EXHIBIT 3
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CCPC HOLDING COMPANY, INC.
CCPC Holding Company, Inc., a corporation organized and existing under the
laws of the State of Delaware (the "CORPORATION"), hereby certifies as follows:
I. The name of the Corporation is "CCPC Holding Company, Inc.," which was
amended from "Corning Consumer Products Company" pursuant to a Certificate of
Amendment of Certificate of Incorporation filed with the Secretary of the State
of Delaware, which was amended from "Corning Vitro Corporation" pursuant to a
Certificate of Amendment of Certificate of Incorporation filed with the
Secretary of the State of Delaware. The original Certificate of Incorporation of
the Corporation was filed with the Secretary of State of the State of Delaware
on September 19, 1991.
II. The text of the Certificate of Incorporation as amended heretofore is
hereby further amended and restated to read as herein set forth in full:
FIRST: The name of the Corporation is:
CCPC Holding Company, Inc.
SECOND: The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle,
Delaware 19801. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD: The purpose of the Corporation is to design, manufacture, construct,
use, buy, sell, lease, hire and deal in and with glass, glass ceramic, metal,
plastic and other consumer housewares, cookware, beverage ware and service ware
products and other articles and property of all kinds, to render service of all
kinds and generally to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.
FOURTH: (A) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 80,000,000 shares, of which
75,000,000 shares shall be Common Stock, par value one cent ($.01) per share,
and 5,000,000 shares shall be Preferred Stock, par value one cent ($.01) per
share.
(B) At the close of business on March 31, 1998, and without any further
action on the part of the Corporation or its stockholders, each share of the
Corporation's Common Stock then issued shall automatically be subdivided,
changed and converted into 24,000 fully paid and nonassessable shares of Common
Stock.
(C) The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors of the Corporation is authorized to fix by
resolution or resolutions the designation of each series of Preferred Stock and
the powers, designations, preferences and relative participating, optional or
other rights, if any, or the qualifications, limitations or restrictions
thereof, including, without limiting the generality of the foregoing, such
provisions as may be desired concerning voting, redemption, dividends,
dissolution or the distribution of assets, conversion or exchange, and such
other subjects or matters as may be fixed by resolution or resolutions of the
Board of Directors under the General Corporation Law of the State of Delaware.
Unless otherwise provided in such resolution or resolutions, shares of Preferred
Stock of any series which shall be issued and thereafter acquired by the
Corporation through purchase, redemption, exchange, conversion or otherwise
shall return to the status of authorized but unissued Preferred Stock.
(D) 1. DESIGNATION OF JUNIOR CUMULATIVE PAY-IN-KIND PREFERRED STOCK. The
designation of a series of preferred stock shall be "Junior Cumulative
Pay-In-Kind Preferred Stock" (the "JUNIOR PREFERRED STOCK") consisting of
2,000,000 shares. The par value of the Junior Preferred Stock shall be $0.01 per
share. The original liquidation preference of the Junior Preferred Stock shall
be $25 per share ("ORIGINAL LIQUIDATION
PREFERENCE"), which value does not represent a determination by the Board of
Directors for the purposes of the Corporation's capital accounts.
2. RANK. The Junior Preferred Stock shall, with respect to dividend rights
and rights on liquidation, winding up and dissolution, rank senior to the Common
Stock of the Corporation. (All equity securities of the Corporation to which the
Junior Preferred Stock ranks senior, including the Common Stock, are
collectively referred to herein as the "JUNIOR SECURITIES", all equity
securities of the Corporation with which the Junior Preferred Stock ranks on a
parity are collectively referred to herein as the "PARITY SECURITIES" and all
equity securities of the Corporation (other than convertible debt securities) to
which the Junior Preferred Stock ranks junior, whether with respect to dividends
or upon liquidation, dissolution, winding up or otherwise, are collectively
referred to herein as the "SENIOR SECURITIES".) The Junior Preferred Stock shall
be subject to the creation of Junior Securities, Parity Securities and Senior
Securities.
3. DIVIDENDS.
(i) The holders of the shares of Junior Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors, out
of funds legally available for the payment of dividends, cumulative
dividends at the rate of $0.75 per share per calendar quarter. Such
dividends shall be payable in quarterly payments on March 31, June 30,
September 30 and December 31 of each year commencing with June 30, 1998
(each of such dates being a "DIVIDEND PAYMENT DATE"), in preference to
dividends on the Junior Securities. Such dividends shall be paid to the
holders of record at the close of business on the March 15, June 15,
September 15 or December 15, as the case may be, immediately preceding the
relevant dividend payment date (each of such dates being a "DIVIDEND PAYMENT
RECORD DATE"). Each dividend shall accrue (whether or not declared) from the
previous dividend payment date (or, with respect to the first dividend, from
the date of initial issuance of the Junior Preferred Stock). Dividends
payable for any partial dividend period shall be pro rated on the basis of a
360-day year consisting of twelve 30-day months (four 90-day quarters) and
the actual number of days elapsed in the period for which payable.
