AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
OMNI ENERGY SERVICES CORP.
The undersigned, acting pursuant to the Business Corporation Law of
Louisiana, adopts the following articles of incorporation.
ARTICLE I
NAME
The name of the corporation is OMNI Energy Services Corp.
ARTICLE II
PURPOSE
The purpose of the Corporation is to engage in any lawful activity for
which corporations may be formed under the Business Corporation Law of
Louisiana.
ARTICLE III
CAPITAL
A. Authorized Stock. The Corporation shall have the authority to issue an
aggregate of 50,000,000 shares of capital stock, of which 45,000,000 shares
shall be Common Stock, $0.01 par value per share, and 5,000,000 shares shall be
Preferred Stock, no par value per share.
B. Preferred Stock. Shares of Preferred Stock may be issued from time to
time in one or more series. Authority is hereby vested in the Board of Directors
of the Corporation to amend these Articles of Incorporation from time to time to
fix the preferences, limitations and relative rights as between the Preferred
Stock and the Common Stock, and to fix variations in the preferences,
limitations and relative rights as between different series of Preferred Stock.
ARTICLE IV
DIRECTORS
A. Number of Directors. The Board of Directors shall consist of such
number of persons as shall be designated from time to time in the by-laws of the
Corporation, or, if not so designated, as may be designated from time to time by
resolution of the Board of Directors, provided that no decrease in the number of
directors shall shorten the term of any incumbent director.
B. Term of Office. Each member of the Board of Directors, other than
those who may be elected by the holders of any class or series of stock having
preference over the Common Stock as to dividends or upon liquidation (whose
terms of office may be determined by the Board of Directors pursuant to Article
III(B)), shall be elected at each subsequent annual meeting of
shareholders for a term expiring at the next succeding annual meeting of
shareholders and shall serve until his successor is duly elected and qualified.
If the Board of Directors shall appoint any director to fill a vacancy on the
Board, whether resulting from an increase in the number of directors or
otherwise, such director shall serve a term to expire at the next succeding
annual meeting of shareholders and shall serve until his successor is duly
elected and qualified.
C. Vacancies. Except as provided in or pursuant to Article IV(F) hereof,
any vacancy on the Board (including any vacancy resulting from an increase in
the authorized number of directors or from a failure of the shareholders to
elect the full number of authorized directors) may, notwithstanding any
resulting absence of a quorum of directors, be filled by a vote of at least two-
thirds of the directors remaining in office, provided that the shareholders
shall have the right to fill the vacancy at any special meeting called for such
purpose prior to any such action by the Board. Vacancies on the Board may be
filled only as provided in this Article IV(C).
D. Removal. Except as provided in or pursuant to Article IV(F) hereof, any
one or more directors may be removed at any time, (1) with or without cause, by
the holders of not less than two-thirds of the Total Voting Power (as defined in
Article VII(C) hereof) that is present or represented at a special meeting of
shareholders called for such purpose, voting together as a single class or (2)
with or without cause, by the affirmative vote of a majority of all of the
directors then constituting the Board of Directors. At the same meeting at which
the directors or shareholders remove one or more directors, a successor or
successors may be elected for the unexpired term of the director or directors
removed. Except as set forth in this Article IV(D), or in any provision of these
Articles of Incorporation relating to removal of directors elected by holders of
Preferred Stock, directors shall not be subject to removal.
E. Board Nominations. Except as provided in or pursuant to Article IV(F)
hereof, only persons who are nominated in accordance with the procedures set
forth in this Article IV(E) shall be eligible for election as directors.
