Attached files
file | filename |
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8-K - FORM 8-K - RENTECH, INC. | c20687e8vk.htm |
EX-4.1 - EXHIBIT 4.1 - RENTECH, INC. | c20687exv4w1.htm |
EX-99.1 - EXHIBIT 99.1 - RENTECH, INC. | c20687exv99w1.htm |
EX-99.3 - EXHIBIT 99.3 - RENTECH, INC. | c20687exv99w3.htm |
EX-99.2 - EXHIBIT 99.2 - RENTECH, INC. | c20687exv99w2.htm |
Exhibit 3.1
ARTICLES OF AMENDMENT
to the
AMENDED AND RESTATED ARTICLES OF INCORPORATION
of
RENTECH, INC.
PREFERENCES, LIMITATIONS AND RELATIVE RIGHTS OF
SERIES D JUNIOR PARTICIPATING PREFERRED STOCK
SERIES D JUNIOR PARTICIPATING PREFERRED STOCK
(Pursuant to Section 7-106-102 of the
Colorado Business Corporation Act)
Colorado Business Corporation Act)
RENTECH, INC., a Colorado corporation, (hereinafter called the Corporation), does hereby
certify that pursuant to the authority conferred upon the Board of Directors (the Board of
Directors) by the Amended and Restated Articles of Incorporation of the Corporation and pursuant
to Section 7-106-102 of the Colorado Business Corporation Act, said Board of Directors, at a duly
convened meeting held on July 29, 2011, adopted the following resolution:
RESOLVED, that pursuant to the authority expressly granted to and vested in the Board of
Directors in accordance with the provisions of the Amended and Restated Articles of Incorporation
of the Company, the Board of Directors hereby creates the Series D Preferred Stock and hereby
states the designation and number of shares, and fixes the relative rights, powers and preference,
and qualifications, limitations and restrictions thereof as follows:
Section 1. Designation and Amount. The shares of such series shall be designated as
Series D Junior Participating Preferred Stock (the Series D Preferred Stock) and the number of
shares constituting the Series D Preferred Stock shall be 45,000. Such number of shares may be
increased or decreased by further resolution duly adopted by the Board of Directors and by the
filing of an amendment to the Corporations Articles of Incorporation pursuant to the provisions of
the Colorado Business Corporation Act stating that such reduction or increase has been so
authorized; provided, that no decrease shall reduce the number of shares of Series D 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 or warrants or upon the
conversion of any outstanding securities issued by the Corporation convertible into Series D
Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any shares of any class
or series of stock of this Corporation ranking prior and superior to the Series D Preferred
Stock with respect to dividends, the holders of shares of Series D Preferred Stock, in
preference to the holders of Common Stock, par value $0.01 per share (the
Common Stock), of the Corporation, and of any other stock ranking junior to the
Series D Preferred Stock, shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for the purpose, quarterly dividends
payable in cash on the first day of March, June, September and December in each year (each
such date being referred to herein as a Quarterly Dividend Payment Date), commencing on
the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of
a share of Series D Preferred Stock, in an amount per share (rounded to the nearest cent)
equal to the greater of (a) $1.00 or (b) subject to the provision for adjustment hereinafter
set forth, 10,000 times the aggregate per share amount of all cash dividends, and 10,000
times the aggregate per share amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of Common Stock or a subdivision of
the outstanding shares of Common Stock (by reclassification or otherwise), declared on the
Common Stock since the immediately preceding Quarterly Dividend Payment Date or, with
respect to the first Quarterly Dividend Payment Date, since the first issuance of any share
or fraction of a share of Series D Preferred Stock. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable in shares of Common Stock,
or effect a subdivision, combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each such case the
amount to which holders of shares of Series D Preferred Stock were entitled immediately
prior to such event under clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the Series D Preferred
Stock as provided in paragraph (A) of this Section 2 immediately after it declares a
dividend or distribution on the Common Stock (other than a dividend payable in shares of
Common Stock); provided that, in the event no dividend or distribution shall have been
declared on the Common Stock during the period between any Quarterly Dividend Payment Date
and the next subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share on
the Series D Preferred Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series D
Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of
such shares, unless the date of issue of such shares is prior to the record date for the
first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the determination of holders of
shares of Series D Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends shall begin to
accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of Series D Preferred Stock
in an amount less than the total amount of such dividends at the time accrued and payable on
such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination of holders
