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File No. 333-______________
As filed with the Securities and Exchange Commission on December 30, 1998
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
_________________________________________
CHEMFIRST INC.
(Exact name of issuer as specified in its charter)
MISSISSIPPI 64-0354930
(State of Incorporation) (I.R.S. Employer ID Number)
700 NORTH STREET
JACKSON, MISSISSIPPI 39202
(Address of Principal Executive Offices) (Zip Code)
CHEMFIRST INC. 1998 LONG-TERM INCENTIVE PLAN
(Full Title of the Plan)
JAMES L. MCARTHUR, SECRETARY
CHEMFIRST INC.
P. O. BOX 1249
JACKSON, MISSISSIPPI 39215-1249
(601) 948-7550
(Name, address and telephone number of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Proposed Maximum Amount of
Securities to to be Maximum Offering Aggregate Registration
be Registered Registered Price Per Share(1) Offering Price Fee
--------------- ------------ ------------------- ------------------- -------------
<S> <C> <C> <C> <C>
Common Stock 950,000 $18.6563 $17,723,485 $4,927.13
par value $1.00 shares(2)
Phantom Share Units maximum of N/A N/A N/A
950,000 units (3)
</TABLE>
(1) Estimated solely for calculation of the registration fee pursuant to Rule
457(h).
(2) Subject to anti-dilution increases permitted by Rule 416.
(3) Maximum number of share units is equal to the total number of share units
which would be convertible into 950,000 shares of common stock.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference
The following documents filed with the Commission by ChemFirst Inc. ("the
Company") are incorporated herein by reference: (1) the Company's Annual Report
on Form 10-K for the year ended December 31, 1997; (2) Proxy Statement for the
Annual Meeting of Stockholders of the Company held on May 27, 1998; (3) the
Company's Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998,
June 30, 1998 and September 30, 1998; and (4) the description of the Company's
Common Stock, par value $1.00, contained in Item 1 of the Company's Registration
Statement on Form 8-A filed on December 9, 1996, (File No. 001-12547) including
any amendment or report filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act subsequent to the filing hereof and prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing such documents.
For purposes of this Registration Statement, any document or any statement
contained in a document incorporated or deemed to be incorporated herein by
reference shall be deemed to be modified or superseded to the extent that a
subsequently filed document or a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated herein
by reference modifies or supersedes such document or such statement in such
document. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. Common Stock
Not applicable.
Phantom Share Units
The phantom share units being registered hereby consist of phantom units of
Company common stock or an amount of cash equal to the value of a share of
common stock at a future date. They are merely a means of recording a
hypothetical investment in Company common stock or a right to receive a cash
payment and are not actual shares of stock. Phantom share units have none of
the voting or liquidation rights of Company common stock. Phantom share units
have no dividend rights per se; however, holders of phantom
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share units will be entitled to certain dividend equivalents provided for by the
Plan. Specifically, on any date when cash dividends are paid on the shares of
Company common stock, each participant credited with phantom share units under
the Plan as of the record date for such dividend will be credited with a number
of additional share units determined by dividing (i) the aggregate dollar amount
of such cash dividends payable in respect of such participant's phantom share
units (determined by multiplying the dollar value of the dividend paid upon a
single share of Company common stock by the number of share units held by such
participant) by (ii) the fair market value of the Company's common stock as of
the record dividend date.
ITEM 5. Interests of Named Experts and Counsel
Legal matters, other than those relating to tax consequences, in connection with
the securities covered by this Prospectus have been passed upon by J. Steve
Chustz, General Counsel of the Company. Mr. Chustz also serves as General
Counsel for various subsidiaries of the Company. As of November 30, 1998, Mr.
Chustz beneficially owned 47,104 shares of the Company's Common Stock which
includes 45,037 shares of the Company's Common Stock which Mr. Chustz has the
right to acquire through the exercise of Non-Qualified Stock Options. Also as of
November 30, 1998, Mr. Chustz beneficially owns 1,769 of the Company's share
units.
The consolidated financial statements and financial statement schedules of the
Company and subsidiaries as of December 31, 1997 and 1996 and for each of the
years in the three-year period ended December 31, 1997, which are incorporated
herein by reference, have been incorporated herein in reliance upon the report,
also incorporated herein by reference, of KPMG Peat Marwick LLP, independent
certified public accountants, and upon the authority of said firm as experts in
accounting and auditing. To the extent that KPMG Peat Marwick LLP audits and
reports on financial statements of the Company and subsidiaries issued at future
dates, and consents to the use of their reports thereon, such financial
statements also will be incorporated herein by reference in reliance upon their
reports and said authority.
ITEM 6. Indemnification of Directors and Officers
Subarticle E of Article 8 of the Mississippi Business Corporation Act ("MBCA")
empowers a Mississippi corporation to indemnify against liability an individual
who is made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, formal or
informal (a "Proceeding"), because such person is or was a director of the
corporation. To be eligible for indemnification, the director must have
conducted himself in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the corporation and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
such person's conduct was unlawful. Liability indemnified against includes the
obligation to pay a judgment, settlement, penalty, fine or reasonable expenses
incurred with respect to a Proceeding. The
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MBCA precludes a corporation from indemnifying a director in connection with a
Proceeding by or in the right of the corporation in which the director was
adjudged liable to the corporation or in connection with any other Proceeding
charging improper personal benefit to a director, whether or not involving
action in the director's official capacity, in which the director was adjudged
liable on the basis that the personal benefit was improperly received by the
director.
Subarticle E further provides that if a director is wholly successful, on the
merits or otherwise, in the defense of any Proceeding to which he was a party
because he is or was a director, the corporation must indemnify him against
reasonable expenses incurred in connection with the Proceeding. Also, a court
may order a company to indemnify a director if it determines the director is
fairly and reasonably entitled to indemnification in view of all of the relevant
circumstances. Subarticle E also allows corporations to indemnify officers,
employees or agents to the same extent as directors, and provides for mandatory
or court-ordered indemnification for these persons as described above. Finally,
the MBCA allows corporations to purchase and maintain insurance on behalf of
directors, officers, employees or agents against liability asserted against or
incurred by them in that capacity or arising from their status as such, whether
or not the corporation would have the power to indemnify such persons against
liability under Subarticle E.
The Company's Bylaws provide for indemnification of Company's officers and
directors to the fullest extent allowed by Mississippi law and further permit
such indemnification with respect to other employees and agents. The Company
entered into indemnification agreements with certain of its officers and its
directors. The effect of these agreements is to add a contractual right of
indemnification to the indemnification rights otherwise granted by law.
The Company maintains directors' and officers' liability insurance which
protects each director and officer from certain claims and suits, including
shareholder derivative suits, even where the director may be determined to not
be entitled to indemnification under the MBCA, and claims and suits arising
under the Securities Act of 1933, as amended. The policy may also afford
coverage under circumstances where the facts do not justify a finding that the
director or officer acted in good faith and in a manner that was in or not
opposed to the interests of the Company.
The foregoing represents a summary of the general effect of the MBCA, the
Company's Amended and Restated Articles of Incorporation and Bylaws and
directors' and officers' liability insurance coverage for purposes of general
description only.
ITEM 7. Exemption from Registration Claimed
Not applicable.
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ITEM 8. Exhibits
4.1 ChemFirst Inc. 1998 Long-Term Incentive Plan was included as
Appendix A to the Company's Proxy Statement filed in
connection with the Annual Meeting of Stockholders held on
May 27, 1998, and is incorporated by reference.
4.2 Amended and Restated Articles of Incorporation of ChemFirst
Inc. were filed as Exhibit 3.1 to Amendment No. 1 to the
Company's Form S-1 (Registration No. 333-15789) filed on
November 18, 1996, and are incorporated herein by reference.
4.3 Bylaws of ChemFirst Inc., as amended November 24, 1998.
4.4 Rights Agreement, dated as of October 30, 1996, between the
Company and KeyCorp Shareholder Services, Inc. was filed as
Exhibit 4 to Amendment No. 1 to the Company's Form S-1
(Registration No. 333-15789) filed on November 18, 1996, and
is incorporated herein by reference.
4.5 First Amendment to Rights Agreement dated effective May
1, 1997 by and among the Company, KeyCorp Shareholder
Services, Inc. and The Bank of New York.
5.1 Opinion of J. Steve Chustz as to legality of securities
being registered.
23.1 Consent of J. Steve Chustz is contained within the opinion
of counsel filed as Exhibit 5.1.
23.2 Consent of KPMG Peat Marwick LLP.
24.1 Power of Attorney by each of the directors of the Company
appointing J. Kelley Williams and R. M. Summerford as
attorney-in-fact is located at page 8 of this Registration
Statement.
