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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): September 8, 1997
(September 5, 1997)
Morrison Restaurants Inc.
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(Exact name of registrant as specified in its charter)
Georgia 1-4202 63-1155967
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
<TABLE>
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The Hartsfield Colonnade, 4893 Riverdale Road,
Suite 260, Atlanta, Georgia 30337
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(Address of principal executive offices) (Zip Code)
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Registrant's telephone number, including area code (770) 991-0351
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Morrison Fresh Cooking, 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 Amendment to the Amended and Restated
Articles of Incorporation of Morrison Fresh Cooking, Inc. (the "Company") with
the Georgia Secretary of State, effective as of September 5, 1997, the Company
changed its name to "Morrison Restaurants Inc." In connection with the change in
name, the Company also changed the New York Stock Exchange trading symbol of its
Common Stock to "MRN" effective as of September 8, 1997.
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Item 7. Financial Statements and Exhibits
(c) Exhibits.
99.1 Amended and Restated Articles of Incorporation of Morrison Fresh
Cooking, Inc. as filed with the Georgia Secretary of State on
December 13, 1995 and as amended on September 5, 1997 to change
the name to Morrison Restaurants Inc.
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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: September 8, 1997 MORRISON RESTAURANTS INC.
By: /s/ Ronnie L. Tatum
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Name: Ronnie L. Tatum
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Title: Chief Executive Officer
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EXHIBIT 99.1
ARTICLES OF AMENDMENT
TO THE
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
MORRISON FRESH COOKING, INC.
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1. The name of the corporation is MORRISON FRESH COOKING, INC.
(hereinafter the "Corporation").
2. The Amended and Restated Articles of Incorporation of the
Corporation are hereby amended by deleting Article I. in its entirety and
substituting the following in lieu thereof:
"I.
NAME
The name of the corporation is "Morrison Restaurants Inc." (hereinafter
the "Corporation").
3. This amendment to the Articles of Incorporation was duly adopted
at a meeting of the Board of Directors of the Corporation on June 25, 1997.
4. Pursuant to Section 14-2-1002(6) of the Georgia Business
Corporation Code, shareholder approval is not required for such an amendment.
IN WITNESS WHEREOF, the undersigned does hereby set his hand
effective this 8th day of July, 1997.
MORRISON FRESH COOKING, INC.
/s/ Ronnie L. Tatum
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Ronnie L. Tatum,
Chief Executive Officer
ATTEST:
/s/ Mitchell S. Block
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Mitchell S. Block, Secretary
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AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
MORRISON FRESH COOKING, 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 Fresh Cooking, 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, $.01 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,
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retirement or sinking fund provisions, if any, for the
purchase or redemption of such shares;
(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.
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IV.
REGISTERED OFFICE AND AGENT
The address of the Corporation's registered office in the State of
Georgia is 66 Luckie Street, Suite 604, Atlanta, Georgia 30303. The name of the
Corporation's registered agent at such address is The Prentice-Hall Corporation
System, Inc.
V.
PRINCIPAL OFFICE
The mailing address of the initial principal office of the Corporation is
4721 Morrison Drive, Post Office Box 160266, Mobile, Alabama 36625.
VI.
CORPORATE EXISTENCE
The existence of the Corporation shall be perpetual.
VII.
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
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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. 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
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(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 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 VII 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
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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.
(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 VII; 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
VII, or Article VII 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 VII or any
portion hereof, or of any action taken pursuant to this Article VII, 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 VII.
VIII.
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.
IX.
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
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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.
X.
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 X, 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 X 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
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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 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
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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.
(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 e 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:
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(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
(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
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of Capital Stock other than the Interested Stockholder and its
Affiliates or Associates (as hereinafter defined), such investment
banking from to be paid a reasonable fee for its services by the
Corporation.
(c) For the purpose of this Article X, 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 X 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 X 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,
(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 Isabel pursuant to any agreement, arrangement or understanding, or upon
the exercise of any conversion rights.
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<PAGE> 14
(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;
(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
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<PAGE> 15
(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;
(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 X.
(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
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<PAGE> 16
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
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 X 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 X, and to
determine on the basis of information known to them after reasonable inquiry all
facts necessary to ascertain compliance with this Article X, 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
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<PAGE> 17
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 X 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 X 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 X; 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 X, or
this Article X of these Articles of Incorporation, recommended by not less than
80% of the members of the Board of Directors.
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<PAGE> 18
XI.
INCORPORATOR
The name and mailing address of the incorporator is:
Name Mailing Address
---- ---------------
Pfilip G. Hunt 4721 Morrison Drive
Post Office 80c 160266
Mobile, Alabama 36625
IN WITNESS WHEREOF, the undersigned, being the sole incorporator
hereinabove named, hereby further certifies that the facts herein stated are
true and, accordingly, has signed these Amended and Restated Articles of
Incorporation this 11th of December, 1995.
/s/ Pfilip G. Hunt
-------------------------
Pfilip G. Hunt, Esq.
Incorporator
[CORPORATE SEAL]
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<PAGE> 19
EXHIBIT A
Series A Junior Participating Preferred Stock
Morrison Fresh Cooking. 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) S100 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
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<PAGE> 20
case the amount to which holders of shares of Series A Preferred Stock
were entitled immediately prior to such event under clause (b) of the
preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately
prior to such event.
(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
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<PAGE> 21
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
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
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<PAGE> 22
(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
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. Be Acquired 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 S1,000 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
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<PAGE> 23
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 outstanding immediately
prior to such event.
VII. Consolidation, Merger, etc.
In case the Corporation shall enter into any consolidation, The 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.
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<PAGE> 24
CERTIFICATE
TO THE
ARTICLES OF RESTATEMENT
TO THE
ARTICLES OF INCORPORATION
OF
MORRISON FRESH COOKING, INC.
----------------------------------------
1. The name of the corporation is MORRISON FRESH COOKING, INC.
(hereinafter the "Corporation").
2. The Amended and Restated Articles of Incorporation of the
Corporation were duly adopted by the sole Incorporator of the Corporation on
December 11, 1995.
3. Pursuant to Section 14-2-1005(a) of the Georgia Business
Corporation Code shareholder approval is not required for the approval of
amendments contained in the Amended and Restated Articles of Incorporation.
IN WITNESS WHEREOF, the undersigned sole Incorporator of the Corporation
does hereby set his hand effective this 11th day of December, 1995.
MORRISON FRESH COOKING, INC.
/s/ Pfilip G. Hunt
----------------------------------
Pfilip G. Hunt, Esq.
Incorporator
[CORPORATE SEAL]
