EXHIBIT 3.2
SCOVILL HOLDINGS INC
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND
RELATIVE, PARTICIPATING, OPTIONAL AND OTHER SPECIAL RIGHTS
OF 13 3/4% SERIES A CUMULATIVE
REDEEMABLE EXCHANGEABLE PREFERRED STOCK
______________________
Pursuant to Section 151(g) of the
General Corporation Law of the State of Delaware
______________________
Scovill Holdings Inc. (the "Company"), a corporation organized and existing
under the General Corporation Law of the State of Delaware, does hereby certify
that pursuant to the provisions of Section 151 of the General Corporation Law of
the State of Delaware, the Board of Directors of the Company (the "Board"), by
unanimous written consent dated November 24, 1997, adopted the following
resolution, which resolution remains in full force and effect as the date
hereof.
WHEREAS, the Board is authorized, within the limitations and restrictions
stated in the Certificate of Incorporation of the Company, to fix by resolution
or resolutions the designation of each series of Preferred Stock of the Company
(the "Preferred Stock") and the powers, preferences and relative, participating,
optional or other special rights and the qualifications, limitations or
restrictions thereof, including, without limitation the generality of the
foregoing, such provisions as may be desired concerning voting, redemption,
dividends, dissolutions or distribution of assets, conversion or exchange, and
such other subjects or matters as may be fixed by resolutions of the Board under
the General Corporation Law of Delaware; and
WHEREAS, it is the desire of the Board, pursuant to its authority as
aforesaid, to authorize and fix the terms of a series of Preferred Stock and the
number of shares constituting such series;
NOW, THEREFORE, BE IT RESOLVED, that there is hereby authorized such series of
Preferred Stock on the terms and with the provisions herein set forth:
(a) Designation. There is hereby created out of the authorized and unissued
shares of Preferred Stock of the Company a series of Preferred Stock
designated as the "13 3/4% Series A Cumulative Redeemable Exchangeable
Preferred Stock" (the "Senior Preferred Stock"). The number of shares
constituting such series shall be 200,000 shares of Senior Preferred Stock,
consisting of an initial issuance of 100,000 shares of Senior Preferred
Stock
plus up to 100,000 additional shares of Senior Preferred Stock which may be
issued to pay dividends on the Senior Preferred Stock if the Company elects
to pay dividends in additional shares of Senior Preferred Stock. The
liquidation preference of the Senior Preferred Stock shall be $100.00 per
share.
(b) Rank. The Senior Preferred Stock shall, with respect to dividend
distributions and distributions upon the liquidation, winding-up and
dissolution of the Company, rank senior to all classes of Common Stock of
the Company, the Series B Preferred Stock of the Company (the "Series B
Preferred Stock") and each other class of capital stock or series of
Preferred Stock of the Company established by the Board the terms of which
do not expressly provide that it ranks on a parity with the Senior
Preferred Stock as to dividend distributions and distributions upon the
liquidation, winding-up and dissolution of the Company (collectively
referred to with the Common Stock and the Series B Preferred Stock of the
Company as "Junior Securities"). The Senior Preferred Stock shall, with
respect to dividend distributions and distributions upon the liquidation,
winding-up and dissolution of the Company, rank on a parity with any class
of capital stock or series of Preferred Stock established by the Board, the
terms of which expressly provide that such class or series shall rank on a
parity with the Senior Preferred Stock as to dividend distributions and
distributions upon the liquidation, winding-up and dissolution of the
Company (collectively referred to as "Parity Securities"); provided that
any such Parity Securities that were not approved by the Holders in
accordance with paragraph (f)(ii)(A) hereof shall be deemed to be Junior
Securities and not Parity Securities.
(c) Dividends.
(i) Holders of the outstanding shares of Senior Preferred Stock shall be
entitled to receive, when, as and if declared by the Board, out of funds
legally available therefor, dividends at a rate per annum equal to 13 3/4%
of the liquidation preference per share of the Senior Preferred Stock. All
dividends shall be cumulative, whether or not earned or declared, on a
daily basis from the Senior Preferred Stock Issue Date and shall be payable
quarterly in arrears on each Dividend Payment Date, commencing on the first
Dividend Payment Date after the Senior Preferred Stock Issue Date, provided
that if any dividend payable on any Dividend Payment Date on or before
November 30, 2002 is not declared and paid in full in cash on such Dividend
Payment Date, the amount payable as dividends on such Dividend Payment Date
that is not paid in cash (including partial payments in cash) on such
Dividend Payment Date shall be paid by the Company in additional fully paid
and non-assessable shares (including fractional shares, if applicable) of
Senior Preferred Stock having an aggregate liquidation preference equal to
the
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amount of such dividends (rounded to the nearest whole cent). After
November 30, 2002, dividends shall be paid only in cash. If any dividend
(or portion thereof) payable on any Dividend Payment Date after November
30, 2002 is not declared or paid in full in cash on such Dividend Payment
Date, the amount of such dividend that is payable and that is not paid in
cash on such date shall increase at the rate of 13 3/4% per annum,
compounded quarterly, from such Dividend Payment Date until declared and
paid in full. No interest, or sum of money in lieu of interest, will be
payable in respect of any accrued and unpaid dividends. Each dividend
payment (whether in cash or in additional shares of Senior Preferred Stock)
shall be payable to Holders of record as they appear on the stock register
of the Company on such record dates, not less than 10 nor more than 60 days
preceding the related Dividend Payment Date, as shall be fixed by the
Board. Dividends shall cease to accumulate in respect of shares of the
Senior Preferred Stock on the Exchange Date (as defined in paragraph
(g)(1)(A) hereof) or on the date of their earlier redemption except to the
extent that the Company shall have failed to issue the appropriate
aggregate principal amount of Exchange Debentures (as defined in paragraph
(g)(i)(A) hereof) in respect of the Senior Preferred Stock on the Exchange
Date or shall have failed to pay the relevant redemption price on the date
fixed for redemption.
(ii) All dividends paid with respect to shares of the Senior Preferred
Stock pursuant to paragraph (c)(i) shall be paid pro rata to the Holders
entitled thereto.
(iii) Nothing herein contained shall in any way or under any
circumstances be construed or deemed to require the Board to declare, or
the Company to pay or set apart for payment, any dividends on shares of the
Senior Preferred Stock at any time.
(iv) Dividends on account of arrears for any past Dividend Period and
dividends in connection with any optional redemption pursuant to paragraph
(e)(i) may be declared and paid at any time, without reference to any
regular Dividend Payment Date, to Holders of record on such date, not more
than 45 days prior to the payment thereof, as may be fixed by the Board.
(v) No full dividends shall be declared by the Board or paid or funds set
apart for payment of dividends by the Company on any Parity Securities for
any period unless full cumulative dividends shall have been or
contemporaneously are declared and paid in full, or declared and (in the
case of dividends payable in cash) a sum in cash set apart sufficient for
such payment, on the Senior Preferred Stock for all Dividend Periods
terminating on or prior to the date of payment of such full dividends on
such Parity Securities. If any dividends are not paid in full, as
aforesaid, upon the shares of the Senior Preferred Stock and any other
Parity Securities, all dividends declared upon shares of the Senior
Preferred Stock and any other Parity Securities shall be declared pro rata
so that the amount of dividends declared per share on the Senior Preferred
Stock and such Parity Securities shall in all cases bear to each other the
same ratio that accrued dividends per share on the Senior Preferred Stock
and such Parity Securities bear to each other.
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(vi) Holders of shares of the Senior Preferred Stock shall be entitled to
receive the dividends provided for in paragraph (c)(i) hereof in preference
to and in priority over any dividends upon any of the Junior Securities.
(vii) Dividends payable on shares of the Senior Preferred Stock for any
period less than a year shall be payable for the actual number of days
elapsed in the period for which such dividends are payable, computed on the
basis of a 360-day year of twelve 30-day months. If any Dividend Payment
Date occurs on a day that is not a Business Day, any accrued dividends
otherwise payable on such Dividend Payment Date shall be paid on the next
succeeding Business Day.