Dividend payments made with respect to the Junior Preferred Stock may be
made (a) by issuing fully paid and nonassessable shares (or fractional
shares as hereinafter described) of Junior Preferred Stock with an aggregate
Original Liquidation Preference equal to the aggregate amount of dividends
being made, (b) in cash or (c) in any combination thereof.
Dividends on the Junior Preferred Stock shall be fully cumulative, and
from and after any Dividend Payment Date on which any dividend that has been
accrued through such date has not been declared or paid in full or any
payment date set for a redemption on which such redemption has not been paid
in full, the amount of such unpaid dividends or unpaid redemption payment
(the "ARREARAGE") shall accrue dividends at a rate of 12% per annum. Such
dividends in respect of any Arrearage shall accrue on a daily basis, whether
or not declared, until the Arrearage is paid, shall be calculated as of such
successive Dividend Payment Date and shall constitute additional Arrearage
from and after any Dividend Payment Date to the extent not paid on such
Dividend Payment Date. References herein to dividends that have accrued with
respect to the Junior Preferred Stock shall include the amount of any
Arrearage together with dividends accrued on such Arrearage pursuant to the
immediately preceding two sentences.
"LIQUIDATION PREFERENCE" means the Original Liquidation Preference, plus
an amount in cash equal to all accrued and unpaid dividends (including
Arrearage), whether or not declared (including an amount equal to a prorated
dividend from the last Dividend Payment Date or the date of initial
issuance, whichever is later, to the date such Liquidation Preference is
being determined). The Liquidation Preference of a share of Junior Preferred
Stock will increase on a daily basis as dividends accrue on such share,
whether or not declared, and will decrease only to the extent such dividends
are actually paid in cash or additional shares of Junior Preferred Stock are
actually issued, all as provided in this paragraph 3. The issuance of such
shares of Junior Preferred Stock (plus the amount of cash
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dividends, if any, paid together therewith) shall constitute full payment of
such dividend. In no event shall an election by the Board of Directors to
pay dividends, in full or in part, in cash on any Dividend Payment Date
preclude the Board of Directors from electing either such alternative in
respect of all or any portion of any subsequent dividend.
(ii) All dividends and distributions paid with respect to shares of the
Junior Preferred Stock pursuant to Paragraph 3(i) shall be paid PRO RATA to
the holders entitled thereto. If the Board of Directors elects on any
Dividend Payment Date to pay any dividend partially in shares of Junior
Preferred Stock, the proportion of such cash and shares of Junior Preferred
Stock shall be the same for each outstanding share of Junior Preferred
Stock.
(iii) Each fractional share of Junior Preferred Stock outstanding shall
be entitled to a ratably proportionate amount of dividends accruing with
respect to each outstanding share of Junior Preferred Stock pursuant to
paragraph (i) hereof, and all such dividends with respect to such
outstanding fractional shares shall be fully cumulative and shall accrue
(whether or not declared), and shall be payable in the same manner and at
such times as provided for in paragraph 3(i) hereof, with respect to
dividends on each outstanding share of Junior Preferred Stock.
(iv) No full dividends shall be declared by the Board of Directors or
paid or set apart for payment by the Corporation on any Parity Securities,
nor shall the Corporation make any distribution in respect of any Parity
Securities, either directly or indirectly, and whether in cash, obligations
or shares of the Corporation or other property, for any period unless full
cumulative dividends have been or contemporaneously are declared and paid or
declared and a sum set apart sufficient for such payment on the Junior
Preferred Stock for all dividend payment periods terminating on or prior to
the date of payment, or setting apart for payment, of such full dividends on
or distributions in respect of such Parity Securities. If any dividends are
not paid in full, as aforesaid, upon the shares of the Junior Preferred
Stock and any other Parity Securities, all dividends or distributions
declared upon shares of the Junior Preferred Stock and any other Parity
Securities shall be declared PRO RATA so that the amount of dividends or
distributions declared per share of the Junior Preferred Stock and such
Parity Securities shall in all cases bear to each other the same ratio that
accrued dividends per share on the Junior Preferred Stock and such Parity
Securities bear to each other. Any dividend not paid pursuant to paragraph
3(i) hereof or this paragraph 3(iv) shall be fully cumulative and shall
accrue (whether or not declared) as set forth in paragraph 3(i) hereof.
(v) (a) Holders of shares of the Junior Preferred Stock shall be
entitled to receive the dividends provided for in paragraph 3(i) hereof in
preference to and in priority over any dividends upon any of the Junior
Securities.
