CONFORMED RESTATED CERTIFICATE OF INCORPORATION
OF
BCP/ESSEX HOLDINGS INC.
BCP/Essex Holdings Inc. (the "Corporation"), a corporation
organized and existing under the laws of the State of Delaware, does
hereby certify as follows:
FIRST: The name of the Corporation is BCP/Essex Holdings Inc.
BCP/Essex Holdings Inc. was originally incorporated under the name
MS/Essex Group Inc., and the original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware
on February 16, 1988.
SECOND: Pursuant to Sections 242, 245 and 228 of the General
Corporation Law of the State of Delaware, this Restated Certificate of
Incorporation restates and integrates and further amends the provisions of
the Certificate of Incorporation of the Corporation.
THIRD: The Certificate of Incorporation of the Corporation is
hereby amended and restated to read in its entirety as follows:
ARTICLE FIRST
The name of the corporation is BCP/Essex Holdings Inc. (The
"Corporation").
ARTICLE SECOND
The address of the registered office of the Corporation in the
State of Delaware is 1013 Centre Road, City of Wilmington, County of New
Castle. The name of the registered agent of the Corporation at such
address is Corporation Service Company.
ARTICLE THIRD
The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
ARTICLE FOURTH
The total number of shares of stock that the Corporation shall
have authority to issue is 5,000,000 shares of preferred stock, par value
$0.01 per share (the "Preferred Stock"), and 150,000,000 shares of common
stock, divided into two classes consisting of Class A Common Stock, par
value $0.01 per share ("Class A Common Stock") and Class B Common Stock,
par value $0.01 per share ("Class B Common Stock"). Class A Common Stock
and Class B Common Stock are hereinafter sometimes collectively referred
to as "Common Stock". The Corporation may issue, from time to time,
shares of Common Stock either as Class A Common Stock or Class B Common
Stock; provided that the total number of shares of both classes issued at
any time shall not exceed 150,000,000 shares.
(a) Preferred Stock. Shares of the Preferred Stock of the
Corporation may be issued from time to time in one or more classes
or series, each of which class or series shall have such distinctive
designation or title as shall be fixed by the Board of Directors of
the Corporation prior to the issuance of any shares thereof. Each
such class or series of Preferred Stock shall have such voting
powers, full or limited, or no voting powers, and such preferences
and relative, participating, optional or other special rights and
such qualifications, limitations or restrictions thereof, as shall
be stated in such resolution or resolutions providing for the
issuance of such class or series of Preferred Stock as may be
adopted from time to time by the Board of Directors prior to the
issuance of any shares thereof pursuant to the authority hereby
expressly vested in it, all in accordance with the laws of the State
of Delaware. The initial series of Preferred Stock has been
designated as a series of 3,100,000 shares of Series A Cumulative
Redeemable Exchangeable Preferred Stock (the "Series A Preferred
Stock") as set forth in the Certificate of Designation of the Series
A Preferred Stock filed with the Secretary of State of Delaware.
(b) Class A and Class B Common Stock. Except as otherwise
provided herein, all shares of Class A Common Stock and Class B
Common Stock will be identical and will entitle the holders thereof
to the same rights and privileges.
(i) Dividends. The Board of Directors may cause dividends to
be paid to holders of shares of Common Stock out of funds legally
available for the payment of dividends. Any dividend or
distribution on Common Stock shall be payable on shares of Class A
Common Stock and Class B Common Stock share and share alike;
provided that in the case of dividends payable in shares of Common
stock of the Corporation, or options, warrants or rights to acquire
shares of such Common Stock, or securities convertible into or
exchangeable for shares of such Common Stock, the shares, options,
warrants, rights or securities so payable shall be payable in shares
of, options, warrants or rights to acquire, or securities
convertible into or exchangeable for, Common Stock of the same class
upon which the dividend or distribution is being paid.
(ii) Conversion.