(viii) The election of directors pursuant to paragraph (f)(iii) is the
sole remedy for the Company's failure to pay dividends on the Senior
Preferred Stock.
(d) Liquidation Preference.
(i) Upon any voluntary or involuntary liquidation, dissolution or
winding-up of the affairs of the Company, the Holders of shares of Senior
Preferred Stock then outstanding shall be entitled to be paid, out of the
assets of the Company available for distribution to its stockholders,
$100.00 per share of Senior Preferred Stock, plus an amount in cash equal
to all accumulated and unpaid dividends thereon to the date fixed for
liquidation, dissolution or winding-up (including an amount equal to a
prorated dividend for the period from the last Dividend Payment Date to the
date fixed for liquidation, dissolution or winding-up), before any
distribution is made with respect to any Junior Securities, including,
without limitation, the Series B Preferred Stock and Common Stock of the
Company. If, upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Company, the amounts payable with respect to the Senior
Preferred Stock and all other Parity Securities are not paid in full, then
the holders of all such shares shall share equally and ratably in such
distribution of assets of the Company in accordance with the amounts which
would be payable on such distribution if the amount to which the Holders of
outstanding shares of Senior Preferred Stock and the holders of outstanding
shares of all Parity Securities are entitled were paid in full.
(ii) After payment of the full amount of the liquidation preferences and
accumulated and unpaid dividends to which they are entitled, the holders of
shares of Senior Preferred Stock shall not be entitled to any further
participation in any distribution of assets of the Company.
(iii) For the purposes of this paragraph (d), neither the sale,
conveyance, exchange or transfer (for cash, shares of stock, securities or
other consideration) of all or substantially all of the property or assets
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of the Company nor the consolidation or merger of the Company with or into
one or more corporations shall be deemed to be a liquidation, dissolution
or winding-up of the affairs of the Company.
(e) Redemption.
(i) Optional Redemption.
(A) The Company may (subject to contractual and other restrictions
with respect thereto and the legal availability of funds therefor), at
the option of the Board, redeem at any time on or after November 30,
2002, from any source of funds legally available therefor, in whole or in
part, in the manner provided in paragraph (e)(iii) hereof, any or all of
the shares of the Senior Preferred Stock, at the redemption prices
(expressed as percentages of the liquidation preference thereof) set
forth below plus, without duplication, an amount in cash equal to all
accumulated and unpaid dividends per share (including an amount in cash
equal to a prorated dividend for the period from the Dividend Payment
Date immediately prior to the Redemption Date to the Redemption Date)
(the "Optional Redemption Price"), if redeemed during the 12-month period
beginning on November 30 of each of the calendar years indicated below:
YEAR PERCENTAGE
---- ----------
2002 106.875%
2003 104.583%
2004 102.292%
2005 and thereafter 100.000%
provided that no optional redemption pursuant to this paragraph (e)(i)(A)
shall be authorized or made unless prior thereto full unpaid cumulative
dividends for all Dividend Periods terminating on or prior to the
Redemption Date and for an amount equal to a prorated dividend for the
period from the Dividend Payment Date immediately prior to the Redemption
Date to the Redemption Date shall have been or immediately prior to the
Redemption Notice (as defined in paragraph (e)(iii)(A) hereof) are
declared and paid in cash or declared and a sum set apart sufficient for
such cash payment on the Redemption Date, on the outstanding shares of
the Senior Preferred Stock.
(B) In addition, at any time, the Company may redeem, in the manner
provided in paragraph (e)(iii) hereof, shares of the Senior Preferred
Stock, in whole or in part, at the option of the Company, at a redemption
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price equal to 113.75% of the liquidation preference thereof, plus an
amount in cash equal to all accumulated and unpaid dividends per share
(including an amount in cash equal to a prorated dividend for the period
from the Dividend Payment Date immediately prior to the Redemption Date
to the Redemption Date) (the "Contingent Redemption Price"), with the net
cash proceeds of one or more Public Equity Offerings, provided that
notice of such redemption is given within 60 days of the date of the
closing of such Public Equity Offerings, and provided, further, that no
optional redemption pursuant to this paragraph (e)(i)(B) shall be
authorized or made unless prior thereto full unpaid cumulative dividends
for all Dividend Periods terminating on or prior to the Redemption Date
and for an amount equal to a prorated dividend for the period from the
Dividend Payment Date immediately prior to the Redemption Date to the
Redemption Date on the outstanding shares of the Senior Preferred Stock
shall have been or immediately prior to the Redemption Notice are
declared and paid in cash or declared and a sum set apart sufficient for
such cash payment on the Redemption Date.
(C) In the event of a redemption of only a portion of the then
outstanding shares of the Senior Preferred Stock, the Company shall
effect such redemption as it determines, pro rata according to the number
of shares held by each Holder of the Senior Preferred Stock or by lot, as
may be determined by the Company in its sole discretion, except that the
Company may redeem such shares held by any Holders of fewer than 100
shares (or shares held by Holders who would hold less than 100 shares as
a result of such redemption), without regard to any pro rata redemption
requirement.
(D) The election of directors pursuant to paragraph (f)(iii) is the
sole remedy for the Company's failure to effect a redemption pursuant to
this paragraph (e)(ii) following the issuance of a Redemption Notice (as
defined in paragraph (e)(iii)(A) below).
(ii) Mandatory Redemption. On November 30, 2009, the Company shall redeem
(subject to the legal availability of funds therefor) from any source of
funds legally available therefor, in the manner provided in paragraph
(e)(iii) hereof, all of the shares of the Senior Preferred Stock then
outstanding at a redemption price equal to 100% of the liquidation
preference per share, plus an amount in cash equal to all accumulated and
unpaid dividends per share (including an amount equal to a prorated
dividend for the period from the Dividend Payment Date immediately prior to
the Redemption Date to the Redemption Date) (the "Mandatory Redemption
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Price"). The election of directors pursuant to paragraph (f)(iii) is the
sole remedy for the Company's failure to effect the redemption required by
this paragraph (e)(ii).
(iii) Procedures for Redemption.
(A) At least 30 days and not more than 60 days prior to the date
fixed for any redemption of the Senior Preferred Stock, written notice of
the redemption (the "Redemption Notice") shall be given by first-class
mail, postage prepaid, to each Holder of record on the record date fixed
for such redemption of the Senior Preferred Stock at such Holder's
address as the same appears on the stock register of the Company,
provided that no failure to give such notice nor any deficiency therein
or in the mailing thereof shall affect the validity of the procedure for
the redemption of any shares of Senior Preferred Stock to be redeemed
except as to the Holder or Holders to whom the Company has failed to give
said notice or except as to the Holder or Holders whose notice was
defective. The Redemption Notice shall state:
(1) whether the redemption is pursuant to paragraph (e)(i)(A), (e)(i)(B)
or (e)(ii) hereof;
(2) the Optional Redemption Price, the Contingent Redemption Price or the
Mandatory Redemption Price, as the case may be;
(3) whether all or less than all the outstanding shares of the Senior
Preferred Stock are to be redeemed and the total number of shares of
the Senior Preferred Stock being redeemed;
(4) the number of shares of Senior Preferred Stock held, as of the
appropriate record date, by the Holder that the Company intends to
redeem;
(5) the date fixed for redemption;
(6) that the Holder is to surrender to the Company, at the place or
places where certificates for shares of Senior Preferred Stock are to
be surrendered for redemption, in the manner and at the price
designated, the certificate or certificates representing the shares
of Senior Preferred Stock to be redeemed; and
(7) that dividends on the shares of the Senior Preferred Stock to be
redeemed shall cease to accrue and all rights of the Holder of such
shares will terminate (except for the right to receive the Optional
Redemption Price, the Contingent Redemption Price or the Mandatory
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Redemption Price, as the case may be, without interest) on such
Redemption Date unless the Company defaults in the payment of the
Optional Redemption Price, the Contingent Redemption Price or the
Mandatory Redemption Price, as the case may be.
