CERTIFICATE OF INCORPORATION
OF
MBNR CORPORATION
I.
The name of the Corporation is MBNR Corporation (the "Corporation").
II.
The Corporation is organized pursuant to the General Corporation Law of
the State of Delaware (the "GCL").
III.
The address of the Corporation's registered office in the State of
Delaware is 32 Loockerman Square, Suite L-100, City of Dover, County of
Kent, Delaware, 19901. The name of its registered agent at such address is
The Prentice-Hall Corporation System, Inc.
IV.
The purposes for which the Corporation is organized are to act as a
holding company of other firms, companies and corporations and to engage
in any lawful act or activity for which corporations may be organized
under the GCL, and the Corporation shall have all powers necessary to
conduct such businesses and engage in such activities, including, but not
limited to, the powers enumerated in the GCL or any amendment thereto.
V.
The total number of shares of stock which the Corporation shall have
authority to issue is 25,000,000; of such shares the number of common
shares which the Corporation shall have authority to issue is 20,000,000,
par value $.01 per share ("Common Stock"), and the number of preferred
shares which the Corporation shall have authority to issue is 5,000,000,
par value $1.00 per share ("Preferred Stock").
A. Common Stock. Subject to the provisions of any series of
Preferred Stock which may at the time be outstanding, the
holders of shares of Common Stock shall be entitled to receive,
when and as declared by the Board of Directors out of any funds
legally available for the purpose, such dividends as may be
declared from time to time by the Board of Directors. In the
event of the liquidation of the Corporation, or upon
distribution of its assets, after the payment in full or the
setting apart for payment of such preferential amounts, if any,
as the holders of shares of Preferred Stock at the time
outstanding shall be entitled, the remaining assets of the
Corporation available for payment and distribution to
shareholders shall, subject to any participating or similar
rights of shares of Preferred Stock at the time outstanding, be
distributed ratably among the holders of shares of Common Stock
at the time outstanding. All shares of Common Stock shall have
-1-
equal non-cumulative voting rights, and shall have no
preference, conversion, exchange, preemptive or redemption
rights.
B. 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 shares of Preferred Stock in one
or more series, with such voting powers (subject to Article IX
hereof), full or limited, and with such designations,
preferences and relative, participating, optional or other
rights, and qualifications, limitations or restrictions thereof,
as shall be stated and expressed in the resolution or
resolutions providing for the issue thereof adopted by the Board
of Directors and the certificate of designations filed under the
GCL setting forth such resolution or resolutions, including
(without limiting the generality thereof) the following as to
each such series:
(i) the designation of such series;
(ii) the dividends, if any, payable with respect to such
series, the rates or basis for determining such
dividends, any conditions and dates upon which such
dividends shall be payable, the preferences, if any, of
such dividends over, or the relation of such dividends
to, the dividends payable on Common Stock or other
series of Preferred Stock, whether such dividends shall
be non-cumulative or cumulative, and, if cumulative, the
date or dates from which such dividend shall be
cumulative;
(iii) whether shares of Preferred Stock shall be redeemable at
the option of the Board of Directors or the holder, or
both, upon the happening of a specified event and, if
redeemable whether for cash, property or rights,
including securities of the Corporation, the time,
prices or rates and any adjustment and other terms and
conditions of such redemption;
(iv) the terms and amount of any sinking, retirement or
purchase fund provided for the purchase or redemption of
shares of Preferred Stock of such series;
(v) whether or not shares of Preferred Stock of such series
shall be convertible into or exchangeable for shares of
Common Stock or other series of Preferred Stock, at the
option of the Corporation or of the holder, or both, or
upon the happening of a specified event and, if
provision be made for such conversion or exchange, the
terms, prices, rates, adjustments and any other terms
and conditions thereof;
(vi) the extent to which the holders of shares of Preferred
Stock of such series shall be entitled to vote with
respect to the election of Directors or otherwise,
including, without limitation, the extent, if any, to
which such holders shall be entitled, voting as a series
or as a part of a class, to elect one or more Directors
-2-
upon the happening of a specified event or otherwise;
(vii) the restrictions, if any, on the issue or reissue of
shares of Preferred Stock of such series or any other
series;
(viii) the extent, if any, to which the holders of shares of
Preferred Stock of such series shall be entitled to
preemptive rights; and
(ix) the rights of the holders of shares of Preferred Stock
of such series upon the liquidation of the corporation
or any distribution of its assets.
