Exhibit 3.8
CERTIFICATE OF CHANGE
OF
DREXEL HERITAGE FURNISHINGS INC.
UNDER SECTION 805-A OF THE BUSINESS CORPORATION LAW
WE , THE UNDERSIGNED, Wayne B. Lyon and Gerald Bright being respectively
the Vice President and the Secretary of DREXEL HERITAGE FURNISHINGS INC. hereby
certify:
1. The name of the corporation is DREXEL HERITAGE FURNISHINGS INC. It was
incorporated under the name D & D EQUIPMENT CO., INC.
2 The Certificate of Incorporation of said corporation was filed by the
Department of State on September 29, 1961.
3. The following authorized by the Board of Directors:
To designate C T CORPORATION SYSTEM, 1633 Broadway, New York, NY 10019 as
its registered agent in New York upon whom all process against the corporation
may be served.
IN WITNESS WHEREOF, we have signed this certificate on the 14th day of
September, 1988 and we affirm the statements contained therein as true under
penalties of perjury.
/s/ Wayne B. Lyon
-----------------------------------------
Wayne B. Lyon Vice President
/s/ Gerald Bright
-----------------------------------------
Gerald Bright Secretary
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
DREXEL HERITAGE FURNISHINGS INC.
UNDER SECTION 805 0F THE BUSINESS CORPORATION LAW
WE THE UNDERSIGNED, Frederick L. Copeland and Donald B. Biggerstaff,
being, respectively, the President and the Secretary of Drexel Heritage
Furnishings Inc. (the "Corporation"), hereby certify:
1. The name of the Corporation is Drexel Heritage Furnishings Inc., and
the name under which the Corporation was formed is D & D Equipment Co., Inc.
2. The Certificate of Incorporation was filed by the Department of State
on the 29th day of September, 1961 and a Restated Certificate of Incorporation
was filed by the Department of State on the 9th day of August, 1977.
3. The Certificate of Incorporation, as heretofore amended, is hereby
further amended:
(a) to change the number of authorized shares which the Corporation shall
have authority to issue 38,000, by eliminating the Senior Cumulative Preferred
Stock, par value $100 per share, none of which is presently outstanding, and
authorizing a new class of 28,000 shares of Preferred Stock, par value $1,000
per share; and
(b) to change the location of the office of the Corporation.
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4. To effect the foregoing, Article THIRD of said Certificate of
Incorporation, which provides for an authorized capitalization of 40,000 shares
of capital stock divided into 30,000 shares of preferred stock, of which 22,683
shares have been issued and reacquired by the Corporation (and, pursuant to the
Certificate of Incorporation, cancelled and not to be reissued) and 10,000
shares of common stock, is stricken in its entirety, and there is substituted in
lieu thereof a new Article THIRD reading as follows:
THIRD: The aggregate number of shares which the Corporation shall have
authority to issue is 38,000 divided into 28,000 shares of preferred stock of
the par value of $1,000 per share and 10,000 shares of common stock of the par
value of $0.10 per share. All of such shares shall be issued as full-paid and
non-assessable shares, and the holders thereof shall not be liable for any
further payments in respect thereto.
A statement of the designations, preferences, privileges and voting powers
of the shares of each class and the restrictions and qualifications thereof
shall be as follows:
(a) Preferred Stock
1. Designation and Number of Shares. The class of preferred stock provided
for herein is designated as "Preferred Stock" and shall have a par value of
$1,000 per share. The number of shares which shall constitute preferred stock is
28,000. Shares of Preferred Stock which have been issued and reacquired by the
Corporation, through redemption, purchase or otherwise, shall be cancelled and
shall not be reissued.
2. Redemption. (a) The Corporation, by resolution of its Board of
Directors, may redeem out of funds legally available therefor, in whole at any
time or in part from time to time, shares of Preferred Stock by paying in cash
an amount equal to $1,000 for each share being
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redeemed. Notice of any such redemption shall be given by first class registered
or certified mail, postage prepaid, return receipt requested, to each holder of
record of shares of Preferred Stock at the last address of such holder appearing
on the books of the Corporation not less than 10 days nor more than 50 days
prior to the date fixed for such redemption. The notice of redemption shall
specify the number of shares to be redeemed, the date fixed for redemption, the
redemption price per share, and where payment of the redemption price is to be
made upon surrender of the certificates representing such shares. The giving of
such notice shall obligate the Corporation to redeem the shares to which the
notice relates on the date specified therein as the date fixed for redemption.
(b) In the case of a redemption of less than all shares of Preferred Stock
then outstanding, the number of shares to be redeemed shall be allocated among
all holders thereof at the time such redemption becomes effective, on the basis
of the number of such shares held by each such holder, so that, as nearly as may
be practicable, the number of such holder's shares being redeemed (which number
shall be a whole number) represents the same proportion of such holder's total
holdings of Preferred Stock as the aggregate number of shares being redeemed
represents of the total number of shares of Preferred Stock at the time
outstanding. In connection with any redemption of shares of Preferred Stock, the
redemption payment shall be payable only upon surrender of the certificates for
the shares to be redeemed; and if less than all of the shares represented by a
surrendered certificate are to be redeemed, the Corporation will forthwith issue
one or more certificates evidencing the shares which shall not have been so
redeemed.
3. Liquidation. The shares of Preferred Stock shall be preferred over the
shares of all other classes or series of the Corporation. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, the holders of shares of Preferred Stock shall be entitled to
receive out of the assets of the Corporation available for distribution to its
shareholders, whether from capital, surplus or earnings of any nature, an amount
equal to $1,000 per share before any payment shall be made or any assets
distributed to the holders of any shares of any other class or series of the
Corporation.
4.. Voting. Except as otherwise expressly provided by law, the holders of
shares of Preferred Stock shall have no voting rights.
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5. Dividends. If any shares of Preferred Stock are outstanding on any date
that a dividend is declared on the Common Stock, a dividend in the same amount
per share shall at the same time(s) be declared and paid on such shares of
Preferred Stock.