(b) So long as any shares of the Junior Preferred Stock are outstanding,
the Board of Directors shall not declare, and the Corporation shall not pay
or set apart for payment any dividend on any of the Junior Securities or
make any payment on account of, or set apart for payment money for a sinking
or other similar fund for, the repurchase, redemption or other retirement
of, any of the Junior Securities or Parity Securities or any warrants,
rights or options exercisable for or convertible into any of the Junior
Securities or Parity Securities (other than the repurchase, redemption or
other retirement of debentures or other debt securities that are convertible
or exchangeable into any of the Junior Securities or Parity Securities), or
make any distribution in respect of the Junior Securities, either directly
or indirectly, and whether in cash, obligations or shares of the Corporation
or other property (other than distributions or dividends in Junior
Securities to the holders of Junior Securities), and shall not permit any
corporation or other entity directly or indirectly controlled by the
Corporation to purchase or redeem any of the Junior Securities or Parity
Securities or any warrants, rights, calls or options exercisable for or
convertible into any of the Junior Securities or Parity Securities (other
than the repurchase, redemption or other retirement of debentures or other
debt securities that are convertible or exchangeable into any of the Junior
Securities or Parity Securities)
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unless prior to or concurrently with such declaration, payment, setting
apart for payment, repurchase, redemption or other retirement or
distribution, as the case may be, all accrued and unpaid dividends on shares
of the Junior Preferred Stock not paid on the dates provided for in
paragraph 3(i) hereof (including accrued dividends not paid by reason of the
terms and conditions of paragraph 3(i) or paragraph 3(iv) hereof) shall have
been or are paid in full and fully in cash or in fully paid and
nonassessable shares (or fractional shares) of Junior Preferred Stock;
PROVIDED that, this paragraph shall not prohibit the Corporation from
repurchasing any Junior Securities or any warrants, rights or options
exercisable for or convertible into Junior Securities from any employee of
the Corporation or its subsidiaries pursuant to the terms of any agreements
with such employee.
(c) Subject to the foregoing provisions of this paragraph 3, the Board
of Directors may declare and the Corporation may pay or set apart for
payment dividends and other distributions on any of the Junior Securities or
Parity Securities, and may repurchase, redeem or otherwise retire any of the
Junior Securities or Parity Securities or any warrants, rights or options
exercisable for or convertible into any of the Junior Securities or Parity
Securities, and the holders of the shares of the Junior Preferred Stock
shall not be entitled to share therein.
4. PAYMENT ON LIQUIDATION.
(i) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, the holders of
shares of Junior Preferred Stock then outstanding shall be entitled to be
paid out of the assets of the Corporation available for distribution to its
stockholders an amount in cash equal to the Liquidation Preference for each
share outstanding, before any payment shall be made or any assets
distributed to the holders of any of the Junior Securities. If the assets of
the Corporation are not sufficient to pay in full the liquidation payments
payable to the holders of outstanding shares of the Junior Preferred Stock
and any Parity Securities, then the holders of all such shares shall share
ratably in such distribution of assets in accordance with the amount which
would be payable on such distribution if the amounts to which the holders of
outstanding shares of Junior Preferred Stock and the holders of outstanding
shares of such Parity Securities are entitled were paid in full. Except as
provided in this paragraph 4(i), holders of Junior Preferred Stock shall not
be entitled to any distribution in the event of liquidation, dissolution or
winding up of the affairs of the Corporation.
(ii) For the purposes of this paragraph 4, neither the voluntary sale,
conveyance, lease, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all of the
property or assets of the Corporation nor the consolidation or merger of the
Corporation with or into one or more other corporations nor the
consolidation or merger of one or more corporations with or into the
Corporation shall be deemed to be a voluntary or involuntary liquidation,
dissolution or winding up.
5. REDEMPTION.
(i) OPTIONAL REDEMPTION. At any time and from time to time, the
Corporation shall have the right, at its sole option and election, to redeem
any or all of the outstanding shares of Junior Preferred Stock, in whole or
in part. The redemption price shall be paid in cash out of funds legally
available therefor and will be in an amount per share (the "REDEMPTION
PRICE") equal to the Liquidation Preference.
(ii) NOTICE AND REDEMPTION PROCEDURES. Notice of the redemption of
shares of Junior Preferred Stock pursuant to paragraph 5(i) hereof shall be
sent to the holders of record of the shares of Junior Preferred Stock to be
redeemed by first class mail, postage prepaid, at such holder's address as
it appears on the transfer books of the Corporation not more than 60 nor
fewer than 30 days prior to the redemption date; PROVIDED that any failure
to give such notice to any holder, or any defect in such notice, shall not
affect the validity of the proceedings for the redemption of any shares of
Junior
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Preferred Stock held by any other holder. On or after the date fixed for
redemption stated in such notice, each holder of the shares called for
redemption shall surrender the certificate evidencing such shares to the
Corporation at the place designated in such notice and shall thereupon be
entitled to receive payment of the Redemption Price. From and after the date
of any redemption of any shares effected by the Corporation pursuant to this
paragraph 5, all dividends on such shares shall cease to accrue and all
rights of the holders thereof as holders of such shares shall cease and
terminate.