C. Certificates of Designations. Before the Corporation shall issue
any shares of Preferred Stock of any series, a certificate
setting forth the resolution or resolutions of the Board of
Directors, fixing the voting powers, designations, preferences
and rights of such series, the qualifications, limitations or
restrictions thereof, and the number of shares of Preferred
Stock of such series authorized by the Board of Directors, shall
be signed, attested to, filed, and recorded pursuant to Section
103 of the GCL. Unless otherwise provided in any such resolution
or resolutions, the holders of the series so authorized shall
have non-cumulative voting rights and shall have no conversion,
exchange, preemptive or redemption rights. Unless otherwise
provided in any such resolution or resolutions, the number of
shares of Preferred Stock of the series authorized by such
resolutions may be increased (but not above the total number of
shares of Preferred Stock of such series) or decreased (but not
below the number of shares of Preferred Stock of such series
then outstanding) by a certificate setting forth a resolution or
resolutions adopted by the Board of Directors, authorizing such
increase or decrease, signed, attested to, filed, and recorded
pursuant to Section 103 of the GCL. Unless otherwise provided in
the resolution or resolutions creating such series, the number
of shares of Preferred Stock specified in any such decrease
shall be restored to the status of authorized but unissued
shares of Preferred Stock (without designation as to series).
VI.
The Corporation shall, to the fullest extent permitted by law and by the
by-laws of the Corporation, indemnify any person made or threatened to be
made a party to an action or proceeding, whether criminal, civil,
administrative or investigative, by reason of the fact that such person,
or such person's testator or intestate is or was an officer, employee or
agent of the Corporation or serves or served any other corporation,
partnership, joint venture, trust or other enterprise as a director,
officer, employee, agent or trustee at the express or implied request of
the Corporation.
VII.
To the fullest extent permitted by the GCL as the same exists or hereafter
may be amended, a Director of this 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
-3-
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 the law, (iii) under Section 174 of
the GCL, or (iv) for any transaction from which the Director derived any
improper personal benefit.
VIII.
In furtherance of and not in limitation of the powers conferred by the GCL
or any other statute, the Board of Directors is expressly authorized to
make, alter or repeal the by-laws of the Corporation, subject to the right
of the stockholders of the Corporation to alter or repeal any By-law made
by the Board of Directors.
IX.
This Corporation shall not issue non-voting equity securities. This
Article IX is included in this Certificate of Incorporation in compliance
with Section 1123 of the United States Bankruptcy Code, 11 U.S.C Section
1123, and shall have no further force and effect beyond that required by
such Section and for so long as such Section is in effect and applicable
to the Corporation.
X.
The election of Directors of the Corporation need not be by written
ballot, unless the By-laws of the Corporation otherwise provide.
XI.
The Corporation hereby elects not to be governed by Section 203 of the
GCL.
XII.
Mark C. Catana is the sole incorporator and his mailing address is c/o
Schulte Roth & Zabel, 900 Third Avenue, New York, New York 10022.
Dated: October 1, 1990
/S/Mark C. Catana
Mark C. Catana
Schulte Roth & Zabel
900 Third Avenue
New York, New York 10022
-4-
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
MBNR CORPORATION
(Under Section 241 of the General Corporation Law)
The undersigned, for the purpose of amending the Certificate of
Incorporation of MBNR Corporation pursuant to Section 805 of the General
Corporation Law of the State of Delaware (the "General Corporation Law"),
does hereby certify:
1. The name of the corporation is MBNR Corporation (the
"Corporation").
2. The Certificate of Incorporation of the Corporation was filed
with the Secretary of State of the State of Delaware on October 3, 1990.
3. The Certificate of Incorporation of the Corporation is hereby
amended by striking out Article I relating to the name of the Corporation,
and substituting in lieu of said Article the following:
"I
The name of the corporation is Mueller Industries, Inc.
(the "Corporation")."
4. The foregoing amendment to the Certificate of Incorporation is
being authorized by the sole incorporator of the Corporation pursuant to
Section 241 of the General Corporation Law. The sole incorporator hereby
certifies that the corporation has no shareholders of record and no
directors and that the Corporation has not received any payments for its
stock.
IN WITNESS WHEREOF, the sole incorporator has executed this
Certificate of Amendment of the Certificate of Incorporation on the date
set forth below, and does hereby affirm, under penalty of perjury, that
the statements contained herein are true and correct.
Dated: October 18, 1990
/S/Mark C. Catana
Mark C. Catana
Sole Incorporator
-5-
CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
MUELLER INDUSTRIES, INC., 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 The Prentice-Hall
Corporation System, Inc. and the present registered office of the
corporation is in the county of Kent.
The Board of Directors of MUELLER INDUSTRIES, INC. adopted the
following resolution on the 13th day of December, l990.
Resolved, that the registered office of
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 the corporation at the address of
its registered office.
