Exhibit 2.9
CERTIFICATE OF MERGER
OF
BPC MERGERCO, INC.
WITH AND INTO
BPC HOLDING CORPORATION
UNDER SECTION 251 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
Pursuant to Section 251 of the General Corporation Law of the State of
Delaware, BPC Holding Corporation, a Delaware corporation ("BPC"), hereby
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certifies to the following information relating to the merger of BPC
Mergerco, Inc., a Delaware corporation ("Mergerco"), with and into BPC (the
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"Merger").
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1. The names and states of incorporation of Mergerco and BPC, which
are the constituent corporations in the Merger (the "Constituent
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Corporations"), are:
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Name State
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BPC Mergerco, Inc.. . . . . . . . . . . . Delaware
BPC Holding Corporation . . . . . . . . . Delaware
2. The Agreement and Plan of Merger, dated as of June 18, 1996,
between Mergerco and BPC (the "Merger Agreement"), setting forth the terms
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and conditions of the Merger, has been approved, adopted, certified,
executed and acknowledged by each of the Constituent Corporations in
accordance with the provisions of Section 251 of the General Corporation
Law of the State of Delaware.
3. The name of the surviving corporation (the "Surviving
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Corporation") with respect to the Merger is "BPC Holding Corporation".
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4. The Amended and Restated Certificate of Incorporation of the
Surviving Corporation is hereby restated and amended to read in its
entirety as set forth in Annex A hereto.
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5. The Merger Agreement is on file at BPC's principal place of
business at 101 Oakley Street, Evansville, Indiana 47710. A copy of the
Merger Agreement will be provided without cost to any stockholder of either
Constituent Corporation who forwards a written request to BPC at its
principal place of business.
IN WITNESS WHEREOF, this Certificate of Merger has been executed on
this 18th day of June, 1996.
BPC HOLDING CORPORATION
By /s/ Roberto Buaron
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Name: Roberto Buaron
Title: Chairman
-2-
ANNEX A
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RESTATED CERTIFICATE OF INCORPORATION
OF
BPC HOLDING CORPORATION
The undersigned, Roberto Buaron and Joseph S. Levy, Chairman and Vice
President, respectively, of BPC HOLDING CORPORATION, a corporation
organized and existing under the laws of the State of Delaware, on behalf
of said corporation, hereby certify as follows:
1. The name of the corporation is BPC HOLDING CORPORATION (the
"Corporation"). The date of filing of its original Certificate of
Incorporation with the Secretary of State of the State of Delaware was
December 11, 1990, as amended and restated by the Amended and Restated
Certificate of Incorporation filed December 20, 1990, as further amended by
the Amended and Restated Certificate of Incorporation filed April 19, 1994,
further amended by the Certificate of Amendment to the Amended and Restated
Certificate of Incorporation filed May 5, 1995 and further amended by the
Certificate of Amendment filed June 14, 1996.
2. This Restated Certificate of Incorporation (the "Restated
Certificate") was duly adopted in accordance with Sections 103, 222, 242
and 245 of the General Corporation Law of the State of Delaware.
3. The text of the Certificate of Incorporation, as amended and
restated herein, shall read as follows:
ARTICLE FIRST
The name of the corporation is BPC HOLDING CORPORATION.
ARTICLE SECOND
The address of the registered office of the Corporation in the state
of Delaware is 9 East Loockerman Street, City of Dover, County of Kent,
Delaware 19901. The name of the registered agent of the Corporation at such
address is National Registered Agents, Inc.
ARTICLE THIRD
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Delaware General
Corporation Law.
ARTICLE FOURTH
Part A. Authorized Shares
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The total number of shares of capital stock which the Corporation has
authority to issue is 3,500,000 shares, consisting of:
(i) 1,000,000 shares of Preferred Stock, par value $.01 per
share ("Preferred Stock"), of which 600,000 shares shall be designated
Series A Senior Cumulative Exchangeable Preferred Stock (the "Series A
Preferred Stock");
(ii) 1,000,000 shares of Class A Common Stock, par value $.01 per
share ("Class A Common"), of which 500,000 shares shall be designated
voting shares ("Class A Voting Common") and 500,000 shares will be
designated non-voting shares ("Class A Non-Voting Common");
(iii) 1,000,000 shares of Class B Common Stock, par value $.01 per
share ("Class B Common"), of which 500,000 shares shall be designated
voting shares ("Class B Voting Common") and 500,000 shares will be
designated non-voting shares ("Class B Non-Voting Common"); and
(iv) 500,000 shares of non-voting Class C Common Stock, par value
$.01 per share ("Class C Common").
The Class A Common, Class B Common and Class C Common and any other
common stock issued hereafter are referred to collectively as the "Common
Stock". Shares of Preferred Stock and Common Stock shall have the rights,
preferences and limitations set forth below.
Part B. Preferred Stock
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(i) General. Subject to limitations prescribed by the provisions
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of this Part B, Preferred Stock may be issued from time to time in one
or more series, each of such series to have such terms as stated in
the resolution or resolutions providing for the establishment of such
series adopted by the Board of Directors of the Corporation, as
hereinafter provided. Except as otherwise expressly stated in this
Part B or in the resolution or resolutions providing for the
establishment of a series, any shares of Preferred Stock which may be
redeemed, purchased or acquired by the Corporation may be reissued
except as otherwise provided by law.
Subject to limitations prescribed by the provisions of this Part B,
authority is hereby expressly granted to the Board of Directors to provide
for the issuance, from time to time, of shares of Preferred Stock in one or
more series, and, in connection with the establishment of any such series
by resolution or resolutions and by the filing of a certificate
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pursuant to the applicable law of the State of Delaware, to determine and
fix such voting powers, full or limited, or no voting powers, and such
designations, preferences and relative participating, optional or other
special rights, and qualifications, limitations or restrictions thereof,
including without limitation thereof, dividend rights, conversion rights,
redemption privileges and liquidation preferences, as shall be stated in
such resolution or resolutions, all to the full extent permitted by the
General Corporation Law of the State of Delaware. Subject to limitations
prescribed by the provisions of this Part B and without limiting the
generality of the foregoing, the resolution or resolutions providing for
the establishment of any series of Preferred Stock may, to the extent
permitted by law, provide that such series shall be superior or rank
equally or be junior to the Preferred Stock of any other series. Except as
otherwise expressly stated in this Part B or in the resolution or
resolutions providing for the establishment of a series, no vote of the
holders of shares of Preferred Stock or Common Stock shall be a
prerequisite to the issuance of any shares of any series of the Preferred
Stock authorized by and complying with the conditions of this Certificate.
(ii) Series A Cumulative Exchangeable Preferred Stock.
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The designation and amount of the Series A Cumulative
Exchangeable Preferred Stock, par value $.01 per share, and the voting
powers, preferences and relative, participating, optional and other special
rights of the shares of such series, and the qualifications, limitations or
restrictions of such series, are as follows:
Section 1. Designation and Amount; Rank.
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(a) The shares of such series of Preferred Stock shall be
designated as the "Series A Senior Cumulative Exchangeable Preferred Stock"
(the "Series A Preferred Stock") and the number of shares initially
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constituting such series shall be 600,000, which number may be decreased
(but not increased) by the Board of Directors of the Corporation (the
"Board of Directors") without a vote of stockholders; provided, however,
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that such number may not be decreased below the number of then currently
outstanding shares of Series A Preferred Stock. The stated value and
liquidation preference per share (the "Liquidation Preference") of the
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Series A Preferred Stock shall be $25.00.
(b) The Series A Preferred Stock shall rank, with respect to the
payment of dividends and the distribution of assets upon dissolution,
liquidation or winding up of the Corporation, prior to all other Capital
Stock of the Corporation (such other Capital Stock being herein referred to
as the "Junior Stock").
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Section 2. Definitions.
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Capitalized terms used herein shall have the meanings set forth
in this Section 2:
"Accumulated Dividends" means, on any specific date with respect
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to any share of Series A Preferred Stock, the dividends that have accrued
on such share as of such specific date in respect of Dividend Periods
ending on or prior to the Cash Dividend Date and that have not previously
been paid in cash.
"Affiliate" means, with respect to any specified Person, any
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other Person which, directly or indirectly, controls, is under common
control with, or is owned or controlled by, such specified Person. For
purposes of this definition, (i) "control" means, with respect to any
specified Person, either (x) the beneficial ownership of more than
30 percent of any class of equity securities or (y) the power to direct the
management or policies of the specified Person through the ownership of
voting securities, by contract, voting agreement or otherwise and (ii) the
terms "controlling", "control with" and "controlled by", etc., shall have
meanings correlative to the foregoing.
"Bankruptcy Law" means Title 11, United States Code, or any
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similar Federal or state law for the relief of debtors.