(iii) PUT EVENT. Any holder of record of shares of Junior Preferred
Stock, in accordance with the procedures set forth in paragraph
5(iv) hereof and subject to the provisions set forth in paragraph
5(v) hereof, may require the Corporation to redeem any or all of the shares
of Junior Preferred Stock held by such holder at the Redemption Price
therefor, upon the occurrence of any of the following events (each a "PUT
EVENT"):
(a) The Corporation becomes aware of (by way of a report or any other
filing pursuant to Section 13(d) of the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), proxy, vote, written notice or otherwise) the
acquisition by any "Person" or "Group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act), other than the permitted holders of
the Junior Preferred Stock as described in paragraph 7, in a single
transaction or in a related series of transactions, by way of merger,
consolidation or other business combination or purchase of "beneficial
ownership" (as defined in Rule 13(d)-3 under the Exchange Act) of 50% or
more of the total voting power entitled to vote in the election of directors
of the Corporation; or
(b) the sale, lease, transfer or other disposition of all or
substantially all of the consolidated assets of the Corporation and its
subsidiaries to any Person or Group, other than the permitted holders of the
Junior Preferred Stock as described in paragraph 7.
(iv) PUT EVENT NOTICE AND REDEMPTION PROCEDURES. Notice of any Put
Event shall be sent to the holders of record of the outstanding shares of
Junior Preferred Stock not more than 30 days following such Put Event, which
notice shall describe the transaction or transactions constituting such Put
Event and set forth each holder's right to require the Corporation to redeem
any or all shares of Junior Preferred Stock held by such holder out of funds
legally available therefor, the redemption date (which date shall be not
more than 60, nor less than 30, days from the date of such notice) and the
reasonable procedures to be followed by such holders in exercising such
redemption right. Any failure by the Corporation to give the notice
prescribed by the preceding sentence, or any defects in such notice, shall
not prejudice the rights of any holder of shares of Junior Preferred Stock
to cause the Corporation to redeem any such shares held by such holder. In
the event a holder of shares of Junior Preferred Stock shall elect to
require the Corporation to redeem any or all such shares of Junior Preferred
Stock pursuant to paragraph 5(iii) hereof, such holder shall deliver within
20 days of the mailing of the Corporation's notice described in this
paragraph 5(iv), or, if no notice is given, at any time following the last
day the Corporation was required to give notice of the Put Event in
accordance with this paragraph 5(iv) (in which case the date of redemption
shall be the date which is the later of (x) 60 days following the last day
the Corporation was required to give notice in accordance with this
paragraph 5(iv) and (y) ten days following the delivery of such election by
such holder), a written notice, in the form specified by the Corporation (if
the Corporation did in fact give the notice required by this paragraph
5(iv)), to the Corporation so stating, and specifying the number of shares
to be redeemed pursuant to paragraph 5(iii) hereof; PROVIDED, HOWEVER, that
such holders may deliver a notice of an election to redeem at any time
within 80 days following the occurrence of a Put Event (and such holders
shall not be required to wait for the Corporation's notice provided for in
this paragraph 5(iv) or for the expiration of the time allowed for the
Corporation's notice hereunder), in which case the redemption date shall be
90 days after the date of the Put Event. The Corporation shall redeem the
number of shares so specified on the date fixed for redemption.
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(v) LIMITATION ON PAYMENT OF REDEMPTION PRICE. Notwithstanding
anything to the contrary in paragraph 5, the Corporation shall not be
required to pay the Redemption Price for any shares of Junior Preferred
Stock which are required to be redeemed pursuant to paragraphs 5(iii) and
(iv) in respect of a Put Event (i) to the extent and so long as such payment
would constitute a default or event of default under the Corporation's
senior credit facilities and (ii) until the prior payment of all amounts due
pursuant to any actually exercised right to require the redemption or
repurchase by the Corporation of, or the prior payment of all amounts due
pursuant to or the waiver of any right to accelerate the payments under, any
Senior Securities, debt securities or indebtedness for borrowed money of the
Corporation arising as a result of such Put Event.
6. VOTING RIGHTS. The holders of record of shares of Junior Preferred
Stock shall not be entitled to any voting rights, except as otherwise provided
by law.
7. TRANSFERABILITY. The shares of the Junior Preferred Stock may not be
sold, transferred, assigned, pledged or otherwise disposed of to any Person or
Group other than (i) BW Holdings L.L.C., (ii) any Person that directly, or
indirectly through one or more intermediaries, controls, is controlled by, or is
under common control with, BW Holdings L.L.C. and (iii) any partner, member or
stockholder of any Person described in the preceding clauses (i) and (ii).
8. REACQUIRED SHARES. Shares of Junior Preferred Stock that have been
issued and reacquired in any manner, including shares reacquired by purchase or
redemption, shall (upon compliance with any applicable provisions of the laws of
the State of Delaware) have the status of authorized and unissued shares of
preferred stock undesignated as to class and series and may be redesignated and
reissued as part of any series of any class of preferred stock other than the
Junior Preferred Stock.
