EXHIBIT 3.31
CERTIFICATE OF INCORPORATION
OF
EPI ACQUISITION CORPORATION
ARTICLE I
The name of the corporation is EPI Acquisition Corporation.
ARTICLE II
The address of the corporation's registered office in the State of
Delaware is 32 Loockerman Square, Suite L-100, in the City of Dover, County of
Kent 19904. The name of its registered agent at such address is The
Prentice-Hall Corporation System, Inc.
ARTICLE III
The nature of the business or purposes to be conducted or promoted
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 IV
The total number of Shares of stock which the corporation has
authority to issue is one thousand (1,000) Shares of Common Stock, par value one
cent ($0.01) per share.
ARTICLE V
The name and mailing address of the sole Incorporator are as
follows:
NAME MAILING ADDRESS
---- ---------------
Thaddine G. Gomez 200 East Randolph Drive
Suite 5700
Chicago, Illinois 60601
ARTICLE VI
The corporation is to have perpetual existence.
ARTICLE VII
In furtherance and not in limitation of the powers conferred by
statute, the board of directors of the corporation is expressly authorized to
make, alter or repeal the by-laws of the corporation.
ARTICLE VIII
Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws of the corporation may provide. The books of the
corporation may be kept 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. Election of directors need not be by written ballot unless
the by-laws of the corporation so provide.
ARTICLE IX
To the fullest extent permitted by the General Corporation Law of
the State of Delaware as the same exists or may hereafter be amended, a director
of this corporation shall not be liable to the corporation or its stockholders
for monetary damages for a breach of fiduciary duty as a director. Any repeal or
modification of this ARTICLE NINE shall not adversely affect any right or
protection of a director of the corporation existing at the time of such repeal
or modification.
ARTICLE X
The corporation expressly elects not to be governed by ss.203 of the
General Corporation Law of the State of Delaware.
ARTICLE XI
The corporation reserves the right to amend, alter, change or repeal
any provision contained in this certificate of incorporation in the manner now
or hereafter prescribed herein and by the laws of the State of Delaware, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
I, THE UNDERSIGNED, being the sole Incorporator hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation Law
of the State of Delaware, do make this certificate, hereby declaring and
certifying that this is my act and deed and the facts stated herein are true,
and accordingly have hereunto set my hand on the 27th day of April, 1995.
--------------------------
Thaddine G. Gomez
Sole Incorporator
State of Delaware
OFFICE OF THE SECRETARY OF STATE
---------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "EPI ACQUISITION CORPORATION", CHANGING ITS NAME FROM "EPI
ACQUISITION CORPORATION" TO "CPI HOLDING CORPORATION", FILED IN THIS OFFICE ON
THE TWENTY-SECOND DAY OF DECEMBER, A.D. 1995, AT 9 O'CLOCK A.M.
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION:
DATE:
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
BEFORE PAYMENT OF CAPITAL
OF
EPI ACQUISITION CORPORATION
* * * * *
Adopted in accordance with the
provisions of ss. 241 of the General
Corporation Law of the State of Delaware
* * * * *
The undersigned, being the sole incorporator of EPI Acquisition
Corporation, a corporation duly organized and existing under and by virtue of
the laws of the State of Delaware (the "Corporation"), does hereby certify as
follows:
FIRST: The Certificate of Incorporation of the Corporation (the
"Certificate of Incorporation") is hereby amended by deleting ARTICLE I in its
entirety and substituting therefor a new ARTICLE I as follows:
ARTICLE I
The name of the corporation is CPI Holding Corporation.
SECOND: The Corporation has not received payment for any of its
stock.
THIRD: The foregoing amendment has been duly adopted, pursuant to
the provisions of ss.241 of the General Corporation Law of the State of
Delaware, by the sole incorporator of the Corporation. The directors of the
Corporation were not named in the Certificate of Incorporation and to date have
not been elected.
IN WITNESS WHEREOF, the undersigned, being the sole incorporator
hereinabove named, for the purpose of amending the Certificate of Incorporation
of the Corporation pursuant to the General Corporation Law of the State of
Delaware, under penalties of perjury does hereby declare and certify that this
is the act and deed of the Corporation and the facts stated herein are true, and
accordingly has hereunto signed this Certificate of Amendment in the Certificate
of Incorporation as of the 22nd day of December, 1995.
----------------------------
Thaddine G. Gomez
Sole Incorporator
State of Delaware
OFFICE OF THE SECRETARY OF STATE
---------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "CPI HOLDING CORPORATION", FILED IN THIS OFFICE ON THE TWENTY-FIFTH
DAY OF JANUARY, A.D. 1996, AT 3 O'CLOCK P.M.
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION:
DATE:
CERTIFICATE OF AMENDMENT TO CERTIFICATE
OF INCORPORATION OF
CPI HOLDING CORPORATION
- ------------------------------------------------------------------------------
Adopted in accordance with the provisions of Section 241
of the General Corporation Law of
the State of Delaware
- ------------------------------------------------------------------------------
The undersigned, being the President of CPI Holding Corporation, a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware (the "Corporation"), does hereby
certify as follows:
1. That ARTICLE IV of the Certificate of Incorporation of the
Corporation is hereby amended to read as set forth in EXHIBIT A attached
hereto and made a part hereof.
2. That the Corporation has not received payment for any of its
stock.
3. The foregoing amendment has been duly adopted pursuant to the
provisions of Section 241 of the General Corporation Law of the State of
Delaware, by the Board of Directors of the Corporation.
IN WITNESS WHEREOF, the undersigned, being the President hereinabove
named, for the purpose of amending the Certificate of Incorporation of the
Corporation pursuant to the General Corporation Law of the State of Delaware,
under penalties of perjury does hereby declare and certify that this is the act
and deed of the Corporation and the facts stated herein are true, and
accordingly has hereunto signed this Amendment to the Certificate of
Incorporation this 25th day of January, 1996.