"Berry" means Berry Plastics Corporation.
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"Berry Revolving Credit Facility" means the Berry Revolving
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Credit Facility, dated as of April 21, 1994, by and among Berry and Fleet
Capital Corporation providing for up to $28.0 million of borrowings,
including any related notes, Guarantees, collateral documents, instruments
and agreements executed in connection therewith, and in each case as
amended, modified, renewed, refunded, replaced or refinanced from time to
time which includes the addition, substitution or replacement of any or all
lenders thereunder under the same or any replacement agreement.
"Board of Directors" has the meaning ascribed to such term in
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Section 1(a).
"BPC Senior Subordinated Notes" means the 12-1/4% Senior
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Subordinated Notes due 2004 issued pursuant to the BPC Senior Subordinated
Notes Indenture.
"BPC Senior Subordinated Notes Indenture" means the Indenture
---------------------------------------
dated as of April 21, 1994, among the Corporation, Berry Iowa Corporation
and Berry-CPI Plastics Corp., as Guarantors, Berry, and United States Trust
Company of New York, as Trustee, regarding the BPC Senior Subordinated
Notes.
"Business Day" means any day other than Saturday, Sunday or a day
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on which banking institutions in the State of New
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York are authorized or obligated by law or executive order to close.
"By-Laws" means the by-laws of the Corporation, as they may be
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amended or restated from time to time.
"Capital Lease Obligation" means, at the time any determination
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thereof is to be made, the amount of the liability in respect of a capital
lease that would at such time be required to be capitalized on a balance
sheet prepared in accordance with GAAP.
"Capital Stock" of any Person means any and all shares,
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interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person,
including without limitation, any preferred stock, and with respect to
partnerships, partnership interests (whether general or limited) and any
other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets
of, such partnership, but excluding any debt securities convertible into
such equity.
"Cash Dividend Date" means the first Dividend Payment Date
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occurring after the sixth (6th) anniversary of the Issue Date.
"Cash Equivalents" means (i) United States dollars, (ii)
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securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof having
maturities of not more than six months from the date of acquisition, (iii)
certificates of deposit and eurodollar time deposits with maturities of six
months or less from the date of acquisition, bankers' acceptances with
maturities not exceeding six months from the date of acquisition and
overnight bank deposits, in each case with any lender party to the Berry
Revolving Credit Facility or with any domestic commercial bank having
capital and surplus in excess of $500 million, (iv) repurchase obligations
with a term of not more than seven days for underlying securities of the
types described in clauses (ii) and (iii) entered into with any financial
institution meeting the qualifications specified in clause (iii) above and
(v) commercial paper having the highest rating obtainable from Moody's
Investors Service, Inc. or Standard & Poor's Corporation and in each case
maturing within six months after the date of acquisition.
"Certificate of Incorporation" means the Certificate of
----------------------------
Incorporation of the Corporation, as it may be amended or restated from
time to time.
"Closing Date" has the meaning ascribed to such term in the
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Purchase Agreement.
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"Common Stock" means the Common Stock, of all classes, of the
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Corporation.
"Consolidated Net Worth" means, with respect to any Person as of
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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) that by its terms is not entitled to the payment of dividends unless
such dividends may be declared and paid only out of net earnings in respect
of the year of such declaration and payment, but only to the extent of any
cash received by such Person upon issuance of such preferred stock, less
(x) 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 Issue Date in the book value of any asset owned by such Person or a
consolidated Subsidiary of such Person, (y) all investments as of such date
in unconsolidated Subsidiaries and in Persons that are not Subsidiaries
(except, in each case, Permitted Investments), and (z) all unamortized debt
discount and expense and unamortized deferred charges as of such date, all
of the foregoing determined in accordance with GAAP.
"Custodian" means any receiver, trustee, assignee, liquidator,
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custodian or similar official under any Bankruptcy Law.
"CVCA" means Chase Venture Capital Associates, L.P.
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"DGCL" means the General Corporation Law of the State of
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Delaware, as in effect from time to time.
"Disqualified Stock" means any Capital Stock which, by its terms
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(or by the terms of any Capital Stock into which it is convertible or for
which it is exchangeable), or upon the happening of any event, matures or
is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the holder thereof, in whole or
in part, on or prior to December 31, 2006; provided, however, that any
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Capital Stock that would otherwise be Disqualified Stock will not be
Disqualified Stock solely as a result of a maturity or redemption event
that is conditioned upon and subject to compliance with Section 4.07 of the
Senior Secured Note Indenture.
"Dividend Payment Date" means the last day of March, June,
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September and December in each year.
"Dividend Period" means each quarterly period ending on a
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Dividend Payment Date.
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"Dividend Rate" means, with respect to each share of Series A
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Preferred Stock, a rate of 14% per annum of the sum of the Liquidation
Preference and all accrued and unpaid dividends on such share (excluding
the amount of any dividends accrued since the immediately preceding
Dividend Payment Date), subject to adjustment as follows:
(i) upon the occurrence of any Event of Non-Compliance specified
in clause (a) of the definition of such term, the Dividend Rate (if
the then current Dividend Rate is less than 16% per annum) shall
immediately increase to 16% per annum; provided that any increase in
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the Dividend Rate resulting from the operation of this clause (i)
shall terminate as of the close of business on the first date
thereafter on which no Event of Noncompliance specified in clause (a)
of the definition of such term exists and the Dividend Rate shall
revert to the rate that otherwise would be in effect but for the
operation of this clause (i), subject to subsequent increases pursuant
to this clause (i); and
(ii) upon the occurrence of an Event of Non-Compliance specified
in clause (b) of the definition of such term, the Dividend Rate (if
the then current Dividend Rate is less than 15% per annum) shall
immediately increase to 15% per annum; provided that any increase in
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the Dividend Rate resulting from the operation of this clause (ii)
shall terminate as of the close of business on the first date
thereafter on which no Event of Noncompliance specified in clause (b)
of the definition of such term exists and the Dividend Rate shall
revert to the rate that otherwise would be in effect but for the
operation of this clause (ii), subject to subsequent increases
pursuant to this clause (ii).
"Event Leading to Voting Rights" means any of the following:
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(a) the Corporation, commencing on the Cash Dividend Date, fails
for six (6) Dividend Periods (whether or not consecutive) to declare
and pay dividends in cash on shares of Series A Preferred Stock
pursuant to Section 3(a) in an amount equivalent to or exceeding the
full amount of dividends accrued and payable thereon, whether or not
such declaration or payment is legally permissible or is prohibited by
an agreement or instrument to which the Corporation is subject;
(b) (i) the Corporation or a Significant Subsidiary pursuant to
or within the meaning of any Bankruptcy Law: (A) commences a voluntary
case; (B) consents to the entry of an order for relief against it in
an involuntary case; (C) consents to the appointment of a Custodian of
it or for any substantial part of its property; or (D) makes a general
assignment for the benefit of its creditors or takes any
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comparable action under any foreign laws relating to insolvency; or
(ii) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that: (A) is for relief against the Corporation or
any Significant Subsidiary in an involuntary case; (B) appoints a
Custodian of the Corporation or any Significant Subsidiary or for any
substantial part of its property; or (C) orders the winding up or
liquidation of the Corporation or any Significant Subsidiary or any
similar relief is granted under any foreign laws and the order, decree
or relief remains unstayed and in effect for 60 days; or
(c) outstanding Indebtedness of the Corporation or any
Subsidiary in an amount aggregating in excess of $10,000,000 is not
paid within any applicable grace period after final maturity or is
accelerated by the holders thereof prior to final maturity.
"Event of Noncompliance" means any of the following:
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(a) the Corporation fails to declare and pay dividends in cash
on shares of Series A Preferred Stock on any Dividend Payment Date on
or after the Cash Dividend Date pursuant to Section 3(a) in an amount
equivalent to or exceeding the full amount of dividends (other than
Accumulated Dividends) then accrued and payable thereon, whether or
not such declaration or payment is legally permissible or is
prohibited by any agreement or instrument to which the Corporation is
subject; or
(b) the Corporation fails to perform, observe, or comply with
any covenant, agreement, obligation, or restriction required
hereunder, after giving effect to any grace period provided herein.
"Exchange" means the exchange of the Series A Preferred Stock for
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the Exchange Notes as provided in Section 8.
"Exchange Act" means the Securities Exchange Act of 1934, as
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amended.
"Exchange Date" has the meaning ascribed to such term in Section
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8(a).
"Exchange Indenture" means an indenture between the Corporation
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and a trustee satisfactory to the Corporation and the holders of a majority
of the outstanding shares of Series A Preferred Stock in form and substance
satisfactory to the Corporation and holders of at least 66-2/3% of the
outstanding shares of Series A Preferred Stock and reflecting the terms set
forth in Exhibit F to the Purchase Agreement.