ITEM 9. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
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(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as
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expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Jackson, State of Mississippi, on November 24, 1998.
CHEMFIRST INC.
BY: /s/ J. Kelley Williams
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J. Kelley Williams, Chairman and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints J. Kelley Williams and R. M. Summerford and each
of them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments to this Registration
Statement and to file the same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ J. Kelley Williams Chairman of the Board November 24, 1998
- -------------------------- of Directors,
J. Kelley Williams Chief Executive Officer
and Director
/s/ R. M. Summerford President and November 24, 1998
- -------------------------- Chief Operating Officer
R. M Summerford
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SIGNATURE TITLE DATE
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/s/ Max P. Bowman Vice President, Finance November 24, 1998
- -------------------------- and Treasurer (Chief
Max P. Bowman Financial Officer)
/s/ Troy B. Browning Controller November 24, 1998
- -------------------------- (Principal Accounting
Troy B. Browning Officer)
/s/ Richard P. Anderson Director November 24, 1998
- --------------------------
Richard P. Anderson
/s/ Paul A. Becker Director November 24, 1998
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Paul A. Becker
/s/ James W. Crook Director November 24, 1998
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James W. Crook
/s/ Michael J. Ferris Director November 24, 1998
- --------------------------
Michael J. Ferris
/s/ James E. Fligg Director November 24, 1998
- --------------------------
James E. Fligg
/s/ Robert P. Guyton Director November 24, 1998
- --------------------------
Robert P. Guyton
/s/ Paul W. Murrill Director November 24, 1998
- --------------------------
Paul W. Murrill
/s/ William A. Percy, II Director November 24, 1998
- --------------------------
William A. Percy, II
/s/ Dan F. Smith Director November 24, 1998
- --------------------------
Dan F. Smith
/s/ Leland R. Speed Director November 24, 1998
- --------------------------
Leland R. Speed
/s/ R. Gerald Turner Director November 24, 1998
- --------------------------
R. Gerald Turner
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Index to Exhibits
Exhibit No. Description
- ---------- -----------
4.1 ChemFirst Inc. 1998 Long-Term Incentive Plan was included as
Appendix A to the Company's Proxy Statement filed in connection
with the Annual Meeting of Stockholders held on May 27, 1998,
and is incorporated by reference.
4.2 Amended and Restated Articles of Incorporation of ChemFirst Inc.
were filed as Exhibit 3.1 to Amendment No. 1 to the Company's
Form S-1 (Registration No. 333-15789) filed on November 18,
1996, and are incorporated herein by reference.
4.3 Bylaws of ChemFirst Inc., as amended November 24, 1998.
4.4 Rights Agreement, dated as of October 30, 1996, between the
Company and KeyCorp Shareholder Services, Inc. was filed as
Exhibit 4 to Amendment No. 1 to the Company's Form S-1
(Registration No. 333-15789) filed on November 18, 1996, and is
incorporated herein by reference.
4.5 First Amendment to Rights Agreement dated effective May 1, 1997
by and among the Company, KeyCorp Shareholder Services, Inc.
and The Bank of New York.
5.1 Opinion of J. Steve Chustz as to legality of securities being
registered.
23.1 Consent of J. Steve Chustz is contained within the opinion of
counsel filed as Exhibit 5.1.
23.2 Consent of KPMG Peat Marwick LLP.
24.1 Power of Attorney by each of the directors of the Company
appointing J. Kelley Williams and R. M. Summerford as attorney-
in-fact is located at page 8 of this Registration Statement.
<PAGE>
Exhibit 4.3
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BYLAWS
OF
ChemFirst Inc.
as amended November 24, 1998
ARTICLE I. PRINCIPAL OFFICE
The principal office of the corporation in the State of Mississippi shall
be located in the City of Jackson, County of Hinds. The corporation may have
such other offices, either within or without the State of Mississippi, as the
board of directors may designate or as the business of the corporation may
require from time to time.
ARTICLE II. SHAREHOLDERS
SECTION 1. Annual Meeting. (a) The annual meeting of the shareholders
shall be held on each year upon such date as may be determined by the directors,
for the purpose of electing directors and for the transaction of such other
business as may properly come before the meeting.
(b) If the election of directors shall not be held on the day designated
herein for any annual meeting of the shareholders, or at any adjournment
thereof, the board of directors shall cause the election to be held at a special
meeting of the shareholders as soon thereafter as conveniently may be.
SECTION 2. Special Meetings. The corporation shall hold a special meeting
of shareholders (1) on call of its board of directors or the chief executive
officer; or (2) unless the articles of incorporation provide otherwise, if the
holders of at least twenty percent (20%) of all the votes entitled to be cast on
any issue proposed to be considered at the proposed special meeting sign, date
and deliver to the corporation's secretary one or more written demands for the
meeting describing the purpose or purposes for which it is to be held. If not
otherwise fixed under applicable law, the record date for determining
shareholders entitled to demand a special meeting shall be the date the first
shareholder signs the demand.
SECTION 3. Place of Meeting. The board of directors may designate any
place, either within or without the State of Mississippi, for any annual meeting
or for any special meeting of shareholders. Unless the notice of the meeting
states otherwise, shareholders' meetings shall be held at the corporation's
principal office.
<PAGE>
SECTION 4. Notice of Meeting. (a) The corporation shall notify
shareholders of the date, time and place of each annual and special
shareholders' meeting no fewer than ten (10) nor more than sixty (60) days
before the meeting date. Unless applicable law or the articles of incorporation
require otherwise, the corporation shall give notice only to shareholders
entitled to vote at the meeting.
(b) Unless applicable law or the articles of incorporation require
otherwise, notice of an annual meeting need not include a description of the
purpose or purposes for which the meeting is called. Notice of a special
meeting must include a description of the purpose or purposes for which the
meeting shall be called. Only business within the purpose or purposes described
in the meeting notice may be conducted at a special shareholders' meeting.
(c) Unless these bylaws require otherwise, if an annual or special
shareholders' meeting is adjourned to a different date, time or place, notice
need not be given of the new date, time or place if the new date, time or place
is announced at the meeting before adjournment. If a new record date for the
adjourned meeting is or must be fixed under applicable law or Article II,
Section 8 of these bylaws, however, notice of the adjourned meeting must be
given under this section to persons who are shareholders as to the new record
date.
SECTION 5. Notice of Shareholder Nominations of Directors. Only persons
who are nominated in accordance with the following procedures shall be eligible
for election by the shareholders as directors of the corporation, except as may
be otherwise provided in the articles of incorporation of the corporation.
Nominations of persons for election to the board of directors may be made at any
annual meeting of shareholders (a) by or at the direction of the board of
directors (or any duly authorized committee thereof) or (b) by any shareholder
of the corporation (i) who is a shareholder of record on the date of such
shareholder's giving of the notice provided for in this Section 5 and on the
record date for the determination of shareholders entitled to vote at such
annual meeting and (ii) who complies with the notice procedures set forth in
this Section 5.
In addition to any other applicable requirements, for a nomination to
be made by a shareholder, such shareholder must have given timely notice thereof
in proper written form to the secretary of the corporation.
To be timely, a shareholder's notice to the secretary must be
delivered to or mailed and received at the principal executive offices of the
corporation not less than ninety (90) days nor more than one hundred thirty
(130) days prior to the anniversary date of the immediately preceding annual
meeting of shareholders; provided, however, that in the event that the annual
meeting is called for a date that is not within thirty (30) days before or after
such anniversary date, notice by the shareholder in order to be timely must be
so received not later than the close of business on the fifth (5th) day
following the day on which such notice of the date of the annual meeting was
mailed or public disclosure of the date of the annual meeting was made,
whichever first occurs. In no event shall the public disclosure of an
adjournment of an annual meeting commence a new time period for the giving of a
shareholder's notice as described above.
<PAGE>
To be in proper written form, a shareholder's notice to the secretary
must set forth (a) as to each person whom the shareholder proposes to nominate
for election as a director (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or employment of the
person, (iii) the class or series and number of shares of capital stock of the
corporation which are owned beneficially or of record by the person and (iv) any
other information relating to the person that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations promulgated thereunder; and (b) as to the shareholder giving the
notice (i) the name and record address of such shareholder, (ii) the class or
series and number of shares of capital stock of the corporation which are owned
beneficially or of record by such shareholder, (iii) a description of all
arrangements or understandings between such shareholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made by such shareholder, (iv) a
representation that such shareholder intends to appear in person or by proxy at
the meeting to nominate the persons named in its notice and (v) any other
information relating to such shareholder that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder. Such notice
must be accompanied by a written consent of each proposed nominee, consenting to
being named as a nominee and to serving as a director if elected.