6. Restrictions Applicable to Common Stock. If and so long as any shares
of Preferred Stock are outstanding, no shares of Common Stock may be purchased
by the Corporation except with the prior written consent of the holders of a
majority of the shares of outstanding Preferred Stock; provided, however, the
Corporation may reacquire an aggregate of 900 shares of Common Stock pursuant to
those certain Stock Purchase and Redemption Agreements dated June 10, 1986;
(b) Common Stock
1. Issuance. From time to time common stock (hereinafter the "Common
Stock") may be issued in such amounts and for such purposes as shall be
determined by the Board of Directors.
2. Dividends. Subject to all of the rights of the Preferred Stock, such
dividends as may be determined by the Board of Directors may be declared and
paid on the Common Stock from time to time out of the surplus of the Corporation
legally available for the payment of dividends.
3. Voting Rights. Except as otherwise expressly provided with respect to
the Preferred Stock, the Common Stock shall have the exclusive right to vote for
the election of directors and for all other purposes, each holder of the Common
Stock being entitled to one vote for each share thereof held.
4. Liquidation. Upon any liquidation, dissolution of winding up of the
Corporation, whether voluntary or involuntary, and after the holders of the
Preferred Stock shall have been paid in full the amounts to which they shall be
entitled, or an amount sufficient to pay the aggregate amount to which the
holders of the Preferred Stock shall be entitled shall have been deposited with
a bank or trust company having its principal office in the Borough of Manhattan,
the City of New York, and having a capital, surplus and undivided profits of at
least twenty-five million dollars ($25,000,000) as a trust fund for the benefit
of holders of such Preferred Stock, the remaining net assets of the Corporation
shall be distributed pro rata to the holders of the Common Stock in accordance
with their respective rights and interests, to the exclusion of the holders of
the Preferred Stock.
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(c) General Provisions
1. A consolidation or merger of the Corporation with or into another
corporation or corporations or a sale, whether for cash, shares of stock,
securities or properties, of all or substantially all of the assets of the
Corporation shall not be deemed or construed to be a liquidation, dissolution or
winding up of the Corporation.
2. No stockholder of the Corporation shall be entitled, as such, as a
matter of right, to subscribe for or purchase any part of any new or additional
issue of stock of any class or series whatsoever, any rights or options to
purchase stock of any class or series whatsoever, or any securities convertible
into any stock of any class or series whatsoever, whether or not hereafter
authorized, and whether issued for cash or other consideration, or by way of
dividend.
3. The Board of Directors may from time to time issue scrip in lieu of
fractional shares of stock. Such scrip shall not confer upon the holder any
right to the Corporation, but the Corporation shall from time to time, within
such time as the Board of Directors may determine or without limit of time if
the Board of Directors so determines, issue one or more whole shares of stock
upon the surrender of scrip for fractional shares aggregating the number of
whole shares issuable in respect of the scrip so surrendered, provided that the
scrip so surrendered shall be properly endorsed for transfer if in registered
form.
5. To effect further the foregoing, Article FIFTH is hereby amended to
read in its entirety as follows:
FIFTH: The office of the Corporation shall be located in the County and
State of New York, and the address to which the Secretary of State shall mail a
copy of process in any action or proceeding against the Corporation which may be
served upon him is Drexel Heritage Furnishings Inc., Drexel, North Carolina
28619, Attention: President.
6. The Amendment of the Certificate of Incorporation was authorized,
pursuant to Section 615 of the New York Business Corporation Law, by a vote of
the Board of Directors, followed by Unanimous Written
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Consent setting forth the action taken, signed by the holders of all outstanding
shares entitled to vote thereon.
IN WITNESS WHEREOF, we have signed this certificate on the 10th day of
June, 1986 and we affirm the statements contained therein as true under
penalties of perjury.
/s/ Frederick L. Copeland
----------------------------
Frederick L. Copeland
President
/s/ Donald B. Biggerstaff
----------------------------
Donald B. Biggerstaff
Secretary
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
DREXEL HERITAGE FURNISHINGS INC.
Under Section 805 of the Business Corporation Law
-----------------------------------
WE, the undersigned, Howard H. Haworth and Donald B. Biggerstaff, being
respectively the President and Secretary of Drexel Heritage Furnishings Inc.
(the "Corporation"), hereby certify:
1. The name of the Corporation is DREXEL HERITAGE FURNISHINGS INC.
It was formed under the name D & D EQUIPMENT CO., INC.
2. The Certificate of Incorporation of the Corporation was filed by
the Department of State on September 29, 1961.
3. The Certificate of Incorporation is amended to modify the
statement of the designations, preferences, privileges and voting powers
of the Senior Cumulative Preferred Stock, and the restrictions and
qualifications thereof, set forth in Article THIRD in the following
respects:
(a) Section 2(b) is deleted, so that Section 2 shall read in
its entirety as follows:
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"2. Dividends. Subject to section 8(b) hereof, holders of
shares of Senior Preferred Stock shall be entitled to receive, out
of any funds of the Corporation at the time legally available for
the declaration of dividends, cash dividends at the rate of $70 per
share per annum. Dividends on the share of Senior Preferred Stock
shall accrue cumulatively from day to day from and after the date of
original issuance of any shares of Senior Preferred Stock, whether
or not earned or declared and whether or not there shall be net
income or surplus available for the payment of dividends. Dividends
accrued through the end of each fiscal year ended September 30th
shall be payable annually on the next succeeding 31st day of each
January, commending January 31, 1978. Dividends shall be paid to the
holders of record of Senior Preferred Stock at the close of business
on the business day next preceding the date of payment."
(b) The reference in section 5 to section 2(b) is deleted so that
section 5 shall read in its entirety as follows:
"5. Voting. Except as otherwise expressly provided by law and
except as provided in sections 6 or 8 hereof, the holders of shares
of the Senior Preferred Stock shall have no voting rights."