IN WITNESS WHEREOF, Mueller Industries, Inc. has caused this
statement to be signed by Robert J. Brown, its President and attested by
Kent A. McKee, its Secretary this 13th day of December, 1990
By /S/Robert J. Brown
Robert J. Brown
President
ATTEST:
By /S/Kent A. McKee
Kent A. McKee
Secretary
-6-
CERTIFICATE OF OWNERSHIP AND MERGER
OF
SHARON STEEL CORPORATION
INTO
MUELLER INDUSTRIES, INC.
Pursuant to Sections 103 and 253
of the
General Corporation Law
of the
State of Delaware
Sharon Steel Corporation, a Pennsylvania corporation ("Sharon"),
hereby certifies as follows:
FIRST: Sharon owns 100% of the outstanding shares of common stock,
$0.01 par value per share of Mueller Industries, Inc, a Delaware
corporation ("Mueller").
SECOND: The Trustee of Sharon appointed pursuant to Title 11,
Chapter 11 of the United States Code (the "Chapter 11 Trustee"), by
written consent dated December 28 1990, pursuant to Section 1903(b) and
Subchapter C. of Chapter 19 of the Pennsylvania Business Corporation Law
of 1988 of the Commonwealth of Pennsylvania (the "PBCL"), duly adopted
resolutions authorizing the merger of Sharon with and into Mueller (the
"Merger"), pursuant to which Mueller will be the surviving corporation. A
true copy of such resolutions is annexed hereto as Exhibit A. Such
resolutions have not been modified or rescinded and are in full force and
effect as of the date hereof.
THIRD: In accordance with Section 1903(b) of the PBCL, the Chapter
11 Trustee has approved the Merger, which merger is a part of and pursuant
to the Third Amended and Restated Plan of Reorganization for Sharon, dated
September 27, 1990, as modified by a motion dated November 19, 1990, for
an Order approving modification of such plan, under Title 11, Chapter 11
of the United States Code (the "Plan of Reorganization"), which such Plan
of Reorganization, as so modified, was confirmed by the Bankruptcy Court
for the Western District of Pennsylvania, Erie Division on November 20,
1990.
FOUR: The Merger shall become effective (i) upon the filing of this
Certificate of Ownership and Merger with the Secretary of State of the
State of Delaware; (ii) upon the filing of the Articles of Merger with the
Secretary of the Commonwealth of Pennsylvania in accordance with Section
1927 of the PBCL; and (iii) pursuant to the Plan of Reorganization, upon
consummation of the Reorganized Sharon Private Placement (as defined in
the Plan of Reorganization).
FIFTH: The Certificate of Incorporation, as amended, of Mueller
shall continue to be the Certificate of Incorporation of Mueller
Industries, Inc., the surviving corporation in the Merger.
NOTICE OF APPOINTMENT OF TRUSTEE is attached as Exhibit B.
-7-
IN WITNESS WHEREOF, the Chapter 11 Trustee has signed this
Certificate of Ownership and Merger on behalf of Sharon Steel Corporation
this 28 day of December, 1990.
SHARON STEEL CORPORATION
By: /S/Franklin E. Agnew, III
Name: Franklin E. Agnew, III
Title: Chapter 11 Operating
Trustee
Attest:
/S/Melvin G. Sander
Name: Melvin G. Sander
Title: Secretary
-8-
EXHIBIT A
RESOLVED, that the Trustee of the bankruptcy estate of the
Corporation hereby declares it advisable and authorizes the corporation to
merge itself with and into MUELLER INDUSTRIES, INC., ("Mueller") a
Delaware corporation and wholly-owned subsidiary of the Corporation,
whereupon (i) the separate existence of the Corporation shall cease and
Mueller shall be the surviving corporation; (ii) each share of common
stock of the Corporation outstanding immediately prior to the effective
time of the merger shall be cancelled and (iii) 7,000,000 shares of common
stock, par value $0.01 per share, of Mueller shall be issued on a pro rata
basis to the holders of the Allowed General Unsecured Claims (as defined
in the Reorganization Plan referenced below) or otherwise held in a
Disputed Claims Reserve (as defined in the Reorganization Plan referenced
below) under the Third Amended and Restated Plan of Reorganization for the
Corporation, dated September 27, 1990, as modified by a motion dated
November 19, 1990, for an Order approving modification of such plan, under
Title 11, Chapter 11 of the United States Code (the "Reorganization Plan")
confirmed by the Bankruptcy Court for the Western District of
Pennsylvania, Erie Division on November 20, 1990); and in furtherance
thereof, that the Articles of Merger be filled with the Secretary of the
Commonwealth of Pennsylvania and the Certificate of Ownership and Merger
be filled with the Secretary of State of the State of Delaware
substantially in the forms previously supplied to the Trustee;
RESOLVED, that the form, terms and provisions of the Agreement and