"Exchange Notes" means the Corporation's Senior Subordinated
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Exchange Notes to be issued upon the Exchange under the Exchange Indenture.
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"Existing Indebtedness" means Indebtedness of the Corporation and
---------------------
its Subsidiaries (including the BPC Senior Subordinated Notes) in existence
on the Issue Date, until such amounts are repaid.
"GAAP" means generally accepted accounting principles set forth
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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 have been approved by a significant
segment of the accounting profession, which are in effect on the Issue
Date.
"Guarantee" means a guarantee (other than by endorsement of
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negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters
of credit and reimbursement agreements in respect thereof), of all or any
part of any Indebtedness.
"Hedging Obligations" means, with respect to any Person, the
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obligations of such Person under (i) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements and (ii)
other agreements or arrangements designed to protect such Person against
fluctuations in interest rates.
"Indebtedness" means, with respect to any Person, any
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indebtedness of such Person, whether or not contingent, in respect of
borrowed money or evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in respect
thereof) or representing Capital Lease Obligations or the balance deferred
and unpaid of the purchase price of any property or representing Hedging
Obligations, except any such balance that constitutes an accrued expense or
trade payable, if and to the extent any of the foregoing indebtedness
(other than letters of credit and Hedging Obligations) would appear as a
liability upon a balance sheet of such Person prepared in accordance with
GAAP, and also includes, to the extent not otherwise included, the
Guarantee of any Indebtedness of such Person or any other Person.
"International" means Atlantic Equity Partners International II,
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L.P.
"Investments" means, with respect to any Person, all investments
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by such Person in other Persons (including Affiliates) in the forms of
loans (including Guarantees), advances or capital contributions (excluding
commission, travel and similar advances to officers, directors, consultants
and employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Capital Stock or other
securities and all other items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP.
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"Issue Date" means the first date on which shares of Series A
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Preferred Stock are issued by the Corporation pursuant to the Purchase
Agreement.
"Junior Payment" has the meaning ascribed to such term in Section
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6.1(a).
"Junior Stock" has the meaning ascribed to such term in Section
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1(b).
"Lien" means any mortgage, pledge, security interest,
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encumbrance, lien or charge of any kind (including any conditional sale or
other title retention agreement or lease in the nature thereof).
"Liquidation Preference" has the meaning ascribed to such term in
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Section 1(a).
"Mergerco" means BPC Mergerco, Inc. which was merged with and
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into the Corporation pursuant to the Certificate of Merger filed with the
Secretary of State of the State of Delaware June 18, 1996.
"Northwestern" means The Northwestern Mutual Life Insurance
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Company.
"Officer" means the Chairman of the Board, the President, any
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Vice President, the Treasurer or the Secretary of the Corporation, as
applicable.
"Officers' Certificate" means a certificate signed by two
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Officers.
"past due" has the meaning ascribed to such term in Section 3(a).
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"Permitted Investments" means (a) any Investments in the
---------------------
Corporation or in a Wholly Owned Subsidiary of the Corporation that is
engaged in the same or similar line of business as the Corporation and its
Subsidiaries were engaged in on the Issue Date and (b) any Investments in
Cash Equivalents.
"Person" means any individual, corporation, general or limited
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partnership, joint venture, association, limited liability company, joint
stock company, trust, business trust, bank, trust company, estate
(including any beneficiaries thereof), unincorporated organization,
cooperative, association or governmental branch, authority, agency or
political subdivision thereof.
"Preferred Stock" means the preferred stock, par value $0.01 per
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share, of the Corporation.
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"Purchase Agreement" means the Preferred Stock and Warrant
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Purchase Agreement dated as of June 12, 1996, by and among the Corporation,
Mergerco, Northwestern and CVCA, as modified and supplemented and in effect
from time to time.
"Redemption Date" means the date of any redemption of the Series
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A Preferred Stock pursuant to Section 7.
"Redemption Percentage" means the applicable redemption
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percentage set forth below, if the Redemption Date occurs during the period
beginning June 15 of the years indicated:
Redemption
Year Percentage
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1999 110%
2000 108%
2001 106%
2002 104%
2003 102%
2004 and thereafter 100%
"Sale of the Corporation" means the sale of the Corporation to
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one or more Persons that are not Affiliates of the Corporation in a single
or a series of related transactions pursuant to which the acquiring Person
or Persons acquire (i) all of the capital stock of the Corporation (whether
by way of sale, transfer, merger, consolidation or otherwise) or (ii) all
or substantially all of the assets of the Corporation and its Subsidiaries,
taken as a whole.
"SEC" means the Securities and Exchange Commission.
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"Secretary" means the Secretary of the Corporation.
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"Senior Secured Notes" means the 12-1/2% senior secured notes
--------------------
issued by the Corporation pursuant to the terms of the Senior Secured Note
Indenture.
"Senior Secured Note Indenture" means the Indenture dated as of
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the Closing Date, between the Corporation and First Trust of New York, a
national association, as trustee, regarding the Senior Secured Notes as the
same may be modified and supplemented, and in effect from time to time.
"Senior Stock" means any stock of the Corporation ranking prior
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to, or on a parity with, the Series A Preferred Stock either with respect
to the payment of dividends or the distribution of assets, whether upon
liquidation or otherwise.
"Series A Preferred Stock" has the meaning ascribed to such term
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in Section 1(a).
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"Significant Subsidiary" means any Subsidiary that would be a
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"Significant Subsidiary" of the Corporation within the meaning of Rule 1-02
under Regulation S-X promulgated by the SEC.
"Specified Amount" means, on any specific date with respect to
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any share of Series A Preferred Stock, the sum of (i) the Liquidation
Preference with respect to such share and (ii) the Accumulated Dividends
with respect to such share.
"Stated Maturity" means, with respect to any security, the date
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specified in such security as the fixed date on which the payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision.
"Stockholders Agreement" means the Stockholders Agreement, dated
----------------------
the Closing Date, among the Corporation, International, CVCA, certain other
institutional holders, certain members of management of the Corporation and
CVCA and Northwestern as holders of Series A Preferred Stock with respect
to certain provisions thereof, as amended from time to time pursuant to its
terms.
"Stock Purchase Agreement" means the Stock Purchase and
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Recapitalization Agreement, dated as of June 12, 1996, among the
Corporation, Mergerco, certain purchasers listed on Schedule I thereto and
certain shareholders listed on Schedule II thereto, as amended from time to
time pursuant to its terms.
"Subsidiary" means, with respect to any Person, any corporation,
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association, partnership or other business entity of which more than 50% of
the total voting power of shares of Capital Stock or other interests
(including partnership interests) entitled (without regard to the
occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly
or indirectly, by (i) such Person, (ii) such Person and one or more
Subsidiaries of such Person or (iii) one or more Subsidiaries of such
Person. Unless otherwise specified herein, each reference to a Subsidiary
shall refer to a Subsidiary of the Corporation.
"Successor Corporation" has the meaning ascribed to such term in
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Section 6.8.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of
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such Person all of the outstanding Capital Stock or other ownership
interests of which (other than directors' qualifying shares) shall at the
time be owned by such Person or by one or more Wholly Owned Subsidiaries of
such Person and one or more Wholly Owned Subsidiaries of such Person.
Section 3. Dividends and Distributions. (a) The holders of
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shares of Series A Preferred Stock, in preference to the holders of shares
of Junior Stock, shall be entitled to receive quarterly, when, as and if
declared by the Board of Directors out of funds of the Corporation legally
available for
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the payment of dividends, cumulative dividends on each share at the
Dividend Rate. With respect to each Dividend Payment Date occurring on or
after the Cash Dividend Date, such dividends shall be paid in cash in
arrears. With respect to each Dividend Payment Date occurring prior to the
Cash Dividend Date, such dividends shall be paid, at the sole option of the
Corporation, in whole or in part, in cash in arrears, and to the extent the
Corporation does not pay such dividends in cash, then dividends owed to
such holder shall accrue quarterly on a compound basis. Dividends are
payable in arrears in respect of the Dividend Period ending on such
Dividend Payment Date so long as shares of Series A Preferred Stock are
outstanding (dividends not paid on any such date in accordance with the
terms of this Section 3 are referred to herein as "past due"); provided
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that (i) the first Dividend Payment Date shall be September 30, 1996, in
respect of the period from the Issue Date through such date and (ii) any
past due dividends may be paid on any date fixed by the Board of Directors.
