SCHEDULE 14A
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act
of 1934
(Amendment No. )
Filed by the registrant [X]
Filed by a party other than the registrant [ ]
Check the appropriate box:
[X] Preliminary proxy statement
[ ] Definitive proxy statement
[ ] Definitive additional materials
[ ] Soliciting material pursuant to Rule 14a-11(c) or Rule 14a-12
SOUTH ALABAMA BANCORPORATION, INC.
(Name of Registrant as Specified in its Charter)
SOUTH ALABAMA BANCORPORATION, INC.
(Name of Person(s) Filing Proxy Statement)
Payment of filing fee (Check the appropriate box):
[X] $125 per Exchange Act Rule 0-11(c)(1)(ii), 14a-6(i)(1), or
14a-6(i)(2) or Item 22(a)(2) of Schedule 14A.
[ ] $500 per each party to the controversy pursuant to Exchange Act
Rule 14a-6(i)(3).
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4)
and 0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which
the filing fee is calculated and state how it was determined):
_______________________________________________________________________
4) Proposed maximum aggregate value of transaction:
_______________________________________________________________________
5) Total fee paid:
_______________________________________________________________________
[ ] Fee previously paid with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the
offsetting fee was paid previously. Identify the previous filing
by registration statement number, or the form or schedule and the
date of its filing.
1) Amount previously paid:
_______________________________________________________________________
2) Form, schedule or registration statement no.:
_______________________________________________________________________
3) Filing party:
_______________________________________________________________________
4) Date filed:
_____________________________________________________________________
[SOUTH ALABAMA BANCORPORATION, INC. LETTERHEAD]
November 15, 1996
To the Stockholders of
South Alabama Bancorporation, Inc.
Dear Fellow Stockholders:
A special meeting of the Stockholders (the "Special Meeting") of South
Alabama Bancorporation, Inc., a Delaware corporation ("SAB"), will be held at
10:00 a.m., local time, on Friday, December 20, 1996, at 100 Saint Joseph
Street, Mobile, Alabama, 36602. The enclosed notice of special meeting and
proxy statement contain detailed information about the business to be
transacted at the Special Meeting.
You are being asked to consider and approve a proposal (the
"Reincorporation Proposal") which provides, among other things, for the
change of SAB's state of incorporation from Delaware to Alabama through a
merger of SAB into SAB Newco, Inc., an Alabama corporation ("Newco"), in a
transaction in which the surviving corporation will be Newco and the
stockholders of SAB will become owners of all of the outstanding shares of
Newco, and for related changes in SAB's organizational documents. As a part
of the Reincorporation Proposal, upon the effectiveness of the merger
contemplated thereby Newco will change its name to South Alabama
Bancorporation, Inc.
Your Board of Directors believes that the Reincorporation Proposal is in
the best interest of SAB and all of its stockholders and unanimously
recommends that you vote "FOR" this proposal. The Reincorporation Proposal
and the reasons for our recommendations are set forth in the accompanying
Proxy Statement, which you are asked to read at your earliest convenience.
On behalf of the Board of Directors and Management, I cordially invite you
to attend the Special Meeting.
The prompt return of your proxy in the enclosed business return envelope
will save the company additional expenses of solicitation and will help
ensure that as many shares as possible are represented.
Sincerely,
W. Bibb Lamar, Jr.
President and Chief Executive Officer
SOUTH ALABAMA BANCORPORATION, INC.
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD DECEMBER 20, 1996
Notice is hereby given that a Special Meeting of the Stockholders (the
"Special Meeting") of South Alabama Bancorporation, Inc., a Delaware
corporation ("SAB"), will be held at 100 Saint Joseph Street, Mobile,
Alabama, 36602, on Friday, December 20, 1996, at 10:00 a.m. local time, for
the following purposes:
1. To consider and vote upon a proposal (the "Reincorporation
Proposal") which provides, among other things, for the change of SAB's
state of incorporation from Delaware to Alabama through a merger of SAB
into SAB Newco, Inc., an Alabama corporation and a wholly owned subsidiary
of SAB ("Newco"), in a transaction in which the surviving corporation will
be Newco, and the stockholders of SAB will become owners of all of the
outstanding shares of Newco, and for related changes in the company's
organizational documents; and
2. To transact such other business as may properly come before the
Special Meeting or any adjournment or adjournments thereof.
The close of business on November 12, 1996, has been fixed by the Board
of Directors of SAB as the record date for determining the stockholders
entitled to notice of, and to vote at, the Special Meeting.
You are cordially invited to attend the Special Meeting. Whether or not
you plan to attend the Special Meeting, you may ensure your representation
by completing, signing, dating and promptly returning the enclosed Proxy
Card. A return envelope, which requires no postage if mailed in the United
States, has been provided for your use. If you attend the Special Meeting
and inform the secretary of the company in writing that you wish to
vote your shares in person, your proxy will not be used.
By order of the Board of Directors.
________________________________________
F. Michael Johnson, Chief Financial Officer
and Secretary
SOUTH ALABAMA BANCORPORATION, INC.
100 Saint Joseph Street,
Mobile, Alabama 36602
PROXY STATEMENT
Special Meeting of Stockholders,
Friday, December 20, 1996
This Proxy Statement is furnished in connection with the solicitation on
behalf of the Board of Directors of South Alabama Bancorporation, Inc., a
Delaware corporation ("SAB"), of proxies for use at the special meeting of
stockholders (the "Special Meeting") to be held at 100 Saint Joseph Street,
Mobile, Alabama, 36602, on Friday, December 20, 1996, at 10:00 a.m., local
time, and any adjournment or adjournments thereof, for the purposes set
forth in the accompanying Notice of Special Meeting of Stockholders.
This Proxy Statement and the accompanying proxy card are first being
mailed on or about November 15, 1996, to all stockholders of SAB. Only
holders of record of SAB's common stock, $.01 par value (the "SAB Delaware
Shares"), at the close of business on November 12, 1996 (the "Record Date"),
will be entitled to vote at the Special Meeting.