(c) Section 6(v) is amended to read in its entirety as follows:
"(v) enter into any agreement or create any obligation, other
than the agreements entered into on the date of original issuance of
the shares of Senior Preferred Stock, that would result, as the
consequence of any contractual provisions thereby imposed upon the
Corporation, in the impairment of the dividend, redemption,
liquidation or any other rights of the holders of Senior Preferred
Stock;"
(d) Section 7 is deleted and sections 8 and 9 are renumbered
sections 7 and 8, respectively, and all references to such sections
elsewhere in this Certificate are so renumbered.
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4. The above amendments to the Certificate of Incorporation were
authorized (a) by the vote of the holders of a majority of all outstanding
shares entitled to vote thereon and (b) by the vote of the holders of at
least 66-2/3% of the shares of Senior Cumulative Preferred Stock at the
time outstanding pursuant to a provision contained in the Certificate of
Incorporation.
5. The Corporation has reacquired 16,291 shares of Senior Preferred
Stock through redemption and purchase. In accordance with Article THIRD
(a) 1, these reacquired shares have been cancelled and shall not be
reissued. Additionally, the number of shares of Senior Preferred Stock
authorized is reduced from 30,000 shares to 13,709 shares as approved by
the Board of Directors.
IN WITNESS WHEREOF, WE have subscribed this Certificate and affirm this
Certificate as true under the penalties of perjury, on this 30th day of July,
1982.
/s/ Howard H. Haworth
-----------------------------------------
Howard H. Haworth, President
/s/ Donald B. Biggerstaff
-----------------------------------------
Donald B. Biggerstaff, Secretary
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CERTIFICATE OF AMENDMENT
OF THE
RESTATED CERTIFICATE OF INCORPORATION
OF
DREXEL HERITAGE FURNISHINGS INC.
--------------------
Under Section 805 of the Business Corporation Law
---------------------
Pursuant to the provisions of Section 805 of the Business Corporation Law,
the undersigned hereby certify:
FIRST: The name of the Corporation is
DREXEL HERITAGE FURNISHINGS INC.
SECOND: That the Certificate of Incorporation of D & D EQUIPMENT CO., INC.
was filed by the Secretary of State of New York on September 29, 1961. That the
Restated Certificate of Incorporation of the Corporation was filed by the
Secretary of State of New York on the 10th day of August, 1977, and the name was
change to DREXEL HERITAGE FURNISHINGS INC.
THIRD: The Restated Certificate of Incorporation is hereby amended (i) to
exempt 1,000 shares of Senior Cumulative Preferred Stock of the Corporation to
be sold by Champion International Corporation to Dominick International
Corporation from the restrictions applicable to any shares of Senior Cumulative
Preferred Stock held by Dominick International Corporation or any of its
subsidiaries or affiliates if and for so long as any shares of senior Cumulative
Preferred Stock are hold by Champion International Corporation and (ii) to
change the location of the office of the Corporation in the City, County and
State of New York.
FOURTH: Article THIRD (a) of the Restated Certificate of Incorporation
which sets forth the designations, preferences, privileges and voting powers of
the Preferred Stock and the
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restrictions and qualifications thereon is hereby amended by inserting at the
end of Section 7(a) thereof the following sentence:
"The foregoing provisions shall not apply to the first 1,000 shares of
Senior Cumulative Preferred Stock sold by Champion International
Corporation to Dominick International Corporation on or after the date of
this certificate."
FIFTH: Article FIFTH of the Restated Certificate of Incorporation which
sets forth the office of the Corporation and the address to which the Secretary
of State shall mail a copy of process served upon him is hereby amended to read
as follows:
"FIFTH: The office of the Corporation shall be located in the City, County
and State of New York, at 90 Broad Street, 10th Floor, New York, New York
10004, and the address to which the Secretary of State shall mail a copy
of process in any action or proceeding against the Corporation which may
be served upon him is Drexel Heritage Furnishings Inc., Drexel, North
Carolina 28619, Attention: President."
SIXTH: The foregoing Amendments of the Restated Certificate of
Incorporation were authorized by the affirmative vote of a majority of the
outstanding shares of Common Stock of the Corporation.
SEVENTH: The amendment of Article THIRD of the Restated Certificate of
Incorporation as set forth above as authorized by the affirmative vote of the
holders of at least 66-2/3% for the outstanding shares of Senior Cumulative
Preferred Stock of the Corporation.
IN WITNESS WHEREOF, we, the undersigned, subscribe this Certificate and
affirm that the statements made herein are true under the penalties of perjury,
this the 10th day of May, 1979.
/s/ Howard H. Haworth
--------------------------------------
Howard H. Haworth, President of
Drexel Heritage Furnishings Inc.,
Drexel, North Carolina 28619
/s/ W. Paul Monroe
--------------------------------------
Prepared and submitted by: W. Paul Monroe, Secretary
BYRD, BYRD, ERVIN, BLANTON Drexel Heritage Furnishings Inc.,
& WHISNANT, P.A. Drexel, North Carolina 28619
BY /s/ Robert B. Byrd
- --------------------------------------
Robert B. Byrd
P.O. Drawer 1269
Morganton, North Carolina 28655
Counsel for Drexel Heritage Furnishings Inc.
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RELATED CERTIFICATE OF INCORPORATION
OF
D & D EQUIPMENT CO., INC.
UNDER SECTION 807 OF THE BUSINESS CORPORATION LAW
WE THE UNDERSIGNED, Peter M. Kennedy and Robert C. Harrison, being
respectively the Chairman of the Board and the Secretary of D & D Equipment Co.,
Inc., (The "Corporation") hereby certify:
1. The name of the Corporation is D & D Equipment Co., Inc., and the name
under which the Corporation was formed is D & D Equipment Co., Inc.
2. The certificate of incorporation of the Corporation was filed by the
Department of State on the 29th day of September, 1961.
