SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Friede Goldman International Inc.
(Exact name of registrant as specified in its charter)
Mississippi 72-1362492
(State of incorporation or organization) (I.R.S. Employer Identification No.)
525 Capitol Street
Suite 402
Jackson, Mississippi 39201
(Address of principal executive office) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Common Stock, $0.01 par value New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
<PAGE>
Item 1. Description of Registrant's Securities to be Registered
General
The authorized capital stock of Friede Goldman International Inc. (the
"Company") consists of 125,000,000 shares of Common Stock, par value $.01 per
share ("Common Stock"), and 5,000,000 shares of Preferred Stock, par value $.01
per share ("Preferred Stock"). As of November 10, 1998, there were 24,533,839
shares of Common Stock outstanding and no shares of Preferred Stock outstanding.
Ten percent of such outstanding shares of Common Stock are reserved for issuance
pursuant to the Company's Amended and Restated 1997 Equity Incentive Plan. The
following summary of the terms and provisions of the Company's capital stock
does not purport to be complete and is qualified in its entirety by reference to
the Company's Articles of Incorporation, as amended (the "Charter"), and Bylaws,
[which are filed as exhibits to this Registration Statement], and applicable
law.
Common Stock
VOTING RIGHTS. Each share of Common Stock entitles the holder to one
vote on each matter submitted to a vote of the Company's Shareholders. The
Charter prohibits the taking of any action by written shareholder consent in
lieu of a meeting.
DIVIDENDS. The holders of Common Stock are entitled to receive
dividends if, as and when such dividends are declared by the Board of Directors
of the Company out of assets legally available therefor after payment of
dividends required to be paid on shares of Preferred Stock, if any.
LIQUIDATION OR DISSOLUTION. Upon liquidation or dissolution, holders of
Common Stock are entitled to share ratably in all net assets available for
distribution to Shareholders after payment of any liquidation preferences to
holders of Preferred Stock.
OTHER PROVISIONS. The Common Stock carries no conversion or preemptive
rights.
TRANSFER AGENT AND REGISTRAR. The Transfer Agent and Registrar for
the Common Stock is American Stock Transfer & Trust Company.
LISTING. The Common Stock is currently listed on the Nasdaq National
Market System (the "NNMS") under the trading symbol "FGII." The Common Stock has
been approved for listing on the New York Stock Exchange ("NYSE") subject to
official notice of issuance, under the trading symbol "FGI." The Company
anticipates that trading on the NYSE will begin December 1, 1998. Upon
commencement of trading on the NYSE the Common Stock will cease to be listed on
the NNMS.
Preferred Stock
The Board of Directors of the Company is authorized, without approval
of the shareholders, to cause shares of Preferred Stock to be issued in one or
more series, to determine the number of shares of each series, to fix the
rights, powers, preferences and privileges of each series and any
qualifications, limitations or restrictions thereon and to increase or decrease
the number of shares of each such series. Among the specific matters that any
may be determined by the board of directors are: the annual rate of dividends;
the redemption price, if any; the terms of a sinking or purchase fund, if any;
the amount payable in the event of any voluntary liquidation, dissolution or
winding up of the affairs of the Company; conversion rights, if any; and voting
powers, if any. Depending upon the terms of the Preferred Stock established by
the Board of Directors, any or all series of Preferred Stock could have
preferences over the Common Stock with respect to dividends and other
distributions and upon liquidation of the Company or could have voting or
conversion rights that could adversely affect the holders of the outstanding
Common Stock. The Company has no current plans to issue any shares of Preferred
Stock of any class or series.
1
<PAGE>
One of the effects of undesignated Preferred Stock may be enable the
Board of Directors to render more difficult or to discourage an attempt to
obtain control of the Company by means of a tender offer, proxy contest, merger
or otherwise, and thereby to protect the continuity of the Company's management.
The issuance of shares of Preferred Stock pursuant to the Board of Directors'
authority described above may adversely affect the rights of the holders of
Common Stock. If, in the exercise of its fiduciary obligations, the Board of
Directors were to determine that a takeover proposal was not in the Company's
best interest, such shares could be issued by the Board of Directors without
stockholder approval in one or more transactions that might prevent or make more
difficult or costly the completion of the takeover transaction by diluting the
voting or other rights of the proposed acquiror or insurgent stockholder group,
by creating a substantial voting block in institutional or other hands that
might undertake to support the position of the incumbent Board of Directors, by
effecting an acquisition that might complicate or preclude the takeover, or
otherwise. In this regard, the Company's Charter grants the Board of Directors
broad power to establish the rights and preferences of the authorized and
unissued Preferred Stock, one or more series of which could be issued that would
entitle holders (i) to vote separately as a class on any proposed merger or
consolidation, (ii) to cast a proportionately larger vote together with the
Common Stock on any such transaction or for all purposes, (iii) to elect
directors having terms of office or voting rights greater than those of other
directors, (iv) to convert Preferred Stock into a greater number of shares of
Common Stock or other securities, (v) to demand redemption at a specified price
under prescribed circumstances related to a change of control or (vi) to
exercise other rights designated to impede a takeover. Accordingly, the issuance
of shares of Preferred Stock may discourage bids for the Common Stock at a
premium or otherwise adversely affect the rights of holders of, or the market
price of, the Common Stock.
Certain Provisions of the Company's Charter and Bylaws and Mississippi Law
Certain provisions of the Charter and Bylaws are intended to enhance
the likelihood of continuity and stability in the Board of Directors of the
Company and in its policies, but might have the effect of delaying or preventing
a change in control of the Company and may make more difficult the removal of
incumbent management even if such transactions could be beneficial to the
interests of Shareholders. Set forth below is a summary description of such
provisions:
NUMBER OF DIRECTORS; FILLING VACANCIES; REMOVAL. The Charter provides
that the number of directors constituting the Company's Board of Directors shall
be fixed by the Board of Directors, but shall not be less than three nor more
than 15. Subject to the limitations of Mississippi Code Amended Section
79-4-8.03, the Board of Directors of the Company, acting by a majority of the
directors then in office, may fill any vacancy or newly created directorship.
The Bylaws provide that any director or the entire Board may be removed at any
time for cause by a vote of the holders of not less than a majority of the
shares of the Company entitled to vote in the election of directors.
ADVANCE NOTICE OF INTENTION TO NOMINATE A DIRECTOR. The Charter and
Bylaws permit a shareholder to nominate a person for election as a director only
if written notice of such shareholder's intent to make a nomination has been
given to the Secretary of the Company not less than 60 days or more than 90 days
prior to the anniversary of the annual meeting for the prior year (subject to
certain adjustments if the annual meeting date is changed by more than 30 days
from the date of the prior annual meeting) or, in the case of a special meeting
at which directors are to be elected, and not less than 40 days notice of prior
public disclosure of the date of the meeting is given, in which case notice by
the shareholder must be received on the 10th day after notice of the meeting or
prior public disclosure of the date of the meeting was mailed. This provision
also requires that the shareholder's notice set forth, among other things, a
description of all arrangements or understandings between the nominee and the
stockholder pursuant to which the nomination is to be made or the nominee is to
be elected and such other information regarding the nominee as would be required
to be included in a proxy statement filed pursuant to the proxy rules
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), had the nominee been nominated by the Board of Directors of the Company.
Any nomination that fails to comply with these requirements may be disqualified.
2
<PAGE>
STOCKHOLDERS' RIGHT TO CALL SPECIAL MEETING. The Bylaws provide
that a special Shareholders' meeting may not be called by shareholders.
ADOPTION AND AMENDMENT OF BYLAWS. The Bylaws provide that they may be
amended or repealed by either a majority vote of the Board of Directors or the
holders of at least 80% of the total voting power of all shares of stock of the
Company entitled to vote in the election of directors voting as one class. Any
provisions amended or repealed by the Shareholders may be re-amended or
re-adopted by the Board of Directors.
AMENDMENT OF CERTAIN PROVISIONS OF THE ARTICLES; OTHER CORPORATE
ACTION. Under Mississippi law, unless a corporation's articles or incorporation
specify otherwise, a corporation's articles of incorporation may be amended by
the affirmative vote of the holders of a majority of the voting power of each
class of stock entitled to vote thereon. The Charter requires the affirmative
vote of not less than 80% of the total voting power of the Company to amend,
alter or repeal certain provisions of the Company's Charter with respect to (i)
the classification, filling of vacancies and removal of the Board of Directors,
(ii) amendments to the Bylaws, (iii)issuance of "rights", and (iv)limitation
of liability of directors.
ANTI-TAKEOVER PROVISIONS. Mississippi law permits a corporation's board
of directors to adopt certain anti-takeover measures in response to proposals to
acquire the corporation, its assets or its outstanding capital stock. Measures
to be adopted could include a shareholder rights plan or Bylaw provisions
requiring supermajority shareholder approval of acquisition proposals.
LIMITATION ON PERSONAL LIABILITY OF DIRECTORS. Subject to certain
conditions and limitations, Mississippi law authorizes corporations to indemnify
directors made a party to a proceeding because of his status as director against
liability incurred in the proceeding. Directors may be indemnified only if (i)
he conducted himself in good faith, (ii) he reasonably believed, in the case of
conduct in his official capacity, that his conduct was in the best interests of
the corporation, and in all other cases, that his conduct was at least not
opposed to its best interests and (iii) in the case of any criminal proceeding,
he had no reasonable cause to believe his conduct was unlawful. Mississippi law
enables corporations to limit available relief in proceedings by or in the right
of the corporation to reasonable expenses incurred in the proceeding. The
Charter limits the liability of directors of the Company to the Company or its
shareholders (in their capacity as directors but not in their capacity as
officers) to the fullest extent permitted by Mississippi law. Specifically,
directors of the Company will not be personally liable for monetary damages for
breach of a director's fiduciary duty as a director, except for liability in
connection with (i) for any breach of the director's duty of loyalty to the
Company or its shareholders, (ii) for acts of omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 79-4-8.33 of the Mississippi Code of 1972, as amended, or (iv) for any
transaction from which the director derived an improper personal benefit.
The inclusion of this provision in the Charter may have the effect of
reducing the likelihood of derivative litigation against directors and may
discourage or deter shareholders or management from bringing a lawsuit against
directors for breach of their duty of care, even though such an action, if
successful, might otherwise have benefited the Company and its shareholders. The
Company's Bylaws provide indemnification to the Company's officers and directors
and certain other persons with respect to certain matters.
INDEMNIFICATION ARRANGEMENTS. The Bylaws provide that, to the fullest
extent permitted by the Mississippi Business Corporation Act (the "MBCA"), the
directors and officers of the Company shall be indemnified and shall be advanced
expenses in connection with actual or threatened proceedings and claims arising
out of their status as such. The Company has entered into indemnification
agreements with each of its directors and executive officers that provide for
indemnification and expense advancement to the fullest extent permitted under
the MBCA.