/S/ TERRY L. HARTMAN
-----------------------------------
Terry L. Hartman, President
EXHIBIT A
ARTICLE IV
AUTHORIZED SHARES
SECTION 1. AUTHORIZED SHARES.
The total number of Shares of capital stock which the Corporation
has authority to issue is 1,200,000 Shares, consisting of:
(a) 500,000 Shares of Class A Common Stock, par value $0.01 per share (the
"CLASS A COMMON");
(b) 300,000 Shares of Class B Common Stock, par value $0.01 per share (the
"CLASS B COMMON");
(c) 200,000 Shares of Class C Common Stock, par value $0.01 per share (the
"CLASS C COMMON");
(d) 100,000 Shares of Class A Convertible Preferred Stock, par value $0.01 per
share (the "CLASS A PREFERRED");
(e) 100,000 Shares of Class B Preferred Stock, par value $0.01 per share (the
"CLASS B PREFERRED"); and
The Class A Common, the Class B Common and the Class C Common are hereinafter
collectively referred to as the "COMMON STOCK." The Class A Preferred and the
Class B Preferred are hereinafter collectively referred to as the "PREFERRED
STOCK".
SECTION 2. AMENDMENT.
(a) Any amendment or modification shall be binding and effective
with respect to any provision of subsection 1(a), 1(b), 1(c), or 2(a) of this
Section A with the prior written consent of the holders of a majority of the
Class A Common and Class B Common outstanding at the time such action is taken
(voting as a single class).
(b) Any amendment or modification shall be binding and effective
with respect to any provision of subsection 1(d), 1(e) or 2(b) of this Section A
with the prior written consent of the holders of a majority of the Class A
Common and Class B Common outstanding at the time such action is taken (voting
as a single class) and a majority of the Class B Preferred outstanding at the
time such action is taken.
PREFERRED STOCK
Except as otherwise provided in this Part B or as otherwise provided
by applicable law, all Shares of Class A Preferred and Class B Preferred (each
share of Preferred Stock being referred to herein as a "SHARE") shall be
identical in all respects and shall entitle the
holders thereof to the same rights and privileges, subject to the same
modifications, limitations and restrictions.
SECTION 1. DIVIDENDS.
When and as declared by the Corporation's board of directors and to
the extent permitted under the General Corporation Law of Delaware, the
Corporation shall pay preferential dividends to the holders of the Preferred
Stock as provided in this Section 1.
1A. ACCUMULATING DIVIDENDS.
Except as otherwise provided herein:
(i) dividends on each Share of the Class A Preferred shall
accrue on a daily basis at the rate of 8.75% per annum of the sum of the
Liquidation Value thereof plus all accumulated (as provided in Section 1C
of this Part B) and unpaid dividends thereon from and including the date
of issuance of such Share to and including the date on which the
Liquidation Value of such Share (plus all accrued and unpaid dividends
thereon) is paid; and
(ii) dividends on each Share of the Class B Preferred shall
accrue on a daily basis at the rate of 10% per annum of the sum of the
Liquidation Value thereof plus all accumulated (as provided in Section 1C
of this Part B) and unpaid dividends thereon from and including the date
of issuance of such Share to and including the date on which the
Liquidation Value of such Share (plus all accrued and unpaid dividends
thereon) is paid.
Such dividends on each Share of Class A Preferred and Class B
Preferred ("ACCUMULATING 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. 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. NON-ACCUMULATING DIVIDENDS.
Except as otherwise provided herein, additional dividends
("NON-ACCUMULATING DIVIDENDS") on each Share of the Class A Preferred shall
accrue on a daily basis at the rate of 10% per annum of the sum of the
Liquidation Value thereof plus any accumulated (as provided in Section 1C of
this Part B) and unpaid Accumulating Dividends thereon from and including the
date of issuance of such Share to and including the date on which the
Liquidation Value of such Share (plus all accrued and unpaid dividends thereon)
is paid. Non-Accumulating 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. Non-Accumulating
Dividends on a Share shall be paid only upon redemption, conversion or a
liquidation in accordance with the terms of this Part B. Non-Accumulating
Dividends shall not accrue on any Shares of Class B Preferred.
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1C. DIVIDEND REFERENCE DATES.
To the extent not paid on March 31 and September 30, of each year,
beginning March 31, 1997 (the "DIVIDEND REFERENCE DATES"), all Accumulating
Dividends which have accrued on each Share outstanding during the six-month
period ending on the last day of the calendar month immediately preceding each
such Dividend Reference Date and, with respect to the first Dividend Reference
Date, during the period from the date of issuance of each Share through February
28, 1997 shall be accumulated (and shall be referred to as "accumulated
dividends" for purposes of this Part B) and shall remain accumulated dividends
with respect to such Share until paid. No Accumulating Dividend shall be deemed
to be an "accumulated dividend" under this Part B except as expressly provided
in this Section 1C.
1D. DISTRIBUTION OF PARTIAL DIVIDEND PAYMENTS.
If at any time the Corporation pays less than the total amount of
Accumulating Dividends then accrued with respect to the Preferred Stock, (i)
such payment shall first be distributed ratably among the holders of Class A
Preferred based upon the aggregate accrued but unpaid Accumulating Dividends on
the Shares of Class A Preferred held by each such holder and (ii) any remaining
amount shall be distributed ratably among the holders of Class B Preferred based
upon the aggregate accrued but unpaid Accumulating Dividends on the Shares of
Class B Preferred held by each such holder.
1E. PARTICIPATION IN COMMON STOCK CASH DIVIDEND PAYMENTS.