No person shall be eligible for election by the shareholders as a
director of the corporation unless nominated in accordance with the procedures
set forth in this Section 5. If the Chairman of the meeting determines that a
nomination was not made in accordance with the foregoing procedures, the
Chairman shall declare to the meeting that the nomination was defective and such
defective nomination shall be disregarded.
SECTION 6. Notice of Shareholder Proposals of Business. No business
may be transacted at an annual meeting of shareholders, other than business that
is either (a) specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the board of directors (or any duly authorized
committee thereof), (b) otherwise properly brought before the annual meeting by
or at the direction of the board of directors (or any duly authorized committee
thereof) or (c) otherwise properly brought before the annual meeting by any
shareholder of the corporation (i) who is a shareholder of record on the date of
such shareholder's giving of the notice provided for in this Section 6 and on
the record date for the determination of shareholders entitled to vote at such
annual meeting and (ii) who complies with the notice procedures set forth in
this Section 6.
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a shareholder, such shareholder
must have given timely notice thereof in proper written form to the secretary of
the corporation.
To be timely, a shareholder's notice to the secretary must be
delivered to or mailed and received at the principal executive offices of the
corporation not less than ninety (90) days nor more than one hundred thirty
(130) days prior to the anniversary date of the immediately preceding annual
<PAGE>
meeting of shareholders; provided, however, that in the event that the annual
meeting is called for a date that is not within thirty (30) days before or after
such anniversary date, notice by the shareholder in order to be timely must be
so received not later than the close of business on the fifth (5th) day
following the day on which such notice of the date of the annual meeting was
mailed or public disclosure of the date of the annual meeting was made,
whichever first occurs. In no event shall the public disclosure of an
adjournment of an annual meeting commence a new time period for the giving of a
shareholder's notice as described above.
To be in proper written form, a shareholder's notice to the secretary
must set forth as to each matter such shareholder proposes to bring before the
annual meeting (i) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, (ii) the name and record address of such shareholder, (iii) the
class or series and number of shares of capital stock of the corporation which
are owned beneficially or of record by such shareholder, (iv) a description of
all arrangements or understandings between such shareholder and any other person
or persons (including their names) in connection with the proposal of such
business by such shareholder and any material interest of such shareholder in
such business and (v) a representation that such shareholder intends to appear
in person or by proxy at the annual meeting to bring such business before the
meeting.
No business shall be conducted at the annual meeting of shareholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 6; provided, however, that, once business
has been properly brought before the annual meeting in accordance with such
procedures, nothing in this Section 6 shall be deemed to preclude discussion by
any shareholder of any such business. If the Chairman of an annual meeting
determines that business was not properly brought before the annual meeting in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
SECTION 7. Definition. For purposes of Sections 5 and 6 of this
Article II, "public disclosure" shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press or comparable national
news service or in a document publicly filed by the corporation with the
Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act.
SECTION 8. Closing of Transfer Books or Fixing of Record Date. The board
of directors of the corporation may fix the record date for one or more voting
groups in order to determine shareholders entitled to notice of a shareholders'
meeting, to demand a special meeting, to vote or to take any other action. A
record date may not be more than 70 days before the meeting or action requiring
a determination of shareholders. If not otherwise fixed, the record date for
determining shareholders entitled to notice of and to vote at an annual or
special shareholders' meeting shall be the day before the first notice is
delivered to shareholders. If the board of directors does not fix, or delegate
the fixing of, the record date for determining shareholders entitled to a
distribution (other than one involving a purchase, redemption or other
acquisition of the corporation's shares), it shall be the date the board of
directors authorizes the distribution. A determination of shareholders entitled
to
<PAGE>
notice of or to vote at a shareholders' meeting shall be effective for any
adjournment of the meeting unless the board of directors fixes a new record
date, which it must do if the meeting is adjourned to a date more than 120 days
after the date fixed for the original meeting.
SECTION 9. Voting Lists. (a) After fixing a record date for any
shareholder meeting, the corporation shall prepare an alphabetical list of the
names of all its shareholders who are entitled to notice of a shareholders'
meeting. The list must be arranged by voting group (and within each voting
group by class or series of shares) and show the address of and number of shares
held by each shareholder.
(b) The shareholders' list must be available for inspection by any
shareholder beginning two business days after notice of the meeting is given for
which the list was prepared and continuing through the meeting, at the
corporation's principal office or at a place identified in the meeting notice in
the city where the meeting will be held. A shareholder, his agent or his
attorney, shall be entitled on written demand to inspect and, subject to the
requirements of applicable law, copy the list during regular business hours and
at his expense, during the period it shall be available for inspection. The
corporation shall make the shareholders' list available at the meeting, and any
shareholder, his agent or his attorney, shall be entitled to inspect the list at
any time during the meeting or any adjournment.
SECTION 10. Quorum. Shares entitled to vote as a separate voting group
may take action on a matter at a meeting only if a quorum of those shares exists
with respect to that matter. Unless the articles of incorporation or applicable
law impose other quorum requirements, a majority of the votes entitled to be
cast on the matter by a voting group, represented in person or by proxy, shall
constitute a quorum of that voting group for action on that matter. If less
than a majority of the outstanding shares are represented at a meeting, a
majority of the shares so represented may adjourn the meeting from time to time
without further notice except as may be required by Section 4 of this Article or
by applicable law. At such adjourned meeting at which a quorum shall be present
or represented, any business may be transacted which might have been transacted
at the meeting as originally noticed. Once a share is represented for any
purpose at a meeting, it shall be deemed present for quorum purposes for the
remainder of the meeting and for any adjournment of that meeting unless a new
record date is or must be set for that adjourned meeting.
SECTION 11. Proxies. (a) A shareholder may appoint a proxy to vote or
otherwise act for him by signing an appointment form, either personally or by
his attorney-in-fact. An appointment of a proxy shall be effective when
received by the secretary or other officer or agent authorized to tabulate votes
of the corporation. An appointment shall be valid for 11 months unless a longer
period is expressly provided in the appointment form. An appointment of a proxy
shall be revocable by the shareholder unless the appointment form conspicuously
states that it is irrevocable and the appointment shall be coupled with an
interest. Appointments coupled with an interest include the appointment of (1)
a pledgee; (2) a person who purchased or agreed to purchase the shares; (3) a
creditor of the corporation who extended it credit under terms requiring the
appointment; (4) an employee of the corporation whose employment contract
requires the appointment; or (5) a party to a voting agreement created under
applicable law.
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(b) The death or incapacity of the shareholder appointing a proxy does not
affect the right of the corporation to accept the proxy's authority unless
notice of the death or incapacity shall be received by the secretary or other
officer or agent authorized to tabulate votes before the proxy exercises his
authority under the appointment. An appointment made irrevocable because it is
coupled with an interest shall be revoked when the interest with which it is
coupled is extinguished. A transferee for value of shares subject to an
irrevocable appointment may revoke the appointment if he did not know of its
existence when he acquired the shares and the existence of the irrevocable
appointment was not noted conspicuously on the certificate representing the
shares or on the information statement for shares without certificates.
(c) Subject to applicable law and to any express limitation on the proxy's
authority appearing on the face of the appointment form, the corporation shall
be entitled to accept the proxy's vote or other action as that of the
shareholder making the appointment.
SECTION 12. Voting of Shares. Except as provided below or unless the
articles of incorporation provide otherwise, and subject to the provisions of
Section 14 of this Article, each outstanding share shall be entitled to one (1)
vote on each matter voted on at a shareholders' meeting. If a quorum exists,
action on a matter (other than the election of directors) by a voting group
shall be approved if the votes cast within the voting group favoring the action
exceed the votes cast opposing the action, unless the articles of incorporation
or applicable law require a greater number of affirmative votes. Unless
otherwise provided in the articles of incorporation, directors shall be elected
by a plurality of the votes cast by the shares entitled to vote in the election
at a meeting at which a quorum is present.
SECTION 13. Voting of Shares by Certain Holders. (a) Shares standing in
the name of another corporation may be voted by such officer, agent or proxy as
the bylaws of such corporation may prescribe, or, in the absence of such
provision, as the board of directors of such corporation may determine.
(b) Shares held by an administrator, executor, guardian or conservator may
be voted by him, either in person or by proxy, without a transfer of such shares
into his name. Shares standing in the name of a trustee may be voted by him,
either in person or by proxy, but no trustee shall be entitled to vote shares
held by him without a transfer of such shares into his name. Shares standing in
the name of a receiver may be voted by such receiver, and shares held by or
under the control of a receiver may be voted by such receiver without the
transfer thereof into his name if authority to do so is contained in an
appropriate order of the court by which such receiver was appointed.