(B) Each Holder of Senior Preferred Stock shall surrender the
certificate or certificates representing such shares of Senior Preferred
Stock to the Company, duly endorsed, in the manner and at the place
designated in the Redemption Notice, and on the Redemption Date the full
Optional Redemption Price, Contingent Redemption Price or Mandatory
Redemption Price, as the case may be, for such shares shall be payable in
cash to the Person whose name appears on such certificate or certificates
as the owner thereof, and each surrendered certificate shall be canceled
and retired. In the event that less than all of the shares represented by
any such certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares.
(C) Except to the extent the Company defaults in the payment in
full of the Optional Redemption Price, Contingent Redemption Price or
Mandatory Redemption Price, as the case may be, dividends on the Senior
Preferred Stock called for redemption shall cease to accumulate on the
Redemption Date, and the Holders of such redemption shares shall cease to
have any further rights with respect thereto on the Redemption Date, other
than the right to receive the Optional Redemption Price, the Contingent
Redemption Price or the Mandatory Redemption Price, as the case may be,
without interest.
(f) Voting Rights.
(i) The Holders of shares of the Senior Preferred Stock, except as
otherwise required under the laws of the State of Delaware or as set forth
in paragraphs (ii) and (iii) below and in paragraph (m) hereof, shall not
be entitled or permitted to vote on any matter required or permitted to be
voted upon by the stockholders of the Company.
(ii) (A) So long as any shares of the Senior Preferred Stock are
outstanding, the Company shall not authorize any class of Parity Securities
without the affirmative vote or consent of Holders of a majority of the
outstanding shares of Senior Preferred Stock, voting or consenting, as the
case may be, separately as one class, given in person or by proxy.
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(B) So long as any shares of the Senior Preferred Stock are
outstanding, the Company shall not amend this Certificate of Designations
so as to affect adversely the specified rights, preferences, privileges or
voting rights of Holders of shares of Senior Preferred Stock, or to
authorize the issuance of any additional shares of Senior Preferred Stock,
without the affirmative vote or consent of Holders of a majority of the
then outstanding shares of Senior Preferred Stock, voting or consenting, as
the case may be, separately as one class, given in person or by proxy,
either in writing or by resolution adopted at an annual or special meeting.
(C) Prior to the Exchange Date, the Company shall not amend or
modify the indenture for the Exchange Debentures in the form approved by
the Company on the Senior Preferred Stock Issue Date (the "Exchange
Debenture Indenture") (other than any such modification as would be
permitted under the Exchange Debenture Indenture without consent of the
holders of Exchange Debentures) without the affirmative vote or consent of
Holders of at least a majority of the shares of Senior Preferred Stock then
outstanding, voting or consenting, as the case may be, separately as one
class, given in person or by proxy, either in writing or by resolution
adopted at an annual or special meeting.
(D) Except to the extent set forth in paragraphs (f)(ii)(A) above,
(1) the creation, authorization or issuance of any shares of any Junior
Securities or Parity Securities, (2) the decrease in the amount of
authorized capital stock of any class, including any Preferred Stock, or
(3) the increase in the amount of authorized capital stock of any class of
Junior Securities shall not require the consent of Holders of Senior
Preferred Stock and shall not be deemed to affect adversely the rights,
preferences, privileges or voting rights of Holders of shares of Senior
Preferred Stock.
(iii) (A) If (1) dividends on the Senior Preferred Stock are in arrears
and unpaid (and, in the case of dividends payable after November 30, 2002,
are not paid in cash) for four consecutive quarterly periods (a "Dividend
Default"); (2) the Company fails to discharge any redemption obligation of
the Senior Preferred Stock when required (a "Redemption Default"), whether
or not the Company is permitted to do so by the terms of any indenture,
credit agreement or any other obligations of the Company; (3) the Company
fails to make an offer to purchase all outstanding shares of Senior
Preferred Stock following a Change of Control if such offer to purchase is
required to be made pursuant to paragraph (h) hereof or fails to purchase
shares of Senior Preferred Stock from holders who elect to have such shares
purchased pursuant to such Change of Control offer (a "Change of Control
Default"), whether or not the Company is permitted to do so by the terms of
any indenture, credit agreement or any other obligation of the Company;
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(4) the Company breaches or violates one of the provisions set forth in
paragraph (m) hereof and the breach or violation continues for a period of
30 days or more (a "Restriction Default"); or (5) a default occurs on the
obligations to pay principal of, interest on or any other payment
obligation when due (a "Payment Default") at final maturity on one or more
classes of Indebtedness of the Company or any Subsidiary of the Company,
whether such Indebtedness exists on the Senior Preferred Stock Issue Date
or is incurred thereafter, having individually or in the aggregate, an
outstanding principal amount of $15,000,000 or more, or any other Payment
Default occurs on one or more such classes of Indebtedness and such class
or classes of Indebtedness are declared due and payable prior to their
respective maturities, then, in any such case, the number of directors
constituting the Board shall be increased by two as set forth in this
Certificate of Designations and the Holders of the majority of the then
outstanding Senior Preferred Stock, voting separately as one class, shall
be entitled to elect two directors. Subject to Section (f)(iii)(B) below,
Holders of a majority of the issued and outstanding shares of the Senior
Preferred Stock, voting separately as one class, shall have the exclusive
right to elect such two directors at a meeting therefor called upon the
occurrence of such Dividend Default, Redemption Default, Change of Control
Default, Restriction Default or Payment Default, as the case may be, and at
every subsequent meeting at which the terms of office of the directors so
elected by the Holders of the Senior Preferred Stock expire (other than as
described in (f)(iii)(B) below). Each such event described in clauses (1),
(2), (3), (4) and (5) is a "Voting Rights Triggering Event."
(B) The right of the Holders of Senior Preferred Stock voting
separately as one class to elect members of the Board of Directors as set
forth in paragraph (f)(iii)(A) above shall continue until such time as (1)
in the event such right arises due to a Dividend Default, all accumulated
dividends that are in arrears on the Senior Preferred Stock are paid in
full (and, in the case of Dividends payable after November 30, 2002, are
paid in cash); and (2) in the event such right arises due to a Redemption
Default, a Change of Control Default, a Restriction Default or a Payment
Default, the Company remedies any such failure, breach or default, at which
time the term of any directors elected pursuant to paragraph (f)(iii)(A)
shall immediately terminate, subject always to the same provisions for the
renewal and divestment of such special voting rights in the case of any
future Voting Rights Triggering Event. At any time after voting power to
elect directors shall have become vested and be continuing in the Holders
of shares of the Senior Preferred Stock pursuant to this paragraph
(f)(iii), or if vacancies shall exist in the offices of directors elected
by the Holders of shares of the Senior Preferred Stock, a proper officer of
the Company may, and upon the written request of the Holders of record of
at least 10% of the shares of Senior Preferred Stock then outstanding
addressed to the Secretary of the Company shall, call a special meeting of
the Holders of Senior Preferred Stock, for the purpose of electing the
directors which such Holders are entitled to elect. If such meeting shall
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not be called by the proper officer of the Company within 20 days after
personal service of said written request upon the Secretary of the Company,
or within 20 days after mailing the same within the United States by
certified mail, addressed to the Secretary of the Company at its principal
executive offices, then the Holders of record of at least 20% of the
outstanding shares of the Senior Preferred Stock may designate in writing
one of their numbers to call such meeting at the expense of the Company,
and such meeting may be called by the Person so designated upon the notice
required for the annual meeting of stockholders of the Company and shall be
held at the place for holding the annual meetings of stockholders or such
other place in the United States as shall be designated in such notice.
Notwithstanding the provisions of this paragraph (f)(iii)(B), no such
special meeting shall be called if any such request is received less than
30 days before the date fixed for the next ensuing annual or special
meeting of stockholders of the Company. Any Holder of shares of the Senior
Preferred Stock so designated shall have, and the Company shall provide,
access to the lists of Holders of shares of the Senior Preferred Stock for
purposes of calling a meeting pursuant to the provisions of this paragraph
(f)(iii)(B).