Nominations of persons for election to the Board of Directors of the Corporation
may be made at a meeting of shareholders by or at the direction of the Board of
Directors or by any shareholder of record of the Corporation entitled to vote at
such meeting for the election of directors who complies with the notice
procedures set forth in this Article IV(E). Such nominations, other than those
made by or at the direction of the Board of Directors, shall be made pursuant to
par timely notice in writing to the Secretary of the Corporation. To be timely,
a shareholder's notice shall be delivered to or mailed and received at the
principal office of the Corporation not less than 45 days nor more than 90 days
prior to the meeting; provided, however, that in the event that less than 55
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
at the principal executive offices of the Corporation no later than the close of
business on the tenth day following the day on which such notice of the date of
the meeting was mailed or such public disclosure was made. Such shareholder's
notice shall set forth or include the following:
1. as to each person whom the shareholder proposes to nominate for
election or re-election as a director, (a) the name, age, business address
and residential address of such person, (b) the principal occupation or
employment of such person, (c) the class and number of shares of capital
stock of the Corporation of which such person is the beneficial owner (as
defined in Rule 13d-3 promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange "Act")), (d) such person's written consent
to being named in the proxy statement as a nominee and to serve as a
director if elected and (e) any other information relating to such person
that would be required to be disclosed in solicitations of proxies for the
election of directors, or would be otherwise required, in each case
pursuant to Regulation 14A promulgated under the Exchange Act; and
2. as to the shareholder of record giving the notice, (a) the name and
address of such shareholder and (b) the class and number of shares of
capital stock of the Corporation of which such shareholder is the
beneficial owner (as defined in Rule 13d-3 promulgated under the Exchange
Act). If requested in writing by the Secretary of the Corporation at least
15 days in advance of the meeting, such shareholder shall disclose to the
Secretary, within ten days of such request, whether such person is the sole
beneficial owner of the shares held of record by him, and, if not, the name
and address of each other person known by the shareholder of record to
claim or have a beneficial interest in such shares.
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. If a shareholder seeks to nominate
one or more directors, the Secretary shall appoint two inspectors, who shall not
be affiliated with the Corporation, to determine whether the shareholder has
complied with this Article IV(E). If the inspectors shall determine that the
shareholder has not complied with this Article IV(E), the defective nomination
shall be disregarded and the inspectors shall direct the Chairman of the meeting
to declare at the meeting that such nomination was not made in accordance with
the procedures prescribed by the Articles of Incorporation.
F. Directors Elected by Preferred Shareholders. Notwithstanding anything
in these Articles of Incorporation to the contrary, whenever the holders of any
one or more classes or series of stock having a preference over the Common Stock
as to dividends or upon liquidation shall have the right, voting separately as a
class, to elect one or more directors of the Corporation, the provisions of
these Articles of Incorporation (as they may be duly amended from time to time)
fixing the rights and preferences of such preferred stock shall govern with
respect to the nomination, election, term, removal, vacancies or other related
matters with respect to such directors.
ARTICLE V
BY-LAWS
A. Adoption, Amendment and Repeal. The By-laws of the Corporation and of
any provision thereof may be adopted only by a majority vote of all directors
who constitute the Board of Directors. The By-laws and any provision thereof may
be amended or repealed only by (1) a majority vote of all directors who
constitute the Board of Directors, or (2) the affirmative vote of the holders of
at least two-thirds of that portion of the Total Voting Power, as defined in
Article VII(C) hereof, voting together as a single class, that is present or
represented at any regular or special meeting of shareholders, the notice of
which meeting of shareholders expressly states that the proposed amendment or
repeal is to be considered at the meeting.
B. New Matters. Any purported amendment to the By-laws which would add
thereto a matter not expressly covered in the By-laws prior to such purported
amendment shall be deemed to constitute the adoption of a By-law provision and
not an amendment to the By-laws.
ARTICLE VI
APPLICATION OF CERTAIN LAWS
The Corporation hereby elects not to be governed by Sections 132, 133 and
134 of the Louisiana Business Corporation Law (La.R.S. 12:132, La.R.S. 12:133
and La.R.S. 12:134).
ARTICLE VII
SPECIAL SHAREHOLDER VOTING REQUIREMENTS
A. Amendments. Unless approved by vote of a majority of all directors
constituting the Board of Directors, Articles IV, V, VI, VII and X of the
Articles of Incorporation may be amended only by the affirmative vote of not
less than eighty percent of the Total Voting Power of the Corporation. Except as
set forth in Article VIII(E), shareholders may, by the affirmative vote of a
majority of the voting power present or represented at a meeting of
shareholders, adopt any amendment to the Articles of Incorporation that does not
affect any of such articles; provided, that shareholder approval shall not be
required for any amendment authorized by Article III(B).
B. Other Corporate Actions. If a vote of shareholders is required to
authorize an agreement of merger or consolidation of the Corporation, the sale
of all or substantially all of the assets of the Corporation or the voluntary
dissolution of the Corporation, then (1) unless such action has been approved by
vote of a majority of all directors constituting the Board of Directors, such
action may be authorized only by the affirmative vote of eighty percent of the
Total Voting Power of the Corporation and (2) if any such action has been
approved by vote of at least two-thirds of all directors who constitute the
Board of Directors, such action may be authorized by the affirmative vote of a
majority of the voting power present or represented at a meeting of
shareholders.