(b) Dividends payable pursuant to Section 3(a) shall begin to
accrue and be cumulative from the Issue Date. The amount of dividends
payable for any period shorter or longer than a full Dividend Period,
including the first Dividend Period, shall be determined on the basis of
twelve 30-day months and a 360-day year. Dividends paid on the shares of
Series A Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated
pro rata on a share-by-share basis among all such shares at the time
- --- ----
outstanding. Dividends paid on the shares of Series A Preferred Stock
shall be allocated pro rata on a share-by-share basis among all such shares
--- ----
at the time outstanding. The Board of Directors may fix a record date for
the determination of holders of shares of Series A Preferred Stock entitled
to receive payment of a dividend declared thereon, which record date shall
be no more than sixty (60) days nor less than ten (10) days prior to the
date fixed for the payment thereof. If no record date is fixed, the record
date for determining holders of shares of Series A Preferred Stock entitled
to receive payment of a dividend declared thereon shall be at the close of
business on the day on which the Board of Directors declares such dividend.
(c) All accrued and unpaid dividends, to the extent theretofore
unpaid, shall be paid in full, in cash, on the 12th anniversary of the
Issue Date (the "12th Anniversary Date"). In the event all accrued and
---------------------
unpaid dividends are not paid in full, in cash, on the 12th Anniversary
Date or accrued dividends are not paid in full, in cash, on any Dividend
Payment Date following the 12th Anniversary Date, the holders of Series A
Preferred Stock shall have the right, notwithstanding anything to the
contrary in the Certificate of Incorporation, the By-Laws or any agreement
or instrument to which the Corporation is a party, voting together as a
single class, to elect the number of additional members to the Board of
Directors at each election of directors so that representatives of the
holders of Series A Preferred Stock shall constitute, at all times
thereafter, a
13
majority of the Board of Directors. Such directors shall be elected in
accordance with the applicable procedures set forth in Section 5(b)(ii).
The directors elected pursuant to this Section 3(c) (and any successors
thereof) may continue to serve until a Sale of the Corporation is
consummated.
Section 4. Liquidation, Dissolution or Winding Up. (a) In the
--------------------------------------
event of any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of shares of Series A
Preferred Stock shall be entitled to receive, out of the assets of the
Corporation available for distribution to its stockholders, an amount equal
to the Liquidation Preference per share of Series A Preferred Stock plus
all accrued and unpaid dividends thereon to the date of such payment, and
no distribution shall be made to the holders of shares of Junior Stock upon
liquidation, dissolution or winding up unless, prior thereto, the holders
of shares of Series A Preferred Stock shall have received an amount equal
to the Liquidation Preference per share plus all accrued and unpaid
dividends thereon to the date of such payment (whether or not the
declaration or payment of such dividends is legally permissible or is
prohibited by any agreement or instrument to which the Corporation is
subject).
(b) Neither the consolidation, merger or other business
combination of the Corporation with or into any other Person or Persons nor
the sale, lease, exchange or conveyance of all or any part of the property,
assets or business of the Corporation, shall be deemed to be a liquidation,
dissolution or winding up of the Corporation for purposes of this Section
4.
Section 5. Voting Rights. (a) Except as provided in this
-------------
Section 5 or in the Certificate of Incorporation, and except for any voting
rights provided by law, the holders of shares of Series A Preferred Stock
shall have no voting rights and their consent shall not be required for the
taking of any corporate action.
(b) (i) Upon the occurrence of any Event Leading to Voting
Rights, the holders of shares of Series A Preferred Stock shall have the
right, notwithstanding anything to the contrary in the Certificate of
Incorporation, the By-Laws or any agreement or instrument to which the
Corporation is a party, voting together as a single class, to elect two
(2) directors to the Board of Directors, all such directors to be in
addition to the number of directors constituting the Board of Directors
immediately prior to the accrual of such rights, with the remaining
directors to be elected by the other class or classes of stock entitled to
vote therefor at any meeting of the stockholders held for the purpose of
electing directors. The right of the holders of shares of Series A
Preferred Stock to elect members of the Board of Directors as set forth
herein shall continue until (A) with respect to an Event Leading to Voting
Rights specified in clause (a) of the definition of such term, such time as
all accrued and unpaid dividends that are in arrears are paid in full in
cash,
14
and (B) with respect to any other Event Leading to Voting Rights, until
such event, occurrence or failure ceases to exist or has been cured, as the
case may be, at which time the special right of the holders of the Series A
Preferred Stock so to vote as a class for the election of directors and the
term of office of the directors elected by such persons shall terminate
upon resignation; provided, however, that such right shall again be
applicable with respect to any subsequent Event Leading to Voting Rights.
(ii) The right of the holders of Series A Preferred Stock to vote
for the election of directors herein may be exercised at any annual meeting
of stockholders of the Corporation or at any special meeting of
stockholders of the Corporation called for such purpose as hereinafter
provided or at any adjournment thereof, or by the written consent,
delivered to the Secretary, of the holders of a majority of all outstanding
shares of Series A Preferred Stock as of the record date of such written
consent. The Secretary may call, and upon the written request of the
holders of record of at least twenty percent (20%) of the outstanding
shares of Series A Preferred Stock addressed to the Secretary at the
principal executive offices of the Corporation shall call, a special
meeting of the holders of such shares for the election of such directors as
provided herein. Such meeting shall be held within thirty (30) days after
delivery of such request to the Secretary, at the place and upon the notice
required for meetings of stockholders provided in the By-Laws or by law for
the holding of meetings of stockholders. No such special meeting or
adjournment thereof shall be held on a date less than thirty (30) days
before an annual meeting of stockholders of the Corporation or any special
meeting in lieu thereof at which the holders of the Series A Preferred
Stock are given the opportunity to elect directors. If at any such annual
or special meeting or any adjournment thereof the holders of a majority of
the then outstanding shares of Series A Preferred Stock entitled to vote in
such election shall be present or represented by proxy, or if such majority
shall have acted by written consent in lieu of a meeting with respect
thereto, then the authorized number of directors shall be increased and the
holders of the Series A Preferred Stock shall be entitled to elect such
additional directors as provided herein. The absence of a quorum of the
holders of any other class or series of capital stock of the Corporation at
any such annual or special meeting shall not affect the exercise by the
holders of the Series A Preferred Stock of their right to elect directors
as set forth herein. Subject to Section 5(b)(i) and Section 3(c), the
directors so elected shall serve until the next annual meeting of
stockholders of the Corporation or until their successors shall be elected
and shall qualify. In case any of the directors elected by the holders of
the Series A Preferred Stock hereunder shall cease to serve as a director
for any reason prior to the expiration of his or her term, the holders of
the Series A Preferred Stock then outstanding and entitled to vote for such
director may, by written consent as hereinabove provided, or at a special
meeting of such holders called as provided above, elect a
15
successor to hold office for the unexpired term of the director whose place
shall be vacant.
(iii) The rights of the holders of Series A Preferred Stock to
elect directors hereunder shall not be adversely affected by the voting or
other rights applicable to any other security of the Corporation.
(iv) Notwithstanding anything herein to the contrary, with
respect to the right of the holders of Series A Preferred Stock to elect
directors pursuant to Section 3(c) hereof, an affirmative vote by holders
representing 66-2/3% of all outstanding shares of Series A Preferred Stock
shall be required to elect such additional directors.
Section 6. Restrictive Covenants. For so long as any shares of
---------------------
Series A Preferred Stock shall be outstanding, and unless the consent or
approval of a greater number of shares shall then be required by law,
without first obtaining the consent or approval of the holders of at least
66-2/3% of the shares of Series A Preferred Stock then outstanding, voting
as a single class, given in person or by proxy at a meeting at which the
holders of such shares shall be entitled to vote separately as a class, or
by written consent:
6.1. Limitation on Junior Payments. (a) Subject to
-----------------------------
Section 6.1(b), the Corporation shall not, directly or indirectly,
(i) declare, pay, or set apart for payment on any Junior Stock, any
dividend or make any distribution on or in respect of Junior Stock
(including any payment in connection with any merger or consolidation
involving the Corporation or any of its Subsidiaries), except
dividends or distributions payable in shares (other than Disqualified
Stock) of the classes or series upon which such dividends are declared
or paid, or payable in shares of Common Stock with respect to Junior
Stock other than Common Stock, together with cash in lieu of
fractional shares, or (ii) purchase, redeem, retire or otherwise
acquire for value any Junior Stock (any such dividend, distribution,
purchase, redemption, or other acquisition being herein referred to as
a "Junior Payment").