VOTING SECURITIES
As of the Record Date, there were 4,227,136 SAB Delaware Shares
outstanding. Each SAB Delaware share entitles the holder thereof to one
vote. A quorum for the Special Meeting is a majority of the SAB Delaware
Shares outstanding. There are no other voting securities of SAB outstanding.
Approval of the Reincorporation Proposal (defined hereinafter), pursuant
to the Delaware General Corporation Law ("DGCL"), will require the
affirmative vote of the holders of at least a majority of the outstanding
SAB Delaware Shares.
Security Ownership of
Directors,
Nominees, 5% Stockholders and Officers
The only person known to beneficially own more than 5% of SAB's
outstanding Common Stock is Thomas E. McMillan, Jr. The tabulation below
reflects the number of shares beneficially owned by (i) Thomas E. McMillan,
Jr.; (ii) each director and nominee of SAB; (iii) certain executive
officers; and (iv) the directors and officers of SAB, as a group.
<TABLE>
Number of Shares and Nature of Beneficial
Ownership as of October 31, 1996(1)
<CAPTION>
Voting/Investment Power
Percentage of
Name of Beneficial Owner or Group Total
(and Address of 5% Stockholders) Sole Shared Aggregate Outstanding(2)
<S> <C> <C> <C> <C>
Thomas E. McMillan, Jr.
(P.O. Box 809, Brewton, AL 36427) . . . . .72,870(3) 206,306(4) 279,176 6.60%
John B. Barnett, Jr.(5). . . . . . . . . . 71,901 111,807(6) 183,708 4.34
John B. Barnett, III(5). . . . . . . . . . 60,787 114,818(7) 175,605 4.15
Stephen G. Crawford. . . . . . . . . . . . 50,644 19,700(8) 70,344 1.66
Haniel F. Croft. . . . . . . . . . . . . . 1,662 1,662 .03
David C. De Laney. . . . . . . . . . . . . 10,000 18,200(9) 28,200 .66
Lowell J. Friedman . . . . . . . . . . . . 73,533 2,000(10) 75,533 1.78
Broox G. Garrett, Jr.(11). . . . . . . . . 4,361 54,020(12) 58,381 1.38
James P. Hayes, Jr.. . . . . . . . . . . . 3,410 25,079(13) 28,489 .67
Clifton C. Inge. . . . . . . . . . . . . . 25,300 25,300 .59
W. Bibb Lamar, Jr. . . . . . . . . . . . . 26,250(14) 2,450(15) 28,700 .66
J. Richard Miller, III(16) . . . . . . . .111,942(17) 2,500(18) 114,442 2.70
J. Stephen Nelson. . . . . . . . . . . . . 14,281(19) 395(20) 14,676 .34
Earl H. Weaver(11)(16) . . . . . . . . . . 39,614 42,565(21) 82,179 1.94
All directors and officers
of SAB as a group (16 persons) . . . . . .592,666 599,840 1,192,506(22) 27.83%
</TABLE>
(1) The number of shares reflected are shares that, under applicable
regulations, are deemed to be beneficially owned. Shares deemed to be
beneficially owned, under those regulations, include shares as to which,
through any contract, relationship, arrangement, understanding, or
otherwise, either voting power or investment power is held or shared
directly or indirectly. Shares deemed to be beneficially owned also
include shares which may be acquired within sixty days. The total number
of shares beneficially owned is broken down, when applicable, into the
following two categories: (i) shares as to which voting power/investment
power is held solely; and (ii) shares as to which voting power/investment
power is shared. The percentage calculation is based on the aggregate
number of shares beneficially owned.
(2) The percentage calculations for Mr. Lamar and Mr. Nelson assume
that all 38,692 shares subject to their exercisable outstanding options at
October 31, 1996, were outstanding. The percentage calculation for all
directors and officers of SAB, as a group, assumes that all 56,692 shares
subject to exercisable outstanding options at October 31, 1996, were
outstanding.
(3) Includes 29,600 shares owned by Thomas, Ltd., a limited partnership.
Mr. McMillan is managing general partner of the partnership.
(4) Includes 114,956 shares owned by McMillan, Ltd., a limited
partnership of which Mr. McMillan is a managing partner, and 72,036 shares
and 19,314 shares owned by Mr. McMillan as co-trustee under the wills of
his mother and father, respectively.
(5) Mr. Barnett, Jr. is the father of Mr. Barnett, III.
(6) Includes 70,347 shares owned by Mr. Barnett's spouse. Also
includes 41,460 shares owned by Mr. Barnett and Frances B. Turner as
Trustees under the Will of J. B. Barnett, deceased. Mr. Barnett disclaims
beneficial ownership of these shares.
(7) Includes 5,195 shares owned by Mr. Barnett's spouse. Mr. Barnett
disclaims beneficial ownership of these shares. Also includes 9,975 shares
in each of the following trusts: Courtney Clark Barnett Irrevocable Trust;
John Bigham Barnett, IV Irrevocable Trust; Mallory Hayles Barnett
Irrevocable Trust. Also includes 79,698 shares held in the Annie Maud
Barnett Grantor Retained Annuity Trust, which will expire on December 3,
1996, at which time the shares will be divided equally between Mr. Barnett
and his two sisters.
(8) Includes 16,000 shares owned by the trustee of Mr. Crawford's
self-directed subaccount of his law firm's retirement plan. The figure
also includes the following shares as to which Mr. Crawford disclaims any
actual beneficial ownership: 3,000 shares owned by Mr. Crawford as trustee
for his two children; 500 shares owned by his wife; and 200 shares owned by
his wife as custodian for two children under the Uniform Transfers to
Minors Act.
(9) All such shares owned by Management Consultants, Ltd., an Alabama
limited partnership. The trustee of Mr. De Laney's employer's retirement
plan is sole limited partner of the partnership. Mr. De Laney may be
deemed to share voting and investment power with respect to those shares.
(10) Includes 2,000 shares owned by Mr. Friedman's wife, as to which
shares he may be deemed to share voting and investment power.
(11) Mr. Garrett and Mr. Weaver are first cousins.