9. MUTILATED OR MISSING CERTIFICATES. If any of the Junior Preferred Stock
certificates shall be mutilated, lost, stolen or destroyed, the Corporation
shall issue, in exchange and substitution for and upon cancellation of the
mutilated certificate, or in lieu of and substitution for the certificate lost,
stolen or destroyed, a new certificate of like tenor and representing an
equivalent amount of shares of Junior Preferred Stock, but only upon receipt of
evidence of such loss, theft or destruction of such certificate and indemnity,
if requested.
10. SEVERABILITY OF PROVISIONS. If any right, preference or limitation of
the Junior Preferred Stock set forth in this Amended and Restated Certificate of
Incorporation (as amended from time to time) is invalid, unlawful or incapable
of being enforced by reason of any rule or law or public policy, all other
rights, preferences and limitations set forth in such Amended and Restated
Certificate of Incorporation, as amended, which can be given effect without the
invalid, unlawful or unenforceable right, preference or limitation shall,
nevertheless remain in full force and effect, and no right, preference or
limitation herein set forth shall be deemed dependent upon any other such right,
preference or limitation unless so expressed herein.
11. NOTICES. All notices and other communications required or permitted to
be given to the Corporation under this section (D) of ARTICLE FOURTH shall be
made by courier to the Corporation at its principal executive offices at the
following address:
Corning Consumer Products Company
E-Building
Houghton Park
Corning, New York 14831
Telecopy: (607) 974-2215
Attention: Secretary
Minor imperfections in any such notice shall not affect the validity thereof.
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12. LIMITATIONS. Except as may otherwise be required by law, the shares of
Junior Preferred Stock shall not have any powers, preferences or relative,
participating, optional or other special rights other than those specifically
set forth in this Amended and Restated Certificate of Incorporation of the
Corporation.
(E) 1. DESIGNATION OF SERIES B JUNIOR CUMULATIVE PREFERRED STOCK. The
designation of a series of preferred stock shall be "Series B Junior Cumulative
Preferred Stock" (the "SERIES B PREFERRED STOCK") consisting of 2,500,000
shares. The par value of the Series B Preferred Stock shall be $0.01 per share.
The original liquidation preference of the Series B Preferred Stock shall be $25
per share ("ORIGINAL LIQUIDATION PREFERENCE"), which value does not represent a
determination by the Board of Directors for the purposes of the Corporation's
capital accounts.
2. RANK. The Series B Preferred Stock shall, with respect to dividend
rights and rights on liquidation, winding up and dissolution, rank senior to the
Common Stock of the Corporation and on a parity with the Junior Preferred Stock.
(All equity securities of the Corporation to which the Series B Preferred Stock
ranks senior, including the Common Stock, are collectively referred to herein as
the "JUNIOR SECURITIES", all equity securities of the Corporation with which the
Series B Preferred Stock ranks on a parity are collectively referred to herein
as the "PARITY SECURITIES" and all equity securities of the Corporation (other
than convertible debt securities) to which the Series B Preferred Stock ranks
junior, whether with respect to dividends or upon liquidation, dissolution,
winding up or otherwise, are collectively referred to herein as the "SENIOR
SECURITIES".) The Series B Preferred Stock shall be subject to the creation of
Junior Securities, Parity Securities and Senior Securities.
3. DIVIDENDS.
(i) Shares of Series B Preferred Stock shall accumulate dividends at the
rate of $1.00 per share per calendar quarter, which dividends, if declared,
shall be paid in cash. If declared, such dividends shall be payable in
quarterly payments on March 31, June 30, September 30 and December 31 of
each year commencing with December 31, 1999 (each of such dates, regardless
of whether any dividends have been paid or declared and set aside for
payment on such date, a "DIVIDEND PAYMENT DATE"), in preference to dividends
on the Junior Securities. Such dividends shall be paid to the holders of
record at the close of business on the March 15, June 15, September 15 or
December 15, as the case may be, immediately preceding the relevant dividend
payment date (each of such dates being a "DIVIDEND PAYMENT RECORD DATE").
Dividends shall begin to accumulate on outstanding Series B Preferred Stock
from the date of issuance and shall be deemed to accumulate from day to day
whether or not earned or declared until paid. Dividends shall accumulate on
the basis of a 360-day year consisting of twelve 30-day months (four 90-day
quarters) and the actual number of days elapsed in the period for which
payable. The Corporation shall not pay dividends on the outstanding
Series B Preferred Stock unless the Interest Coverage Ratio (as defined
below) for the Corporation's last fiscal year ending prior to the Dividend
Payment Date is greater than 2.75 and such dividend payment is not in
contravention of the Corporation's then existing indentures, credit
facilities or other contracts or instruments. For purposes of this
paragraph, "Interest Coverage Ratio" means, for a given fiscal year and in
accordance with United States Generally Accepted Accounting Principles, the
ratio of (a) the Corporation's earnings before interest, tax, depreciation
and amortization expenses to (b) the Corporation's interest expense.