--------------
(b) The provisions of Section 6.1(a) shall not prohibit:
(i) any purchase or redemption of Capital Stock of the Corporation
made by exchange for, or out of the proceeds of the substantially
concurrent sale of, Capital Stock of the Corporation (other than
Disqualified Stock and other than Capital Stock issued or sold to a
Subsidiary); (ii) the repurchase, redemption or other acquisition or
retirement for value of Capital Stock of the Corporation pursuant to
any management equity subscription, stockholder or stock option
agreement; provided, however, that (X) the aggregate price paid for
-------- -------
all such repurchased, redeemed, acquired or retired Capital Stock
shall not exceed $1.0 million in any fiscal year and (Y) no Default or
Event of
16
Default (as defined in the Senior Secured Note Indenture) or Event of
Non-Compliance or Event Leading to Voting Rights shall have occurred
and be continuing immediately after such transaction; and (iii) any
repurchase of Capital Stock from an SBIC Holder (as defined in the
Purchase Agreement), in accordance with the terms of 6.2 of the
Purchase Agreement or the Stock Purchase Agreement (as the case may
be), arising out of a Regulatory Violation or a Regulatory Problem (as
defined in the Purchase Agreement).
6.2. Limitation on Payment Restrictions Affecting
--------------------------------------------
Subsidiaries. The Corporation shall not, and shall not permit any of
------------
its Subsidiaries to, directly or indirectly, create or otherwise cause
or suffer to exist or become effective any encumbrance or restriction
on the ability of any Subsidiary to (i)(a) pay dividends or make any
other distributions to the Corporation or any of its Subsidiaries
(1) on its Capital Stock or (2) with respect to any other interest or
participation in, or measured by, its profits, or (b) pay any
Indebtedness owed to the Corporation or any of its Subsidiaries,
(ii) make loans or advances to the Corporation or any of its
Subsidiaries, (iii) transfer any of its properties or assets to the
Corporation or any of its Subsidiaries, except for such encumbrances
or restrictions existing under or by reason of (A) Existing
Indebtedness, (B) Indebtedness of Berry or Berry's Subsidiaries
permitted to be incurred under the Senior Secured Note Indenture,
(C) the Senior Secured Note Indenture and the Senior Secured Notes,
(D) applicable law, (E) any instrument governing Indebtedness or
Capital Stock of a Person acquired by the Corporation or any of its
Subsidiaries as in effect at the time of such acquisition (except to
the extent such Indebtedness was incurred in connection with or in
contemplation of such acquisition), which encumbrance or restriction
is not applicable to any Person, or the properties or assets of any
Person, other than the Person, or the Property or assets of the
Person, so acquired, (F) by reason of customary non-assignment
provisions in leases entered into in the ordinary course of business
and consistent with past practices, or (G) purchase money obligations
for property acquired in the ordinary course of business that impose
restrictions of the nature described in clause (iii) above on the
property so acquired.
6.3. Amendment of Financing Documents. The Corporation
--------------------------------
will not amend or supplement the Senior Secured Notes or the Senior
Secured Note Indenture, as in effect on the Closing Date (or enter
into any refinancing or replacement thereof, or any new financing
agreement) if (a) the restrictive covenants of such amended or
supplemented or new financing agreement would impair the ability of
the Corporation to perform its obligations set forth herein or in the
Purchase Agreement, or (b) the provisions of such amended or
supplemented or new financing agreement with respect to the payment of
dividends on, or the redemption
17
of, Preferred Stock, are more onerous or restrictive to the
Corporation than the corresponding provisions set forth in the Senior
Secured Note Indenture as in effect on the Closing Date.
6.4. Limitation on Issuance of Subsidiary Securities. The
-----------------------------------------------
Corporation will cause its Subsidiaries not to issue any Capital Stock
(other than to the Corporation or any wholly-owned subsidiary of the
Corporation), unless the proceeds of such issuance are used to redeem
all (but not less than all) of the then outstanding shares of Series A
Preferred Stock on the terms and conditions set forth herein.
6.5. Senior Stock. The Corporation shall not (i)
------------
authorize, create or issue any class or series, or any shares of any
class or series, of Senior Stock, unless the proceeds from such
issuance are used to redeem or repurchase all (but not less than all)
of the then outstanding shares of Series A Preferred Stock pursuant to
the terms and conditions set forth herein and in the Purchase
Agreement; (ii) reclassify any shares of capital stock of the
Corporation into shares of Senior Stock; or (iii) authorize or issue
any security exchangeable for, convertible into, or evidencing the
right to purchase any shares of Senior Stock.
6.6. Certificate of Incorporation; By-Laws. The
-------------------------------------
Corporation shall not amend, alter or repeal the Certificate of
Incorporation or By-Laws to alter or change the preferences, rights or
powers of the Series A Preferred Stock so as to affect the holders of
the Series A Preferred Stock adversely, to otherwise impair the rights
of the holders of Series A Preferred Stock, or to increase the
authorized number of shares of Series A Preferred Stock.
6.7. Liquidation. The Corporation shall not effect the
-----------
voluntary liquidation, dissolution or winding up of the Corporation.
6.8 Merger and Consolidation. The Corporation shall not
------------------------
consolidate with or merge with or into, or convey, transfer, lease or
sell all or substantially all its assets to, any Person, unless:
(a) All outstanding shares of Series A Preferred Stock are
purchased as a part of such transaction at a per share price of not
less than the Liquidation Preference of each such share plus all
accrued and unpaid dividends thereon through the date of such
purchase; or
(b) (i) the Corporation is the surviving corporation or,
if the surviving corporation is not the Corporation, the resulting,
surviving or transferee Person (the "Successor Corporation") shall be
---------------------
a corporation organized and existing under the laws of the United
States
18
of America, any State thereof or the District of Columbia and (x) the
Successor Corporation (if not the Corporation) shall expressly assume,
by an amendment to the Purchase Agreement in form and substance
satisfactory to the holders of at least 66-2/3% of all outstanding
shares of Series A Preferred Stock as of the date of such assumption,
all the obligations of the Corporation thereunder, and (y) the Series
A Preferred Stock shall be converted or exchanged for and shall become
shares of such Successor Corporation, having in respect of such
Successor Corporation the same powers, preferences and relative
participating, optional or other special rights, and the
qualifications, limitations or restrictions thereto, that the Series A
Preferred Stock had immediately prior to such transaction;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default (as defined in the Senior Secured
Note Indenture) exists and no Event of Non-Compliance or Event
Leading to Voting Rights shall have occurred and be continuing;
(iii) the Corporation or Successor Corporation, as the case
may be, will (x) at the time of the transaction and after giving
pro forma effect thereto as if such transaction had occurred at
the beginning of the applicable four-quarter period, be permitted
to incur at least $1.00 of additional Indebtedness pursuant to
the "Fixed Charge Coverage Ratio" test set forth in Section 4.09
of the Senior Secured Note Indenture and (y) will have a
Consolidated Net Worth immediately after the transaction equal to
or greater than the Consolidated Net Worth of the Corporation
immediately preceding the transaction; and
(iv) the Corporation shall have delivered to the holders of
the Series A Preferred Stock an Officers' Certificate stating
that such consolidation, merger, transfer or lease comply with
this Section 6.8.
The Successor Corporation shall succeed to, and be substituted for,
and may exercise every right and power of, the Corporation to the
extent set forth in the Purchase Agreement, but in the case of a lease
of all or substantially all its assets, the Corporation, shall not be
released from its obligations with respect to the Series A Preferred
Stock.
Notwithstanding clauses (ii) and (iii): (1) any Subsidiary of the
Corporation may consolidate with, merge into or transfer all or part
of its properties and assets to the Corporation and (2) the
Corporation may merge with an Affiliate incorporated solely for the
purpose of reincorporating the Corporation in another jurisdiction to
realize tax or other benefits.
19
Section 6A. Other Covenants.
---------------
6A.1. Notification of Certain Events. The Corporation
------------------------------
shall mail to each holder of record of the Series A Preferred Stock,
within 30 days after the occurrence thereof, written notice in the
form of an Officers' Certificate of (i) the occurrence of any Event of
Non-Compliance and (ii) any failure by the Corporation to observe any
covenant specified herein and in Section 6.2 of the Purchase
Agreement.
6A.2. Distributions on Junior Stock. Except as otherwise
-----------------------------
provided for in Section 6.1(b) for so long as the Common Stock of the
Corporation is not registered pursuant to Section 12 or 15 of the
Securities Exchange Act of 1934, as amended, any dividends,
distributions or other payments made on or in respect of Junior Stock
shall be held by holders of Junior Stock in trust for the benefit of
the holders of Series A Preferred Stock and shall be remitted to the
holders of Series A Preferred Stock, on a pro-rata basis, until each
holder of Series A Preferred Stock has received an amount equal to the
per share Liquidation Preference plus all accrued and unpaid
dividends.