(c) A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
SECTION 14. Shares Held by Nominees. The corporation may establish a
procedure by which the beneficial owner of shares that are registered in the
name of a nominee shall be recognized by the corporation as the shareholder. The
extent of this recognition may be determined in such
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procedure. The procedure may set forth, among other things: (1) the types of
nominees to which it applies; (2) the rights or privileges that the corporation
recognizes in a beneficial owner; (3) the manner in which the procedure shall be
selected by the nominee; (4) the information that must be provided when the
procedure is selected; (5) the period for which selection of the procedure shall
be effective; and (6) other aspects of the rights and duties created.
SECTION 15. Corporation's Acceptance of Votes. (a) If the name signed on
a vote, consent, waiver or proxy appointment corresponds to the name of the
shareholder, the corporation, if acting in good faith, shall be entitled to
accept the vote, consent, waiver or proxy appointment and give it effect as the
act of the shareholder.
(b) If the name signed on a vote, consent, waiver or proxy appointment does
not correspond to the name of its shareholder, the corporation, if acting in
good faith, shall nevertheless be entitled to accept the vote, consent, waiver
or proxy appointment and give it effect as the act of the shareholder if: (1)
the shareholder is an entity and the name signed purports to be that of an
officer or agent of the entity; (2) the name signed purports to be that of an
administrator, executor, guardian or conservator representing the shareholder
and, if the corporation requests, evidence of fiduciary status acceptable to the
corporation has been presented with respect to the vote, consent, waiver or
proxy appointment; (3) the name signed purports to be that of a receiver or
trustee in bankruptcy of the shareholder and, if the corporation requests,
evidence of this status acceptable to the corporation has been presented with
respect to the vote, consent, waiver or proxy appointment; (4) the name signed
purports to be that of a pledgee, beneficial owner or attorney-in-fact of the
shareholder and, if the corporation requests, evidence acceptable to the
corporation of the signatory's authority to sign for the shareholder has been
presented with respect to the vote, consent, waiver or proxy appointment; and
(5) two or more persons are the shareholders as co-tenants or fiduciaries and
the name signed purports to be the name of at least one of the co-owners and the
person signing appears to be acting on behalf of all the co-owners.
(c) The corporation shall be entitled to reject a vote, consent, waiver or
prior appointment if the secretary or other officer or agent authorized to
tabulate votes, acting in good faith, has reasonable basis for doubt about the
validity of the signature on it or about the signatory's authority to sign for
the shareholder.
ARTICLE III. BOARD OF DIRECTORS
SECTION 1. General Powers. The management of the affairs, property, and
business of the corporation shall be vested in a board of directors, who shall
be chosen as hereinafter set forth and who shall hold office until their
successors are elected and qualify or until their earlier death, resignation,
retirement, or removal. Within six months after first becoming a director (or,
if such director is precluded by applicable regulation or law from so during
such six months, as soon as possible thereafter), each director shall be a
shareholder, and a subsequent transfer by a director of all of his stock in the
corporation shall operate as a resignation of his office. In addition to the
powers and authorities granted by these bylaws and the articles of incorporation
expressly conferred upon it, the board of directors may exercise all such powers
of the corporation and do all such lawful acts and
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things as are not by law or by the articles of incorporation or by these bylaws
required to be exercised or done by the shareholders.
SECTION 2. Governance. The board of directors will adopt corporate
governance guidelines to set forth policies and procedures to organize
themselves and oversee operation of the corporation. These guidelines shall be
adopted, as well as amended or modified, only by the affirmative vote of not
less than two-thirds (2/3) of all directors, except that the affirmative vote of
not less than four-fifths (4/5) of all directors shall be required to amend,
modify, add to or delete from any guideline which directly relates to a matter
which, under these bylaws, would require not less than a four-fifths (4/5) vote
of the directors to amend, modify, add to or delete therefrom.
SECTION 3. Election, Number and Resignation. (a) The directors of the
corporation shall be divided into three groups which shall be as nearly equal in
number as may be possible. At each annual shareholders' meeting, the successors
of the group of directors whose terms expire in that year shall be elected to
hold office for a full term of three (3) years (subject to retirement and
resignation as required by Subsection (c)), so that the term of office of one
group of directors shall expire each year; provided, however, that the term of
office of the directors of each group shall continue until the election and
qualification of the successors to the directors of such group. After the
division of directors into groups, any additional directors who may be elected
as herein provided shall be assigned to the various groups so as to maintain the
number in each group as nearly equal as possible.
(b) From the date of the adoption of these bylaws, the board of directors
shall consist of thirteen (13) persons, five (5) of whom shall be assigned to
the group of directors whose term of office expires in 1998, until such time as
any one of such group shall cease to be a member of the board of directors.
Thereafter, the board of directors shall consist of twelve (12) persons.
Directors who change employment or retire or become disabled will offer a
written resignation as a result of such event to the Committee on Director
Affairs (or successor committee) which will make a recommendation with respect
to continued service to the board of directors for action.
(c) Each director who was, on August 22, 1995, a director of First
Mississippi Corporation and who had completed less than nine (9) consecutive
years of service on the board of First Mississippi Corporation on that date will
offer a written resignation upon the completion of nine (9) consecutive years of
service on either the board of First Mississippi Corporation or the corporation
if under age sixty-five (65) at that time. In addition, all such directors who
were under age sixty-five (65) on August 22, 1995 will offer a written
resignation upon reaching age sixty-five (65). All other directors will offer
resignations upon completion of nine (9) consecutive years of service on either
the board of directors of First Mississippi Corporation or the corporation prior
to age of sixty-five (65) and again upon reaching age sixty-five (65). In each
case, the Committee on Directors Affairs (or successor committee) will make a
recommendation with respect to continued service to the board of directors for
action. Directors will retire at age seventy (70), unless asked by the board of
directors to serve longer. For purposes of determining whether a director has
served for nine (9) consecutive years, time served as a director of First
Mississippi Corporation will be added to the time served as a director of the
corporation.
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SECTION 4. Vacancies. All vacancies on the board of directors, whether
caused by resignation, death, increase in the number of directors, or otherwise,
shall be filled by election by the board of directors. Each such director
elected shall hold office until his resignation, retirement or death or until
his term expires and his successor is elected and qualified.
SECTION 5. Regular Meetings. Regular meetings of the board of directors
may be held at the principal office of the corporation or at such other place or
places, within or without the State of Mississippi, as the board of directors
may from time to time designate, and at such meetings any and all business of
the corporation may be transacted without the necessity of stating in the call
the matters to be considered. If, in the opinion of the chairman of the board
of directors or the chief executive officer, there exists a reason to do so, the
board of directors or any committee of the board of directors may meet via a
telephone conference hook-up (or similar electronic means in which all
participants can hear each other). All business presented and discussed at said
telephone meeting shall be set forth in the minutes of said meeting, and the
minutes shall be mailed to all directors as soon as possible following said
meeting. Any director who is unable to attend a board of directors or committee
meeting in person may participate by means of telephone hook-up (or similar
electronic means in which all participants can hear each other) and such
participation shall constitute his presence in person at such meeting.
SECTION 6. Special Meetings. Special meetings of the board of directors
may be called at any time by the chairman of the board or chief executive
officer or by two-thirds (2/3) of the number of directors specified in Section
3(b) of this Article to be held at the principal office of the corporation or at
such other place within or without the State of Mississippi, as may be
designated in such call, and at such meetings any and all business of the
corporation may be transacted without the necessity of stating in the call the
matters to be considered. The provisions of Section 5 of this Article regarding
telephone conference hook-up and telephone attendance at regular meetings shall
also apply to special meetings.
SECTION 7. Notice of Board Meetings. Notice of all meetings of the board
of directors shall be given in writing to each director by not less than two (2)
days' service of the same by delivery in person, by telegraph, teletype, or
other form of wire or wireless communication, or by not less than five (5) days'
service of the same by letter; provided, however, if the chairman of the board
or the chief executive officer or two-thirds (2/3) of the number of directors
specified in Section 3(b) of this Article determines that circumstances require
the board of directors to meet on less than two days' notice, then a meeting may
be held on lesser (but in no event less than eight (8) hours') notice, if each
director is notified of the time and place of such meeting by at least one of
the following means: (1) orally, whether in person or by a telephone
conversation in which the director personally participates; or (2) in a writing
actually received by such director, which is delivered to him in person, by
telegraph, teletype or other form of wire or wireless communication, or private
carrier. For the purpose of this preceding sentence, a written notice is deemed
to have been "actually received" by a director if it is delivered to his
designated address as it appears in the books of the corporation during normal
business hours at least eight (8) hours before the time for the meeting. Notice
of any such meeting need not be given to any director who shall, either before
or after the meeting, submit a signed waiver of notice or who shall attend such
meeting, except when he shall attend for the express
<PAGE>
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened.