Dividends on the Series B Preferred Stock shall be fully cumulative, and
from and after any Dividend Payment Date on which any dividend that has
accumulated or been deemed to have accumulated through such date has not
been paid in full or any payment date set for a redemption on which such
redemption payment has not been paid in full, additional dividends shall
accumulate in respect of the amount of such unpaid dividends or unpaid
redemption payment (the "ARREARAGE") at a rate of 16% per annum. Such
additional dividends in respect of any Arrearage shall be deemed to
accumulate from day to day, whether or not earned or declared, until the
Arrearage is paid, shall be calculated as of such successive Dividend
Payment Date and shall constitute additional Arrearage
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from and after any Dividend Payment Date to the extent not paid on such
Dividend Payment Date. References herein to dividends that have accumulated
or that have been deemed to have accumulated with respect to the Series B
Preferred Stock shall include the amount, if any, of any Arrearage together
with any dividends accumulated or deemed to have accumulated on such
Arrearage pursuant to the immediately preceding two sentences. Additional
dividends in respect of any Arrearage may be declared and paid at any time,
in whole or in part, without reference to any Dividend Payment Date, to
holders of record on such record date as may be fixed by the Board of
Directors (which record date shall be no less than 10 days prior to the
corresponding payment date). Dividends in respect of any Arrearage shall be
paid in cash.
"LIQUIDATION PREFERENCE" means the Original Liquidation Preference, plus
an amount in cash equal to all dividends accumulated or deemed to have
accumulated thereon (including Arrearage), whether or not declared
(including an amount equal to a prorated dividend from the last Dividend
Payment Date or the date of initial issuance, whichever is later, to the
date such Liquidation Preference is being determined). The Liquidation
Preference of a share of Series B Preferred Stock will increase on a daily
basis as dividends accumulate or are deemed to accumulate on such share,
whether or not declared, and will decrease only to the extent such dividends
are actually paid in cash as provided in this paragraph 3.
(ii) All dividends and distributions paid with respect to shares of the
Series B Preferred Stock pursuant to paragraph 3(i) shall be paid PRO RATA
to the holders entitled thereto. Dividends that are declared and paid in an
amount less than the full amount of dividends accumulated on the Series B
Preferred Stock (and on any Arrearage) shall be applied first to the
earliest dividend which has not theretofore been paid.
(iii) Each fractional share of Series B Preferred Stock outstanding shall
be entitled to a ratably proportionate amount of dividends accumulating with
respect to each outstanding share of Series B Preferred Stock pursuant to
paragraph (i) hereof, and all such dividends with respect to such
outstanding fractional shares shall be fully cumulative and shall accumulate
(whether or not earned or declared), and shall be payable in the same manner
and at such times as provided for in paragraph 3(i) hereof, with respect to
dividends on each outstanding share of Series B Preferred Stock.
(iv) No full dividends shall be declared by the Board of Directors or
paid or set apart for payment by the Corporation on any Parity Securities
other than the Junior Cumulative Pay-Kind Preferred Stock, nor shall the
Corporation make any distribution in respect of any Parity Securities other
than the Junior Cumulative Pay-Kind Preferred Stock, either directly or
indirectly, and whether in cash, obligations or shares of the Corporation or
other property, for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum set apart
sufficient for such payment on the Series B Preferred Stock for all dividend
payment periods terminating on or prior to the date of payment, or setting
apart for payment, of such full dividends on or distributions in respect of
such Parity Securities. If any dividends are not paid in full, as aforesaid,
upon the shares of the Series B Preferred Stock and any other Parity
Securities other than the Junior Cumulative Pay-Kind Preferred Stock, all
dividends or distributions declared upon shares of the Series B Preferred
Stock and any other Parity Securities other than the Junior Cumulative
Pay-Kind Preferred Stock shall be declared PRO RATA so that the amount of
dividends or distributions declared per share of the Series B Preferred
Stock and such Parity Securities shall in all cases bear to each other the
same ratio that accrued dividends per share on the Series B Preferred Stock
and such Parity Securities bear to each other. Any dividend not paid
pursuant to paragraph 3(i) hereof or this paragraph 3(iv) shall be fully
cumulative and shall accumulate (whether or not declared) as set forth in
paragraph 3(i) hereof.
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(v) (a) Holders of shares of the Series B Preferred Stock shall be
entitled to receive the dividends provided for in paragraph 3(i) hereof in
preference to and in priority over any dividends upon any of the Junior
Securities.