3. The certificate of incorporation is amended:
(a) to change the name of the Corporation;
(b) to increase the number of authorized shares which the
Corporation shall have authorized to issue to 40,000;
(c) to change the designation of the present Class B Stock (of which
150 shares are issued and outstanding and 850 shares are authorized but
unissued) to Common Stock;
(d) to decrease the par value of the newly designated Common Stock
from $10 per share to $0.10 per share;
(e) to decrease the authorized number of shares of the newly
designated Common Stock from 1,000 to 10,000 (of which 9,250 shares will
automatically be issued and outstanding, in lieu of the 150 shares
presently issued and outstanding, upon filing of this certificate by the
Department of State and 750 will be authorized but unissued);
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(f) to change the rights of the holders of stock with general voting
rights;
(g) to authorize a class of 30,000 shares of Senior Cumulative
Preferred Stock, $100 par value per share;
(h) to change the location of the office of the Corporation;
(i) to change the post office address to which the Secretary of
State shall mail a copy of any process against the Corporation served upon
him; and
(j) to amend the purposes and powers of the Corporation;
thereby amending Articles First, Second, Third and Fourth of the
certificate of incorporation.
4. The text of the certificate of incorporation, as amended heretofore, is
hereby restated as further amended and changed to read as herein set forth in
full:
FIRST: The name of the Corporation is:
DREXEL HERITAGE FURNISHINGS, INC.
SECOND: The purposes for which it is to be formed are to do any and all of
the things hereafter set forth to the same extent as natural persons might or
could do in any part of the world, namely:
To design, manufacture, construct, install, repair, remodel,
recondition, service, buy or otherwise acquire, sell, re-sell, license
upon a royalty basis, lease, or otherwise dispose of, import, export,
exchange, obtain licenses for, act as distributors for, trade and deal in,
as contractor, sub-contractor, principal, agent, commission merchant,
broker, factor, or any combination of the foregoing, at wholesale or
retail or both, any and all kinds of casegoods, tables, chairs, cabinets,
beds, sofas, seats, dressers, chests of drawers, mirrors, servers,
occasional pieces, desks, bookcases, shelving,
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frames, pulpits, pews, altars, kneelers, chancel furniture and furniture
of any type whatsoever and all parts, dowels, fabrics, webbing,
appurtenances, appliances, equipment and supplies useful or necessary in
connection with the same.
To purchase, sell and generally to trade and deal in and with goods,
wares, products and merchandise of every kind, nature and description; and
to engage and participate in any mercantile, manufacturing or trading
business of any kind or character whatsoever; in each case to such extent
as a corporation organized under the Business Corporation Law of the State
of New York may now or hereafter lawfully do.
To acquire by purchase, exchange, or otherwise, all, or any part of,
or any interest in, the properties, assets, business and good-will of any
one or more corporations, associations, partnerships, firms, syndicates or
individuals, engaged in any business which this corporation is authorized
to carry on; to pay for the same in cash, property or its own or other
securities; to hold, operate, reorganize, liquidate, mortgage, pledge,
sell, exchange, or in any manner dispose of the whole or any part thereof;
and, in connection therewith, to assume or guarantee performance of any
liabilities, obligations or contracts of corporations, associations,
partnerships, firms, syndicates or individuals, and to conduct in any
lawful manner the whole or any part of any business thus acquired.
To purchase, lease or otherwise acquire and to hold, own, maintain,
manage, improve, rent, sell or otherwise dispose of real and personal
property of all kinds and in particular lands, building, shares of stock,
mortgages, bonds, debentures and other securities, merchandise, book-debts
and claims and any interest in real or personal property.
To adopt, apply for, obtain, register, purchase, lease or otherwise
acquire and to maintain, protect, hold, use, own, exercise, develop,
manufacture under, operate and introduce, and to
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sell and grant licenses or other rights in respect of, assign or otherwise
dispose of, turn to account, or in any manner deal with and contract with
reference to any trademarks, trade names, patents, patent rights,
concessions, franchises, designs, copyrights and distinctive marks and
rights analogous thereto, and inventions, devices, improvements,
processes, recipes, formulas and the like, including such thereof as may
be covered by, used in connection with, or secured or received under,
Letters Patent of the United States of America or elsewhere or otherwise,
and any licenses in respect thereof and any or all rights connected
therewith or appertaining thereto.
To borrow money for its corporate purposes, and to make, accept,
endorse, execute and issue promissory notes, bills of exchange, bonds,
debentures or other obligations from time to time for the purchase of
property, or for any purpose relating to the business of the company, and,
if deemed proper, to secure the payment of any such obligations by
mortgage, pledge, deed of trust or otherwise.
To lend its uninvested funds from time to time to such extent, on
such terms and on such security, if any, as the Board of Directors of the
corporation may determine.
To sell, improve, manage, develop, lease, mortgage, dispose of or
otherwise turn to account or deal with, all or any part of the property of
the corporation.
To conduct its business in all or any of its branches, so far as
permitted by law, in the State of New York and in other states of the
United States of America, and in the territories and the District of
Columbia, and in any or all dependencies, colonies or possessions of the
United States of America, and in foreign countries; and for and in
connection with such business, to hold, possess, purchase, lease, mortgage
and convey real and personal property and to maintain offices and agencies
either within or without the State of New York.
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To carry out all or any part of the foregoing objects as principal,
factor, agent, broker, contractor or otherwise, either alone or in
conjunction with any persons, firms, associations, corporations or others
in any part of the world; and in carrying on its business and for the
purpose of attaining or furthering any of its objects, to make and perform
contracts of any kind and description, and to do anything and everything
necessary, suitable, convenient or proper for the accomplishment of any of
the purposes or the attainment of any one or more of the objects herein
enumerated or incidental to the powers herein specified, or which shall at
any time appear conducive to or expedient for the accomplishment of any of
the purposes or the attainment of any of the objects hereinbefore
enumerated.
Nothing herein contained shall be deemed to limit or exclude any
power, right or privilege given to the Corporation by law, or shall be
construed to give the corporation any right, power or privilege not
permitted by the laws of the State of New York to corporations organized
under the Business Corporation Law of the State of New York.
The foregoing clauses in this Article shall be construed as stating
both purposes and powers.
It is the intention that the purposes and powers specified in said clauses
shall be in no wise limited or restricted by reference to or inference
from the terms of any other clause of this or any other Article in this
certificate, but that the purposes and powers specified in each of the
clauses of this Article shall be rewarded as independent and cumulative
purposes and powers.