(12) Includes 2,714 shares owned by Mr. Garrett as custodian for two
children under the Uniform Transfers to Minors Act, 44,822 shares as
trustee of the Broox G. Garrett Family Trust and 6,484 shares owned
jointly with his wife as joint tenants.
(13) All such shares are owned by Mr. Hayes as co-trustee for the
Elizabeth Brannon Hayes Marital Trust.
(14) Includes 26,000 shares subject to purchase within 60 days pursuant
to options granted to Mr. Lamar, as to which he would have sole voting and
investment power.
(15) Includes 1,655 shares owned by the trustee of Mr. Lamar's
self-directed IRA account. The figure also includes 650 shares owned by
Mr. Lamar as custodian under the Uniform Transfers to Minors Act and 145
shares owned by his wife through her self-directed IRA account.
(16) Mr. Miller is Mr. Weaver s wife s first cousin.
(17) Includes 111,452 shares owned by Miller Investments, a general
partnership. Mr. Miller is Managing Partner of the partnership.
(18) All such shares are owned by Mr. Miller as trustee of two separate
trusts of which Mr. Miller's children are the beneficiaries.
(19) Includes 7,692 shares subject to purchase within 60 days pursuant
to options granted to Mr. Nelson, as to which he would have sole voting
and investment power.
(20) All such shares are owned by Mr. Nelson s wife.
(21) Includes 27,698 shares owned by Mr. Weaver's wife as to which Mr.
Weaver disclaims any actual beneficial ownership and 14,867 shares owned
jointly with his wife as tenants in common.
(22) Includes 56,692 shares subject to purchase within 60 days pursuant
to options granted to officers of SAB, as to which they would have sole
voting and investment power.
REINCORPORATION IN ALABAMA
General
Each member of SAB's Board of Directors, for the reasons set forth below,
has approved and recommends that SAB's stockholders approve a proposal
(the "Reincorporation Proposal") which provides, among other things, for
the change of SAB's state of incorporation from Delaware to Alabama. This
change in the state of incorporation (the "Reincorporation") will be
accomplished through a merger (the "Merger") of SAB with and into SAB
Newco, Inc., an Alabama corporation ("Newco"), a wholly owned subsidiary of
SAB which was recently formed as a vehicle to effect the Reincorporation.
(The name of the surviving corporation following the Merger will be South
Alabama Bancorporation, Inc., and reference hereafter to Newco shall, where
appropriate, mean the surviving corporation.)
Stockholders of SAB who do not vote in favor of the Reincorporation
Proposal will not be entitled to appraisal rights under Section 262 of the
DGCL in connection with the Reincorporation Proposal.
Principal
Reasons for the Proposed Reincorporation
SAB was originally incorporated as a Delaware corporation in 1985. SAB
chose Delaware primarily because franchise and related taxes were
substantially less as a Delaware corporation than as an Alabama
corporation. Other factors were Delaware's extensive and well-defined body
of corporate law, its prominence as a state of incorporation and the
greater protection against directors personal liability afforded by
Delaware law. Since that time, however, the Alabama Business Corporation
Act (the "ABCA") has been revised to provide a more comprehensive and
flexible system of corporate laws and to permit broader protection against
director liability.
More significantly, franchise taxes will be substantially less as an
Alabama corporation. SAB paid approximately $26,677.58 in Delaware
domestic corporation and Alabama foreign corporation franchise taxes in
fiscal 1995. The comparable taxes as an Alabama corporation would have
been $1,947.74. Reincorporation into Alabama will also further SAB's
identification with the state in which its headquarters are located and in
which virtually all of its business is conducted. SAB has no operations
in Delaware.
Plan of Merger
SAB will be merged with and into Newco pursuant to the terms of a
proposed Plan of Merger (the "Plan"), a copy of which is attached as
Exhibit A to this Proxy Statement. Upon the completion of the Merger, the
owners of each outstanding share of common stock of SAB will own one (1)
share of common stock of Newco without any action on their part, and each
outstanding certificate representing a share or shares of SAB common stock
will continue to represent the same number of shares of Newco common stock
(i.e., a certificate representing one share of SAB common stock will then
equal one share of Newco common stock). Thus, it will not be necessary for
stockholders of SAB to exchange their existing stock certificates. The
common stock of SAB will continue to be traded on the over-the-counter
market and reported on the NASDAQ market under the SABC symbol subsequent
to the Merger.
The Newco Articles of Incorporation and Bylaws will be the Articles of
Incorporation and Bylaws of the surviving corporation, except that, upon
the effectiveness of the Merger Newco's name will be changed to South
Alabama Bancorporation, Inc. The Articles of Incorporation of Newco are
attached hereto as Exhibit B. The discussion contained in this Proxy
Statement is qualified in its entirety by reference to Exhibits A and B.
Effect of Reincorporation and Merger
The Reincorporation and the Merger will effect a change in the legal
domicile of SAB and other changes of a legal nature, the most significant
of which are described in this Proxy Statement. However, the
Reincorporation and Merger will not result in any change in the name,
business, management, location of SAB's principal executive offices or
other facilities, assets, liabilities, net worth or accounting practices.
In addition, all of the directors, officers and employees of SAB will, upon
consummation of the Merger, become officers, directors and employees of
Newco, and outstanding SAB Delaware Shares will be converted to an equal
number of shares, $.01 par value, of Newco (the "Newco Common Shares").
Moreover, as noted above, the shares of the surviving corporation's common
stock will continue to be traded on the over-the-counter market and
reported on the NASDAQ market.
Principal Differences in Corporate Charters
SAB's Certificate of Incorporation is almost identical to Newco's
Articles of Incorporation, except for differences which relate to
differences between the ABCA and the DGCL. What follows is a summary of
the material differences between the ABCA and the DGCL which have a
material impact on shareholder rights. The discussion below, however, is
qualified in its entirety by reference to the ABCA and DGCL.
Limitation on Director Liability. Both the ABCA and the DGCL allow
charter documents to limit the personal liability of directors in certain
circumstances; however, the two statutes prescribe slightly different
limitations. In Alabama, articles of incorporation may not eliminate or
limit the liability of a director for: (i) the amount of a financial
benefit received by a director to which he or she is not entitled, (ii) an
intentional infliction of harm on the corporation or the shareholders,
(iii) making an unlawful distribution, (iv) an intentional violation of
criminal law, or (v) a breach of the director s duty of loyalty to the
corporation or its shareholders.
