STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 06:00 PM 02/26/2002
020130457 - 3471110
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ATT HOLDING CO.
The undersigned, ATT Holding Co. (the "Corporation"), having filed its
original Certificate of Incorporation with the Secretary of State of the State
of Delaware on December 20, 2001, and its Amended and Restated Certificate of
Incorporation with the Secretary of State of the State of Delaware on January
10, 2002, does hereby further amend and restate its Certificate of Incorporation
and certify as follows:
I. That the Board of Directors of the Corporation, adopted a resolution
by written consent in accordance with Section 141(f) of the General Corporation
Law of the State of Delaware, as amended from time to time (the "GCL"), setting
forth the Second Amended and Restated Certificate of Incorporation set forth
below (the "Certificate"), declaring it advisable and voting in favor of the
adoption of the Certificate.
II. That the Certificate has been duly adopted in accordance with
Section 242 of the GCL:
FIRST: Corporate Name. The name of the corporation is "ATT Holding
Co."
SECOND: Registered Office. The address of the registered office of the
Corporation is 1209 Orange Street, in the City of Wilmington, County of New
Castle. The name of the registered agent of the Corporation at such address is
The Corporation Trust Company.
THIRD: Corporate Purpose. The nature of the business of the
Corporation or the purposes of the Corporation to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be organized
under the GCL.
FOURTH: Capital Stock.
(A) Authorized Shares. The total number of shares of all classes of
stock which the Corporation shall have the authority to issue is Two Million
(2,000,000) shares, of which (i) One Million Nine Hundred Thousand (1,900,000)
shares shall be designated Common Stock, $0.0001 par value per share (the
"Common Shares"), which Common Shares shall be further divided, as follows: One
Million Six Hundred Thousand (1,600,000) of such Common Shares shall be
designated Class A Common Stock, $0.0001 par value per share (the "Class A
Common Stock"), and Three Hundred Thousand (300,000) of such Common Shares shall
be designated Class B Common Stock, $0.0001 par value per share (the "Class B
Common Stock" and, together with the Class A Common Stock, the "Common Stock"),
and (ii) One Hundred Thousand (100,000) shares shall be designated Preferred
Stock, $0.0001 par value per share (the "Preferred Stock"),
of which One Hundred Thousand (100,000) shares of Preferred Stock shall be
designated Series A Preferred Stock, $0.0001 par value per share (the "Series A
Preferred Stock").
(B) Authority of Board to Fix Terms of Preferred Stock. The Board of
Directors of the Corporation is hereby expressly authorized at any time and from
time to time to provide for the issuance of all or any shares of the Preferred
Stock in one or more additional classes or series, and to fix for each such
class or series such voting powers, full or limited, or no voting powers, and
such distinctive designations, preferences and relative, participating, optional
or other special rights and such qualifications, limitations or restrictions
thereof, as shall be stated and expressed in the resolution or resolutions
adopted by the Board of Directors providing for the issuance of such class or
series and to the fullest extent as may now or hereafter be permitted by the
GCL, including, without limiting the generality of the foregoing, the authority
to provide that any such class or series may be (i) subject to redemption at
such time or times and at such price or prices; (ii) entitled to receive
dividends (which may be cumulative or non-cumulative) at such rates, on such
conditions, and at such times, and payable in preference to, or in such relation
to, the dividends payable on any other class or classes or any other series;
(iii) entitled to such rights upon the dissolution of, or upon any distribution
of the assets of, the Corporation; or (iv) convertible into, or exchangeable
for, shares of any other class or classes of stock, or of any other series of
the same or any other class or classes of stock, or other securities or
property, of the Corporation at such price or prices or at such rates of
exchange and with such adjustments; all as may be stated in such resolution or
resolutions. Unless otherwise provided in such resolution or resolutions, shares
of Preferred Stock of such class or series which shall be issued and thereafter
acquired by the Corporation through purchase, redemption, exchange, conversion
or otherwise shall return to the status of authorized but unissued Preferred
Stock.
(C) Common Stock.
Section 1. General. The voting, dividend and liquidation rights of the
holders of shares of Common Stock are subject to, and qualified by, the rights
of the holders of Preferred Stock of any series as may be designated by the
Board of Directors. Except as otherwise provided herein or in the Stockholders
Agreement, the Class A Common Stock and the Class B Common Stock shall be
identical and shall entitle the respective holders to the same rights and
privileges.
Section 2. Voting.
2A. General. Except as otherwise provided by the GCL or by the
Stockholders Agreement, on all matters submitted to a vote of the stockholders
of the Corporation, the Class A Common Stock and the Class B Common Stock shall
vote together as a single class. At every meeting of the stockholders of the
Corporation, every holder of class A Common Stock shall be entitled to one (1)
vote per person or by proxy for each share of Class A Common Stock standing in
such holder's name on the transfer books of the Corporation, and every holder of
Class B Common Stock shall be entitled to one (1) vote in person or by proxy for
each share of Class B Common Stock standing in such holder's name on the
transfer books of the Corporation.
2B. Special Provisions Regarding Election of Directors. Notwithstanding
paragraph 2A above, solely with respect to the election of directors to the
Board of Directors: (i) the holders
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of shares of Class B Common Stock then outstanding shall have, in the aggregate,
that number of votes equal to the lesser of (x) the aggregate of such holders'
voting rights solely with respect to the election of directors to the Board of
Directors ("Board Voting Rights") as determined in accordance with subparagraph
2A above, or (y) twenty-nine and ninety-nine hundredths percent (29.99%) of the
voting power of the Corporation, less the aggregate voting power with respect to
the election of directors held by the holders of Class B Common Stock other than
pursuant to subparagraph 2A above, including indirect voting power, as
identified by such holders in writing to the Corporation from time to time, and
(ii) the aggregate Board Voting Rights of any "person" or "group" (as defined in
Section 13(d) and 14(d) of the Exchange Act) other than holders of shares of
Class B Common Stock (the "Remaining Common Holders") shall have that number of
votes equal to the greater of (x) the Remaining Common Holders' actual aggregate
Board Voting Rights as determined in accordance with paragraph 2A above, or (y)
seventy and one-hundredth percent (70.01%) of the voting power of the
Corporation.
