EXHIBIT 3.23
CERTIFICATE OF INCORPORATION
OF
MWM HOLDING, INC.
ARTICLE I
NAME OF CORPORATION
The name of this corporation is: MWM Holding, Inc. (the "Corporation").
ARTICLE II
REGISTERED OFFICE
The address of the registered office of the Corporation in the State of
Delaware is 615 South DuPont Highway, City of Dover, 19901, County of Kent. The
name of its registered agent at that address is National Corporate Research,
Ltd.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of the
State of Delaware.
ARTICLE IV
AUTHORIZED CAPITAL STOCK
The Corporation shall be authorized to issue one class of stock to be
designated Common Stock; the total number of shares which the Corporation shall
have authority to issue is one thousand (1,000), and each such share shall have
a par value of one cent ($0.01).
ARTICLE V
INCORPORATOR
The name and mailing address of the incorporator of the Corporation is:
Karen L. Doerner, Corporate Supervisor
c/o Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166
ARTICLE VI
BOARD POWER REGARDING BYLAWS
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, repeal, alter, amend and
rescind the bylaws of the Corporation.
ARTICLE VII
NUMBER OF DIRECTORS; ELECTION OF DIRECTORS
The number of directors which will constitute the whole Board of Directors
of the Corporation shall be specified in the bylaws of the Corporation.
Elections of directors need not be by written ballot unless the bylaws of the
Corporation shall so provide.
ARTICLE VIII
LIMITATION OF DIRECTOR LIABILITY
To the fullest extent permitted by the Delaware General Corporation Law,
as the same exists or may hereafter be amended, a director of the Corporation
shall not be personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (a) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (b) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (c) under
Section 174 of the Delaware Code, or (d) for any transaction from which the
director derived an improper personal benefit. If the Delaware General
Corporation Law is amended after the date of the filing of this Certificate of
Incorporation to authorize corporate action further eliminating or limiting the
personal liability of directors, then the personal 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 from time to time. No
repeal or modification of this Article VIII by the stockholders of the
Corporation shall adversely affect any right or protection of a director of the
Corporation existing by virtue of this Article VIII at the time of such repeal
or modification.
ARTICLE IX
AMENDMENT OR REPEAL
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred on stockholders herein
are granted subject to this reservation.
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ARTICLE X
ELECTION NOT TO BE GOVERNED BY SECTION 203
To the fullest extent permitted by the Delaware Code, the corporation
shall not be governed by the provisions of Section 203 of the Delaware Code, or
by any successor or similar statute.
ARTICLE XI
SPECIAL MEETINGS OF STOCKHOLDERS
Special meetings of the stockholders of the corporation for any purpose or
purposes may be called at any time by the Board of Directors or by a committee
of the Board of Directors which has been duly designated by the Board of
Directors to have the power to call such meetings, but such special meetings may
not be called by any other person or persons; provided, however, that if and to
the extent that any special meeting of the stockholders may be called by any
other person or persons specified in any provisions of any certificate filed
under Section 151(g) of the Delaware Code (or its successor statute as in effect
from time to time hereunder), then such special meeting may also be called by
the person or persons, in the manner, at the times and for the purposes so
specified.
* * *
THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a Corporation to do business both within and without the
State of Delaware, and in pursuance of the Delaware General Corporation Law,
does make and file this Certificate.
Dated: December 27, 2002
/s/ Karen L. Doerner
---------------------------
Karen L. Doerner
Sole Incorporator
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AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
MWM HOLDING, INC.
ARTICLE I -- NAME
The name of the corporation (hereinafter called the "Corporation") is MWM
Holding, Inc.
ARTICLE II -- REGISTERED OFFICE
The address, including street, number, city, and county, of the registered
office of the Corporation in the State of Delaware is 615 South Dupont Highway,
Dover, Delaware 19901, County of Kent; and the name of the registered agent of
the Corporation in the State of Delaware is National Corporate Research, Ltd.
ARTICLE III -- PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of the
State of Delaware.
ARTICLE IV -- CAPITALIZATION
1. Definitions. As used in this Article IV, the following terms shall have
the following meanings:
"Affiliate", with respect to any Stockholder that is not a natural person,
means (i) any Person which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Stockholder or (ii) any
Person who is a director or officer (a) of such Stockholder, (b) of any
subsidiary of such Stockholder or (c) of any Person described in clause (i)
above. For purposes of this definition, "control" of a Person shall mean the
power, directly or indirectly, (y) to vote fifty percent (50%) or more of the
securities having ordinary voting power for the election of directors of such
Person whether by ownership of securities, contract, proxy or otherwise, or (z)
to direct or cause the direction of the management and policies of such Person
whether by ownership of securities, contract, proxy or otherwise.
"Board" means the Board of Directors of the Corporation.
"Business Day" means any day other than a Saturday, Sunday, federal
holiday or other day on which commercial banks in New York City are authorized
or required to close under the laws of the State of New York.
"Certificate of Incorporation" means this Amended and Restated Certificate
of Incorporation of the Corporation.
"Class A Stock" means the Class A Common Stock described in Section 2(c).
"Class A Stockholder" means a record holder of one or more shares of Class
A Stock.
"Class B Stock" means the Class B Common Stock described in Section 2(c).
"Class B Stockholder" means a record holder of one or more shares of Class
B Stock.
"Class B Warrants" means the Class B Warrants to be issued by the
Corporation in connection with the $30,000,000 Senior Subordinated Notes issued
by MW Manufacturers, Inc.
"Class B Warrant Holders" means the holders of the Class B Warrants.
"Class B Warrant Shares" means the shares of Class B Stock issuable upon
exercise of the Class B Warrants.
"Class D Stock" means the Class D Common Stock described in Section 2(c).
"Class D Stockholder" means a record holder of one or more shares of Class
D Stock.
"Common Stock" has the meaning set forth in Section 2(c).
"Common Stockholder" means a record holder of one or more shares of Common
Stock.
"Conversion Date" has the meaning set forth in Section 6.
"Corporation" has the meaning set forth in Article I.
"DGCL" has the meaning set forth in Section 2(b).
