EXHIBIT 3.25
CERTIFICATE OF INCORPORATION
of
BROWN MOULDING HOLDING CORP.
1. The name of this corporation is Brown Moulding Holding Corp.
2. The registered office of this corporation in the State of Delaware is
located at 1013 Centre Road, in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is Corporation Service Company.
3. The purpose of this 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.
4. The total number of shares of stock that this corporation shall have
authority to issue is 3,000 shares of Common Stock, $.01 par value per share.
Each share of Common Stock shall be entitled to one vote.
5. The name and mailing address of the incorporator is: Sean W. Mullaney,
One International Place, Boston, Massachusetts 02110.
6. Except as provided to the contrary in the provisions establishing a
class or series of stock, the amount of the authorized stock of this corporation
of any class or classes may be increased or decreased by the affirmative vote of
the holders of a majority of the stock of this corporation entitled to vote.
7. The election of directors need not be by ballot unless the by-laws
shall so require.
8. In furtherance and not in limitation of the power conferred upon the
board of directors by law, the board of directors shall have power to make,
adopt, alter, amend and repeal from time to time by-laws of this corporation,
subject to the right of the stockholders entitled to vote with respect thereto
to alter and repeal by-laws made by the board of directors.
9. A director of this corporation shall not be liable to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent that exculpation from liability is not permitted
under the General Corporation Law of the State of Delaware as in effect at the
time such liability is determined. No amendment or repeal of this paragraph 9
shall apply to or have any effect on the liability or alleged liability of any
director of the corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment or repeal.
10. This corporation shall, to the maximum extent permitted from time to
time under the law of the State of Delaware, indemnify and upon request shall
advance expenses to any person who is or was a party or is threatened to be made
a party to any threatened, pending or completed action, suit, proceeding or
claim, whether civil, criminal, administrative or investigative, by reason of
the fact that such person is or was or has agreed to be a director or officer of
this corporation or while a director or officer is or was serving at the request
of this corporation as a director, officer, partner, trustee, employee or agent
of any corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, against expenses
(including attorney's fees and expenses), judgments, fines, penalties and
amounts paid in settlement incurred in connection with the investigation,
preparation to defend or defense of such action, suit, proceeding or claim;
provided, however, that the foregoing shall not require this corporation to
indemnify or advance expenses to any person in connection with any action, suit,
proceeding, claim or counterclaim initiated by or on behalf of such person. Such
indemnification shall not be exclusive of other indemnification rights arising
under any by-law, agreement, vote of directors or stockholders or otherwise and
shall inure to the benefit of the heirs and legal representatives of such
person. Any person seeking indemnification under this paragraph 10 shall be
deemed to have met the standard of conduct required for such indemnification
unless the contrary shall be established. Any repeal or modification of the
foregoing provisions of this paragraph 10 shall not adversely affect any right
or protection of a director or officer of this corporation with respect to any
acts or omissions of such director or officer occurring prior to such repeal or
modification.
11. The books of this corporation may (subject to any statutory
requirements) be kept outside the State of Delaware as may be designated by the
board of directors or in the by-laws of this corporation.
12. If at any time this corporation shall have a class of stock registered
pursuant to the provisions of the Securities Exchange Act of 1934, for so long
as such class is so registered, any action by the stockholders of such class
must be taken at an annual or special meeting of stockholders and may not be
taken by written consent.
THE UNDERSIGNED, the sole incorporator named above, hereby certifies that
the facts stated above are true as of this 1st day of September, 1995.
/s/ Sean W. Mullane
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Sean W. Mullane
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CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
BROWN MOULDING HOLDING CORP.
BROWN MOULDING HOLDING CORP. (the "Corporation"), a corporation duly
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware, DOES HEREBY CERTIFY AS FOLLOWS:
FIRST: That by written consent, dated September 26, 1996, of the Board of
Directors of the Corporation, resolutions were duly adopted setting for
the proposed amendment to the Certificate of Incorporation of the
Corporation, declaring such amendment to be advisable and directing
that the amendment be presented to the stockholders of the Corporation
for their consideration. The resolution setting forth the proposed
amendment is as follows:
RESOLVED: That the Board of Directors of this Corporation deems it
advisable that the Certificate of Incorporation of the
Corporation be amended so that Section 4 thereof reads in its
entirety as set forth in Exhibit A hereto and directs that
such amendment be submitted to the sole stockholder of the
Corporation for its approval; that upon approval by the sole
stockholder of the Corporation, the officers of this
Corporation are severally authorized and directed to execute
and to cause the amended Certificate of Incorporation to be
duly filed with the Secretary of State of the State of
Delaware and to take any and all such further action as such
officer or officers deem necessary or appropriate to
effectuate said amendment.
SECOND: That, thereafter, pursuant to the aforementioned resolution adopted by
the Board of Directors, the sole stockholder of this Corporation duly
adopted the proposed amendment of the Certificate of Incorporation of
the Corporation set forth above in accordance with Section 242 of the
General Corporation Law of the State of Delaware.
THIRD: That said amendment was duly adopted in accordance with the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned BROWN MOULDING HOLDING CORP., has
caused this Certificate of Amendment of Certificate of Incorporation to be
executed and attested on its behalf by Andrea Geisser, its Vice President and
Richard Dresdale, its Secretary, on and as of this 26th day of September, 1996.
BROWN MOULDING HOLDING CORP.
By: /s/ Andrea Geisser
--------------------------------
Andrea Geisser
Vice President
ATTEST:
/s/ Richard Dresdale
- --------------------------
Richard Dresdale
Secretary
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Exhibit A
4. The total number of shares of capital stock that this Corporation shall have
authority to issue is 1,100,000 shares, consisting of (a) 100,000 shares of
Convertible Preferred Stock, par value $0.01 per share (the "Preferred Stock"),
and (b) 1,000,000 shares of Common Stock, par value $0.01 per share ("Common
Stock").
The following is a statement of the designations, powers, preferences, and
rights, and the qualifications, limitations and restrictions, granted to or
imposed upon the shares of each such class of capital stock.
A. PREFERRED STOCK
The designations, powers, preferences, and rights, and the qualifications,
limitations and restrictions, granted to or imposed on the Preferred Stock are
as follows:
1. Dividends/Distributions.
1.1 Preferred Stock.
1.1.1. Dividends shall accrue on each share of Preferred Stock on a daily
basis and at the Dividend Rate (as defined herein) from time to time in effect,
beginning on the date of issuance of such share. The holders of shares of
Preferred Stock shall be entitled to receive, when and as declared by the Board
of Directors, dividends payable on September 30 in each year (each such date
being a "Dividend Payment Date") in an amount equal to all accrued and unpaid
dividends on the Preferred Stock; provided, however, that if and to the extent
that the holder of a share of Preferred Stock does not receive on any given
Dividend Payment Date payment of the accrued and unpaid dividend on such share
of Preferred Stock or any previously cumulated dividend for the period ending on
such Dividend Payment Date and beginning on the immediately preceding Dividend
Payment Date, such dividend shall be cumulative and shall itself accrue, whether
or not declared, from and after such date dividends on a daily basis and an
annual rate equal to the Dividend Rate from time to time in effect (calculated,
for this purpose, as a percentage of such cumulated dividend equal to such
Dividend Rate divided by $100.00 and expressed as a percentage).