C. Total Voting Power. The term "Total Voting Power" means the total
number of votes that shareholders, and holders of any bonds, debentures or other
obligations granted voting rights by the Corporation pursuant to La.R.S.
12:75(H), are generally entitled to cast with respect to the election of
directors or, if such term is used with reference to any other particular matter
properly brought before the shareholders or such other holders for their
consideration and vote, means the total number of such votes that are entitled
to be cast with respect to such matter.
D. Foreign Ownership of Common Stock. (1) For purposes of this paragraph
D, the following terms shall have the meanings specified below:
"Act" means the Federal Aviation Administration Authorization Act
of 1994, as amended.
"Beneficial Ownership," "Beneficially Owned," or "Beneficially
Own" refers to beneficial ownership as defined in Rule 13d-3 (without
regard to the 60-day provision in paragraph (d)(1)(i) thereof)
promulgated by the Securities and Exchange Commission as such rule may
be amended from time to time.
"FAA" means the Federal Aviation Administration.
"Non-Citizen Owned Shares" means any issued and outstanding Voting
Securities that are owned of record, Beneficially Owned, or otherwise
controlled by any Person or Persons who are not United States Citizens.
"Permitted Percentage" means one percent less than the percentage
of the voting interest in the Corporation that may be owned or
controlled by Persons who are not United States Citizens without loss,
under Section 40102(a)(15) of Title 49 of the United States Code or any
successor or other applicable law or regulation, of the United States
Citizen status of the Corporation or any Subsidiary.
"Person" means any individual, corporation, partnership, trust or
other entity of any nature whatsoever.
"Subsidiary" means any corporation of which a majority of any
class of equity security is owned, directly or indirectly, by the
Corporation.
"United States Citizen" means any Person who is a Citizen of the
United States as defined in Section 40102(a)(15) of Title 49 of the
United States Code, as in effect on the date in question, or any
successor statute or regulation.
"Voting Securities" means the Common Stock, any other voting stock
of the Corporation, and any bonds, debentures or other obligations
granted voting rights by the Corporation pursuant to La. R.S. 12:75(H).
(2) The Corporation holds operating certificates issued by the FAA
pursuant to the regulations promulgated under the Act, and the Board and
shareholders deem the retention of the Corporation's rights under such
certificate to be of material importance to the Corporation. As long as the
Corporation holds, or the Board deems it desirable for the Corporation to
hold, its current operating certificates or any other certificate issued by
the FAA pursuant to the Act and the regulations promulgated thereunder or
any successor statute or regulation, it shall be the Corporation's policy
that the number of Non-Citizen Owned Shares shall not exceed the Permitted
Percentage.
(3) If at any time the voting interest of Non-Citizen Owned Shares
exceeds the Permitted Percentage, then (i) the voting power otherwise
attributable to each Non-Citizen Owned Share shall be immediately and
automatically reduced on a pro rata basis (based on the proportion of the
voting power otherwise attributable to such Non-Citizen Owned Share to the
total voting power attributable to all Non-Citizen Owned Shares) without
any further action by the Corporation so that the maximum number of votes
that may be cast by the holders of all Non-Citizen Owned Shares shall equal
the Permitted Percentage and (ii) the total voting power of any affected
class or series of Voting Securities shall also be immediately and
automatically reduced without any further action by the Corporation by the
total number of votes by which the voting power of Non-Citizen Owned Shares
of such class or series was reduced pursuant to clause (i) of this
subparagraph (3).
(4) In determining the citizenship of any Person who Beneficially Owns
Voting Securities, the Corporation may rely on the Corporation's stock
transfer records and the citizenship provided by any Person shown as the
record owner and any Person who the Corporation has reasonable cause to
believe Beneficially Owns such Voting Securities. The Board may establish
procedures to monitor the Beneficially Ownership and control of Voting
Securities, to make any reasonable determination regarding the Beneficial
Ownership and control of Voting Securities, and to take any actions deemed
necessary or desirable to ensure that the voting interest of Non-Citizen
Owned Shares does not exceed the Permitted Percentage. The Board may, but
unless expressly provided otherwise is not required to, rely on any
statutes, regulations, policies, procedures, rulings, or determinations of
the FAA, or any successor governmental authority, in deciding the extent to
which Voting Securities are Beneficially Owned or controlled by United
States Citizens.