"Difference Shares" has the meaning set forth in Section 5.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Initial Public Offering" means the effectiveness of a registration
statement under the Securities Act on any of Forms S-l, S-2, S-3, S-4 or any
similar or successor form covering any of the Stock, and the completion of a
sale of such Stock thereunder, (i) following which the Corporation or any
successor by way of merger, consolidation, reorganization or otherwise is, or
becomes, a reporting company under Section 12(b) or 12(g) of the Exchange Act,
and (ii) as a result of which the Stock (or shares of stock issued to holders of
stock in any such merger, consolidation, reorganization or similar transaction)
is traded on the New York Stock Exchange or the American Stock Exchange, or
quoted on The Nasdaq Stock Market or is traded or quoted on any other national
stock exchange or automated quotation system.
"IPO Date" means the effective date of the Initial Public Offering.
"Non-Redeemable Shares" means all shares of Class A Stock or Class B Stock
that have been previously sold (whether under Section 4 or Section 5(c))
pursuant to a Tag-Along Transfer.
"Notice Date" has the meaning set forth in Section 4(b)(iv).
"Other Securityholders" has the meaning set forth in Section 4(a).
"Permitted Liens" means liens, encumbrances or restrictions on the Stock
of any Stockholder arising out of the agreement pursuant to which such Stock was
acquired by such Stockholder or such other agreements as contemplated therein.
"Permitted Transferee" with respect to a Transfer by a Class D
Stockholder, means (i) with respect to any Class D Stockholder who is a natural
person, a Transfer to (a) such Stockholder's spouse or issue, or (b) a trust the
beneficiaries of which, and a partnership the limited and general partners of
which, include only the Class D Stockholder, his spouse or issue; and (ii) with
respect to any Class D Stockholder that is not a natural person, (A) a Transfer
to an Affiliate of such Class D Stockholder; or (B) a Transfer to another Class
D Stockholder or its Affiliates; provided such other Class D Stockholder
referenced in this clause (ii)(B) did not acquire its shares of Class D Stock
pursuant to a Tag-Along Transfer.
"Person" means any natural person, partnership, limited liability company,
corporation (including the Corporation), trust or unincorporated organization or
a government or a political subdivision thereof.
"Preferred Stock" has the meaning set forth in Section 2(a).
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"Preferred Stock Designation" has the meaning set forth in Section 2(b).
"Proposed Purchase Amount" has the meaning set forth in Section 4(a).
"Proposed Transferee" has the meaning set forth in Section 4(a).
"Proposed Transferor" has the meaning set forth in Section 4(a).
"Redemption Date" has the meaning set forth in Section 5(c).
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Stock" has the meaning set forth in Section 2(c).
"Stockholder" means a record holder of one or more shares of Class A
Stock, Class B Stock, Class D Stock or Common Stock.
"Tag-Along Acceptance Date" has the meaning set forth in Section 4(c).
"Tag-Along Notice" has the meaning set forth in Section 4(c).
"Tag-Along Pro Rata Amount" has the meaning set forth in Section 4(a).
"Tag-Along Redemption Price" has the meaning set forth in Section 5(a).
"Tag-Along Transfer" has the meaning set forth in Section 4(a).
"Transfer", with respect to any share of Stock, means the sale,
assignment, pledge, hypothecation, gift or any other disposition whatsoever of
such share (other than pursuant to the Initial Public Offering or pursuant to
the redemption or conversion of any such share of Stock, in either case in
accordance with the terms of this Certificate of Incorporation), or the
encumbrance or granting of any rights or interests whatsoever in or with respect
to such share.
"Transfer Notice" has the meaning set forth in Section 4(b).
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2. Designation and Number.
(a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 3,561,400, of which 500,000 shares
shall be preferred stock and shall have a par value of $0.01 per share
("Preferred Stock") and 3,061,400 shares shall be common stock, as set forth in
paragraph (c) below.
(b) Preferred Stock. The Board is expressly authorized to provide
for the issue of all or any shares of the Preferred Stock, in one or more
series, and to fix for each such series such voting powers, full or limited, and
such designations, preferences and relative, participating, optional or other
special rights and such qualifications, limitations or restrictions thereof as
shall be stated and expressed in the resolution or resolutions adopted by the
Board providing for the issue of such series (a "Preferred Stock Designation")
and as may be permitted by the Delaware General Corporation Law (the "DGCL").
The Corporation may, by an amendment to the Certificate of Incorporation duly
adopted, increase or decrease, at any time and from time to time (but not below
the number of shares of Preferred Stock then outstanding), the number of
authorized shares of Preferred Stock. Unless otherwise provided in a Preferred
Stock Designation, shares of Preferred Stock redeemed, purchased or otherwise
acquired by the Corporation pursuant to the terms hereof shall be retired and
shall revert to authorized but unissued Preferred Stock.
(c) Common Stock. There shall be four classes of common stock of the
Corporation. The first class of common stock of the Corporation shall have a par
value of $0.01 per share and shall be designated as "Class A Common Stock" and
the number of shares constituting such class shall be 1,500,000. The second
class of common stock of the Corporation shall have a par value of $0.01 per
share and shall be designated as "Class B Common Stock" and the number of shares
constituting such class shall be 28,200. The third class of common stock of the
Corporation shall have a par value of $0.01 per share and shall be designated as
"Class D Common Stock" and the number of shares constituting such class shall be
2,500. The fourth class of common stock of the Corporation shall have a par
value of $0.01 per share and shall be designated as "Common Stock" and the
number of shares constituting such class shall be 1,530,700. The Class A Stock,
Class B Stock, Class D Stock and Common Stock sometimes are referred to
collectively herein as the "Stock." The Corporation may, by an amendment to the
Certificate of Incorporation duly adopted, increase or decrease, at any time and
from time to time (but not below the number of shares of Class A Stock, Class B
Stock, Class D Stock or Common Stock, as the case may be, then outstanding), the
number of authorized shares of Class A Stock, Class B Stock, Class D Stock or
Common Stock, as the case may be. Shares of Stock redeemed, purchased or
otherwise acquired by the Corporation pursuant to the terms hereof shall be
retired and shall revert to authorized but unissued Class A Stock, Class B
Stock, Class D Stock or Common Stock, as the case may be.
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3. Restrictions on Transfer.
(a) Except for Transfers to a Permitted Transferee, no Class D
Stockholder shall Transfer any share of Class D Stock owned by such Class D
Stockholder except in accordance with the terms of this Certificate of
Incorporation. Any Transfer or attempt to Transfer any share of Class D Stock in
violation of the terms and conditions of this Certificate of Incorporation shall
be null and void and of no force and effect, the transferee thereof shall not be
deemed to be the registered holder thereof nor entitled to any rights with
respect thereto, and the Corporation shall refuse to Transfer any such share of
Class D Stock on its books to such alleged transferee.
