EXHIBIT 3.3
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CERTIFICATE OF DESIGNATION
OF THE POWERS, PREFERENCES AND RIGHTS
OF SERIES B PREFERRED STOCK OF
SCOVILL HOLDINGS, INC.
AND QUALIFICATIONS,
LIMITATIONS AND RESTRICTIONS THEREOF
The undersigned, David J. Barrett and Martin A. Moore, hereby certify:
That they are the President and the Secretary, respectively, of
SCOVILL HOLDINGS, INC., a Delaware corporation (the "Corporation").
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That pursuant to the authority given by the Corporation's Certificate
of Incorporation, the Board of Directors of the Company has duly adopted the
following preambles and resolutions:
"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
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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;
WHEREAS, it is the desire of the Board, pursuant to its authority as
aforesaid, to authorize and fix the terms of two series of Preferred Stock
and the number of shares constituting such series;
RESOLVED, that there is hereby authorized such series of Preferred
Stock on the terms and with the provisions set forth below:
1. Title. This Board of Directors hereby authorizes a series of
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preferred stock for this Corporation designated as "Series B Preferred
Stock" and referred to in these resolutions as "Series B Preferred Stock".
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2. Number. The number of shares constituting the Series B Preferred
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Stock shall be 6,000,000.
3. Liquidation Rights. Upon any liquidation, dissolution or winding
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up of the Corporation, whether voluntary or involuntary, the Series B
Preferred Stock shall be entitled, before any distribution is made with
respect to any capital stock (other than common stock and any capital stock
that expressly provides that it ranks junior to the Series B Preferred
Stock), to be paid $9.90 per share, and the Series B Preferred Stock shall
not be entitled to any further payment. In case the net assets of the
Corporation are insufficient to pay all outstanding shares of Series B
Preferred Stock the amount to which they are respectively entitled, then the
entire net assets of the Corporation shall be distributed ratably to all
outstanding shares of Series B Preferred Stock.
4. Voting.
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4.1 No Voting Rights Generally. The holders of Series B Preferred
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Stock, except as otherwise required under Delaware law or as set forth in
this paragraph 4, shall not be entitled or permitted to vote on any matter
required or permitted to be voted upon by the stockholders of the
Corporation.
4.2 Actions Requiring Vote of Series B Preferred Stock. The
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Corporation shall not at any time, except with the affirmative vote of the
holders of at least a majority of the shares of the Series B Preferred Stock
at the time outstanding, (a) authorize any class of stock ranking prior to
the Series B Preferred Stock either as to rights on liquidation or as to
dividends (it being understood that the foregoing shall not apply to the
Corporation's Series A Cumulative Redeemable Exchangeable Preferred Stock) or
(b) amend the Certificate of Incorporation or the Bylaws of the Corporation
so as to affect adversely the relative rights, preferences or limitations of
the shares of the Series B Preferred Stock. No separate vote or consent of
the Series Stock shall be required in connection with the authorization of,
or the increase of the total number of authorized shares of, any class of
stock ranking pari passu with or junior to the Series B Preferred Stock as to
rights on liquidation and as to dividends.
5. Redemption.
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5.1 Mandatorv Redemption. The Corporation shall redeem all of the
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outstanding shares of Series B Preferred Stock from funds lawfully available
therefor twenty-one
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(21) days after the consummation of any of the following events (each, a
"Redemption Event"): (a) a public offering of shares of Common Stock of the
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Corporation, or of securities convertible or exchangeable into or exercisable
for shares of Common Stock, pursuant to the Securities Act of 1933 (the
"Act"); (b) a reorganization, merger or consolidation with one or more other
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corporations as a result of which the Company is not the surviving
corporation or the Company survives as a subsidiary (at least majority owned)
of another corporation; or (c) the sale of substantially all of the assets
and property of the Corporation to another corporation.
5.2 Optional Redemption. If the Board of Directors shall determine,
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in its sole discretion, to recapitalize the debt or equity of the
Corporation, or both, and, as part of such recapitalization, to redeem the
Series B Preferred Stock, the Corporation, at its option, exercised under
authority of its Board of Directors, may redeem all (but not less than all)
of the outstanding shares of Series B Preferred Stock.
5.3 Procedure. The following procedure shall apply to redemptions of
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Series B Preferred Stock:
(A) In any redemption of Series B Preferred Stock, the Corporation
shall pay therefor $9.90 in cash per share said sum being sometimes
hereinafter called the "redemption price".
(B) Notice of any proposed redemption shall be mailed by the
Corporation, postage prepaid, not less than twenty (20) days nor more than
sixty (60) days prior to the date fixed for redemption, to each holder of
record of shares of Series B Preferred Stock, at such holder's address as
shown on the records of the Corporation or given by such holder to the
Corporation for the purpose of notice, or, if no such address appears or is
given, at the place where the principal office of the Corporation is located.
Such notice shall state the date fixed for redemption and the redemption
price and shall call upon each holder of shares of Series B Preferred Stock
to surrender to the Corporation on said date at the place designated in the
notice such holder's certificate or certificates representing the shares to
be redeemed.
(C) On or after the date fixed for redemption and stated in such
notice, each holder of Series B Preferred Stock 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. If such notice of redemption
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shall have been duly given, and, if, on the date fixed for redemption, funds
necessary for the redemption are available therefor, then, notwithstanding
that the certificates evidencing the Series B Preferred Stock called for
redemption shall not have been surrendered, and all voting rights of such
shares shall terminate on said date.
(D) If, on or prior to any date fixed for redemption of Series B
Preferred Stock, the Corporation deposits with any bank or trust company in
the State of New York, as a trust fund, a sum sufficient to redeem, on the
date fixed for redemption thereof, the Series B Preferred Stock called for
redemption, with irrevocable instructions and authority to pay, on or after
the date fixed for redemption, the redemption price of such shares to their
respective holders upon surrender of their share certificates, and if the
notice described above designates such bank or trust company as the place to
which such certificates are to be surrendered, such deposit shall constitute
full payment of the redemption price of the shares to be redeemed, and, from
and after the date fixed for redemption, such shares shall no longer be
outstanding, and the holders thereof shall cease to be stockholders with
respect to such shares and shall have no rights with respect thereto except
the right to receive from the bank or trust company payment of the redemption
price of such shares, without interest, upon surrender of their certificates
therefor. If the holders of Series B Preferred Stock so called for redemption
shall not have claimed any funds so deposited prior to the end of six years
from the date fixed for redemption of such shares, such bank or trust company
shall thereupon pay over to the Corporation such unclaimed funds, and such
bank or trust company shall thereafter be relieved of all responsibility in
respect thereof to such holders, and such holders shall look only to the
Corporation for payment of the redemption price.
(E) The Series B Preferred Stock redeemed pursuant to this paragraph 5
shall revert to the status of authorized but unissued preferred stock and may
thereafter have such characteristics and designations as the Board of
Directors may determine."
That the authorized number of shares of Preferred Stock is 16,200,000,
of which 100,000 have been issued as Series A Cumulative Redeemable Exchangeable
Preferred Stock, and the number of shares constituting the Series B Preferred
Stock, none of which have been issued, is 6,000,000.
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Each of the undersigned further declares under penalty of perjury that
the matters set forth in the foregoing certificate are true of his or her own
knowledge.
Dated: November 26, 1997
/s/ David J. Barrett /s/ Martin A. Moore
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David J. Barrett, Martin A. Moore, Secretary
President