person has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of Capital Stock.
For the purposes of determining whether a Person is an
Interested Stockholder pursuant to Paragraph (8) of this Section
(c), the number of shares of Capital Stock deemed to be outstanding
shall include shares deemed beneficially owned by such Persons
through application of this Paragraph (3) of this Section (c), but
shall not include any other shares of Capital Stock that may be
issuable pursuant to any agreement, arrangement or understanding, or
upon the exercise of any conversion rights.
(4) "Business Combination" shall mean:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (i) any Interested
Stockholder, or (ii) any Person (whether or not itself an Interested
Stockholder) that is, or after such merger or consolidation would
be, an Affiliate or Associate of an Interested Stockholder;
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions)
with any Interested Stockholder or any Affiliate or Associate of an
Interested Stockholder involving any assets or securities of the
Corporation, any Subsidiary or any Interested Stockholder or any
Affiliate or Associate of an Interested Stockholder, having an
aggregate Fair Market Value equal to or in excess of 25% of the
total assets of the Corporation as shown on the balance sheet of the
Corporation contained in the most recent annual report to
stockholders of the Corporation;
(C) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation proposed by or on behalf of an
Interested Stockholder or any Affiliate or Associate of an
Interested Stockholder;
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(D) any reclassification of securities (including any reverse
stock splits), recapitalization of the Corporation, merger or
consolidation of the Corporation with any of its Subsidiaries, or
any other transaction (whether or not with or otherwise involving an
Interested Stockholder) that has the effect, either directly or
indirectly, of increasing the proportionate share of any class or
series of Capital Stock or any securities convertible into Capital
Stock, or into equity securities of any Subsidiary that is
beneficially owned by any Interested Stockholder or an Affiliate or
Associate of an Interested Stockholder; or
(E) any agreement, contract, or other arrangement providing
for any one or more of the actions specified in Paragraphs A through
D of this Section (c)(4).
(5) "Capital Stock" shall mean capital stock of the Corporation
authorized to be issued from time to time pursuant to Article III of this
Certificate of Incorporation.
(6) "Continuing Director" shall mean:
(A) any member of the Board of Directors of the Corporation
who, while such person is a member of the Board of Directors, is not
an Affiliate, Associate or representative of an Interested
Stockholder and was a member of the Board of Directors prior to the
time that the Interested Stockholder became an Interested
Stockholder; and
(B) any successor of a Continuing Director who, while such
successor is a member of the Board of Directors, is not an
Affiliate, Associate or representative of an Interested Stockholder
and is recommended or elected to succeed the Continuing Director by
a majority of the Continuing Directors.
(7) "Fair Market Value" shall mean:
(A) in the case of cash, the amount of such cash;
(B) in the case of stock, the highest closing sale price
during the 30-day period immediately preceding the date in question
of a share of such stock listed on any national securities exchange
registered under the Exchange Act or, if such stock is not listed on
any such exchange, the highest closing sale price as reported by the
NASD Nasdaq Stock Market (the "Nasdaq Stock Market"), or if there is
no closing sale price reporting, the average between the highest bid
and asked prices with respect to a share of such stock as quoted by
the Nasdaq Stock Market for the 30-day period preceding the date in
question, or if no such quotations are available, the Fair Market
Value on the date in question of a share of such stock as determined
in good faith by a majority of the Continuing Directors;
<PAGE>
(C) in the case of property other than cash or stock, the Fair
Market Value of such property on the date in question as determined
in good faith by a majority of the Continuing Directors; and
(D) in the event of any Business Combination in which the
Corporation is the surviving entity, either or both the shares of
Common Stock or the shares of any other class or series of Capital
Stock retained by the holders of such shares shall be deemed
consideration other than cash received for purposes of Paragraphs
(2)(A) and (2)(B) of Section (b) and Paragraph (4) of Section (d) of
this Article IX.