(C) At any meeting held for the purpose of electing directors at
which the Holders of Senior Preferred Stock shall have the right, voting
separately as one class, to elect directors as aforesaid, the presence in
person or by proxy of the Holders of at least a majority of the outstanding
Senior Preferred Stock shall be required to constitute a quorum of such
Senior Preferred Stock.
(D) Any vacancy occurring in the office of a director elected by
the Holders of shares of the Senior Preferred Stock may be filled by the
remaining director elected by the Holders of shares of the Senior Preferred
Stock unless and until such vacancy shall be filled by the Holders of
shares of the Senior Preferred Stock.
(E) The right to elect directors pursuant to this paragraph
(f)(iii) is the sole remedy for the Company's failure to pay dividends on
the Senior Preferred Stock, redeem the Senior Preferred Stock when
required, to effect an Offer (as defined in paragraph (h)(i)) when required
by paragraph (h) or comply with any provision in paragraph (m).
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(iv) In any case in which the Holders of shares of the Senior Preferred
Stock shall be entitled to vote pursuant to this paragraph (f) or pursuant
to the laws of the State of Delaware, each Holder of shares of the Senior
Preferred Stock shall be entitled to one vote for each share of Senior
Preferred Stock held.
(v) In no event shall the Holders of Senior Preferred Stock have the
right to elect and have serve more than two members of the Board at any one
time.
(g) Exchange.
(i) Requirements.
(A) The Company may at its option exchange all, but not less than
all, of the then outstanding shares of Senior Preferred Stock into the
Company's 13 3/4% Subordinated Exchange Debentures due 2009 (the
"Exchange Debentures") on any Dividend Payment Date, provided that on the
date of such exchange (the "Exchange Date"): (1) there shall be no
contractual impediments to such exchange; (2) either (a) a registration
statement relating to the Exchange Debentures shall have been declared
effective under the Securities Act of 1933, as amended (the "Securities
Act"), prior to the Exchange Date and shall continue to be in effect on
the Exchange Date or (b)(i) the Company shall have obtained a written
opinion of counsel that an exemption from the registration requirements
of the Securities Act is available for such exchange, and that upon
receipt of such Exchange Debentures pursuant to such exchange made in
accordance with such exemption, the holders (assuming such holder is not
an Affiliate of the Company) thereof shall not be subject to any
restrictions imposed by the Securities Act upon the resale thereof and
(ii) such exemption is relied upon by the Company for such exchange; (3)
the Exchange Debenture Indenture and the Trustee shall have been
qualified under the Trust Indenture Act of 1939, as amended; (4)
immediately after giving effect to such exchange, no Default or Event of
Default (each as defined in the Exchange Debenture Indenture) would exist
under the Exchange Debenture Indenture; and (5) the Company shall have
delivered to the Trustee a written opinion of counsel (subject to
customary qualifications and assumptions), dated the Exchange Date,
regarding the satisfaction of the conditions set forth in clauses (1),
(2) and (3). In the event that the issuance of the Exchange Debentures is
not permitted on the date of exchange or any of the conditions set forth
in clauses (1) through (5) of the preceding sentence are not satisfied on
the Exchange Date, the Company shall use its best efforts to satisfy such
conditions and effect such exchange as soon as practicable.
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The Company shall send a written notice (the "Exchange Notice")
of exchange by mail to each Holder, which notice shall state: (v) that
the Company is exercising its option to exchange the Senior Preferred
Stock for Exchange Debentures pursuant to paragraph (g) hereof; (w) the
Exchange Date, which date shall not be less than 30 days nor more than 60
days following the date on which the Exchange Notice is mailed (except as
provided in the last sentence of this paragraph); (x) that the Holder is
to surrender to the Company, at the place or places where certificates
for shares of Senior Preferred Stock are to be surrendered for exchange,
in the manner designated in the Exchange Notice, the certificate or
certificates representing the shares of Senior Preferred Stock to be
exchanged; (y) that dividends on the shares of Senior Preferred Stock to
be exchanged shall cease to accrue on the Exchange Date whether or not
certificates for shares of Senior Preferred Stock are surrendered for
exchange on the Exchange Date unless the Company shall default in the
delivery of Exchange Debentures; and (z) that interest on the Exchange
Debentures shall accrue from the Exchange Date whether or not
certificates for shares of Senior Preferred Stock are surrendered for
exchange on the Exchange Date unless the Company shall default in the
delivery of Exchange Debentures. On the Exchange Date, if the conditions
set forth in clauses (1) through (5) above are satisfied, the Company
shall issue Exchange Debentures in exchange for the Senior Preferred
Stock as provided in the next paragraph.
(B) Upon any exchange pursuant to paragraph (g)(i)(A), Exchange
Debentures shall be issued in exchange for Senior Preferred Stock, in
registered form without coupons, in a principal amount equal to the
liquidation preference thereof, plus an amount in cash equal to all
accumulated and unpaid dividends (including a prorated dividend for the
period from the immediately preceding Dividend Payment Date to the
Exchange Date). Exchange Debentures will be issued in principal amounts
of $1,000 and integral multiples thereof to the extent possible, and will
also be issued in principal amounts less than $1,000 so that each Holder
of Senior Preferred Stock will receive certificates representing the
entire amount of Exchange Debentures to which his shares of Senior
Preferred Stock entitle him, provided that the Company may, at its
option, pay cash in lieu of issuing an Exchange Debenture in a principal
amount of less than $1,000.
(ii) Procedure for Exchange.
(A) On or before the Exchange Date, each Holder of Senior Preferred
Stock shall surrender the certificate or certificates representing such
shares of Senior Preferred Stock, in the manner and at the place
designated in the Exchange Notice. The Company shall cause the Exchange
13
Debentures to be executed on the Exchange Date and, upon surrender in
accordance with the Exchange Notice of the certificates for any shares of
Senior Preferred Stock so exchanged (properly endorsed or assigned for
transfer, if the notice shall so state), such shares shall be exchanged
by the Company into Exchange Debentures. The Company shall pay interest
on the Exchange Debentures at the rate and on the dates specified therein
from the Exchange Date.
(B) If notice has been mailed as aforesaid, and if before the
Exchange Date (1) the Exchange Debenture Indenture shall have been duly
executed and delivered by the Company and the Trustee and (2) all
Exchange Debentures necessary for such exchange shall have been duly
executed by the Company and delivered to the Trustee with irrevocable
instructions to authenticate the Exchange Debentures necessary for such
exchange, then on the Exchange Date, dividends shall cease to accrue on
the outstanding shares of Senior Preferred Stock and all of the rights of
the Holders of shares of the Senior Preferred Stock as stockholders of
the Company shall cease (except the right to receive Exchange Debentures,
an amount in cash equal to the accrued and unpaid dividends on the Senior
Preferred Stock and, if the Company so elects, cash in lieu of any
Exchange Debentures which is an amount that is not an integral multiple
of $1,000), and the Person or Persons entitled to receive the Exchange
Debentures issuable upon exchange shall be treated for all purposes as
the registered holder or holders of such Exchange Debentures as of the
Exchange Date.
(h) Change of Control.
(i) Upon the occurrence of a Change of Control, the Company shall be
obligated to make an offer ("Offer") to all Holders of Senior Preferred
Stock to purchase all outstanding Senior Preferred Stock and shall
purchase, on a Business Day not more than 60 days nor less than 30 days
after the occurrence of the Change of Control (such purchase date being the
"Change of Control Purchase Date"), all Senior Preferred Stock validly
tendered, and not properly withdrawn, pursuant to such Offer for a purchase
price in cash (the "Change of Control Purchase Price") equal to 101% of the
aggregate liquidation preference of the Senior Preferred Stock plus,
without duplication, an amount in cash equal to all accumulated and unpaid
dividends per share (including an amount in cash equal to a prorated
dividend for the period from the Dividend Payment Date immediately prior to
the Change of Control Purchase Date to the Change of Control Purchase
Date).