2C. Proration of Incremental Voting Percentage. In the event that, in
accordance with subparagraph 2B(ii)(y) above, the aggregate Board Voting Rights
of the Remaining Common Holders are increased over and above the actual
aggregate Board Voting Rights of the Remaining Common Holders in accordance with
paragraph 2A above (such increase being referred to herein as the "Incremental
Board Voting Percentage"), the Incremental Board Voting Percentage shall be
allocated among the Remaining Common Holders on a pro rata basis in accordance
with the ratio of (x) the number of shares of Class A Common Stock held by any
such Remaining Common Holder to (y) the aggregate number of shares of Class A
Common Stock held by all of the Remaining Common Holders.
Section 3. Conversion of Class B Common Stock.
3A. Voluntary Conversion. Each record holder of shares of Class B Common
Stock may convert such shares into an equal number of shares of Class A Common
Stock by surrendering the certificates for such shares, accompanied by any
required tax transfer stamps and by a written notice by such record holder to
the Corporation stating that such record holder desires to convert such shares
of Class B Common Stock into the same number of shares of Class A Common Stock
and requesting that the Corporation issue all of such shares of Class A Common
Stock to persons named therein, and setting forth the number of shares of Class
A Common Stock to be issued to each such person and the denominations in which
the certificates therefor are to be issued. To the extent permitted by law, such
voluntary conversion shall be deemed to have been effected at the close of
business on the date of such surrender.
3B. Automatic Conversion. Each share of Class B Common Stock shall
automatically convert into one share of Class A Common Stock upon a Transfer (as
defined in the Stockholders Agreement) to a person other than a Permitted
Transferee (as defined in the Stockholders Agreement). The term "Transfer" as
used herein shall not include a pledge or hypothecation of shares of Class B
Common Stock; provided, however, that a Transfer shall have occurred if a
pledgee or party to whom such shares are hypothecated forecloses thereon. If any
shares of Class B Common Stock are held by a Permitted Transferee and such
Permitted Transferee shall cease to be a Permitted Transferee, then such shares
of Class B Common Stock shall automatically be converted into an equal number of
shares of Class A Common Stock. In addition, each share of Class B Common Stock
shall automatically convert into one share of
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Class A Common Stock if at any time the aggregate number of shares of Class B
Common Stock then outstanding is less than five percent (5%) of the aggregate
number of shares of Common Stock then outstanding (assuming conversion, exercise
or exchange of all outstanding options and convertible securities, including
warrants).
The Corporation will provide notice of any automatic conversion pursuant
to this subparagraph 3B of all outstanding Class B Common Stock to all holders
of record of shares of Common Stock as soon as practicable following such
conversion; provided, however, that the Corporation may also satisfy such notice
requirement by providing such notice prior to such conversion. Such notice shall
be provided by mailing notice of such conversion, first class, postage prepaid,
to each holder of record of Common Shares, at such holder's address as it
appears on the transfer books of the Corporation; provided, however, that no
failure to give such notice nor any defect therein shall affect the validity of
the automatic conversion of any share of Class B Common Stock. Each such notice
shall state, as appropriate, the following:
(i) the automatic conversion date;
(ii) that all outstanding shares of Class B Common Stock are to be
or have been automatically converted on such automatic conversion date, and that
from such automatic conversion date the certificates evidencing any shares of
Class B Common Stock shall evidence the same number of shares of Class A Common
Stock; and
(iii) the place or places where certificates for such shares are to
be surrendered for exchange for certificates evidencing the shares of Class A
Common Stock.
Immediately upon such conversion on the automatic conversion date, the
rights of the holders of shares of Class B Common Stock as such shall cease and
such holders shall be treated for all purposes as having become the record
owners of the shares of Class A Common Stock issuable upon such conversion;
provided, however, that such persons shall be entitled to receive when paid any
dividends declared on the Class B Common Stock as of a record date preceding the
time of such conversion and unpaid as of the time of such conversion, subject to
Section 4 below.
3C. Reissuance of Class B Common Stock. The Corporation shall not
reissue or resell any shares of Class B Common Stock which shall have been
converted into shares of Class A Common Stock pursuant to or as permitted by the
provisions of this Section 3, or any shares of Class B Common Stock which shall
have been acquired by the Corporation in any other manner. The Corporation
shall, from time to time, take such appropriate action as may be necessary to
retire such shares and to reduce the authorized amount of Class B Common Stock
accordingly.
3D. Reservation of Shares. The Corporation shall at all times reserve
and keep available, out of its authorized but unissued Common Stock, such number
of shares of Class A Common Stock as would be issuable upon the conversion of
all shares of Class B Common Stock then outstanding.
3E. Additional Provisions Relating to Transfer and Conversion of Class B
Common Stock. In connection with any Transfer or conversion of shares of Class B
Common Stock
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pursuant to or as permitted by the provisions of this Section 3, or in
connection with the making of any determination referred to in this Section 3:
(i) The Corporation shall be under no obligation to make any
investigation of facts unless an officer, employee or agent of the Corporation
responsible for making such Transfer or determination or issuing shares of Class
A Common Stock pursuant to such conversion has substantial reason to believe, or
unless the Board determines that there is substantial reason to believe, that
any notice or other document is incomplete or incorrect in a material respect or
that an investigation would disclose facts upon which any determination referred
to in this Section 3 above should be made, in either of which events the
Corporation shall make or cause to be made such investigation as it may deem
necessary or desirable in the circumstances and have a reasonable time to
complete such investigation.
(ii) Except as otherwise required by law, neither the Corporation
nor any director, officer, employee or agent of the Corporation shall be liable
in any manner for any action taken or omitted in good faith in connection with
the registration of Transfer of the shares of Common Stock.
(iii) The Corporation will not be required to pay any documentary,
stamp or similar issue or transfer taxes payable in respect of the issue or
delivery of shares of Class A Common Stock on the conversion of shares of Class
B Common Stock pursuant to this Section 3, and no such issue or delivery shall
be made unless and until the person or entity requesting such issue has paid to
the Corporation the amount of any such tax or has established, to the
satisfaction of the Corporation, that such tax has been paid.
Section 4. Dividends. Dividends may be declared and paid on the Common
Stock from funds lawfully available therefor as, if and when determined by the
Board of Directors and subject to any limitations or restrictions contained in,
or any preferential dividend rights of, any then outstanding series of Preferred
Stock. Stock dividends payable on shares of Common Stock may be paid only in
shares of Common Stock.