of shares of Series D Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not more than sixty (60) days
prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series D Preferred Stock shall
have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each share of Series
D Preferred Stock shall entitle the holder thereof to 10,000 votes on all matters submitted
to a vote of the shareholders of the Corporation. In the event the Corporation shall at any
time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision, combination or consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise than by payment of a dividend in shares of Common Stock)
into a greater or lesser number of shares of Common Stock, then in each such case the number
of votes per share to which holders of shares of Series D Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such number by a fraction,
the numerator of which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in any other amendment to the Corporations
Articles of Incorporation creating a series of Preferred Stock or any similar stock, or by
law, the holders of shares of Series D Preferred Stock and the holders of shares of Common
Stock and any other capital stock of the Corporation having general voting rights shall vote
together as one class on all matters submitted to a vote of shareholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by law, holders of Series D
Preferred Stock shall have no special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
(D) If, at the time of any annual meeting of shareholders for the election of
directors, the equivalent of six quarterly dividends (whether or not consecutive) payable on
any share or shares of Series D Preferred Stock are in default, the number of directors
constituting the Board of Directors of the Corporation shall be increased by two. In
addition to voting together with the holders of Common Stock for the election of other
directors of the Corporation, the holders of record of the Series D Preferred Stock, voting
separately as a class to the exclusion of the holders of Common Stock, shall be entitled at
such meeting of shareholders (and at each subsequent annual meeting of shareholders), unless
all dividends in arrears on the Series D Preferred Stock have been paid or declared and set
apart for payment prior thereto, to vote for the election of two directors of the
Corporation, the holders of any Series D Preferred Stock being entitled to cast a number of
votes per share of Series D Preferred
Stock as is specified in paragraph (A) of this
Section 3. Each such additional director shall serve until the next annual
meeting of shareholders for the election of directors, or until his successor shall be
elected and shall qualify, or until his right to hold such office terminates pursuant to the
provisions of this Section 3(D). Until the default in payments of all dividends
which permitted the election of said directors shall cease to exist, any director who shall
have been so elected pursuant to the provisions of this Section 3(D) may be removed
at any time, without cause, only by the affirmative vote of the holders of the shares of
Series D Preferred Stock at the time entitled to cast a majority of the votes entitled to be
cast for the election of any such director at a special meeting of such holders called for
that purpose, and any vacancy thereby created may be filled by the vote of such holders. If
and when such default shall cease to exist, the holders of the Series D Preferred Stock
shall be divested of the foregoing special voting rights, subject to revesting in the event
of each and every subsequent like default in payments of dividends. Upon the termination of
the foregoing special voting rights, the terms of office of all persons who may have been
elected directors pursuant to said special voting rights shall forthwith terminate, and the
number of directors constituting the Board of Directors shall be reduced by two. The voting
rights granted by this Section 3(D) shall be in addition to any other voting rights
granted to the holders of the Series D Preferred Stock in this Section 3.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions payable on the
Series D Preferred Stock as provided in Section 2 are in arrears, thereafter and until all
accrued and unpaid dividends and distributions, whether or not declared, on shares of Series
D Preferred Stock outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any shares of
stock ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series D Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on any shares
of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series D Preferred Stock, except dividends paid
ratably on the Series D Preferred Stock and all such parity stock on which dividends
are payable or in arrears in proportion to the total amounts to which the holders of
all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of any
stock ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series D Preferred Stock, provided that the Corporation may at
any time redeem, purchase or otherwise acquire shares of any such junior stock in
exchange for shares of any stock of the Corporation ranking junior (both as to
dividends and upon dissolution, liquidation or winding up) to the Series D Preferred
Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any shares of