Subject to Section 3 of this Part B, if the Corporation declares or
pays any cash dividends on its Common Stock, the Corporation shall also declare
and pay to each holder of Class A Preferred, at the same time that it declares
and pays such cash dividends on its Common Stock, the dividends which would have
been declared and paid with respect to the Common Stock issuable upon conversion
of each Share of Class A Preferred then held by such holder had such Shares of
Class A Preferred been converted immediately prior to the record date for such
dividend, or if no record date is fixed, the date as of which the record holders
of Common Stock entitled to such dividends are to be determined.
SECTION 2. LIQUIDATION.
Upon any liquidation, dissolution or winding up of the Corporation,
(a) each holder of Class A Preferred shall be entitled to be paid, before any
distribution or payment is made upon any Junior Securities, an amount in cash
equal to the greater of (i) the aggregate Liquidation Value (plus all accrued
and unpaid Accumulating Dividends and Non-Accumulating Dividends) of all Shares
held by such holder and (ii) the amount that would have been paid to such holder
with respect to the Class A Common issuable upon conversion of the Class A
Preferred had all of the Class A Preferred been converted immediately prior to
such liquidation, dissolution or winding up, and (b) each holder of Class B
Preferred 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 (plus all accrued and unpaid Accumulating Dividends) of all
Shares held by such holder, and thereafter the holders of Preferred Stock shall
not be entitled to any further payment. If upon any such liquidation,
dissolution or winding up of the Corporation,
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the Corporation's assets to be distributed among the holders of Preferred Stock
are insufficient to permit payment to such holders of the aggregate amount which
they are entitled to be paid, then the entire assets to be distributed shall
first be distributed ratably among the holders of Class A Preferred based upon
the aggregate Liquidation Value (plus all accrued and unpaid Accumulating
Dividends and Non-Accumulating Dividends thereon) of the Class A Preferred held
by each such holder and any remaining assets shall be distributed ratably among
the holders of Class B Preferred based upon the aggregate Liquidation Value
(plus all accrued and unpaid Accumulating Dividends thereon) of the Class B
Preferred held by each such holder. Prior to the time of any liquidation,
dissolution or winding up of the Corporation, the Corporation shall declare for
payment all accrued and unpaid Accumulating Dividends and Non-Accumulating
Dividends with respect to the Preferred Stock. The Corporation shall mail
written notice of such liquidation, dissolution or winding up, not less than 60
days prior to the payment date stated therein, to each record holder of
Preferred Stock (which notice shall reaffirm the right of each holder of Shares
of Class A Preferred to convert such holder's Shares into Class A Common in
accordance with Section 7 of this Part B). Neither the consolidation or merger
of the Corporation into or with any other entity or entities, nor the sale or
transfer by the Corporation of all or any part of its assets, nor the reduction
of the capital stock of the Corporation, shall be deemed to be a liquidation,
dissolution or winding up of the Corporation within the meaning of this Section
2.
SECTION 3. PRIORITY OF PREFERRED STOCK.
So long as any Preferred Stock remains outstanding, neither the
Corporation nor any Subsidiary shall 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, if at the time of or immediately after any such redemption,
purchase, acquisition, dividend or distribution the Corporation has failed to
pay the full amount of Accumulating Dividends accrued on the Preferred Stock or
the Corporation has failed to make any redemption of the Preferred Stock
required hereunder; PROVIDED that the Corporation may purchase (i) Junior
Securities from present or former employees, officers or directors of or
consultants to the Corporation and its Subsidiaries, (ii) Junior Securities
pursuant to the Stockholders Agreement between the Corporation and Cardinal
Packaging, Inc. Employee Stock Ownership Plan (or any successor plan), dated as
of January __, 1996, as the same may be amended or replaced, and (iii) pursuant
to any right of refusal arising out of or relating to the Cardinal Packaging,
Inc. Employee Stock Ownership Plan (or any successor plan) or applicable law.
SECTION 4. REDEMPTIONS.
4A. SCHEDULED REDEMPTIONS.
(i) On June 30, 2003 (the "CLASS A SCHEDULED REDEMPTION
DATE"), the Corporation shall redeem all outstanding Shares of Class A
Preferred at a price per Share equal to the Liquidation Value thereof
(plus accrued and unpaid Accumulating Dividends and Non-Accumulating
Dividends thereon). Notwithstanding the foregoing, if at any time after
delivery of the notice required pursuant to Section 4D but prior to the
Class A Scheduled Redemption Date, the holders of a majority of the
outstanding Shares of Class
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A Preferred deliver written notice to the Corporation requesting a
deferral of such redemption, then the redemption of Class A Preferred
shall be deferred (and the Shares of Class A Preferred shall remain
outstanding and shall continue to retain all rights and preferences set
forth herein) until the later of (a) the date on which the holders of a
majority of the outstanding Shares of Class A Preferred deliver written
notice to the Corporation terminating the request for deferral (the "CLASS
A DEFERRAL TERMINATION NOTICE") and (b) the date on which such Shares of
Class A Preferred are otherwise actually redeemed or purchased by the
Corporation. The Corporation shall be obligated to redeem all such Shares
of Class A Preferred within 30 days after receipt of the Class A Deferral
Termination Notice.
(ii) On June 30, 2003 (the "CLASS B SCHEDULED REDEMPTION
DATE"), the Corporation shall redeem all outstanding Shares of Class B
Preferred at a price per Share equal to the Liquidation Value thereof
(plus accrued and unpaid Accumulating Dividends thereon). Notwithstanding
the foregoing, if at any time after delivery of the notice required
pursuant to Section 4D but prior to the Class B Scheduled Redemption Date,
the holders of a majority of the outstanding Shares of Class B Preferred
deliver written notice to the Corporation requesting a deferral of such
redemption, then the redemption of Class B Preferred shall be deferred
(and the Shares of Class B Preferred shall remain outstanding and shall
continue to retain all rights and preferences set forth herein) until the
later of (a) the date on which the holders of a majority of the
outstanding Shares of Class B Preferred deliver written notice to the
Corporation terminating the request for deferral (the "CLASS B DEFERRAL
TERMINATION NOTICE") and (b) the date on which such Shares of Class B
Preferred are otherwise actually redeemed or purchased by the Corporation.