The Delaware statute prohibits any limitation of liability: (i) for any
breach of a director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) for paying an
illegal dividend or approving an illegal stock purchase or redemption, or
(iv) for any transaction from which the director derived an improper
personal benefit.
Both the Certificate of Incorporation of SAB and the Articles of
Incorporation of Newco protect directors from liability to the fullest
extent permitted by applicable law. SAB is not aware of any pending or
threatened litigation or proceeding, including any derivative proceeding
applicable to it, to which the limitations on director liability under the
ABCA or the DGCL would apply.
Indemnification. The Certificate of Incorporation of SAB and the
Articles of Incorporation of Newco both provide for indemnification of
directors and officers to the full extent permitted by applicable law.
SAB also has an indemnification provision in its Bylaws which reiterates
the indemnification provision in its Certificate of Incorporation. Newco
has no indemnification provisions in its Bylaws.
Under Section 145 of the DGCL, directors, officers and other employees and
individuals may be indemnified against expenses (including attorney's fees),
judgments, fines and amounts paid in settlement in connection with
specified actions, suits or proceedings, whether civil, criminal,
administrative or investigative (other than action by or in the right of the
corporation--a "derivative action") if they acted in good faith and in a
manner they reasonably believed to be in, or not opposed to, the best
interest of the corporation, and, regarding any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful.
A similar standard is applicable in the case of derivative actions, except
that indemnification only extends to expenses (including attorney's fees)
incurred in connection with defense or settlement of such actions. The
DGCL requires court approval before there can be any indemnification where
the person seeking indemnification has been found liable to the corporation.
To the extent that a person otherwise eligible to be indemnified is
successful on the merits of any claim or defense described above,
indemnification for expenses (including attorney's fees) is mandated by the
DCGL. Advancement of such expenses (i.e., payment prior to a determination
on the merits) is permissive only, and such person must repay such expenses
if it is ultimately determined that he is not entitled to indemnification.
The ABCA's indemnification provisions, set forth in Division E of
Article 8 of the ABCA, are similar to the indemnification provisions of the
DCGL. A primary difference is that in Alabama the standard of conduct for
which indemnification is permitted is different in the case of conduct in
one's official capacity as compared to conduct not in one's official
capacity. In the case of conduct in one's official capacity,
indemnification is only permitted if the individual reasonably believed
that the conduct was in the corporation's best interest. In the case of
conduct not in one's official capacity, the individual must reasonably
believe that the conduct was not opposed to the best interest of the
corporation. Another significant difference in the ABCA is that it does
not restrict indemnification for actions by or in the right of the
corporation to those incurred solely in connection with the defense or
settlement of such actions. The ABCA also has a stricter standard for
advancement of expenses, requiring the director to affirm in writing his
good faith belief in his entitlement thereto, and requiring a lack of
known facts suggesting otherwise.
Shareholder Votes. Generally, the ABCA requires a majority vote of the
shares voting at a meeting where a quorum is present. However, a majority
of all shares entitled to vote is required to amend the articles of
incorporation in a manner giving rise to dissenter's rights, and two-thirds
of all shares entitled to vote are generally required to approve a merger
or the sale of all or substantially all of the corporation s assets.
Under the DGCL, in all matters other than the election of directors,
certain mergers, sale of substantially all of the corporation's assets and
certain amendments to the certificate of incorporation, the affirmative
vote of the majority of shares present in person or by proxy is required.
Directors are elected by a plurality of the votes of the shares present.
Certain mergers, asset sales, and amendments to the certificate of
incorporation require the affirmative vote of the holders of a majority of
the outstanding shares entitled to vote thereon.
SAB's Certificate of Incorporation requires a greater vote to approve
certain actions in certain circumstances, and Newco's Articles of
Incorporation contain identical provisions.
Appraisal or Dissenter's Rights. Under the ABCA, a shareholder is
entitled to dissent from and, upon perfection of his or her dissenter's
rights, to obtain fair value for his or her shares in the event of certain
corporate actions, including certain mergers, consolidations, share
exchanges, sales of substantially all of the assets of the corporation, and
amendments to the corporation's articles of incorporation that materially
affect the shareholder's rights with respect to his or her shares.
Under the DGCL, appraisal rights are available in connection with
certain mergers or consolidations, unless otherwise provided in the
corporation's certificate of incorporation. Even in event of those mergers
or consolidations, unless the certificate of incorporation otherwise
provides, the DGCL does not provide appraisal rights (i) if the shares of
the corporation are listed on a national securities exchange or held of
record by more than 2,000 shareholders (as long as in the merger the
shareholders receive shares of the surviving corporation or any other
corporation the shares of which are listed on a national securities
exchange or held of record by more than 2,000 shareholder) or (ii) if the
corporation is the surviving corporation and no vote of its shareholders is
required for the merger. SAB does not have over 2,000 shareholders of
record, and its Certificate of Incorporation does not eliminate appraisal
rights.
Anti-takeover provision. Section 203 of the DGCL, designed primarily to
regulate the second step of a two tiered takeover attempt, applies to a
broad range of "business combinations" between a Delaware corporation, such
as SAB, and an "interested stockholder." That section defines a "business
combination" as including mergers, consolidations, sales and other
dispositions of 10% or more of the assets, issuances of stock and almost any
related party transaction. An interested stockholder is defined to
include any person (other than the corporation or any of its majority-owned
subsidiaries) who beneficially owns, directly or indirectly, 15% or more of
the outstanding voting stock of the corporation. Delaware law prohibits a
corporation from engaging in a business combination with an interested
stockholder for a period of three years following the date on which the
stockholder became an interested stockholder, unless (a) the board of
directors approved either the business combination or the transaction which
resulted in the stockholders becoming a interested stockholder before the
person became an interested stockholder; (b) upon consummation of the
transaction which resulted in the stockholder's becoming an interested
stockholder, such stockholder owned at least 85% of the voting stock
outstanding when the transaction began, excluding for purposes of
determining the number of shares outstanding, those shares owned by persons
who are directors and also officers of the corporation and by employee
stock plans in which employee participants do not have the right to
determine confidentially whether shares held subject to the plan will be
tendered in a tender or exchange offer; or (c) the board of directors
approved the business combination after the stockholder became an interested
stockholder and the business combination is approved by at least 66 2/3% of
the outstanding voting stock not owned by such stockholder at a meeting of
the stockholders. SAB has not taken any action to opt out of the
restrictions contained in Section 203 of the DGCL. Alabama does not have
such an anti-takeover provision, and the Articles of Incorporation and Bylaws
of Newco contain no such provision. Section 203 of the DGCL was enacted in
1988, approximately three years after SAB's incorporation.