Series D Preferred Stock, or any shares of stock ranking on a parity with the Series
D Preferred Stock, except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of such shares
upon such terms as the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of stock of the Corporation unless the
Corporation could, under paragraph (A) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series D Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired and canceled
promptly after the acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of
Preferred Stock subject to the conditions and restrictions on issuance set forth herein, in the
Amended and Restated Articles of Incorporation or in any amendment thereto creating a series of
Preferred Stock or any similar stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation, dissolution or winding up of the Corporation, voluntary or
otherwise no distribution shall be made (i) to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the Series D
Preferred Stock unless, prior thereto, the holders of Series D Preferred Stock shall have
received an amount per share (the Series D Liquidation Preference) equal to $10,000 per
share, plus an amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment, provided that the holders of shares of
Series D Preferred Stock shall be entitled to receive an aggregate amount per share, subject
to the provision for adjustment hereinafter set forth, equal to 10,000 times the aggregate
amount to be distributed per share to holders of Common Stock, or (ii) to the holders of
shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution
or winding up) with the Series D Preferred Stock, except distributions made ratably on the
Series D Preferred Stock and all such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation, dissolution or
winding up. In the event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the aggregate amount to which holders of
Series D Preferred Stock were entitled immediately prior to such event under the proviso in
clause (i) of the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock outstanding
immediately after such
event and the denominator of which is the number of shares of Common Stock that are
outstanding immediately prior to such event.
(B) In the event, however, that there are not sufficient assets available to permit
payment in full of the Series D Liquidation Preference and the liquidation preferences of
all other classes and series of stock of the Corporation, if any, that rank on a parity with
the Series D Preferred Stock in respect thereof, then the assets available for such
distribution shall be distributed ratably to the holders of the Series D Preferred Stock and
the holders of such parity shares in proportion to their respective liquidation preferences.
(C) Neither the merger or consolidation of the Corporation into or with another
corporation nor the merger or consolidation of any other corporation into or with the
Corporation shall be deemed to be a liquidation, dissolution or winding up of the
Corporation within the meaning of this Section 6.
Section 7. Consolidation, Merger, etc. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other property, then in
any such case each share of Series D Preferred Stock shall at the same time be similarly exchanged
or changed into an amount per share, subject to the provision for adjustment hereinafter set forth,
equal to 10,000 times the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of Common Stock is
changed or exchanged. In the event the Corporation shall at any time declare or pay any dividend
on the Common Stock payable in shares of Common Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Series D Preferred Stock shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
Section 8. No Redemption. The Series D Preferred Stock shall not be redeemable by the
Corporation.
Section 9. Rank. The Series D Preferred Stock shall rank, with respect to the payment
of dividends and the distribution of assets upon liquidation, dissolution or winding up, junior to
all series of any other class of the Corporations Preferred Stock, except to the extent that any
such other series specifically provides that it shall rank on a parity with or junior to the Series
D Preferred Stock.
Section 10. Amendment. At any time any shares of Series D Preferred Stock are
outstanding, the Corporations Articles of Incorporation shall not be further amended in any manner
which would materially alter or change the powers, preferences or special rights of the Series D
Preferred Stock so as to affect them adversely without the affirmative vote of the
holders of at least two-thirds of the outstanding shares of Series D Preferred Stock, voting
separately as a single class.
Section 11. Fractional Shares. Series D Preferred Stock may be issued in fractions of
a share that shall entitle the holder, in proportion to such holders fractional shares, to
exercise voting rights, receive dividends, participate in distributions and to have the benefit of
all other rights of holders of Series D Preferred Stock.
* * *
IN WITNESS WHEREOF, RENTECH, INC. has caused this certificate to be executed on behalf
of the Corporation by the undersigned authorized officer this 5th day of August, 2011.
/s/ Colin M. Morris | ||||
Name: | Colin M. Morris | |||
Title: | Vice President and General Counsel | |||