SECTION 8. Quorum. A quorum at all meetings of the board of directors
shall consist of a majority of the whole board. Unless otherwise provided by
law, by the articles of incorporation or by these bylaws, the act of the
majority of the directors at a meeting at which a quorum is present shall be the
act of the board of directors, except for the following: (a) the affirmative
vote of not less than two-thirds (2/3) of all directors shall be required to
approve any plan of merger, consolidation or reorganization and to recommend to
the shareholders any merger, consolidation or reorganization of the corporation
into or with any other corporation, domestic or foreign, (b) the affirmative
vote of not less than two-thirds (2/3) of all directors shall be required to
modify, add to or delete from these bylaws, and (c) the affirmative vote of not
less than four-fifths (4/5) of all directors shall be required to amend, modify
or delete Section 3 of this Article or this clause (c) of this Section 8.
SECTION 9. Committees. Standing or temporary committees will be appointed
from its own number by the board of directors from time to time, and the board
of directors may from time to time invest such committees with such powers as it
may see fit, subject to such conditions or restrictions as may be prescribed by
law or by such board.
SECTION 10. Compensation. Directors shall be paid such compensation as
shall be fixed by resolution of the board of directors. In addition, a fixed
per diem plus expenses of attendance, if any, may be allowed for attendance at
each regular or special meeting of the board of directors or for attending
committee meetings or for performing special services at the request of the
chief executive officer. Nothing herein contained shall be construed to
preclude any director from serving the corporation in any other capacity and
receiving compensation therefor; however, the number of active employee
directors will be limited to one.
ARTICLE IV. OFFICERS
SECTION 1. Chairman of the Board. (a) The officers of the corporation
shall be a chairman of the board of directors, a chief executive officer, a
president/chief operating officer, such vice presidents as may be designated by
the board of directors, a secretary, and a general counsel, each of whom shall
be elected by the affirmative vote of two-thirds (2/3) of all directors, and
who shall hold office at the pleasure of the board of directors for a term of
one year and thereafter until their successors are elected and qualify. The
board of directors may also choose such additional officers as they may deem
desirable. The chairman of the board must be a member of the board of
directors. The board of directors may combine any two offices in one person
except the offices of president/chief operating officer and secretary. Any
officer may be removed by the affirmative vote of two-thirds (2/3) of all
directors.
(b) The chairman of the board shall preside at all meetings of the
directors and shareholders, and shall be ex-officio member of all standing
committees of the board of directors, unless precluded by conflict of interest,
including but not limited to conflicts specified in corporate
<PAGE>
governance guidelines as adopted by the board of directors; provided, however,
that if the chairman of the board also serves as the chief executive officer, he
shall not be a member of the Compensation and Human Resources Committee. He
shall perform all such other duties as are incident to his office or properly
required of him by the board of directors, or as specified in corporate
governance guidelines as adopted by the board of directors, including scheduling
and setting agendas for board meetings, serving as primary representative of the
board with the chief executive officer, and monitoring and evaluating the chief
executive officer's performance. If the chairman is also the chief executive
officer, he will discharge the duties and responsibilities of that position in
addition to those responsibilities of the chairman, unless precluded by conflict
of interest, including but not limited to conflicts specified in corporate
governance guidelines as adopted by the board of directors.
SECTION 2. Chief Executive Officer. The chief executive officer shall be
the principal officer of the corporation and shall have general supervision of
the affairs of the corporation. He shall be primarily responsible for
implementing policies of the board of directors and conducting the business of
the corporation. He shall make reports to the board of directors and
shareholders, and shall perform all such other duties as are incident to his
office or are properly required of him by the board of directors. The chief
executive officer may also serve as the chairman of the board of directors
and/or president/chief operating officer.
SECTION 3. President/Chief Operating Officer. The president/chief
operating officer shall have certain duties and supervise specific affairs of
the corporation as properly required of him by the board of directors from time
to time. He shall exercise the functions of the chief executive officer in the
absence or disability of the chief executive officer, unless and until the board
of directors designates another person to assume such functions.
SECTION 4. Vice-President. The vice-presidents, which may include an
executive vice- president, shall have such powers and discharge such duties as
may be assigned to them from time to time by the board of directors.
SECTION 5. Secretary. The secretary shall issue notices for all meetings,
except that the notice for special meetings of directors called at the request
of the required two-thirds (2/3) members as provided in Section 6, Article III,
may be issued by such directors, shall keep minutes of all meetings, shall have
charge of the seal and the corporate books, and shall make such reports and
perform such other duties as are incident to his office, or are properly
required of him by the board of directors.
SECTION 6. General Counsel. The general counsel, subject to the
supervision of the board of directors, shall be responsible for all matters of
legal import.
SECTION 7. Failure to Act. In the case of absence or inability or failure
to act of any officer of the corporation and of any person herein authorized to
act in his place, the board of directors may from time to time delegate the
powers or duties of such officer to any other officer, or any director or other
person whom it may select in either case by the affirmative vote of two-thirds
(2/3) of all directors.
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SECTION 8. Vacancies. Vacancies in any office arising from any cause may
be filled by the directors at any regular or special meeting by the affirmative
vote of two-thirds (2/3) of all directors.
SECTION 9. Other Officers. The board of directors may appoint such other
officers and agents as it shall deem necessary or expedient, who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the board of directors.
SECTION 10. Salaries. The salaries of all officers of the corporation
shall be fixed by the board of directors.
SECTION 11. Bonds. The board of directors may by resolution require any
or all of the officers to give bonds to the corporation with sufficient surety
or sureties, conditioned for the faithful performance of the duties of their
respective offices, and to comply with such other conditions as may from time to
time be required by the board of directors. The premiums and other cost of such
bonds may be paid by the corporation.
ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. Contracts. The board of directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the corporation, and such authority
may be general or confined to specific instances.
SECTION 2. Loans. No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the board of directors. Such authority may be
general or confined to specific instances.
SECTION 3. Checks, Drafts, Etc. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the corporation, shall be signed by such officer or officers, agent or
agents of the corporation and in such manner as shall from time to time be
determined by resolution of the board of directors.
SECTION 4. Deposits. All funds of the corporation not otherwise employed
shall be deposited from time to time to the credit of the corporation in such
banks, companies or other depositories as the board of directors may select.
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 1. Certificates for Shares. Shares shall be represented by
certificates. Certificates representing shares of the corporation shall be in
such form as shall be determined by the board of directors. At a minimum, each
share certificate must state on its face (1) the name of the corporation and
that the corporation is organized under the law of the State of Mississippi; (2)
the name of the person to whom issued; and (3) the number and class of shares
and the designation of the series, if
<PAGE>
any, the certificate represents. If the corporation is authorized to issue
different classes of shares or different series within a class, the
designations, relative rights, preferences and limitations applicable to each
class and the variations in rights, preferences and limitations determined for
each series (and the authority of the board of directors to determine variations
for future series) must be summarized on the front or back of each certificate
or the corporation must furnish the shareholder this information on request in
writing and without charge.
SECTION 2. Certificates for Shares Signed. Each share certificate must be
signed (either manually or in facsimile) by the chief executive officer or a
vice president and by the secretary or an assistant secretary or by such other
officers designated in the bylaws or by the board of directors to do so, and may
be sealed with the corporate seal. If the person who signed (either manually or
in facsimile) a share certificate no longer holds office when the certificate is
issued, the certificate is nevertheless valid.
SECTION 3. Certificates for Shares Numbered. All certificates for shares
shall be consecutively numbered or otherwise identified. The name and address of
the person to whom the shares represented thereby are issued, with the number of
shares and date of issue, shall be entered on the stock transfer books of the
corporation. All certificates surrendered to the corporation for transfer shall
be canceled and no new certificate shall be issued until the former certificate
for a like number of shares shall have been surrendered and canceled, except
that in the case of a lost, destroyed, or mutilated certificate a new one may be
issued therefor upon terms and indemnity acceptable to the corporation.
SECTION 4. Transfer of Shares. Transfer of shares of the corporation
shall be made only on the stock transfer books of the corporation (1) by the
holder of record thereof or by his legal representative, who shall furnish
proper evidence of authority to transfer, or (2) by his attorney authorized by
power of attorney duly executed and filed with the secretary of the corporation,
and on surrender for cancellation of the certificate for such shares.