Section 5. Liquidation. Upon the voluntary or involuntary liquidation,
sale, merger, consolidation, dissolution or winding up of the Corporation,
holders of shares of Common Stock will be entitled to receive all assets of the
Corporation available for distribution to its stockholders, subject to any
preferential rights of any then outstanding series of Preferred Stock.
(D) Series A Preferred Stock.
Unless otherwise defined herein, capitalized terms used herein shall have
the respective meanings set forth in Section 8 below.
Section 1. Dividends.
1A. General Obligation. When and as declared by the Corporation's Board
of Directors and to the extent permitted under the GCL, the Corporation shall
pay preferential dividends in cash to the holders of the Series A Preferred
Stock as provided in this Section 1. Dividends on each share of the Series A
Preferred Stock (a "Share") shall accrue on a daily basis
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at the rate of ten percent (10%) per annum of the sum of the Liquidation Value
thereof plus all accumulated and unpaid dividends thereon from and including the
date of issuance of such Share to and including the first to occur of (i) the
date on which the Liquidation Value of such Share (plus all accrued and unpaid
dividends thereon) is paid to the holder thereof in connection with the
liquidation of the Corporation or the redemption of such Share by the
Corporation or (ii) the date on which such Share is otherwise acquired by the
Corporation. Such dividends shall accrue whether or not they have been declared
and whether or not there are profits, surplus or other funds of the Corporation
legally available for the payment of dividends, and such dividends shall be
cumulative such that all accrued and unpaid dividends shall be fully paid or
declared with funds irrevocably set apart for payment before any dividends,
distributions, redemptions or other payments may be made with respect to any
Junior Securities. The date on which the Corporation initially issues any Share
shall be deemed to be its "date of issuance" regardless of the number of times
transfer of such Share is made on the stock records maintained by or for the
Corporation and regardless of the number of certificates which may be issued to
evidence such Share.
1B. Dividend Reference Dates. To the extent not paid on March 31,
June 30, September 30 and December 31 of each year, beginning March 31, 2002
(the "Dividend Reference Dates"), all dividends which have accrued on each Share
outstanding during the three-month period (or other period in the case of the
initial Dividend Reference Date) ending upon each such Dividend Reference Date
shall be accumulated and shall remain accumulated dividends with respect to such
Share until paid to the holder thereof.
1C. Distribution of Partial Dividend Payments. Except as otherwise
provided herein, if at any time the Corporation pays less than the total amount
of dividends then accrued with respect to the Series A Preferred Stock, such
payment shall be distributed pro rata among the holders thereof based upon the
aggregate accrued but unpaid dividends on the Shares held by each such holder.
Section 2. Liquidation.
Upon any liquidation, dissolution or winding up of the Corporation
(whether voluntary or involuntary), each holder of Series A Preferred Stock
shall be entitled to be paid, before any distribution or payment is made upon
any Junior Securities, an amount in cash equal to the aggregate Liquidation
Value of all Shares held by such holder plus all accrued and unpaid dividends
thereon, and the holders of Series A Preferred Stock shall not be entitled to
any further payment. If upon any such liquidation, dissolution or winding up of
the Corporation the Corporation's assets to be distributed among the holders of
the Series A Preferred Stock are insufficient to permit payment to such holders
of the aggregate amount which they are entitled to be paid under this Section 2,
then the entire assets available to be distributed to the Corporation's
stockholders shall be distributed pro rata among such holders based upon the
aggregate Liquidation Value plus all accrued and unpaid dividends of the Series
A Preferred Stock held by each such holder. Prior to the liquidation,
dissolution or winding up of the Corporation, the Corporation shall declare for
payment all accrued and unpaid dividends with respect to the Series A Preferred
Stock, but only to the extent of funds of the Corporation legally available for
the payment of dividends. Not less than sixty (60) days prior to the payment
date stated therein, the Corporation shall mail written notice of any such
liquidation, dissolution or winding up to each record holder of Series A
Preferred Stock, setting forth in reasonable detail the amount of
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proceeds to be paid with respect to each Share and each share of Common Stock in
connection with such liquidation, dissolution or winding up.
Section 3. Priority of Series A Preferred Stock on Dividends and
Redemptions.
So long as any Series A Preferred Stock remains outstanding, without the
prior written consent of the holders of greater than seventy-five percent (75%)
of the outstanding shares of Series A Preferred Stock, the Corporation shall
not, nor shall it permit any Subsidiary to, redeem, purchase or otherwise
acquire directly or indirectly any Junior Securities, nor shall the Corporation
directly or indirectly pay or declare any dividend or make any distribution upon
any Junior Securities; provided that the Corporation may repurchase shares of
Common Stock pursuant to agreements approved by the Corporation's Board of
Directors from present or former employees of the Corporation or its
Subsidiaries.
Section 4. Voting Rights.
Except as otherwise provided herein and as otherwise required by
applicable law, the Series A Preferred Stock shall have no voting rights;
provided that each holder of Series A Preferred Stock shall be entitled to
notice of all stockholders meetings at the same time and in the same manner as
notice is given to all stockholders entitled to vote at such meetings.
Section 5. Events of Noncompliance.
5A. Definition. An Event of Noncompliance shall have occurred if:
(i) the Corporation or any Subsidiary makes an assignment for the
benefit of creditors or admits in writing its inability to pay its debts
generally as they become due; or an order, judgment or decree is entered
adjudicating the Corporation or any Subsidiary bankrupt or insolvent; or any
order for relief with respect to the Corporation or any Subsidiary is entered
under the Federal Bankruptcy Code; or the Corporation or any Subsidiary
petitions or applies to any tribunal for the appointment of a custodian,
trustee, receiver or liquidator of the Corporation or any Subsidiary or of any
substantial part of the assets of the Corporation or any Subsidiary, or
commences any proceeding (other than a proceeding for the voluntary liquidation
and dissolution of a Subsidiary) relating to the Corporation or any Subsidiary
under any bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution or liquidation law of any jurisdiction; or any such petition
or application is filed, or any such proceeding is commenced, against the
Corporation or any Subsidiary and either (a) the Corporation or any such
Subsidiary by any act indicates its approval thereof, consent thereto or
acquiescence therein or (b) such petition, application or proceeding is not
dismissed within sixty (60) days; or
(ii) the Corporation or any Subsidiary defaults in the performance
of any obligation or agreement if the effect of such default is to cause an
amount exceeding $1,000,000 to become due prior to its stated maturity or to
permit the holder or holders of any obligation to cause an amount exceeding
$1,000,000 to become due prior to its stated maturity.