(8) "Interested Stockholder" shall mean any Person (other than the
Corporation, any Subsidiary, or any profit-sharing, employee stock
ownership or other employee benefit plan established by the Corporation,
by any Subsidiary, or by any trustee of or fiduciary with respect to any
such plan when acting in such capacity) who:
(A) is the beneficial owner of Voting Stock representing 10%
or more of the votes entitled to be cast by the holders of all then
outstanding shares of Voting Stock;
(B) is an Affiliate or Associate of the Corporation and that
at any time within the two-year period immediately prior to the date
in question was the beneficial owner of Voting Stock representing
10% or more of the votes entitled to be cast by the holders of all
then outstanding shares of Voting Stock; or
(C) is an assignee of or has otherwise succeeded to any shares
of Capital Stock that were at any time within the two-year period
immediately prior to the date in question beneficially owned by any
other Interested Stockholder if such assignment or succession shall
have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning of
the Securities Act of 1933, as amended.
(9) "Person" shall mean any individual, firm, corporation or other
entity and shall include any group comprised of any Person and any other
Person with whom such Person or any Affiliate or Associate of such Person
has any agreement, arrangement or understanding, either directly or
indirectly, for the purpose of acquiring, holding, voting or disposing of
Capital Stock.
(10) "Subsidiary" shall mean any corporation of which a majority of
any class of equity securities is beneficially owned by the Corporation;
provided, however, for the purposes of the definition of Interested
Stockholder as set forth in Paragraph (8) of this Section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is beneficially owned by the Corporation.
(11) "Voting Stock" shall mean all Capital Stock which by its
<PAGE>
terms may be voted on the particular matter submitted to stockholders
of the Corporation.
(d) When it appears that a particular person may be an Interested
Stockholder and that the provisions of this Article IX must be applied or
interpreted, then a majority of the total number of those directors of the
Corporation who would qualify as Continuing Directors (assuming that such
particular person is in fact an Interested Stockholder) shall have the power and
the duty to interpret all of the terms and provisions of this Article IX, and to
determine on the basis of information known to them after reasonable inquiry all
facts necessary to ascertain compliance with this Article IX, including without
limitation:
(1) whether a person is an Interested Stockholder;
(2) the number of shares of Capital Stock or other securities
beneficially owned by such person;
(3) whether a person is an Affiliate or Associate of another; and
(4) whether the assets that are the subject of any Business
Combination have, or the consideration to be received for the issuance or
transfer of securities by the Corporation or any subsidiary in any
Business Combination has, in the aggregate a Fair Market Value equal to or
in excess of 25% of the total assets of the Corporation as shown on the
balance sheet of the Corporation contained in the most recent annual
report to stockholders of the Corporation. Any such determination shall be
made in good faith and shall be binding and conclusive on all parties.
(e) Nothing contained in this Article IX shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law.
(f) Whether or not any Business Combination complies with the provisions
of Section (b) of this Article IX shall not be construed to impose any fiduciary
duty, obligation or responsibility on the Board of Directors or on any member
thereof to approve such Business Combination or recommend its adoption or
approval to the stockholders of the Corporation, nor shall such compliance
limit, prohibit or otherwise restrict in any manner the Board of Directors, or
any member thereof, with respect to its or his evaluations of, or actions and
responses taken toward, such Business Combination.
(g) Notwithstanding any other provisions of these Articles of
Incorporation or the Bylaws of the Corporation (and notwithstanding that a
lesser percentage or separate class vote may be permitted by law, these Articles
of Incorporation or the Bylaws of the Corporation), the affirmative vote of the
holders of not less than 80% of the vote entitled to be cast by the holders of
all then outstanding shares of Voting Stock, voting together as a single class,
shall be required to make, alter, amend, change, add to or repeal any provisions
inconsistent with this Article IX; provided, however, that this Section (g)
shall not apply to, and such 80% vote shall not be required to alter, amend,
change, add to or repeal any provisions of the Bylaws relating to this Article
IX, or this Article IX of these Articles of Incorporation, recommended by not
less than 80% of the members of the Board of Directors.
<PAGE>
EXHIBIT A
Series A Junior Participating Preferred Stock
Morrison Health Care, Inc.
I. Designation and Amount
The shares of such series shall be designated as "Series A Junior
Participating Preferred Stock" (the "Series A Preferred Stock") and the number
of shares constituting the Series A Preferred Stock shall be 50,000. Such number
of shares may be increased or decreased by resolution of the Board of Directors;
provided, that no decrease shall reduce the number of shares of Series A
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 Preferred Stock. Fractions
of the Series A Preferred Stock may be issued, but only in integral multiples of
one one-thousandth of a share.