ARTICLE VII. INDEMNIFICATION
SECTION 1. Definitions. In this article: (1) a reference to the
"corporation" includes this corporation and any domestic or foreign predecessor
entity of the corporation in a merger.
(2) "director" or "officer" means an individual who is or was a director or
officer, respectively, of the corporation or an individual who, while a director
or officer of the corporation, is or was serving at the corporation's request as
a director, officer, partner, trustee, employee, or agent of another domestic or
foreign or domestic corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise. A director shall be considered to be serving
an employee benefit plan at the corporation's request if his duties to the
corporation also impose duties on, or otherwise involve services by, him to the
plan or to participants in or beneficiaries of the plan. "Director" or "officer"
includes, unless the context requires otherwise, the estate or personal
representative of a director or officer.
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(3) "disinterested director" means a director who, at the time of a vote
referred to in Article VII, Section 4 or a vote or selection referred to in
Article VII, Section 6, is not:
(i) a party to the proceeding; or
(ii) an individual having a familial, financial, professional or
employment relationship with the director whose indemnification or advance for
expenses is the subject of the decision being made, which relationship would, in
the circumstances, reasonably be expected to exert an influence on the
director's judgment when voting on the decision being made.
(4) "expenses" include counsel fees.
(5) "liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employee
benefit plan), or reasonable expenses incurred with respect to a proceeding.
(6) "official capacity" means: (i) when used with respect to a director,
the office of director in the corporation; and (ii) when used with respect to an
individual other than a director as contemplated in Article VII, Section 7, the
office in the corporation held by the officer or the employment or agency
relationship undertaken by the employee or agent on behalf of the corporation.
"Official capacity" does not include service for any other foreign or domestic
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise.
(7) "party" includes an individual who was, is, or is threatened to be made
a named defendant or respondent in a proceeding.
(8) "proceeding" means any threatened, pending, or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative and
whether formal or informal.
SECTION 2. Authority to Indemnify. (a) Except as provided in subsection
(d), the corporation shall indemnify any individual made a party to a proceeding
because he is or was a director against liability incurred in the proceeding if:
(1)(i) He conducted himself in good faith; and
(ii) He reasonably believed:
(A) In the case of conduct in his official capacity with the
corporation, that his conduct was in its best interests of the corporation; and
(B) In all other cases, that his conduct was at least not opposed
to the best interests of the corporation; and
<PAGE>
(iii) In the case of any criminal proceeding, he had no reasonable
cause to believe his conduct was unlawful; or
(2) He engaged in conduct which broader indemnification has been made
permissible or obligatory under a provision of the articles of incorporation.
(b) A director's conduct with respect to an employee benefit plan for a
purpose he reasonably believed to be in the interest of the participants in and
beneficiaries of the plan is conduct that satisfies the requirement of
subsection (a)(1)(ii)(B).
(c) The termination of a proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director did not meet the standard of conduct
described in this section.
(d) Unless otherwise ordered by a court of competent jurisdiction, the
corporation may not indemnify a director under this section:
(1) In connection with a proceeding by or in the right of the
corporation, except for reasonable expenses incurred in connection with the
proceeding if it is determined that the director has met the relevant standard
of conduct under paragraph (a) of this section: or
(2) In connection with any proceeding with respect to conduct for
which he was adjudged liable on the basis that he received a financial benefit
to which he was not entitled, whether or not involving action in his official
capacity.
(e) Indemnification permitted under this section in connection with a
proceeding by or in the right of the corporation shall be limited to reasonable
expenses incurred in connection with the proceeding.
(f) Indemnification for directors and officers of the corporation under
this Article VII shall be to the fullest extent permitted by the Business
Corporation Act of the State of Mississippi (the "MBCA"), as the same exists at
the time of the adoption of these bylaws or may hereafter by amended (but only
to the extent any such amendment permits the corporation to provide broader
indemnification rights than the MBCA permitted the corporation to provide prior
to such amendment.), subject to the limitation on advancement for expenses set
forth in Section 4(d).
SECTION 3. Mandatory Indemnification. The corporation shall indemnify a
director who was wholly successful, on the merits or otherwise, in the defense
of any proceeding to which he was a party because he was a director of the
corporation against reasonable expenses incurred by him in connection with the
proceeding.
SECTION 4. Advance for Expenses. (a) The corporation shall, before final
disposition of a proceeding, advance funds to pay for or reimburse reasonable
expenses incurred by a director who is a party to a proceeding because he is a
director if he delivers to the corporation:
<PAGE>
(1) A written affirmation of his good faith belief that he has met the
relevant standard of conduct described in Article VII, Section 2 or that the
proceeding involves conduct for which liability has been eliminated under a
provision of the articles of incorporation; and
(2) His written undertaking, to repay any funds advanced if he is not
wholly successful, on the merits or otherwise, in his defense which would
entitle him to mandatory indemnification under Article VII, Section 3 and it is
ultimately determined that he has not met the relevant standard of conduct
described in Article VII, Section 2.
(b) The undertaking required by subsection (a)(2) of this section must be
an unlimited general obligation of the director but need not be secured and may
be accepted without reference to the financial ability of the director to make
repayment.
(c) Determination and authorization of payments under this section shall be
made in the manner specified in Article VII, Section 6.
(d) No advancement for expenses shall be made under this Section 4 for
expenses incurred by a director as a result of a direct action by the
corporation against the director.
SECTION 5. Court Ordered Indemnification. A director of the corporation
who is a party to a proceeding may apply for indemnification to the court
conducting the proceeding or to another court of competent jurisdiction.
SECTION 6. Determination and Authorization of Indemnification. (a) The
corporation may not indemnify a director under Article VII, Section 2 unless
authorized for a specific proceeding after a determination has been made that
indemnification of the director is permissible because he has met the relevant
standard of conduct set forth in Article VII, Section 2.
(b) The determination shall be made:
(1) If there are two (2) or more disinterested directors, by the board
of directors by a majority vote of all disinterested directors (a majority of
whom shall for such purpose constitute a quorum) or by a majority of the members
of a committee of two (2) or more disinterested directors appointed by such a
vote;
(2) By special legal counsel:
(i) Selected in the manner prescribed in subdivision (1) above;
or
(ii) If there are fewer than two (2) disinterested directors
elected by the board of directors (in which selection
directors who do not qualify as disinterested directors may
participate); or
<PAGE>
(3) By the shareholders, but shares owned by or voted under the
control of a director who at the time does not qualify as a disinterested
director may not be voted on the determination; or
(4) If there has been a change of control of the corporation (as
defined in Section 11(a) of this Article), then in the manner provided in
Section 11 of this Article.
(c) Authorization of indemnification shall be made in the same manner as
the determination that indemnification is permissible, except that if there are
fewer than two (2) disinterested directors, authorization of indemnification
shall be made by those entitled under subsection (b)(2)(ii) of this section to
select special legal counsel.
(d) The corporation agrees to submit requests for indemnification or
advancement of expenses to the board of directors of the corporation,
Independent Legal Counsel (as defined in Section 11 of this Article) or to the
shareholders of the corporation, as applicable, within a reasonable time after
the director requests in writing that the corporation indemnify the director or
advance expenses to him.
SECTION 7. Indemnification of Officers, Employees and Certain Agents. (a)
The corporation shall indemnify and advance expenses under this section to an
officer of the corporation who is a party to a proceeding because he is an
officer of the corporation; to any employee who is a party to a proceeding
because he is an employee of the corporation, and to any agent specifically
designated to be indemnified by the board of directors of the corporation (a
"designated agent") who is a party to a proceeding because he is an agent of the
corporation:
(1) To the same extent as a director is entitled to indemnification
under this Article VII; and
(2) If he is an officer, employee or designated agent, but not a
director, to such further extent as may be provided by the articles of
incorporation, bylaws, a resolution of the board of directors or contract except
for (A) liability in connection with a proceeding by or in the right of the
corporation other than for reasonable expenses incurred in connection with the
proceeding or (B) liability arising out of conduct that constitutes (i) receipt
by him of a financial benefit to which he is not entitled, (ii) an intentional
infliction of harm on the corporation or shareholders, or (iii) an intentional
violation of criminal law.
(b) The provisions of subsection (a)(2), of this section shall apply to an
officer, employee or designated agent who is also a director if the basis on
which he is made a party to the proceeding is an act or omission solely as an
officer.
(c) An officer, employee or designated agent of the corporation who is not
a director is entitled to mandatory indemnification under Article VII, Section
3, and may apply to a court under Article VII, Section 5, for indemnification or
an advance for expenses, in each case to the same extent to which a director may
be entitled to indemnification or advance for expenses under those Sections.