5B. Consequences of Events of Noncompliance.
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(i) If an Event of Noncompliance has occurred and is continuing
(a) the number of directors constituting the entire Board of Directors shall be
automatically increased by three (3) (the "Additional Directors") and (b) the
holders of a majority of the outstanding Series A Preferred Stock shall be
entitled to elect all such Additional Directors, none of whom need be
stockholders of the Corporation. The term of office of all persons who are
directors of the Corporation at the time Additional Directors are elected shall
continue, notwithstanding the election of the Additional Directors.
(A) Each Additional Director so elected shall hold office
until the earlier of (i) election and qualification of his or her successor by
the holders of Series A Preferred Stock, (ii) earlier resignation or removal, or
(iii) the first date after such Additional Director's election on which (a)
there no longer exists and is continuing an Event of Noncompliance or (b) no
shares of Series A Preferred Stock remain outstanding. Upon the cessation of an
Event of Noncompliance or if no shares of Series A Preferred Stock remain
outstanding, the number of directors constituting the entire Board shall be
determined as set forth in this Certificate of Incorporation and in the
Corporation's bylaws.
(B) As soon as practicable after the occurrence and during
the continuance of an Event of Noncompliance, upon a request by one or more
holders of Series A Preferred Stock, the Board will call or cause to be called a
special meeting of the holders of the Series A Preferred Stock solely for the
election of the Additional Directors by promptly mailing or causing to be mailed
to such holders a notice of such special meeting to be held not less than ten
(10) and not more than twenty (20) days after the date such notice is given. If
the Board does not call or cause to be called such a special meeting by mailing
or causing to be mailed a notice pursuant to the preceding sentence by the 1Oth
day after the request of any such holder to do so, such special meeting may be
called by any of such holders on like notice. The record date for determining
the holders of the Series A Preferred Stock entitled to notice of and to vote at
such special meeting will be the close of business on the business day preceding
the day on which such notice is mailed. If an Event of Noncompliance shall cease
after the notice of a special meeting has been given but before such special
meeting has been held, the Corporation shall, as soon as practicable after such
cessation, mail or cause to be mailed notice of such cessation to the holders.
Anything in this paragraph to the contrary notwithstanding, if the required
number of Additional Directors is elected by the written consent of the holders
of Series A Preferred Stock in compliance with the GCL, the special meeting
contemplated by this paragraph need not be called or held.
(ii) If any Event of Noncompliance exists, each holder of Series A
Preferred Stock shall also have any other rights which such holder is entitled
to under any contract or agreement at any time and any other rights which such
holder may have pursuant to applicable law.
Section 6. Amendment and Waiver.
No amendment, modification or waiver shall be binding or effective with
respect to any provision of ARTICLE FOURTH Section (D) hereof without the prior
written consent of the holders of a majority of the Series A Preferred Stock
outstanding at the time such action is taken; provided that no such action shall
change (i) the rate at which or the manner in which dividends
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on the Series A Preferred Stock accrue or the times at which such dividends
become payable or (ii) the percentage required to approve any change described
in clause (i) above, without the prior written consent of the holders of at
least 90% of the Series A Preferred Stock then outstanding; and provided further
that no change in the terms hereof may be accomplished by merger or
consolidation of the Corporation with another corporation or entity unless the
Corporation has obtained the prior written consent of the holders of the
applicable percentage of the Series A Preferred Stock then outstanding.
(E) Registration of Transfer.
The Corporation shall keep at its principal office a register for the
registration of shares of its capital stock. Upon the surrender of any
certificate representing any shares of capital stock of the Corporation at such
place, the Corporation shall, at the request of the record holder of such
certificate, execute and deliver (at the Corporation's expense) a new
certificate or certificates in exchange therefor representing in the aggregate
the number of shares represented by the surrendered certificate. Each such new
certificate shall be registered in such name and shall represent such number of
shares as is requested by the holder of the surrendered certificate and shall be
substantially identical in form to the surrendered certificate, and, with
respect to the Series A Preferred Stock, dividends shall accrue on the Series A
Preferred Stock represented by such new certificate from the date to which
dividends have been fully paid on such Series A Preferred Stock represented by
the surrendered certificate.
(F) Replacement.
Upon receipt of evidence reasonably satisfactory to the Corporation (an
affidavit of the registered holder shall be satisfactory) of the ownership and
the loss, theft, destruction or mutilation of any certificate evidencing shares
of capital stock, and in the case of any such loss, theft or destruction, upon
receipt of indemnity reasonably satisfactory to the Corporation (provided that
if the holder is a financial institution or other institutional investor its own
agreement shall be satisfactory), or, in the case of any such mutilation upon
surrender of such certificate the Corporation shall (at its expense) execute and
deliver in lieu of such certificate a new certificate of like kind representing
the number of shares of such class represented by such lost, stolen, destroyed
or mutilated certificate and dated the date of such lost, stolen, destroyed or
mutilated certificate, and, with respect to the Series A Preferred Stock,
dividends shall accrue on the Series A Preferred Stock represented by such new
certificate from the date to which dividends have been fully paid on such lost,
stolen, destroyed or mutilated certificate.
(G) Definitions.
"Common Stock" has the meaning set forth in ARTICLE FOURTH Section (A)
hereof.
"Junior Securities" means any capital stock, or other equity securities of
the Corporation, except for the Series A Preferred Stock.
"Liquidation Value" of any Share as of any particular date shall be equal
to $1,000.00.
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"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Stockholders Agreement" means the Stockholders Agreement, dated as of
January 14, 2002, by and among the Corporation and certain of its shareholders,
as such agreement may from time to time be amended in accordance with its terms.
"Subsidiary" means, with respect to any Person, any corporation, limited
liability company, partnership, association or other business entity of which,
(i) if a corporation, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity, a majority
of the partnership or other similar ownership interest thereon is at the time
owned or controlled directly or indirectly, by any Person or one or more
Subsidiaries of that person or a combination thereof. For purposes hereof, a
Person or Persons shall be deemed to have a majority ownership interest in a
limited liability company, partnership, association or other business entity if
such Person or Persons shall be allocated a majority of limited liability
company, partnership, association or other business entity gains or losses or
shall be or control the managing general partner of such limited liability
company, partnership, association or other business entity.
(H) Notices.
