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EXHIBIT 3(i)
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION
OF
FEDDERS CORPORATION
The undersigned hereby certifies as follows:
1. The name of the corporation is Fedders Corporation (the "Corporation").
2. The Certificate of Incorporation of the Corporation is hereby amended
by striking Article THIRD thereof and by substituting in lieu thereof
the following:
"THIRD. The aggregate number of shares of stock of all classes which
the Corporation shall have authority to issue is 102,500,000,
consisting of 60,000,000 shares of Common Stock having a par value of
$1.00 per share, 30,000,000 shares of Class A Stock having a par value
of $1,000 per share, 7,500,000 shares of Class B Stock having a par
value of $1.00 per share and 5,000,000 shares of Preferred Stock having
a par value of $1.00 per share.
The powers, preferences and the relative, participating, optional and
other rights and the qualifications, limitations and restrictions
thereof, of each class of stock, and the express grant of authority to
the Board of Directors to fix by resolution the designations and the
powers, preferences and rights of each share of Preferred Stock and the
qualifications, limitations and restrictions thereof which are not
fixed by this Certificate of Incorporation, are as follows:
A. COMMON STOCK, CLASS A STOCK AND CLASS B STOCK.
I. Dividends, etc.
Subject to the rights of the holders of Preferred Stock, and
subject to any other provisions of this Certificate of Incorporation,
as amended from time to time, holders of Common Stock, Class A Stock
and Class B Stock shall be entitled to receive such dividends and other
distributions in cash, stock or property of the Corporation as may be
declared thereon by the Board of Directors from time to time
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out of assets or funds of the Corporation legally available therefor,
provided, that in the case of cash dividends, if at any time a cash
dividend is paid on the Common Stock, a cash dividend of equal amount
shall be paid on the Class A Stock and a cash dividend will also be
paid on the Class B Stock in an amount per share of Class B Stock equal
to 90% of the amount of the cash dividend paid on each share of the
Common Stock (rounded down, if necessary, to the nearest one-hundredth
of a cent), and provided, further, that in the case of dividends or
other distributions payable in stock of the Corporation other than
Preferred Stock, including distributions pursuant to stock splits or
divisions of stock of the Corporation other than Preferred Stock, which
occur after the initial issuance of shares of Class A Stock and Class B
Stock by the Corporation, unless the dividend or distribution is solely
of shares of Class A Stock, in which case a dividend or distribution
payable solely in shares of Class A Stock may be made with respect to
shares of Common Stock, Class A Stock and Class B Stock, only shares of
Common Stock shall be distributed with respect to Common Stock, only
shares of Class A Stock and only shares of Class B Stock shall be
distributed with respect to Class B Stock, in each case, in an amount
per share equal to the amount per share paid with respect to the Common
Stock, and that, in the case of any combination, reclassification or
subdivision of the Common Stock, the shares of Class A Stock and Class
B Stock shall also be combined, reclassified or subdivided so that the
number of shares of Class A Stock and Class B Stock outstanding
immediately following such combination, reclassification or subdivision
shall bear the same relationship to the number of shares outstanding
immediately prior to such combination, reclassification or subdivision
as the number of shares of Common Stock outstanding immediately
following such combination, reclassification or subdivision bears to
the number of shares of Common Stock outstanding immediately prior to
such combination, reclassification or subdivision.
II. Voting.
(a) At every meeting of the stockholders, every holder of
Common Stock shall be entitled to one (1) vote in person or by proxy
for each share of Common Stock standing in his name on the transfer
books of the Corporation and every holder of Class B Stock shall be
entitled to one (1) vote in person or by proxy for each share of Class
B Stock standing in his name on the transfer books of the Corporation,
except that each holder of Class B Stock shall be entitled to ten (10)
votes per share on the election of any directors of any stockholders'
meeting (i) if more than 15% of the shares of Common Stock outstanding
on the record date for such meeting are beneficially owned by a person
or group
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of persons acting in concert (unless such person or group is also the
beneficial owner of a majority of the shares of Class B Stock on such
record date), or (ii) if a nomination for the Board of Directors is
made by a person or group of persons acting in concert (other than the
Board of Directors), provided that such nomination is not made by one
or more holders of Class B Stock, acting in concert with each other,
who beneficially own more than 15% of the shares of Class B Stock
outstanding on such record date. The holders of Class A Stock shall not
be entitled to vote at any meeting of the stockholders or otherwise,
except as may be specifically required by applicable law.