(b) No Stockholder shall Transfer any shares of Stock unless such
Transfer complies with the conditions specified in this Section 3(b), which are
intended to ensure compliance with the provisions of the Securities Act. Prior
to any Transfer, the holder of the shares of Stock proposed to be Transferred
shall give written notice to the Corporation of such holder's intention to
effect such Transfer. Each such notice shall describe the manner and
circumstances of the proposed Transfer in sufficient detail, and, except with
respect to a Transfer to an Affiliate that is an "accredited investor" as
defined under the Securities Act, if requested by the Corporation, shall be
accompanied by either (i) a written opinion of legal counsel who is reasonably
satisfactory to the Corporation, addressed to the Corporation and reasonably
satisfactory in form and substance to the Corporation's counsel, to the effect
that the proposed Transfer may be effected without registration under the
Securities Act and qualification under applicable state securities laws, or (ii)
a "no action" letter from the SEC to the effect that the Transfer of such
securities without registration under the Securities Act will not result in a
recommendation by the staff of the SEC that action be taken with respect
thereof, or a combination of (i) and (ii) above, whereupon the holder of such
shares of Stock shall be entitled to Transfer such shares in accordance with the
terms of this Certificate and the written notice delivered by the holder to the
Corporation. Each certificate evidencing the shares of Stock Transferred as
above provided shall bear the appropriate restrictive legend set forth in
Section 9, provided that, following the Initial Public Offering, such
certificates shall bear the legend set forth in Section 9 or another legend only
if, in the opinion of counsel to the Corporation, the imposition of such legend
is required under the Securities Act or other applicable law. Any purported
Transfer in violation of this Section 3(b) shall be null and void and of no
force or effect, and the Corporation shall not record any such Transfer on its
stock transfer books. The restrictions on Transfer contained in this Section
3(b) shall not apply to Transfers of shares of Stock (i) in the Initial Public
Offering or (ii) following the Initial Public Offering, provided that such
Transfer is made in compliance with the Securities Act and applicable state
securities laws and in accordance with any restrictions on transfer contained in
any restrictive legend set forth on the certificates representing such shares.
4. Tag-Along Rights.
(a) Transfer by Class D Stockholders. If, other than in connection
with the Initial Public Offering, any Class D Stockholder or Class D
Stockholders (for purposes of this Section 4, singularly or collectively, the
"Proposed
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Transferor"), at any time or from time to time in one transaction or in a series
of transactions, desires to enter into an agreement (whether oral or written) to
Transfer its shares of Class D Stock or any part thereof to any Person other
than a Permitted Transferee (the "Proposed Transferee"), such proposed Transfer
shall be deemed a "Tag-Along Transfer" and, each of the Class A Stockholders,
Class B Stockholders and Class B Warrant Holders (collectively, the "Other
Securityholders") shall have the right, as a condition to such Tag-Along
Transfer, to have the Proposed Transferee purchase from each such Other
Securityholder up to the number of shares (the "Tag-Along Pro Rata Amount") of
Class A Stock or Class B Stock or Class B Warrant Shares derived by multiplying
the total number of shares of Class A Stock or Class B Stock or Class B Warrant
Shares (in each case exclusive of Non-Redeemable Shares) as the case may be,
owned by such Other Securityholder by a fraction, the numerator of which is
equal to the number of shares of Class D Stock that is proposed to be
Transferred by the Proposed Transferor to the Proposed Transferee (the "Proposed
Purchase Amount") and the denominator of which is the total number of shares of
Class D Stock (other than shares of Class D Stock that have previously been
Transferred pursuant to a Tag-Along Transfer) outstanding as of the Notice Date
(as defined in Section 4(b)(iv)). If a Class B Warrant Holder elects to
participate in the Tag-Along Transfer, it may do so either by (1) exercising a
sufficient number of Class B Warrants prior to consummation of the Tag-Along
Transfer and paving the aggregate exercise price for such exercise to the
Corporation, in accordance with the procedures set forth in Section 4(c) below,
or (2) selling directly to the Proposed Transferee the number of Class B
Warrants it elects to include in the Tag-Along Transfer, in which latter case,
upon consummation of the Tag-Along Transfer, (i) the Class B Warrant Holder
shall receive the same consideration for each Class B Warrant Share included in
the sale of the Class B Warrants as the Other Securityholders participating in
the Tag-Along Transfer, less the aggregate exercise price for such Class B
Warrants, (ii) such aggregate purchase price shall be remitted to the
Corporation and (iii) the Corporation shall issue to the Proposed Transferee,
upon delivery to the Corporation for cancellation of the warrant certificate
representing the Class B Warrants it purchased, a number of shares of Class B
Stock equal to the number of Class B Warrant Shares so purchased. All Tag-Along
Transfers by Other Securityholders shall be on the same terms and conditions
(with such changes as are necessary to apply such terms and conditions to a sale
by such Other Securityholders) as the proposed Tag-Along Transfer by the
Proposed Transferor, provided that no Other Securityholder may be required to
make any representation or warranty in connection with the Tag-Along Transfer
other than as to its ownership and authority to Transfer the shares of Stock to
be Transferred by it, free and clear of any and all liens and encumbrances
(other than under this Certificate of Incorporation) other than Permitted Liens
and in compliance with all applicable laws and that no Other Securityholder may
be required to join in any indemnification obligation that the Proposed
Transferor has agreed to in connection with the Tag-Along Transfer other than
with respect to any such representation or warranty relating to ownership and
authority to Transfer the shares of Stock to be Transferred by such Other
Securityholder and such indemnification obligation shall be limited to the
amount of the net cash proceeds paid to the Other Securityholder in connection
with the Tag-Along Transfer.