Subject to the immediately following sentence, the Corporation shall be
obligated to redeem all such Shares of Class B Preferred within 30 days
after receipt of the Class B Deferral Termination Notice.
4B. OPTIONAL REDEMPTIONS.
(i) The Corporation may at any time and from time to time
following the occurrence of a Significant Corporate Transaction (as
defined below) redeem any portion of the Shares of Preferred Stock then
outstanding at a price per Share equal to the Liquidation Value thereof
(plus all accrued and unpaid Accumulating Dividends and Non-Accumulating
Dividends thereon). For purposes of this Section 4B, a "Significant
Corporate Transaction" shall mean any of the following: (1) any sale or
issuance or series of sales and/or issuances of Shares of the
Corporation's capital stock by the Corporation or any holders thereof
which results in any Person or group of affiliated Persons (other than the
owners of Common Stock as of February 1, 1996) owning capital stock of the
Corporation possessing the voting power (under ordinary circumstances) to
elect a majority of the Corporation's board of directors, (2) any sale or
transfer of all or substantially all of the assets of the Corporation and
its Subsidiaries on a consolidated basis (measured by fair market value
determined in the reasonable good faith judgment of the Corporation's
board of directors) in any transaction or series of transactions (other
than sales in the ordinary course of business), (3) any merger or
consolidation to which the Corporation is a party except for a merger in
which the Corporation is the surviving corporation and, after giving
effect to such merger, the holders of the Corporation's
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outstanding capital stock possessing a majority of the voting power (under
ordinary circumstances) to elect a majority of the Corporation's board of
directors immediately prior to the merger shall own the Corporation's
outstanding capital stock possessing the voting power (under ordinary
circumstances) to elect a majority of the Corporation's board of directors
and (4) a public offering of the Corporation's Common Stock registered
under the Securities Act of 1933, as amended. If a proposed Significant
Corporate Transaction does not occur, all notices for redemption in
connection therewith shall be automatically rescinded.
(ii) Redemptions made pursuant to this paragraph 4B shall not
relieve the Corporation of its obligation to redeem Preferred Stock on the
scheduled redemption date pursuant to paragraph 4A hereof.
4C. REDEMPTION PAYMENT.
For each Share which is to be redeemed, the Corporation shall be
obligated on the Redemption Date to pay to the holder thereof (upon surrender by
such holder at the Corporation's principal office of the certificate
representing such Share) an amount equal to the Liquidation Value of such Share
(plus all accrued and unpaid Accumulating Dividends and Non-Accumulating
Dividends thereon). If, upon a scheduled redemption date on which both classes
of Preferred Stock are required to be redeemed (I.E., the holders of one class
of Preferred Stock have not delivered a deferral notice as set forth in Section
4A), the funds of the Corporation legally available for redemption of Shares are
insufficient to permit redemption of both the Class A Preferred and the Class B
Preferred, then those funds that are available shall first be used to redeem the
maximum possible number of Shares ratably among the holders of Class A Preferred
based upon the aggregate Liquidation Value (plus all accrued and unpaid
Accumulating Dividends and Non-Accumulating Dividends thereon) of the Class A
Preferred held by each holder of Class A Preferred, and any remaining funds that
are available shall be used to redeem the maximum possible number of Shares
ratably among the holders of Class B Preferred based upon the aggregate
Liquidation Value (plus all accrued and unpaid Accumulating Dividends thereon)
of the Class B Preferred held by each holder of Class B Preferred. At any time
thereafter when additional funds of the Corporation are legally available for
the redemption of Shares, such funds shall immediately be used to redeem the
balance of the Shares which the Corporation has become obligated to redeem on
any Redemption Date (in accordance with the terms hereof) but which it has not
redeemed.
4D. NOTICE OF REDEMPTION.
The Corporation shall deliver written notice of each redemption of
Preferred Stock to each record holder not less than 60 days prior to the date on
which such redemption is to be made (which notice shall, if applicable, reaffirm
the right of each holder of Shares of Class A Preferred to convert such holder's
Shares into Class A Common in accordance with Section 7 of this Part B). Upon
the giving of any such notice of redemption which relates to a redemption at the
Corporation's option, the Corporation shall become obligated to redeem the total
number of Shares specified in such notice at the time of redemption specified
therein (less the total number of Shares that may have been converted by the
holders thereof into Class A Common in accordance with the terms of this Part
B). In case fewer than the total number of Shares
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represented by any certificate are redeemed, a new certificate representing the
number of unredeemed Shares shall be issued to the holder thereof without cost
to such holder promptly after surrender of the certificate representing the
redeemed Shares.
4E. DIVIDENDS AFTER REDEMPTION DATE.
No Shares is entitled to any dividends accruing after the date on
which the Liquidation Value of such Share (plus all accrued and unpaid
Accumulating Dividends and Non-Accumulating Dividends thereon) is paid to the
holder thereof. On such date all rights of the holder of such Share shall cease,
and such Share shall not be deemed to be outstanding.
4F. REDEEMED OR OTHERWISE ACQUIRED SHARES.
Any Shares which are redeemed or otherwise acquired by the
Corporation shall be cancelled and shall not be reissued, sold or transferred.
SECTION 5. VOTING RIGHTS.
Except as otherwise provided herein and as otherwise required by
law, the Preferred Stock shall have no voting rights; PROVIDED that the holders
of Class A Preferred shall be entitled to vote with the holders of the Class A
Common (voting together as a single class) on all matters submitted to the
holders of the Class A Common for a vote, with each share of Class A Common
being entitled to one vote per share and each Share of Class A Preferred
entitled to one vote for each share of Class A Common issuable upon conversion
of the Class A Preferred at the time the vote is taken.