Conversion of Class A Common Stock. Subject to this paragraph
(ii), any Class A Common Stock may be converted into the same number
of shares of Class B Common Stock. This paragraph shall not
restrict the ability of the Corporation to issue Class B Common
Stock.
Conversion of Class B Common Stock. Subject to this
paragraph (ii), each record holder of Class B Common Stock (a) must
convert any of or all the shares of such holder's Class B Common
Stock, as specified by the Corporation, into the same number of
shares of Class A Common Stock (a "Mandatory Conversion") and
(b) shall be entitled at any time and from time to time in such
holder's sole discretion and at such holder's option, to convert any
of or all the shares of such holder's Class B Common Stock into the
same number of shares of Class A Common Stock. Notwithstanding
clauses (a) and (b) of the preceding sentence, Class B Common Stock
constituting Restricted Stock (defined below) with respect to a
particular Regulated Stockholder (defined below) may not be
converted into Class A Common Stock to the extent that immediately
prior thereto, or as a result of such conversion, the number of
shares of Class A Common Stock that constitute Restricted Stock with
respect to such Regulated Stockholder would exceed the number of
shares of Class A Common Stock that such Regulated Stockholder and
its Affiliates (defined below) may own, control or have the power to
vote under any law, regulation, rule or other requirement of any
governmental authority at any time applicable to such Regulated
Stockholder or its Affiliates, as determined by such Regulated
Stockholder in its sole discretion; provided, however, that each
holder of Class B Common Stock may convert such shares into Class A
Common Stock if such holder reasonably believes that such converted
shares will be transferred within 15 days pursuant to a Conversion
Event (defined below) and such holder agrees not to vote any shares
of Class A Common Stock prior to such Conversion Event and
undertakes promptly to convert such shares back into Class B Common
Stock if such shares are not transferred pursuant to a Conversion
Event. Each Regulated Stockholder may provide for further
restrictions upon the conversion of any shares of Restricted Stock
by providing the Corporation with signed, written instructions
specifying such additional restrictions and legending such shares as
to the existence of such restrictions.
Conversion Procedures. Each conversion (other than a
Mandatory Conversion) of shares of Class A Common Stock into shares
of Class B Common Stock, or shares of Class B Common Stock into
shares of Class A Common Stock, shall be effected by the surrender
of the certificate or certificates representing the shares to be
converted (the "Converting Shares") and at the principal office of
the Corporation at any time during its usual business hours together
with written notice of the holder of such Converting Shares, stating
that such holder desires to convert the Converting Shares, or a
stated number of the shares represented by such certificate or
certificates, into an equal number of shares of the other class of
Common Stock (the "Converted Shares"). Such notice shall also state
the name or names of (with addresses) and denominations in which the
certificate or certificates or Converted Shares shall be issued and
shall include instructions for the delivery thereof. The
Corporation shall promptly notify each Regulated Stockholder of its
receipt of such notice. Promptly after such surrender and the
receipt of such notice, the Corporation shall issue and deliver in
accordance with the surrendering holder's instructions the
certificate or certificates evidencing the Converted Shares issuable
upon such conversion, and the Corporation shall deliver to the
converting holder a certificate representing any of the Converting
Shares that were represented by the certificate or certificates that
were delivered to the Corporation in connection with such conversion
but that were not converted. Such conversion, to the extent
permitted by law, shall be deemed to have been effected as of the
close of business on the date on which such certificate or
certificates shall have been surrendered and such notice shall have
been received by the Corporation, and at such time the rights of the
holder of the Converting Shares as such holder shall cease and the
person or persons in whose name or names the certificate or
certificates for the Converted Shares are to be issued upon such
conversion shall be deemed to have become the holder or holders of
record of the Converted Shares. Upon issuance of shares in
accordance with this paragraph (ii), such Converted Shares shall be
deemed to be duly authorized, validly issued, fully paid and
nonassessable. The Corporation shall take such actions that may be
necessary to ensure that all of the Converted Shares may be issued
without violation of any applicable law or governmental regulation
or any requirements of any domestic securities exchange upon which
the Converted Shares may then be listed (except for official notice
of issuance, which will be immediately transmitted to the
Corporation upon issuance). The Corporation shall not close its
books against the transfer of shares of Class A Common Stock or
Class B Common Stock in any manner that would interfere with the
timely conversion of any of the Converted Shares.