3
<PAGE>
Statutory Business Combination Provisions
The Mississippi Shareholder Protection Act (the "Protection Act")
requires that a business combination with an interested shareholder be approved
by the affirmative vote of at least (a) 80% of the votes entitled to be cast by
outstanding shares of voting stock of the corporation and (b) two-thirds (2/3)
of the votes entitled to be cast by holders of voting stock not held by an
interested shareholder who is a party to the business combination. The
provisions of the Protection Act do not apply if the business combination is
approved by at least 80% of the Company's directors or if the aggregate amount
of any offer meets certain fair price criteria.
"Business combination" is defined in the Protection Act generally as
(i) any merger, consolidation, share exchange or similar transaction with any
interested shareholder or other corporation which is an affiliate of an
interested shareholder; (ii) any sale, lease, transfer or other disposition in a
transaction with any interested shareholder of assets having an aggregate marker
value of 20% or more of the total market value of the outstanding stock of the
corporation or of its assets; (iii) the issuance or transfer by the corporation,
or any subsidiary, of any securities of the corporation or any subsidiary which
have an aggregate market value of 5% or more of the total market value of the
outstanding stock of the corporation to any interested shareholder or any
affiliate of any interested shareholder; (iv) the adoption of any plan or
proposal for the liquidation, dissolution of or similar transaction involving
the corporation in which anything other than cash will be received by an
interested shareholder; or (v) any reclassification or recapitalization of
securities or any merger, consolidation or share exchange of the corporation
with any of its subsidiaries which increase by 5% or more the proportionate
share of the total number of outstanding shares or class of equity securities
held by any interested shareholder or affiliate thereof.
"Interested shareholder" is defined in the Protection Act generally as
any person or associated group of persons acting in concert (other than the
corporation and/or subsidiaries) that (i) is the beneficial owner of 20% or more
of the voting power of the outstanding voting stock of the corporation, or (ii)
is an affiliate of the corporation and at any time within the two-year period
immediately prior to the date in question was the beneficial owner of 20% or
more of the voting power of the then outstanding voting stock of the
corporation.
The Mississippi Control Share Act (the "Control Act"), subject to
certain exceptions, eliminates the voting power of "Control Shares" held by a
shareholder who has acquired 20% or more of the outstanding shares of a company
unless the other shareholders pass a resolution restoring the share's voting
power. "Control Shares" are defined as issued and outstanding shares over which
an acquiring person may exercise direct or indirect voting power, and which
would, in the absence of the Control Act, represent 20% or more of the voting
power of the capital stock. The Control Act would not apply to shares of a
company acquired before such company become subject thereto.
Registration Rights
Pursuant to the terms of a Registration Rights Agreement among the
Company and certain of its shareholders (the "Registration Agreement"), the
Company has provided such shareholders with certain registration rights,
including three demand registration rights and certain "piggy-back" registration
rights, with respect to Common Stock owned by such shareholders. The Company's
obligation is to subject to certain limitations relating to a minimum amount of
Common Stock required for registration, the timing of registration and other
similar matters. For example, the Company will not be obligated to register the
Common Stock when, in the good faith judgment of its Board of Directors, such
registration would materially adversely affect a pending or proposed public
offering of the Company's securities, provided that such delay may not extend
for more than 180 days. The Company will indemnify such shareholders for certain
liabilities in connection with any such offering, other than liabilities
resulting or arising from untrue statements or omissions made in conformity with
information furnished to the Company in writing by any such stockholder. The
Company is obligated to pay all expenses incidental to any such registration,
excluding underwriters' discounts and commissions and certain legal fees and
expenses of such shareholders.
4
<PAGE>
Item 2. Exhibits
The following exhibits to this Registration Statement on Form 8-A are
either filed herewith or are incorporated by reference from the documents
specified, which have been filed with the Securities and Exchange Commission.
* 1. Articles of Incorporation of the Registrant, filed with
the Secretary of State of the State of Mississippi
on September 22, 1998.
* 2. Bylaws of the Registrant.
* 3. Specimen Certificate evidencing shares of Common Stock of
the Registrant.
--------------
* filed herewith
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereunto duly authorized.
Dated: November 18, 1998
FRIEDE GOLDMAN INTERNATIONAL INC.
/s/ James A. Lowe, III
-----------------------------
James A. Lowe, III
General Counsel and Secretary
5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Exhibit 1
Exhibit 2
Exhibit 3
</TABLE>
<PAGE>
EXHIBIT 1
ARTICLES OF INCORPORATION
OF
FRIEDE GOLDMAN MISSISSIPPI, INC.
The undersigned, pursuant to Section 79-4-2.02 of the Mississippi Code
of 1972, hereby executes the following document and sets forth:
FIRST: The name of the corporation is:
Friede Goldman Mississippi, Inc.
SECOND: The address of the corporation's registered office in the State
of Mississippi is 525 East Capitol Street, Suite 402, Jackson, Mississippi
39201. The name of the registered agent of the corporation at such address is
James A. Lowe, III.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the laws of Mississippi.
FOURTH: The total number of shares of all classes of capital stock
which the Corporation shall have authority to issue is 130,000,000, of which
5,000,000 shares shall be Preferred Stock, par value $0.01 per share, and
125,000,000 shares shall be Common Stock, par value $0.01 per share.
A. PREFERRED STOCK. (1) Preferred Stock may be issued from time to time
in one or more series and in such amounts as may be determined by the
Board of Directors. The voting powers, designations, preferences and
relative, participating, optional or other special rights, if any, and
the qualifications, limitations or restrictions thereof, if any, of the
Preferred Stock of each series shall be such as are fixed by the Board
of Directors, authority so to do being hereby expressly granted, and as
are stated and expressed in a resolution or resolutions adopted by the
Board of Directors providing for the issue of such series of Preferred
Stock (herein called the "Directors' Resolution"). The Directors'
Resolution as to any series shall (a) establish the number of shares
constituting, and the distinctive designation of, that series, (b) fix
the dividend rate, if any, of the shares of such series, the payment
dates for dividends on shares of such series and the date or dates, or
the method of determining the date or dates, if any, from which
dividends on shares of such series shall be cumulative, (c) fix the
amount or amounts payable on shares of such series upon voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, (d) state the price or prices or rate or rates, and
adjustments, if any, at which, the time or times and the terms and
conditions upon which, the shares of such series may be redeemed at the
option of the Corporation or at the option of the holder or holders of
shares of such series or upon the occurrence of a specified event, and
state whether such shares may be redeemed for cash, property or rights,
including securities of the Corporation or another entity; and such
Directors= Resolution may (i) limit the number of shares of such series
that may be issued, (ii) provide for a sinking fund for the purchase or
redemption of shares of such series and specify the terms and conditions
governing the operations of any such fund, (iii) grant voting rights to
the holders of shares of such series, provided that each share shall not
have more than one vote per share, (iv) impose conditions or
restrictions upon the creation of indebtedness of the Corporation or
upon the issuance of additional Preferred Stock or other capital stock
ranking on a parity therewith, or prior thereto, with respect to
dividends or distribution of assets upon liquidation, (v) impose
conditions or restrictions upon the payment of dividends upon, or the
making of other distributions to, or the acquisition of, shares ranking
junior to the Preferred Stock or to any series thereof with respect to
dividends or distributions of assets upon liquidation, (vi) state the
time or times, the price or prices or the rate or rates of exchange and
other terms, conditions and adjustments upon which shares of any such
1
<PAGE>
series may be made convertible into, or exchangeable for, at the option
of the holder or the Corporation or upon the occurrence of a specified
event, shares of any other class or classes or of any other series of
Preferred Stock or any other class or classes of stock or other
securities of the Corporation, and (vii) grant such other special rights
and impose such qualifications, limitations or restrictions thereon as
shall be fixed by the Board of Directors, to the extent not inconsistent
with this Article FOURTH and to the full extent now or hereafter
permitted by the laws of the State of Mississippi.
(2) Except as by law expressly provided, or except as may be provided in
any Directors' Resolution, the Preferred Stock shall have no right or
power to vote on any question or in any proceeding or to be represented
at, or to receive notice of, any meeting of shareholders of the
Corporation.
(3) Preferred Stock that is redeemed, purchased or retired by the
Corporation shall assume the status of authorized but unissued Preferred
Stock and may thereafter, subject to the provisions of any Directors'
Resolution providing for the issue of any particular series of Preferred
Stock, be reissued in the same manner as authorized but unissued
Preferred Stock.
B. COMMON STOCK. All shares of the Common Stock of the Corporation shall
be identical and except as otherwise required by law or as otherwise
provided in the Directors' Resolution or Resolutions, if any, adopted by
the Board of Directors with respect to any series of Preferred Stock,
the holders of the Common Stock shall exclusively possess all voting
power, and each share of Common Stock shall have one vote.
FIFTH: The business and affairs of the Corporation shall be managed and
controlled by its Board of Directors. The number of directors constituting the
Board of Directors shall be fixed by the Board of Directors, but shall not be
less than three or more than 15. The Board of Directors may increase or decrease
the exact number of directors from time to time subject to Miss. Code Ann.
Section 79-4-8.03(b) which limits any change to 30% of the number of directors
last approved by the Shareholders.
At the expiration of the initial term of the directors, and of each
succeeding term, the directors shall be elected to serve until the next annual
meeting of shareholders [except in the event classes are implemented as provided
below] and until their successors are elected and qualified or until their
earlier death, resignation, removal or retirement. Any director elected or
appointed to fill a vacancy shall hold office for the remaining term of the
position to which he was appointed. No decrease in the number of directors
constituting the Corporation's Board of Directors shall shorten the term of any
incumbent director. Any vacancy in the Board of Directors, whether arising
through death, resignation or removal of a director, or through an increase in
the number of directors , shall be filled by the majority vote of the remaining
directors.
A director of the Corporation may be removed only for cause and only
upon the affirmative vote of the holders of a majority of the outstanding
capital stock of the Corporation entitled to vote at an election of directors,
subject to further restrictions on removal, not inconsistent with this Article
FIFTH, as may be contained in the Bylaws.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at an annual or
special meeting of shareholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of these Articles of Incorporation applicable thereto.