Dividends. A Delaware corporation may pay dividends out of any surplus
and, if it has no surplus, out of any net profits for the fiscal year in
which the dividend is declared and/or the preceding fiscal year, provided
that such payment will not reduce the capital below the amount of capital
represented by all classes of shares having a preference upon the
distribution of assets.
An Alabama corporation is prohibited from making distributions if, after
giving effect to a distribution: (1) the corporation would not be able to
pay its debts as they become due in the usual course of business; or (2)
the corporation s total assets would be less than the sum of its total
liabilities plus (unless the articles of incorporation permit otherwise,
which Newco's do not) the amount that would be needed, if the corporation
were to be dissolved at the time of distribution, to satisfy the
preferential rights upon dissolution of shareholders whose preferential
rights are superior to those receiving the distribution.
Preemptive Rights. Under the DGCL, stockholders have no preemptive
rights unless such rights are expressly granted to them by the certificate
of incorporation. SAB's Certificate of Incorporation does not grant
preemptive rights to SAB's stockholders.
The ABCA grants shareholders of an Alabama corporation a preemptive right
to acquire the corporation's unissued shares except to the extent the
articles of incorporation otherwise provide. Newco s Articles of
Incorporation specifically deny preemptive rights to its shareholders.
Federal Income Tax Consequences of the Reincorporation
SAB has been advised by Hand Arendall, L.L.C., SAB's counsel, that for
federal income tax purposes, the Reincorporation will constitute a
reorganization under Section 368 of the Internal Revenue Code and that,
consequently, the holders of SAB Delaware shares will not recognize any
gain or loss as a result of the Merger. For federal income tax purposes,
each stockholder of SAB will retain the same basis in his Newco common shares
as he had in the corresponding SAB Delaware Shares held by him immediately
prior to the Effective Time, and his or her holding period for his Newco
common shares will include the period during which he held the
corresponding SAB Delaware Shares.
Although it is not anticipated that state or local income tax
consequences will vary from the federal income tax consequences described
above, stockholders should consult their own tax advisers as to the effect
of the Reincorporation under state, local or foreign income tax laws.
SAB has been further advised by Hand Arendall, L.L.C. that Newco will not
recognize any gain, loss or income for federal income tax purposes as a
result of the Reincorporation and Merger and that it will succeed, without
adjustment, to the tax attributes of SAB.
Other Matters
If the accompanying proxy card is properly signed and returned to SAB
prior to the Special Meeting and not revoked, it will be voted in
accordance with the instructions contained therein. If no instructions are
given, the persons designated as proxies in the accompanying proxy card will
vote the SAB Delaware Shares represented thereby FOR the Reincorporation
Proposal described in this Proxy Statement.
The Board of Directors of SAB is not currently aware of any matters
other than those referred to herein which will come before the Special
Meeting. If any other matter should be presented for action at the Special
Meeting, the persons named in the accompanying proxy card will vote the SAB
Delaware shares represented by the proxy in their discretion, in accordance
with their best judgment in light of the conditions then prevailing.
Without affecting any vote previously taken, any stockholder executing a
proxy may revoke it at any time before it is actually voted at the Special
Meeting by delivering written notice of revocation to the secretary of the
company, by submitting a subsequently dated proxy, or by attending the
Special Meeting and requesting in writing that the proxy be withdrawn.
Attendance at the Special Meeting will not, in and of itself, constitute
revocation of a proxy.
The expense of preparing, printing and mailing proxy materials to SAB
stockholders will be borne by SAB. In addition, proxies may be solicited
personally or by telephone by officers or employees of SAB, none of whom
will receive additional compensation therefor. SAB will also reimburse
brokerage houses and other nominees who are record holders of SAB Delaware
Shares not beneficially owned by them for their reasonable expenses in
forwarding proxy materials to, and obtaining proxies from, the beneficial
owners of such SAB Delaware Shares.
Shareholder proposals intended to be submitted for consideration at the
1997 Annual Meeting of the Shareholders of SAB or Newco, as the case may
be, must be submitted in writing to and received by the secretary of such
corporation not later than December 6, 1996, to be included in SAB's or
Newco's, as the case may be, Proxy Statement and form of proxy relating to
that meeting.
F. Michael Johnson
Chief Financial Officer and Secretary
Enclosures
_________________, 1996
Exhibit A
PLAN OF MERGER
OF
SOUTH ALABAMA BANCORPORATION, INC.
(a Delaware corporation)
WITH AND INTO
SAB NEWCO, INC.
(an Alabama corporation)
ITEM ONE
This Plan of Merger shall be effective upon approval and adoption hereof
and the filing of such articles and certificates of merger as are required by
applicable law. Upon the effectiveness hereof, South Alabama Bancorporation,
Inc., a Delaware corporation ("SAB"), shall merge with and into SAB Newco,
Inc., an Alabama corporation ("Newco"), which is a wholly owned subsidiary of
SAB. Newco, the surviving corporation, shall continue to exist under, and be
governed by, the laws of the State of Alabama.
ITEM TWO
The Articles of Incorporation of Newco, as amended hereby, shall
continue to be the Articles of Incorporation of the surviving corporation.