1.1.2. As used herein, the term "Dividend Rate" shall mean $10.00 per
annum; provided, however, that in no event shall the Dividend Rate exceed the
maximum rate permitted by applicable law if any such maximum rate shall exist.
1.1.3. Dividends may be paid on the Preferred Stock, from time to time at
the option of the Board of Directors, (a) in cash, (b) in shares of Preferred
Stock, with each such share being ascribed a value of $100.00 or (c) in any
combination of the forms described in the immediately preceding clauses (a) and
(b).
1.1.4. No dividend shall be paid or declared, and no distribution shall be
made, on the Common Stock (other than a stock dividend payable solely in shares
of Common Stock) at any time when any shares of Preferred Stock are outstanding.
1.1.5. Upon any conversion of any share of Preferred Stock pursuant to the
provisions hereof, all unpaid dividends (whether or not declared) on such share
to and until the date of such conversion shall be forfeited and thereafter never
become due and payable.
2. Redemptions Preferred Stock.
2.1 Preferred Stock Redemption Price. The Preferred Stock shall be
redeemable as hereinafter set forth upon payment in cash in respect of each
share redeemed of the sum of $100.00 plus an amount equal to dividends accrued
but unpaid to the date of redemption (the "Preferred Stock Redemption Price").
Subject to the provisions hereof, the Board of Directors shall have authority to
prescribe the manner in which the Preferred Stock shall be redeemed from time to
time.
2.2 Optional Redemption. At any time and from time to time the Corporation
may at its option by resolution of its Board of Directors redeem, at the
Preferred Stock Redemption Price, all or any part of the shares of the Preferred
Stock then outstanding; provided, however, that in the case of any redemption of
only a part of the outstanding shares of Preferred Stock, there shall be so
redeemed from each record holder thereof in whole shares of Preferred Stock, as
nearly as possible to the nearest whole share, the proportion of all shares of
Preferred Stock to be redeemed which the number of shares of Preferred Stock
held of record as of the record date for such redemption by such holder bears to
the total number of shares of Preferred Stock of record outstanding as of such
date. Not fewer than 15 nor more than 60 days' prior written notice shall be
given by certified mail, postage prepaid, to each holder of record of the shares
of Preferred Stock to be redeemed, at such holder's post office address as shown
in the records of the Corporation, and said notice shall specify the amount to
be paid per share upon such redemption, the place and the date, which date shall
not be a legal holiday, on which the shares called for redemption will be
redeemed.
2.3 Payment of Redemption Price. The redemption price of shares of
Preferred Stock shall be paid in cash.
3. Liquidation Preference. In the event of any liquidation, dissolution or
winding up of the Corporation, either voluntary or involuntary, distributions to
the stockholders of the Corporation shall be made in the following manner and
subject to the following preferences.
3.1 Preferred Stock. The holders of Preferred Stock shall first be
entitled to receive, prior and in preference to any distribution of any of the
assets of the Corporation to the holders of the Common Stock or any other class
or series of capital stock of the Corporation, by reason of their ownership of
such stock, an amount per share equal to the
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sum of (i) $100.00 plus (ii) all accrued and unpaid dividends on such share
(such sum being hereinafter referred to as the "Preferential Amount"). If the
assets and funds of the Corporation shall be insufficient to permit the payment
in full to such holders of Preferred Stock of the full Preferential Amount, then
the entire assets of the Corporation legally available for distribution to the
stockholders shall be distributed ratably among the holders of Preferred Stock
in accordance with the aggregate Preferential Amount of the shares of Preferred
Stock held by each of them.
3.2 Consolidations, Merger, Etc. The consolidation or merger of the
Corporation into or with any other entity or entities which results in the
exchange of outstanding shares of the Common Stock of the Corporation for
securities or other consideration issued or paid or caused to be issued or paid
by any such entity or affiliate thereof, and the sale or transfer by the
Corporation of all or substantially all its assets, shall be deemed to be a
liquidation, dissolution or winding up of the Corporation within the meaning of
these provisions of the Preferred Stock.
4. Voting Rights of Preferred Stock. Except as otherwise hereinafter provided in
this Certificate of Incorporation or as required by applicable law which cannot
be superseded by the provisions of this Certificate of Incorporation, the
holders of the outstanding shares of Preferred Stock shall possess no voting
power whatsoever, either general or specific.
4.1 Amendments to Terms of Preferred Stock. So long as any shares of
Preferred Stock shall be outstanding, the holders of the Preferred Stock shall
be entitled to vote together as a single class on any amendments to the terms of
the Preferred Stock, and such terms shall not be amended without the affirmative
vote of the holders of a majority of the outstanding shares of Preferred Stock.
5. Conversion. The holders of the Preferred Stock shall have conversion rights
as follows:
5.1 Right of Conversion. Each share of Preferred Stock shall be
convertible at the option of the holder thereof at any time at the office of the
Corporation or any transfer agent for the Preferred Stock into the number of
shares of the Common Stock of the Corporation obtained by dividing $100.00 by
the conversion price in effect at the time of conversion, determined as
hereinafter provided (the "Conversion Price"). The initial Conversion Price
shall be $100.00 per share. All calculations under this numbered paragraph 5.1
shall be made to the nearest one hundredth of a cent.
5.2 Automatic Conversion. Each share of Preferred Stock shall
automatically be converted into shares of Common Stock at the then effective
Conversion Price at any time upon the written consent of holders of a majority
of the outstanding shares of Preferred Stock. Following any conversion of any
shares of Preferred Stock pursuant to this paragraph the holders thereof shall
no longer be entitled to receive the Preferential Amount or any portion thereof
in respect of the share of Preferred Stock so converted.
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5.3 Mechanics of Conversion. Before any holder of Preferred Stock shall be
entitled to convert the same into shares of Common Stock and to receive
certificates therefor, he shall surrender the Preferred Stock certificates, duly
endorsed, at the head office of the Corporation or of any transfer agent for the
Preferred Stock, and shall give written notice to the Corporation at such office
that he elects to convert the same; provided, however, that in the event of an
automatic conversion pursuant to the preceding paragraph 5.2, the outstanding
shares of Preferred Stock subject to automatic conversion shall be converted
automatically without any further action by the holders of such shares and
whether or not the certificates representing such shares are surrendered to the
Corporation or its transfer agent; and provided, further that the Corporation
shall not be obligated to issue certificates evidencing the shares of Common
Stock issuable upon such automatic conversion unless the certificates evidencing
such shares of Preferred Stock are either delivered to the Corporation or its
transfer agent as provided above, or the holder notifies the Corporation or its
transfer agent that such certificates have been lost, stolen or destroyed and
executes an agreement reasonably satisfactory to the Corporation to indemnify
the Corporation and any transfer agent from any loss incurred by it in
connection with such certificates. The Corporation shall, as soon as practicable
after such delivery, or execution of such agreement in the case of a lost,
stolen or destroyed certificate, issue and deliver at such office to such holder
of Preferred Stock, a certificate or certificates for the number of shares of
Common Stock to which he shall be entitled as aforesaid. Such conversion shall
be deemed to have been made immediately prior to the close of business on the
date of such surrender of the shares of Preferred Stock to be converted, or in
the case of automatic conversion, immediately upon or obtaining the required
written consent, and the person entitled to receive the shares of Common Stock
issuable upon such conversion shall be treated for all purposes as the record
holder of such shares of Common Stock as of such time.