At any time the number of directors is composed of nine or more
members, the Board of Directors may, upon majority vote, create classes of
directors, to take effect at the next annual meeting of the shareholders. The
directors shall be divided into three classes as nearly equal in number as
2
<PAGE>
possible, designated Class I, Class II and Class III. The initial term for the
directors in Class I shall expire at the annual meeting of the shareholders
following the first election by classes; the initial term of the directors in
Class II shall expire at the second annual meeting of the shareholders following
the first election by classes; and the initial term of the directors in Class
III shall expire at the third annual meeting of the shareholders following the
first election by classes. Thereafter, the term of office for each class shall
be three years. Any increase or decrease in the number of directors constituting
the Board shall be apportioned among the classes so as to maintain the number of
directors in each class as nearly as possible to one-third the whole number of
directors as so adjusted. The Bylaws may contain any provision regarding
classification of the Corporation=s directors not inconsistent with the terms
hereof.
SIXTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and shareholders:
A. The Board of Directors is authorized to alter, amend or repeal the
Bylaws or adopt new Bylaws of the Corporation. The shareholders shall
not repeal or change the Bylaws of the Corporation unless such repeal
or change is approved by the affirmative vote of the holders of not
less than 80% of the total voting power of all shares of stock of the
Corporation entitled to vote in the election of directors, considered
for the purposes of this paragraph A as a single class.
B. Election of directors need not be by written ballot unless the
Bylaws so provide.
C. In addition to the powers herein or by statute expressly conferred
upon the Corporation's directors, the Corporation's directors are
hereby empowered to exercise all such powers and do all such acts and
things as may be exercised or done by the Corporation, subject,
nevertheless, to the provisions of the statutes of Mississippi, these
Articles of Incorporation, and any Bylaws adopted by the shareholders;
provided, however, that no Bylaws hereafter adopted shall invalidate
any prior act of the directors which would have been valid if such
Bylaws had not been adopted.
D. No action shall be taken by the shareholders except at an annual or
special meeting with prior notice and a vote. No action shall be taken
by the shareholders by written consent.
SEVENTH: The books of the Corporation may be kept (subject to any
provision contained in the statutes) outside the State of Mississippi at such
place or places as may be designated from time to time by the Board of Directors
or in the Bylaws of the Corporation.
EIGHTH: The Board of Directors is hereby authorized to create and
issue, whether or not in connection with the issuance and sale of any of its
stock or other securities, rights (the "Rights") entitling the holders thereof
to purchase from the Corporation shares of capital stock or other securities.
The times at which and the terms upon which the Rights are to be issued will be
determined by the Board of Directors and set forth in the contracts or
instruments that evidence the Rights. The authority of the Board of Directors
with respect to the Rights shall include, but not be limited to, determination
of the following:
(a) The initial purchase price per share of the capital stock or other
securities of the Corporation to be purchased upon exercise of the
Rights.
(b) Provisions relating to the times at which and the circumstances
under which the Rights may be exercised or sold or otherwise
transferred, either together with or separately from, any other
securities of the Corporation.
3
<PAGE>
(c) Provisions that adjust the number or exercise price of the Rights
or amount or nature of the securities or other property receivable upon
exercise of the Rights in the event of a combination, split or
recapitalization of any capital stock of the Corporation, a change in
ownership of the Corporation's securities or a reorganization, merger,
consolidation, sale of assets or other occurrence relating to the
Corporation or any capital stock of the Corporation, and provisions
restricting the ability of the Corporation to enter into any such
transaction absent an assumption by the other party or parties thereto
of the obligations of the Corporation under such Rights.
(d) Provisions that deny the holder of a specified percentage of the
outstanding securities of the Corporation the right to exercise the
Rights and/or cause the Rights held by such holder to become void.
(e) Provisions that permit the Corporation to redeem the Rights.
(f) The appointment of one or more agents to take specified actions on
behalf of the Corporation with respect to the Rights.
NINTH: No director of the Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for breach of fiduciary
duty by such director as a director; provided, however, that this Article NINTH
shall not eliminate or limit the liability of a director to the extent provided
by applicable law (i) for any breach of the director's duty of loyalty to the
Corporation or its shareholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 79-4-8.33 of the Mississippi Code of 1972, as amended, or (iv) for any
transaction from which the director derived an improper personal benefit. No
amendment to or repeal of this Article NINTH shall apply to, or have any effect
on, the liability or alleged liability of any director of the Corporation for or
with respect to any acts or omissions of such director occurring prior to such
amendment or repeal. If the laws of the State of Mississippi are amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the laws of
the State of Mississippi, as so amended.
TENTH: The provisions set forth in this Article TENTH and Articles
FIFTH, SIXTH, EIGHTH and NINTH hereof may not be amended, altered, changed,
repealed or rescinded in any respect unless such action is approved by the
affirmative vote of the holders of not less than 80 percent of the total voting
power of all shares of stock of the Corporation entitled to vote in the election
of directors, considered for purposes of this Article TENTH as a single class.
The voting requirements contained in this Article TENTH and in Article SIXTH
hereof shall be in addition to voting requirements imposed by law, other
provisions of these Articles of Incorporation or any designation of preferences
in favor of certain classes or series of shares of capital stock of the
Corporation.
ELEVENTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its shareholders or any class of them, any court of equitable
jurisdiction within the State of Mississippi may, on the application in a
summary way of this Corporation or of any creditor or shareholder thereof or on
the application of any receiver or receivers appointed for this Corporation or
on the application of trustees in dissolution or of any receiver or receivers
appointed for this Corporation order a meeting of the creditors or class of
creditors, and/or of the shareholders or class of shareholders of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the shareholders or class of
shareholders of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as a consequence of
such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the shareholders or class of shareholders, of this Corporation, as the case
may be, and also on this Corporation.
4
<PAGE>
TWELFTH: The Corporation is to have perpetual existence.
THIRTEENTH: The initial directors of the Corporation are J.L.
Holloway, John G. Corlew and Howell W. Todd.
5
<PAGE>
IN WITNESS WHEREOF, these Articles of Incorporation have been executed
by the incorporator of the Corporation on the 22nd day of September, 1998.
INCORPORATOR
/s/ John G. Corlew
----------------------------
JOHN G. CORLEW
400 East Capitol, Suite 300
Jackson, MS 39201
6
EXHIBIT 2
B Y L A W S
OF
FRIEDE GOLDMAN INTERNATIONAL INC.
Dated: September 22, 1998
<TABLE>
<CAPTION>
I N D E X
Page
<S> <C>
ARTICLE 1 OFFICES
Section 1.1 Principal Office.............................................................1
Section 1.2 Registered Office............................................................1
Section 1.3 Other Offices................................................................1
ARTICLE II SHAREHOLDERS' MEETINGS
Section 2.1 Annual Meeting...............................................................1
Section 2.2 Special Meetings.............................................................1
Section 2.3 Notice of Meetings and Adjourned Meetings....................................1
Section 2.4 Voting Lists.................................................................2
Section 2.5 Quorum.......................................................................2
Section 2.6 Organization.................................................................2
Section 2.7 Voting.......................................................................2
Section 2.8 Authorization of Proxies.....................................................3
Section 2.9 Shareholders Entitled to Vote................................................3
Section 2.10 Order of Business............................................................3
Section 2.11 Action by Written Consent....................................................4
Section 2.12 Inspectors of Election.......................................................4
Section 2.13 Notice of Shareholder Nominees...............................................4
Section 2.14 Shareholder Proposals........................................................5
ARTICLE III DIRECTORS
Section 3.1 Management...................................................................6
Section 3.2 Number and Term..............................................................6
Section 3.3 Quorum and Manner of Action..................................................6
Section 3.4 Vacancies....................................................................6
Section 3.5 Resignations.................................................................7
Section 3.6 Removals.....................................................................7
Section 3.7 Annual Meetings..............................................................7
Section 3.8 Regular Meetings.............................................................7
Section 3.9 Special Meetings.............................................................7
Section 3.10 Organization of Meetings ....................................................7
Section 3.11 Place of Meetings............................................................8
Section 3.12 Compensation of Directors....................................................8
Section 3.13 Action by Unanimous Written Consent..........................................8
Section 3.14 Participation in Meetings by Telephone.......................................8
Section 3.15 Election of Directors by Class Vote of Holders
of Preferred Stock........................................................8
ARTICLE IV COMMITTEES OF THE BOARD
Section 4.1 Membership and Authorities...................................................8
Section 4.2 Minutes......................................................................9
Section 4.3 Vacancies....................................................................9
Section 4.4 Telephone Meetings...........................................................9
Section 4.5 Action Without Meeting.......................................................9
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
ARTICLE V OFFICERS
Section 5.1 Number and Title.............................................................9
Section 5.2 Term of Office; Vacancies....................................................9
Section 5.3 Removal of Elected Officers.................................................10
Section 5.4 Resignations................................................................10
Section 5.5 The Chairman of the Board...................................................10
Section 5.6 Chief Executive Officer.....................................................10
Section 5.7 President...................................................................10
Section 5.8 Vice Presidents.............................................................11
Section 5.9 Secretary...................................................................11
Section 5.10 Assistant Secretaries.......................................................11
Section 5.11 Chief Financial Officer.....................................................12
Section 5.12 Treasurer...................................................................12
Section 5.13 Assistant Treasurers........................................................12
Section 5.14 Subordinate Officers; Agents................................................12
Section 5.15 Salaries and Compensation...................................................12
ARTICLE VI INDEMNIFICATION
Section 6.1 Indemnification of Directors and Officers...................................13
ARTICLE VII CAPITAL STOCK
Section 7.1 Certificates of Stock.......................................................15
Section 7.2 Lost Certificates...........................................................15
Section 7.3 Fixing Date for Determination of Shareholders of
Record for Certain Purposes..............................................15
Section 7.4 Dividends...................................................................16
Section 7.5 Registered Shareholders.....................................................16
Section 7.6 Transfer of Stock...........................................................16
Section 7.7 Stock Options, Warrants, Etc................................................16
ARTICLE VIII MISCELLANEOUS PROVISIONS
Section 8.1 Corporate Seal..............................................................16
Section 8.2 Fiscal Year.................................................................16
Section 8.3 Checks, Drafts, Notes.......................................................17
Section 8.4 Corporate Contracts and Instruments.........................................17
Section 8.5 Notice and Waiver of Notice.................................................17
Section 8.6 Examination of Books and Records............................................17
Section 8.7 Voting Upon Shares Held by the Corporation..................................17
ARTICLE IX AMENDMENTS
Section 9.1 Amendment...................................................................18
</TABLE>
ii
<PAGE>
FRIEDE GOLDMAN INTERNATIONAL INC.
B Y L A W S
ARTICLE I
Offices
SECTION 1.1 PRINCIPAL OFFICE. The principal office of the Corporation
shall be in Jackson, Mississippi.
SECTION 1.2 REGISTERED OFFICE. The registered office and registered
agent of the Corporation required to be maintained in the State of Mississippi
shall be as designated from time to time by the appropriate filing by the
Corporation in the office of the Secretary of State of the State of Mississippi.