(5) The Corporation may by notice in writing (which may be included in
a proxy or ballot distributed to the Corporation's shareholders) require
any Person that is a holder of record of Voting Securities or that the
Corporation has reasonable cause to believe Beneficially Owns or controls
Voting Securities to certify in such manner as the Corporation
shall deem appropriate (including execution of a proxy or ballot) that, to
the knowledge of such Person:
(a) all Voting Securities owned of record, Beneficially Owned, or
controlled by such Person are owned and controlled only by United
States Citizens; or
(b) the number and class or series of Non-Citizen Owned Shares
owned of record, Beneficially Owned, or controlled by such Person are
as set forth in such certificate.
The Corporation may require any Person certifying as to the ownership or
control of Voting Securities in response to clause (a) of this subparagraph
(5) to provide such further information as the Corporation may reasonably
request in order to implement the provisions of this paragraph B. If any
Person fails to provide such certificate or other information, the
Corporation may presume that all such Voting Securities are Non-Citizen
Owned Shares.
ARTICLE VIII
LIMITATION OF LIABILITY AND INDEMNIFICATION
A. Limitation of Liability. No director or officer of the Corporation
shall be liable to the Corporation or to its shareholders for monetary damages
for breach of his fiduciary duty as a director or officer, provided that the
foregoing provision shall not eliminate or limit the liability of a director or
officer for (1) any breach of his duty of loyalty to the Corporation or its
shareholders; (2) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (3) liability for unlawful
distributions of the Corporation's assets to, or redemptions or repurchases of
the Corporation's shares from shareholders of the Corporation, under and to the
extent provided in La.R.S. 12:92(D); or (4) any transaction from which he
derived an improper personal benefit. If, after the date hereof, the Louisiana
Business Corporation Law is amended to authorize further elimination or
limitation of the personal liability of directors or officers, then the
liability of a director or an officer of the Corporation shall be eliminated or
limited to the fullest extent permitted by the Louisiana Business Corporation
Law, as so amended.
B. Indemnification. Subject to such limitations as may be determined by
the Board of Directors (provided that no change in such limitations may
adversely affect any claim to indemnification that arises prior to such change),
the Corporation shall indemnify each of its directors to the full extent from
time to time permitted by law, and may so indemnify each of its officers,
against any expenses or costs, including fees, actually or reasonably incurred
by him in connection with any threatened, pending or completed claim action,
suit or proceeding, whether criminal, civil, administrative or investigative
against such person or as to which he is involved solely as a witness or person
required to give evidence
C. Authorization of Further Actions. The Board of Directors may (1) cause
the Corporation to enter into contracts with its directors and officers
providing for the limitation of liability set forth in this Article to the
fullest extent permitted by law, (2) adopt By-laws or resolutions, or cause the
Corporation to enter into contracts, providing for indemnification of directors
and officers of the Corporation and other persons (including but not limited to
directors and officers of the Corporation's direct and indirect subsidiaries) to
the fullest extent permitted by law and (3) cause the Corporation to exercise
the powers set forth in La.R.S. 12:83F, notwithstanding that some or all of the
members of the Board of Directors acting with respect to the foregoing may be
parties to such contracts or beneficiaries of such By-laws or resolutions or the
exercise of such powers. No repeal or amendment of any such By-laws or
resolutions limiting the right to indemnification thereunder shall affect the
entitlement of any person to indemnification whose claim thereto results from
conduct occurring prior to the date of such repeal or amendment.
D. Subsidiaries. The Board of Directors may cause the Corporation to
approve for its direct and indirect subsidiaries limitation of liability and
indemnification provisions comparable to the foregoing.
E. Amendment. In addition to any other votes required by law or these
Articles of Incorporation (and notwithstanding the fact that a lesser percentage
may be specified by law or these Articles of Incorporation), the affirmative
vote of the holders of at least 80% of the Total Voting Power shall be required
to repeal this Article or to amend this Article so as to reduce the limitation
of liability set forth herein or the rights to indemnification of any person or
the powers of the Board of Directors provided in this Article, and any amendment
or repeal of this Article shall not adversely affect any indemnification or
limitation of liability of a director or officer of the Corporation under this
Article with respect to any action or inaction occurring prior to the time of
such amendment or repeal.