5.4 Adjustments of Conversion Price for Subdivisions, Stock Dividends,
Combinations or Consolidation of Common Stock. In the event the outstanding
shares of Common Stock shall be increased by way of stock issued as a dividend
for no consideration or subdivided (by stock split or otherwise) into a greater
number of shares of Common Stock, the Conversion Price then in effect shall,
concurrently with the effectiveness of such increase or subdivision, be
proportionately decreased. In the event the outstanding shares of Common Stock
shall be combined or consolidated, by reclassification or otherwise, into a
lesser number of shares of Common Stock, the Conversion Price then in effect
shall, concurrently with the effectiveness of such combination or consolidation,
be proportionately increased.
5.5 Subsequent Events. In the event of any recapitalization, consolidation
or merger of the Corporation or its successor, the shares of Preferred Stock
shall be convertible into such shares or other interests as the Preferred Stock
would have been entitled if the Preferred Stock had been converted into Common
Stock immediately prior to such event.
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6. Covenants.
6.1 No Impairment. The Corporation will not, by amendment of its
Certificate of Incorporation or through any reorganization, recapitalization,
transfer of all or a substantial portion of its assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms to be observed
or performed under this Section 4 of its Certificate of Incorporation by the
Corporation, but will at all times in good faith assist in carrying out all the
provisions of this Section 4 and in taking all such action as may be necessary
or appropriate in order to protect the rights and privileges of the holders of
Preferred Stock against impairment.
6.2 Reservation of Shares. So long as any share of Preferred Stock shall
remain outstanding, the Corporation shall at all times reserve and keep
available, free from preemptive rights, out of its authorized capital stock, for
the purpose of issuance upon conversion of the Preferred Stock, the full number
of shares of Common Stock then issuable upon conversion of all outstanding
shares of Preferred Stock. If the Corporation's Common Stock shall be listed on
any national stock exchange, the Corporation at its expense shall include in its
listing application all of the shares of Common Stock reserved for issuance upon
conversion of the Preferred Stock (subject to issuance or notice of issuance to
the exchange) and will similarly procure the listing of any further Common Stock
reserved for issuance upon conversion of the Preferred Stock at any subsequent
time as a result of adjustments in the outstanding Common Stock or otherwise.
6.3 Validity of Shares. The Corporation agrees that it will from time to
time take all such action as may be required to assure that all shares of Common
Stock which may be issued upon conversion of any share of Preferred Stock will,
upon issuance, be legally and validly issued, fully paid and non-assessable and
free from all taxes, liens and charges with respect to the issuance thereof;
and, without limiting the generality of the foregoing, the Corporation agrees
that it will from time to time take all such action as may be required to assure
that the par value per share, if any, of the Common Stock is at all times equal
to or less than the lowest quotient obtained by dividing the then current par
value of Preferred Stock by the number of shares of Common Stock into which each
share of Preferred Stock can, from time to time, be converted.
6.4 Notice of Certain Events. If at any time:
(a) the Corporation shall declare any dividend or distribution
payable to the holders of its Common Stock;
(b) the Corporation shall offer for subscription pro rata to the
holders of Common Stock any additional shares of stock of any class or any
other rights;
(c) there shall be any recapitalization of the Corporation, or
consolidation or merger of the Corporation with, or sale of all or
substantially all of its assets to, another corporation, business
organization or other person; or
5
(d) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Corporation;
then, in any one or more of such cases, the Corporation shall give the
registered holders of the Preferred Stock written notice, by registered or
certified mail, of the date on which a record shall be taken for such dividend,
distribution or subscription rights or for determining stockholders entitled to
vote upon such recapitalization, consolidation, merger, sale, dissolution,
liquidation or winding up and of the date when any such transaction shall take
place, as the case may be. Such written notice shall be given at least 20 days
prior to the applicable record date. Such notice shall also specify the date as
of which the holders of Common Stock of record shall participate in such
dividend, distribution or subscription rights, or shall be entitled to exchange
their Common Stock for securities or other property deliverable upon such
recapitalization, consolidation, merger, sale, dissolution, liquidation or
winding up, as the case may be.
7. No Reissuance of Preferred Stock. No shares of Preferred Stock acquired by
the Corporation by reason of redemption, purchase, conversion or otherwise shall
be reissued, and all such shares shall be canceled, retired and eliminated from
the shares which the Corporation shall be authorized to issue. The Corporation
may from time to time take such appropriate corporate action as may be necessary
to reduce the authorized number of shares of Preferred Stock accordingly.
B. COMMON STOCK
The designations, powers, preferences, and rights, and the qualifications,
limitations and restrictions, granted to or imposed upon the Common Stock shall
be as follows:
1. Dividends. Subject to the rights of holders of any class or series of capital
stock entitled to a preference, the holders of shares of the Common Stock will
be entitled to receive when, as, and if declared by the Board of Directors, out
of funds legally available therefor, dividends in such amounts and payable on
such dates as shall be determined by the Board of Directors.
2. Distribution of Assets. In the event of the voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the holders of shares
of the Common Stock will be entitled to receive on a ratable basis all of the
remaining assets of the Corporation available for distribution to its
stockholders after payment to the holders of shares of any class or series of
capital stock having preferential rights to receive distributions of such
assets.
3. Voting Rights. The holders of shares of the Common Stock shall have the
general right to vote for all purposes, including the election of directors, as
provided by law. Each holder of shares of the Common Stock shall be entitled to
one vote for each share thereof registered in his name on the books of the
Corporation.
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CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
BROWN MOULDING HOLDING CORP.
BROWN MOULDING HOLDING CORP. (the "Corporation"), a corporation duly
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware, DOES HEREBY CERTIFY AS FOLLOWS:
FIRST: That by written consent, dated March 6, 1997 of the Board of
Directors of the Corporation, resolutions were duly adopted
setting forth the proposed amendment to the Certificate of
Incorporation of the Corporation, declaring such amendment to
be advisable and directing that the amendment be presented to
the stockholders of the Corporation for their consideration.
The resolution setting forth the proposed amendment is as
follows:
RESOLVED: That the Board of Directors of this Corporation
deems it advisable that the Certificate of
Incorporation of the Corporation be amended so that
Section 4 thereof reads in its entirety as set
forth in Exhibit A hereto and directs that such
amendment be submitted to the sole stockholder of
the Corporation for its approval; that upon
approval by the sole stockholder of the
Corporation, the officers of this Corporation are
severally authorized and directed to execute and to
cause the amended Certificate of Incorporation to
be duly filed with the Secretary of State of the
State of Delaware and to take any and all such
further action as such officer or officers deem
necessary or appropriate to effectuate said
amendment.