ITEM THREE
The manner and basis of converting shares of SAB into shares of Newco
are as follows:
(a) Each share of common stock of SAB ($.01 par value) shall, upon the
effective date of the merger, without further action, be converted into one
(1) share of common stock of Newco ($.01 par value).
(b) Each outstanding certificate representing a share or shares of SAB
common stock will, upon and after the effective date of the merger, and
without any action on the part of the holder, represent the same number of
shares of Newco common stock (i.e., a certificate representing one share of
SAB common stock will represent one share of Newco common stock).
ITEM FOUR
The officers of the surviving corporation, upon proper adoption and
approval of this Plan of Merger and the filing and recording of the
certificates and articles of merger required by law to be made, filed and
recorded, shall take any and all other steps which they may deem necessary or
appropriate, if any, to effectuate the acquisition by the surviving
corporation of the assets of every character and description now owned by
the merging corporation.
ITEM FIVE
The current bylaws of Newco shall continue as the bylaws of the
surviving corporation until amended or repealed as provided by law.
ITEM SIX
The present directors and officers of SAB shall, upon the effective date
of the merger, become the directors and officers of the surviving corporation
until their successors shall have been elected and qualified as provided in
the bylaws of the surviving corporation.
ITEM SEVEN
The Articles of Incorporation of Newco shall be amended as follows:
Article One shall be amended to read:
"The name of the corporation shall be South Alabama
Bancorporation, Inc."
ITEM EIGHT
Newco shall be subject to service of process in Delaware in any
proceeding for enforcement of any obligation of SAB, as well as for any
obligation of Newco, arising from the merger, and Newco irrevocably appoints
the Secretary of State of the State of Delaware as its agent to accept
service of process in any such suit or other proceeding related thereto,
with any process so served to be sent to Newco at:
South Alabama Bancorporation, Inc.
Attention: F. Michael Johnson
100 St. Joseph Street
Mobile, AL 36602
Exhibit B
ARTICLES OF INCORPORATION
OF
SAB NEWCO, INC.
These Articles of Incorporation made and entered into by the undersigned
on this ______ day of November, 1996.
ARTICLE ONE
The name of the Corporation shall be SAB NEWCO, INC.
ARTICLE TWO
(a) The total number of shares of capital stock which the Corporation
shall have authority to issue is 6,000,000 shares of the par value of $.01
per share, consisting of: (1) 5,500,000 shares of Common Stock and (2) 500,000
shares of Preferred Stock.
(b) Shares of Preferred Stock may be issued from time to time in one or
more classes or series as may be determined from time to time by the Board of
Directors, each such class or series to be distinctly designated. Except in
respect of the particulars fixed by the Board of Directors for classes or
series provided for by the Board of Directors as permitted hereby, all shares
of Preferred Stock shall be of equal rank and shall be identical. All shares
of any one series of Preferred Stock so designated by the Board of Directors
shall be alike in every particular, except that shares of any one series
issued at different times may differ as to the dates from which dividends
thereon shall be cumulative. The voting powers, if any, of each such class
or series and the preferences and relative, participating, optional and other
special rights of each such class or series and the qualifications,
limitations and restrictions thereof, if any, may differ from those of any
and all other classes or series at any time outstanding; and the Board of
Directors of the Corporation is hereby expressly granted authority to fix, by
resolutions duly adopted prior to the issuance of any shares of a particular
class or series of Preferred Stock so designated by the Board of Directors,
the voting powers, full or limited, or no voting powers, and such
designations, preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions of the class
or series of Preferred Stock, including, but without limiting the generality
of the foregoing, the following:
(1) The distinctive designation of, and the number of shares
of Preferred Stock which shall constitute, such class or series; such
number may be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof then
outstanding) from time to time by like action of the Board of Directors;
(2) The rate and time at which, and the terms and conditions upon
which, dividends, if any, on Preferred Stock of such class or series
shall be paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes or
series of the same or other classes of stock, and whether such dividends
shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
class or series to convert the same into, or exchange the same for,
shares of any other class or classes or of any series of the same or any
other class or classes of stock and the terms and conditions of such
conversion or exchange;
(4) Whether or not Preferred Stock of such class or series shall
be subject to redemption, and the redemption price or prices and the
time or times at which, and the terms and conditions upon which,
Preferred Stock of such class or series may be redeemed;
(5) The rights, if any, of the holders of Preferred Stock of such
class or series upon the voluntary or involuntary liquidation of the
Corporation;
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of such class or
series; and
(7) The voting powers, full or limited, or no voting powers, of the
holders of such class or series of Preferred Stock.
The Board of Directors of the Corporation is further expressly vested
with the authority to make the voting powers, designations, preferences,
rights and qualifications, limitations or restrictions of any class or
series of Preferred Stock dependent upon facts ascertainable outside
these Articles of Incorporation or of any amendment hereto, or outside
the resolution or resolutions providing for the issue of such stock
adopted by the Board of Directors, provided that the manner in which such
facts shall operate upon the voting powers, designations, preferences,
rights and qualifications, limitations or restrictions of such class or
series of Preferred Stock is clearly and expressly set forth in the
resolution or resolutions providing for the issuance of such stock
adopted by the Board of Directors.
(c) Except as otherwise provided in these Articles of Incorporation,
the Board of Directors shall have authority to authorize the issuance, from
time to time without any vote or other action by the stockholders, of any or
all shares of stock of the Corporation of any class or series at any time
authorized, and any securities convertible into or exchangeable for any such
shares, and any options, rights or warrants to purchase or acquire any such
shares, in each case to such persons and on such terms (including as a
dividend or distribution on or with respect to, or in connection with a split
or combination of, the outstanding shares of stock of the same or any other
class) as the Board of Directors from time to time in its discretion lawfully
may determine; provided, however, that the consideration for the issuance of
shares of stock of the Corporation having par value (unless issued as such a
dividend or distribution or in connection with such a split or combination)
shall not be less than such par value. Shares so issued shall be fully paid
stock, and the holders of such stock shall not be liable to any further call
or assessments thereon.