SECTION 1.3 OTHER OFFICES. The Corporation may also have offices at
such other places, both within and without the State of Mississippi, as the
Board of Directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE II
Shareholders' Meetings
SECTION 2.1 ANNUAL MEETING. The annual meeting of the holders of shares
of each class or series of stock as are entitled to notice thereof and to vote
thereat pursuant to applicable law and the Certificate of Incorporation for the
purpose of electing directors and transacting such other proper business as may
come before it shall be held at such time and at such place, within or without
the State of Mississippi, as may be designated by the Board of Directors.
SECTION 2.2 SPECIAL MEETINGS. In addition to such special meetings as
are provided by law or the Articles of Incorporation, special meetings of the
holders of any class or series or of all classes or series of the Corporation's
stock for any purpose or purposes, may be called at any time by the Chief
Executive Officer and shall be called by the Secretary at the written request,
or by resolution adopted by the affirmative vote, of a majority of the Board of
Directors, which request shall fix the date, time and place (within or without
the State of Mississippi), and state the purpose or purposes of the proposed
meeting. Except to the extent specified in the Corporation's articles of
incorporation, as amended and in effect from time to time (the "Articles of
Incorporation") or the resolutions of the Board of Directors creating any class
or series of preferred stock of the Corporation, Shareholders of the Corporation
may not call a special meeting.
SECTION 2.3 NOTICE OF MEETINGS AND ADJOURNED MEETINGS. Except as
otherwise provided by law, written notice of any meeting of Shareholders shall
be given either by personal delivery or by mail to each Shareholder of record
entitled to vote thereat. Notice of each meeting shall be in such form as is
approved by the Board of Directors and shall state the date, place and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. Unless otherwise provided by law, such written
notice shall be given not less than 10 nor more than 60 days before the date of
the meeting. Except when Shareholder attends a meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction of any
business on the grounds that the meeting is not lawfully called or convened,
presence in person or by proxy of a Shareholder shall constitute a waiver of
notice of such meeting. Further, a written waiver of any notice required by law
or by these Bylaws, signed by the person entitled to notice, whether before or
after the time stated therein, shall be deemed equivalent to notice. Except as
1
<PAGE>
otherwise provided by law, the business that may be transacted at any such
meeting shall be limited to and consist of the purpose or purposes stated in
such notice. If a meeting is adjourned to another time or place, notice need not
be given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken; provided, however, that if the
adjournment is for more than 30 days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting shall
be given to each Shareholder of record entitled to vote at the meeting.
SECTION 2.4 VOTING LISTS. The officer or agent having charge of the
stock transfer books for shares of the Corporation shall make, at least 10 days
before each meeting of the Shareholders, a complete list of Shareholders
entitled to vote at such meeting or any adjournment thereof, arranged in
alphabetical order, with the address of each and the number of shares held by
each, which list, for a period of 10 days prior to such meeting, shall be kept
on file either at a place within the city where the meeting is to be held, which
place shall be specified in the notice of the meeting, or, if not so specified,
at the place where the meeting is to be held, and such list shall be subject to
inspection by the Shareholders at any time during usual business hours. Such
list shall also be produced and kept open at the time and place of the meeting
and shall be subject to the inspection of any Shareholder for the duration of
the meeting. The original stock transfer books shall be prima-facie evidence as
to who are the Shareholders entitled to examine such list or transfer books or
to vote at any meeting of Shareholders.
SECTION 2.5 QUORUM. Except as otherwise provided by law or by the
Articles of Incorporation, the holders of a majority of the Corporation's stock
issued and outstanding and entitled to vote at a meeting, present in person or
represented by proxy, without regard to class or series, shall constitute a
quorum at all meetings of the Shareholders for the transaction of business. If,
however, such quorum shall not be present or represented at any meeting of the
Shareholders, the Chairman of the Board of Directors or other person presiding
over such meeting or the holders of a majority of such shares of stock, present
in person or represented by proxy, may adjourn any meeting from time to time
without notice other than announcement at the meeting, except as otherwise
required by these Bylaws, until a quorum shall be present or represented. At any
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 called. A holder of a share of the Corporation's capital stock shall
be treated as being present or represented at a meeting if such holder is (i)
present in person at the meeting or (ii) represented at the meeting by a valid
proxy, regardless of whether the instrument granting the proxy is marked as
casting a vote or abstaining, is left blank or does not empower such proxy to
vote with respect to some or all matters to be voted upon at the meeting.
SECTION 2.6 ORGANIZATION. Meetings of the Shareholders shall be
presided over by the Chairman of the Board of Directors, if one shall be
elected, or in his absence, by the Chief Executive Officer, the President or by
any Senior Vice President, or, in the absence of any of such officers, by a
chairman to be chosen by a majority of the Shareholders entitled to vote at the
meeting who are present in person or by proxy. The Secretary, or, in his
absence, any Assistant Secretary or any person appointed by the individual
presiding over the meeting, shall act as secretary at meetings of the
Shareholders.
SECTION 2.7 VOTING. Each Shareholder of record, as determined pursuant
to Section 2.9, who is entitled to vote in accordance with the terms of the
Articles of Incorporation and in accordance with the provisions of these Bylaws,
shall, except to the extent specified in the Articles of Incorporation or any
resolution adopted by the Board of Directors to establish any series of
Preferred Stock of the Corporation, be entitled to one vote, in person or by
proxy, for each share of stock registered in his name on the books of the
Corporation. Every Shareholder entitled to vote at any Shareholders'
2
<PAGE>
meeting may authorize another person or persons to act for him by proxy duly
appointed by instrument in writing subscribed by such Shareholder and executed
not more than three years prior to the meeting, unless the proxy provides for a
longer period. Each proxy shall be revocable unless it expressly states therein
that it is irrevocable and, only so long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A Shareholder's attendance at
any meeting, when such Shareholder has theretofore given a proxy, shall not have
the effect of revoking such proxy unless such Shareholder shall in writing so
notify the Secretary of the meeting prior to the voting of the proxy. Unless
otherwise provided by law, no vote on the election of directors or any question
brought before the meeting need be by ballot unless the chairman of the meeting
shall determine that it shall be by ballot or the holders of a majority of the
shares of stock present in person or by proxy and entitled to participate in
such vote shall so demand. In a vote by ballot, each ballot shall state the
number of shares voted and the name of the Shareholder or proxy voting. Except
as otherwise provided by law, by the Articles of Incorporation or these Bylaws,
(i) action on a matter (other than the election of directors) shall be approved
if the votes cast by holders of shares of stock present and entitled to vote on
the matter at a meeting at which a quorum is present in favor of the matter
exceed the votes cast opposing the matter and (ii) directors shall be elected by
a plurality of the votes cast by the holders of shares present and entitled to
vote in the election at a meeting at which a quorum is present. In the election
of directors, votes may not be cumulated. In determining the number of votes
cast, shares abstaining from voting or not voted on a matter (including director
elections) will not be treated as votes cast.
SECTION 2.8 AUTHORIZATION OF PROXIES. Without limiting the manner in
which a Shareholder may authorize another person or persons to act for him as
proxy, the following are valid means of granting such authority. A Shareholder
may execute a writing authorizing another person or persons to act for him as
proxy. Execution may be accomplished by the Shareholder or his authorized
officer, director, employee or agent signing such writing or causing his or her
signature to be affixed to such writing by any reasonable means including, but
not limited to, by facsimile signature. A Shareholder may also authorize another
person or persons to act for him as proxy by transmitting or authorizing the
transmission of a telegram, cablegram or other means of electronic transmission
must either set forth or be submitted with information from which it can be
determined that the telegram, cablegram or other electronic transmission was
authorized by the Shareholder. If it is determined that such telegrams,
cablegrams or other electronic transmissions are valid, the inspectors or, if
there are no inspectors, such other persons making that determination shall
specify the information upon which they relied. Any copy, facsimile
telecommunication or other reliable reproduction of the writing or transmission
created pursuant to this section may be substituted or used in lieu of the
original writing or transmission for any and all purposes for which the writing
or transmission could be used, provided that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the
entire original writing or transmission.
SECTION 2.9 SHAREHOLDERS ENTITLED TO VOTE. The board of directors may
fix a date not more than 60 days nor less than 10 days prior to the date of any
meeting of shareholders as a record date for the determination of the
shareholders entitled to notice of and to vote at such meeting and any
adjournment thereof, and in such case such shareholders and only such
shareholders as shall be shareholders of record on the date so fixed shall be
entitled to notice of and to vote at, such meeting and any adjournment thereof
notwithstanding any transfer of any stock on the books of the corporation after
such record date fixed as aforesaid.
SECTION 2.10 ORDER OF BUSINESS. The order of business at all meetings
of Shareholders shall be as determined by the chairman of the meeting or as is
otherwise determined by the vote of the holders of a majority of the shares of
stock present in person or by proxy and entitled to vote without regard to class
or series at the meeting.
3
<PAGE>
SECTION 2.11 ACTION BY WRITTEN CONSENT. No action required or permitted
to be taken by the Shareholders shall be taken except at an annual or special
meeting with prior notice and a vote. No action may be taken by the Shareholders
by written consent.
SECTION 2.12 INSPECTORS OF ELECTION. Before any meeting of
Shareholders, the Board of Directors may, and if required by law shall, appoint
one or more persons to act as inspectors of election at such meeting or any
adjournment thereof. If any person appointed as inspector fails to appear or
fails or refuses to act, the chairman of the meeting may, and if required by law
or requested by any Shareholder entitled to vote or his proxy shall, appoint a
substitute inspector. If no inspectors are appointed by the Board of Directors,
the chairman of the meeting may, and if required by law or requested by any
Shareholder entitled to vote or his proxy shall, appoint one or more inspectors
at the meeting. Inspectors may include individuals who serve the Corporation in
other capacities (including as officers, employees, agents or representatives);
provided, however, that no director or candidate for the office of director
shall act as an inspector. Inspectors need not be Shareholders. The inspectors
shall (i) determine the number of shares of capital stock of the Corporation
outstanding and the voting power of each, the number of shares represented at
the meeting, the existence of a quorum and the validity and effect of proxies
and (ii) receive votes or ballots, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate all
votes and ballots, determine the results and do such acts as are proper to
conduct the election or vote with fairness to all Shareholders. On request of
the chairman of the meeting, the inspectors shall make a report in writing of
any challenge, request or matter determined by them and shall execute a
certificate of any fact found by them.