6A.3. Board Observers; Meetings. (a) For so long as CVCA
-------------------------
or its Affiliates or Northwestern or its Affiliates each hold in the
aggregate at least 33-1/3% of the then outstanding shares of Series A
Preferred Stock, and in addition to any rights CVCA may have as a
purchaser of Common Stock under the Stockholders Agreement, the Stock
Purchase Agreement or otherwise, the Corporation shall afford each of
CVCA and Northwestern the opportunity to have one (1) representative
each (each referred to as an "Observer") attend (at the Corporation's
--------
cost and expense) as an observer at (but not participate in or vote
at) each meeting of the Board of Directors. In addition, upon the
occurrence of an Event of Non-Compliance, CVCA and Northwestern shall
each be afforded the opportunity to appoint a second Observer to
attend (at the Corporation's sole cost and expense) as an observer at
(but not participate in or vote at) each meeting of the Board of
Directors. The Corporation shall give each Observer notice of all
such meetings at the same time and in the same manner as notice is
given to members of the Board of Directors. Each Observer shall be
entitled to receive all written materials and other information given
to the directors of the Corporation in connection with such meetings
at the same time and in the same manner and form such materials and
information are given to the directors, and copies of all minutes and
all resolutions adopted by the Board of Directors (whether at
meetings, by written consent or otherwise) promptly after such
adoption and (if applicable) approval thereof (it being understood
that such copies shall be certified by the Secretary of the
Corporation).
20
(b) For so long as any shares of Series A Preferred Stock
shall be outstanding, regular meetings of the Board of Directors shall
be held at least three (3) times during the fiscal year of the
Corporation.
Section 7. Redemption. (a) Other than as set forth in clause
----------
(b) below, the Corporation shall have no right to redeem any shares of
Series A Preferred Stock prior to June 15, 1999. On and after June 15,
1999, to the extent that the Corporation shall have funds legally available
therefor, the Corporation shall have the right, at its sole option and
election, to redeem, at any time or from time to time, in whole or in part,
the outstanding shares of Series A Preferred Stock by paying therefor in
cash an amount per share equal to the sum of (i) the product of (A) the
Specified Amount of such share, times (B) the applicable Redemption
Percentage, and (ii) the amount of all accrued and unpaid dividends thereon
to the Redemption Date (excluding any Accumulated Dividends, but including
an amount equal to a prorated dividend from the immediately preceding
Dividend Payment Date to the Redemption Date).
(b) In the event that the Corporation shall effect a registered
initial public offering of the Common Stock under the Securities Act of
1933, as amended, the Corporation shall have the right to redeem, at its
sole option and election (subject to the legal availability of funds
therefor), all (but not less than all) of the outstanding shares of Series
A Preferred Stock for an amount per share (payable solely in cash out of
the proceeds of such offering) equal to the sum of (i) product of (A) the
Specified Amount of such share, times (B) the lesser of the applicable
Redemption Percentage or 107% and (ii) the amount of all accrued and unpaid
dividends thereon to the Redemption Date (excluding any Accumulated
Dividends, but including an amount equal to a prorated dividend from the
immediately preceding Dividend Payment Date to the Redemption Date);
provided that such redemption occurs within 45 days of the date of the
closing of such public offering.
(c) Notice of any redemption of shares of Series A Preferred
Stock pursuant to paragraph (a) or (b) of this Section 7 shall be mailed
---------
not less than ten (10) Business Days nor more than sixty (60) days prior to
the Redemption Date to each holder of shares of Series A Preferred Stock to
be redeemed, at such holder's address as it appears on the transfer books
of the Corporation. Each such notice shall state: (A) the Redemption
Date, (B) the place or places where the redemption price will be paid (if
other than the principal executive offices of the Corporation), (C) if less
than all the shares held by any holder are to be redeemed pursuant to
paragraph (a), the number of shares to be redeemed from such holder and
(D) that dividends on the shares of Series A Preferred Stock to be redeemed
will cease to accrue on the Redemption Date. In order to facilitate the
redemption of shares of Series A Preferred Stock, the Board of Directors
may fix a record date for the determination of shares of Series A Preferred
Stock to be redeemed, not more than
21
sixty (60) days nor less than thirty (30) days prior to the applicable
Redemption Date. In the case of the redemption of less than all the
outstanding shares of Series A Preferred Stock pursuant to paragraph (a),
(I) the shares to be redeemed shall be selected pro rata, and there shall
--- ----
be redeemed from each holder, as nearly as practicable to the nearest whole
share, that proportion of all the shares to be redeemed which the number of
shares held of record by such holder bears to the total number of shares of
Series A Preferred Stock at the time outstanding; provided, however, that
-------- -------
if any holder of Series A Preferred Stock holds of record (or following
such redemption would hold of record) less than 100 shares in the
aggregate, then the Corporation may elect to redeem all such shares held of
record by such holder and there shall be redeemed from each other holder,
as nearly as practicable to the nearest whole share, that proportion of all
other shares to be redeemed which the number of shares held of record by
such holder bears to the total number of other shares of Series A Preferred
Stock at the time outstanding, and (II) if fewer than all shares
represented by any certificate are redeemed, a new certificate shall be
issued representing the unredeemed shares without cost to the holder
thereof.
(d) Notice having been mailed as specified in Section 7(c), and
provided that on or before the Redemption Date, specified in such notice
all funds necessary for such redemption shall have been set aside by the
Corporation, separate and apart from its other funds, in trust for the pro
rata benefit of the holders of the shares so called for redemption, so as
to be and to continue to be available therefor, then, from and after the
Redemption Date, dividends on the shares of Series A Preferred Stock called
for redemption shall cease to accrue and said shares shall no longer be
deemed to be outstanding, and all rights of the holders thereof set forth
herein and otherwise as stockholders of the Corporation (except the right
to receive from the Corporation the redemption price in accordance with
this Section 7) shall cease.
Section 8. Exchange. (a) The shares of Series A Preferred
--------
Stock are exchangeable, in whole but not in part, at the option of the
Corporation, on any Dividend Payment Date (the "Exchange Date"), for that
-------------
principal amount of Exchange Notes equal to the Liquidation Preference of
the shares of Series A Preferred Stock to be exchanged, provided, that on
--------
or prior to the Exchange Date the Corporation shall have paid in cash to
the holders of outstanding shares of Series A Preferred Stock all accrued
and unpaid dividends on such Series A Preferred Stock to the Exchange Date,
and provided, further, that so long as any shares of Series A Preferred
-------- -------
Stock are held by CVCA or its Affiliates, no shares of Series A Preferred
Stock may be exchanged.
(b) The Corporation will mail to each holder of record of the
shares of Series A Preferred Stock written notice of its intention to make
the Exchange not less than ten (10) nor more than sixty (60) days prior to
the Exchange Date. Each such
22
notice shall state: (i) the Exchange Date, (ii) the place or places where
certificates for such shares of Series A Preferred Stock are to be
surrendered for exchange into Exchange Notes (if other than the principal
executive offices of the Corporation) and (iii) that dividends on the
shares of Series A Preferred Stock to be exchanged will cease to accrue on
such Exchange Date. On the Exchange Date, the Corporation will (x) cause
the Exchange Notes to be executed, and, if necessary, authenticated, and
will cause the Exchange Indenture to be executed, by all applicable parties
and (y) deliver to each holder of Series A Preferred Stock one or more duly
executed Exchange Notes (as designated by such holder) in an aggregate
principal amount calculated in accordance with Section 8(a). The
Corporation will pay interest on the Exchange Notes at the rate and on the
dates set forth in the Exchange Notes.
(c) If notice has been mailed as specified in Section 8(b), and
provided that the Corporation shall issue the Exchange Notes in compliance
herewith and the terms and conditions of the Exchange Indenture, from and
after the Exchange Date dividends on the Series A Preferred Stock shall
cease to accrue and the Series A Preferred Stock shall no longer be deemed
to be outstanding, and all rights of the holders thereof set forth herein
and otherwise as shareholders of the Corporation (except any rights
specified herein in respect of the Exchange Notes) shall cease. Upon
surrender in accordance with said notice of the certificates for any shares
of Series A Preferred Stock so exchanged, such shares shall be exchanged by
the Corporation for the Exchange Notes as aforesaid.
(d) The Corporation will pay any and all taxes that may be
payable in respect of the issuance and delivery of the Exchange Notes as
provided in this Section 8 and in the Exchange Indenture (excluding any tax
which may be payable in respect of any transfer involved in the issuance
and delivery of Exchange Notes in a name other than that in which the
shares of the Series A Preferred Stock so exchanged were registered).
Section 9. Reacquired Shares. Any shares of Series A Preferred
-----------------
Stock redeemed, purchased or otherwise acquired by the Corporation in any
manner whatsoever (including pursuant to the Exchange in accordance with
Section 8) shall be retired and canceled promptly after the acquisition
thereof, and, if necessary to provide for the lawful redemption or purchase
of such shares, the capital represented by such shares shall be reduced in
accordance with the DGCL. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock and may be
reissued as part of another series of Preferred Stock (subject to any
applicable limitations set forth herein).