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(b) Transfer Notice. The Proposed Transferor participating in a
Tag-Along Transfer shall at least ten (10) Business Days prior to the closing
date thereof provide the Corporation and the Other Securityholders with written
notice (the "Transfer Notice") of the proposed Tag-Along Transfer containing the
following:
(i) the name and address of the Proposed Transferor and the
Proposed Transferee;
(ii) the Proposed Purchase Amount;
(iii) the proposed amount to be paid for such shares of Class
D Stock, the terms and conditions of payment offered by the Proposed
Transferee, the closing date for the proposed Tag-Along Transfer and the
estimated expenses payable pursuant to Section 4(d);
(iv) the aggregate number of shares of Class A Stock or Class
B Stock, as the case may be, and the aggregate number of shares underlying
Class B Warrants held of record as of the date the Transfer Notice is sent
(the "Notice Date") by the Other Securityholder to whom the notice is
sent;
(v) the aggregate number of shares of Class A Stock or Class B
Stock, as the case may be, and the aggregate number of shares underlying
Class B Warrants held of record as of the Notice Date by all Other
Securityholders as a group;
(vi) the Tag-Along Pro Rata Amount for the Other
Securityholder to whom the Transfer Notice is sent (assuming, for this
purpose, the Class B Warrant Holders elect to fully exercise the Class B
Warrants in connection with the Tag-Along Transfer); and
(vii) a statement confirming that the Proposed Transferee has
agreed (i) to honor the tag-along rights of the Other Securityholders and
(ii) pursuant to Section 5(c), to purchase the number of shares of Stock
redeemed pursuant to Section 5(a).
Upon written request by the Proposed Transferor, the Corporation
shall provide to the Proposed Transferor the information referred to in (iv) and
(v) above for inclusion in the Transfer Notice and such other information as may
be required to enable the Proposed Transferor to comply with the terms of this
Section 4(b).
(c) Tag-Along Notice. Each Other Securityholder desiring to
participate in the proposed Tag-Along Transfer shall provide a written notice
(the "Tag-Along Notice") to the Proposed Transferor on or before the expiration
of seven (7) Business Days after the Notice Date (the "Tag-Along Acceptance
Date") stating the number of shares (including Class B Warrant Shares) held by
such Other Securityholder (up to its Tag-Along Pro Rata Amount) to be included
in the proposed Tag-Along Transfer on the terms and conditions specified in the
Transfer Notice; if the number of
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shares to be included in the proposed Tag-Along Transfer includes shares of
Class B Warrant Shares, the Class B Warrant Holder shall include with the
Tag-Along Notice a notice with respect to its Class B Warrants (which notice may
be conditioned on the consummation of the Tag-Along Transfer), which notice
shall indicate whether (1) the Class B Warrants are to be exercised for shares
of Class B Stock immediately prior to the sale to the Proposed Transferee (which
exercise may be conditioned on consummation of the Tag-Along Transfer) and, if
so, shall further indicate whether payment of the aggregate exercise price of
such Class B Warrants (i) is included with the exercise notice in the form of a
certified check or other acceptable payment means or (ii) will be made through a
cashless exercise of such Class B Warrants pursuant to the terms of the warrant
certificate or (2) the Class B Warrants are to be sold directly to the Proposed
Transferee pursuant to Section 4(a)(2) above. The Tag-Along Notice given by each
Other Securityholder shall include and constitute such Other Securityholder's
binding agreement to include a number of shares equal to its Tag-Along Pro Rata
Amount (or such lesser amount as stated in the Tag-Along Notice) in the
Tag-Along Transfer on the terms and conditions specified in the Transfer Notice
and in this Certificate of Incorporation. If the Proposed Transferee does not
purchase all of the shares of Stock of the Proposed Transferor and the Other
Securityholders included in such proposed Tag-Along Transfer, then the proposed
Tag-Along Transfer to such Proposed Transferee shall be prohibited, any attempt
to consummate the proposed Tag-Along Transfer shall be null and void and of no
force and effect and the Proposed Transferor shall not transfer any securities
to such Proposed Transferee in connection with the contemplated Tag-Along
Transfer without once again complying with the provisions of this Section 4.
(d) Each Proposed Transferor and each Other Securityholder whose
shares are sold in a Tag-Along Transfer shall be entitled to receive the
proceeds of such Tag-Along Transfer less its pro rata share, based on the number
of shares included in such Tag-Along Transfer, of the reasonable out-of-pocket
expenses of the transaction including, without limitation, legal, accounting and
investment banking fees and expenses (but expressly excluding any fees payable
to the Proposed Transferor or its Affiliates that are not on an arms-length
basis), such determination of expenses to be made in the good faith
determination of the Board (and less, in the case of the exercise price of Class
B Warrants not previously paid to the Corporation, the aggregate exercise price
for such Class B Warrants).
(e) The provisions of this Section 4 shall not apply to a subsequent
Transfer of any share of Class D Stock that previously has been the subject of a
completed Tag-Along Transfer that complied with the provisions of this Section
4.
5. Redemption.
(a) The number of shares of Class A Stock or Class B Stock
(including the Class B Warrant Shares), as applicable, equal to the difference
("Difference Shares") between (i) the number of shares included in any Tag-Along
Transfer by a Class A Stockholder, Class B Stockholder or Class B Warrant Holder
pursuant to Section 4 and (ii) the Tag-Along Pro Rata Amount for each such Class
A Stockholder, Class B Stockholder or Class B Warrant Holder shall be redeemed
by the
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Corporation, to the extent it is lawfully permitted to do so and subject to the
immediately succeeding sentence, out of funds legally available therefor pro
rata, based on the number of Difference Shares held by such Other
Securityholders, from each of the Class A Stockholders, Class B Stockholders or
Class B Warrant Holders who elected to include in the Tag-Along Transfer a
number of shares of Stock less than the number of shares that constitute their
Tag-Along Pro Rata Amount or any such Other Securityholders that did not elect
to participate in a Tag-Along Transfer at a redemption price (the "Tag-Along
Redemption Price") for each share of Class A Stock or Class B Stock so redeemed
equal to the per share price paid for the Class D Stock by the Proposed
Transferee (provided that, if the consideration to be paid by the Proposed
Transferee includes any non-cash consideration, the per share amount to be paid
in such redemption shall be the fair value of the per share consideration to be
paid by such Proposed Transferee as determined in good faith by the Board) less
such Other Securityholder's pro rata share, based on the number of shares of
Stock so redeemed from such Other Securityholder, of the expenses of the
Tag-Along Transfer including, without limitation, legal, accounting and
investment banking fees and expenses, as determined in good faith by the Board,
and less, in the case shares of Class B Stock issued upon mandatory exercise of
Class B Warrants pursuant to this Section 5(a), the aggregate exercise price of
such Class B Warrants that were so exercised (unless, and to the extent, the
Corporation and a Class B Warrant Holder agree to a cashless exercise of the
Class B Warrants subject to mandatory exercise pursuant to this Section 5(a)).