SECTION 6. REGISTRATION OF TRANSFER; RESTRICTION ON OWNERSHIP.
(i) The Corporation shall keep at its principal office (or
such other place as the Corporation reasonably designates) a register for
the registration of Preferred Stock. Upon the surrender of any certificate
representing Preferred Stock 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, and the Corporation forthwith shall cancel
such surrendered certificate. Each such new certificate will be registered
in such name and shall represent such number of Shares as is required by
the holder of the surrender certificate and will be substantially
identical in form to the surrendered certificate, and dividends shall
accrue on the Preferred Stock represented by such new certificate from the
date to which dividends have been fully paid on such Preferred Stock
represented by the surrendered certificate. The issuance of new
certificates shall be made without charge to the holders of the
surrendered certificates for any issuance tax in respect thereof or other
cost incurred by the Corporation in connection with such issuance.
(ii) Ownership of Shares of Class A Preferred shall be
restricted to the Corporation or any of its Subsidiaries, any employee of
the Corporation or any of its Subsidiaries (but not a former employee) or
to an employee stock ownership plan (within
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the meaning of the Internal Revenue Code of 1986, as amended), and no
other persons shall be permitted to own or otherwise hold any Shares of
Class A Preferred.
SECTION 7. CONVERSION.
7A. CONVERSION OF CLASS A PREFERRED.
Each holder of Class A Preferred shall be entitled at any time to
convert any or all of the Shares of such holder's Class A Preferred into a
number of Shares of Class A Common computed by multiplying the number of Shares
to be converted by $100.00 and dividing the result by the Conversion Price then
in effect (as defined in Section 7C of this Part B). Promptly following
conversion (and in any event within 90 days), all accrued but unpaid
Accumulating Dividends and Non-Accumulating Dividends on a converted Share shall
be paid to the holder of such Share, and if the funds of the Corporation are
legally available for payment of such dividends on the date of payment are
insufficient to pay all such dividends on such payment date, those funds which
are legally available shall be used to pay such dividends to the holders of the
Shares being converted based upon the aggregate Liquidation Value of such Shares
(plus all accrued and unpaid Accumulating Dividends and Non-Accumulating
Dividends thereon) held by each such holder. Interest on such dividends shall
accrue from the date of conversion until final payment of such dividends at the
per annum rate paid on three-month U.S. Treasury Bills issued immediately prior
to the date of conversion.
7B. CONVERSION PROCEDURE.
(i) Conversion of Shares of Class A Preferred into Shares of
Class A Common shall be effected by the surrender of the certificate or
certificates representing the Shares to be converted at the principal
office of the Corporation at any time during normal business hours,
together with a written notice by the holder of such Class A Preferred
stating that such holder desires to convert the Shares, or a stated number
of the Shares, of such Class A Preferred represented by such certificate
or certificates into Shares of Class A Common. Each conversion shall be
deemed to have been effected as of the close of business on the date on
which such certificate or certificates have been surrendered and such
notice has been received (or such later date as specified in such notice),
and at such time the rights of the holder of the converted Class A
Preferred as such holder shall cease and the person or persons in whose
name or names the certificate or certificates for Shares of Class A Common
are to be issued upon such conversion shall be deemed to have become the
holder or holders of record of the Shares of Class A Common represented
thereby.
(ii) Promptly after the surrender of certificates and the
receipt of the written notice or the request described above, the
Corporation shall issue and deliver in accordance with the surrendering
holder's instructions (a) the certificate or certificates for the Class A
Common issuable upon such conversion and (b) a certificate representing
any Class A Preferred which was represented by the certificate or
certificates delivered to the Corporation in connection with such
conversion but which was not converted.
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(iii) The issuance of certificates for Class A Common upon
conversion of Class A Preferred will be made without charge to the holders
of such Shares for any issuance tax in respect thereof or other cost
incurred by the Corporation in connection with such conversion and the
related issuance of Class A Common.
(iv) The Corporation shall at all times reserve and keep
available out of its authorized but unissued Shares of Class A Common,
solely for the purpose of issuance upon the conversion of the Class A
Preferred, such number of Shares of Class A Common issuable upon the
conversion of all outstanding Class A Preferred. All Shares of Class A
Common issuable upon the conversion of the Class A Preferred shall, when
issued, be duly and validly issued, fully paid and nonassessable and free
from all taxes, liens and charges. The Corporation shall take all such
actions as may be necessary to assure that all such Shares of Class A
Common may be so issued without violation of any applicable law or
governmental regulation or any requirements of any domestic securities
exchange upon which Shares of Class A Common may be listed (except for
official notice of issuance which will be immediately transmitted by the
Corporation upon issuance).
(v) The Corporation shall not close its books against the
transfer of Shares of Common Stock in any manner which would interfere
with the timely conversion of any Shares of Class A Preferred.
7C. CONVERSION PRICE.
(i) GENERAL. The initial Conversion Price shall be $94.545.
The Conversion Price shall be subject to adjustment from time to time
pursuant to this Section 7C.
(ii) SUBDIVISION OR COMBINATION OF COMMON STOCK. If the
Corporation at any time subdivides (by any stock split, stock dividend,
recapitalization or otherwise) one or more classes of its outstanding
Shares of Common Stock into a greater number of Shares, the Conversion
Price in effect immediately prior to such subdivision shall be
proportionately reduced, and if the Corporation at any time combines (by
reverse stock split or otherwise) one or more classes of its outstanding
Shares of Common Stock into a smaller number of Shares, the Conversion
Price in effect immediately prior to such combination shall be
proportionately increased.