<PAGE>
SECTION 8. Right of Corporation to Insure. The corporation may purchase
and maintain insurance on behalf of an individual who is a director or officer
of the corporation, or who, while a director or officer of the corporation,
serves at the corporation's request as a director, officer, partner, trustee,
employee or agent of another domestic or foreign corporation, partnership, joint
venture, trust, employee benefit plan or other entity, against liability
asserted against or incurred by him in that capacity or arising from his status
as a director or officer, whether or not the corporation would have power to
indemnify or advance expenses to him against the same liability under Article
VII, Sections 2 or 3, or applicable law.
SECTION 9. Right to Bring Action to Enforce. If a claim for
indemnification or advancement of expenses which is required to be made by the
corporation under this Article VII or applicable law is not paid in full by the
corporation within 90 days after a written claim has been received by the
corporation, the director, officer, employee or designated agent (each, an
"indemnitee") making such claim may at any time thereafter bring suit against
the corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the indemnitee shall be entitled to be paid also the expense
of prosecuting such claim. It shall be a defense to any such action that the
indemnitee has not met the standards of conduct which make it permissible under
this Article VII or the laws of the State of Mississippi for the corporation to
indemnify the indemnitee for the amounts claimed, but the burden of proving such
defense shall be on the corporation. Neither the failure of the corporation
(including its board of directors, independent legal counsel, Independent
Counsel, or its shareholders) to have made a determination prior to the
commencement of such action that indemnification of the indemnitee shall be
proper in the circumstances because he has met the applicable standard of
conduct set forth under this Article VII or the laws of the State of
Mississippi, nor an actual determination by the corporation (including its board
of directors, independent legal counsel, Independent Counsel, or its
shareholders) that the indemnitee had not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
indemnitee had not met the applicable standard of conduct. This Article VII
shall be deemed to grant each person who is entitled to indemnification
hereunder rights against the corporation to enforce the provisions of this
Article VII, and any repeal or other modification of this Article or any repeal
or modification of the MBCA or any other applicable law shall not limit any
rights of indemnification then existing or arising out of events, acts,
omissions, circumstances occurring or existing prior to such repeal or
modification, including, without limitation, the right to indemnification for
proceedings commenced after such repeal or modification to enforce this Article
VII with regard to acts, omissions, events or circumstances occurring or
existing prior to such repeal or modification.
SECTION 10. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article VII shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director or officer and shall
inure to the benefit of the heirs, executors and administrators of such a
person. Any repeal or modification of this Article VII by the shareholders of
the corporation shall not adversely affect any rights to indemnification and
advancement of expenses existing pursuant to this Article VII with respect to
any acts or omissions occurring prior to such repeal or modification.
<PAGE>
SECTION 11. Change of Control. (a) Following a change of control of the
corporation (as defined in subsection (b) below), with respect to all matters
arising out of acts, omissions or events concerning the rights of any person
seeking indemnification under this Article VII, the determination as to the
permissibility of indemnification and advancement of expenses shall be made by
special legal counsel selected by such person and approved by the board of
directors or its committee in the manner described in Section 6 of this Article
VII (which approval shall not be unreasonably withheld), which counsel has not
otherwise performed services (other than in connection with similar matters)
within the five years preceding its engagement to render such opinion for such
person or for the corporation or any affiliates (as such term is defined in Rule
405 under the Securities Act of 1933, as amended) of the corporation (whether or
not they were affiliates when services were so performed) ("Independent
Counsel"). Unless such person has theretofore selected Independent Counsel and
such Independent Counsel has been approved by the corporation, legal counsel
approved by a resolution or resolutions of the board of directors of the
corporation prior to a change of control of the corporation shall be deemed to
have been approved by the corporation as required. Such Independent Counsel
shall determine as promptly as practicable whether and to what extent such
person would be permitted to be indemnified under this Article VII and
applicable law and shall render its written opinion to the corporation and such
person to such effect. In making a determination under Section 6 of this Article
VII, the special legal counsel and Independent Counsel referred to above shall
determine that indemnification is permissible unless clearly precluded by this
Article VII or the applicable provisions of the MBCA. The corporation agrees to
pay the reasonable fees of the Independent Counsel referred to above and to
fully indemnify such Independent Counsel against any and all expenses, claims,
liabilities and damages arising out of or relating to this Article VII or its
engagement pursuant hereto.
(b) For the purpose of this Article VII, references to "change of control
of the corporation," shall mean (i) an acquisition by any person of forty-five
percent (45%) or more of the corporation's voting shares; (ii) a merger in which
the shareholders of the corporation before the merger own fifty 50 percent (50%)
or less of the corporation's voting shares after the merger; (iii) shareholder
approval of a plan of liquidation or to sell or dispose of all or substantially
all of the assets of the corporation; and (iv) if, during any period of two
consecutive years, individuals who at the beginning of such period constitute
the board of directors together with any new director (other than a director
designated by a person who has entered into an agreement with the corporation to
effect a transaction described in clause (i), (ii) or (iii) of this paragraph)
whose election by the board or nomination for election by the corporation's
shareholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority of the board of directors.
Notwithstanding the foregoing, a change of control shall not be deemed to occur
solely because forty-five percent (45%) or more of the then outstanding voting
securities of the corporation are acquired by (i) a trustee or other fiduciary
holding securities under one or more employee benefit plans maintained by the
corporation or any of its subsidiaries or (ii) any corporation which,
immediately prior to such acquisition, is owned directly or indirectly by the
shareholders of the corporation in the same proportion as their ownership of
shares in the corporation immediately prior to such acquisition, nor shall a
change of control be deemed to occur solely because of the transactions
contemplated by the Agreement and Plan of Merger and Reorganization dated as of
<PAGE>
August 27, 1996, by and among Mississippi Chemical Corporation, MISS SUB, Inc.,
and First Mississippi Corporation.
SECTION 12. Limitations on Indemnification. Notwithstanding anything
contained in this Article VII to the contrary, except for proceedings to enforce
rights to indemnification (which shall be governed by Section 5 of this Article
VII), the corporation shall not be obligated to indemnify any director, officer,
employee or designated agent in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was authorized
or consented to by the board of directors of the corporation. In addition,
there shall be no indemnification under this Article VII for any claims made by
directors, officers, employees or agents of the corporation related to or
arising out of any acts or omissions of those persons or other events occurring
on or before October 30, 1996.
SECTION 13. Severability. If this Article VII or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
corporation shall nevertheless indemnify each director, officer, employee or
designated agent of the corporation as to liabilities incurred in connection
with any proceeding, including an action by or in the right of the corporation,
to the full extent permitted by any applicable portion of this Article VII that
shall not have been invalidated and to the full extent permitted by applicable
law.
ARTICLE VIII. NOTICE
SECTION 1. Generally. Notice shall be in writing unless oral notice is
reasonable under the circumstances. Notice may be communicated in person, by
telephone, telegraph, teletype or other form of wire or wireless communication,
or by mail or private carrier. If these forms of personal notice shall be
impracticable, notice may be communicated by a newspaper of general circulation
in the area where published, or by radio, television or other form of public
broadcast communication.
SECTION 2. Written Notice. (a) Written notice to shareholders, if in a
comprehensible form, shall be effective when mailed, if mailed postpaid and
correctly addressed to the shareholder's address as shown in the corporation's
current record of shareholders.
(b) Except as provided above with respect to notice to shareholders,
written notice, if in a comprehensible form, shall be effective at the earliest
of the following:
(1) When received;
(2) Five days after its deposit in the United States mail, as
evidenced by the postmark, if mailed postpaid and correctly addressed;
(3) On the date shown on the return receipt, if sent by registered or
certified mail, return receipt requested, and the receipt is signed by or on
behalf of the addressee.
<PAGE>
SECTION 3. Oral Notice. Oral notice shall be effective when communicated
if communicated in a comprehensible manner.
SECTION 4. Applicable Law. If applicable law prescribes notice
requirements for particular circumstances, those requirements govern. If the
articles of incorporation or other provisions of these bylaws prescribe notice
requirements, not inconsistent with this section or other provisions of
applicable law, those requirements govern.
ARTICLE IX. WAIVER OF NOTICE; ASSENT TO ACTIONS
SECTION 1. Generally. Unless otherwise provided by law, a shareholder or
director of the corporation may waive any notice required by applicable law, the
articles of incorporation or these bylaws, before or after the date and time
stated in the notice. Except as provided below, the waiver must be in writing,
signed by the shareholder or director entitled to the notice, and delivered to
the corporation for inclusion in the minutes or filing with the corporate
records.
