AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
AFTERMARKET TECHNOLOGY CORP.
A DELAWARE CORPORATION
The undersigned, for the purpose of amending and restating the
Certificate of Incorporation of Aftermarket Technology Corp., a Delaware
corporation (the "Corporation"), does hereby certify that:
1. The date of filing of the Corporation's original Certificate of
Incorporation with the Secretary of State of the State of Delaware was April 25,
1994 and the name under which it originally incorporated was Aftermarket
Technologies & Components, Inc. A Restated Certificate of Incorporation was
filed with the Secretary of State of the State of Delaware on June 21, 1996.
2. This Amended and Restated Certificate of Incorporation has been
duly adopted pursuant to Section 228, 242 and 245 of the Delaware General
Corporation Law. Written consent of the Corporation's stockholders has been
given in accordance with Section 228 of the DGCL and written notice has been
given as provided in such Section.
3. The Certificate of Incorporation of the Corporation is hereby
amended and restated in its entirety as follows:
ARTICLE I
NAME OF CORPORATION
The name of this corporation is:
Aftermarket Technology Corp.
ARTICLE II
REGISTERED OFFICE
The address of the registered office of the Corporation in the
State of Delaware is 9 East Loockerman Street, in the city of Dover, County
of Kent and the name of its registered agent at that 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 Delaware General
Corporation Law.
ARTICLE IV
AUTHORIZED CAPITAL STOCK
SECTION 1. AUTHORIZED SHARES. The Corporation shall be authorized
to issue two classes of shares of stock to be designated, respectively,
"Preferred Stock" and "Common Stock"; the total number of shares that the
Corporation shall have authority to issue is Thirty-Five Million
(35,000,000); the total number of shares of Preferred Stock shall be Five
Million (5,000,000) and all such shares shall have a par value of one cent
($.01); and the total number of shares of Common Stock shall be Thirty
Million (30,000,000), and each such share shall have a par value of one cent
($.01).
SECTION 2. PREFERRED STOCK. The shares of Preferred Stock may be
issued from time to time in one or more series. The Board of Directors of
the Corporation (the "Board") is hereby vested with authority to fix by
resolution or resolutions the designations and the powers, preferences and
relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, including, without
limitation, the dividend rate, conversion or exchange rights, redemption
price and liquidation preference, of any series of shares of Preferred Stock,
and to fix the number of shares constituting any such series, and to increase
or decrease the number of shares of any such series (but not below the number
of shares thereof then outstanding). In case the number of shares of any
such series shall be so decreased, the shares constituting such decrease
shall resume the status that they had prior to the adoption of the resolution
or resolutions originally fixing the number of shares of such series.
SECTION 3. DISTRIBUTIONS UPON LIQUIDATION. In the event of any
dissolution, liquidation or winding up of the affairs of the Corporation,
whether voluntary or involuntary, after payment or provision for payment of
the debts and other liabilities of the Corporation, the holders of each
series of Preferred Stock shall be entitled to receive, out of the net assets
of the Corporation, an amount for each share of such series of Preferred
Stock equal to the amount fixed and determined by the Board in the resolution
or resolutions creating such series and providing for the issuance of such
shares, and no more, before any of the assets of the Corporation shall be
distributed or paid over to the holders of Common Stock. After payment in
full of said amounts to the holders of Preferred Stock of all series, the
remaining assets and funds of the Corporation shall be divided among and paid
to the holders of shares of Common Stock. If, upon such dissolution,
liquidation or winding up, the assets of the Corporation distributable as
aforesaid among the holders of Preferred Stock of all series shall be
insufficient to permit full payment to them of said preferential amounts,
then such assets shall be distributed ratably among such holders of Preferred
Stock in proportion to the respective total amounts that they shall be
entitled to receive as provided in this Section 3.
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ARTICLE V
ANNUAL MEETINGS OF STOCKHOLDERS
The annual meeting of stockholders shall be held at such time, on
such date and at such place (within or without the State of Delaware) as
provided in the Bylaws of the Corporation. Subject to any requirement of
applicable law, 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 or in the Bylaws of the Corporation. Elections of directors need
not be by written ballot unless the Bylaws of the Corporation shall so
provide.
ARTICLE VI
CALL OF SPECIAL MEETINGS OF STOCKHOLDERS
Special meetings of stockholders of the Corporation for any purpose
or purposes may be called at any time (i) by a majority of the members of the
Board or (ii) by a committee of the Board that has been duly designated by
the Board and whose power and authority, as provided in a resolution by the
Board or in the Bylaws of the Corporation, includes the power to call such
meetings; but such special meetings of stockholders of the Corporation may
not be called by any other Person or Persons or in any other manner;
PROVIDED, HOWEVER, that if and to the extent that any special meeting of
stockholders may be called by any other Person or Persons specified in any
certificate of designations filed under Section 151(g) of the Delaware
General Corporation Law (or its successor statute as in effect from time to
time), then such special meeting may also be called by the Person or Persons,
in the manner, at the times and for the purposes so specified.
ARTICLE VII
STOCKHOLDER ACTION BY WRITTEN CONSENT
Any election of directors or other action by the stockholders of
the Corporation must be effected at an annual or special meeting of
stockholders and may not be effected by written consent without a meeting.
