CERTIFICATE OF INCORPORATION
MISSOURI HOLDINGS, INC.
The name of the Corporation is Missouri Holdings, Inc.
The street address of the registered office of the Corporation is 1209
Orange Street, Wilmington, New Castle County, Delaware 19801. The registered
agent of the Corporation at such office is The Corporation Trust Company.
The Corporation is organized for the purpose of engaging in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of Delaware, and the Corporation shall be authorized to exercise
and enjoy all powers, rights and privileges conferred upon corporations by the
laws of the State of Delaware as in force from time to time, including, without
limitation, all powers necessary or appropriate to carry out all those acts and
activities in which it may lawfully be engaged.
The Corporation shall have authority to issue 21,000,000 shares of
capital stock, which shall be divided into two classes with the following
designations, preferences, limitations and relative rights:
(A) Common Stock. One class shall consist of 20,000,000
shares of common stock having a $ .01 par value, designated "Common
(B) Preferred Stock. One class shall consist of 1,000,000
shares of preferred stock having a $ .01 par value, designated
"Preferred Stock." The board of directors is authorized, subject to any
limitations prescribed by law, to provide for the issuance of the
shares of Preferred Stock in series, and by filing a certificate
pursuant to the applicable law of the State of Delaware, to establish
from time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences, and rights of
the shares of each such series and any qualifications, limitations or
restrictions thereof. The number of authorized shares of Preferred
Stock may be increased or decreased (but not below the number of shares
thereof then outstanding) by the affirmative vote of the holders of a
majority of the Common Stock, without a vote of the holders of the
Preferred Stock, or of any series thereof, unless a vote of any such
holders is required pursuant to the certificate or certificates
establishing the series of Preferred Stock.
The name and mailing address of the Incorporator of the Corporation is:
Robert C. Schwartz Suite 3100, Promenade II
1230 Peachtree Street, N.E.
Atlanta, Georgia 30309-3592
No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; provided, however, that this Article VI shall not eliminate
or limit the liability of a director (i) for any breach of the director's duty
of loyalty to the Corporation its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law (as in
effect and as hereafter amended) or (iv) for any transaction from which the
director derived an improper personal benefit. If the Delaware General
Corporation Law is hereafter amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of each director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as so amended.
Neither the amendment nor repeal of this Article VI, nor the adoption of any
provision of this Certificate of Incorporation inconsistent with this Article
VI, shall eliminate or reduce the effect of this Article VI in respect of any
acts or omissions occurring prior to such amendment, repeal or adoption of any
The corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Incorporation on this 30TH day of April, 1998.
/s/ Robert C. Schwartz
Robert C. Schwartz
SERIES A PREFERRED STOCK
1. Designation. 100,000 shares of the preferred stock, par value,
$0.01 per share, stated value $10.00 per share, of the Corporation are hereby
constituted as a series of the preferred stock designated as "Series A Preferred
Stock" (the "Series A Preferred Stock") and having relative rights and
preferences to all other classes and series of the capital stock of the
Corporation as set forth herein.
No dividends or other distributions shall be declared or
payable with respect to Series A Preferred Stock.
3. Preference on Liquidation.
(a) Liquidation Preference for Series A Preferred Stock.
In the event that the Corporation shall commence a voluntary case under the
Federal bankruptcy laws or any other applicable Federal or state bankruptcy,
insolvency or similar law, or consent to the entry of an order for relief in an
involuntary case under such law or to the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or other similar official) of the
Corporation or of any substantial part of its property, or make an assignment
for the benefit of its creditors, or admit in writing its inability to pay its
debts generally as they become due, or if a decree or order for relief in
respect of the Corporation shall be entered by a court having jurisdiction in
the premises in an involuntary case under the Federal bankruptcy laws or any
other applicable Federal or state bankruptcy, insolvency or similar law, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or other similar official) of the Corporation or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and on
account of any such event the Corporation shall liquidate, dissolve or wind up,
or if the Corporation shall otherwise liquidate, dissolve or wind up, no
distribution of the assets of the Corporation shall be made to the holders of
shares of Common Stock or other Junior Securities (as hereinafter defined)(and
no monies shall be set apart for such purpose) unless (i) prior thereto, the
holders of shares of Series A Preferred Stock shall have received from the
assets of the Corporation an amount per share having a value equal to not less
than $10.00 (the "Series A Liquidation Preference").
(b) Pro Rata Payments. If, upon any such liquidation,
dissolution or other winding up of the affairs of the Corporation, the assets of
the Corporation shall be insufficient to permit the payment in full of the
Series A Liquidation Preference for each share of Series A Preferred Stock then
outstanding and the full liquidating payments on all Parity Securities (as
hereinafter defined) then the assets of the Corporation remaining after the
distribution to holders of any Senior Securities (as hereinafter defined) of the
full amounts to which they may be entitled shall be ratably distributed among
the holders of Series A Preferred Stock and of any Parity Securities in
proportion to the full amounts to which they would otherwise be respectively
entitled if all amounts thereon were paid in full.
(c) Sale not a Liquidation. Neither the voluntary sale,
conveyance, exchange or transfer (for cash, shares of stock, securities or other
consideration) of all or substantially all the property
or assets of the Corporation nor the consolidation, merger or other business
combination of the Corporation with or into one or more corporations or other
Person (as hereinafter defined) shall be deemed to be a liquidation, dissolution
or winding up, voluntary or involuntary, of the Corporation.