Notwithstanding the foregoing, the provisions of this Section 5 shall not apply
to the holders of Class B Stock or Class B Warrants unless (i) the Tag-Along
Transfer in which the Proposed Transferor proposes to Transfer a number of
shares of Class D Stock exceeds 50% of the outstanding shares of Class D Stock
and (ii) the Board recommends the sale as fair and that it represents a fair
value to the holders of Class B Stock and Class B Warrants. To the extent the
foregoing conditions are met, any Class B Warrant Holder that has not yet
exercised its Class B Warrants shall be required to exercise such Class B
Warrants to the extent necessary to effect the foregoing. The provisions of this
Section 5(a) shall not apply to the Non-Redeemable Shares. Redemption under this
subsection is conditioned upon the contemporaneous purchase by the Proposed
Transferee of the shares issuable under Section 5(b) in connection with the
applicable Tag-Along Transfer.
(b) The shares of Class A Stock or Class B Stock redeemed by the
Corporation pursuant to a Section 5(a) redemption shall, on the Redemption Date,
be retired and upon such retirement shall automatically revert to authorized but
unissued shares of Class A Stock or Class B Stock, and the Corporation shall, on
the Redemption Date, but immediately after such redemption and retirement,
issue, to the extent it is lawfully permitted to do so, to the Proposed
Transferee a number of shares of Class A Stock and Class B Stock equal to the
number of shares of such Stock so redeemed. Upon any issuance of shares of Class
A Stock or Class B Stock equal to the number of shares of such Stock redeemed
pursuant to a Section 5(a) mandatory redemption (and as a condition to such
issuance), the Corporation shall receive from the Proposed Transferee as the
purchase price for such shares an amount equal to the Tag-Along Redemption Price
for each share of Class A Stock and Class B Stock so redeemed.
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(c) The Corporation shall give to each holder of record of the
shares of Class A Stock and Class B Stock (including Class B Warrant Holders) to
be redeemed pursuant to the terms of this Section 5 prior written notice of such
redemption not less than two (2) Business Days prior to the date such shares
will be redeemed (the "Redemption Date") which in the case of a redemption
pursuant to Section 5(a) shall be the closing date of the Tag-Along Transfer.
Each such notice shall state: (A) the Redemption Date; (B) the total number of
shares of Class A Stock and Class B Stock to be redeemed and, if fewer than all
the shares held by such holder are to be redeemed, the number of such shares to
be redeemed from such holder; (C) the Tag-Along Redemption Price; and (D) the
fact that the certificates for the shares subject to redemption (and, in the
case of Class B Warrants, the warrant certificates) are to be surrendered in
exchange for payment of the Tag-Along Redemption Price (less, if applicable, the
exercise price of the Class B Warrants), at the principal office of the
Corporation or at such other place as the Corporation shall designate.
(d) On the Redemption Date, and subject to receipt of the Tag-Along
Redemption Price by the Stockholder thereof or deposit of the Tag-Along
Redemption Price by the Corporation with an independent paying agent, the shares
of Class A Stock and Class B Stock redeemed pursuant to the terms of this
Section 5 shall be deemed to have been so redeemed, notwithstanding that the
certificates representing such Class A Stock or Class B Stock (and, in the case
of Class B Warrants, the warrant certificates) shall not have been surrendered
at the principal office of the Corporation or such other place as the
Corporation may have designated or that notice from the Corporation shall not
have been given by the Corporation or, if given, shall not have been received by
any holder of Class A Stock or Class B Stock (including the Class B Warrant
Holders) whose shares of Stock are to be so redeemed. All certificates
representing the redeemed shares of Class A Stock and Class B Stock, including
all certificates not so delivered by such Class A Stockholders and Class B
Stockholders (including, in the case of Class B Warrants, the warrant
certificates), shall be, or shall be deemed to be, canceled by the Corporation
as of the Redemption Date and shall thereafter no longer be of any force or
effect.
6. Conversion.
If an Initial Public Offering occurs, each then outstanding share of Class
A Stock, Class B Stock and Class D Stock shall automatically convert into one
share of Common Stock effective on the IPO Date (the "Conversion Date"), and
Class B Warrants that have not been exercised prior to or concurrently with the
consummation of the Initial Public Offering shall thereafter constitute warrants
exercisable for the same number of shares of Common Stock. Prior to or on the
Conversion Date, each holder of shares of Class A Stock, Class B Stock or Class
D Stock shall surrender such holder's certificates evidencing such shares at the
principal office of the Corporation or at such other place as the Corporation
shall designate to such holder in writing at least ten (10) Business Days prior
to the Conversion Date, and shall, within ten (10) Business Days after the
Conversion Date, be entitled to receive from the Corporation certificates
evidencing the number of shares of Common Stock into which such snares of Class
A Stock, Class B Stock or Class D Stock are converted. On the Conversion Date,
each holder of shares of
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Class A Stock, Class B Stock or Class D Stock shall be deemed to be a holder of
record of the Common Stock issuable upon such conversion, notwithstanding that
the certificates representing such Class A Stock, Class B Stock or Class D Stock
shall not have been surrendered at the principal office of the Corporation or
such other place as the Corporation may have designated, that notice from the
Corporation shall not have been given or, if given, shall not have been received
by any holder of shares of Class A Stock, Class B Stock or Class D Stock, or
that certificates evidencing such shares of Common Stock shall not then be
actually delivered to such holder. All certificates representing the converted
shares of Class A Stock, Class B Stock or Class D Stock, including all
certificates not so delivered by such Class A Stockholders, Class B Stockholders
or Class D Stockholders, shall be, or shall be deemed to be, canceled by the
Corporation as of the Conversion Date and shall thereafter no longer be of any
force or effect and the Corporation shall not thereafter issue any such shares
of Class A Stock, Class B Stock or Class D Stock.
7. Voting Rights.
(a) Holders of shares of Class D Stock and Common Stock shall be
entitled to one vote for each share of such stock held on all matters as to
which stockholders may be entitled to vote pursuant to the DGCL.