Except as otherwise expressly provided hereunder, all notices referred to
herein shall be in writing and shall be delivered by registered or certified
mail, return receipt requested and postage prepaid, or by reputable overnight
courier service, charges prepaid, and shall be deemed to have been given when so
mailed or sent (i) to the Corporation, at its principal executive offices and
(ii) to any stockholder, at such holder's address as it appears in the stock
records of the Corporation (unless otherwise indicated by any such holder).
FIFTH: Elections of directors need not be by written ballot.
SIXTH: The Board of Directors shall have the power, in addition to
the stockholders, to make, alter, or repeal the bylaws of the Corporation.
SEVENTH: The Corporation shall have the right to indemnify the officers
and directors of the Corporation to the fullest extent permitted under the GCL.
EIGHTH: A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the 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) under Section 174 of the GCL, or (iv) for any
transaction from which the director derived an improper personal benefit. All
references in this paragraph to a director shall also be deemed to refer to such
other person or persons, if any, who, pursuant to any provision of this
Certificate of Incorporation in accordance with subsection (a) of Section 141 of
the GCL,
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exercise or perform any of the powers or duties otherwise conferred or imposed
upon the Board of Directors by the GCL.
NINTH: Other than as specifically set forth herein, the Corporation
reserves the right to amend, alter, change or repeal any provision contained in
this Amended and Restated 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.
This Amended and Restated Certificate of Incorporation was duly adopted in
accordance with the provisions of Sections 242 and 245 of the GCL.
[REMAINDER OF PAGE INTENTIONALLY BLANK.]
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IN WITNESS WHEREOF, ATT Holding Co. has caused this Second Amended and
Restated Certificate of Incorporation to be executed on this 26th day of
February, 2002.
ATT HOLDING CO.
By: /s/ Michael Solot
---------------------------
Michael Solot
President
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CERTIFICATE OF INCORPORATION
OF
HM AMES TOOL COMPANY
FIRST: The name of the Corporation is HM Ames Tool Company (hereinafter
sometimes called the "Corporation").
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 306 South State Street, in the City of Dover, County of
Kent. The name of its registered agent at that address is the United States
Corporation Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of Delaware as set forth in Title 8 of the Delaware Code (the "GCL").
FOURTH: The total number of shares of capital stock which the
Corporation shall have authority to issue is One Hundred, One Thousand
(101,000) shares of which One Thousand (1,000) shares having a par value of One
Dollar ($1.00) per share shall be of a class designated "Common Stock" and One
Hundred Thousand (100,000) shares
any class or any other series of Preferred Stock and, if so, the terms and
conditions of such conversion or exchange, including the method of adjusting
the rates of conversion or exchange in the event of a stock split, stock
dividend, combination of shares or similar event;
(7) Whether the shares of that series shall have voting rights, in
addition to the voting rights provided by law and, if so, the terms of such
voting rights;
(8) Whether the issuance of any additional shares of such series, or
of any shares of any other series, shall be subject to restriction as to
issuance, or as to the powers, preferences or rights of any such other series;
(9) Any other preferences, privileges and powers, and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions of such series, as the Board of Directors may deem advisable and
as shall not be inconsistent with the provisions of this Certificate of
Incorporation and to the full extent now or hereafter permitted by the laws of
Delaware.
(c) Payment of dividends shall be as follows:
(1) The holders of Preferred Stock of each series, in preference to
the holders of the Common Stock, shall be entitled to receive, as and when
declared by the Board of Directors out of funds legally available therefor,
4
cash dividends, at the rate for such series fixed in accordance with the
provisions of Paragraph 1(b)(2) of this Article FOURTH and no more;
(2) No dividend shall be paid upon, or declared or set aside for,
any share of Preferred Stock with respect to any dividend period unless at the
same time a like proportionate dividend with respect to the same dividend
period, ratably in proportion to the respective annual dividend rates fixed
therefor, shall be paid upon, or declared and set apart for, all shares of
Preferred Stock of all series then issued and outstanding and entitled to
receive such dividend;
(3) So long as any shares of Preferred Stock shall be outstanding,
in no event shall any dividend, whether in cash or property, be paid or
declared, nor shall any distribution be made, on the Common Stock, nor shall any
shares of the Common Stock be purchased, redeemed or otherwise acquired for
value by the Corporation, unless all dividends on all cumulative series of
Preferred Stock with respect to all past dividend periods and unless all
dividends on all series of Preferred Stock for the then current dividend period
shall have been paid or declared, and provided for, and unless the Corporation
shall not be in default with respect to any of its obligations with respect to
any sinking
5
fund for any series of Preferred Stock. The foregoing provisions of this
Subparagraph (3) shall not, however, apply to a dividend payable in Common
Stock;
(4) No dividends shall be deemed to have accrued on any share of
Preferred Stock of any series with respect to any period prior to the date of
original issue of such share or the dividend payment date immediately preceding
or following such date of original issue, as may be provided in the resolution
or resolutions of the Board of Directors creating such series. The Preferred
Stock shall not be entitled to participate in any dividends declared and paid on
the Common Stock, whether payable in cash, stock or otherwise. Accruals of
dividends shall not bear interest.
(d) In the event of any voluntary or involuntary liquidation,
dissolution, distribution of assets or winding-up of the Corporation, the
holders of the shares of each series of the Preferred Stock then outstanding
shall be entitled to receive out of the net assets of the Corporation, but only
in accordance with the preferences, if any, provided for such series, before any
distribution or payment shall be made to the holders of the Common Stock, the
amount per share fixed by the resolutions of the Board of Directors to be
received by the holders of each such share on such
6
voluntary or involuntary liquidation, dissolution, distribution of assets or
winding-up, as the case may be. If such payment shall have been made in full, to
the holders of all outstanding Preferred Stock of all series, or duly provided
for, the remaining assets of the Corporation shall be available for distribution
among the holders of the Common Stock (as provided in Paragraph II(b) of this
Article FOURTH). If upon any such liquidation, dissolution, distribution of
assets of winding-up, the net assets of the Corporation available for
distribution among the holders of any one or more series of the Preferred Stock
which (i) are entitled to a preference over the holders of the Common Stock upon
such liquidation, dissolution, distribution of assets or winding-up, and (ii)
rank equally in connection therewith, shall be insufficient to make payment in
full of the preferential amount to which the holders of such shares shall be
entitled, then such assets shall be distributed among the holders of each such
series of the Preferred Stock ratably according to the respective amounts to
which they would be entitled in respect of the shares held by them upon such
distribution if all amounts payable on or with respect to such shares were paid
in full.