SECTION 2.13 NOTICE OF SHAREHOLDER NOMINEES. Only persons who are
nominated in accordance with the procedures set forth in this Section 2.13 shall
be eligible for election as directors of the Corporation. Nominations of persons
for election to the Board of Directors of the Corporation may be made at a
meeting of the Corporation's Shareholders (a) by or at the direction of the
Board of Directors or (b) by any Shareholder of the Corporation entitled to vote
for the election of directors at such meeting who complies with the procedures
set forth in this Section 2.13. All nominations by Shareholders shall be made
pursuant to timely notice in proper written form submitted to the Secretary of
the Corporation. To be timely, a shareholder's notice must be delivered to or
mailed and received at the principal executive offices of the Corporation not
less than 120 days nor more than 150 days prior to the anniversary of the annual
meeting held for the immediately preceding year, unless the date of the upcoming
annual meeting has been changed by more than 30 days from the date of the prior
year's meeting, in which case proposals must be received at least 60 days prior
to the distribution by the Company of proxies relating to such upcoming annual
meeting, or, in the case of a special meeting at which directors are to be
elected and for which less than 40 days' notice or prior public disclosure of
the date of the meeting is given or made to Shareholders, notice by the
Shareholder to be timely must be so received not later than the close of
business on the 10th day following the day on which such notice of the date of
the meeting was mailed or such public disclosure was made. To be in proper
written form, such shareholder's notice to the Secretary shall set forth in
writing (a) as to each person whom such Shareholder proposes to nominate for
election or re-election as a director, all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended, including, without
limitation, such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected; and (b) as to such
Shareholder (i) the name and address, as they appear on the Corporation's books,
and principal occupation of such Shareholder, (ii) the class and number of
shares of the Corporation's capital stock that are beneficially owned by such
Shareholder and the dates upon which such Shareholder acquired such shares and
documentary support for any claims of beneficial ownership, and (iii) a
description of all agreements, arrangements or understandings between such
4
<PAGE>
Shareholder and each such person that such Shareholder proposes to nominate as a
director and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by such
Shareholder. At the request of the Board of Directors, any person nominated by
the Board of Directors for election as a director shall furnish to the Secretary
of the Corporation that information required to be set forth in a shareholder's
notice of nomination which pertains to the nominee. No person shall be eligible
for election as a director unless nominated in accordance with the procedures
set forth in these Bylaws of the Company. The chairman of the shareholder's
meeting shall, if the facts warrant, determine and declare to the meeting that a
nomination was not made in accordance with the procedures prescribed by these
Bylaws of the Company, and if he shall so determine, he shall announce such
determination to the meeting and the defective nomination shall be disregarded.
SECTION 2.14 SHAREHOLDER PROPOSALS. At any special meeting of the
Corporation's Shareholders, only such business shall be conducted as shall have
been brought before the meeting by or at the direction of the Board of
Directors. At any annual meeting of the Shareholders, only such business shall
be conducted as shall have been brought before the meeting (a) by or at the
direction of the Board of Directors or (b) by any Shareholder who complies with
the procedures set forth in this Section 2.14; provided, however, that nothing
in this Section 2.14 shall be deemed to preclude discussion by any Shareholder
of any business properly brought before any annual meeting of Shareholders in
accordance with such procedures. For business properly to be brought before an
annual meeting by a Shareholder, the Shareholder must have given timely notice
thereof in proper written form to the Secretary of the Corporation. To be
timely, a shareholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation not less than 120 days nor
more than 150 days prior to the anniversary of the annual meeting held for the
immediately preceding year, unless the date of the upcoming annual meeting has
been changed by more than 30 days from the date of the prior year's meeting, in
which case proposals must be received at least 60 days prior to the distribution
by the Company of proxies relating to such upcoming annual meeting. To be in
proper written form, such shareholder's notice to the Secretary shall set forth
in writing as to each matter such Shareholder proposes to bring before the
annual meeting (a) a brief description of the business desired to be brought
before the annual meeting, including the exact text of any proposal to be
presented for adoption and any supporting statement (which shall not exceed 500
words in the aggregate), and such shareholder's reasons for conducting such
business at the annual meeting, (b) the name and address, as they appear on the
Corporation's books, and principal occupation of such Shareholder, (c) the class
and number of shares of the Corporation's capital stock that are beneficially
owned by such Shareholder and the dates upon which such Shareholder acquired
such shares and documentary support for any claims of beneficial ownership, and
(d) any material interest of such Shareholder in such business. Notwithstanding
anything in these Bylaws to the contrary, no business shall be conducted at an
annual meeting except in accordance with the procedures set forth in this
Section 2.14 and the foregoing rights of a Shareholder to propose business for
consideration at an annual meeting of Shareholders shall be subject to such
conditions, restrictions and limitations as may be imposed by the Articles of
Incorporation. The chairman of an annual shareholder's meeting shall, if the
facts warrant, determine and declare to the meeting that business is not
properly brought before the meeting in accordance with the provisions of this
Section 2.14, and, if he should so determine, he shall so announce such
determination to the meeting and any such business not properly brought before
the meeting shall not be transacted. Notwithstanding any other provision of
these Bylaws, the Corporation shall be under no obligation to include any
Shareholder proposal in its proxy statement material or otherwise present any
such proposal to Shareholders at a meeting of Shareholders if the Board of
Directors reasonably believes that the proponents thereof have not complied with
Sections 13 and 14 of the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder, and the Corporation shall not be
required to include in its proxy statement material to Shareholders any
Shareholder proposal not required to be included in its proxy statement to
Shareholders in accordance with such act, rules or regulations.
5
<PAGE>
ARTICLE III
Directors
SECTION 3.1 MANAGEMENT. The property, affairs and business of the
Corporation shall be managed by or under the direction of the Board of Directors
which may exercise all powers of the Corporation and do all lawful acts and
things as are not by law, by the Articles of Incorporation or by these Bylaws
directed or required to be exercised or done by the Shareholders.
SECTION 3.2 NUMBER AND TERM. The actual number of directors
constituting the entire Board of Directors shall be fixed from time to time by
resolution of the Board of Directors adopted by the affirmative vote of a
majority of the members of the entire Board of Directors, but shall consist of
not less than three nor more than 15 members. The Board of Directors shall have
sole authority to determine the number of directors, within the limits set forth
above, and may increase or decrease the exact number of directors from time to
time by resolution duly adopted by the affirmative vote of a majority of the
entire Board of Directors; subject to Miss. Code Ann. Section 79-4-8.03(b) which
limits any change to 30% of the number of directors last approved by the
Shareholders. Directors need not be Shareholders. No decrease in the number of
directors shall have the effect of shortening the term of office of any
incumbent director.
SECTION 3.3 QUORUM AND MANNER OF ACTION. At all meetings of the Board
of Directors a majority of the total number of directors holding office shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the Board of Directors, except as may be otherwise specifically provided by
law, by the Articles of Incorporation or by these Bylaws. When the Board of
Directors consists of one director, the one director shall constitute a majority
and a quorum. If at any meeting of the Board of Directors there shall be less
than a quorum present, a majority of those present may adjourn the meeting from
time to time until a quorum is obtained, and no further notice thereof need be
given other than by announcement at such adjourned meeting. Attendance by a
director at a meeting shall constitute a waiver of notice of such meeting except
where a director attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the ground that
the meeting is not lawfully called or convened. A director who is present at a
meeting of the Board of Directors at which action on any corporate matter is
taken shall be presumed to have assented to such action unless his dissent shall
be entered in the minutes of the meeting or unless he shall file his written
dissent to such action with the person acting as Secretary of the meeting before
the adjournment thereof or shall forward any dissent by certified or registered
mail to the Secretary immediately after the adjournment of the meeting. Such
right to dissent shall not apply to any director who voted in favor of such
action.
SECTION 3.4 VACANCIES. Except as otherwise provided by law and the
Articles of Incorporation, in the case of any increase in the authorized number
of directors or of any vacancy in the Board of Directors, however created, the
additional director or directors may be elected, or, as the case may be, the
vacancy or vacancies shall be filled by majority vote of the directors remaining
on the whole Board of Directors although less than a quorum, or by a sole
remaining director. In the event one or more directors shall resign, effective
at a future date, such vacancy or vacancies shall be filled by a majority of the
directors who will remain on the whole Board of Directors, although less than a
quorum, or by a sole remaining director. Any director elected or chosen as
provided herein shall serve until the sooner of (i) the unexpired term of the
directorship to which he is appointed; or (ii) until his successor is elected
and qualified; or (iii) until his earlier resignation or removal. If, as a
result of a disaster or emergency (as determined in good faith by the then
6
<PAGE>
remaining Directors), it becomes impossible to ascertain whether or not
vacancies exist on the Board of Directors and a person is or persons are elected
by the Directors, who in good faith believe themselves to be a majority of the
remaining Directors, to fill a vacancy or vacancies that such remaining
Directors in good faith believe exists, then the acts of such person or persons
who are so elected as Directors shall be valid and binding upon the Corporation
and the Shareholders, although it may subsequently develop that at the time of
the election (i) there was in fact no vacancy or vacancies existing on the Board
of Directors or (ii) the directors who so elected such person or persons did not
in fact constitute a majority of the remaining Directors.
SECTION 3.5 RESIGNATIONS. A director may resign at any time upon
written notice of resignation to the Corporation, delivered to the Secretary.
Any resignation shall be effective immediately unless a certain effective date
is specified therein, in which event it will be effective upon such date and
acceptance of any resignation shall not be necessary to make it effective.
SECTION 3.6 REMOVALS. Any director or the entire Board of Directors may
be removed before the expiration of such Director's term of office only for
cause, and another person or persons may be elected to serve for the remainder
of his or their term, and only upon the affirmative vote of the holders of a
majority of the shares of the Corporation entitled to vote in the election of
directors. Shareholders may not remove any director without cause. In case any
vacancy so created shall not be filled by the Shareholders at such meeting, such
vacancy may be filled by the directors as provided in Section 3.4.
SECTION 3.7 ANNUAL MEETINGS. The annual meeting of the Board of
Directors shall be held, if a quorum be present, immediately following each
annual meeting of the Shareholders at the place such meeting of Shareholders
took place, for the purpose of organization and transaction of any other
business that might be transacted at a regular meeting thereof, and no notice of
such meeting shall be necessary. If a quorum is not present, such annual meeting
may be held at any other time or place that may be specified in a notice given
in the manner provided in Section 3.9 for special meetings of the Board of
Directors or in a waiver of notice thereof.
SECTION 3.8 REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held without notice at such places and times as shall be
determined from time to time by resolution of the Board of Directors. Except as
otherwise provided by law, any business may be transacted at any regular meeting
of the Board of Directors.