(b) So long as any shares of the Series B Preferred Stock are
outstanding, the Board of Directors shall not declare, and the Corporation
shall not pay or set apart for payment any dividend on any of the Junior
Securities or make any payment on account of, or set apart for payment money
for a sinking or other similar fund for, the repurchase, redemption or other
retirement of, any of the Junior Securities or Parity Securities or any
warrants, rights or options exercisable for or convertible into any of the
Junior Securities or Parity Securities (other than the repurchase,
redemption or other retirement of debentures or other debt securities that
are convertible or exchangeable into any of the Junior Securities or Parity
Securities), or make any distribution in respect of the Junior Securities,
either directly or indirectly, and whether in cash, obligations or shares of
the Corporation or other property (other than distributions or dividends in
Junior Securities to the holders of Junior Securities), and shall not permit
any corporation or other entity directly or indirectly controlled by the
Corporation to purchase or redeem any of the Junior Securities or Parity
Securities or any warrants, rights, calls or options exercisable for or
convertible into any of the Junior Securities or Parity Securities (other
than the repurchase, redemption or other retirement of debentures or other
debt securities that are convertible or exchangeable into any of the Junior
Securities or Parity Securities) unless prior to or concurrently with such
declaration, payment, setting apart for payment, repurchase, redemption or
other retirement or distribution, as the case may be, all accumulated and
unpaid dividends on shares of the Series B Preferred Stock not paid on the
dates provided for in paragraph 3(i) hereof (including accumulated dividends
not paid by reason of the terms and conditions of paragraph 3(i) or
paragraph 3(iv) hereof) shall have been or are paid in full and fully in
cash; PROVIDED that, this paragraph shall not prohibit the Corporation from
repurchasing any Junior Securities or any warrants, rights or options
exercisable for or convertible into Junior Securities from any employee of
the Corporation or its subsidiaries pursuant to the terms of any agreements
with such employee.
(c) Subject to the foregoing provisions of this paragraph 3, the Board
of Directors may declare and the Corporation may pay or set apart for
payment dividends and other distributions on any of the Junior Securities or
Parity Securities, and may repurchase, redeem or otherwise retire any of the
Junior Securities or Parity Securities or any warrants, rights or options
exercisable for or convertible into any of the Junior Securities or Parity
Securities, and the holders of the shares of the Series B Preferred Stock
shall not be entitled to share therein.
4. PAYMENT ON LIQUIDATION.
(i) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, the holders of
shares of Series B Preferred Stock then outstanding shall be entitled to be
paid out of the assets of the Corporation available for distribution to its
stockholders an amount in cash equal to the Liquidation Preference for each
share outstanding, before any payment shall be made or any assets
distributed to the holders of any of the Junior Securities. If the assets of
the Corporation are not sufficient to pay in full the liquidation payments
payable to the holders of outstanding shares of the Series B Preferred Stock
and any Parity Securities, then the holders of all such shares shall share
ratably in such distribution of assets in accordance with the amount which
would be payable on such distribution if the amounts to which the holders of
outstanding shares of Series B Preferred Stock and the holders of
outstanding shares of such Parity Securities are entitled were paid in full.
Except as provided in this paragraph 4(i), holders of Series B Preferred
Stock shall not be entitled to any distribution in the event of liquidation,
dissolution or winding up of the affairs of the Corporation.
(ii) For the purposes of this paragraph 4, neither the voluntary sale,
conveyance, lease, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all of the
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property or assets of the Corporation nor the consolidation or merger of the
Corporation with or into one or more other corporations nor the
consolidation or merger of one or more corporations with or into the
Corporation shall be deemed to be a voluntary or involuntary liquidation,
dissolution or winding up.
5. REDEMPTION.
(i) OPTIONAL REDEMPTION. If all of the 9 *% Senior Subordinated Notes
due 2008 and 9 *% Series B Senior Subordinated Notes due 2008 have been
repaid in full, at any time and from time to time, the Corporation shall
have the right, at its sole option and election, to redeem any or all of the
outstanding shares of Series B Preferred Stock, in whole or in part. The
redemption price shall be paid in cash out of funds legally available
therefor and will be in an amount per share (the "REDEMPTION PRICE") equal
to the Liquidation Preference.
(ii) NOTICE AND REDEMPTION PROCEDURES. Notice of the redemption of
shares of Series B Preferred Stock pursuant to paragraph 5(i) hereof shall
be sent to the holders of record of the shares of Series B Preferred Stock
to be redeemed by first class mail, postage prepaid, at such holder's
address as it appears on the transfer books of the Corporation not more than
60 nor fewer than 30 days prior to the redemption date; PROVIDED that any
failure to give such notice to any holder, or any defect in such notice,
shall not affect the validity of the proceedings for the redemption of any
shares of Series B Preferred Stock held by any other holder. On or after the
date fixed for redemption stated in such notice, each holder of the shares
called for redemption shall surrender the certificate evidencing such shares
to the Corporation at the place designated in such notice and shall
thereupon be entitled to receive payment of the Redemption Price. From and
after the date of any redemption of any shares effected by the Corporation
pursuant to this paragraph 5, all dividends on such shares shall cease to
accumulate and all rights of the holders thereof as holders of such shares
shall cease and terminate.
6. VOTING RIGHTS. The holders of record of shares of Series B Preferred
Stock shall not be entitled to any voting rights, except as otherwise provided
by law.