THIRD: The aggregate number of shares which the Corporation shall have
authority to issue is 40,000 divided into 30,000 shares of preferred stock of
the par value of $100 per share, and 10,000 shares of common stock of the par
value of $0.10 per share. All of such shares shall be issued as full-paid and
non-assessable shares, and the holders thereof shall not be liable for any
further payments in respect thereto.
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A statement of the designation, preferences, privileges and voting powers
of the shares of each class and the restrictions and qualifications thereof
shall be as follows:
(a) Preferred Stock
1. Designation and Number of Shares. The class of preferred stock provided
for herein is designated as "Senior Cumulative Preferred Stock" and shall have a
par value of $100 per share (hereinafter called "Senior Preferred Stock"). The
number of shares which shall constitute Senior Preferred Stock is 30,000. The
number of shares of Senior Preferred Stock from time to time authorized shall
not be increased, but may be decreased by the Board of Directors to a number not
less than the number of such shares then outstanding. Shares of Senior Preferred
Stock which have been issued and reacquired by the Corporation, through
redemption, purchase or otherwise, shall be cancelled and shall not be reissued.
2. Dividends. (a) Subject to section 8(b) hereof, holders of shares of
Senior Preferred Stock shall be entitled to receive, out of any funds of the
Corporation at the time legally available for the declaration of dividends, cash
dividends at the rate of $70 per share per annum. Dividends on the shares of
Senior Preferred Stock shall accrue cumulatively from day to day from and after
the date of original issuance of any shares of Senior Preferred Stock, whether
or not earned or declared and whether or not there shall be net income or
surplus available for the payment of dividends. Dividends accrued through the
end of each fiscal year ended September 30 shall be payable annually on the next
succeeding 31st day of each January, commencing January 31, 1978. Dividends
shall be paid to the holders of record of Senior Preferred Stock at the close of
business on the business day next preceding the date of payment.
(b) As long as any shares of Senior Preferred Stock are outstanding, no
distribution, whether by dividend or otherwise, shall be declared or paid upon,
or set apart for, any other shares of capital stock of the Corporation nor shall
any shares of capital stock (or warrants, options
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or rights to acquire any shares of capital stock) be redeemed, purchased or
acquired (other than Senior Preferred Stock and other than pursuant to the
Deferred Compensation Plan, existing on the date of original issuance of any
shares of Senior Preferred Stock) without the prior affirmative vote or the
prior written consent of the holders of at least 66-2/3% of the shares of Senior
Preferred Stock at the time outstanding.
3. Redemption. (a) The Corporation, by resolution of its Board of
Directors, may redeem out of funds legally available therefor, in whole at any
time or in part from time to time, shares of Senior Preferred Stock by paying in
cash an amount equal to $1,000 for each share being redeemed together with all
cumulative dividends unpaid and accrued as provided in section 2 hereof on each
share being redeemed through the date fixed for redemption (hereinafter the
"Redemption Price Per Share"). Notice of any such redemption shall be given by
first class registered or certified mail, postage prepaid, return receipt
requested, to each holder of record of shares of Senior Preferred Stock at the
last address of such holder, appearing on the books of the Corporation not less
than 10 days nor more than 50 days prior to the date fixed for such redemption.
the notice of redemption shall specify the number of shares to be redeemed, the
dated fixed for redemption, the Redemption Price per Share, and where payment of
the redemption price is to be made upon surrender of the certificates
representing such shares. The giving of such notice shall obligate the
Corporation to redeem the shares to which the notice relates on the date
specified therein as the date fixed for redemption.
(b) As long as any shares of Senior Preferred Stock are outstanding, the
Corporation shall establish a sinking fund (hereinafter the "Sinking Fund") for
the redemption of such Senior Preferred Stock. On January 31, 1978, and on
January 31 in each subsequent year as long as any shares of Senior Preferred
Stock are outstanding (each such date being hereinafter called a "Mandatory
Redemption Date"), the Corporation shall redeem, by paying in cash therefor an
amount per share equal to the Redemption Price Per Share, such number of shares
of Senior Preferred stock (rounded down to the largest whole number) as is
determined by dividing (i) the amount allocated to the Sinking Fund (as
determined in the following sentence) by (ii) the Redemption Price Per Share.
Before each Mandatory Redemption Date there shall be allocated to the Sinking
Fund an amount equal
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to Funds Available for Sinking Fund Payments for the immediately preceding
fiscal year.
(c) In the case of a redemption of less than all shares of Senior
Preferred Stock then outstanding, the number of shares to be redeemed shall be
allocated among all holders thereof at the time such redemption becomes
effective, on the basis of the number of such shares held by each such holder,
so that, as nearly as may be practicable, the number of such holder's shares
being redeemed (which number shall be a whole number) represents the same
proportion of such holder's total holdings of Senior Preferred Stock as the
aggregate number of shares being redeemed represents of the total number of
shares of Senior Preferred Stock at the time outstanding. In connection with any
redemption of shares of Senior Preferred Stock, the redemption payment shall be
payable only upon surrender of the certificates for the shares to be redeemed;
and if less than all of the shares represented by a surrendered certificate are
to be redeemed, the Corporation will forthwith issue one or more certificates
evidencing the shares which shall not have been so redeemed.
4. Liquidation. The shares of Senior Preferred Stock shall be preferred
over the shares of capital stock of all other classes or series of the
Corporation. In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of the shares of
Senior Preferred Stock shall be entitled to receive out of the assets of the
Corporation available for distribution to its stockholders, whether from capital
surplus or earnings of any nature, an amount equal to $1,000 per share and, in
addition to such amount, a further amount equal to all cumulative dividends
unpaid and accrued thereon as provided in section 2 hereof through the date of
such distribution, before any payment shall be made or any assets distributed to
the holders of any shares of capital stock of any other class or series of the
Corporation.
5. Voting. Except as otherwise expressly provided by law and except as
provided in sections 2(b), 6 or 8 hereof, the holders of shares of the Senior
Preferred Stock shall have no voting rights.