(iii) REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER
OR SALE. Any recapitalization, reorganization, reclassification,
consolidation, merger, sale of all or substantially all of the
Corporation's assets to another Person or other transaction which is
effected in such a manner that holders of Common Stock are entitled to
receive (either directly or upon subsequent liquidation) stock, securities
or assets with respect to or in exchange for Common Stock is referred to
herein as an "Organic Change." Prior to the consummation of any Organic
Change, the Corporation shall make appropriate provisions to insure that
each of the holders of Class A Preferred shall thereafter have the right
to acquire and receive, in lieu of or in addition to (as the case may be)
the Shares of Class A Common immediately theretofore acquirable and
receivable upon the conversion
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of such holder's Class A Preferred, such Shares of stock, securities or
assets as such holder would have received in connection with such Organic
Change if such holder had converted its Class A Preferred immediately
prior to such Organic Change. In each such case, the Corporation shall
also make appropriate provisions to insure that the provisions of this
Section 7 and Section 3 and 4 hereof shall thereafter be applicable to the
Preferred Stock (including, in the case of any such consolidation, merger
or sale in which the successor entity or purchasing entity is other than
the Corporation, an immediate adjustment of the Conversion Price to the
value for the Common Stock reflected by the terms of such consolidation,
merger or sale, and a corresponding immediate adjustment in the number of
Shares of Class A Common acquirable and receivable upon conversion of
Class A Preferred, if the value so reflected is less than the Conversion
Price in effect immediately prior to such consolidation, merger or sale).
(iv) NOTICES. Immediately upon any adjustment of the
Conversion Price, the Corporation shall give written notice thereof to all
holders of Class A Preferred setting forth in reasonable detail the
calculation of such adjustment.
SECTION 8. 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, 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, other institutional investor or executive
officer of the Corporation, such holder's 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
represented by such lost, stolen, destroyed or mutilated certificate and dated
the date of such lost, stolen, destroyed or mutilated certificate, and dividends
shall accrue on the 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.
SECTION 9. DEFINITIONS.
"JUNIOR SECURITIES" means any of the Corporation's equity securities
other than the Preferred Stock.
"LIQUIDATION VALUE" of any Share as of any particular date shall
be equal to $100.00.
"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.
"REDEMPTION DATE" as to any Share means the date specified in the
notice of any redemption at the Corporation's option or the applicable date
specified herein in the case of any other redemption; PROVIDED that no such date
shall be a Redemption Date unless the Liquidation
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Value of such Share (plus all accrued and unpaid Accumulating Dividends and
Non-Accumulating Dividends thereon) is actually paid in full on such date, and
if not so paid in full, the Redemption Date shall be the date on which such
amount is fully paid.
"SUBSIDIARY" means any corporation of which the Shares of
outstanding capital stock possessing the voting power (under ordinary
circumstances) in electing the board of directors are, at the time as of which
any determination is being made, owned by the Corporation either directly or
indirectly through Subsidiaries.
SECTION 10. AMENDMENT AND WAIVER.
No amendment, modification or waiver shall be binding or effective
with respect to any provision of this Part B without the prior written consent
of the holders of at least majority of the Class B Preferred outstanding at the
time such action is taken (voting as a single class); PROVIDED that the vote of
the holders of a majority of Shares of any class of Preferred Stock shall be
required if any such amendment would alter or change the powers, preferences or
special rights of the Shares of such class so as to affect such class adversely.
SECTION 11. 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).
COMMON STOCK
Except as otherwise provided in this Section C or as otherwise
required by applicable law, all Shares of Class A Common, Class B Common and
Class C Common shall be identical in all respects and shall entitle the holders
thereof to the same rights and privileges, subject to the same qualifications,
limitations and restrictions.
SECTION 1. VOTING RIGHTS.
Except as otherwise provided in this Section C or as otherwise
required by applicable law, (a) the holders of Class A Common shall be entitled
to one vote per share on all matters to be voted on by the stockholders of the
Corporation, and (b) the holders of Class B Common and the holders of Class C
Common shall have no right to vote on any matters to be voted on by the
stockholders of the Corporation; PROVIDED that the holders of Class B Common
shall have the right to vote as a separate class, and the holders of Class C
Common shall have the right to vote as a separate class, on any merger or
consolidation of the Corporation with or into another entity or entities, or any
recapitalization or reorganization, in which such Shares of Class B Common or
Class C Common would receive or be exchanged for consideration different on a
per share basis from consideration received with respect to or in exchange for
the Shares of Class A Common or would otherwise be treated differently from
Shares of Class A Common in connection with such transaction; PROVIDED, HOWEVER,
that a transaction in which the holders of
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Class B Common or Class C Common receive securities substantially similar to
those received by the holders of Class A Common, except that such securities
received by such holders of Class B Common or Class C Common contain terms and
restrictions substantially similar to those specifically applicable to the Class
B Common or Class C Common, as the case may be, pursuant to this Article IV,
shall not require the affirmative vote of the holders of the Class B Common or
the holders of the Class C Common.
SECTION 2. DIVIDENDS.
As and when dividends are declared or paid thereon, whether in cash,
property or securities of the Corporation, the holders of Class A Common, the
holders of Class B Common and the holders of Class C Common shall, subject to
the terms of Section 1E of Part B above, be entitled to participate in such
dividends ratably on a per share basis; PROVIDED that (i) if dividends are
declared which are payable in Shares of Class A Common, Class B Common or Class
C Common, dividends shall be declared which are payable at the same rate on all
classes of stock, and the dividends payable in Shares of Class A Common shall be
payable to holders of that class of stock, the dividends payable in Shares of
Class A Common shall be payable to holders of that class of stock, the dividends
payable in Shares of Class B Common shall be payable to holders of that class of
stock and the dividends payable in Shares of Class C Common shall be payable to
holders of that class of stock and (ii) if the dividends consist of other voting
securities of the Corporation, the Corporation shall make available to each
holder of Class B Common or Class C Common, at such holder's request, dividends
consisting of non-voting securities of the Corporation which are otherwise
identical to the voting securities and, in the case of the holders of Class B
Common or Class C Common, which are convertible into or exchangeable for such
voting securities on the same terms as the Class B Common or Class C Common, as
applicable, is convertible into the Class A Common. The right of the holders of
Common Stock to receive dividends are subject to the provisions of the Preferred
Stock in Part B above.