Neither the consolidation or merger of the Corporation, nor the sale,
lease or conveyance (whether for
7
cash, securities or other property) of all or part of its assets, shall be
deemed a liquidation, dissolution, distribution of assets or winding-up of the
Corporation within the meaning of the foregoing provisions.
(e) Except to the extent otherwise required by law or provided in the
resolution or resolutions of the Board of Directors adopted pursuant to
authority granted in this Paragraph I of Article FOURTH, the shares of Preferred
Stock shall have no voting power with respect to any matter whatsoever.
In no event shall the Preferred Stock be entitled to more than one vote
in respect of each share of stock.
(f) Shares of Preferred Stock which have been redeemed, converted,
exchanged, purchased, retired or surrendered to the Corporation, or which have
been reacquired in any manner, shall have the status of authorized and unissued
Preferred Stock and may be reissued by the Board of Directors as shares of the
same or any other series.
II. COMMON STOCK
(a) After the requirements with respect to preferential dividends, if
any, on the Preferred Stock (fixed pursuant to Paragraph I(b)(2) and as further
provided for in Paragraph I(c), both of this Article FOURTH) shall have been
met, and after the Corporation shall have complied with
8
all requirements, if any, with respect to the setting aside of sums in a sinking
fund for the purchase or redemption of shares of any series of Preferred Stock
(fixed pursuant to Paragraph I(b)(4) of this Article FOURTH), then and not
otherwise, the holders of Common Stock shall receive, to the extent permitted by
law, such dividends as may be declared from time to time by the Board of
Directors:
(b) After distribution in full of the preferential amount, if any
(fixed pursuant to Paragraph I(b)(5) of this Article FOURTH) to be distributed
to the holders of Preferred Stock, in the event of the voluntary or involuntary
liquidation, dissolution, distribution of assets or winding-up of the
Corporation, the holders of the Common Stock shall be entitled to receive all
the remaining assets of the Corporation of whatever kind available for
distribution to stockholders ratably in proportion to the number of shares of
Common Stock held by them respectively;
(c) Except as may be otherwise required by law or by this Certificate
of Incorporation, each holder of Common Stock shall have one vote in respect of
each share of such Stock held by him on all matters voted upon by the
stockholders.
9
FIFTH: The name and mailing address of the Sole Incorporator are as
follows:
Name Mailing Address
---- ---------------
Julie Frye 919 Third Avenue
New York, New York 10022
SIXTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(1) The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors.
(2) The directors shall have concurrent power with the stockholders to
make, alter, amend, change, add to or repeal the By-Laws of the Corporation.
(3) The number of directors of the Corporation shall be as from time to
time fixed by, or in the manner provided in, the By-Laws of the Corporation.
Election of directors need not be by written ballot unless the By-Laws so
provide.
(4) In addition to the powers and authority hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to
exercise
10
all such powers and do all such acts and things as may be exercised or done
by the Corporation, subject, nevertheless, to the provisions of the statutes
of Delaware, this Certificate of Incorporation, and any By-Laws adopted by
the stockholders; provided, however, that no By-Laws hereafter adopted by
the stockholders shall invalidate any prior act of the directors which would
have been valid if such By-Laws had not been adopted.
SEVENTH: Meetings of stockholders may be held within or without the
State of Delaware, as the By-Laws may provide. The books of the Corporation may
be kept (subject to any provision contained in the statutes) outside the State
of Delaware at such place or places as may be designated from time to time by
the Board of Directors or in the By-Laws of the Corporation.
EIGHTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
appli-
11
cation of any receiver or receivers appointed for this Corporation under the
provisions of Section 291 of the GCL or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
the provisions of Section 279 of the GCL, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this Corporation, as the case
may be, and also on this Corporation
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or
12
thereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the GCL, do make this Certificate,
hereby declaring and certifying that this is my act and deed and the facts
herein stated are true, and accordingly have hereunto set my hand this 29th day
of January, 1981.
/s/ Julie Frye
-----------------
Sole Incorporator
13
CERTIFICATE OF DESIGNATION, PREFERENCES
AND RIGHTS OF SERIES A PREFERRED STOCK
OF
HM Ames Tool Company
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
THOMAS L. SEIFERT, Vice president of HM Ames Tool Company, a Delaware
corporation (the "Corporation"), pursuant to the provisions of Section 151 of
the General Corporation Law of the State of Delaware, does hereby certify that
pursuant to the authority expressly vested in the Board of Directors of the
Corporation {the "Board of Directors") by the Certificate of Incorporation of
the Corporation (the "Certificate of Incorporation"), the Board of Directors, at
a meeting thereof duly held on January 30, 1981, at which meeting a quorum was
present, duly adopted the following resolutions providing for the issuance of a
series of shares of Preferred Stock as hereinafter described, and further
providing for the designation of such series and the powers, preferences and
rights of the shares of such series, and the qualifications, limitations and
restric-
tions thereof, in addition to those set forth in the Certificate of
incorporation, all in accordance with the provisions of Section 151 of the
General Corporation Law of the State of Delaware:
"RESOLVED, that the designation, powers, preferences and rights of the
shares of Preferred Stock, par value $100 per share, of the Corporation, and the
qualifications, limitations and restrictions thereof, in addition to those set
forth in the Certificate of Incorporation of the Corporation, shall be as
follows:
(a) One hundred thousand (100,000) shares of such Preferred Stock
shall be designated as "Series A Preferred Stock."
(b) The holders of Series A Preferred Stock shall be entitled to
receive dividends in cash at the rate per share of $12 per annum, and no
more, which dividends, if decided, shall be payable quarterly on the
first days (the "Dividend Dates") of February, May, August and November,
respectively, of each year, commencing on the first of the Dividend
Dates occurring at least ten (10) days after the date of original issue
of such share (its "Original Issue Date"), and, if not declared, shall
be cumulative from the Original Issue Date.
(c) Any share of Series A Preferred Stock may be redeemed at the
option of the Corporation by resolution of its Board of Directors, at
any time and from time to time on or after the fifth anniversary of its
Original Issue Date, at the redemption price of $100 per share, in each
case plus an amount equal to any accumulated and unpaid dividends
thereon to the date fixed for redemption. In the event that
2
at any time less than all of the issued and outstanding shares of the
Series A Preferred Stock are to be redeemed, the shares to be redeemed
may be selected pro rata, or by lot, or by such other equitable method
as may be determined by the Board of Directors of the Corporation.