6. Action Requiring Vote of Senior Preferred Stock. So long as any shares
of Senior Preferred Stock
8
shall be outstanding; the Corporation, without the affirmative vote or written
consent of the holders of at least 66-2/3% of the shares of Senior Preferred
Stock at the time outstanding shall not:
(i) create or authorize any class of capital stock ranking senior to
or on a parity with the Senior Preferred stock as to dividends,
redemptions, distributions in liquidation or any other matter (hereinafter
"Prohibited Stock");
(ii) create, authorize, issue or grant any obligation or security
convertible into, or warrant, option or right to purchase or acquire, any
Prohibited Stock;
(iii) increase the authorized number of shares of Senior Preferred
Stock;
(iv) amend, alter or repeal Article THIRD of the Corporation's
certificate of incorporation or, in any way which adversely affects the
rights of the holders of Senior Preferred Stock, the Certificate of
Incorporation or the By-laws of the Corporation;
(v) enter into any agreement or create any obligation, other than
the agreements entered into on the date of original issuance of the shares
of Senior Preferred Stock, restricting or limiting directly or indirectly,
the dividend, redemption, liquidation or any other rights of the holders
of Senior Preferred Stock;
(vi) take any action, or permit any Subsidiary to take any action,
which would constitute an event of default under any indebtedness for
borrowed money or represented by a note or written instrument of the
Corporation or any Subsidiary.
7. Restrictions Applicable to Certain Shares. (a) If and so long as any
shares of Senior Preferred Stock are held by Champion International Corporation,
no shares of Senior Preferred Stock held by Dominick International Corporation
or any of its subsidiaries or affiliates shall be entitled to any dividends,
redemption payments, payments or
9
distributions upon liquidation, voting rights or any other rights. Each
certificate representing shares of Senior Preferred Stock transferred into the
name of Dominick International Corporation or any of its subsidiaries,
affiliates or nominees shall conspicuously recite the foregoing restriction and,
in addition, shall conspicuously state that the shares represented by such
certificate are subject to such restriction.
(b) In addition to the above, each certificate of every class of stock of
the Corporation shall have noted conspicuously on its front or back the
following legend:
"The certificate of incorporation of the Corporation contains a provision
authorized under section 620(b) of the New York Business Corporation Law."
8. Miscellaneous. (a) Except as otherwise provided, the Corporation shall
give to each holder of shares of Senior Preferred Stock at least ten days
written notice in advance of each annual and each special meeting of the
stockholders of the Corporation irrespective of whether the holders of shares of
Senior Preferred Stock would otherwise be entitled to receive such notice. The
Corporation shall give to each holder of shares of Senior Preferred Stock at
least ten days written notice in advance of the taking of any action without a
meeting pursuant to Section 61 of the New York Business Corporation Law.
(b) No allocation to the Sinking Fund or redemption under section 3(b)
hereof and no declaration or payment of dividends on Senior Preferred Stock
shall be made if at the time of such proposed allocation, redemption,
declaration or payment there shall have occurred and be continuing any event
which gives (or which, after the giving of notice or lapse of time or both,
would give) the holders of the $24,500,000 of 10% Secured Notes due July 15,
1992 of the Corporation, to be issued under those certain Note Purchase
Agreements between the Corporation and several institutional investors, or the
holders of Bank Indebtedness, the right to accelerate the payment of such Notes
prior to their stated maturity; and at no time shall the Corporation make any
such allocation, redemption, declaration or payment unless (i) at the date
thereof there shall be Funds Available for Other Contingent Payments for the
immediately preceding fiscal year, (ii) the amount of such allocation or
redemption does not exceed Funds Available for Sinking Fund Payments for the
immediately preceding fiscal year and the amount of such
10
declaration or payment of dividends does not exceed Funds Available for
Dividends for the immediately preceding fiscal year, and (iii) such allocation,
redemption, declaration or payment is made not less than 100 days nor more than
150 days after the end of the immediately preceding fiscal year.
(c) Pursuant to the authority granted by section 620 of the New York
Business Corporation Law, the Board of Directors is required (i) to declare and
pay the annual dividends on Senior Preferred Stock pursuant to section 2(a)
hereof, and (ii) to make payments in redemption of shares of Senior Preferred
Stock on the Mandatory Redemption Dates pursuant to section 3(b) hereof, in each
case whenever allowed pursuant to the terms of section 8(b) hereof. If for any
reason the Board of Directors fails to declare and pay such dividends and/or to
make payments in redemption of shares of Senior Preferred Stock pursuant to the
above direction, the holders of Senior Preferred Stock shall have the power to
carry out either or both such directions and to take all action necessary and
appropriate in connection therewith.
If the right to declare and pay dividends, and/or to make payment in
redemption of shares, as herein provided, shall accrue to the holders of shares
of Senior Preferred Stock, the Board of Directors or a proper officer of the
Corporation shall, upon the written request of the holders of record of at least
25% of the shares of Senior Preferred Stock then outstanding, addressed and
delivered to the President or Secretary of the Corporation, call a special
meeting of the holders of shares of Senior Preferred Stock and shall notify the
holders of shares of all other classes of such meeting. If such special meeting
shall not be so called within five days after service of such request in the
manner set forth above, then any holder of record of shares of Senior Preferred
Stock then outstanding may call such special meeting, with notice thereof being
given as aforesaid. Any expenses incurred in calling such special meeting and
providing such notice shall be borne by the Corporation. The holders of at least
66-2/3% of the outstanding shares of Senior Preferred Stock shall be entitled to
declare and pay dividends and to make payments in redemption of shares of Senior
Preferred Stock as herein provided, and may take such action at a meeting as
herein provided or without a meeting pursuant to section 615 of the New York
Business Corporation Law.
11
9. Definitions. For the purposes of these provisions, the following
definitions shall obtain:
(a) "Bank Indebtedness" means the principal of and interest on the
indebtedness of the Corporation to be incurred under that certain loan agreement
among the Corporation, the several lending banks which are parties to said
agreement, and Manufacturers Hanover Trust Company, as agent for said banks, as
the same may be duly amended or supplemented from time to time in accordance
with the terms thereof, evidenced by term notes in an aggregate principal amount
not to exceed $15,500,000 payable in 30 consecutive approximately equal
quarterly installments of principal, but does not mean revolving credit notes
which may be issued from time to time thereunder in an aggregate principal
amount not to exceed $3,000,000.