Plan of Merger substantially in the form previously supplied to the
Trustee, be, and hereby are, in all respects approved, and the Trustee and
each of the officers of the Corporation be, and they hereby are,
authorized to take such further actions as they, in their sole discretion,
deem necessary or appropriate in order to effectuate the Agreement and
Plan of Merger;
RESOLVED, that the Trustee and each of the officers of the
Corporation be, and they hereby are, authorized to execute and acknowledge
in the name and on behalf of the Corporation the Articles of Merger; and
that the Trustee and each of the officers be, and they hereby are,
authorized to cause such executed Articles of Merger to be filed with the
Secretary of the Commonwealth of Pennsylvania in accordance with Section
1927 of the Pennsylvania Business Corporation Law of 1988 ("PBCL");
RESOLVED, That the Trustee and each of the officers of the
Corporation be, and they hereby are, authorized to execute and acknowledge
in the name and on behalf of the Corporation a Certificate of Ownership
and Merger; and that the Trustee and each of the officers be, and they
hereby are, authorized to cause such executed Certificate to be filed in
the office of the Secretary of State of the State of Delaware in
accordance with Sections 103 and 253 of the Delaware General Corporation
Law ("DGCL");
RESOLVED, that the merger shall become effective and the corporate
existence of the Corporation shall cease (i) upon the filing of such
Articles of Merger with the Secretary of the Commonwealth of Pennsylvania
in accordance with Section 1927 of the PBCL, (ii) upon the filing of such
Certificate of Ownership and Merger with the Secretary of State of the
State of Delaware in accordance with Sections 103 and 253 of the DGCL and
(iii) pursuant to the Reorganization Plan of the Corporation, the
consummation of the Reorganized Sharon Private Placement (as defined in
-9-
the Reorganization Plan); and
RESOLVED, that the Trustee and each of the officers of the
Corporation be, and they hereby are authorized to take such actions and to
execute and deliver such certificates, instruments and other documents and
to do such other things as they or any of them shall deem necessary or
advisable to effectuate the purposes and intent of thc foregoing
resolutions.
-10-
EXHIBIT B
United States Bankruptcy Court
District of Pennsylvania
Chapter 11
Case No. 87-00207/E
IN THE MATTER OF:
SHARON STEEL CORPORATION
Debtor
NOTICE OF APPOINTMENT OF TRUSTEE
TO: Franklin E. Agnew, Suite 1474, USX Tower, Pittsburgh, PA 15219
You are hereby notified of your appointment as Trustee of the estate
of the above named debtor. The amount of your Bond has been fixed at
$1,500,000.00. Your Bond must be filed with the United States Trustee
within five (5) days of the date of your appointment (Sec. 322).
/S/Hugh M. Leonard
HUGH M. LEONARD
UNITED STATES TRUSTEE
DATED: January 24, 1989
I HEREBY ACCEPT APPOINTMENT AS TRUSTEE HEREIN THIS 25th DAY OF
January, 1987
/S/Franklin E. Agnew
FRANKLIN E. AGNEW
TRUSTEE
APPOINTMENT OF Franklin E. Agnew AS TRUSTEE IS APPROVED THIS 25th DAY
OF January, 1989
/S/Warren W. Bentz
HONORABLE WARREN W. BENTZ
BANKRUPTCY JUDGE
-11-
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
MUELLER INDUSTRIES, INC.
Mueller Industries, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify:
FIRST: The first sentence of Article V of the Certificate of
Incorporation of the Corporation is hereby amended so as to read in its
entirety as follows:
"The total number of shares of stock which the Corporation shall have
authority to issue is 105,000,000; of such shares the number of common
shares which the Corporation shall have authority to issue is 100,000,000,
par value $.01 per share ("Common Stock"), and the number of preferred
shares which the Corporation shall have authority to issue is 5,000,000,
par value $1.00 per share ("Preferred Stock")."
SECOND: The Amendment of the Certificate of Incorporation herein
certified has been duly adopted by the holders of a majority of the
issued and outstanding shares of Common Stock in accordance with the
provisions of Section 242 of the General Corporate Law of the State of
Delaware.
IN WITNESS WHEREOF, Mueller Industries, Inc., has caused this
certificate to be signed by its President and attested by its Secretary
this 7th day of May, l998, pursuant to Section 103(a) of the General
Corporation Law of the State of Delaware.
Mueller Industries, Inc.
By:/S/William D. O'Hagan
William D. O'Hagan
President and Chief Executive
Officer
ATTEST:
By:/S/William H. Hensley
William H. Hensley
Secretary
-12-