II. Dividends and Distributions
(A) Subject to the rights of the holders of any share of any series
of Preferred Stock (or any similar stock) ranking prior and superior to
the Series A Preferred Stock with respect to dividends, the holders of
shares of Series A Preferred Stock, in preference to the holders of Common
Stock, par value $.01 per share (the "Common Stock"), of the Corporation,
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 for
the purpose, quarterly dividends payable in cash on the first day of
March, June, September and December 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 Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $100 or
(b) subject to the provision for adjustment hereinafter set forth, 1,000
times the aggregate per share amount of all cash dividends, and 1,000
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 Preferred Stock. In the event the
Corporation shall at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the amount to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event under clause
<PAGE>
(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.
(B) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph A of this Section
immediately after it declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock); provided
that, in the event no dividend or distribution shall have been declared on
the Common Stock during the period between any Quarterly Dividend Payment
Date and the next subsequent Quarterly Dividend Payment Date, a dividend
of $100 per share on the Series A Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment
Date next preceding the date of issue of such shares, 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 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 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 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 Preferred
Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 60 days prior to the
date fixed for the payment thereof.
III. Voting Rights
The holders of shares of Series A Preferred Stock shall have the following
voting rights:
(A) Subject to the provisions for adjustment hereinafter set forth,
each share of Series A Preferred Stock shall entitle the holder thereof to
1,000 votes (and each one one - thousandth of a share of Series A
Preferred Stock shall entitle the holder thereof to one vote) on all
matters submitted to a vote of the stockholders of the Corporation. In the
event the Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the number of votes per share to which holders of
<PAGE>
shares 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 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.
(B) Except as otherwise provided herein, in any Amendment to the
Articles of Incorporation creating a series of Preferred Stock or any
similar stock, or by law, the holders of shares of Series A Preferred
Stock and the holders of shares of Common Stock and any other capital
stock of the Corporation having general voting rights shall vote together
as one class on all matters submitted to a vote of stockholders of the
Corporation.
(C) Except as set forth herein, holders of shares of Series A
Preferred Stock shall have no voting rights.
IV. Certain Restrictions
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section II are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred
Stock outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, 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
Preferred Stock;
(ii) declare or pay dividends, 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 Preferred Stock except dividends paid ratably on the
Series A 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;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock, provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares of any such junior
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 Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series A Preferred Stock, or any shares of stock
ranking on a parity with the Series A Preferred
<PAGE>
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 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.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares
of stock of the Corporation unless the Corporation could, under paragraph
(A) of this Section IV purchase or otherwise acquire such shares at such
time and in such manner.
V. Reacquired Shares
Any shares 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 shares 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 Articles of Incorporation, in any other
Certificate of Designation creating a series of Preferred Stock or any similar
stock or as otherwise required by law.
VI. Liquidation, Dissolution or Winding Up
Upon any liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (1) to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock unless, prior thereto, the holders of shares of Series
A Preferred Stock shall have received $1,000 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of shares of Series A
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 1,000
times the aggregate amount to be distributed per share to holders of shares of
Common Stock, or (2) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, except distributions made ratably on the Series A
Preferred Stock and all such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up. In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the aggregate amount to which
holders of shares of Series A Preferred Stock were entitled immediately prior to
such event under the proviso in clause (1) 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
<PAGE>
outstanding immediately prior to such event.
VII. Consolidation, Merger, etc.
In case the Corporation shall enter into any consolidation, merger,
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 each share of Series A Preferred Stock shall at
the same time be similarly exchanged or changed into an amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 1,000
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 declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, 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
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.
VIII. Redemption
The shares of Series A Preferred Stock shall not be redeemable.
IX. Rank
The Series A Preferred Stock shall rank, with respect to the payment of
dividends and the distribution of assets, junior to all series of any other
class of the Corporation's Preferred Stock.
X. Amendment
The Articles of Incorporation of the Corporation shall not be amended in
any manner which would materially alter or change the powers, preferences or
special rights of the Series A Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of at least eighty percent (80%) of
the outstanding shares of Series A Preferred Stock, voting together as a single
series.