(b) "Consolidated Net Income" for any period means the aggregate of the
Net Income of the Corporation and its Subsidiaries for such period, after
eliminating all intercompany items, all computed in accordance with generally
accepted accounting principles (except that there shall be no deduction or
accrual for any liabilities for deferred compensation permitted pursuant to the
Deferred Compensation Plan or the deferred compensation arrangements with Howard
H. Haworth until the same shall become due and owing), provided that there shall
be excluded therefrom:
(i) the Net Income of any person (other than a Subsidiary) in which
the Corporation or one or more Subsidiaries has an ownership interest
unless such Net Income shall have actually been received by the
Corporation or such Subsidiary in the form of cash dividends or similar
cash distributions.
(ii) the Net Income of any Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such
Subsidiary (A) is at the time not permitted by the terms of any agreement
or instrument or any requirement of law applicable to such Subsidiary or
(B) would result in the imposition of tax liabilities on the Corporation
or any Subsidiary which have not been provided for and deducted in
determining Consolidated Net Income for such period.
12
(iii) the Net Income of any Subsidiary for the period prior to its
acquisition.
(iv) the Net Income of any person (other than a Subsidiary) for the
period prior to the date on which such Person was consolidated with or
merged into the Corporation or any Subsidiary or the date on which
substantially all of the assets of such Person were purchased or otherwise
acquired by the Corporation or any Subsidiary.
(c) "Fiscal Year" means a 12-month period ending on a September 30
following the date of the original issuance of any shares of Senior Preferred
Stock, except that "Fiscal Year 1977" means the period from such date through
September 30, 1977.
(d) "Funds Available for Dividends") for any fiscal year means the lesser
of
(i) all dividends accrued on the Senior Preferred Stock at the rate
specified in section 2 hereof through the end of such fiscal year, whether
or not declared or paid, or
(ii) Funds Available for Other Contingent Payments for such fiscal
year.
(e) "Funds Available for Other Contingent Payments" for any fiscal year
means:
(i) the sum of
(A) the lesser of
(1) the sum of (x) all dividends accrued but unpaid on
Senior Preferred Stock through the end of such fiscal year and
(y) $3,751,000 and
(2) the excess of Consolidated Net Income for such
fiscal year over $4,000,000; and
(B) if at the end of such fiscal year, the Bank Indebtedness
shall have been paid in full, the aggregate amount of all
13
repayments of principal thereof which, had there been no repayments
of Bank Indebtedness constituting Other Contingent Payments, would
have been required to be paid during such fiscal year as part of the
30 consecutive approximately equal quarterly installments of
principal thereof referred to in the definition of Bank
Indebtedness.
less
(ii) if during any previous fiscal year or years Consolidated Net
Income shall have been less than $4,000,000, the amount by which
(A) the aggregate amount arrived at by totalling the amounts
by which Consolidated Net Income shall have been less than
$4,000,000 in each such fiscal year exceeds
(B) the aggregate amount arrived at by totalling the amounts
by which the excess of Consolidated Net Income for each previous
fiscal year or years over $4,000,000 shall have been greater than
the aggregate of all Other Contingent Payments for each such fiscal
year.
Notwithstanding the foregoing provisions of this definition, the above dollar
amounts shall be adjusted downward, in the case of the Fiscal Year 1977, through
application thereto of a fraction, the numerator of which shall be the number of
days in such fiscal year and the denominator of which shall be 365.
(f) "Funds Available for Sinking Fund Payments" for any fiscal year means
70% (or, if all Bank Indebtedness has been paid at the end of such fiscal year,
100%) of the excess of (i) Funds Available for other Contingent Payments for
such fiscal year over (ii) the sum of (A) Funds Available for Dividends for such
fiscal year and (B) the lesser of $500,000 or the total amount of unpaid
principal on Bank Indebtedness at the end of such fiscal year.
(g) "Net Income" means, for any period for any person, the net income (or
net loss) of such person after deducting all operating expenses, provisions for
all taxes
14
and reserves (including reserves for deferred income tax) and all other proper
deductions for such period, all determined in accordance with generally accepted
accounting principles but in any event excluding:
(i) any extraordinary items of gain or loss, any gain or loss
arising from any sale of capital assets, and any gain or loss resulting
from the revaluation of assets;
(ii) the proceeds of any life insurance policies;
(iii) any restoration to income of any reserve, except to the extent
that provision for such reserve was made out of income of such person
which is otherwise properly included in determining Net Income for such
period;
(iv) any gain arising from the acquisition, retirement or sale of
securities of such person or any of its subsidiaries; and
(v) any deferred credit, or amortization thereof, arising from the
purchase or other acquisition directly or indirectly of all or
substantially all of the assets or shares of any person.
(h) "Other Contingent Payment" means any payment in respect of the Senior
Preferred Stock and any optional payment (including any payment out of Funds
Available for Other Contingent Payments) in respect of the prepayment,
retirement, redemption or purchase of Bank Indebtedness.
(i) "Person" or "persons" include natural persons, groups, corporations,
partnerships, joint ventures, trusts, associations, and all other entities.
(j) "Redemption Price Per Share" has the meaning set forth in section 3(a)
hereof.
(k) "Subsidiary" means any corporation (i) incorporated under the laws of
one of the States of the United States of America or of the District of Columbia
or under the laws of Canada or any province thereof, (ii) which maintains
substantially all its assets and business operations within the
15
United States of America or Canada, and (iii) of which all of the Voting
Securities (other than directors' qualifying shares) are owned by the
Corporation or another Subsidiary.
(l) "Voting Securities" means capital stock of any class or classes of a
corporation having general voting power under ordinary circumstances to elect a
majority of the board of directors of such corporation, or persons performing
similar functions (irrespective of whether or not at the time stock of any other
class or classes shall have or might have special voting power or rights by
reason of the happening of any contingency).
