Pyxus International, Inc.
Extract: Charter Amended/Restated (Plain English Desc) from a 8-K12G3 on 08/24/2020   Download
SEC Document
SEC Filing

Amended and Restated Articles of Incorporation

On the Effective Date, the Company’s Amended and Restated Articles of Incorporation (the “Articles”) and Amended and Restated Bylaws (the “Bylaws”) became effective. The Articles provide that the Company’s authorized capital stock consists of 250,000,000 shares of common stock, without par value (the “Common Stock”), and 10,000,000 shares of preferred stock, without par value (the “Preferred Stock”).

Common Stock. The Articles provide that each share of Common Stock shall be entitled to one vote on all matters submitted to a vote at any meeting of shareholders. The Articles provide that except as required by the Virginia Stock Corporation Act (the “VSCA”), as may be required by the Company’s board of directors under the VSCA and the Special Vote Requirement (described below) (i) any corporate action, except the election of directors, an amendment or restatement of the Articles, a merger, a statutory share exchange, the sale or other disposition of all or substantially all the Company’s assets otherwise than in the usual and regular course of business, or dissolution shall, for each voting group entitled to vote on the matter, be approved at a meeting at which a quorum of the voting group is present if the votes cast in favor of the action exceed the votes cast against the action, (ii) an amendment or restatement of the Articles, a merger, a statutory share exchange, a conversion, a domestication, the sale or other disposition of all or substantially all the Company’s assets other than in the usual and regular course of business, or dissolution shall, for each voting group entitled to vote on the matter, be approved at a meeting by a majority of the votes entitled to be cast by each voting group that is entitled to vote on the matter, and (iii) directors shall be elected by a majority of the votes entitled to be cast by the shares entitled to vote in the election at a meeting at which a quorum is present. The Articles provide that, subject to the rights of holders of Preferred Stock and subject to any other provisions of the Articles or any amendment thereto, holders of Common Stock shall be entitled to receive such dividends and other distributions in cash, stock or property of the Company as may be declared thereon by its board of directors from time to time


Preferred Stock. The Articles provide that the Company’s board of directors may determine the preferences, limitations and relative rights, to the extent permitted by the VSCA, of any class of shares of Preferred Stock before the issuance of any shares of that class, or of one or more series within a class before the issuance of any shares of that series. Each class or series shall be appropriately designated by a distinguishing designation prior to the issuance of any shares thereof. The Preferred Stock of all series shall have preferences, limitations and relative rights identical with those of other shares of the same series and, except to the extent otherwise provided in the description of the series, with those of shares of other series of the same class. Prior to the issuance of any shares of a class or series of Preferred Stock, the Company’s board of directors must establish such class or series by adopting a resolution and by filing with the State Corporation Commission of Virginia articles of amendment to the Articles setting forth the designation and number of shares of the class or series and the relative rights and preferences thereof.

Prohibition against Issuance of Non-voting Equity. As provided in the Confirmation Order, the Articles include a provision prohibiting the Company from issuing nonvoting equity securities (as such term is defined in Section 101(16) of the Bankruptcy Code) to the extent prohibited by Section 1123(a)(6) of the Bankruptcy Code for so long as such Section 1123(a)(6) is in effect and applicable to the Company.

No Preemptive Rights. The Articles provide that no holder of shares of any class of the Company has, by virtue of ownership of such shares, any preemptive or preferential right to purchase any shares of any class of the Company or any other securities of the Company.

Board of Directors. The Articles provide that the number of directors of the Company (each, a “Director”) shall be seven or such other number as the board of directors may from time to time determine; provided, that the size of the board of directors shall not be less than five and provided, further, that the tenure of office of a director shall not be affected by any decrease in the number of directors so made by the board of directors. Directors are to be elected to serve terms expiring at the next annual meeting of shareholders. The Articles further provide that, unless otherwise provided in the Bylaws, if any Director resigns or retires as a member of the board of directors or otherwise becomes unable or unwilling to serve as a Director, the remaining Directors shall fill such vacancy by appointing a Director, and such newly elected Director shall hold office for a term expiring at the next annual meeting of the shareholders.

The Articles include a provision, consistent with the provision included in the Shareholders Agreement as described above, for the election of the chairperson of the board of directors. The Articles also include provisions for the calling of special meetings of shareholders in connection with the request by the Glendon Investor for the removal and replacement of the Glendon Directors and the request of the Monarch Investor for the removal and replacement of the Monarch Directors The Articles include provisions, consistent with those included in the Shareholders Agreement, providing for the rights of Glendon Directors and Monarch Directors to call meetings of the board of directors, the presence of Glendon Directors and Monarch Directors necessary to establish a quorum for meetings of the board of directors, and requirements for the inclusion of Glendon Directors and Monarch Directors in the membership of committees of the board of directors of the Company.