Notice of any such redemption, specifying the time and place of
redemption, shall be mailed or caused to be mailed by the Corporation,
addressed to each holder of record of Series A Preferred Stock to be
redeemed, at his last address appearing on the books of the Corporation,
at least thirty (30) days prior to the date designated for redemption.
If lees than all of the shares of the Series A Preferred Stock owned by
such holder are then to be redeemed, the notice shall also specify the
number of shares thereof which are to be redeemed and the number or
numbers of the certificate or certificates representing such shares. If
such notice of redemption shall have been duly mailed to a holder of
shares of Series A Preferred Stock to be redeemed, or irrevocable
instructions to effect such mailing shall have been given to the
transfer agent or agents, if any, for such Series A Preferred Stock, and
if on or before the redemption date named in such notice all funds
necessary for such redemption shall have been set aside by the
Corporation in trust for the account of such holder, so as to be
available therefor, then, from and after the mailing of such notice or
the giving of such irrevocable instructions and the setting aside of
such funds, notwithstanding that any certificate for shares of Series A
Preferred Stock so called for redemption shall not have been surrendered
for cancellation, the shares so called for redemption shall no longer be
deemed outstanding, and the holder of any such certificate shall have
with respect to such shares no rights in or
3
with respect to the Corporation except the right to receive the
redemption price of such shares, without interest, plus an amount equal
to any accumulated and unpaid dividends thereon to the date fixed for
redemption, upon the surrender of such certificate; and after the date
designated for redemption, such shares shall not be transferable on the
books of the Corporation.
(d) In the event of any liquidation, dissolution, distribution of
assets or winding up of the Corporation, whether voluntary or
involuntary, before any distribution or payment shall be made to any
holder of one or more shares of the Common Stock in the nature of a
distribution of the assets of the Corporation, each of the holders of
the Series A Preferred Stock shall be entitled to receive $100 per share
of Series A Preferred Stock held by such holder, plus an amount equal to
any accumulated and unpaid dividends thereon to the date of payment.
(e) No share of the Series A Preferred Stock shall be convertible
into or exchangeable for any other security at the option of either the
Corporation or the holder of such share.
(f) The holders of shares of the Series A Preferred Stock shall not
be entitled to the benefit of any sinking fund to be applied to the
possible redemption of such shares."
IN WITNESS WHEREOF, the Corporation has duly caused this Certificate to
be executed on its behalf by
4
its Vice president and attested by its Assistant Secretary, this 25th day of
March, 1981.
HM Ames Tool Company
By: /s/ Thomas L. Seifert
-----------------------
Thomas L. Seifert,
Vice President
ATTEST:
/s/ Edward D. Collins
- ---------------------
Edward D. Collins
Assistant Secretary
5
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
HM Ames Tool Company
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
THOMAS L. SEIFERT, Vice President of HM Ames Tool Company (the
"Corporation") does hereby certify as follows:
1. That the Certificate of Incorporation of the Corporation (the
"Certificate of Incorporation") was filed in the office of the Secretary of
State of the State of Delaware on the 30th day of January, 1981.
2. Article "FIRST" of the Certificate of Incorporation is hereby amended
in its entirety to read as follows:
"FIRST: The name of the corporation is O. AMES CO. (hereinafter
sometimes called the "Corporation")."
3. That such amendment has been duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware by the
written consent, in accordance with the provisions of Section 228 of such
statute, of the sole stockholder entitled to vote on such amendment.
IN WITNESS WHEREOF, the Corporation has duly caused this Certificate of
Amendment to be executed on its behalf by its Vice President and attested by its
Assistant Secretary, this 25th day of March, 1981.
HM Ames Tool Company
By: /s/ Thomas L. Seifert
----------------------
Thomas L. Seifert,
Vice President
ATTEST:
/s/ Edward D. Collins
- ----------------------
Edward D. Collins
Assistant Secretary
2
FILED
JUL 29 1981 11:20 AM
[ILLEGIBLE]
SECRETARY OF STATE
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
O. AMES CO.
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
THOMAS L. SEIFERT, Vice President of O. Ames Co. (the "Corporation"),
does hereby certify as follows:
1. The Certificate of Incorporation of the Corporation (the "Certificate
of Incorporation") was filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on the 30th day of January, 1981.
The Corporation was originally incorporated under the name of HM Ames Tool
Company.
2. Article "FOURTH" of the Certificate of Incorporation is hereby
amended in its entirety to read as follows:
"FOURTH: The total number of shares of capital stock which the
Corporation shall have authority to issue is one hundred and one thousand
(101,000), of which one thousand (1,000) shares having a par value of One Dollar
($1.00) per share shall be of a class designated as "Common Stock", and one
hundred thousand (100,000) shares having a par value of One Hundred Dollars
($100) per share shall be of a class designated as "Series A Preferred Stock".
The designations, voting powers, preferences, and optional or other
special rights, and the qualifications, limitations, or restrictions, of the
aforementioned classes of stock shall be as follows:
(1) Series A Preferred Stock.
(a) Shares of the Series A Preferred Stock shall be issued at such time
or times and for such consideration or considerations as the Board of
Directors may determine. All shares of Series A Preferred Stock shall be of
equal rank and identical in all respects.
(b) The holders of Series A Preferred Stock shall be entitled to receive
dividends in cash, when and as declared by the Board of Directors of the
Corporation out of funds legally available therefor, at the rate per share
of $120 per annum, and no more, which dividends, if declared, shall be
payable on and after October 1, 1981 on each issued and outstanding share of
Series A Preferred Stock semiannually on the first days (the "Dividend
Dates") of April and October, respectively, of each year, commencing on the
first of the Dividend
2
Dates occurring at least ten (10) days after the date of original issue of
such share (its "Original Issue Date"), and shall, if not declared, be
cumulative, without interest, from the Original Issue Date.