(b) Common Stock
1. Issuance. From time to time common stock (hereinafter the "Common
Stock") may be issued in such amounts and for such purposes as shall be
determined by the Board of Directors.
2. Dividends. Subject to all of the rights of the Senior Preferred Stock,
such dividends as may be determined by the Board of Directors may be declared
and paid on the Common Stock from time to time out of the surplus of the
Corporation legally available for the payment of dividends.
3. Voting Rights. Except as otherwise expressly provided with respect to
the Senior Preferred Stock, the Common Stock shall have the exclusive right to
vote for the election of directors and for all other purposes, each holder of
the Common Stock being entitled to one vote for each share thereof held.
4. Liquidation. Upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, and after the holders of the
Senior Preferred Stock of each series shall have been paid in full the amounts
to which they respectively shall be entitled, or an amount sufficient to pay the
aggregate amount to which the holders of the Senior Preferred Stock of each
series shall be entitled shall have been deposited with a bank or trust company
having its principal office in the Borough of Manhattan, the City of New York,
and having a capital, surplus and undivided profits of at least twenty-five
million dollars ($25,000,000) as a trust fund for the benefit of the holders of
such Senior Preferred Stock, the remaining net assets of the Corporation shall
be distributed pro rata to the holders
16
of the Common Stock in accordance with their respective rights and interests, to
the exclusion of the holders of the Senior Preferred Stock.
(c) General Provisions and Definitions
1. A consolidation or merger of the Corporation with or into another
corporation or corporations or a sale whether for cash, shares of stock,
securities or properties, of all or substantially all of the assets of the
Corporation shall not be deemed or construed to be a liquidation, dissolution or
winding up of the Corporation provided that the merger is not in violation of
Section 6 hereof.
2. No stockholder of the Corporation shall be entitled, as such, as a
matter of right, to subscribe for or purchase any part of any new or additional
issue of stock of any class or series whatsoever, any rights or options to
purchase stock of any class or series whatsoever, or any securities convertible
into any stock of any class or series whatsoever, whether nor or hereafter
authorized, and whether issued for cash or other consideration, or by way of
dividend.
3. The Board of Directors may from time to time issue scrip in lieu of
fractional shares of stock. Such scrip shall not confer upon the holder any
right to dividends or any voting or other rights of a stockholder of the
Corporation, but the Corporation shall from time to time, within such time as
the Board of Directors may determine or without limit of time if the Board of
Directors so determines, issue one or more whole shares of stock upon the
surrender of scrip for fractional shares aggregating the number of whole shares
issuable in respect of the scrip so surrendered, provided that the scrip so
surrendered shall be properly endorsed for transfer if in registered form.
FOURTH: The Secretary of State of the State of New York is hereby
designated as the agent of the Corporation upon whom process in any action or
proceeding against it may be served.
FIFTH: The office of the Corporation shall be located in the City, County
and State of New York, at 55 Water Street, 43rd Floor, New York, New York 10041,
and the address to which the Secretary of State shall mail a copy of process in
any action or proceeding against the Corporation which may be served upon him is
Drexel Heritage Furnishings, Inc., Drexel, North Carolina 28619, Attention:
President.
17
SIXTH: The following provisions are inserted for the regulation and
conduct of the affairs of the Corporation, and it is expressly provided that
they are intended to be in furtherance and not in limitation or exclusion of the
powers conferred by statute:
(a) All corporate powers except those which by law expressly require the
consent of the stockholders shall be exercised by the Board of Directors.
(b) The Board of Directors shall have power from time to time to fix and
determine and vary the amount of the working capital of the Corporation and to
direct and determine the use and disposition of any surplus or net profits over
and above its capital, and in its discretion the Board of Directors may use and
apply any such surplus or accumulated profits in purchasing or acquiring bonds
or other obligations of the Corporation or shares of its own capital stock, to
such extent and in such manner and upon such as the Board of Directors shall
deem expedient, but any shares of such capital stock so purchased or acquired
may be resold unless such shares shall have been retired in the manner provided
by law for the purpose of decreasing the Corporation's capital.
(c) Any one or more or all of the directors may be removed for or without
cause, at any time, by the vote of the stockholders holding a majority of the
stock of the Corporation entitled to vote, at any special meeting, and thereupon
the term of each director or directors who shall have been so revoked shall
forthwith terminate, and there shall be a vacancy or vacancies in the Board of
Directors to be filled as provided in the By-Laws.
(d) No contract or other transaction between the Corporation and any other
corporation shall be affected or invalidated by the fact that any one or more of
the directors of this Corporation is or are interested in, or is a director or
officer, or are directors or officers of such other corporation, and any
director or directors, individually or jointly, may be a party or parties to or
may be interested in any contract or transaction of this Corporation or in which
this Corporation is interested; and no contract, act or transaction of this
Corporation with any persons, firms or corporations, shall be affected or
invalidated by the fact that any director or directors of this Corporation is a
party, or are parties, to or interested
18
in such contract, act or transaction, or in any way connected with such persons,
firms or corporations, and each and every person who may become a director of
this Corporation is hereby relieved from any liability that might otherwise
exist from contracting with the Corporation for the benefit of himself or any
firm or corporation in which he may be in any wise interested.
(e) The Board of Directors may make By-Laws and from time to time may
alter, amend or repeal any By-Laws, but any By-Laws made by the Board of
Directors may be altered or repealed by the stockholders.
SEVENTH: The number of Directors of the Corporation shall be governed by
the By-Laws.
5. The restatement of the Certificate of Incorporation was authorized by
the written consent of its sole common stockholder, the sole stockholder
entitled to vote thereon.
IN WITNESS WHEREOF, we have signed this certificate on the 9th day of
August, 1977 and we affirm the statements contained therein as true under
penalties of perjury.
D & D EQUIPMENT CO., INC.
By /s/ Peter M. Kennedy
-------------------------------------
Peter M. Kennedy,
Chairman of the Board
By /s/ Robert C. Harrison as Secretary
-------------------------------------
Robert C. Harrison.
Secretary
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