(ii) Within 30 days following any Change of Control, the Company shall
mail a notice to each Holder stating: (A) that an Offer is being made
pursuant to this paragraph (h) and that, to the extent lawful, all shares
14
of Senior Preferred Stock validly tendered and not properly withdrawn shall
be accepted for payment; (B) a description of the transaction or
transactions that constitute the Change of Control; (C) the number of
shares of Senior Preferred Stock outstanding as of the date of such notice,
the Change of Control Purchase Price, the purchase price per share and the
expiration date of the Offer, which shall be a date no earlier than the
date 20 Business Days following the commencement of the Offer; (D) that any
shares of Senior Preferred Stock not validly tendered and any shares of
Senior Preferred Stock properly withdrawn shall continue to accrue
dividends in accordance with the terms of this Certificate of Designations;
(E) that, unless the Company defaults in the payment of the Change of
Control Purchase Price, all shares of Senior Preferred Stock accepted for
payment pursuant to the Offer shall cease to accrue dividends after the
Change of Control Purchase Date, which shall be not later than five
Business Days after the termination of the Offer; and (F) a description of
the procedures to be followed by such Holder in order to have its shares of
Senior Preferred Stock validly tendered (including that the Holder is to
surrender to the Company in the manner and at the place designated or
places where certificates for shares of Senior Preferred Stock are to be
surrendered) and a description of the procedures to be followed by such
Holder in order to withdraw tendered shares.
(iii) On the Change of Control Purchase Date, (A) the Company shall, to
the extent lawful, (1) accept for payment shares of Senior Preferred Stock
validly tendered pursuant to the Offer, (2) deposit with the Transfer Agent
an amount equal to the Change of Control Purchase Price in respect of all
shares of Senior Preferred Stock so tendered, (3) deliver or cause to be
delivered to the Transfer Agent the Senior Preferred Stock so accepted
together with an Officer's Certificate stating the total number of shares
of Senior Preferred Stock being purchased by the Company, (4) promptly mail
to each Holder of shares of Senior Preferred Stock so accepted payment in
an amount equal to the purchase price for such shares and (5) arrange to
have promptly authenticated and mailed (or cause to be transferred by book
entry) to each Holder a new share certificate representing any unpurchased
shares of the Senior Preferred Stock represented by the certificate
tendered pursuant to the Offer, if any, and (B) unless the Company defaults
in the payment for the shares of Senior Preferred Stock tendered pursuant
to the Offer, dividends shall cease to accrue with respect to the shares of
Senior Preferred Stock tendered and all rights of Holders of such tendered
shares shall terminate, except for the right to receive payment therefor,
on the Change of Control Purchase Date. The Company shall publicly announce
the results of the Offer on the Change of Control Purchase Date.
(iv) The Company shall comply with Rule 14e-1 under the Exchange Act and
any securities laws and regulations, to the extent such laws and
15
regulations are applicable to the repurchase of shares of the Senior
Preferred Stock in connection with a Change of Control.
(v) The election of directors pursuant to paragraph (f)(iii) is the sole
remedy for the Company's failure to make or consummate an Offer upon the
occurrence of a Change of Control.
(i) Conversion or Exchange. Holders of shares of Senior Preferred Stock shall
not have any rights hereunder to convert such shares into or exchange such
shares for shares of any other class or classes or of any other series of
any class or classes of Capital Stock of the Company.
(j) Preemptive Rights. No shares of Senior Preferred Stock shall have any
rights of preemption whatsoever as to any securities of the Company, or any
warrants, rights or options issued or granted with respect thereto,
regardless of how such securities or such warrants, rights or options may
be designated, issued or granted.
(k) Reissuance of Senior Preferred Stock. Shares of Senior Preferred Stock
that have been issued and reacquired in any manner, including shares
purchased or redeemed or exchanged, shall (upon compliance with any
applicable provisions of the laws of Delaware) have the status of
authorized but unissued shares of Preferred Stock of the Company
undesignated as to series and may be designated or redesignated and issued
or reissued, as the case may be, as part of any series of Preferred Stock
of the Company (including the Senior Preferred Stock), provided that any
issuance of such shares as Senior Preferred Stock must be in compliance
with the terms hereof.
(l) Business Day. If any payment, redemption, purchase or exchange shall be
required by the terms hereof to be made on a day that is not a Business
Day, such payment, redemption, purchase or exchange shall be made on the
immediately succeeding Business Day.
(m) Certain Additional Provisions.
(i) Merger or Consolidation. Without the consent of Holders of a majority
of the outstanding shares of Senior Preferred Stock, voting or consenting,
as the case may be, separately as a class (regardless of whether such vote
or consent is given in proxy or in person, either in writing or by
resolution adopted at an annual or special meeting), the Company shall not,
in a single transaction or series of related transactions, consolidate or
merge with or into (whether or not the Company is the surviving
corporation), or sell, assign, transfer, lease, convey or otherwise dispose
of all or substantially all of its properties or assets in one or more
related transactions, to another corporation, Person or entity unless (A)
the Company is the surviving corporation or the entity or the Person formed
16
by or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, lease, conveyance or
other disposition will have been made is a corporation, partnership or
trust organized or existing under the laws of the United States, any state
thereof or the District of Columbia; (B) the Senior Preferred Stock shall
be converted into or exchanged for and shall become shares of the entity or
Person formed by or surviving any such consolidation or merger (if other
than the Company) or the entity or Person to which such sale, assignment,
transfer, lease, conveyance or other disposition will have been made,
having in respect of such successor, transferee or resulting corporation
substantially the same powers, preferences and relative participating,
optional or other special rights, and the qualifications, limitations or
restrictions thereon, that the Senior Preferred Stock had immediately prior
to such consolidation, merger, sale, assignment, transfer, lease,
conveyance or other disposition; (C) immediately after such transaction, no
Voting Rights Triggering Event, and no event that after the giving of
notice or lapse of time or both would become a Voting Rights Triggering
Event, shall have occurred and be continuing; (D) the Company or the entity
or Person formed by or surviving any such consolidation or merger (if other
than the Company), or to which such sale, assignment, transfer, lease,
conveyance or other disposition will have been made will have Consolidated
Net Worth immediately after the transaction equal to or greater than the
Consolidated Net Worth of the Company immediately preceding the
transaction; and (E) prior to the consummation of any such proposed
transaction, the Company shall have delivered to the Transfer Agent an
Officer's Certificate and an opinion of counsel to the effect that such
transaction complies with the terms of the Certificate of Designations and
that all conditions precedent to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of
all or substantially all of the properties or assets of one or more
Subsidiaries of the Company, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be
deemed to be the transfer of all or substantially all of the properties and
assets of the Company.
(ii) Junior Payments. (A) The Company shall not, directly or indirectly,
(1) declare or pay any dividend or make any distribution on account of any
Junior Securities (other than dividends or distributions payable in Junior
Securities (other than Disqualified Stock)), (2) purchase, redeem or
otherwise acquire or retire for value any Junior Securities or (3) make any
Restricted Investment (all such dividends, distributions, purchases,
redemptions, acquisitions, retirements and Restricted Investments being
collectively referred to as "Junior Payments"), if, at the time of such
Junior Payment:
17
(a) a Voting Rights Triggering Event shall have occurred and be
continuing or would occur as a consequence thereof; or
(b) all dividends on the Senior Preferred Stock payable on Dividend
Payment Dates after November 30, 2002, have not been declared and paid in
cash.