SECOND: That, thereafter, pursuant to the aforementioned resolution
adopted by the Board of Directors, the sole stockholder of
this Corporation duly adopted the proposed amendment of the
Certificate of Incorporation of the Corporation set forth
above in accordance with Section 242 of the General
Corporation Law of the State of Delaware.
THIRD: That said amendment was duly adopted in accordance with the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned BROWN MOULDING HOLDING CORP., has
caused this Certificate of Amendment of Certificate of Incorporation to be
executed and attested on its behalf by Andrea Geisser, its Vice President and
Richard Dresdale, its Secretary, on and as of this 6th day of March, 1997.
BROWN MOULDING HOLDING CORP.
By: /s/ Andrea Geisser
--------------------------
Andrea Geisser
Vice President
ATTEST:
/s/ Richard Dresdale
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Richard Dresdale
Secretary
- 2 -
EXHIBIT A
4. The total number of shares of capital stock that this Corporation shall have
authority to issue is 110,000 shares, consisting of (a) 10,000 shares of
Convertible Preferred Stock, par value $0.01 per share (the "Preferred Stock"),
and (b) 100,000 shares of Common Stock, par value $0.01 per share ("Common
Stock").
The following is a statement of the designations, powers, preferences, and
rights, and the qualifications, limitations and restrictions, granted to or
imposed upon the shares of each such class of capital stock.
A. PREFERRED STOCK
The designations, powers, preferences, and rights, and the qualifications,
limitations and restrictions, granted to or imposed on the Preferred Stock are
as follows:
1. Dividends Distributions.
1.1. Preferred Stock.
1.1.1. Dividends shall accrue on each share of Preferred Stock on a
daily basis and at the Dividend Rate (as defined herein) from time to time in
effect, beginning on the date of issuance of such share. The holders of shares
of Preferred Stock shall be entitled to receive, when and as declared by the
Board of Directors, dividends payable on September 30 in each year (each such
date being a "Dividend Payment Date") in an amount equal to all accrued and
unpaid dividends on the Preferred Stock; provided, however, that if and to the
extent that the holder of a share of Preferred Stock does not receive on any
given Dividend Payment Date payment of the accrued and unpaid dividend on such
share of Preferred Stock or any previously cumulated dividend for the period
ending on such Dividend Payment Date and beginning on the immediately preceding
Dividend Payment Date, such dividend shall be cumulative and shall itself
accrue, whether or not declared, from and after such date dividends on a daily
basis and an annual rate equal to the Dividend Rate from time to time in effect
(calculated, for this purpose, as a percentage of such cumulated dividend equal
to such Dividend Rate divided by $1,000.00 and expressed as a percentage).
1.1.2. As used herein, the term "Dividend Rate" shall mean $100.00
per annum; provided, however, that in no event shall the Dividend Rate exceed
the maximum rate permitted by applicable law if any such maximum rate shall
exist.
1.1.3. Dividends may be paid on the Preferred Stock, from time to
time at the option of the Board of Directors, (a) in cash, (b) in shares of
Preferred Stock, with each such share being ascribed a value of $1,000.00 or (c)
in any combination of the forms described in the immediately preceding clauses
(a) and (b).
1.1.4. No dividend shall be paid or declared, and no distribution
shall be made, on the Common Stock (other than a stock dividend payable solely
in shares of Common Stock) at any time when any shares of Preferred Stock are
outstanding.
1.1.5. Upon any conversion of any share of Preferred Stock pursuant
to the provisions hereof, all unpaid dividends (whether or not declared) on such
share to and until the date of such conversion shall be forfeited and thereafter
never become due and payable.
2. Redemptions Preferred Stock.
2.1. Preferred Stock Redemption Price. The Preferred Stock shall be
redeemable as hereinafter set forth upon payment in cash in respect of each
share redeemed of the sum of $1,000.00 plus an amount equal to dividends accrued
but unpaid to the date of redemption (the "Preferred Stock Redemption Price").
Subject to the provisions hereof, the Board of Directors shall have authority to
prescribe the manner in which the Preferred Stock shall be redeemed from time to
time.
2.2. Optional Redemption. At any time and from time to time the
Corporation may at its option by resolution of its Board of Directors redeem, at
the Preferred Stock Redemption Price, ail or any part of the shares of the
Preferred Stock then outstanding; provided, however, that in the case of any
redemption of only a part of the outstanding shares of Preferred Stock, there
shall be so redeemed from each record holder thereof in whole shares of
Preferred Stock, as nearly as possible to the nearest whole share, the
proportion of all shares of Preferred Stock to be redeemed which the number of
shares of Preferred Stock held of record as of the record date for such
redemption by such holder bears to the total number of shares of Preferred Stock
of record outstanding as of such date. Not fewer than 15 nor more than 60 days'
prior written notice shall be given by certified mail, postage prepaid, to each
holder of record of the shares of Preferred Stock to be redeemed, at such
holder's post office address as shown in the records of the Corporation, and
said notice shall specify the amount to be paid per share upon such redemption,
the place and the date, which date shall not be a legal holiday, on which the
shares called for redemption will be redeemed.
2.3. Payment of Redemption Price. The redemption price of shares of
Preferred Stock shall be paid in cash.
3. Liquidation Preference. In the event of any liquidation, dissolution or
winding up of the Corporation, either voluntary or involuntary, distributions to
the stockholders of the Corporation shall be made in the following manner and
subject to the following preferences.
3.1. Preferred Stock. The holders of Preferred Stock shall first be
entitled to receive, prior and in preference to any distribution of any of the
assets of the Corporation to the holders of the Common Stock or any other class
or series of capital stock of the Corporation, by reason of their ownership of
such stock, an amount per share equal to the sum of (i) $1,000.00 plus (ii) all
accrued and unpaid dividends on such share (such sum
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being hereinafter referred to as the "Preferential Amount"). If the assets and
funds of the Corporation shall be insufficient to permit the payment in full to
such holders of Preferred Stock of the full Preferential Amount, then the entire
assets of the Corporation legally available for distribution to the stockholders
shall be distributed ratably among the holders of Preferred Stock in accordance
with the aggregate Preferential Amount of the shares of Preferred Stock held by
each of them.
3.2. Consolidations, Merger, Etc. The consolidation or merger of the
Corporation into or with any other entity or entities which results in the
exchange of outstanding shares of the Common Stock of the Corporation for
securities or other consideration issued or paid or caused to be issued or paid
by any such entity or affiliate thereof, and the sale or transfer by the
Corporation of all or substantially all its assets, shall be deemed to be a
liquidation, dissolution or winding up of the Corporation within the meaning of
these provisions of the Preferred Stock.
4. Voting Rights of Preferred Stock. Except as otherwise hereinafter provided in
this Certificate of Incorporation or as required by applicable law which cannot
be superseded by the provisions of this Certificate of Incorporation, the
holders of the outstanding shares of Preferred Stock shall possess no voting
power whatsoever, either general or specific.