(c) Any share of Series A Preferred Stock may be redeemed at the option
of the Corporation by resolution of its Board of Directors, at any time and
from time to time on or after the fifth anniversary of its Original Issue
Date, at the redemption price of $100 per share, in each case plus an amount
equal to any accumulated and unpaid dividends thereon to the date fixed for
redemption. In the event that at any time less than all of the issued and
outstanding shares of the Series A Preferred Stock are to be redeemed, the
shares to be redeemed may be selected pro rata, or by lot, or by such other
equitable method as may be determined by the Board of Directors of the
Corporation. Notice of any such redemption, specifying the time and place of
redemption, shall be mailed or caused to be mailed by the Corporation,
addressed to each holder of record of Series A Preferred Stock to be
redeemed, at his last address appearing on the books of the Corporation, at
least thirty (30) days prior to the date designated for redemption. If less
than all of the shares of the Series A Preferred
3
Stock owned by such holder are then to be redeemed, the notice shall also
specify the number of shares thereof which are to be redeemed and the number
or numbers of the certificate or certificates representing such shares. If
such notice of redemption shall have been duly mailed to a holder of shares
of Series A Preferred Stock to be redeemed, or irrevocable instructions to
effect such mailing shall have been given to the transfer agent or agents,
if any, for such Series A Preferred Stock, and if on or before the
redemption date named in such notice all funds necessary for such redemption
shall have been set aside by the Corporation in trust for the account of
such holder, so as to be available therefor, then, from and after the
mailing of such notice or the giving of such irrevocable instructions and
the setting aside of such funds, notwithstanding that any certificate for
shares of Series A Preferred Stock so called for redemption shall not have
been surrendered for cancellation, the shares so called for redemption shall
no longer be deemed outstanding, and the holder of any such certificate
shall have with respect to such shares no rights in or with respect to the
Corporation except the right to receive the redemption price of such shares,
without
4
interest, plus an amount equal to any accumulated and unpaid dividends
thereon to the date fixed for redemption, upon the surrender of such
certificate; and after the date designated for redemption, such shares shall
not be transferable on the books of the Corporation.
(d) In the event of any liquidation, dissolution, distribution of assets
or winding up of the Corporation, whether voluntary or involuntary, before
any distribution or payment shall be made to any holder of one or more
shares of the Common Stock in the nature of a distribution of the assets of
the Corporation, each of the holders of the Series A Preferred Stock shall
be entitled to receive $100 per share of Series A Preferred Stock held by
such holder, plus an amount equal to any accumulated and unpaid dividends
thereon to the date of payment.
In the event that the assets of the Corporation available for
distribution to the holders of shares of the Series A Preferred Stock upon
any voluntary or involuntary liquidation, dissolution, distribution of
assets or winding up of the Corporation shall be insufficient to pay in full
all amounts to which such holders are entitled pursuant to the immediately
preceding
5
paragraph, proportionate distributive amounts shall be paid ratably on
account of the issued and outstanding shares of the Series A Preferred
Stock.
Neither the consolidation or merger of the Corporation, nor the sale,
lease or conveyance (whether for cash, securities or other property) of all
or part of its assets, shall be deemed a liquidation, dissolution,
distribution of assets or winding up of the Corporation for purposes of
Paragraphs (1)(d) or (2)(b) of this Article FOURTH.
(e) No share of the Series A Preferred Stock shall be convertible into
any other security at the option of either the Corporation or the holder of
such share.
(f) The holders of shares of the Series A Preferred Stock shall not be
entitled to the benefit of any sinking fund to be applied to the possible
redemption of such shares.
(g) Except as may be otherwise required by law, the holders of Series A
Preferred Stock shall not be entitled to vote at any meeting of stockholders
or election of members of the Board of Directors of the Corporation, or
otherwise to participate in any matter or issue to be determined by vote or
consent of stockholders of the Corporation.
6
(2) Common Stock.
(a) After the requirements with respect to preferential dividends on the
Series A Preferred Stock (as provided for in Paragraph (1)(b) of this
Article FOURTH) shall have been met, then and not otherwise the holders of
Common Stock shall be entitled to receive, to the extent permitted by law,
such dividends as may be declared from time to time by the Board of
Directors; provided, that dividends in cash, if declared, shall be payable
on each issued and outstanding share of Common Stock on the Dividend Dates
(as defined in Paragraph (1)(b) of this Article FOURTH).
(b) After distribution in full of the preferential amounts (as provided
in Paragraph (1)(d) of this Article FOURTH) to be distributed to the
holders of Series A Preferred Stock in the event of the voluntary or
involuntary liquidation, dissolution, distribution of assets or winding up
of the Corporation, then and not otherwise the holders of the Common Stock
shall be entitled to receive all of the remaining assets of the Corporation,
of whatever kind available for distribution to stockholders, ratably in
proportion to the number of shares of Common Stock respectively held by
them.
7
(c) Except as may be otherwise required by law, each holder of Common
Stock shall have one vote in respect of each share of such Common Stock
held by him on all matters voted upon by the stockholders."
4. Such amendment has been duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware, by the written consent, in accordance with the provisions of Section
228 of such statute, of all outstanding stock of each class entitled to vote on
such amendment.
IN WITNESS WHEREOF, the Corporation has duly caused this Certificate
of Amendment to be executed on its behalf by its Vice President and attested by
its Assistant Secretary, this 30th day of June, 1981.
O. AMES CO.
By: /s/ Thomas L. Seifert
----------------------
Thomas L. Seifert,
Vice President
ATTEST:
/s/ John G. Raos
- ----------------
John G. Raos,
Assistant Secretary
8
FILED
OCT 29 1984 10 A.M.
[ILLEGIBLE]
SECRETARY OF STATE
CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
* * * * *
O. Ames Co. , a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
The present registered agent of the corporation is United States
Corporation Company and the present registered office of the
corporation is in the county of Kent.
The Board of Directors of O. Ames Co.
adopted the following resolution on the 1st day of July, 1984.
Resolved, that the registered office of O. Ames Co.
in the state of Delaware be and it hereby is changed to Corporation
Trust Center, 1209 Orange Street, in the City of Wilmington, County of
New Castle, and the authorization of the present registered agent of
this corporation be and the same is hereby withdrawn, and THE
CORPORATION TRUST COMPANY, shall be and is hereby constituted and
appointed the registered agent of this corporation at the address of its
registered office.
IN WITNESS WHEREOF, O. Ames Co. has caused
this statement to be signed by Richard G. Mason , its
_______________________ President and attested by D. R. Langfitt ,
its _____________________ Secretary this 18th day of October, 1984.
By /s/ Richard G. Mason
-------------------------------
PRESIDENT
ATTEST:
By /s/ D.R. Langfitt
-------------------------
SECRETARY