SECTION 3. LIQUIDATION.
Subject to the provisions of the Preferred Stock in Part B above,
the holders of the Class A Common, the Class B Common and the Class C Common
shall be entitled to participate ratably on a per share basis in all
distributions to the holders of Common Stock in any liquidation, dissolution or
winding up of the Corporation.
SECTION 4. CONVERSION.
4A. CONVERSION OF CLASS B COMMON.
Each holder of Class B Common shall be entitled at any time to
convert any or all of the Shares of such holder's Class B Common into the same
number of Class A Common or the same number of Class C Common.
4B. CONVERSION OF CLASS C COMMON.
Upon the occurrence (or the expected occurrence as described in
(iii) below) of any Conversion Event, each holder of Class C Common shall be
entitled to convert any or all of
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the Shares of such holder's Class C Common into the same number of Shares of
Class A Common.
For purposes of this paragraph 4B, a "Conversion Event" shall mean
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).
Each holder of Class C Common shall be entitled to convert Shares of
Class C Common in connection with any Conversion Event if such holder reasonably
believes that such Conversion Event will be consummated, and a written request
for conversion from any holder of Class C Common to the Corporation stating such
holder's reasonable belief that a Conversion Event shall occur shall be
conclusive and shall obligate the Corporation to effect such conversion in a
timely manner so as to enable each such holder to participate in such Conversion
Event. The Corporation will not cancel the Shares of Class C Common so converted
before the tenth day following such Conversion Event and will reserve such
Shares until such tenth day for reissuance in compliance with the next sentence.
If any Shares of Class C Common are converted into Shares of Class A Common in
connection with a Conversion Event and such Shares of Class A Common are not
actually distributed, disposed of or sold pursuant to such Conversion Event,
such Shares of Class A Common shall be promptly converted back into the same
number of Shares of Class C Common.
4C. CONVERSION PROCEDURE.
(i) Each conversion of Shares of Class B Common or Class C
Common into Shares of Class A Common or Class C Common shall be effected
by the surrender of the certificate or certificates representing the
Shares to be converted at the principal office of the Corporation at any
time during normal business hours, together with (a) in the case of Class
B Common, a written notice by the holder of such Class B Common stating
that such holder desires to convert the Shares, or a stated number of the
Shares, of such Class B Common represented by such certificate or
certificates into Shares of Class A Common or Class C Common or (b) in the
case of Class C Common, the request described in Section 4B(iii) hereof.
Each conversion shall be deemed to have been effected as of the close of
business on the date on which such certificate or certificates have been
surrendered and such notice has been received (or such later date as
specified in the request described in Section 4B(iii)), and at such time
the rights of the holder of the converted Class B Common or Class C Common
as such holder shall cease and the person or persons in whose name or
names the certificate or certificates for Shares of Class A Common or
Class C Common, as applicable, are to be issued upon such conversion shall
be deemed to have become the holder or holders of record of the Shares of
Class A Common or Class C Common represented thereby.
(ii) Promptly after the surrender of certificates and the
receipt of the written notice or the request described above, the
Corporation shall issue and deliver in accordance with the surrendering
holder's instructions (a) the certificate or certificates for the Class A
Common or Class C Common, as the case may be, issuable upon such
conversion and (b) a certificate representing any Class B Common or Class
C Common
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which was represented by the certificate or certificates delivered to the
Corporation in connection with such conversion but which was not
converted.
(iii) The issuance of certificates for Class A Common or Class
C Common upon conversion of Class B Common or Class C Common will be made
without charge to the holders of such Shares for any issuance tax in
respect thereof or other costs incurred by the Corporation in connection
with such conversion and the related issuance of Class A Common or Class C
Common.
(iv) The Corporation shall at all times reserve and keep
available out of its authorized but unissued Shares of Class A Common,
solely for the purpose of issuance upon the conversion of the Class B
Common and Class C Common, such number of Shares of Class A Common
issuable upon the conversion of all outstanding Class B Common and all
outstanding Class C Common. The Corporation shall at all times reserve and
keep available out of its authorized but unissued Shares of Class C
Common, solely for the purpose of issuance upon the conversion of the
Class B Common, such number of Shares of Class C Common issuable upon the
conversion of all outstanding Class B Common. All Shares of Class A Common
and Class C Common issuable upon the conversion of the Class B Common and
Class C Common shall, when issued, be duly and validly issued, fully paid
and nonassessable and free from all taxes, liens and charges. The
Corporation shall take all such actions as may be necessary to assure that
all such Shares of Class A Common and Class C Common may be so issued
without violation of any applicable law or governmental regulation or any
requirements of any domestic securities exchange upon which Shares of
Class A Common or Class C Common may be listed (except for official notice
of issuance which will be immediately transmitted by the Corporation upon
issuance).
(v) The Corporation shall not close its books against the
transfer of Shares of Common Stock in any manner which would interfere
with the timely conversion of any Shares of Class B Common or Class C
Common.
SECTION 5. STOCK SPLITS.
If the Corporation in any manner subdivides (by any stock split,
stock dividend, recapitalization or otherwise) or combines (by reverse stock
split or otherwise) the outstanding Shares of one class of Common Stock, the
outstanding Shares of the other classes of Common Stock shall be proportionately
subdivided or combined in a similar manner.
SECTION 6. REGISTRATION OF TRANSFER.