The Mandatory Conversion of shares of Class B Common Stock
into shares of Class A Common Stock shall (subject to the second
sentence of the paragraph above headed "Conversion of Class B Common
Stock") be effective upon the Corporation giving to the record
holders of the Converted Shares written notice of such conversion,
whereupon the Converted Shares shall represent the same number of
shares of Class A Common Stock and the rights of any holder of the
Converted Shares shall cease, except only the right of such holder
to receive any previously declared but unpaid dividends on the
Converted Shares, and the certificate or certificates for the
Converted Shares shall be deemed to represent the same number of
shares of Class A Common Stock. At any time after a Mandatory
Conversion, the holders of the Converted Shares may surrender the
certificate or certificates that previously represented such
Converted Shares for a certificate or certificates representing the
same number of shares of Class A Common Stock in the manner set
forth above.
As used in this paragraph (ii):
"Affiliate" shall mean, with respect to any person, any other
person that is (a) directly or indirectly controlling, controlled by
or under common control with such person and (b) subject to the
provisions of Regulation Y of the Board of Governors of the Federal
Reserve System, 12 C.F.R. Part 225 (or any successor to such
regulation). For the purpose of the above definition, the term
"control" (including, with correlative meaning, the terms
"controlling", "controlled by" and "under common control with"), as
used with respect to any person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the
management and policies of such person, whether through the
ownership of voting securities or by contract or otherwise.
"Conversion Event" shall mean (a) any public offering or
public sale of securities of the Corporation (including a public
offering registered under the Securities Act of 1933 and a public
sale pursuant to Rule 144 of the Securities and Exchange Commission
or any similar rule then in force), (b) any sale of securities of
the Corporation to a person or group or persons (within the meaning
of the Securities Exchange Act of 1934, as amended (the "1934 Act"))
if, after such sale, such person or group of persons in the
aggregate would own or control securities that possess in the
aggregate the ordinary voting power to elect a majority of the
Corporation's directors (provided that such sale has been approved
by the Corporation's Board of Directors or a committee thereof),
(c) any sale of securities of the Corporation to a person or group
of persons (within the meaning of the 1934 Act) if, after such sale,
such person or group of persons in the aggregate would own or
control securities of the Corporation (excluding any Class B Common
Stock being converted and disposed of in connection with such
Conversion Event) that possess in the aggregate the ordinary voting
power to elect a majority of the Corporation's directors, (d) any
sale of securities of the Corporation to a person or group of
persons (within the meaning of the 1934 Act) if, after such sale,
such person or group of persons would not, in the aggregate, own,
control or have the right to acquire more than 2% of the outstanding
securities of any class of voting securities of the Corporation, and
(e) a merger, consolidation or similar transaction involving the
Corporation if, after such transaction, a person or group of persons
(within the meaning of the 1934 Act) in the aggregate would own or
control securities which possess in the aggregate the ordinary
voting power to elect a majority of the surviving corporation's
directors (provided that the transaction has been approved by the
Corporation's Board of Directors or a committee thereof).
"Regulated Stockholder" shall mean any person (a) that is
subject to the provisions of Regulation Y of the Board of Governors
of the Federal Reserve System, 12 C.F.R. Part 225 (or any successor
to such regulation), (b) that is acquiring or holds of record shares
of Class A Common Stock or Class B Common Stock and (c) that has
provided notice to the Corporation of its status as a "Regulated
Stockholder" hereunder.