SECTION 2. Attendance as Waiver. (a) A director's attendance at or
participation in a meeting waives any required notice to him of the meeting
unless the director at the beginning of the meeting (or promptly upon his
arrival) objects to holding the meeting or transacting business at the meeting
and does not thereafter vote for or assent to action taken at the meeting. A
shareholder's attendance at a meeting (i) waives objection to lack of notice or
defective notice of the meeting unless the shareholder at the beginning of the
meeting objects to holding the meeting or transacting business at the meeting,
and (ii) waives objection to consideration of a particular matter at the meeting
that is not within the purpose or purposes described in the meeting notice,
unless the shareholder objects to considering the matter when it is presented.
(b) A director who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken shall be
deemed to have assented to the action taken unless: (1) he objects at the
beginning of the meeting (or promptly upon his arrival) to holding it or
transacting business at the meeting; (2) his dissent or abstention from the
action taken shall be entered in the minutes of the meeting; or (3) he delivers
written notice of his dissent or abstention to the presiding officer of the
meeting before its adjournment or to the corporation immediately after
adjournment of the meeting. The right of dissent or abstention shall not be
available to a director who votes in favor of the action taken.
ARTICLE X. FISCAL YEAR
Commencing January 1, 1997, the fiscal year of the corporation shall begin
on January 1 and end on December 31 in each year.
ARTICLE XI. DISTRIBUTIONS
The board of directors may authorize and the corporation may make
distributions to its shareholders, subject to restriction by the articles of
incorporation and applicable law.
<PAGE>
ARTICLE XII. CORPORATE SEAL
The board of directors shall provide a corporate seal which shall be
circular in form and shall have inscribed thereon the name of the corporation
and the state of incorporation and the words "Corporate Seal."
ARTICLE XIII. AMENDMENTS
Unless applicable law reserves this power exclusively to the shareholders
in whole or part, the corporation's board of directors may amend or repeal these
bylaws and adopt new bylaws at any regular or special meeting of the board of
directors.
ADOPTED this thirtieth day of October, 1996, and amended on the twenty-
fourth day of November, 1998.
BY: /s/ James L. McArthur
---------------------------
TITLE: Corporate Secretary
------------------------
<PAGE>
Exhibit 4.5
FIRST AMENDMENT TO RIGHTS AGREEMENT
This Agreement (the "Amendment"), dated effective May 1, 1997, is entered
into by and among ChemFirst Inc., a Mississippi corporation (the "Company"),
KeyCorp Shareholder Services, Inc., an Ohio corporation (the "Initial Rights
Agent") and Bank of New York (the "Successor Rights Agent"), a New York trust
company.
WHEREAS, the Company and the Initial Rights Agent have entered into a
Rights Agreement, dated as of October 30, 1996 (the "Agreement"); and
WHEREAS, the Company wishes to appoint the Successor Rights Agent as
successor rights agent to the Initial Rights Agent pursuant to Section 21 of the
Agreement; and
WHEREAS, Section 27 of the Agreement provides, among other things, that
prior to the Distribution Date (as such term is defined in the Agreement), the
Company may, and the Initial Rights Agent shall, if the Company so directs,
supplement or amend any provision of the Agreement without the approval of any
holders of certificates representing shares of Common Stock.
NOW, THEREFORE, the Company, the Initial Rights Agent and the Successor
Rights Agent agree as follows:
1. The Initial Rights Agent is removed as Rights Agent and the Successor
Rights Agent is appointed as Successor Rights Agent effective May 1, 1997.
2. The cover page of the Agreement is hereby amended by deleting the words
"KeyCorp Shareholders Services, Inc." and replacing such words with "Bank of New
York."
3. The first page of the Agreement is hereby amended by replacing "dated as of
October 30, 1996 (the "Agreement"), between ChemFirst Inc., a Mississippi
corporation (the
<PAGE>
"Company"), and KeyCorp Shareholder Services, Inc., an Ohio corporation (the
"Rights Agent") with "dated as of October 30, 1996 (the "Agreement"), between
ChemFirst Inc., a Mississippi corporation (the "Company"), and Bank of New York
(the "Rights Agent"), successor to KeyCorp Shareholder Services, Inc., a New
York trust company."
4. Section 1(e) of the Agreement is hereby amended by replacing the words "New
York or Ohio" with the word "New York."
5. Section 3(c) of the Agreement is hereby amended by inserting the following
language before the beginning of the last sentence: Any certificates
representing shares of Common Stock bearing the foregoing legend shall be deemed
to refer to Bank of New York as the Rights Agent. On and after May 1, 1997,
certificates representing shares of Common Stock required to bear the foregoing
legend may, in the alternative, bear the foregoing legend as modified by
replacing "KeyCorp Shareholder Services, Inc." with "Bank of New York."
6. Section 26 of the Agreement is hereby amended by replacing:
KeyCorp Shareholder Services, Inc.
127 Public Square, 15th Floor
Cleveland, OH 44114-1306
Attn: Shareholder Services
with:
Bank of New York
101 Barclay St., Floor 12W
New York, NY 10286
Attn: Stock Transfer Administration
7. Exhibit A to the Agreement is hereby amended by replacing "dated as of
October 30, 1996 (the "Rights Agreement"), between ChemFirst Inc., a Mississippi
corporation (the
<PAGE>
"Company"), and KeyCorp Shareholder Services, Inc., an Ohio corporation (the
"Rights Agent")" with "dated as of October 30, 1996, as amended from time to
time (the "Rights Agreement"), between ChemFirst Inc., a Mississippi corporation
(the "Company"), and Bank of New York (the "Rights Agent"), successor to KeyCorp
Shareholder Services, Inc., an Ohio corporation."
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
ATTEST: CHEMFIRST INC.
By: /s/ James L. McArthur By: /s/ R.M. Summerford
---------------------------- -----------------------------
Name: James L. McArthur Name: R. M. Summerford
Title: Secretary & Manager, Title: Vice President & Chief
Investor Relations Financial Officer
ATTEST: KEYCORP SHAREHOLDER SERVICES, INC.
By: /s/ Greg Edgehouse By: /s/ William Cloonan
---------------------------- -----------------------------
Name: Greg Edgehouse Name: William Cloonan
Title: V.P. & Assoc. Counsel Title: Assistant Secretary
ATTEST: BANK OF NEW YORK
By: /s/ Robert Rinaudo By: /s/ Jeffrey Grosse
---------------------------- -----------------------------
Name: Robert Rinaudo Name: Jeffrey Grosse
Title: Assistant Treasurer Title: Vice President
<PAGE>
Exhibit 5.1 and 23.1
December 29, 1998
Board of Directors
ChemFirst Inc.
700 North Street
Jackson, Mississippi 39202-3095
RE: Opinion Letter
Gentlemen:
I currently serve as General Counsel for ChemFirst Inc. (hereinafter called the
"Company"), a Mississippi corporation. In connection with the preparation of
the Company's Form S-8 Registration Statement (the "Registration Statement")
covering 950,000 shares of its Common Stock ($1.00 par value) and 950,000
phantom share units valued relative to the Company's Common Stock (the "Share
Units") which may be offered under the ChemFirst Inc. 1998 Long-Term Incentive
Plan (the "Plan"), I have examined and am familiar with the Company's Amended
and Restated Articles of Incorporation, its By-Laws, the Plan, the Registration
Statement, applicable resolutions passed by the Company's Board of Directors,
and with such other documents and questions of law as I have deemed necessary or
appropriate for the purposes of this opinion.
I am of the opinion, based upon such examination that the 950,000 shares of its
Common Stock ($1.00 par value) and the 950,000 Share Units covered by the said
Registration Statement have been duly authorized by all necessary corporate
action and, when issued, in accordance with the terms and conditions of the Plan
and the instruments governing their issuance, the shares of Common Stock will be
legally and validly issued, fully paid and non-assessable and the Share Units
will be legally and validly issued and represent the binding obligation of the
Company to make payment to the holders thereof in accordance with the terms and
conditions of the Plan.
This opinion is limited solely to the laws of the State of Mississippi and the
laws of the United States, and I express no opinion herein concerning the laws
of any other jurisdiction.
<PAGE>
Board of Directors
December 29, 1998
Page 2
I hereby consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to me and to my opinion in the Registration
Statement.
Sincerely yours,
CHEMFIRST INC.
/s/ J. Steve Chustz
- --------------------
J. Steve Chustz
General Counsel
JSC:jb
<PAGE>
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
ChemFirst Inc.:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Interests of Named Experts and Counsel"
in the registration statement.
/s/ KPMG Peat Marwick LLP
- ------------------------------
KPMG Peat Marwick LLP
Jackson, Mississippi
December 29, 1998