SECTION 3.9 SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chief Executive Officer or by the Secretary on
the written request of one-third of the members of the whole Board of Directors
stating the purpose or purposes of such meeting. Notices of special meetings, if
mailed, shall be mailed to each director not later than two days before the day
the meeting is to be held or if otherwise given in the manner permitted by these
Bylaws, not later than the day before such meeting. Neither the business to be
transacted at, nor the purpose of, any special meeting need be specified in any
notice or written waiver of notice unless so required by the Articles of
Incorporation or by the Bylaws. Unless limited by law, the Articles of
Incorporation or by these Bylaws, any and all business may be transacted at a
special meeting.
SECTION 3.10 ORGANIZATION OF MEETINGS. At any meeting of the Board of
Directors, business shall be transacted in such order and manner as such Board
of Directors may from time to time determine, and all matters shall be
determined by the vote of a majority of the directors present at any meeting at
which there is a quorum, except as otherwise provided by these Bylaws or
required by law.
7
<PAGE>
SECTION 3.11 PLACE OF MEETINGS. The Board of Directors may hold their
meetings and have one or more offices, and keep the books of the Corporation,
inside or outside the State of Mississippi, at any office or offices of the
Corporation, or at any other place as they may from time to time by resolution
determine.
SECTION 3.12 COMPENSATION OF DIRECTORS. The Board of Directors shall
have the authority to fix, and from time to time to change, the compensation of
Directors. Directors shall not receive any stated salary for their services as
directors, but by resolution of the Board of Directors a fixed honorarium or
fees and expenses, if any, of attendance may be paid by the Corporation for
attendance at each meeting. Nothing herein contained shall be construed to
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees may
be allowed like compensation for attending such committee meetings.
SECTION 3.13 ACTION BY UNANIMOUS WRITTEN CONSENT. Unless otherwise
restricted by law, the Articles of Incorporation or these Bylaws, any action
required or permitted to be taken at any meeting of the Board of Directors or of
any committee thereof may be taken without a meeting if all members of the Board
of Directors or of such committee, as the case may be, consent thereto in
writing and the writing or writings are filed with the minutes of proceedings of
the Board of Directors or the committee.
SECTION 3.14 PARTICIPATION IN MEETINGS BY TELEPHONE. Unless otherwise
restricted by the Articles of Incorporation or these Bylaws, members of the
Board of Directors or of any committee thereof may participate in a meeting of
such Board of Directors or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in a meeting pursuant to this Section
3.14 shall constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the ground that
the meeting is not lawfully called or convened.
SECTION 3.15 ELECTION OF DIRECTORS BY CLASS VOTE OF HOLDERS OF
PREFERRED STOCK. Notwithstanding the foregoing provisions of this Article III,
if the resolutions of the Board of Directors creating any class or series of
preferred stock of the Corporation entitle the holders of such preferred stock,
voting separately by class or series, to elect additional Directors under
specified circumstances, then all provisions of such resolutions relating to the
nomination, election, term of office, removal, filling of vacancies and other
features of such directorships shall, as to such directorships, govern and
control over any conflicting provisions of this Article III, and such Directors
so elected need not be divided into classes pursuant to this Article III unless
expressly provided by the provisions of such resolutions.
ARTICLE IV
Committees of the Board
SECTION 4.1 MEMBERSHIP AND AUTHORITIES. The Board of Directors may, by
resolution or resolutions passed by a majority of the whole Board of Directors,
designate one or more Directors to constitute an Executive Committee and such
other committees as the Board of Directors may determine, each of which
committees to the extent provided in said resolution or resolutions or in these
Bylaws, shall have and may exercise all the powers of the Board of Directors in
the management of the business and affairs of the Corporation, except in those
cases where the authority of the Board of Directors is specifically denied to
the Executive Committee or such other committee or committees by law, the
Articles of Incorporation or these Bylaws, and may authorize the seal of the
Corporation to be affixed to all papers that may require it. The designation of
8
<PAGE>
an Executive Committee or other committee and the delegation thereto of
authority shall not operate to relieve the Board of Directors, or any member
thereof, of any responsibility imposed upon it or him by law. Each member of a
committee of the Board of Directors shall serve as such until the earliest of
(i) his death, (ii) the expiration of his term as a Director, (iii) his
resignation as a member of such committee or as a Director and (iv) his removal
as a member of such committee or as a Director.
SECTION 4.2 MINUTES. Each committee designated by the Board of
Directors shall keep regular minutes of its proceedings and shall provide a
report of its proceedings to the Board of Directors when required or requested
by the Board of Directors.
SECTION 4.3 VACANCIES. The Board of Directors may designate one or more
of its members as alternate members of any committee who may replace any absent
or disqualified member at any meeting of such committee. If no alternate members
have been appointed, the committee member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any absent or disqualified member. The Board of
Directors shall have the power at any time to fill vacancies in, to change the
membership of, and to dissolve, any committee.
SECTION 4.4 TELEPHONE MEETINGS. Members of any committee designated by
the Board of Directors may participate in or hold a meeting by use of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation in a meeting
pursuant to this Section 4.4 shall constitute presence in person at such
meeting, except where a person participates in the meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
SECTION 4.5 ACTION WITHOUT MEETING. Any action required or permitted to
be taken at a meeting of any committee designated by the Board of Directors may
be taken without a meeting if a consent in writing, setting forth the action so
taken, is signed by all the members of the committee and filed with the minutes
of the committee proceedings. Such consent shall have the same force and effect
as a unanimous vote at a meeting.
ARTICLE V
Officers
SECTION 5.1 NUMBER AND TITLE. The elected officers of the Corporation
shall be chosen by the Board of Directors and shall be a Chief Executive
Officer, the President, a Vice President, a Secretary and a Treasurer. The Board
of Directors may also choose a Chairman of the Board, who must be a member of
the Board of Directors, and additional Vice Presidents (including one or more
Executive Vice Presidents and one or more Senior Vice Presidents), a Chief
Financial Officer, a General Counsel, one or more Assistant Secretaries and/or
one or more Assistant Treasurers. One person may hold any two or more of these
offices.
SECTION 5.2 TERM OF OFFICE; VACANCIES. So far as is practicable, all
elected officers shall be elected by the Board of Directors at the annual
meeting of the Board of Directors in each year, and except as otherwise provided
in this Article V, shall hold office until the next such meeting of the Board of
Directors in the subsequent year and until their respective successors are
elected and qualified or until their earlier resignation or removal. All
appointed officers shall hold office at the pleasure of the Board of Directors.
If any vacancy shall occur in any office, the Board of Directors may elect or
appoint a successor to fill such vacancy for the remainder of the term.
9
<PAGE>
SECTION 5.3 REMOVAL OF ELECTED OFFICERS. Any elected officer may be
removed at any time, with or without cause, by affirmative vote of a majority of
the whole Board of Directors, at any regular meeting or at any special meeting
called for such purpose.
SECTION 5.4 RESIGNATIONS. Any officer may resign at any time upon
written notice of resignation to the Chief Executive Officer, Secretary or Board
of Directors of the Corporation. Any resignation shall be effective immediately
unless a date certain is specified for it to take effect, in which event it
shall be effective upon such date, and acceptance of any resignation shall not
be necessary to make it effective, irrespective of whether the resignation is
tendered subject to such acceptance. Any such resignation is without prejudice
to the rights, if any, of the Corporation under any contract to which the
officer is a party.
SECTION 5.5 THE CHAIRMAN OF THE BOARD. The Chairman of the Board, if
one shall be elected, shall preside at all meetings of the Shareholders and
Board of Directors. In addition, the Chairman of the Board shall perform
whatever duties and shall exercise all powers that are given to him by the Board
of Directors.
SECTION 5.6 CHIEF EXECUTIVE OFFICER. (a) The Chief Executive Officer
shall be the chief executive officer of the Corporation and, subject to the
supervision, direction and control of the Board of Directors and the Chairman of
the Board (if any), shall have general supervision, direction and control of the
business and officers of the Corporation with all such powers as may be
reasonably incident to such responsibilities. The Chief Executive Officer shall
implement the general directives, plans and policies formulated by the Board of
Directors and shall further have such duties, responsibilities and authorities
as may be assigned to him by the Board of Directors. The Chief Executive Officer
shall have the general powers and duties of management usually vested in the
chief executive officer of a corporation. The Chief Executive Officer may sign,
with any other proper officer, certificates for shares of the Corporation and
any deeds, bonds, mortgages, contracts and other documents which the Board of
Directors has authorized to be executed, except where required by law to be
otherwise signed and executed and except where the signing and execution thereof
shall be expressly delegated by the Board or Directors or these Bylaws to some
other officer or agent of the Corporation.
(b) During the time of any vacancy in the office of Chairman
of the Board or in the event of the absence or disability of the Chairman of the
Board, the Chief Executive Officer shall have the duties and powers of the
Chairman of the Board unless otherwise determined by the Board of Directors. In
the absence of the Chairman of the Board, if one be elected, the Chief Executive
Officer shall preside at meetings of the Shareholders and Board of Directors and
shall be ex officio a member of all standing committees. During the time of any
vacancy in the office of President or in the event of the absence or disability
of the President, the Chief Executive Officer shall have the duties and powers
of the President unless otherwise determined by the Board of Directors. In no
event shall any third party having any dealings with the Corporation be bound to
inquire as to any facts required by the terms of this Section 5.6 for the
exercise by the Chief Executive Officer of the powers of the Chairman of the
Board or the President.
SECTION 5.7 PRESIDENT. (a) The President shall be the chief operating
officer of the Corporation and, subject to the supervision, direction and
control of the Chief Executive Officer and the Board of Directors, shall manage
the day-to-day operations of the Corporation. He shall have the general powers
and duties of management usually vested in the chief operating officer of a
corporation and such other powers and duties as may be assigned to him by the
Board of Directors, the Chief Executive Officer or these Bylaws. The President
may sign, with any other proper officer, certificates for shares of the
Corporation and any deeds, bonds, mortgages, contracts and other documents which
the Board of Directors has authorized to be executed, except where required by
10
<PAGE>
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the Board or Directors or
these Bylaws to some other officer or agent of the Corporation. In the absence
of the President, his duties shall be performed and his authority may be
exercised by the Chief Executive Officer or a Vice President of the Corporation
as may have been designated by the President with the right reserved to the
Board of Directors to designate or supersede any designation so made.
(b) During the time of any vacancy in the offices of the
Chairman of the Board and Chief Executive Officer or in the event of the absence
or disability of the Chairman of the Board and the Chief Executive Officer, the
President shall have the duties and powers of the Chief Executive Officer unless
otherwise determined by the Board of Directors. In no event shall any third
party having any dealings with the Corporation be bound to inquire as to any
facts required by the terms of this Section 5.7 for the exercise by the
President of the powers of the Chief Executive Officer.