(d) Notice of Liquidation. Written notice of any
liquidation, dissolution or winding up of the Corporation, stating the payment
date or dates when and the place or places where amounts distributable in such
circumstances shall be payable, shall be given by first class mail, postage
prepaid, not less than thirty (30) days prior to any payment date specified
therein, to the holders of record of the Series A Preferred Stock at their
respective addresses as shall appear on the records of the Corporation.
4. Voting. Except as otherwise provided by law, the shares of the
Series A Preferred Stock shall have no voting rights.
(a) Redemption Price. Any redemption of the Series A
Preferred Stock pursuant to this Section 5 shall be at a price equal to $10.00
per share (the "Redemption Price").
(b) Optional Redemption. At the option of the
Corporation, shares of the Series A Preferred Stock may be redeemed at any time
as a whole or in part from time to time, out of funds legally available
therefor, at a cash redemption price of $10.00 per share.
(c) Procedures for Redemption. In the event the
Corporation shall elect to redeem shares of Series A Preferred Stock pursuant to
Section 5(b), the Corporation shall give written notice of such redemption by
first class mail, postage prepaid, mailed not less than thirty (30) nor more
than ninety (90) days prior to the Redemption Date (as hereinafter defined), to
each holder of record of the shares to be redeemed, at such holder's address as
the same appears on the stock records of the Corporation. Each such notice shall
state: (i) the date on which the shares of the Series A Preferred Stock shall be
redeemed (the "Redemption Date"); (ii) the number of shares of Series A
Preferred Stock to be redeemed; (iii) the Redemption Price; (iv) the place or
places where certificates for such shares are to be surrendered for payment of
the Redemption Price; (v) that payment will be made upon presentation and
surrender of such Series A Preferred Stock; and (vi) that such redemption is
mandatory. Notice having been mailed as aforesaid, from and after the Redemption
Date, unless the Corporation shall be in default in the payment of the
Redemption Price (A) shares of Series A Preferred Stock shall be deemed no
longer outstanding, and (B) all rights of the holders thereof as stockholders of
the Corporation (except the right to receive from the Corporation any moneys
payable upon redemption without interest thereon) shall cease.
Upon surrender in accordance with such notice of the
certificates for any such shares so redeemed (properly endorsed or assigned for
transfer with signatures guaranteed), such shares shall be redeemed by the
Corporation at the applicable Redemption Price.
6. Shares to be Retired. Any share of Series A Preferred Stock
repurchased or otherwise acquired by the Corporation shall be retired and
canceled and shall upon cancellation be restored to the status of authorized but
unissued shares of preferred stock, subject to reissuance by the Board of
Directors as shares of preferred stock of one or more other series but not as
shares of Series A Preferred Stock.
7. Definitions. As used herein, the following terms shall have
the respective meanings set forth below:
"Business Day" means any day that is not a Saturday, a Sunday
or a day on which banks are required or permitted to be closed in the
State of Florida.
"Common Stock" means the Corporation's Common Stock, $.01 par
value per share, and any stock into which such Common Stock may
hereafter be changed or for which such Common Stock may be exchanged
after giving effect to the terms of such change or exchange (by way of
reorganization, recapitalization, merger, consolidation or otherwise).
"Junior Securities" means the Common Stock and any other class
of capital stock or series of preferred stock hereafter created by the
Corporation which does not expressly provide that it ranks senior to or
pari passu with the Series A Preferred Stock as to dividends, other
distributions, liquidation preference or otherwise.
"Parity Securities" mean any class of capital stock or series
of preferred stock hereafter created by the Corporation which expressly
provides that it ranks pari passu with the Series A Preferred Stock as
to dividends, other distributions, liquidation preference or otherwise.
"Person" or "person" shall mean an individual, partnership,
corporation, trust, unincorporated organization, joint venture,
government or agency, political subdivision thereof, or any other
entity of any kind.
"Senior Securities" means any class or series of capital
stock, debt instrument or security convertible into capital stock or
debt securities of the Corporation other than Parity Securities or
"Series A Liquidation Preference" shall have the meaning set
forth in Section 3(a).
"Series A Preferred Stock" shall have the meaning set forth in
8. Notices. Except as may otherwise be provided for herein, all
notices referred to herein shall be in writing, and all notices hereunder shall
be deemed to have been given upon the earlier of (x) receipt of such notice, (y)
two Business Days after the mailing of such notice if sent by registered mail
(unless first-class mail shall be specifically permitted for such notice under
the terms hereof) or (z) the Business Day following the date such notice is put
in the possession of an overnight courier, in any case with postage or delivery
charges prepaid, addressed: if to the Corporation, to its temporary offices at
9755 Dogwood Road, Suite 310, Roswell, Georgia 30075, Attention: Mary E.
Johnson, Secretary and Treasurer of the Corporation, or to an agent of the
Corporation designated as permitted by the Articles of Incorporation, or, if to
any holder of the Series A Preferred Stock, to such holder at the address of
such holder of the Series A Preferred Stock as listed in the stock record books
of the Corporation.