(b) The provisions of this Certificate of Incorporation
shall not be modified, revised, altered or amended, repealed or
rescinded in whole or in part, without (i) the affirmative vote of the
holders of a majority of the shares of the Common Stock and of a
majority of the shares of the Class B Stock, each voting separately as
a class, and (ii) additionally with respect to Article Eighth the vote
required by Article Eighth.
(c) The Corporation may not effect or consummate:
(1) any merger or consolidation of the
Corporation with or into any other corporation;
(2) any sale, lease, exchange or other
disposition of all or substantially all of the assets of the
Corporation to or with any other person; or
(3) any dissolution of the Corporation;
unless and until such transaction is authorized by the vote, if any,
required by Article Eighth of this Certificate of Incorporation and by
Delaware law; and unless and until such transaction is authorized by a
majority of the votes entitled to be cast by the shares of Common Stock
and of Class B Stock entitled to vote, each voting separately as a
class, but the foregoing shall not apply to any merger or other
transaction described in the preceding subparagraphs (1) and (2) if the
other party to the merger or other transaction is a Subsidiary of the
Corporation.
For purposes of this paragraph (c) a "Subsidiary" is any
corporation more than 50% of the voting securities of which are owned
directly or indirectly by the Corporation; and a "person" is any
individual, partnership, corporation or entity.
(d) Following the initial issuance of shares of Class B
Stock, the Corporation may not effect the issuance of any additional
shares of Class B Stock (except in connec-
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tion with stock splits and stock dividends) unless and until such
issuance is authorized by the holders of a majority of the voting power
of the shares of Common Stock and of Class B Stock entitled to vote,
each voting separately as a class.
(e) Every reference in this Certificate of Incorporation to a
majority or other proportion of shares of stock shall refer to such
majority or other proportion of the votes entitled to be cast by such
shares.
(f) Except as may be otherwise required by law or by this
Article Third the holders of Common Stock and Class B Stock shall vote
together as a single class, subject to any voting rights which may be
granted to holders of Preferred Stock.
III. Transfer.
(a) No person holding shares of Class B Stock of record
(hereinafter called a "Class B Holder") may transfer, and the
Corporation shall not register the transfer of, such shares of Class B
Stock, as Class B Stock, whether by sale, assignment, gift, bequest,
appointment or otherwise, except to a Permitted Transferee and any
purported transfer of shares not permitted hereunder shall result in
the conversion of such shares into Common Stock as provided by
subsection (d) of this Section III. A Permitted Transferee shall mean,
with respect to each person from time to time shown as the record
holder of shares of Class B Stock:
(i) In the case of a Class B Holder who is a
natural person:
(A) The spouse of such Class B Holder,
any lineal descendant of a parent of such Class B Holder, and any
spouse of such lineal descendant (which lineal descendants, their
spouses, the Class B Holder, and his or her spouse are herein
collectively referred to as "Class B Holder's Family Members");
(B) The trustee of a trust (including a
voting trust) principally for the
benefit of such Class B Holder and/or one or more of his or her
Permitted Transferees described in each subclause of this clause (i)
other than this subclause (B), provided that such trust may also grant
a general or special power of appointment to one or more of such Class
B Holder's Family Members and may permit trust assets to be used to pay
taxes, legacies and other obligations of the trust or of the estates of
one or more of such Class B Holder's Family Members payable by reason
of the death of any of such Class B Holder's Family Members;
(C) Any organization contributions to
which are deductible for federal income, estate or gift tax pur-
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poses or any split-interest trust described in Section 4947 of the
Internal Revenue Code, as it may from time to time be amended
(hereinafter called a "Charitable Organization");
(D) A corporation, if a majority of the
beneficial ownership of outstanding capital stock of such corporation
which is entitled to vote for the election of directors is owned by, or
a partnership if a majority of the beneficial ownership of the
partnership is held by, the Class B Holder or his or her Permitted
Transferees determined under this clause (i), provided that if by
reason of any change in the ownership of such stock or partnership
interests, such corporation or partnership would no longer qualify as a
Permitted Transferee, all shares of Class B Stock then held by such
corporation or partnership shall, upon the election of the Corporation
given by written notice to such corporation or partnership, without
further act on anyone's part, be converted into shares of Common Stock
effective upon the date of the giving of such notice, and stock
certificates formerly representing such shares of Class B Stock shall
thereupon and thereafter be deemed to represent the like number of
shares of Common Stock; and
(E) The estate of such Class B Holder.