ARTICLE THREE
The location and mailing address of the corporation's initial registered
office, and the name of its initial registered agent at such address, are as
follows:
F. Michael Johnson
The Bank of Mobile
100 St. Joseph Street
Mobile, Alabama 36602
ARTICLE FOUR
The name and address of the incorporator are as follows:
Brooks P. Milling, Esq.
Hand Arendall, L.L.C.
3000 First National Bank Building
Mobile, Alabama 36602
ARTICLE FIVE
The number of directors constituting the initial board of directors shall
be three (3), and the names and addresses of the persons who are to serve as
directors until the first annual meeting of shareholders, or until their
successors be elected and qualify, are as follows:
W. Bibb Lamar, Jr. F. Michael Johnson
The Bank of Mobile The Bank of Mobile
100 St. Joseph Street 100 St. Joseph Street
Mobile, Alabama 36602 Mobile, Alabama 36602
Stephen G. Crawford
Hand Arendall, L.L.C.
3000 First National Bank Building
Mobile, Alabama 36602
ARTICLE SIX
The purpose of the corporation is to engage in any lawful act or activity
for which a corporation may be now or hereafter organized under the Alabama
Business Corporation Act (the "ABCA") or by any other law of Alabama and by
these Articles of Incorporation together with any powers incidental thereto.
ARTICLE SEVEN
The affirmative vote of the holders of not less than seventy-five percent
(75%) of the outstanding stock of the Corporation entitled to vote shall be
required for approval if (1) this Corporation merges or consolidates with any
other corporation if such other corporation and its affiliates in the
aggregate are directly or indirectly the beneficial owners of more than five
percent (5%) of the total voting power of all outstanding shares of the voting
stock of this Corporation (such other corporation being herein referred to as
a "Related Corporation"), or if (2) this Corporation sells or exchanges all or
a substantial part of its assets to or with such Related Corporation, or if
(3) this Corporation issues or delivers any stock or other securities of its
issue in exchange or payment for any properties or assets of such Related
Corporation or securities issued by such Related Corporation, or in a merger
of any affiliate of this Corporation with or into such Related Corporation or
any of its affiliates; provided, however, that the foregoing shall not apply
to any such merger, consolidation, sale or exchange, or issuance or delivery
of stock or other securities which was approved by the affirmative vote of
not fewer than seventy-five percent (75%) of the directors of this
Corporation, nor shall it apply to any such transaction solely between this
Corporation and another corporation fifty percent (50%) or more of the voting
stock of which is owned by this Corporation. For the purposes hereof, an
"affiliate" is any person (including a corporation, partnership, trust,
estate or individual) who directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
the person specified. "Control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies
of a person, whether through the ownership of voting securities, by contract,
or otherwise; and, in computing the percentage of outstanding voting stock
beneficially owned by any person, the shares outstanding and the shares owned
shall be determined as of the record date fixed to determine the stockholders
entitled to vote or express consent with respect to such proposal. The
stockholder vote, if any, required for mergers, consolidations, sales or
exchanges of assets or issuances of stock or other securities not expressly
provided for in this Article, shall be such as may be required by applicable
law. A "substantial part" of the Corporation s assets shall mean assets the
book value of which comprises more than twenty percent (20%) of the book value,
or the fair market value of which comprises more than twenty percent (20%) of
the fair market value, of the total assets of the Corporation and its
subsidiaries taken as a whole.
ARTICLE EIGHT
No action shall be taken by the stockholders except at an annual or
special meeting of stockholders. No action shall be taken by stockholders by
written consent.
ARTICLE NINE
Special meetings of the stockholders of the Corporation for any purpose
or purposes may be called at any time by the Board of Directors, or by a
majority of the members of the Board of Directors, or by a committee of the
Board of Directors which has been duly designated by the Board of Directors
and whose powers and authority, as provided in a resolution of the Board of
Directors or in the bylaws of the Corporation, include the power to call such
meetings, but such special meetings may not be called by any other person or
persons.
ARTICLE TEN
In furtherance and not in limitation of the powers now or hereafter
conferred by statute, the Board of Directors is expressly authorized:
(a) To make, alter or repeal the bylaws of the Corporation.
(b) To authorize and cause to be executed mortgages and liens upon
the real and personal property of the Corporation.
(c) To set apart out of any of the funds of the Corporation
available for dividends a reserve or reserves for any proper purpose and
to abolish any such reserve in the manner in which it was created.
(d) By a majority of the whole board, to designate one or more
committees, each committee to consist of one or more of the directors of
the Corporation. The board may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. The bylaws may
provide that in the absence or disqualification of a member of a
committee, the 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 such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
Board of Directors, or in the bylaws of the Corporation, shall have and
may exercise all the powers and authority of the Board of Directors to
the extent permitted by law.
ARTICLE ELEVEN
(a) Personal Liability of Directors
(1) A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for any action
taken, or any failure to take action, as a director, except for liability
for (i) the amount of a financial benefit received by a Director to which
he or she is not entitled, (ii) an intentional infliction of harm on the
corporation or the shareholders, (iii) a violation of Section 10-2B-8.33
of the ABCA, (iv) an intentional violation of criminal law, or (v) a
breach of the director's duty of loyalty to the Corporation or its
shareholders. If the ABCA is amended after approval by the stockholders
of this Article Eleven to authorize corporate action further eliminating
or limiting the personal liability of directors, the liability of a
director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the ABCA, as so amended.
(2) Any repeal or modification of the foregoing subparagraph (1) by
the stockholders of the Corporation shall not affect adversely any right
or protection of a director of the Corporation existing at the time of
that repeal or modification.
(b) Indemnification.
(1) Actions Against Corporation. The Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed claim, action, suit or proceeding,
whether civil, criminal, administrative or investigative, including
appeals (other than an action by or in the right of the Corporation in
which such person was adjudged liable to the Corporation or any proceeding
in which such person is adjudged liable on the basis of receipt of
improper personal benefit), by reason of the fact that he is or was a
director or officer of the Corporation (including, without limitation,
conduct with respect to an employee benefit plan), or is or was serving
at the request of the Corporation as a director, officer or partner of
another Corporation, partnership, joint venture, trust or other
enterprise, against reasonable expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement and incurred by him in
connection with such claim, action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to be in or, if not
acting in his official capacity, not opposed to the best interests of
the Corporation (or of the participants or beneficiaries of an employee
benefit plan, in the case of conduct with respect to such a plan), and,
with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. The termination of any claim,
action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of itself,
be determinative that the 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, as the case may be, and with respect to any
criminal action or proceeding, had no reasonable cause to believe that
his conduct was unlawful.