ARTICLE IX
REVERSION
Cash, property or share dividends, shares issuable to shareholders in
connection with a reclassification of stock, and the redemption price of
redeemed shares, that are not claimed by the shareholders entitled thereto
within one year after the dividend or redemption price became payable or the
shares became issuable, despite reasonable efforts by the Corporation to pay the
dividend or redemption price or deliver the certificates for the shares to such
shareholders within such time, shall at the expiration of such time, revert in
full ownership to the Corporation, and the Corporation's obligation to pay such
dividend or redemption price or issue such shares, as the case may be, shall
thereupon cease; provided, however, that the Board of Directors may, at any
time, for any reason satisfactory to it, but need not, authorize (1) payment of
the amount of any cash or property dividend or redemption price or (2) issuance
of any shares, ownership of which has reverted to the Corporation pursuant to
this Article, to the person or entity who or which would be entitled thereto had
such reversion not occurred.
ARTICLE X
SPECIAL MEETINGS OF SHAREHOLDERS
A. Special meetings of shareholders, for any purpose or purposes, may be
called in any manner set forth in the By-laws, provided that the power of
shareholders as such to call or cause to be called special meetings shall be
governed exclusively by paragraph B of this Article.
B. At any time, upon the written request of any shareholder or group of
shareholders holding in the aggregate at least a majority of the Total Voting
Power, the Secretary of the Corporation shall call a special meeting of
shareholders to be held at the registered office of the Corporation at such time
as the Secretary may fix not less than 15 nor more than 60 days after the
receipt of said request, and if the Secretary shall neglect or refuse to fix
such time or to give notice of the meeting, the shareholder or shareholders
making the request may do so. Such requests must state the specific purpose or
purposes of the proposed special meeting, and the business to be conducted
thereat shall be limited to such purpose or purposes.
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
of
OMNI ENERGY SERVICES CORP.
Pursuant to Section 33 of the Louisiana Business Corporation Law and
Article IIIB of the Articles of Incorporation, OMNI Energy Services Corp.,
a Louisiana corporation (the "Company"), acting through its undersigned
President and Secretary, does hereby certify that the Board of Directors of
the Company, acting through a unanimous written consent dated April 19,
2000, duly adopted resolutions approving an amendment to the Company's
Articles of Incorporation to add the following as Section B(I) to Article
III of the Company's Articles of Incorporation:
B(I). SERIES A 8% CONVERTIBLE PREFERRED STOCK. The Company's Series A
8% Convertible Preferred Stock, no par value per share (the "8% Convertible
Preferred Stock") shall consist of 5,000 shares of Preferred Stock having
the preferences, limitations and relative rights set forth below. Such
number of shares may be increased or decreased at any time by resolution of
the Board of Directors; provided, however, that no decrease shall reduce
the number of shares of 8% Convertible Preferred Stock to a number less
than the number of shares then outstanding plus the number of shares
reserved for issuance upon the exercise of outstanding options, rights,
warrants, or other securities of the Company that are convertible or
exchangeable into shares of 8% Convertible Preferred Stock.
Section (A). LIQUIDATION. Upon the voluntary or involuntary
liquidation, winding up or dissolution of the Company, out of the assets
available for distribution to shareholders, the 8% Convertible Preferred
Stock shall be entitled to receive, in preference to any payment to the
holders of the Company's Common Stock and any other stock of the Company
ranking junior to the 8% Convertible Preferred Stock as to dividends or the
distribution of assets upon liquidation, dissolution or the winding up of
the affairs of the Company (the Common Stock and any such other junior
stock is referred to herein as "Junior Stock"), $1,000.00 per share plus an
amount equal to all dividends (whether or not declared or due) accrued and
unpaid on each such share up to the date fixed for distribution (the
"Preferred Liquidation Value"). After the Preferred Liquidation Value due
to the holders of the 8% Convertible Preferred Stock has been paid, the
remaining assets of the Company shall be paid to the holders of Junior
Stock in accordance with their respective priority, if any. In the event
the net assets of the Company are insufficient to pay the holders of the 8%
Convertible Preferred Stock the full amount of Preferred Liquidation Value
then due, then the net assets of the Company shall be divided among and
paid to the holders of the shares of 8% Convertible Preferred Stock ratably
in proportion to the Preferred Liquidation Value to which each is entitled,
and the holders of Junior Stock shall receive nothing.
Section (B). DIVIDENDS. (i) The 8% Convertible Preferred Stock is
entitled to receive, out of legally available funds, cumulative dividends
from the issuance date thereof at the per share rate of EIGHTY DOLLARS
($80.00) per year. Dividends on the 8% Convertible Preferred Stock shall
be payable in equal quarterly installments due on the first business day of
each January, April, July and October while outstanding (each, a "Dividend
Payment Date") commencing on July 1, 2000, to each holder of record at the
start of business on such Dividend Payment Date. Dividends shall begin to
accrue on outstanding shares of 8% Convertible Preferred Stock and to
accumulate from the issuance date of such shares whether or not declared or
due , but dividends for any period less than a full quarterly period
between Dividend Payment Dates shall be computed on the basis of a 365-day
year for the actual number of days elapsed.