4.1. Amendments to Terms of Preferred Stock. So long as any shares of
Preferred Stock shall be outstanding, the holders of the Preferred Suck shall be
entitled to vote together as a single class on any amendment to the terms of the
Preferred Stock, and such terms shall not be amended without the affirmative
vote of the holders of a majority of the outstanding shares of Preferred Stock.
5. Conversion. The holders of the Preferred Stock shall have conversion rights
as follows:
5.1. Right of Conversion. Each share of Preferred Stock shall be
convertible at the option of the holder thereof at any time at the office of the
Corporation or any transfer agent for the Preferred Stock into the number of
shares of the Common Stock of the Corporation obtained by dividing $1,000.00 by
the conversion price in effect at the time of conversion, determined as
hereinafter provided (the "Conversion Price"). The initial Conversion Price
shall be $1,000.00 per share. All calculations under this numbered paragraph 5.1
shall be made to the nearest one hundredth of a cent.
5.2. Automatic Conversion. Each share of Preferred Stock shall
automatically be converted into shares of Common Stock at the then effective
Conversion Price at any time upon the written consent of holders of a majority
of the outstanding shares of Preferred Stock. Following any conversion of any
shares of Preferred Stock pursuant to this paragraph the holders thereof shall
no longer be entitled to receive the Preferential Amount or any portion thereof
in respect of the share of Preferred Stock so converted.
5.3. Mechanics of Conversion. Before any holder of Preferred Stock shall
be entitled to convert the same into shares of Common Stock and to receive
certificates
- 3 -
therefor, he shall surrender the Preferred Stock certificates, duly endorsed, at
the head office of the Corporation or of any transfer agent for the Preferred
Stock, and shall give written notice to the Corporation at such office that he
elects to convert the same; provided, however, that in the event of an automatic
conversion pursuant to the preceding paragraph 5.2, the outstanding shares of
Preferred Stock subject to automatic conversion shall be converted automatically
without any further action by the holders of such shares and whether or not the
certificates representing such shares are surrendered to the Corporation or its
transfer agent; and provided, further that the Corporation shall not be
obligated to issue certificates evidencing the shares of Common Stock issuable
upon such automatic conversion unless the certificates evidencing such shares of
Preferred Stock are either delivered to the Corporation or its transfer agent as
provided above, or the holder notifies the Corporation or its transfer agent
that such certificates have been lost, stolen or destroyed and executes an
agreement reasonably satisfactory to the Corporation to indemnify the
Corporation and any transfer agent from any loss incurred by it in connection
with such certificates. The Corporation shall, as soon as practicable after such
delivery, or execution of such agreement in the case of a lost, stolen or
destroyed certificate, issue and deliver at such office to such holder of
Preferred Stock, a certificate or certificates for the number of shares of
Common Stock to which he shall be entitled as aforesaid. Such conversion shall
be deemed to have been made immediately prior to the close of business on the
date of such surrender of the shares of Preferred Stock to be converted, or in
the case of automatic conversion, immediately upon or obtaining the required
written consent, and the person entitled to receive the shares of Common Stock
issuable upon such conversion shall be treated for all purposes as the record
holder of such shares of Common Stock as of such time.
5.4. Adjustments of Conversion Price for Subdivisions, Stock Dividends,
Combinations or Consolidation of Common Stock. In the event the outstanding
shares of Common Stock shall be increased by way of stock issued as a dividend
for no consideration or subdivided (by stock split or otherwise) into a greater
number of shares of Common Stock, the Conversion Price then in effect shall,
concurrently with the effectiveness of such increase or subdivision, be
proportionately decreased. In the event the outstanding shares of Common Stock
shall be combined or consolidated, by reclassification or otherwise, into a
lesser number of shares of Common Stock, the Conversion Price then in effect
shall, concurrently with the effectiveness of such combination or consolidation,
be proportionately increased.
5.5. Subsequent Events. In the event of any recapitalization,
consolidation or merger of the Corporation or its successor, the shares of
Preferred Stock shall be convertible into such shares or other interests as the
Preferred Stock would have been entitled if the Preferred Stock had been
converted into Common Stock immediately prior to such event.
6. Covenants.
6.1. No Impairment. The Corporation will not, by amendment of its
Certificate of Incorporation or through any reorganization, recapitalization,
transfer of all
- 4 -
or a portion of its assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed under this
Section 4 of its Certificate of Incorporation by the Corporation, but will at
all times in good faith assist in carrying out all the provisions of this
Section 4 and in taking all such action as may be necessary or appropriate in
order to protect the rights and privileges of the holders of Preferred Stock
against impairment.
6.2. Reservation of Shares. So long as any share of Preferred Stock shall
remain outstanding, the Corporation shall at all tunes reserve and keep
available, free from preemptive rights, out of its authorized capital stock, for
the purpose of issuance upon conversion of the Preferred Stock, the full number
of shares of Common Stock then issuable upon conversion of all outstanding
shares of Preferred Stock. If the Corporation's Common Stock shall be listed on
any national stock exchange, the Corporation at its expense shall include in its
listing application all of the shares of Common Stock reserved for issuance upon
conversion of the Preferred Stock (subject to issuance or notice of issuance to
the exchange) and will similarly procure the listing of any further Common Stock
reserved for issuance upon conversion of the Preferred Stock at any subsequent
time as a result of adjustments in the outstanding Common Stock or otherwise.
6.3. Validity of Shares. The Corporation agrees that it will from time to
time take all such action as may be required to assure that all shares of Common
Stock which may be issued upon conversion of any share of Preferred Stock will,
upon issuance, be legally and validly issued, fully paid and non-assessable and
free from all taxes, liens and charges with respect to the issuance thereof;
and, without limiting the generality of the foregoing, the Corporation agrees
that it will from time to time take all such action as may be required to assure
that the par value per share, if any, of the Common Stock is at all times equal
to or less than the lowest quotient obtained by dividing the then current par
value of Preferred Stock by the number of shares of Common Stock into which each
share of Preferred Stock can, from time to time, be converted.
6.4. Notice of Certain Events. If at any time:
(a) the Corporation shall declare any dividend or distribution payable to
the holders of its Common Stock;
(b) the Corporation shall offer for subscription pro rata to the holders
of Common Stock any additional shares of stock of any class or any other rights;
(c) there shall be any recapitalization of the Corporation, or
consolidation or merger of the Corporation with, or sale of all or substantially
all of its assets to, another corporation, business organization or other
person; or
(d) there shall be a voluntary or involuntary dissolution, liquidation or
winding up of the Corporation;
- 5 -
then, in any one or more of such cases, the Corporation shall give the
registered holders of the Preferred Stock written notice, by registered or
certified mail, of the date on which a record shall be taken for such dividend,
distribution or subscription rights or for determining stockholders entitled to
vote upon such recapitalization, consolidation, merger, sale, dissolution,
liquidation or winding up and of the date when any such transaction shall take
place, as the case may be. Such written notice shall be given at least 20 days
prior to the applicable record date. Such notice shall also specify the date as
of which the holders of Common Stock of record shall participate in such
dividend, distribution or subscription rights, or shall be entitled to exchange
their Common Stock for securities or other property deliverable upon such
recapitalization, consolidation, merger, sale, dissolution, liquidation or
winding up, as the case may be.