The Articles provide that, to the fullest extent permitted by applicable law, no Director or other person shall have any duty to offer the Company the right to have or participate in any business opportunities before the pursuit or taking of the opportunity by the Director or other person, provided that the taking of such an opportunity by an officer of the Company or a related person of that officer must be approved by the board of directors by action of disinterested directors taken in compliance with the procedures as are set forth in Section 13.1-691 of the VSCA and may be limited by the approving action of the board of directors.

Exculpation and Indemnification. The Articles provide that in any proceeding brought by a shareholder of the Company in the right of the Company or brought by or on behalf of shareholders of the Company, no director or officer of the Company shall be liable to the Company or its shareholders for monetary damages with respect to any transaction, occurrence or course of conduct, whether prior or subsequent to the date hereof, except for liability resulting from such person’s having engaged in willful misconduct or a knowing violation of the criminal law or any federal or state securities law.

The Articles require the Company to indemnify (1) any person who is, was or is threatened to be made a party to any proceeding, including a proceeding brought by a shareholder in the right of the Company or brought by or on behalf of shareholders of the Company, by reason of the fact that such person is or was a director or officer of the Company, and (2) any director or officer of the Company who is or was serving at the request of the Company as a director, trustee, partner or officer of another corporation, partnership, joint venture, trust, employee benefit plan or


other enterprise, against any liability incurred by such person in connection with such proceeding, except that the Company shall make no indemnity against the willful misconduct or knowing violation of the criminal law of any Director or officer. A person is considered to be serving an employee benefit plan at the Company’s request if such person’s duties to the Company also impose duties on, or otherwise involve services by, such person to the plan or to participants in or beneficiaries of the plan. The Article require the Company to promptly take all such actions, and make all such determinations, as shall be necessary or appropriate to comply with its obligations to make any indemnity under the Articles and promptly pay or reimburse all reasonable expenses, including attorneys’ fees, incurred by any such person in connection with such actions and determinations or proceedings of any kind arising therefrom.

Pursuant to the Articles, the Company must take action to indemnify a person seeking indemnification pursuant to the Articles unless the Company determines, within a reasonable time following such person’s demand upon the Company for indemnification, that such person is not entitled to indemnification. The determination shall be made (i) by the board of directors by a majority vote of a quorum consisting of directors not at the time parties to the proceeding, (ii) if such a quorum may not be obtained, by majority vote of a committee duly designated by the board of directors (in which designation directors who are parties may participate), consisting solely of two or more Directors not at the time parties to the proceeding, or (iii) by special legal counsel selected in the manner provided in the Articles. The Articles also provide for the advancement of expenses to persons indemnified thereunder in the manner specified in the Articles.

Opt-out from Anti-takeover Statutes. The Articles include an article, carried forward from the Company’s initial articles of incorporation filed with the Virginia State Corporation Commission, providing that Article 14 of Chapter 9 of Title 13.1 of the Code of Virginia (Affiliated Transactions) and Article 14.1 of Chapter 9 of Title 13.1 of the Code of Virginia (Control Share Acquisitions) shall not apply to the Company.

Special Vote Requirement. Article VIII of the Articles (the “Special Vote Requirement”) provides that any amendment or restatement of the Articles shall, in addition to any vote required under the Articles or the VSCA, require (i) the affirmative vote of a majority of the shares of Common Stock entitled to be voted by the shareholders who are parties to the Shareholders Agreement, voting as a group, (ii) the affirmative vote of the Glendon Investor if as of the record date for shareholder action with respect to such amendment or restatement the Glendon Investor’s Investor Percentage Interest (as defined in the Articles) is at least 5% and (iii) the affirmative vote of the Monarch Investor if as of the record date for shareholder action with respect to such amendment or restatement the Monarch Investor’s Investor Percentage Interest is at least 5%. The Articles provide that, notwithstanding the foregoing, no shareholder vote shall be required to amend the article designating the Company’s registered agent, which may be amended by action of the board of directors pursuant to the VSCA. The Articles further provide that the Bylaws may be amended or restated only by the shareholders of the Company upon the affirmative vote of a majority of all votes entitled to be cast by each voting group entitled to vote on the amendment or restatement; provided, however, that any amendment or restatement of the Bylaws shall in addition require (1) the affirmative vote of a majority of the shares of Common Stock entitled to be voted by the shareholders that are parties to the Shareholders Agreement, voting as a group, (2) the affirmative vote of the Glendon Investor if as of the record date for shareholder action with respect to such amendment or restatement the Glendon Investor’s Investor Percentage Interest is at least 5% and (3) the affirmative vote of the Monarch Investor if as of the record date for shareholder action with respect to such amendment or restatement the Monarch Investor’s Investor Percentage Interest is at least 5%.