"Restricted Stock" shall mean, with respect to any Regulated
Stockholder, any outstanding shares of Class A Common Stock and/or
Class B Common Stock ever held of record by such Regulated
Stockholder or its Affiliates, excluding treasury shares; provided,
however, that any such shares shall cease to be Restricted Stock
with respect to such Regulated Stockholder when such shares are
transferred in a transaction that is a Conversion Event or are
acquired by the Corporation or any subsidiary of the Corporation.
The Corporation shall have no responsibility for determining whether
any outstanding shares of Class A Common Stock and/or Class B Common
Stock constitute Restricted Stock with respect to any particular
Regulated Stockholder, but shall instead be entitled to receive, and
rely exclusively upon, a written notice provided by such Regulated
Stockholder designating such shares as Restricted Stock.
(iii) Subdivision and Combination of Shares. If the
Corporation shall in any manner subdivide (by stock split, stock
dividend or otherwise) or combine (by reverse stock split or
otherwise) the outstanding shares of any class of Common Stock, or
shall increase or decrease the number of shares of any class of
Common Stock by reclassification thereof, then the outstanding
shares of the other classes of Common Stock shall be subdivided or
combined, as the case may be, to the same extent, share and share
alike, and effective provision shall be made for the protection of
the conversion rights hereunder.
(iv) Distribution of Assets. In the event of the voluntary
or involuntary liquidation, dissolution or winding up of the
Corporation, holders of Common stock will be entitled to receive,
and will participate equally in, all of the remaining assets of the
Corporation available for distribution to its stockholders after
payment or provision for payment of the debts and other liabilities
of the Corporation and all amounts to which the holders of Preferred
Stock are entitled have been paid or set aside for payment.
(v) Voting Rights. The holders of Class A Common stock shall
have the general right to vote for all purposes, including the
election of directors, as provided by law. Each holder of Class A
Common Stock shall be entitled to one vote for each share thereof
held. Except as otherwise provided herein or required by law, the
holders of Class B Common stock shall have no voting rights and
shares of Class B Common Stock shall not be included in determining
the number of shares voting or entitled to vote on any such matters.
On any matter on which the holders of shares of Class A Common Stock
and the holders of Class B Common Stock are entitled to vote, except
as otherwise required by law, all classes of Common Stock entitled
to vote shall vote together as a single class, and each holder of
shares of Class B Common stock entitled to vote shall be entitled to
one vote for each share of such stock held by such holder; provided,
however, that holders of shares of the Class B Common Stock shall be
entitled to vote as a separate class on any amendment to this
Article FOURTH (b)(v) and on any amendment, repeal or modification
of any provision of this Certificate of Incorporation
that adversely affects the powers, preferences or
special rights of holders of Class B Common Stock.
(vi) Merger, etc. In connection with any merger,
consolidation, reclassification or recapitalization in which holders
of Class A Common stock generally receive, or are given the
opportunity to receive, consideration for their shares, all holders
of Class B Common Stock shall be given the opportunity to receive
the same form of consideration for their shares as is received by
holders of Class A Common Stock."
ARTICLE FIFTH
For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and
regulation of the powers of the Corporation and of its directors and
stockholders, it is further provided that:
(a) the number of directors of the Corporation shall be fixed
by, or in the manner provided in, the By-laws of the Corporation;
(b) in furtherance and not in limitation of the powers
conferred by the laws of the State of Delaware, the Board of
Directors is expressly authorized and empowered to make, alter,
amend or repeal the By-laws of the Corporation in any manner not
inconsistent with the laws of the State of Delaware or this
Certificate of Incorporation, subject to the power of the stock-
holders of the Corporation having voting power to alter, amend or
repeal the By-laws of the Corporation;
(c) in addition to the powers and authorities herein or by
statute expressly conferred upon it, the Board of directors may
exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation, subject, nevertheless, to the
provision of the laws of the State of Delaware, this Certificate of
Incorporation and the By-laws of the Corporation;
(d) any director or any officer elected or appointed by the
stockholders or by the Board of Directors, or any Committee thereof,
may be removed at any time by a unanimous consent of the
stockholders or in such other manner as shall be provided in the By-
laws of the Corporation
(e) unless and except to the extent that the By-laws of the
Corporation shall so require, the election of directors of the
Corporation need not be by written ballot; and
(f) Stockholders of the Corporation shall not have any
preemptive rights to subscribe for additional issues of stock of the
Corporation except as may be agreed from time to time by the
Corporation and any such stockholders. Copies of any agreements
granting any stockholder preemptive rights, as amended from time to
time, will be kept on file with the Secretary of the Corporation.