7. No Reissuance of Preferred Stock. No shares of Preferred Stock acquired by
the Corporation by reason of redemption, purchase, conversion or otherwise shall
be reissued, and all such shares shall be canceled, retired and eliminated from
the shares which the Corporation shall be authorized to issue. The Corporation
may from time to time take such appropriate corporate action as may be necessary
to reduce the authorized number of shares of Preferred Stock accordingly.
B. COMMON STOCK
The designations, powers, preferences, and rights, and the qualifications,
limitations and restrictions, granted to or imposed upon the Common Stock shall
be as follows:
1. Dividends. Subject to the rights of holders of any class or series of capital
stock entitled to a preference, the holders of shares of the Common Stock will
be entitled to receive when, as, and if declared by the Board of Directors, out
of funds legally available therefor, dividends in such amounts and payable on
such dates as shall be determined by the Board of Directors.
2. Distribution of Assets. In the event of the voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the holders of shares
of the Common Stock will be entitled to receive on a ratable basis all of the
remaining assets of the Corporation available for distribution to its
stockholders after payment to the holders of shares of any class or series of
capital stock having preferential rights to receive distributions of such
assets.
3. Voting Rights. The holders of shares of the Common Stock shall have the
general right to vote for all purposes, including the election of directors, as
provided by law. Each holder of shares of the Common Stock shall be entitled to
one vote for each share thereof registered in his name on the books of the
Corporation.
- 6 -
CERTIFICATE OF MERGER
of
Brown Moulding Holding Corp.
a Delaware Corporation
and
MW Manufacturers Holding Corp.
a Delaware Corporation
In accordance with the provisions of Section 251 of the Delaware
Corporation Law, Brown Moulding Holding Corp., a Delaware corporation, and MW
Manufacturers Holding Corp., a Delaware corporation, adopt the following
Certificate of Merger for purposes of merging MW Manufacturers Holding Corp., a
Delaware corporation, into Brown Moulding Holding Corp., a Delaware corporation:
1. An Agreement and Plan of Merger dated December 11, 1997 has been
approved, adopted, certified, executed and acknowledged by Brown Moulding
Holding Corp., a Delaware corporation, and MW Manufacturers Holding Corp., a
Delaware corporation, in accordance with the provisions of Section 251 of the
Delaware Corporation Law.
2. The name of the surviving corporation is Brown Moulding Holding Corp.
and it is to be governed by the laws of the State of Delaware.
3. The certificate of incorporation of Brown Moulding Holding Corp., as in
effect immediately prior to the merger, shall be the certificate of
incorporation of the surviving corporation after the merger.
4. The executed Agreement and Plan of Merger is on file at the principal
place of business of Brown Moulding Holding Corp., which is at 130 Franklin
Street, Rocky Mount, Virginia 24151.
5. A copy of the Agreement and Plan of Merger will be furnished by the
surviving corporation, Brown Moulding Holding Corp., on request and without
cost, to any stockholder of the constituent corporation.
116
2
IN WITNESS WHEREOF, Brown Moulding Holding Corp., the surviving
corporation to the aforementioned merger, has duly caused this Certificate of
Merger to be executed by its duly authorized officers as of this __ day of
December, 1997.
BROWN MOULDING HOLDING CORP.
a Delaware Corporation
/s/ Mark Genender
------------------------------
Name: Mark Genender
Title: Vice President
and
/s/ Gregory Meredith
------------------------------
Assistant Secretary
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
BROWN MOULDING HOLDING CORP.
Brown Moulding Holding Corp. (the "Corporation"), a corporation organized
and existing under and by virtue of the General Corporation Law of the State of
Delaware, does hereby certify:
FIRST: That all of the Directors of said corporation by written consent,
adopted the following resolution:
RESOLVED That all of the Directors hereby declare it advisable and in the
best interest of the Corporation that Article One of the Certificate of
Incorporation be amended to read as follows:
FIRST: The name of this Corporation is MW Windows Holding Corp.
SECOND: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Section 242 of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, said corporation has caused this Certificate to be
signed by Mark Genender, Vice President.
EXECUTED this 28th day of May 1998
/s/ Mark Genender
------------------------------
Mark Genender
Vice President
118
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
MW WINDOWS HOLDING CORP.
MW Windows Holding Corp. (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, does hereby certify:
FIRST: That all of the Directors of the Corporation by written consent,
adopted the following resolution:
RESOLVED: That the Board of Directors hereby declares it advisable and in
the best interests of this Corporation that Article 1 of the Certificate of
Incorporation be amended to read as follows, and that such amendment be
submitted to the Corporation's stockholders for their consideration and
approval:
"1. The name of this Corporation is MW Manufacturers Holding Corp.
SECOND: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Section 242 of die General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, die Corporation has caused this Certificate to be
signed by Richard C. Dresdale, its Vice President.
EXECUTED this 5th day of March, 1999.
/s/ Richard C. Dresdale
------------------------------
Richard C. Dresdale
Vice President
119
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
MW MANUFACTURERS HOLDING CORP.
MW MANUFACTURERS HOLDING CORP. (the "Corporation"), a corporation duly
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware, DOES HEREBY CERTIFY AS FOLLOWS:
FIRST: That by written consent, dated April 7, 1999 of the Board of
Directors of the Corporation, resolutions were duly adopted
setting forth the proposed amendment to the Certificate of
Incorporation of the Corporation, declaring such amendment to
be advisable and directing that the amendment be presented to
the stockholders of the Corporation for their consideration.
The resolution setting forth the proposed amendment is as
follows:
RESOLVED: That the Board of Directors of this Corporation
deems it advisable that the Certificate of
Incorporation of the Corporation be amended so that
Section 4 thereof reads in its entirety as set
forth in Exhibit A hereto and directs that such
amendment be submitted to the stockholders of the
Corporation for their approval; that upon approval
by the stockholders of the Corporation, the
officers of this Corporation are severally
authorized and directed to execute and to cause the
amended Certificate of Incorporation to be duly
filed with the Secretary of State of the State of
Delaware and to take any and all such further
action as such officer or officers deem necessary
or appropriate to effectuate said amendment.
SECOND: That, thereafter, pursuant to the aforementioned resolution
adopted by the Board of Directors, the stockholders of this
Corporation duly adopted the proposed amendment of the
Certificate of Incorporation of the Corporation set forth
above in accordance with Section 242 of the General
Corporation Law of the State of Delaware.
THIRD: That said amendment was duly adopted hi accordance with the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned MW MANUFACTURES HOLDING CORP., has
caused this Certificate of Amendment of Certificate of Incorporation to be
executed and attested on its behalf by Oliver Goldstein, its Vice President and
Gregory P. Meredith, its Assistant Secretary, on and as April 21, 1999.
MW MANUFACTURERS HOLDING CORP.