Part C. Common Stock
------------
Except as otherwise provided in this Part C or as otherwise required
by applicable law, all shares of Class A Common, Class B
23
Common and Class C Common shall be identical in all respects and shall
entitle the holders thereof to the same rights and privileges, subject to
the same qualifications, limitations and restrictions.
Section 1. Voting Rights.
-------------
(a) Until a Conversion Event or a Mandatory Conversion Event,
except as otherwise required by applicable law, (i) all holders of
Class A Voting Common and Class B Voting Common (collectively, the
"Voting Common") shall be entitled to one vote per share on all
matters to be voted on by the Corporation's stockholders, and the
holders of Class A Voting Common and Class B Voting Common shall vote
together as a single class and (ii) Class A Non-Voting Common, Class B
Non-Voting Common and Class C Common shall not be entitled to vote on
any matter to be voted on by the Corporation's stockholders and shall
not be included in determining the number of shares voting or entitled
to vote on such matters.
(b) Upon the occurrence of a Conversion Event, except as
otherwise required by applicable law, all shares of Class A Common,
Class B Common and Class C Common shall be entitled to one vote per
share on all matters to be voted on by the Corporation's stockholders,
and the holders of Class A Common, Class B Common and Class C Common
shall vote together as a single class.
(c) Notwithstanding the above, and until the occurrence of a
Mandatory Conversion Event, no amendment or waiver of any provision of
this Part C of this Article Fourth shall be effective without the
affirmative vote or prior written consent of holders of a majority of
the then outstanding shares of Class A Common, voting or consenting as
a separate class.
(d) The Corporation shall not merge with or into, or consolidate
with any other Person if, under the terms pursuant to which such
merger or consolidation is to be effected, (i) the consideration to be
received by holders of one or more classes of Common Stock in such
merger or consolidation is less than the holders of such class or
classes would receive if the aggregate consideration to be received by
all holders of Common Stock were, as of the effectiveness of such
merger or consolidation, distributed by the Corporation to the holders
of Common Stock pursuant to the terms of this Article Fourth, unless
the Corporation shall have obtained the affirmative vote or prior
written consent of the holders of a majority of the then outstanding
shares of each such class of Common Stock, voting or consenting as a
separate class or (ii) any provision of this Part C of this Article
Fourth would be amended or waived, unless the Corporation shall have
obtained the affirmative vote or prior written consent of the holders
of a majority of the then outstanding shares of Class A Common, Class
B
24
Common and Class C Common, each voting or consenting as a separate
class.
Section 2. Distributions. Until the earlier of the occurrence of a
-------------
Mandatory Conversion Event or the Preference Termination Time,
distributions to the holders of Common Stock shall be made in the following
priority:
(a) All Distributions shall be paid to the holders of Class A
Common (ratably among such holders based upon the number of shares of
Class A Common held by each such holder as of the time of such
Distribution), as a separate class and to the exclusion of holders of
all other Common Stock, until, as a result of such Distributions and
all prior Distributions pursuant to this paragraph 2(a), the Class A
Preferred Per Share Distribution Amount shall have been distributed to
the holders of all outstanding shares Class A Common as of the time of
such Distribution, and no Distribution or any portion thereof shall be
made under paragraph 2(b), 2(c) or 2(d) below until, as a result of
all Distributions pursuant to this paragraph 2(a), the entire Class A
Preferred Per Share Distribution Amount on the outstanding shares of
Class A Common as of the time of such Distribution shall have been
paid in full.
(b) After the Class A Preferred Per Share Distribution Amount
has been distributed pursuant to paragraph 2(a) above, all
Distributions shall be paid to the holders of Class B Common (ratably
among such holders based upon the number of shares of Class B Common
held by each such holder as of the time of such Distribution), as a
separate class and to the exclusion of holders of all other Common
Stock, until, as a result of such Distributions and all prior
Distributions pursuant to this paragraph 2(b), the Class B Preferred
Per Share Distribution Amount shall have been distributed to the
holders of all outstanding shares Class B Common as of the time of
such Distribution, and no Distribution or any portion thereof shall be
made under paragraph 2(c) or 2(d) below until, as a result of all
Distributions pursuant to this paragraph 2(b), the entire Class B
Preferred Per Share Distribution Amount on the outstanding shares of
Class B Common as of the time of such Distribution shall have been
paid in full.
(c) After the required amount of Distributions has been
distributed pursuant to paragraph 2(a) and 2(b) above, all
Distributions shall be paid to the holders of Class C Common (ratably
among such holders based upon the number of shares of Class C Common
held by each such holder as of the time of such Distribution).
(d) After the occurrence of a Mandatory Conversion Event or the
Preference Termination Time, all Distributions shall be paid to the
holders of Class A Common, Class B Common and Class C Common, as a
group ratably among such
25
holders based upon the number of shares of Common Stock held by each
such holder as of the time of such Distribution.
Section 3. Stock Splits and Stock Dividends. The Corporation shall
--------------------------------
not in any manner subdivide (by stock split, stock dividend or otherwise)
or combine (by stock split, stock dividend or otherwise) the outstanding
Common Stock of one class unless the outstanding Common Stock of all the
other classes shall be proportionately subdivided or combined. All such
subdivisions and combinations shall be payable only in Class A Common to
the holders of Class A Common, in Class B Common to the holders of Class B
Common and in Class C Common to the holders of Class C Common or, upon the
occurrence of a Mandatory Conversion Event, in Common Stock to the holders
of Common Stock. In no event shall a stock split or stock dividend
constitute a return of the Class A Preferred Distribution Amount or the
Class B Preferred Distribution Amount.
Section 4. Registration of Transfer. The Corporation shall keep at
------------------------
its principal office (or such other place as the Corporation reasonably
designates) a register for the registration of shares of Common Stock.
Upon the surrender of any certificate representing shares of any class of
Common Stock at such place, the Corporation shall, at the request of the
registered holder of such certificate, execute and deliver a new
certificate or certificates in exchange therefor representing in the
aggregate the number of shares of such class represented by the surrendered
certificate, and the Corporation forthwith shall cancel such surrendered
certificate. Each such new certificate shall be registered in such name
and will represent such number of shares of such class as is requested by
the holder of the surrendered certificate and shall be substantially
identical in form to the surrendered certificate. The issuance of new
certificates shall be made without charge to the holders of the surrendered
certificates for any issuance tax in respect thereof or other cost incurred
by the Corporation in connection with such issuance.
Section 5. Replacement. Upon receipt of evidence reasonably
-----------
satisfactory to the Corporation (an affidavit of the registered holder will
be satisfactory) of the ownership and the loss, theft, destruction or
mutilation of any certificate evidencing one or more shares of any class of
Common Stock, and in the case of any such loss, theft or destruction, upon
receipt of indemnity reasonably satisfactory to the Corporation (provided
that if the holder is a financial institution or other institutional
investor its own agreement will be satisfactory), or, in the case of any
such mutilation upon surrender of such certificate, the Corporation shall
(at its expense) execute and deliver in lieu of such certificate a new
certificate of like kind representing the number of shares of such class
represented by such lost, stolen, destroyed or mutilated certificate and
dated the date of such lost, stolen, destroyed or mutilated certificate.
26
Section 6. Notices. All notices referred to herein shall be in
-------
writing, shall be delivered personally or by first class mail, postage
prepaid, and shall be deemed to have been given when so delivered or mailed
to the Corporation at its principal executive offices and to any
stockholder at such holder's address as it appears in the stock records of
the Corporation (unless otherwise specified in a written notice to the
Corporation by such holder).
Section 7. Mandatory Conversion Event. Upon the occurrence of a
--------------------------
Mandatory Conversion Event, all shares of Common Stock then outstanding
shall, by virtue of, and simultaneously with, the occurrence of the
Mandatory Conversion Event, and without any action on the part of the
holders thereof, be deemed automatically converted into that number of
fully paid and non-assessable shares of a single class of Common Stock,
each of which shares shall be entitled to one vote per share on all matters
to be voted on by the Corporation's stockholders. After the occurrence of
a Mandatory Conversion Event, all Distributions shall be paid to the
holders of Common Stock ratably among such holders based upon the number of
shares of Common Stock held by each such holder as of the time of such
Distribution.
Section 8. Definitions
-----------
"Class A Preferred Per Share Distribution Amount" means $100 per share
-----------------------------------------------
of Class A Common. The Class A Preferred Per Share Distribution Amount
shall be adjusted equitably in the event of a subdivision (by stock split,
stock dividend or otherwise) or combination (by stock split, stock dividend
or otherwise) of the outstanding Common Stock.