ARTICLE SIXTH
No director shall be personally liable to the Corporation or
any of its stockholders for monetary damages for breach of fiduciary duty
as a director, except for liability (a) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (b) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (c) pursuant to Section 174 of the Delaware
General Corporation Law or (d) for any transaction from which the director
derived an improper personal benefit. Any repeal or modification of this
Article SIXTH by the stockholders of the Corporation shall not adversely
affect any right or protection of a director of the Corporation existing
at the time of such repeal or modification with respect to acts or
omissions occurring prior to such repeal or modification.
ARTICLE SEVENTH
No contract or transaction between the Corporation and one or
more of its directors or officers (or between the Corporation and any
other corporation, partnership, associa-tion or other organization in
which one or more of its directors or officers are directors or officers,
or have a financial interest) shall be void or voidable solely for such
reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof
that authorizes the contract or transaction, or solely because his, her or
their votes are counted for such purpose, if:
(a) the material facts as to his, her or their relationship
or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board
or committee in good faith authorizes the contract or transaction by
the affirmative votes of a majority of disinterested directors, even
though the disinterested directors be less than a quorum;
(b) the material facts as to his, her or their relationship
or interest and as to the contract or transaction are disclosed or
are known to the shareholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by
vote of the stockholders; or
(c) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified by the Board
of Directors, a committee thereof or the stockholders.
Common or interested directors shall be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a
committee that authorizes any such contract or transaction. No director
of officer shall be liable to account to the Corporation for any profit
realized by him or her from or through such contract or transaction solely
by reason of the fact that he or she or any other corporation,
partnership, association or other organization in which he or she is a
director or officer, or has a financial interest, was interested in such
contract or transaction.
ARTICLE EIGHTH
The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he or she is
or was a director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts in connection with such action, suit or
proceeding, in accordance with the laws of the State of Delaware, and to
the full extent permitted by such laws except as the By-laws of the
Corporation may otherwise provide. Such indemnification shall not be
deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any by-law agreement, vote of
stockholders or disinterested directors or otherwise, including insurance
purchased and maintained by the Corporation, both as to action in his or
her official capacity and as to action in another capacity while holding
such office, and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
ARTICLE NINTH
The corporation reserves the right at any time and from time
to time to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation (including provisions as may hereafter be
added or inserted in this Certificate of Incorporation as authorized by
the laws of the State of Delaware) in the manner now or hereafter
prescribed by law; and all rights, preferences and privileges of
whatsoever nature conferred upon stockholders, directors or any other
persons whomsoever by and pursuant to this Certificate of Incorporation in
its current form or as hereafter amended are granted subject to the right
reserved in this Article NINTH.
FOURTH: That the foregoing amendment has been duly adopted in
accordance with the provisions of
Sections 242, 245 and 228 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, BCP/Essex Holdings Inc. has caused this
Restated Certificate of Incorporation to be executed in its corporate name
as of this 9th day of October, 1992.
BCP/ESSEX HOLDINGS INC.
By /s/ Robert D. Lindsay
---------------------------
Name: Robert D. Lindsay
Title: President
ATTEST:
By /s/ Richard R. Davis
-----------------------
Name: Richard R. Davis
Title: Secretary