SECTION 5.8 VICE PRESIDENTS. In the absence or disability of the
President, the Vice Presidents, if any, in order of their rank as fixed by the
Board of Directors, or if not ranked, the Vice President designated by the
President, shall perform all the duties of the President as chief operating
officer of the Corporation, and when so acting shall have all the powers of, and
be subject to all the restrictions upon, the President as chief operating
officer of the Corporation. In no event shall any third party having dealings
with the Corporation be bound to inquire as to any facts required by the terms
of this Section 5.8 for the exercise by any Vice President of the powers of the
President as chief operating officer of the Corporation. The Vice Presidents
shall have such other powers and perform such other duties as from time to time
may be assigned to them by these Bylaws and as may from time to time be assigned
to them by the Board of Directors, the Chief Executive Officer or the President,
and may sign, with any other proper officer, certificates for shares of the
Corporation.
SECTION 5.9 SECRETARY. The Secretary shall keep or cause to be kept, at
the principal office of the Corporation or such other place as the Board of
Directors may order, a book of minutes of all meetings and actions of the Board
of Directors, committees of the Board of Directors and Shareholders, with the
time and place of holding, whether regular or special, and, if special, how
authorized, the notice thereof given, the names of those present at meetings of
the Board of Directors and committees thereof, the number of shares present or
represented at Shareholders' meetings and the proceedings thereof. The
Secretary, if available, shall attend all meetings of the Board of Directors and
all meetings of the Shareholders and record the proceedings of the meetings in a
book to be kept for that purpose and shall perform like duties for any committee
of the Board of Directors as the Board of Directors or such committee shall
designate him to serve. The Secretary shall give, or cause to be given, notice
of all meetings of the Shareholders and meetings of the Board of Directors and
committees thereof and shall perform such other duties incident to the office of
secretary or as may be prescribed by the Board of Directors or the President,
under whose supervision he shall be. The Secretary shall have custody of the
corporate seal of the Corporation, if one be adopted pursuant to Section 8.1,
and he, or any Assistant Secretary, or any other person whom the Board of
Directors may designate, shall have authority to affix the same to any
instrument requiring it, and when so affixed it may be attested by his signature
or by the signature of any Assistant Secretary or by the signature of such other
person so affixing such seal.
SECTION 5.10 ASSISTANT SECRETARIES. Each Assistant Secretary shall have
the usual powers and duties pertaining to his office, together with such other
powers and duties as may be assigned to him by the Board of Directors, the Chief
Executive Officer, the President or the Secretary. The Assistant Secretary or
such other person as may be designated by the Chief Executive Officer shall
exercise the powers of the Secretary during that officer's absence or inability
to act.
11
<PAGE>
SECTION 5.11 CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
be the chief financial officer of the Corporation and, subject to the
supervision, direction and control of the Chief Executive Officer and the Board
of Directors, shall manage the day-to-day financial operations of the
Corporation. He shall have the general powers and duties of management usually
vested in the chief financial officer of a corporation and such other powers and
duties as may be assigned to him by the Board of Directors, the Chief Executive
Officer or these Bylaws. The Chief Financial Officer may sign, with any other
proper officer, certificates for shares of the Corporation and any deeds, bonds,
mortgages, contracts and other documents which the Board of Directors has
authorized to be executed, except where required by law to be otherwise signed
and executed and except where the signing and execution thereof shall be
expressly delegated by the Board or Directors or these Bylaws to some other
officer or agent of the Corporation. In the absence of the Chief Financial
Officer, his duties shall be performed and his authority may be exercised by the
Treasurer or a Vice President of the Corporation as may have been designated by
the President with the right reserved to the Board of Directors to designate or
supersede any designation so made.
SECTION 5.12 TREASURER. The Treasurer shall have the custody of and be
responsible for the corporate funds and securities, shall keep full and accurate
accounts of receipts and disbursements in the books belonging to the Corporation
and shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors. He shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, taking proper vouchers for such disbursements, and
shall render to the President and the Board of Directors, at its regular
meetings, or when the Board of Directors so requires, an account of all his
transactions as Treasurer and of the financial condition of the Corporation and
he shall perform all other duties incident to the position of Treasurer, or as
may be prescribed by the Board of Directors or the Chief Executive Officer. If
required by the Board of Directors, he shall give the Corporation a bond in such
sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
Corporation.
SECTION 5.13 ASSISTANT TREASURERS. Each Assistant Treasurer shall have
the usual powers and duties pertaining to his office, together with such other
powers and duties as may be assigned to him by the Board of Directors, the
President or the Treasurer. The Assistant Treasurer or such other person
designated by the Chief Executive Officer shall exercise the power of the
Treasurer during that officer's absence or inability to act.
SECTION 5.14 SUBORDINATE OFFICERS; AGENTS. The Board of Directors may
(a) appoint such other officers subordinate to the Chief Executive Officer and
President (including a Chief Financial Officer and/or a General Counsel) as it
shall deem necessary or desirable who shall hold their offices for such terms,
have such authority and perform such duties as the Board of Directors may from
time to time determine, or (b) delegate to any committee or officer the power to
appoint any such subordinate officers. The Board of Directors may also appoint
one or more agents as it shall deem necessary or desirable who shall have such
authority and perform such duties as the Board of Directors may from time to
time determine. Any agent may be removed at any time, with or without cause, by
affirmative vote of a majority of the whole Board of Directors, at any regular
meeting or at any special meeting called for such purpose.
SECTION 5.15 SALARIES AND COMPENSATION. The salary or other
compensation of officers shall be fixed from time to time by the Board of
Directors. The Board of Directors may delegate to any committee or officer the
power to fix from time to time the salary or other compensation of officers and
agents.
12
<PAGE>
ARTICLE VI
Indemnification
SECTION 6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS. (a) The
Corporation (i) shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that such person is or was, at any time prior to or during which this
Article VI is in effect, a director or officer of the Corporation, or is or was,
at any time prior to or during which this Article VI is in effect, serving at
the request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust, other enterprise or employee benefit plan and
(ii) upon a determination by the Board of Directors that indemnification is
appropriate, the Corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that such person is or was, at any time prior to or during which this
Article VI is in effect, an employee or agent of the Corporation or at the
request of the Corporation was serving as an employee or agent of any other
corporation, partnership, joint venture, trust, other enterprise or employee
benefit plan, in the case of (i) and (ii) against reasonable expenses (including
attorneys' fees), judgments, fines, penalties, amounts paid in settlement and
other liabilities actually and reasonably incurred by such person in connection
with such action, suit or proceeding if such person acted in good faith and in a
manner he 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 that his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that such person did not act in good faith and in a manner which he
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
reasonable cause to believe that his conduct was unlawful.
(b) The Corporation (i) shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that such person is or was, at any
time prior to or during which this Article VI is in effect, a director or
officer of the Corporation, or is or was, at any time prior to or during which
this Article VI is in effect, serving at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise and (ii) upon a determination by the
Board of Directors that indemnification is appropriate, the Corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that such
person is or was, at any time prior to or during which this Article VI is in
effect, an employee or agent of the Corporation or at the request of the
Corporation was serving as an employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, in
the case of (i) and (ii) against expenses (including attorneys' fees), actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation; provided, that no indemnification shall be made under this
sub-section (b) in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to the
extent that a Mississippi Chancery Court, or other court of appropriate
13
<PAGE>
jurisdiction, shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity of such expenses which a Mississippi
Chancery Court, or other court of appropriate jurisdiction, shall deem proper.
(c) Any indemnification under sub-sections (a) or (b) (unless ordered
by a Mississippi Chancery Court or other court of appropriate jurisdiction)
shall be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of such person is proper in the circumstances
because he has met the applicable standard of conduct set forth in sub-sections
(a) and (b). Such determination shall be made (1) by the Board of Directors by a
majority vote of a quorum consisting of directors not parties to such action,
suit or proceeding; or (2) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel, in written opinion, selected by the Board of Directors; or (3) by the
Shareholders. In the event a determination is made under this sub-section (c)
that the director, officer, employee or agent has met the applicable standard of
conduct as to some matters but not as to others, amounts to be indemnified may
be reasonably prorated.
(d) Expenses incurred by a person who is or was a director or officer
of the Corporation in appearing at, participating in or defending any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, shall be paid by the Corporation at
reasonable intervals in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized by this Article VI.
In addition, the Corporation shall pay or reimburse expenses incurred by any
person who is or was a director or officer of the Corporation in connection with
such person's appearance as a witness or other participant in a proceeding in
which such person or the Corporation is not a named party to such proceeding,
provided that such appearance or participation is on behalf of the Corporation
or by reason of his capacity as a director or officer, or former director or
officer of the Corporation.
(e) If in a suit or proceeding for indemnification required under this
Article VI of a director or officer, or former director or officer, of the
Corporation or any of its affiliates, a court of competent jurisdiction
determines that such person is entitled to indemnification under this Article
VI, the court shall award, and the Corporation shall pay, to such person the
expenses incurred in securing such judicial determination.
(f) It is the intention of the Corporation to indemnify the persons
referred to in this Article VI to the fullest extent permitted by law and with
respect to any action, suit or proceeding arising from events which occur at any
time prior to or during which this Article VI is in effect. The indemnification
and advancement of expenses provided by this Article VI shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be or become entitled under any law, the Articles of
Incorporation, these Bylaws, agreement, the vote of Shareholders or
disinterested directors or otherwise, or under any policy or policies of
insurance purchased and maintained by the Corporation on behalf of any such
person, both as to action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such person.
(g) The indemnification provided by this Article VI shall be subject to
all valid and applicable laws, and, in the event this Article VI or any of the
provisions hereof or the indemnification contemplated hereby are found to be
inconsistent with or contrary to any such valid laws, the latter shall be deemed
to control and this Article VI shall be regarded as modified accordingly, and,
as so modified, to continue in full force and effect.
14
<PAGE>
ARTICLE VII
Capital Stock
SECTION 7.1 CERTIFICATES OF STOCK. Certificates of stock shall be
issued to each Shareholder certifying the number of shares owned by him in the
Corporation and shall be in a form not inconsistent with the Articles of
Incorporation and as approved by the Board of Directors. The certificates shall
be signed by the Chairman of the Board, the Chief Executive Officer, the
President or a Vice President and by the Secretary or an Assistant Secretary, or
the Treasurer or an Assistant Treasurer and may be sealed with the seal of the
Corporation or a facsimile thereof. Any or all of the signatures on the
certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
If the Corporation shall be authorized to issue more than one (1) class
of stock or more than one (1) series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided by statute, in lieu of the foregoing requirements, there may
be set forth on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, a statement that the
Corporation will furnish without charge to each Shareholder who so requests the
powers, designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights. The Board of
Directors shall have the power and authority to provide that certificates
representing shares of stock of the Corporation bear such legends and statements
as the Board of Directors deems appropriate in connection with the requirements
of federal or state securities laws or other applicable laws.