(b) Holders of Class A Stock and Class B Stock shall not have any
voting rights, except that the holders of the Class A Stock and Class B Stock
shall have the right to vote to me extent required under the laws of the State
of Delaware. Unless otherwise required by the terms of this Certificate of
Incorporation, paragraph (2) of subsection (b) of Section 242 of the DGCL shall
not entitle the holders of any shares of Stock to vote as a class on the
increase of the number of authorized shares of such class of Stock or the
decrease of the number of authorized but not outstanding shares of such class of
Stock. Except as otherwise required by the DGCL, the holders of any class of
Stock entitled to vote on any matter submitted to such holders for a vote shall
vote together as a single group and not as separate classes.
8. Liquidation; Dividends.
(a) Subject to the rights of the holders of any shares of
then-outstanding Preferred Stock, any distribution made upon the liquidation,
dissolution or winding up of the affairs of the Corporation, whether voluntary
or involuntary, shall be allocated pro rata based upon the number of shares of
Stock held by each Stockholder. None of the sale, transfer, conveyance or lease
of all or substantially all of the property or business of the Corporation, the
merger or consolidation of the Corporation into or with any other corporation or
the merger or consolidation of any other corporation into or with the
Corporation shall be deemed to be a dissolution, liquidation or winding up,
voluntary or involuntary, for the purposes of this Section 8(a).
(b) Subject to the rights of the holders of any shares of then
outstanding Preferred Stock, holders of Class A Stock, Class B Stock, Class D
Stock and Common Stock shall be entitled to share ratably as a single class in
all dividends and
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other distributions of cash or any other right or property as may be declared
thereon by the Board from time to time out of assets or funds of the Corporation
legally available therefor.
9. Legend.
(a) All certificates representing shares of Class A Stock and Class
B Stock shall, in addition to other legends that may be required by state or
federal securities laws, bear legends substantially as follows:
"THESE SECURITIES ARE SUBJECT TO MANDATORY REDEMPTION BY THE CORPORATION.
SUCH REDEMPTION CAN BE ACCOMPLISHED WITHOUT THE CERTIFICATES REPRESENTING SUCH
SECURITIES BEING SURRENDERED AND WHETHER OR NOT THE CORPORATION GIVES NOTICE OF
SUCH REDEMPTION. THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER
WHO SO REQUESTS THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES
THEREOF AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES
AND/OR RIGHTS."
"AS SPECIFIED IN THE CERTIFICATE OF INCORPORATION OF THE CORPORATION, THE
TRANSFERABILITY OF THESE SECURITIES IS SUBJECT TO RESTRICTION. THESE SECURITIES
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS
OF ANY STATE AND MAY BE REOFFERED AND SOLD ONLY IF SO REGISTERED OR IF AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE."
(b) All certificates representing shares of Class D Stock in the
Corporation shall, in addition to other legends that may be required by state or
federal securities laws, bear legends substantially as follows:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR THE SECURITIES LAWS OF ANY STATE AND MAY BE REOFFERED AND SOLD ONLY IF
SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE."
"AS SPECIFIED IN THE CERTIFICATE OF INCORPORATION OF THE CORPORATION, THE
TRANSFERABILITY OF THESE SECURITIES IS SUBJECT TO RESTRICTION. THE CORPORATION
WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS THE POWERS,
DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL
RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS."
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(c) All certificates representing shares of Common Stock in the
Corporation shall, in addition to other legends that may be required by state or
federal securities laws, bear legends substantially as follows:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR THE SECURITIES LAWS OF ANY STATE AND MAY BE REOFFERED AND SOLD ONLY IF
SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE."
"THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO
REQUESTS THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF AND
THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR
RIGHTS."
provided that, as specified in Section 3(b) hereof, following the Initial Public
Offering, such certificates shall bear the legend(s) in the opinion of counsel
to the Corporation required under the Securities Act or other applicable law.
(d) All certificates representing shares of Stock shall bear such
additional legends as may be required pursuant to applicable law.
10. Record Holders. The Corporation shall be entitled to recognize the
exclusive right of a person registered in its records as the holder of shares of
Class A Stock, Class B Stock, Class D Stock or Common Stock, and such record
holders shall be deemed the holders of such shares for all purposes.
ARTICLE V -- MANAGEMENT OF BUSINESS AND AFFAIRS
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 of its stockholders or any
class thereof, as the case may be, it is further provided:
1. The management of the business and the conduct of the affairs of the
Corporation shall be vested in its Board. The number of directors which shall
constitute the whole Board shall be fixed by, or in the manner provided in, the
Bylaws. The phrase "whole Board" and the phrase "total number of directors"
shall be deemed to have the same meaning, to wit, the total number of directors
which the Corporation would have if there were no vacancies. No election of
directors need be by written ballot.
2. After the original or other Bylaws of the Corporation have been
adopted, amended, or repealed, as the case may be, in accordance with the
provisions of Section 109 of the DGCL, and, after the Corporation has received
any payment for any of
14
its stock, the power to adopt, amend, or repeal the Bylaws of the Corporation
may be exercised by the Board.
ARTICLE VI -- DIRECTOR LIABILITY
No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that (except as set forth below) this Article VI
does not eliminate or limit any such liability imposed by law: (i) for any
breach of the director's duty of loyalty to the Corporation or its 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 DGCL,
or (iv) for any transaction from which the director derived an improper personal
benefit. If the DGCL hereafter is amended to authorize the further elimination
or limitation of the liability of directors, then the liability of a director of
the Corporation shall be further eliminated or limited pursuant to this Article
VI to the fullest extent permitted by the DGCL as so amended. Unless applicable
law requires otherwise, any repeal of this Article VI by the stockholders of the
Corporation, and any modification to this Article VI (other than one further
eliminating or limiting director personal liability) shall be prospective only
and shall not adversely affect any elimination of, or limitation on, the
personal liability of a director of the Corporation existing at the time of such
repeal or modification.
ARTICLE VII -- INDEMNIFICATION
1. Indemnification. To the fullest extent from time to time permitted by
Section 145 of the DGCL, the Corporation shall indemnify each Authorized
Representative (as defined below) of the Corporation who was or is a party or
who was or is threatened to be made a party to or otherwise is involved in any
threatened, pending or completed action, suit or proceeding (including, without
limitation, one by or in the right of the Corporation to procure a judgment in
its favor), whether civil, criminal, administrative or investigative
(hereinafter a "Proceeding"), by reason of the fact that he or she is or was a
director, officer, employee or agent of the Corporation or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, limited liability
company or other enterprise, including service with respect to employee benefit
plans, from and against any and all expenses (including, without limitation,
attorneys' fees and expenses), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such Authorized Representative or on such
Authorized Representative's behalf in connection with such Proceeding. The
Corporation shall make such indemnification to the Authorized Representative
within thirty (30) days after receipt by the Corporation of the written request
of the Authorized Representative for such indemnification unless, within that
time, the Corporation (by resolution of its directors or stockholders or the
written opinion of its independent legal counsel) has determined that the
Authorized Representative is not entitled to such indemnification.