(2) Actions by or in the Right of the Corporation. The Corporation
shall indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed claim, action or
suit by or in the right of the Corporation to procure a judgment in its
favor by reason of the fact that he is or was a director or officer of
the Corporation, or is or was serving at the request of the Corporation as
a director, officer or partner of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including
attorneys' fees) reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or, if not acting in his
official capacity, not opposed to the best interests of the Corporation
and except that no indemnification shall be made in respect of any such
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 the
court in which such action or suit was brought or another court of
competent jurisdiction shall determine upon application that, despite
the adjudication of liability but in view of all circumstances of the
case, such person is fairly and reasonably entitled to indemnity for
such expenses as such court shall deem proper.
(3) Successful Defense. To the extent that a director or officer
of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Subparagraphs
(1) or (2) of Subsection (b) of this Article Eleven, or in defense of
any claim, issue or matter therein, he shall be indemnified against
reasonable expenses (including attorneys' fees) incurred by him in
connection therewith, notwithstanding that he has not been successful
on any other claim, issue or matter in any such action, suit or proceeding.
(4) Determination of Indemnification. Any indemnification under
Subparagraphs (1) or (2) of Subsection (b) of this Article Eleven (unless
ordered by a court of competent jurisdiction) shall be made by the
Corporation only as authorized in the specific case upon a determination
that indemnification of the director, officer or partner is proper in the
circumstances because he has met the applicable standard of conduct set
forth in Subparagraphs (1) or (2) of Subsection (b) of this Article
Eleven. Such determination shall be made (A) by the board of directors
by a majority vote of a quorum consisting of directors not at the time
parties to such claim, action, suit or proceeding, or its said committee
referred to in this section or (B) if such quorum is not obtainable, by
a majority vote of a committee duly designated by the directors (with
participation in such designation permitted by directors who are parties)
consisting solely of two or more directors not at the time parties
thereto, or (C) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by special
legal counsel selected in accordance with the Alabama Business
Corporation Act, or (D) by the shareholders except that shares owned by
or voted under the control of directors who are at the time parties to
the proceeding may not be voted on the determination. A majority of the
shares remaining entitled to vote on the determination (that is after the
exclusion of the said shares not entitled to be so voted thereon)
constitutes a quorum for the purposes of taking shareholder action under
this Article Eleven.
(5) Advanced Expenses. Expenses (including attorneys' fees)
incurred in defending a civil or criminal claim, action, suit or
proceeding may be paid by the Corporation in advance of the final
disposition of such claim, action, suit or proceeding as authorized in
the manner provided in Subparagraph (4) of Subsection (b) of this
Article Eleven upon (A) receipt of a written affirmation by the director
or officer seeking the advance of a good faith belief that he or she has
met the standard of conduct required under this Article Eleven, (B)
receipt of an undertaking as an unlimited general obligation (without the
necessity of security and without reference to financial ability to make
repayment) by or on behalf of the director or officer to repay such
amount if and to the extent that it shall be ultimately determined that
he is not entitled to be indemnified by the Corporation as authorized in
this Article Eleven and (C) a determination (made by the person or persons
and in the manner specified in Subparagraph (4) of Subsection (b) of this
Article Eleven) that the facts then known to those making said
determination would not preclude indemnification under this Article Eleven.
(6) Non-Exclusiveness. The indemnification authorized by this
Article Eleven shall not be deemed exclusive of and shall be in addition
to any other right (whether created prior or subsequent to the adoption
of these Articles of Incorporation) to which those indemnified may be
entitled under any statute, rule of law, provisions of Articles of
Incorporation, bylaws, agreement, vote of shareholders or disinterested
directors, or otherwise, 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 or
partner and shall inure to the benefit of the heirs, executors and
administrators of such a person. This Article Eleven does not and shall
not be deemed to limit or restrict the authority and power of the
Corporation to pay or reimburse expenses incurred by such person in
connection with his or her appearance as a witness in a proceeding at a
time when he or she has not been made a named defendant or respondent
therein.
(7) Insurance. The Corporation shall have power to purchase and
maintain insurance or furnish similar protection (including, but not
limited to, trust funds, self-insurance reserves, or the like) on behalf
of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, partner, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such capacity or
arising out of his status as such, whether or not the Corporation would
have the power to indemnify him against such liability under the
provisions of this Article Eleven.
ARTICLE TWELVE
Any stockholder entitled to vote for the election of directors may make
nominations for the election of directors only by giving written notice to the
Secretary of the Corporation at least 30 days but not more than 60 days prior
to the annual meeting of stockholders at which directors are to be elected,
unless such requirement is waived in advance of the meeting by the Board of
Directors.
ARTICLE THIRTEEN
The Corporation reserves the right to amend, alter, change or repeal any
provisions contained in these Articles of Incorporation in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation; provided, however, that the
provisions of Articles Seven, Eight, Nine and Twelve and this Article
Thirteen may not be repealed or amended in any respect unless, in addition to
other statutory requirements, such repeal or amendment is approved by either
the affirmative vote of the holders of not less than seventy-five percent (75%)
of the outstanding stock of the Corporation entitled to vote or the affirmative
vote of not less than seventy-five percent (75%) of the directors.
ARTICLE FOURTEEN
Shareholders of the Corporation shall not have any preemptive right to
acquire the Corporation s unissued shares.
IN WITNESS WHEREOF, the undersigned incorporator has hereunto set his
hand and seal on the date first above written.
-
______________________________________(SEAL)
BROOKS P. MILLING, as Incorporator
THIS INSTRUMENT PREPARED BY:
Brooks P. Milling, Esq.
of Hand Arendall, L.L.C.
3000 First National Bank Building
Post Office Box 123
Mobile, Alabama 36601