(ii) So long as any shares of 8% Convertible Preferred Stock
shall be outstanding, the Company shall not, unless full cumulative
dividends for all past dividend periods shall have been paid or declared
and set apart for payment upon all outstanding shares of the 8% Convertible
Preferred Stock, (1) declare, pay or set apart any amount for dividends on,
or make any other distribution in cash or other property in respect of any
shares of Junior Stock other than a dividend payable solely in Junior
Stock, (2) purchase, redeem or otherwise acquire for value any shares of
Junior Stock, directly or indirectly, other than as a result of
reclassification of Junior Stock or the exchange or conversion of one type
of Junior Stock for or into another type of Junior Stock, or other than
through the use of proceeds of a substantially contemporaneous sale of
other Junior Stock, or (3) make any payment on account of, or set aside
money for, a sinking or other like fund for the purchase, redemption or
other acquisition for value of any share of Junior Stock.
(iii) If the funds available for the payment of dividends are
insufficient to pay in full the dividends payable on all outstanding shares
of 8% Convertible Preferred Stock, the total available funds to be paid in
partial dividends on the 8% Convertible Preferred Stock shall be divided
ratably among the outstanding shares of 8% Convertible Preferred Stock.
Accrued dividends shall not bear interest.
Section (C). CONVERSION. The holders of the 8% Convertible Preferred
Stock shall have conversion rights as follows:
(i) DEFINITIONS. For purposes of this Section (C), the
following definitions shall apply:
(1) "Issuance Date" shall mean, with respect to the 8%
Convertible Preferred Stock, the first date on which the Company
issues any shares of such 8% Convertible Preferred Stock.
(2) "Conversion Price" shall mean, with respect to the 8%
Convertible Preferred Stock, the price, determined pursuant to this
Section (C), at which shares of Common Stock shall be deliverable upon
conversion of shares of such 8% Convertible Preferred Stock into
Common Stock.
(ii) RIGHT TO CONVERT. Each share of 8% Convertible Preferred
Stock shall be convertible, at the option of the holder thereof, at any
time after its date of issuance until the close of business on the date on
which such share is redeemed by the Company pursuant to Section (E), into
such number of fully paid and non-assessable shares of Common Stock as
determined by dividing the Preferred Liquidation Value (calculated
including accumulated and unpaid dividends thereon up to the date of
conversion) by the Conversion Price in effect at the time of conversion.
For purposes of determining the number of shares of Common Stock into which
the 8% Convertible Preferred Stock is convertible, the initial Conversion
Price shall be $2.50. If, prior to the conversion outlined above, the
Company shall issue any shares of Preferred Stock senior to the 8%
Convertible Preferred Stock with respect to dividends or the distribution
of assets upon liquidation, dissolution or the winding up of the affairs of
the Company, the 8% Convertible Preferred Stock shall automatically convert
into such number of shares of the newly-issued Preferred Stock having a
total liquidation preference (determined in accordance with the terms of
such newly-issued Preferred Stock) equal to the sum total of the Preferred
Liquidation Value of all shares of 8% Convertible Preferred Stock so
converted at that time. This conversion shall be automatic and shall not
require any further action on the part of the Company or the holders of the
8% Convertible Preferred Stock.
(iii) MECHANICS OF CONVERSION. Each holder of 8% Convertible
Preferred Stock who desires to convert its shares of 8% Convertible
Preferred Stock into shares of Common Stock pursuant to this Section (C)
shall surrender the certificate or certificates evidencing such shares,
duly endorsed, at the office of the Company or any transfer agent for the
8% Convertible Preferred Stock together with written notice stating the
number of shares of 8% Convertible Preferred Stock being converted. Such
conversion shall be deemed to have been made at the close of business on
the date of such surrender of the certificates evidencing the shares of 8%
Convertible Preferred Stock to be converted, and the person entitled to
receive the shares of Common Stock issuable upon such conversion shall be
treated for all purposes as the record holder of such shares of Common
Stock on such date.