15
2. Advancement of Expenses. Expenses (including attorneys' fees and
expenses) incurred by an Authorized Representative or on such Authorized
Representative's behalf in defending any such Proceeding shall be paid by the
Corporation in advance of the final disposition of such Proceeding, within ten
(10) days after receipt by the Corporation of the written request of the
Authorized Representative for such advance. To the extent required by law, the
Corporation may condition such advance upon the receipt of the written
undertaking of such Authorized Representative or on such Authorized
Representative's behalf to repay such amount if it shall ultimately be
determined that the Authorized Representative is not entitled to be indemnified
by the Corporation. Such undertaking shall not be required to be guarantied by
any other person or collateralized, and shall be accepted by the Corporation
without regard to the financial ability of the person providing such undertaking
to make such repayment
3. Presumptions; Enforcement. For all purposes of this Article VII and to
the fullest extent permitted by applicable law, there shall be a rebuttable
presumption in favor of the Authorized Representative that all requested
indemnifications and advancements of expenses are reasonable and that all
conditions to indemnification or expense advancements, whether required under
this Article VII or the DGCL, have been satisfied. The rights to indemnification
and advancements of expenses provided by, or granted pursuant to, this Article
VII shall be enforceable by any person entitled to such indemnification or
advancement of expenses in any court of competent jurisdiction. Neither the
failure of the Corporation (including the directors, its independent legal
counsel and its stockholders) to have made a determination prior to the
commencement of such action that such indemnification or advancement of expenses
is proper in the circumstances nor an actual determination by the Corporation
(including its directors, independent legal counsel and its stockholders) that
such person in not entitled to indemnification or advancement of expenses shall
constitute a defense to the action or create a presumption that such person is
not so entitled. Such a person shall also be indemnified for any expenses
incurred in connection with successfully establishing his or her right to such
indemnification or advancement of expenses, in whole or in part, in any such
proceeding.
4. Definitions, Etc. As used in this Article VIII, "Authorized
Representative" means: (i) any person who is or was an officer or director of
the Corporation; and (ii) any other person who may be designated by the Board
from time to time as an "Authorized Representative" for purposes of this Article
VII. The provisions of Section 145(h), (i) and (j) of the DGCL and shall apply
to this Article VII.
5. Insurance. The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust, limited liability
company or other enterprise against expense, liability or loss, whether or not
the Corporation would have the power to indemnify such person against such
expense, liability or loss under the DGCL or this Article VII.
6. Article Not Exclusive. The rights to indemnification and to the
advancement of expenses conferred in this Article VII shall not be exclusive of
any other
16
right which any Authorized Representative may have or hereafter acquire under
any statute, this Certificate of Incorporation, any by-law, agreement (including
any insurance policy), vote of stockholders or disinterested directors or
otherwise, both as to action in such Authorized Representative's official
capacity and as to action in another capacity while holding such office. Nothing
in this Article VII shall affect the right of the Corporation to grant rights of
indemnification, and the advancement of expenses, to any other person or in any
other circumstance.
7. Reliance. Each Authorized Representative shall be deemed to have acted
in reliance upon the rights to indemnification and advancement of expenses
established in this Article VII. Unless applicable law requires otherwise, any
repeal or modification of this Article VII (other than a modification expanding
the right to indemnification and expense advancement in favor of Authorized
Representatives) shall be prospective only and shall not adversely affect any
right or benefit of an Authorized Representative to indemnification or expense
advancement at the time of such repeal or modification.
8. Severability. If any portion of this Article VII shall be held to be
illegal, invalid or otherwise unenforceable by any court having appropriate
jurisdiction, then the Corporation nevertheless shall indemnify and advance
expenses to each Authorized Representative to the fullest extent permitted by
the applicable portions of this Article VII not so held to be illegal, invalid,
unenforceable, and otherwise to the fullest extent permitted by law.
9. Related Service. Any director or officer of the Corporation serving in
any capacity in (i) another corporation of which a majority of the shares
entitled to vote in the election of its directors is held, directly or
indirectly, by the Corporation or (ii) any employee benefit plan of the
Corporation or any corporation referred to in clause (i) shall be deemed to be
doing so at the request of the Corporation.
10. Applicable Law. To the extent permitted by law, any person entitled to
indemnification or advancement of expenses as a matter of right pursuant to this
Article VII may elect to have the right to indemnification or advancement of
expenses interpreted on the basis of the applicable law in effect at the time of
the occurrence of the event or events giving rise to the applicable Proceeding,
or on the basis of the applicable law in effect at the time such indemnification
or advancement of expenses is sought. Such election shall be made, by a notice
in writing to the Corporation, at the time indemnification or advancement of
expenses is sought; provided, however, that if no such notice is given, the
right to indemnification or advancement of expenses shall be determined by the
law in effect at the time such indemnification or advancement or expenses is
sought.
ARTICLE VIII -- AMENDMENTS
From time to time any of the provisions of this Certificate of
Incorporation may he amended, altered 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
17
tune 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 Article VIII.
18
IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation
has been duly adopted in accordance with Sections 241 and 245 of the DGCL has
been executed by its duly authorized officer this 16th day of January, 2003.
By: /s/ Simon Moore
-------------------------------
Name: Simon Moore
Title: President and Director
19
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MWM HOLDING, INC.
MWM HOLDING, INC., a corporation organized and existing under the
laws of the State of Delaware, DOES HEREBY CERTIFY AS FOLLOWS:
A. The name of the corporation is MWM HOLDING, INC. (the
"Corporation"). The date of filing of its Certificate of Incorporation
("Certificate of Incorporation") with the Secretary of State of Delaware was
December 27, 2002. The date of filing of its Amended and Restated Certificate of
Incorporation with the Secretary of State of Delaware was January 16, 2003.