ARTICLE VIII
ELECTION OF DIRECTORS
SECTION 1. BALLOT. Elections of directors need not be by written
ballot unless the Bylaws of the Corporation shall so provide.
SECTION 2. ELECTION OF DIRECTORS BY PREFERRED STOCKHOLDERS.
During any period when the holders of any Preferred Stock or any one or more
series thereof,
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voting as a class, shall be entitled to elect a specified number of
directors, by reason of dividend arrearages or other provisions giving them
the right to do so, then and during such time as such right continues (1) the
then otherwise authorized number of directors shall be increased by such
specified number of directors, and the holders of such Preferred Stock or
such series thereof, voting as a class, shall be entitled to elect the
additional directors so provided for, pursuant to the provisions of such
Preferred Stock or series; (2) each such additional director shall serve for
such term, and have such voting powers, as shall be stated in the provisions
pertaining to such Preferred Stock or series; PROVIDED, HOWEVER, that,
notwithstanding the foregoing, any such director's term shall earlier expire
upon the due election and qualification of a successor to such director or
upon any resignation, disqualification or removal of such director in
accordance with law. Whenever the holders of shares of any series of
Preferred Stock are divested of such rights to elect a specified number of
directors pursuant to the resolution or resolutions of the Board creating
such series and providing for the issuance of such shares, the terms of
office of all directors elected by the holders of such series of Preferred
Stock pursuant to such rights, or elected to fill any vacancies resulting
from the death, resignation or removal of directors so elected by the holders
of such series of Preferred Stock, shall forthwith terminate and the
authorized number of directors shall be reduced accordingly.
SECTION 3. STOCKHOLDER NOMINEES. Nominations by stockholders of
persons for election to the Board shall be made only in accordance with the
procedures set forth in the Bylaws of the Corporation.
SECTION 4. REMOVAL. Subject to the rights of the holders of any
series of Preferred Stock then outstanding, any director, or the entire
Board, may be removed from office with or without cause, at any time, and
only by the affirmative vote of the holders of a majority of the shares of
Voting Stock then outstanding.
ARTICLE IX
LIABILITY AND INDEMNIFICATION
To the fullest extent permitted by the Delaware General Corporation
Law, as the same exists or may hereafter be amended (the "Delaware Law"), a
director of the Corporation shall not be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
The Corporation shall indemnify, in the manner and to the fullest extent
permitted by the Delaware Law, any person (or the estate of any person) who
is or was a party to, or is threatened to be made a party to, any threatened,
pending or completed action, suit or proceeding, whether or not by or in the
right of the Corporation, and whether civil, criminal, administrative,
investigative or otherwise, by reason of the fact that such person is or was
a director or officer of the Corporation, or is or was serving at the request
of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise. The Corporation may
indemnify, in the manner and to the fullest extent permitted by the Delaware
Law, any person (or the estate of any person) who is or was a party to, or is
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threatened to be made a party to, any threatened, pending or completed
action, suit or proceeding, whether or not by or in the right of the
Corporation, and whether civil, criminal, administrative, investigative or
otherwise, by reason of the fact that such person is or was an employee or
agent of the Corporation, or is or was serving at the request of the
Corporation as an employee or agent of another corporation, partnership,
joint venture, trust or other enterprise. Expenses incurred by any such
director, officer, employee or agent in defending any such action, suit or
proceeding may be advanced by the Corporation prior to the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director, officer, employee or agent to repay such amount if
it shall ultimately be determined that he or she is not entitled to be
indemnified as authorized by the Delaware Law and this Article X. The
Corporation may, to the fullest extent permitted by the Delaware Law,
purchase and maintain insurance on behalf of any such director, officer,
employee or agent against any liability which may be asserted against such
person. To the fullest extent permitted by the Delaware Law, the
indemnification provided herein shall include expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement and, in the manner
provided by the Delaware Law, any such expenses may be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding. The indemnification provided herein shall not be deemed to limit
the right of the Corporation to indemnify any other person for any such
expenses to the fullest extent permitted by the Delaware Law, nor shall it be
deemed exclusive of any other rights to which any person seeking
indemnification from the Corporation may be entitled under any agreement,
vote of stockholders or disinterested directors, or otherwise, both as to
action in such person's official capacity and as to action in another
capacity while holding such office.
No repeal or modification of the foregoing paragraph shall
adversely affect any right or protection of a director of the Corporation
existing by virtue of the foregoing paragraph at the time of such repeal or
modification.
ARTICLE X
CREDITOR COMPROMISE OR ARRANGEMENT
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application of this
Corporation or of any creditor or stockholder thereof or on the application
of any receiver or receivers appointed for this Corporation under the
provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of Section 279 of Title 8
of the Delaware Code order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this Corporation, as
the case may be, to be summoned in such manner as the said court directs. If
a majority in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of
this Corporation,
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as the case may be, agree to any compromise or arrangement and to any
reorganization of this 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 this Corporation, as the case
may be, and also on this Corporation.
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IN WITNESS WHEREOF, the undersigned has executed this Amended and
Restated Certificate of Incorporation on behalf of the Corporation and does
hereby verify and affirm, under penalty of perjury, that this Amended and
Restated Certificate of Incorporation is the act and deed of the Corporation
and that the facts stated herein are true as of December 13, 1996.
/s/ John C. Kent
--------------------------------
John C. Kent, Secretary
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