(iv) ADJUSTMENTS TO CONVERSION PRICE. The Conversion Price for
the 8% Convertible Preferred Stock shall be subject to adjustment from time
to time as follows:
(1) If after the date hereof the number of outstanding
shares of Common Stock is increased by a stock dividend payable in
shares of Common Stock or by a split-up of shares of Common Stock or
other similar event, then, on the effective date thereof, the number
of shares of Common Stock issuable upon conversion of shares of 8%
Convertible Preferred Stock shall be increased in proportion to such
increase in outstanding shares, and the then applicable Conversion
Price shall be correspondingly decreased.
(2) If after the date hereof the number of outstanding
shares of Common Stock is decreased by a consolidation, combination or
reclassification of shares of Common Stock or other similar event,
then, upon the effective date of such consolidation, combination or
reclassification, the number of shares of Common Stock issuable upon
conversion of shares of 8% Convertible Preferred Stock shall be
decreased in proportion to such decrease in outstanding shares, and
the then applicable Conversion Price shall be correspondingly
increased.
(3) If after the date hereof any capital reorganization or
reclassification of the Common Stock of the Company, or consolidation
or merger of the Company with another entity (other than a merger with
a wholly-owned subsidiary of the Company or a merger in which the
Company is the surviving entity), or the sale of all or substantially
all of its assets to another entity or other similar event shall be
effected, then as a condition of such reorganization,
reclassification, consolidation, merger, or sale, lawful and fair
provision shall be made whereby the holders of shares of 8%
Convertible Preferred Stock shall thereafter have the right to convert
shares of 8% Convertible Preferred Stock and receive, upon the basis
and upon the terms and conditions specified in this Section B(I) of
Article III and in lieu of the shares of Common Stock of the Company
immediately theretofore receivable upon the conversion of shares of 8%
Convertible Preferred Stock, such shares of stock, securities, assets
or other consideration as may be issued or payable with respect to or
in exchange for the number of outstanding shares of such Common Stock
immediately theretofore receivable upon the conversion of share of 8%
Convertible Preferred Stock, had such reorganization,
reclassification, consolidation, merger, or sale not taken place and
in such event appropriate provision shall be made with respect to the
rights and interests of the holder to the end that the provisions
hereof shall thereafter be applicable, as nearly as may be in relation
to any share of stock, securities or assets thereafter deliverable
upon the conversion of shares of 8% Convertible Preferred Stock. The
Company shall not effect any consolidation, merger, or sale unless
prior to the consummation thereof the successor entity (if other than
the Company) resulting from such consolidation or merger, or the
corporation purchasing such assets, shall assume by written instrument
executed and delivered to all holders of shares of 8% Convertible
Preferred Stock the obligation to deliver to the holders thereof such
shares of stock, securities, assets or other consideration as, in
accordance with the foregoing provisions, such holders may be entitled
to acquire upon conversion of shares of 8% Convertible Preferred
Stock.
(v) CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence of each
adjustment or readjustment of the Conversion Price pursuant to this Section
(C), the Company shall promptly compute such adjustment or readjustment in
accordance with the terms hereof and furnish to each holder of 8%
Convertible Preferred Stock a certificate, signed by the Company's
President or Chief Financial Officer, setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The Company shall, upon the written request of any
holder of 8% Convertible Preferred Stock, furnish or cause to be furnished
to such holder a like certificate setting forth (1) such adjustments and
readjustments, (2) the Conversion Price at the time in effect, and (3) the
number of shares of Common Stock and the amount, if any, of other property
which at the time would be received upon the conversion of 8% Convertible
Preferred Stock.
(vi) FRACTIONAL SHARES. No fractional shares of Common Stock
shall be issued upon conversion of the 8% Convertible Preferred Stock, and
the number of shares of Common Stock to be issued shall be rounded up to
the nearest whole share. All shares of Common Stock (including fractions
thereof) issuable upon conversion of more than one share of 8% Convertible
Preferred Stock by a holder thereof shall be aggregated for purposes of
determining whether the conversion would result in the issuance of any
fractional share.
(vii) NO IMPAIRMENT. The Company will not, by amendment of its
Articles of Incorporation or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed hereunder by
the Company but will at all times in good faith assist in the carrying out
of all the provisions of this Section (C) and take all such action as may
be necessary or appropriate in order to protect the conversion rights of
the holders of the 8% Convertible Preferred Stock against impairment.
(viii) RESERVATION OF COMMON STOCK ISSUABLE UPON CONVERSION. The
Company shall at all times reserve and keep available out of its authorized
but unissued shares of Common Stock solely for issuance upon the conversion
of shares of 8% Convertible Preferred Stock as herein provided, such number
of shares of Common Stock as, from time to time, shall be issuable upon the
conversion of all the shares of the 8% Convertible Preferred Stock at the
time outstanding.