B. This restated Certificate of Incorporation, having been duly
adopted in accordance with Sections 242 and 245 of the General Corporation Law
of the State of Delaware (as amended from time to time, the "General Corporation
Law") and by the written consent of the stockholders of the Corporation restates
and further amends the provisions of the Amended and Restated Certificate of
Incorporation.
C. The text of the Certificate of Incorporation is hereby amended
and restated (hereinafter, this "Second Amended and Restated Certificate of
Incorporation") to read as follows:
ARTICLE I.
NAME
The name of the corporation is "MWM Holding, Inc." (the
"Corporation").
ARTICLE II.
ADDRESS; REGISTERED OFFICE AND AGENT
The address of the Corporation's registered office is 615 South
DuPont Highway, Dover, Delaware 19901; and its registered agent at such address
is National Corporate Research, Ltd.
ARTICLE III.
PURPOSES
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law.
2
ARTICLE IV.
CAPITAL STOCK
4.1 Authorized Capital. The total number of shares of stock which
the Corporation shall have authority to issue is Ten Thousand (10,000) shares of
Common Stock par value One Cent ($.01) per share.
4.2 Exchange of Shares. Effective upon the filing of this Second
Amended and Restated Certificate of Incorporation with the Secretary of State of
the State of Delaware, each share of (i) Class A Common Stock issued and
outstanding immediately prior thereto shall, without any action on the part of
the holder thereof, be reclassified as one one hundredth (0.01) of a share of
Common Stock and (ii) Class D Common Stock issued and outstanding immediately
prior thereto shall, without any action on the part of the holder thereof, be
reclassified as one one hundredth (0.01) of a share of Common Stock.
ARTICLE V.
ELECTION OF DIRECTORS
The number of the directors of the Corporation shall be fixed from
time to time by or pursuant to the By-laws of the Corporation. Unless and except
to the extent that the By-laws of the Corporation shall so require, the election
of directors of the Corporation need not be by written ballot. No decrease in
the number of directors constituting the Board of Directors shall shorten the
term of any incumbent director.
ARTICLE VI.
LIMITATION OF LIABILITY
6.1 To the fullest extent permitted under the General Corporation
Law, as amended from time to time, no director of the Corporation shall be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director.
6.2 Any amendment, repeal or modification of the foregoing
provision shall not adversely affect any right or protection of a director of
the Corporation hereunder in respect of any act or omission occurring prior to
the time of such amendment, repeal or modification.
ARTICLE VII.
INDEMNIFICATION
7.1 Right to Indemnification. The Corporation shall indemnify and
hold harmless, to the fullest extent permitted by applicable law as it presently
exists or
3
may hereafter be amended, any person (a "Covered Person") who was or is made or
is threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that he or she, or a person for whom he or
she is the legal representative, is or was a director or officer of the
Corporation or, while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or nonprofit entity (an "Other Entity"), including service with
respect to employee benefit plans, against all liability and loss suffered and
expenses (including attorneys' fees) reasonably incurred by such Covered Person.
Notwithstanding the preceding sentence, except as otherwise provided in Section
7.3, the Corporation shall be required to indemnify a Covered Person in
connection with a Proceeding (or part thereof) commenced by such Covered Person
only if the commencement of such Proceeding (or part thereof) by the Covered
Person was authorized by the Board of Directors.
7.2 Prepayment of Expenses. The Corporation shall pay the expenses
(including attorneys' fees) incurred by a Covered Person in defending any
Proceeding in advance of its final disposition, provided, however, that, to the
extent required by applicable law, such payment of expenses in advance of the
final disposition of the Proceeding shall be made only upon receipt of an
undertaking by the Covered Person to repay all amounts advanced if it should be
ultimately determined that the Covered Person is not entitled to be indemnified
under this Article 7 or otherwise.
7.3 Claims. If a claim for indemnification or advancement of
expenses under this Article 7 is not paid in full within thirty (30) days after
a written claim therefor by the Covered Person has been received by the
Corporation, the Covered Person may file suit to recover the unpaid amount of
such claim and, if successful in whole or in part, shall be entitled to be paid
the expense of prosecuting such claim. In any such action the Corporation shall
have the burden of proving that the Covered Person is not entitled to the
requested indemnification or advancement of expenses under applicable law.
7.4 Nonexclusivity of Rights. The rights conferred on any Covered
Person by this Article 7 shall not be exclusive of any other rights that such
Covered Person may have or hereafter acquire under any statute, provision of
this Certificate of Incorporation, the By-laws, agreement, vote of stockholders
or disinterested directors or otherwise.
7.5 Other Sources. The Corporation's obligation, if any, to
indemnify or to advance expenses to any Covered Person who was or is serving at
its request as a director, officer, employee or agent of an Other Entity shall
be reduced by any amount such Covered Person may collect as indemnification or
advancement of expenses from such Other Entity.
7.6 Amendment or Repeal. Any repeal or modification of the
foregoing provisions of this Article 7 shall not adversely affect any right or
protection hereunder of any Covered Person in respect of any act or omission
occurring prior to the time of such repeal or modification.
4
7.7 Other Indemnification and Prepayment of Expenses. This Article
7 shall not limit the right of the Corporation, to the extent and in the manner
permitted by applicable law, to indemnify and to advance expenses to persons
other than Covered Persons when and as authorized by appropriate corporate
action.
ARTICLE VIII.
ADOPTION, AMENDMENT AND/OR REPEAL OF BY-LAWS
In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the Board is expressly authorized to make, alter
and repeal the By-laws, subject to the power of the stockholders of the
Corporation to alter or repeal any By-law whether adopted by them or otherwise.
ARTICLE IX.
CERTIFICATE AMENDMENTS
The Corporation reserves the right at any time, and from time to
time, to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation, 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
now or hereafter prescribed by applicable law; and all rights, preferences and
privileges of whatsoever nature conferred upon stockholders, directors or any
other persons whomsoever by and pursuant to this Certificate of Incorporation in
its present form or as hereafter amended are granted subject to the rights
reserved in this article.
[Signature Page Follows]
5
IN WITNESS WHEREOF, I, Lee D. Meyer, Vice President of MWM HOLDING,
INC. have executed this Amended and Restated Certificate of Incorporation as of
the 27 day of August, 2004, and DO HEREBY CERTIFY under the penalties of perjury
that the facts stated in this Second Amended and Restated Certificate of
Incorporation are true.
/s/ Lee D. Meyer
------------------------------------
Lee D. Meyer
Vice President