By: /s/ Oliver Goldstein
------------------------------
Title: Vice President
ATTEST:
/s/ Gregory P. Meredith
- ------------------------------
Title: Assistant Secretary
- 2 -
EXHIBIT A
4. The total number of shares of capital stock that this Corporation shall have
authority to issue is 210,000 shares, consisting of (a) 10,000 shares of
Preferred Stock, par value $0.01 per share (the "Preferred Stock"), and (b)
200,000 shares of Common Stock, par value $0.01 per share ("Common Stock").
The following is a statement of the designations, powers, preferences, and
rights, and the qualifications, limitations and restrictions, granted to or
imposed upon the shares of each such class of capital stock.
A. PREFERRED STOCK
The designations, powers, preferences, and rights, and the qualifications,
limitations and restrictions, granted to or imposed on the Preferred Stock are
as follows:
1. Dividends/Distributions.
1.1. Preferred Stock.
1.1.1. Dividends shall accrue on each share of Preferred Stock on a
daily basis and at the Dividend Rate (as defined herein) from time to time in
effect, beginning on the date of issuance of such share. The holders of shares
of Preferred Stock shall be entitled to receive, when and as declared by the
Board of Directors, dividends payable on September 30 in each year (each such
date being a "Dividend Payment Date") in an amount equal to all accrued and
unpaid dividends on the Preferred Stock; provided, however, that it and to the
extent that the holder of a share of Preferred Stock does not receive on any
given Dividend Payment Date payment of the accrued and unpaid dividend on such
share of Preferred Stock or any previously cumulated dividend for the period
ending on such given Dividend Payment Date and beginning on the immediately
preceding Dividend Payment Date, such dividend shall be cumulative and shall
itself accrue, whether or not declared, from and after such date dividends on a
daily basis and an annual rate equal to the Dividend Rate from time to time in
effect (calculated, for this purpose, as a percentage of such cumulated dividend
equal to such Dividend Rate divided by $1,000.00 and expressed as a percentage).
1.1.2. As used herein, the term "Dividend Rate" shall mean (i) for
all periods prior to March 12, 1999, $100.00 per annum and (ii) for all periods
beginning on or after March 12,1999, $100.00 per annum; provided, however that
in no event shall the Dividend Rate exceed the maximum rate permitted by
applicable law if any such maximum rate shall exist.
1.1.3. Dividends may be paid on the Preferred Stock, from time to
time at the option of the Board of Directors, (a) in cash, (b) in shares of
Preferred Stock, with each such share being ascribed a value of $1,000.00 or (c)
in any combination of the forms described in the immediately preceding clauses
(a) and (b).
122
1.1.4. No dividend shall be paid or declared, and no distribution
shall be made, on the Common Stock (other than a stock dividend payable solely
in shares of Common Stock) at any time when any shares of Prefer Stock are
outstanding.
2. Redemptions Preferred Stock.
2.1. Preferred Stock Redemption Price. The Preferred Stock shall be
redeemable as hereinafter set forth upon payment in cash in respect of each
share redeemed of the sum of $1,000.00 plus an amount equal to dividends accrued
but unpaid to the date of redemption (the "Preferred Stock Redemption Price").
Subject to the provisions hereof, the Board of Directors shall have authority to
prescribe the manner in which the Preferred Stock shall be redeemed from time to
time.
2.2. Optional Redemption. At any time and from time to time the
Corporation may at its option by resolution of its Board of Directors redeem, at
the Preferred Stock Redemption Price, all or any part of the shares of the
Preferred Stock then outstanding; provided, however, that in the case of any
redemption of only a part of the outstanding shares of Preferred Stock, there
shall be so redeemed from each record holder thereof in whole shares of
Preferred Stock, as nearly as possible to the nearest whole share, the
proportion of all shares of Preferred Stock to be redeemed which the number of
shares of Preferred Stock held of record as of the record date for such
redemption by such holder bears to the total number of shares of Preferred Stock
of record outstanding as of such date. Not fewer than 15 nor more than 60 days'
prior written notice shall be given by certified mail, postage prepaid, to each
holder of record of the shares of Preferred Stock to be redeemed, at such
holder's post office address as shown in the records of the Corporation, and
said notice shall specify the amount to be paid per share upon such redemption,
the place and the date, which date shall not be a legal holiday, on which the
shares called for redemption will be redeemed.
2.3. Payment of Redemption Price. The redemption price of shares of
Preferred Stock shall be paid in cash.
3. Liquidation Preference. In the event of any liquidation, dissolution or
winding up of the Corporation, either voluntary or involuntary, distributions to
the stockholders of the Corporation shall be made in the following manner and
subject to the following preferences.
3.1. Preferred Stock. The holders of Preferred Stock shall first be
entitled to receive, prior and in preference to any distribution of any of the
assets of the Corporation to the holders of the Common Stock or any other class
or series of capital stock of the Corporation, by reason of their ownership of
such stock, an amount per share equal to the sum of (i) $1,000.00 plus (ii) all
accrued and unpaid dividends on such share (such sum being hereinafter referred
to as the "Preferential Amount"). If the assets and funds of the Corporation
shall be insufficient to permit the payment in full to such holders of Preferred
Stock of the full Preferential Amount, then the entire assets of the Corporation
legally available for distribution to the stockholders shall be distributed
ratably among the
- 2 -
holders of Preferred Stock in accordance with the aggregate Preferential Amount
of the shares of Preferred Stock held by each of them.
3.2. Consolidations, Merger, Etc. The consolidation of the Corporation
into or with any other entity or entities which results in the exchange of
outstanding shares of the Common Stock of the Corporation for securities or
other consideration issued or paid or caused to be issued or paid by any such
entity or affiliate thereof, and the sale or transfer by the Corporation of all
or substantially all its assets, shall be deemed to be a liquidation, absolution
or winding up of the Corporation within the meaning of these provisions of the
Preferred Stock.
4. Voting Rights of Preferred Stock. Except as otherwise hereinafter provided in
this Certificate of Incorporation or as required by applicable law which cannot
be superseded by the provisions of this Certificate of Incorporation, the
holders of the outstanding shares of Preferred Stock shall possess no voting
power whatsoever, either general or specific.
4.1. Amendments to Terms of Preferred Stock. So long as any shares of
Preferred Stock shall be outstanding, the holders of the Preferred Stock shall
be entitled to vote together as a single class on any amendments to the terms of
the Preferred Stock, and such terms shall not be without the affirmative vote of
the holders of a majority of the outstanding shares of Preferred Stock.
5. Covenants.
5.1. No Impairment. The Corporation will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of all or a
substantial portion of its assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed under
this Section 4 of its Certificate of Incorporation by the Corporation, but will
at all times in good faith assist in carrying out all the provisions of this
Section 4 and in taking all such action as may be necessary or appropriate in
order to protect the rights and privileges of the holders of Preferred Stock
against impairment.