(B) Notwithstanding the foregoing, this paragraph (m)(ii) shall not
prohibit as Junior Payments:
(1) the payment of any dividend within 60 days after the date of
declaration thereof if, at said date of declaration, such payment would
comply with all of the provisions hereof (including, but not limited to,
this paragraph (m)(ii));
(2) the making of any Restricted Investment in exchange for, or out
of the proceeds of, the substantially concurrent sale (other than to a
Subsidiary of the Company) of, or from substantially concurrent
additional capital contributions in respect of, Capital Stock of the
Company (other than Disqualified Stock);
(3) (a) the redemption, repurchase, retirement or other acquisition
of any Parity Securities of the Company in exchange for, or out of the
proceeds of, the substantially concurrent sale (other than to a
Subsidiary of the Company) of, or from substantially concurrent
additional capital contributions in respect of, other Parity or Junior
Securities of the Company (other than any Disqualified Stock) and (b) the
redemption, repurchase, retirement or other acquisition of any Junior
Securities of the Company in exchange for, or out of the proceeds of, the
substantially concurrent sale (other than to a Subsidiary of the Company)
of, or from substantially concurrent additional capital contributions in
respect of, other Junior Securities of the Company (other than any
Disqualified Stock);
(4) the repurchase, redemption or other acquisition or retirement
for value of any Capital Stock of the Company held by any present or
former employee or director of the Company (or Scovill or any of the
Company's Subsidiaries) (or the estate or a trust for the benefit of any
such Person) in an aggregate amount not to exceed $1.5 million in any
fiscal year (provided that any unused amounts may be carried over to the
immediately subsequent fiscal year but not beyond such fiscal year); and
18
(5) repurchases of Capital Stock deemed to occur upon exercise of
stock options or warrants if such Capital Stock represents a portion of
the exercise price thereof.
(iii) Transactions with Affiliates.
(A) Except as otherwise set forth in this paragraph (m)(iii), the Company
will not, and will not permit any of its Subsidiaries to, directly or
indirectly, in one transaction or a series of related transactions, sell,
lease, transfer or otherwise dispose of any of its properties or assets to,
or purchase any property or assets from, or enter into any contract,
agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any of their respective Affiliates (each of the foregoing, an
"Affiliate Transaction"), unless (1) such Affiliate Transaction is on terms
that are no less favorable to the Company or the relevant Subsidiary than
those that could have been obtained in a comparable transaction by the
Company or such Subsidiary with an unrelated Person and (2) the Company
delivers to the Transfer Agent (a) with respect to any Affiliate
Transaction (or series of related transactions) involving aggregate
payments in excess of $2.0 million, an Officer's Certificate certifying
that such Affiliate Transaction complies with clause (1) above and a
secretary's certificate which sets forth and authenticates a resolution
that has been adopted by a vote of a majority of the Disinterested
Directors approving such Affiliate Transaction or states that there are no
Disinterested Directors, in which case an opinion, as described in clause
(b), shall be required and (b) with respect to any Affiliate Transaction
(or series of related transactions) involving aggregate payments in excess
of $7.5 million, the certificates described in the preceding clause (a) and
an opinion as to the fairness to the Company or such Subsidiary from a
financial point of view issued by an Independent Financial Advisor.
(B) Notwithstanding the foregoing, the following transactions will not be
deemed to be Affiliate Transactions: (1) transactions exclusively between
or among (a) the Company and one or more Subsidiaries or (b) Subsidiaries,
provided, in each case, that no Affiliate of the Company (other than any
Person that is such an Affiliate solely because of the control of such
Person by the Company) owns Capital Stock of any such Subsidiary; (2)
reasonable director, officer and employee compensation and other benefit
and indemnification arrangements approved by the Board; (3) transactions
permitted by the covenant described in paragraph (m)(ii) herein; (4) the
existence of, or the performance by the Company or any Subsidiary under,
the Management Services Agreement with respect to fees of up to $600,000
per year and any other agreement in effect on the Senior Preferred Stock
19
Issue Date, as such agreement is in effect on the Senior Preferred Issue
Date or as amended thereafter in any manner no less favorable to the
Holders; (5) prepaid expenses and loans or advances to employees or
directors of the Company or any of its Subsidiaries in the ordinary course
of business; (6) the entering into of a tax sharing agreement, or payments
pursuant thereto, between the Company and/or one or more Subsidiaries, on
the one hand, and any other Person with which the Company or such
Subsidiaries are required or permitted to file a consolidated tax return or
with which the Company or such Subsidiaries are or could be part of a
consolidated group for tax purposes, on the other hand, which payments by
the Company and its Subsidiaries are not in excess of the tax liabilities
that would have been payable by them on a stand alone basis; and (7) the
issuance and sale by the Company to its Affiliates of Qualified Stock.
(iv) Reports. Whether or not required by the rules and regulations of the
Commission, so long as any shares of Senior Preferred Stock are
outstanding, the Company will file with the Commission, to the extent such
filings are accepted by the Commission, and will furnish to the Holders all
quarterly and annual reports and other information, documents and reports
that would be required to be filed with the Commission pursuant to Section
13 of the Exchange Act if the Company were required to file under such
section. For so long as any shares of Senior Preferred Stock remain
outstanding, the Company will furnish to the Holders and beneficial holders
of shares of Senior Preferred Stock and to prospective purchasers of shares
of Senior Preferred Stock designated by the Holders of Transfer Restricted
Securities and to broker-dealers, upon their request, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities
Act.
(v) Remedies. The election of directors pursuant to paragraph f(iii) is
the sole remedy for the failure to comply with the covenants described in
this paragraph (m).
(n) [Intentionally omitted.]
(o) Definitions. As used herein, the following terms shall have the following
meanings (with terms defined in the singular having comparable meanings
when used in the plural and vice versa), unless the context otherwise
requires:
"Affiliate" means, with respect to any specified Person, (a) any other
Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person or (b) any executive
officer or director of any such specified Person or other Person. For the
purposes of this definition, "control," when used with respect to any
specified Person, includes the power to vote 10% or more of any class of
20
voting securities of such Person or to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise, and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"Business Day" means any day other than a Legal Holiday.
"Capitalized Lease Obligations" means, with respect to any Person, any
obligation of that Person to pay lease payments, rent or other amounts
under a lease of (or other similar agreement conveying the right to use)
any property (whether real, personal or mixed) that is required to be
classified and accounted for as a capital lease obligation under GAAP and,
for purposes of this Certificate of Designations, the amount of that
obligation at any date will be the capitalized amount thereof at that date,
as determined in accordance with GAAP.
"Capital Stock" of any Person means any and all shares, rights to
purchase, warrants or options (whether or not currently exercisable),
participations or other equivalents of or interests in (however designated)
the equity (including without limitation common stock, Preferred Stock and
partnership interests) of such Person.
"Cash Equivalents" means (i) marketable obligations with a maturity of
180 days or less issued or directly and fully guaranteed or insured by the
United States of America or any agency or instrumentality thereof (provided
that the full faith and credit of the United States of America is pledged
in support thereof); (ii) demand and time deposits and certificates of
deposit or acceptances with a maturity of 180 days or less of any financial
institution that is a member of the Federal Reserve System having combined
capital and surplus and undivided profits of not less than $500 million;
(iii) commercial paper maturing no more than 180 days from the date of
creation thereof issued by a corporation that is not an Affiliate of the
Company and is organized under the laws of any state of the United States
or the District of Columbia and rated at least A-1 by S&P or at least P-1
by Moody's; (iv) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clause (i) above
entered into with any commercial bank meeting the specifications of clause
(ii) above; and (v) investments in money market or other mutual funds
substantially all of whose assets comprise securities of the types
described in clauses (i) through (iv) above.
"Change of Control" means the occurrence of any of the following: (i)
the consummation of any transaction the result of which is (x) if such
transaction occurs prior to the first sale of Voting Stock of the Company
pursuant to a registration statement under the Securities Act that results
in at least 20% of the then outstanding Voting Stock of the Company having
been sold to the public, that Permitted Holders beneficially own Voting
Stock representing less than, directly or indirectly, 51% of the voting
power of the Voting Stock of the Company and (y) if such transaction occurs
thereafter, that any Person or group (as such term is used in Section
13(d)(3) of the Exchange Act) (other than Permitted Holders) is or becomes
21
the beneficial owner (as defined in Rule 13d-3 of the Exchange Act),
directly or indirectly, of Voting Stock representing more than 35% of the
voting power of the Voting Stock of the Company unless Permitted Holders
beneficially own Voting Stock representing a greater percentage of the
voting power of the Voting Stock of the Company, (ii) the Company
consolidates with, or merges with or into, another person or sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of the assets of Company, or the Company and its
Subsidiaries (taken as a whole), to any Person, or any Person consolidates
with, or merges with or into, the Company, in any such event pursuant to a
transaction in which the outstanding Voting Stock of the Company, as the
case may be, is converted into or exchanged for cash, securities or other
property, other than any such transaction where the outstanding Voting
Stock of the Company, as the case may be, is converted into or exchanged
for Voting Stock (other than Disqualified Stock) of the surviving or
transferee corporation and the beneficial owners of the Voting Stock of the
Company immediately prior to such transaction own, directly or indirectly,
Voting Stock representing not less than a majority of the voting power of
the Voting Stock of the surviving or transferee corporation immediately
after such transaction, (iii) during any consecutive two-year period,
individuals who at the beginning of such period constituted the Board
(together with any new directors whose election by such Board or whose
nomination for election by the stockholders of the Company was approved by
either (x) a vote of two-thirds of the directors then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved or (y) a Permitted
Holder) cease for any reason to constitute a majority of the Board then in
office, or (iv) the approval by the holders of Capital Stock of the Company
of any plan or proposal for liquidation or dissolution of the Company.