The Corporation shall keep at its principal office (or such other
place as the Corporation reasonably designates) a register for the registration
of Shares of Common Stock. Upon the surrender of any certificate representing
Shares of any class of Common Stock at such place, the Corporation shall, at the
request of the registered holder of such certificate, execute and deliver a new
certificate or certificates in exchange therefor representing in the aggregate
the number of Shares of such class represented by the surrendered certificate,
and the Corporation forthwith shall cancel such surrendered certificate. Each
such new certificate will be registered
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in such name and will represent such number of Shares of such class as is
requested by the holder of the surrendered certificate and will be substantially
identical in form to the surrendered certificate. The issuance of new
certificates shall be made without charge to the holders of the surrendered
certificates for any issuance tax in respect thereof or other cost incurred by
the Corporation in connection with such issuance.
SECTION 7. REPLACEMENT.
Upon receipt of evidence reasonably satisfactory to the Corporation
(an affidavit of the registered holder will be satisfactory) of the ownership
and the loss, theft, destruction or mutilation of any certificate evidencing one
or more Shares of any class of Common 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, other
institutional investor or executive officer of the Corporation, such holder's
own agreement will 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.
SECTION 8. NOTICES.
All notices referred to herein shall be in writing, shall be
delivered personally or by first class mail, postage prepaid, and shall be
deemed to have been given when so delivered or mailed to the Corporation at its
principal executive offices and to any stockholder at such holder's address as
it appears in the stock records of the Corporation (unless otherwise specified
in a written notice to the Corporation by such holder).
SECTION 9. AMENDMENT AND WAIVER.
No amendment or waiver of any provision of this Section C shall be
effective without the prior approval of the holders of a majority of the then
outstanding Class A Common and Class B Common (voting as a single class);
PROVIDED that the vote of the holders of a majority of any class of Common Stock
shall be required if any such amendment would alter or change the powers,
preferences or special rights of the Shares of such class so as to affect such
class adversely.
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AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CPI HOLDING CORPORATION
(Under Sections 242 And 245)
The following Amended and Restated Certificate of Incorporation of
CPI Holding Corporation, duly adopted pursuant to Section 245 of the General
Corporation Law of the State of Delaware, amends, restates and supersedes the
existing Certificate of Incorporation, which was originally filed with the
Secretary of State of Delaware on April 27, 1995 under the name EPI Acquisition
Corporation.
ARTICLE I
NAME
The name of the corporation (herein called the "Corporation") is CPI
Holding Corporation.
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the registered office of the Corporation in the State
of Delaware is 9 East Loockerman Street, City of Dover, County of Kent, Delaware
19901. The name of the registered agent of the Corporation at such address is
National Registered Agents, Inc.
ARTICLE III
PURPOSE
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 (the "Delaware Statute").
ARTICLE IV
CAPITAL STOCK
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 1,000 shares, all of which are
shares of Common Stock, par value of $.01 per share.
ARTICLE V
DIRECTORS
The number of directors of the Corporation shall be such as from
time to time shall be fixed in the manner provided in the By-laws of the
Corporation. The election of directors of the Corporation need not be by ballot
unless the By-laws so require.
ARTICLE VI
DIRECTORS' LIABILITY
A director of the Corporation shall not be personally 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 Delaware Statute, or (iv) for
any transaction from which the director derived any improper personal benefit.
If the Delaware Statute is amended after the date of incorporation of the
Corporation to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the Delaware Statute, as so amended.
Any repeal or modification of the foregoing paragraph 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.
ARTICLE VII
MANAGEMENT OF THE CORPORATION
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:
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 in any manner not inconsistent with
the laws of the State of Delaware or this Certificate of Incorporation;
without the assent or vote of the stockholders, to authorize and issue
securities and obligations of the Corporation, secured or unsecured, and to
include therein such provisions as to redemption, conversion or other terms
thereof as the Board of Directors in its sole discretion may determine, and to
authorize the mortgaging or pledging, as security therefor, of any property of
the Corporation, real or personal, including after-acquired property;
-2-
to determine whether any, and if any, what part, of the net profits of the
Corporation or of its surplus shall be declared in dividends and paid to the
stockholders, and to direct and determine the use and disposition of any such
net profits or such surplus; and
to fix from time to time the amount of net profits of the Corporation or of its
surplus to be reserved as working capital or for any other lawful purpose.
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 provisions of the laws of the
State of Delaware, of this Certificate of Incorporation and of the By-laws
of the Corporation.
Any director or any officer elected or appointed by the stockholders or by the
Board of Directors may be removed at any time in such manner as shall be
provided in the By-laws of the Corporation.
From time to time any of the provisions of this Certificate of Incorporation may
be altered, amended or repealed, and other provisions authorized by the laws of
the State of Delaware at the time in force may be added or inserted, in the
manner and at the time prescribed by said laws, and all rights at any time
conferred upon the stockholders of the Corporation by this Certificate of
Incorporation are granted subject to the provisions of this paragraph (c).
ARTICLE VIII
CREDITORS MEETINGS
Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
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 the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under the
provisions of Section 291 of the Delaware Statute or on the application of
trustees in dissolution or of any receiver or receivers appointed for the
Corporation under the provisions of Section 279 of the Delaware Statute, order a
meeting of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of the 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 the Corporation, as the case may be,
agree on any compromise or arrangement and to any reorganization of the
Corporation as a 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 the Corporation, as the case may be, and also on the
Corporation.
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IN WITNESS WHEREOF, the undersigned, being the sole stockholder of
CPI Holding Corporation, for the purpose of amending and restating the
Certificate of Incorporation, as amended, of the Corporation pursuant to the
General Corporation Law of the State of Delaware, under penalties of perjury do
hereby declare and certify that this is the act and deed of the Corporation and
the facts stated herein are true, and accordingly have hereunto signed this
Amended and Restated Certificate of Incorporation this 6th day of July, 1999.
CPI HOLDING CORPORATION
--------------------------------------
Name: James M. Kratochvil
Title:Executive Vice President, Chief
Financial Officer, Treasurer and
Secretary