5.2. Notice of Certain Events. If at any time:
(a) the Corporation shall declare any dividend or distribution payable to
the holders of its Common Stock;
(b) the Corporation shall offer for subscription pro rata to the holders
of Common Stock any additional shares of stock of any class or any other rights;
(c) there shall be any recapitalization of the Corporation, or
consolidation or merger of the Corporation with, or sale of substantially all of
its assets to, another corporation, business organization or other person; or
- 3 -
(d) there shall be a voluntary or involuntary dissolution, liquidation or
winding up of the Corporation;
then, in any one or more of such cases, the Corporation shall give the
registered holders of the Preferred Stock written notice, by registered or
certified mail, of the date on which a record shall be taken for such dividend,
distribution or subscription rights or for determining stockholders entitled to
vote upon such recapitalization, consolidation, merger, sale, dissolution,
liquidation or winding up and of the date when any such transaction shall take
place, as the case may be. Such written notice shall be given at least 20 days
prior to the applicable record date. Such notice shall also specify the date as
of which the holders of Common Stock of record shall participate in such
dividend, distribution or subscription rights, or shall be entitled to exchange
their Common Stock for securities or other property deliverable upon such
recapitalization, consolidation, merger, sale, dissolution, liquidation or
winding up, as the case may be.
6. No Reissuance of Preferred Stock. No shares of Preferred Stock acquired by
the Corporation by reason of redemption, purchase, conversion or otherwise shall
be reissued, and all such shares shall be canceled, retired and eliminated from
the shares which the Corporation shall be authorized to issue. The Corporation
may from time to time take such appropriate corporate action as may be necessary
to reduce the authorized number of shares of Preferred Stock accordingly.
B. COMMON STOCK
The designations, powers, presences, and rights, and the qualifications,
limitations and restrictions, granted to or imposed upon the Common Stock shall
be as follows:
1. Dividends. Subject to the rights of holders of any class or series of capital
stock entitled to a preference, the holders of shares of the Common Stock will
be entitled to receive, when, as, and if declared by the Board of Directors, out
of funds legally available therefor, dividends in such amounts and payable on
such dates as shall be determined by the Board of Directors.
2. Distribution of Assets. In the event of the voluntary or involuntary
liquidation, or winding up of the Corporation, the holders of shares of the
Common Stock will be entitled to receive on a ratable basis all of the remaining
assets of the Corporation available for distribution to its stockholders after
payment to the holders of shares of any class or series of capital stock having
preferential rights to receive distribution of such assets.
3. Voting Rights. The holders of shares of the Common Stock shall have the
general right to vote for all purposes, including the election of directors, as
provided by law. Each holder of shares of the Common Stock shall be entitled to
one vote for each share thereof registered in the name on the books of the
Corporation.
- 4 -
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MW MANUFACTURERS HOLDING CORP.
The undersigned, in his capacity as the duly elected and acting Secretary
of MW Manufacturers Holding Corp., a Delaware corporation (the "Corporation"),
hereby certifies as of this 13th day of February, 2004 that:
FIRST: The original Certificate of Incorporation of the Corporation
was filed with the Secretary of State of the State of Delaware
on September 1, 1995, under the name "Brown Moulding Holding
Corp."
SECOND: The Board of Directors of the Corporation, by unanimous
written consent in lieu of a meeting, dated February 13, 2004,
in accordance with the provisions of Sections 242 and 245 of
the General Corporation Law of the State of Delaware (the
"DGCL"), duly adopted a resolution proposing and declaring
advisable this Amended and Restated Certificate of
Incorporation of the Corporation and authorizing the
appropriate officers of the Corporation to solicit the consent
of the stockholders of the Corporation therefor.
THIRD: The sole stockholder of the Corporation, by unanimous written
consent in lieu of a meeting, dated February 13, 2004, in
accordance with the provisions of Section 228 of the DGCL,
duly adopted this Amended and Restated Certificate of
Incorporation of the Corporation.
FOURTH: The text of the Certificate of Incorporation of the
Corporation is hereby amended and restated in its entirety to
read as follows:
1. The name of this corporation is MW Manufacturers Holding Corp.
2. The registered office of this corporation in the State of Delaware is
located at 2711 Centerville Road, Suite 400, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is Corporation
Service Company.
3. The purpose of this 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.
126
2
4. The total number of shares of stock that this corporation shall have
authority to issue is 100,000 shares of Common Stock, $.01 par value per share.
Each share of Common Stock shall be entitled to one vote.
5. Except as otherwise provided in the provisions establishing a class of
stock, the number of authorised shares of any class or series of stock may be
increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the voting
power of the corporation entitled to vote irrespective of the provisions of
Section 242(b)(2) of the General Corporation Law of the State of Delaware.
6. The election of directors need not be by written ballot unless the
bylaws shall so require.
7. In furtherance and not in limitation of the power conferred upon the
board of directors by law, the board of directors shall have the power to make,
adopt, alter, amend and repeal from time to time bylaws of this corporation,
subject to the right of the stockholders entitled to vote with respect thereto
to alter and repeal bylaws made by the board of directors.
8. A director of this corporation shall not be liable to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent that exculpation from liability is not permitted
under the General Corporation Law of the State of Delaware as in effect at the
time such liability is determined. No amendment or repeal of this paragraph 8
shall apply to or have any effect on the liability or alleged liability of any
director of the corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment or repeal.
9. This corporation shall, to the maximum extent permitted from time to
time under the law of the State of Delaware, indemnify and upon request advance
expenses to any person who is or was a party or is threatened to be made a party
to any threatened, pending or completed action, suit, proceeding or claim,
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is or was or has agreed to be a director or officer of this
corporation or while a director or officer is or was serving at the request of
this corporation as a director, officer, partner, trustee, employee or agent of
any corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, against expenses
(including attorney's fees and expenses), judgments, fines, penalties and
amounts paid in settlement incurred (and not otherwise recovered) in connection
with the investigation, preparation to defend or defense of such action, suit,
proceeding or claim; provided, however, that the foregoing shall not require
this corporation to indemnify or advance expenses to any person in connection
with any action, suit, proceeding, claim or counterclaim initiated by or on
behalf of such person. Such indemnification shall not be exclusive of other
indemnification rights arising under any bylaw, agreement, vote of directors or
stockholders or otherwise and shall inure to the benefit of the heirs and legal
representatives of such person. Any person seeking indemnification under this
paragraph 9 shall be deemed to have met the standard of conduct required for
such
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indemnification unless the contrary shall be established. Any repeal or
modification of the foregoing provisions of this paragraph 9 shall not adversely
affect any right or protection of a director or officer of this corporation with
respect to any acts or omissions of such director or officer occurring prior to
such repeal or modification.
10. The books of this corporation may (subject to any statutory
requirements) be kept outside the State of Delaware as may be designated by the
board of directors or in the bylaws of this corporation.
11. If at any time this corporation shall have a class of stock registered
pursuant to the provisions of the Securities Exchange Act of 1934, for so long
as such class is so registered, any action by the stockholders of such class
must be taken at an annual or special meeting of stockholders and may not be
taken by written consent.
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IN WITNESS WHEREOF, the undersigned executed this Amended and Restated
Certificate of Incorporation on the 13th day of February, 2004.
/s/ Lynn Morstad
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Lynn Morstad
Secretary