"Class B Preferred Distribution Amount" means $100 per share of Class
-------------------------------------
B Common. The Class B Preferred Per Share Distribution Amount shall be
adjusted equitably in the event of a subdivision (by stock split, stock
dividend or otherwise) or combination (by stock split, stock dividend or
otherwise) of the outstanding Common Stock.
"Conversion Event" means any of the following: (i) the death,
----------------
disability or incapacity of Roberto Buaron, (ii) Roberto Buaron's failure
to control, directly or indirectly, Atlantic Equity Partners International
II, L.P. ("International") or (iii) (A) the percentage determined by
dividing (1) the sum of (x) the aggregate number of shares of Common Stock
held, beneficially and of record with full power to vote, directly or
indirectly, by International and its Related Persons of the type described
in clause (i)(x) of the definition thereof which are Holders (as defined in
-------------
the Stockholders Agreement) and (y) all other shares of Common Stock which
Roberto Buaron has the power to vote, directly or indirectly, by way of
voting agreement, proxy or otherwise for the election of directors to the
Board of Directors by (2) the number of shares of Common Stock then
--
outstanding on a fully diluted basis (determined as though there were only
a single class of Common Stock) shall at any time be less than (B)
---------
27
two-thirds of the percentage determined by dividing (1) the number of
shares of Common Stock so held by International immediately following the
Closing Date (as defined in the Stock Purchase Agreement) by (2) the number
--
of shares of Common Stock outstanding on a fully diluted basis (determined
as though there were only a single class of Common Stock) immediately
following the Closing Date.
"Distribution" means each distribution made by the Corporation to
------------
holders of any Common Stock of the Corporation, whether in cash, property,
or securities of the Corporation and whether by dividend, liquidating
distribution, redemption, repurchase or otherwise; provided that none of
the following shall be a Distribution: (i) any recapitalization or exchange
of any shares of Common Stock, (ii) any subdivision (by stock split, stock
dividend or otherwise) or any combination (by stock split, stock dividend
or otherwise) of any outstanding shares of Common Stock (iii) any
distribution paid as a result of the repurchase of any capital stock held
by an employee in connection with such employee's employment by the
Corporation or any of its Subsidiaries (as defined in the Stock Purchase
Agreement) or (iv) any distribution paid to an SBIC Holder (as defined in
the Stock Purchase Agreement) in connection with a Regulatory Violation (as
defined in the Stock Purchase Agreement).
"Mandatory Conversion Event" means the consummation of the initial
--------------------------
public offering of shares of Common Stock of the Corporation which results
in (i) a gross selling price per share of Common Stock (subject to
adjustment for stock splits, dividends, subdivisions, combinations,
reclassifications, etc.) equal to at least $250 and (ii) aggregate gross
proceeds to the Corporation of not less than $50,000,000.
"Person" means any individual, corporation, general or limited
------
partnership, joint venture, association, limited liability company, joint
stock company, trust, business trust, bank, trust company, estate
(including any beneficiaries thereof), unincorporated organization,
cooperative, association or governmental branch, authority, agency or
political subdivision thereof.
"Preference Termination Time" means the time at which the aggregate of
---------------------------
all Distributions paid to the holders of the then outstanding shares of
Common Stock is equal to $100 per share (the "Distribution Threshold").
The Distribution Threshold shall be adjusted equitably in the event of a
stock dividend, stock split, reverse stock split, combination of shares or
other similar event. In the event that a Distribution is in an amount that
is greater than that required to equal the Distribution Threshold, the
Distribution shall be deemed to be two Distributions, the first equal to
the amount required to reach the Distribution Threshold and the second
equal to the balance, and the Preference Termination Time shall be deemed
to occur upon the payment of the first deemed Distribution but prior to the
second deemed Distribution.
28
"Related Person" means, (i) any Person that is controlled by Roberto
--------------
Buaron or (ii) any partner, shareholder or similar equity holder of
International or such Person described in clause (i) above that receives
Securities (as defined in the Stockholders Agreement) from International or
such Person in connection with a wind-up, liquidation or similar
distribution of or by International or such Person. For purpose of this
Restated Certificate of Incorporation, "control" and its derivatives shall
mean, with respect to any Person, the power to direct and control the
management or policies of such Person, whether through the beneficial
ownership of voting securities or other evidence of equity ownership, by
contract or agreement or otherwise.
"Stockholders Agreement" means the Stockholders Agreement, dated June
----------------------
18, 1996, among the Corporation, International, Chase Venture Capital
Associates, L.P. ("CVCA"), certain other institutional holders, certain
members of management of the Corporation and CVCA and The Northwestern
Mutual Life Insurance Company as holders of Series A Preferred Stock with
respect to certain provisions thereof, as amended from time to time
pursuant to its terms.
"Stock Purchase Agreement" means the Stock Purchase and
------------------------
Recapitalization Agreement, dated as of June 12, 1996, as amended or
otherwise modified from time to time, among the Corporation, International,
and the other parties thereto.
ARTICLE FIFTH
The Restated Certificate of Incorporation of the Corporation shall
constitute a restatement of, and shall supersede the Certificate of
Incorporation of the Corporation, filed on December 11, 1990, as amended by
the Amended and Restated Certificate of Incorporation filed on April 19,
1994, further amended by the Certificate of Amendment to the Amended and
Restated Certificate of Incorporation filed May 5, 1995 and further amended
by the Certificate of Amendment filed June 14, 1996.
ARTICLE SIXTH
Subject to limitations prescribed by the provisions of Part B, the
number of directors of the Corporation shall be such as from time to time
shall be fixed in the manner provided in the By-laws of the Corporation.
The election of directors of the Corporation need not be by ballot unless
the By-laws so require.
ARTICLE SEVENTH
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 (i) for any breach of the director's
duty of loyalty to the Corporation or its
29
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section
174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived any improper personal benefit. If the
Delaware General Corporation Law is amended after the date of incorporation
of the Corporation to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such
repeal or modification.
ARTICLE EIGHTH
Except as otherwise limited herein (including Part B of Article
Fourth), for the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and
regulation of the powers of the Corporation and of its directors and
stockholders, it is further provided:
(a) In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware, the Board of Directors is
expressly authorized and empowered:
(i) to make, alter, amend or repeal the By-laws in any
manner not inconsistent with the laws of the State of Delaware or
this Certificate of Incorporation;
(ii) to determine whether any, and if any, what part, of
the net profits of the Corporation or of its surplus shall be
declared in dividends and paid to the stockholders, and to direct
and determine the use and disposition of any such net profits or
such surplus; and
(iii) to fix from time to time the amount of net profits of
the Corporation or of its surplus to be reserved as working
capital or for any other lawful purpose.
In addition to the powers and authorities herein or by statute
expressly conferred upon it, the Board of Directors may exercise all
such powers and do all such acts and things as may be exercised or
done by the Corporation, subject, nevertheless, to the provisions of
the laws of the State of Delaware, of this Certificate of
Incorporation and of the By-laws of the Corporation.
30
(b) Any director or any officer elected or appointed by the
stockholders or by the Board of Directors may be removed at any time
in such manner as shall be provided in the By-laws of the Corporation.
(c) From time to time any of the provisions of this Certificate
of Incorporation may be altered, amended or repealed, and other
provisions authorized by the laws of the State of Delaware at the time
in force may be added or inserted, in the manner and at the time
prescribed by said laws, and all rights at any time conferred upon the
stockholders of the Corporation by this Certificate of Incorporation
are granted subject to the provisions of this paragraph (c).
ARTICLE NINTH
Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them, or between the
Corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the application
in a summary way of the Corporation or of any creditor or stockholder
thereof or on the application of any receiver or receivers appointed for
the Corporation under the provisions of Section 291 of Title 8 of the
Delaware Code, or on the application of trustees in dissolution or of any
receiver or receivers appointed for the Corporation under the provisions of
Section 279 of Title 8 of the Delaware Code, order a meeting of the
creditors or class of creditors, or of the stockholders or class of
stockholders of the Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, or of the
stockholders or class of stockholders of the Corporation, as the case may
be, agree on any compromise or arrangement and to any reorganization of the
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned
by the court to which the said application has been made, be binding on all
the creditors or class of creditors, or on all the stockholders or class of
stockholders, of the Corporation, as the case may be, and also on the
Corporation.
31
IN WITNESS WHEREOF, BPC HOLDING CORPORATION has caused this Restated
Certificate of Incorporation to be signed by its Chairman, and attested by
its Vice President, this 18th day of June, 1996.
BPC HOLDING CORPORATION
By: /s/ Roberto Buaron
----------------------------
Name: Roberto Buaron
Title: Chairman
ATTEST:
By: /s/ Joseph S. Levy
---------------------------
Name: Joseph S. Levy
Title: Vice President
32