Section (D). VOTING RIGHTS.
(i) Except as set forth below in Section (H) hereof or as
otherwise provided by Louisiana law, shares of 8% Convertible Preferred
Stock shall not be entitled to a vote. In all cases where the holders of
shares of 8% Convertible Preferred Stock have the right to vote separately
as a class as provided elsewhere herein or otherwise by Louisiana law, such
holders shall be entitled to one vote for each such share held by them
respectively.
(ii) Without the affirmative vote of the holders of not less than
a majority of the shares of 8% Convertible Preferred Stock, voting together
as a single class, the Company shall not:
(1) amend its Articles of Incorporation or any other
document to alter or change any rights, preferences or privileges of
the 8% Convertible Preferred Stock;
(2) authorize another class or series of shares senior to or
ranking pari passu with the 8% Convertible Preferred Stock with
respect to dividends or distribution of assets on liquidation,
dissolution or the winding up of the affairs of the Company; or
(3) purchase, redeem or otherwise acquire any Junior Stock,
either directly or through a subsidiary.
Section (E). REDEMPTION.
(i) The Company shall have the right, at any time and at its
sole option and election, to redeem the shares of 8% Convertible Preferred
Stock, in whole or in part, on such date as may be specified in a notice of
redemption given in accordance with Section (E)(ii) (any such date a
"Redemption Date") at a price per share (the "Redemption Price") equal to
100% of the Preferred Liquidation Value (which includes accrued dividends
thereon, whether or not declared or due, to the applicable Redemption Date)
in immediately available funds.
(ii) Notice of any redemption of shares of 8% Convertible
Preferred Stock shall be mailed at least thirty (30), but not more than
sixty (60), days prior to the applicable Redemption Date to each holder of
the shares of 8% Convertible Preferred Stock to be redeemed, at such
holder's address as it appears on the transfer books of the Company. In
order to facilitate the redemption of shares of 8% Convertible Preferred
Stock, the Board of Directors may fix a record date for the determination
of shares of 8% Convertible Preferred Stock to be redeemed, or may cause
the transfer books of the Company for the 8% Convertible Preferred Stock to
be closed, not more than sixty (60) days or less than ten (10) days prior
to the applicable Redemption Date.
(iii) Notice of redemption having been given as provided in
Section (E)(ii), notwithstanding that any certificates for such shares
shall not have been surrendered for cancellation, from and after the
Redemption Date designated in the notice of redemption (1) the shares
represented thereby shall no longer be deemed outstanding, (2) the rights
to receive dividends thereon shall cease to accrue and (3) all rights of
the holders of shares of 8% Convertible Preferred Stock to be redeemed
shall cease and terminate, excepting only the right to receive the
Redemption Price therefor and the right to convert such shares into shares
of Common Stock (or other series of Preferred Stock) until the close of
business on the applicable Redemption Date, in accordance with Section (C)
hereof.
Section (F). REACQUIRED SHARES. Any shares of 8% Convertible
Preferred Stock converted, exchanged, redeemed, purchased or otherwise
acquired by the Company in any manner whatsoever shall be retired and
canceled promptly after the acquisition thereof. No such shares shall be
reissued.
Section (G). PREEMPTIVE RIGHTS. Except as provided herein, the 8%
Convertible Preferred Stock is not entitled to any preemptive rights in
respect of any securities of the Company
Section (H). AMENDMENT AND WAIVER. The Company may not amend this
Section (B)(I) of its Articles of Incorporation or waive compliance with
any of the provisions hereof without, in either instance, the affirmative
vote (at a meeting) or the written consent (with or without a meeting) of
the holders of a majority of the shares of 8% Convertible Preferred Stock;
provided that no such action will change the dividend rate, the Preferred
Liquidation Value, the Conversion Price or the amount payable on redemption
of the 8% Convertible Preferred Stock without the prior written consent of
each holder of 8% Convertible Preferred Stock.
Section (I). SEVERABILITY OF PROVISIONS. Whenever possible, each
provision hereof shall be interpreted in a manner as to be effective and
valid under applicable law, but if any provision hereof is held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating or otherwise adversely affecting the remaining provisions
hereof. If a court of competent jurisdiction should determine that a
provision hereof would be valid or enforceable if a period of time were
extended or shortened or a particular percentage were increased or
decreased, then such court may make such change as shall be necessary to
render the provision in question effective and valid under applicable law.