"Commission" means the Securities and Exchange Commission.
"Consolidated Net Worth" means, with respect to any Person as of any
date, the sum of (i) the consolidated equity of the common stockholders of
such Person and its consolidated Subsidiaries as of such date plus (ii) the
respective amounts reported on such Person's balance sheet as of such date
with respect to any series of Preferred Stock (other than Disqualified
Stock), less all write-ups (other than write-ups resulting from foreign
currency translations and write-ups of tangible assets of a going concern
business made within 12 months after the acquisition of such business)
subsequent to the Senior Preferred Stock Issue Date in the book value of
any asset owned by such Person or a Subsidiary of such Person.
"Disinterested Director" means, with respect to any transaction or series
of transactions in respect of which a resolution of the Board is required
under this Certificate of Designations, a member of the Board who does not
have any material direct or indirect financial interest (other than an
22
interest arising solely from the beneficial ownership of Capital Stock of
the Company) in or with respect to such transaction or series of
transactions.
"Disqualified Stock" means any Capital Stock of such Person that, by its
terms, by the terms of any agreement related thereto or by the terms of any
security into which it is convertible, puttable or exchangeable, is, or
upon the happening of any event or the passage of time would be, required
to be redeemed or repurchased by such Person or any of its Subsidiaries,
whether or not at the option of the holder thereof, or matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
in whole or in part, on or prior to November 30, 2009; provided, however,
that (i) any class of Capital Stock of such Person that, by its terms,
authorizes such Person to satisfy in full its obligations with respect to
the payment of dividends or upon maturity, redemption (pursuant to a
sinking fund or otherwise) or repurchase thereof or otherwise by the
delivery of Qualified Stock, and that is not convertible, puttable or
exchangeable for Disqualified Stock or Indebtedness, shall not be deemed to
be Disqualified Stock so long as such Person satisfies its obligations with
respect thereto solely by the delivery of Qualified Stock and (ii) any
Capital Stock that would constitute Disqualified Stock solely because the
holders thereof (or of any security into which it is convertible or for
which it is exchangeable) have the right to require the issuer to
repurchase such Capital Stock (or such security into which it is
exchangeable) upon the occurrence of an asset sale or a Change of Control
shall not constitute Disqualified Stock if such Capital Stock (and all such
securities into which it is convertible or for which it is exchangeable)
provides that the issuer thereof will not repurchase or redeem any such
Capital Stock (or any such security into which it is convertible or for
which it is exchangeable) pursuant to such provisions prior to compliance
by the Company with the provisions of paragraph (h) thereof and purchase of
any shares of Senior Preferred Stock properly tendered pursuant to an offer
to purchase required thereunder and not withdrawn.
"Dividend Payment Date" means February 28, May 30, August 30 and November
30 of each year.
"Dividend Period" means the Initial Dividend Period and, thereafter, each
Quarterly Dividend Period.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer Registration Statement" means a registration statement
relating to the registration of shares of Preferred Stock pursuant to
Section 5 of the Securities Act, in connection with the issuance and
exchange of such shares for shares of the Senior Preferred Stock.
23
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment
of the accounting profession of the United States, which are in effect on
the date of the Senior Preferred Stock Issue Date.
"Holder" means a holder of shares of Senior Preferred Stock.
"Indebtedness" of any Person at any date means, without duplication: (i)
all liabilities, contingent or otherwise, of such Person for borrowed money
(whether or not the recourse of the lender is to the whole of the assets of such
Person or only to a portion thereof); (ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments; (iii) all
obligations of such Person in respect of letters of credit or other similar
instruments (or reimbursement obligations with respect thereto); (iv) all
obligations of such Person to pay the deferred and unpaid purchase price of
property or services, except trade payables and accrued expenses incurred by
such Person in the ordinary course of business in connection with obtaining
goods, materials or services; (v) the maximum fixed repurchase price of all
Disqualified Stock of such Person; (vi) all Capitalized Lease Obligations of
such Person; (vii) all Indebtedness of others secured by a Lien on any asset of
such Person, whether or not such Indebtedness is assumed by such Person; (viii)
all Indebtedness of others guaranteed by such Person to the extent of such
guarantee; and (ix) to the extent not otherwise included in this definition,
obligations under hedging obligations not entered into solely for the purpose of
protecting the Company or its Subsidiaries against fluctuations in foreign
currency exchange rates or interest rates on or in connection with indebtedness
of the Company or any of its Subsidiaries then outstanding. The amount of
Indebtedness of any Person at any date shall be, without duplication, the
outstanding balance at such date of all unconditional obligations as described
above, the maximum liability of such Person for any such contingent obligations
at such date and, in the case of clause (vii), the lesser of (A) the fair market
value (which, if such value exceeds $2.0 million, the determination of fair
market value shall be made in good faith by the Board, whose determination shall
be conclusive) of any asset subject to a Lien securing the Indebtedness of
others on the date that the Lien attaches and (B) the amount of the Indebtedness
secured. For purposes of the preceding sentences, the "maximum fixed repurchase
price" of any Disqualified Stock that does not have a fixed repurchase price
shall be calculated in accordance with the terms of such Disqualified Stock as
if such Disqualified Stock were purchased on any date on which Indebtedness
shall be required to be determined hereunder, and, if such price is based upon,
or measured by, the fair market value of such Disqualified Stock (or any equity
security for which it may be exchanged or converted), such fair market value
shall be determined in good faith by the Board of Directors of such Person,
which determination shall be evidenced by a resolution of such Board of
Directors.
24
"Independent Financial Advisor" means an accounting, appraisal or
investment banking firm of nationally recognized standing that is
disinterested and independent with respect to the Company and its
Affiliates and, in the reasonable judgment of the Company's Board, is
qualified to perform the task for which it has been engaged.
"Initial Dividend Period" means the dividend period commencing on the
Senior Preferred Stock Issue Date and ending on the day before the first
Dividend Payment Date to occur thereafter.
"Investments" means, with respect to any Person, any direct or indirect
advance, loan, guarantee of Indebtedness or other extension of credit or
capital contribution to (by means of any transfer of cash or other property
or assets to others or any payment for property, assets or services for the
account or use of others), or any purchase or acquisition by such Person of
any Capital Stock, bonds, notes, debentures or other securities (including
derivatives) or evidences of Indebtedness issued by, any other Person.
"Investments" shall exclude (a) extensions of trade credit or other
advances to customers on commercially reasonable terms in accordance with
normal trade practices or otherwise in the ordinary course of business, (b)
hedging obligations and (c) endorsements of negotiable instruments and
documents in the ordinary course of business.
"Legal Holiday" means a Saturday, a Sunday or a day on which federal
offices or banking institutions in the City of New York, in the city of the
Corporate Trust Office of the trustee under the Exchange Debenture
Indenture, or at a place of payment are authorized by law, regulation or
executive order to remain closed. If a payment date is a Legal Holiday,
payment may be made on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period.
"Lien" means any mortgage, charge, pledge, lien (statutory or other),
security interest, hypothecation, assignment for security, claim or similar
type of encumbrance (including, without limitation, any agreement to give
or grant any lease, conditional sale or other title retention agreement
having substantially the same economic effect as any of the foregoing) upon
or with respect to any property of any kind. A Person will be deemed to own
subject to a Lien any property that the Person has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement.