SECTION 7.2 LOST CERTIFICATES. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the owner of such certificate, or his legal
representative. When authorizing the issuance of a new certificate, the Board of
Directors may in its discretion, as a condition precedent to the issuance
thereof, require the owner, or his legal representative, to give a bond in such
form and substance with such surety as it may direct, to indemnify the
Corporation against any claim that may be made on account of the alleged loss,
theft or destruction of such certificate or the issuance of such new
certificate.
SECTION 7.3 FIXING DATE FOR DETERMINATION OF SHAREHOLDERS OF RECORD FOR
CERTAIN PURPOSES. (a) In order that the Corporation may determine the
Shareholders entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of capital stock or for the purpose of any other
lawful action, the Board of Directors may fix, in advance, a record date, which
shall not be more than 60 days prior to the date of payment of such dividend or
other distribution or allotment of such rights or the date when any such rights
in respect of any change, conversion or exchange of stock may be exercised or
the date of such other action. In such a case, only Shareholders of record on
the date so fixed shall be entitled to receive any such dividend or other
distribution or allotment of rights or to exercise such rights or for any other
15
<PAGE>
purpose, as the case may be, notwithstanding any transfer of any stock on the
books of the Corporation after any such record date fixed as aforesaid.
(b) If no record date is fixed, the record date for determining
Shareholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
SECTION 7.4 DIVIDENDS. Subject to the provisions of the Articles of
Incorporation, if any, and except as otherwise provided by law, the directors
may declare dividends upon the capital stock of the Corporation as and when they
deem it to be expedient. Such dividends may be paid in cash, in property or in
shares of the Corporation's capital stock. Before declaring any dividend the
Directors may set apart out of the funds of the Corporation available for
dividend such sum or sums as the directors from time to time in their discretion
think proper for working capital or as a reserve fund to meet contingencies or
for equalizing dividends, or for such other purposes as the directors shall
determine to be conducive to the interests of the Corporation and the directors
may modify or abolish any such reserve in the manner in which it was created.
SECTION 7.5 REGISTERED SHAREHOLDERS. Except as expressly provided by
law, the Articles of Incorporation and these Bylaws, the Corporation shall be
entitled to treat registered Shareholders as the only holders and owners in fact
of the shares standing in their respective names and the Corporation shall not
be bound to recognize any equitable or other claim to or interest in such shares
on the part of any other person, regardless of whether it shall have express or
other notice thereof.
SECTION 7.6 TRANSFER OF STOCK. Transfers of shares of the capital stock
of the Corporation shall be made only on the books of the Corporation by the
registered owners thereof, or by their legal representatives or their duly
authorized attorneys. Upon any such transfers the old certificates shall be
surrendered to the Corporation by the delivery thereof to the person in charge
of the stock transfer books and ledgers, by whom they shall be canceled and new
certificates shall thereupon be issued.
SECTION 7.7 STOCK OPTIONS, WARRANTS, ETC. Unless otherwise expressly
prohibited in the resolutions of the Board of Directors creating any class or
series of preferred stock of the Corporation, the Board of Directors shall have
the power and authority to create and issue (whether or not in connection with
the issue and sale of any stock or other securities of the Corporation),
warrants, rights or options entitling the holders thereof to purchase from the
Corporation any shares of capital stock of the Corporation of any class or
series or any other securities of the Corporation for such consideration and to
such persons, firms or Corporations as the Board of Directors, in its sole
discretion, may determine setting aside from the authorized but unissued stock
of the Corporation the requisite number of shares for issuance upon the exercise
of such warrants, rights or options. Such warrants, rights and options shall be
evidenced by one or more instruments approved by the Board of Directors. The
Board of Directors shall be empowered to set the exercise price, duration, time
for exercise and other terms of such warrants, rights and operations; provided,
however, that the consideration to be received for any shares of capital stock
subject thereto shall not be less than the par value thereof.
ARTICLE VIII
Miscellaneous Provisions
SECTION 8.1 CORPORATE SEAL. If one be adopted, the corporate seal shall
have inscribed thereon the name of the Corporation and shall be in such form as
may be approved by the Board of Directors. Said seal may be used by causing it
or a facsimile thereof to be impressed or affixed or in any manner reproduced.
SECTION 8.2 FISCAL YEAR. The fiscal year of the Corporation shall be
the calendar year unless changed by resolution of the Board of Directors.
16
<PAGE>
SECTION 8.3 CHECKS, DRAFTS, NOTES. 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 (whether general or special) of the Board of Directors
or may be prescribed by any officer or officers, or any officer and agent
jointly, thereunto duly authorized by the Board of Directors.
SECTION 8.4 CORPORATE CONTRACTS AND INSTRUMENTS. Subject always to the
specific directions of the Board of Directors, the Chairman of the Board (if
any), the Chief Executive Officer, the President, any Vice President, the
Secretary or the Treasurer may enter into contracts and execute instruments in
the name and on behalf of the Corporation. The Board of Directors and, subject
to the specific directions of the Board of Directors, the Chairman of the Board
(if any), the Chief Executive Officer or the President may authorize one or more
officers, employees or agents of the Corporation to enter into any contact or
execute any instrument in the name of and on behalf of the Corporation, and such
authority may be general or confined to specific instances.
SECTION 8.5 NOTICE AND WAIVER OF NOTICE. Whenever notice is required to
be given to any director or Shareholder under the provisions of applicable law,
the Articles of Incorporation or of these Bylaws it shall not be construed to
only mean personal notice, rather, such notice may also be given in writing, by
mail, addressed to such director or Shareholder at his address as it appears on
the records of the Corporation, with postage thereon prepaid (unless prior to
the mailing of such notice he shall have filed with the Secretary of the
Corporation a written request that notices intended for him be mailed to some
other address in which case, such notice shall be mailed to the address
designated in the request), and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by telegram, cable or other form of recorded
communication, by personal delivery or by telephone. Whenever notice is required
to be given under any provision of law, the Articles of Incorporation or these
Bylaws, a waiver thereof in writing, by telegraph, cable or other form of
recorded communication, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver of notice
of such meeting, except when the person attends a meeting for the express
purpose of objecting at the beginning of the meeting, to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the Shareholders, directors, or members of a committee of
directors need be specified in any written waiver of notice unless so required
by the Articles of Incorporation or these Bylaws.
SECTION 8.6 EXAMINATION OF BOOKS AND RECORDS. The Board of Directors
shall determine from time to time whether, and if allowed, when and under what
conditions and regulations the accounts and books of the Corporation (except
such as may by statute be specifically opened to inspection) or any of them
shall be open to inspection by the Shareholders, and the Shareholders' rights in
this respect are and shall be restricted and limited accordingly.
SECTION 8.7 VOTING UPON SHARES HELD BY THE CORPORATION. Unless
otherwise provided by law or by the Board of Directors, the Chairman of the
Board of Directors, if one shall be elected, or the Chief Executive Officer, if
a Chairman of the Board of Directors shall not be elected, acting on behalf of
the Corporation, shall have full power and authority to attend and to act and to
vote at any meeting of Shareholders of any corporation in which the Corporation
may hold stock and, at any such meeting, shall possess and may exercise any and
all of the rights and powers incident to the ownership of such stock which, as
the owner thereof, the Corporation might have possessed and exercised, if
present. The Board of Directors by resolution from time to time may confer like
powers upon any person or persons.
17
<PAGE>
ARTICLE IX
Amendments
SECTION 9.1 AMENDMENT. Except as otherwise expressly provided in the
Articles of Incorporation, the directors, by the affirmative vote of a majority
of the entire Board of Directors and without the assent or vote of the
Shareholders, may at any meeting, provided the substance of the proposed
amendment shall have been stated in the notice of the meeting, make, repeal,
alter, amend or rescind any of these Bylaws. The Shareholders shall not make,
repeal, alter, amend or rescind any of the provisions of these Bylaws except by
the holders of not less than 80% of the total voting power of all shares of
stock of the Corporation entitled to vote in the election of directors,
considered for purposes of this Article IX as one class.
18
<PAGE>
EXHIBIT 3
COMMON STOCK COMMON STOCK
Incorporated Under The Laws CUSIP 358430 10 6
Of The State of Mississippi See Reverse for
Certain Definitions
FRIEDE GOLDMAN INTERNATIONAL INC.
THIS CERTIFIES THAT
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF THE PAR VALUE
OF $.01 each of
FRIEDE GOLDMAN INTERNATIONAL INC. transferable on the books of the Corporation
by the holder hereof, in person or by duly authorized attorney upon surrender of
this Certificate to properly endorsed. This Certificate is not valid unless
countersigned and registered by the Transfer Agent and Registrar. The shares
represented hereby are issued and shall be held subject to the provisions of the
Articles of Incorporation, copies of which are on file with the Transfer Agent,
to all of which the holder by acceptance hereby assents.
Witness the facsimile signatures of its duly authorized officers and
the facsimile seal of the Corporation.
Dated:
James A. Lowe, III J.L. Holloway
SECRETARY PRESIDENT
1
<PAGE>
FRIEDE GOLDMAN INTERNATIONAL INC.
The Corporation will furnish upon request and without change to each
shareholder who so requests the designations, relative rights, preferences and
limitations applicable to each class of stock of the Corporation 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) of each class of stock of the Corporation. Such requests may be made to
the Corporation or to its Transfer Agent and Registrar.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be constructed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT-__ Custodian ____
TEN ENT - as tenants by the entireties (cust) (minor)
JT TEN - as joint tenants with right under Uniform Gifts to Minors
of survivorship and not as Act______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
For Value Received, _____________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS,INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Shares
- --------------------------------------------------------------------------
of the Stock represented by the within Certificate, and do hereby irrevocably
constitute and appoint
- --------------------------------------------------------------------------------
Attorney to transfer the said stock on the books of the within-named
Corporation, with full power of substitution in the premises.
Dated
---------------
X___________________________________________
(SIGNATURE)
NOTICE:
THE SIGNATURE(S) TO
THIS ASSIGNMENT MUST
CORRESPOND WITH THE
NAME(S) AS WRITTEN
UPON THE FACE OF THE
CERTIFICATE IN EVERY
PARTICULAR WITHOUT X___________________________________________
ALTERATION OR EN- (SIGNATURE)
LARGEMENT OR ANY
CHANGE WHATEVER
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS
AND CREDIT UNIONS WITH MEMBERSHIP IN AN AN
APPROVED SIGNATURE GUARANTEE MEDALLION
PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15.
--------------------------------------------
SIGNATURE(S) GUARANTEED BY:
2