7. TRANSFERABILITY. The shares of the Series B Preferred Stock may not be
sold, transferred, assigned, pledged or otherwise disposed of to any Person or
Group other than (i) BW Holdings L.L.C., (ii) any Person that directly, or
indirectly through one or more intermediaries, controls, is controlled by, or is
under common control with, BW Holdings L.L.C. and (iii) any partner, member or
stockholder of any Person described in the preceding clauses (i) and (ii).
8. REACQUIRED SHARES. Shares of Series B Preferred Stock that have been
issued and reacquired in any manner, including shares reacquired by purchase or
redemption, shall (upon compliance with any applicable provisions of the laws of
the State of Delaware) have the status of authorized and unissued shares of
preferred stock undesignated as to class and series and may be redesignated and
reissued as part of any series of any class of preferred stock other than the
Series B Preferred Stock.
9. MUTILATED OR MISSING CERTIFICATES. If any of the Series B Preferred
Stock certificates shall be mutilated, lost, stolen or destroyed, the
Corporation shall issue, in exchange and substitution for and upon cancellation
of the mutilated certificate, or in lieu of and substitution for the certificate
lost, stolen or destroyed, a new certificate of like tenor and representing an
equivalent amount of shares of Series B Preferred Stock, but only upon receipt
of evidence of such loss, theft or destruction of such certificate and
indemnity, if requested.
10. SEVERABILITY OF PROVISIONS. If any right, preference or limitation of
the Series B Preferred Stock set forth in this Amended and Restated Certificate
of Incorporation (as amended from time to time) is invalid, unlawful or
incapable of being enforced by reason of any rule or law or public policy, all
other rights, preferences and limitations set forth in such Amended and Restated
Certificate of Incorporation, as amended, which can be given effect without the
invalid, unlawful or unenforceable right, preference or limitation shall,
nevertheless remain in full force and effect, and no right, preference or
limitation herein
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set forth shall be deemed dependent upon any other such right, preference or
limitation unless so expressed herein.
11. NOTICES. All notices and other communications required or permitted to
be given to the Corporation under this section (E) of ARTICLE FOURTH shall be
made by courier to the Corporation at its principal executive offices at the
following address:
CCPC Holding Company, Inc.
E-Building
Houghton Park
Corning, New York 14831
Telecopy: (607) 974-2215
Attention: Secretary
Minor imperfections in any such notice shall not affect the validity thereof.
12. LIMITATIONS. Except as may otherwise be required by law, the shares of
Series B Preferred Stock shall not have any powers, preferences or relative,
participating, optional or other special rights other than those specifically
set forth in this Amended and Restated Certificate of Incorporation of the
Corporation.
FIFTH: The name and mailing address of the incorporator is as follows:
NAME MAILING ADDRESS
- ---- ---------------
M. Ann Gosnell Houghton Park
Corning, New York 14831
SIXTH: Elections of directors need not be by written ballot except and to
the extent provided in the By-Laws of the Corporation.
SEVENTH: If (A) any two or more stockholders or subscribers to stock of the
Corporation shall enter into any agreement abridging, limiting or restricting
the rights of any one or more of them to sell, assign, transfer, mortgage,
pledge or hypothecate any or all of the stock of the Corporation held by any one
or more of them and if a copy of said agreement shall be filed with the
Corporation, or if (B) the incorporator or the stockholders entitled to vote
shall adopt any by-law provision abridging, limiting or restricting the
aforesaid rights of any stockholders, then and in either of such events, all
certificates for shares of stock subject to such abridgements, limitations or
restrictions shall have a reference thereto endorsed thereon by an officer of
the Corporation and such stock shall not thereafter be transferred on the books
of the Corporation except in accordance with the terms and provisions of such
agreement or bylaw, as the case may be.
EIGHTH: (A) 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 (1) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (2) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (3) under Section 174 of the Delaware General Corporation Law,
or (4) for any transaction from which the director derived any improper personal
benefit.
(B) The Corporation may indemnify, to the full extent permitted by
applicable law, any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he 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.
(C) Any indemnification under Section (B) of this ARTICLE EIGHTH (unless
ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or
officer is proper in the circumstances because he has met any applicable
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standard of conduct. Such determination may be made (1) by resolution of the
Board of Directors adopted in the manner provided in the By-Laws of the
Corporation, or (2) if a quorum consisting of directors who were not parties to
such action, suit or proceeding is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (3) by the stockholders.
NINTH: Any action required or permitted to be taken at any annual or special
meeting of stockholders of the Corporation may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted.
IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation
which restates, integrates and amends the provisions of the Certificate of
Incorporation of the Corporation, having been duly adopted in accordance with
the provisions of Sections 228, 242 and 245 of the General Corporation Law of
the State of Delaware, has been executed by its duly authorized officer and has
been affixed hereunto with the corporate seal this 1(st) day of November, 1999.
CCPC Holding Company, Inc.
By: /s/ Raymond J. Kulla
- --------------------------------------------------------------------------------
Name: RAYMOND J. KULLA
Title: Vice President, General
Counsel and Secretary
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