"Management Services Agreement" means the Management Services Agreement
to be entered into between Saratoga and/or its Affiliate, on the one hand,
and the Company and/or one or more of its Subsidiaries, on the other hand,
as such agreement may be amended from time to time in any manner, provided
that after giving effect to such amendment the terms thereof are, in the
aggregate, no less favorable to the Holders.
25
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Offering Memorandum" means the Offering Memorandum, dated November 25,
1997 relating to the offering of the Units, consisting of $10,000,000
aggregate liquidation preference of the Senior Preferred Stock and warrants
to purchase shares of Common Stock, par value $0.0001 per share, of the
Company.
"Officer" means, with respect to the Company, the Chairman of the Board,
the Vice-Chairman of the Board, the Chief Executive Officer or any other
executive officer of the Company or the Treasurer or any Assistant
Treasurer, the Company's Secretary or any Assistant Secretary of the
Company.
"Officer's Certificate" means a certificate signed by any one Officer.
"Opinion of Counsel" means a written opinion signed by legal counsel who
may be an employee of or counsel to the Company.
"Permitted Holders" means (i) Saratoga Partners III, L.P., (ii) David J.
Barrett, Martin A. Moore, Michael Baxley, John Champagne, Robert Feltz, and
Frank A. Wright, and (iii) Permitted Transferees of the foregoing.
"Permitted Investments" means any of the following: (i) Investments in
Cash Equivalents; (ii) Investments in the Company or any of its
Subsidiaries; (iii) Investments by the Company or any of its Subsidiaries
in another Person, if as a result of such Investment (A) such other Person
becomes a Subsidiary or (B) such other Person is merged or consolidated
with or into, or transfers or conveys all or substantially all of its
properties and assets to, the Company or a Subsidiary; (iv) Investments
made in the ordinary course of business in prepaid expenses, lease,
utility, workers' compensation, performance and other similar deposits; (v)
Investments received upon foreclosure, perfection or enforcement of any
Lien granted by, in the course of good faith settlement of claims against,
or by reason of a composition or readjustment of debt or a reorganization
of, any debtor of the Company or any of its Subsidiaries; (vi) endorsements
for collection or deposit in the ordinary course of business of bank drafts
and similar negotiable instruments received as payment for ordinary course
of business trade receivables; (vii) hedging obligations; (viii) loans or
advances to employees or directors of the Company or any Subsidiary in the
ordinary course of business; (ix) guarantees of Indebtedness of the Company
or any Subsidiary; (x) any Investment (x) to the extent that the
consideration therefor consists of Qualified Stock or (y) out of the
proceeds of a substantially concurrent issuance and sale (other than to a
Subsidiary of the Company) of Qualified Stock; and (xii) Investments in an
aggregate amount not to exceed $7.5 million at any time outstanding.
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"Permitted Transferees" means, with respect to any Person, (x) in the
case of any Person that is a natural person, (i) such individual's spouse,
estate, lineal descendants, heirs, executors, legal representatives,
administrators and (ii) any trust for the benefit of any of the foregoing,
and (y) in the case of any Person that is not a natural person, any other
Person controlled by such Person.
"Person" means any individual, corporation, partnership, joint venture,
incorporated or unincorporated association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof or other entity of any kind.
"Preferred Stock Registration Rights Agreement" means the Preferred Stock
Registration Rights Agreement dated as of November 26, 1997 among the
Company and the Initial Purchasers named therein.
"Public Equity Offering" means an offer and sale of Qualified Stock of
the Company for cash pursuant to a registration statement that has been
declared effective by the Commission pursuant to the Securities Act (other
than a registration statement on Form S-8 or otherwise relating to equity
securities issuable under any employee benefit plan of the Company).
"Qualified Stock" of any Person means any and all Capital Stock of such
Person other than Disqualified Stock.
"Quarterly Dividend Period" shall mean the quarterly period commencing on
each February 28, May 30, August 30 and November 30 and ending on the day
before the following Dividend Payment Date.
"Redemption Date" with respect to any shares of Senior Preferred Stock,
means the date on which such shares of Senior Preferred Stock are redeemed
by the Company.
"Registrar" means the registrar for the Senior Preferred Stock as
designated by the Company from time to time, which shall initially be the
United States Trust Company of New York.
"Restricted Investment", with respect to any Person, means (without
duplication) any Investment by such Person other than a Permitted
Investment.
"S&P" means Standard & Poor's Ratings Service, a division of The McGraw-
Hill Companies, Inc. and its successors.
27
"Saratoga" means Saratoga Partners III, L.P.
"Securities Act" means the Securities Act of 1933, as amended.
"Scovill" means Scovill Acquisition Inc., a Delaware corporation.
"Senior Preferred Stock Issue Date" means the date on which the Senior
Preferred Stock is originally issued by the Company under this Certificate
of Designations.
"Separation Date" means the earliest to occur of (i) 90 days after
November 26, 1997, (ii) such earlier date as may be determined by the
Initial Purchasers (as defined in the Preferred Stock Registration Rights
Agreement), upon written notice thereof to the Transfer Agent and
Registrar, (iii) in the event of a Change of Control, the date on which the
Company mails notice of thereof to the Holders of Senior Preferred Stock,
and (iv) the date on which the Exchange Offer Registration Statement with
respect to the Senior Preferred Stock is declared effective.
"Subsidiary" of any Person means (i) any corporation of which at least a
majority of the aggregate voting power of whose Voting Stock is owned by
such Person directly or through one or more other Subsidiaries of such
Person and (ii) any entity other than a corporation in which such Person,
directly or indirectly, owns at least a majority of the voting power of the
Voting Stock of such entity.
"Transfer Agent" means the transfer agent for the Senior Preferred Stock
as designated by the Company from time to time, which shall initially be
the United States Trust Company of New York.
"Transfer Restricted Securities" means each share of Senior Preferred
Stock until (i) the date on which such share has been exchanged by a person
other than a broker-dealer for a share of newly issued Preferred Stock in
an exchange offer (the "Preferred Stock Exchange Offer") and such share of
new Preferred Stock has been effectively registered under the Securities
Act, (ii) following the exchange by a broker-dealer in the Preferred Stock
Exchange Offer of a share of Senior Preferred Stock for a share of new
Preferred Stock, the date on which such share of new Preferred Stock is
sold to a purchaser who receives from such broker-dealer on or prior to the
date of such sale a copy of the prospectus contained in a registration
statement relating to the Preferred Stock Exchange Offer, (iii) the date on
which such share of Senior Preferred Stock has been effectively registered
under the Securities Act and disposed of pursuant to an effective shelf
registration statement relating to the Senior Preferred Stock or (iv) the
date on which such share of Senior Preferred Stock could be resold pursuant
to Rule 144 under the Securities Act.
28
"Trustee" means the party designated on the Exchange Date as such for the
Exchange Debenture Indenture until a successor replaces it in accordance
with the applicable provisions of the Exchange Debenture Indenture and
thereafter means the successor serving thereunder.
"Units Offering" means the offer and sale of units, consisting of
$10,000,000 aggregate liquidation preference of the Senior Preferred Stock
and warrants to purchase shares of Common Stock, par value $0.0001 per
share, of the Company as contemplated by the Offering Memorandum.
"Voting Stock", with respect to any specified Person, any class or
classes of Capital Stock of the specified Person pursuant to which the
holders thereof have the general voting power under ordinary circumstances
to elect at least a majority of the board of directors, managers or
trustees of the specified Person (irrespective of whether or not, at the
time, stock of any other class or classes has, or might have, voting power
by reason of the happening of any contingency).
29
IN WITNESS WHEREOF, Scovill Holdings Inc. has caused this Certificate to be
duly executed on its behalf by its undersigned duly authorized officer this
26th day of November, 1997.
SCOVILL HOLDINGS INC.
By: /s/ Martin A. Moore
-------------------
Name: Martin A. Moore
Title: Executive Vice President
and Secretary
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