(ii) In the case of a Class B Holder holding the
share of Class B Stock in question as trustee pursuant to a trust
(other than a Charitable Organization or a trust described in clause
(iii) below), "Permitted Transferee" means (A) any person transferring
Class B Stock to such trust and (B) any Permitted Transferee of any
such transferor determined pursuant to clause (i) above.
(iii) In the case of a Class B Holder holding the
shares of Class B Stock in question as trustee pursuant to a trust
(other than a Charitable Organization) which was irrevocable on the
date of initial issuance to such Class B Holder (hereinafter in this
Section III called the "Record Date"). "Permitted Transferee" means (A)
any person to whom or for whose benefit principal may be distributed
either during or at the end of the term of such trust whether by power
of appointment or otherwise and (B) any Permitted Transferee of any
such person determined pursuant to clause (i) above.
(iv) In the case of a Class B Holder which is a
Charitable Organization holding record and beneficial ownership of the
shares of Class B Stock in question, "Permitted Transferee" means any
Class B Holder.
(v) In the case of a Class B Holder which is a
corporation or partnership (other than a Charitable Organization)
acquiring record and beneficial ownership of the shares of Class B
Stock in question upon its initial is-
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suance by the Corporation, "Permitted Transferee" means (A) any partner
of such partnership, or stockholder of such corporation, on the Record
Date, (B) any person transferring such shares of Class B Stock to such
corporation or partnership, and (C) any Permitted Transferee of any
such person, partner, or stockholder referred to in subclauses (A) and
(B) of this clause (v), determined under clause (i) above.
(vi) In the case of a Class B Holder which is a
corporation or partnership (other than a Charitable Organization or a
corporation or partnership described in clause (v) above) holding
record and beneficial ownership of the shares of Class B Stock in
question, "Permitted Transferee" means (A) any person transferring such
shares of Class B Stock to such corporation or partnership and (B) any
Permitted Transferee of any such transferor determined under clause (i)
above.
(vii) In the case of a Class B Holder which is the
estate of a deceased Class B Holder, or which is the estate of a
bankrupt or insolvent Class B Holder, which holds record and beneficial
ownership of the shares of Class B Stock in question, "Permitted
Transferee" means a Permitted Transferee of such deceased, bankrupt or
insolvent Class B Holder as determined pursuant to clause (i), (ii),
(iii), (iv), (v) or (vi) above, as the case may be.
(b) Notwithstanding anything to the contrary set forth
herein, any Class B Holder may pledge such Class B Holder's shares of
Class B Stock to a pledgee pursuant to a bona fide pledge of such
shares as collateral security for indebtedness due to the pledgee,
provided that such shares shall not be transferred to or registered in
the name of the pledgee and shall remain subject to the provisions of
this Section III. In the event of foreclosure or other similar action
by the pledgee, such pledged shares of Class B Stock may only be
transferred to a Permitted Transferee of the pledgor or converted into
shares of Common Stock, as the pledgee may elect.
(c) For purposes of this Section III:
(i) The relationship of any person that is
derived by or through legal adoption shall be considered a natural one.
(ii) Each joint owner of shares of Class B Stock
shall be considered a "Class B Holder" of such shares.
(iii) A minor for whom shares of Class B Stock are
held pursuant to a Uniform Gifts to Minors Act or similar law shall be
considered a Class B Holder of such shares.
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(iv) Unless otherwise specified, the term
"person" means both natural persons and legal entities.
(v) Without derogating from the election
conferred upon the Corporation pursuant to subclause (D) of clause (i)
above, each reference to a corporation shall include any successor
corporation resulting from merger or consolidation and each reference
to a partnership shall include any successor partnership resulting from
the death or withdrawal of a partner.
(d) Any transfer of shares of Class B Stock not permitted
hereunder shall result in the conversion of the transferee's shares of
Class B Stock into shares of Common Stock, effective the date on which
certificates representing such shares are presented for transfer on the
books of the Corporation. The Corporation may, in connection with
preparing a list of stockholders entitled to vote at any meeting of
stockholders, or as a condition to the transfer or the registration of
shares of Class B Stock on the Corporation's books, require the
furnishing of such affidavits or other proof as it deems necessary to
establish that any person is the beneficial owner of shares of Class B
Stock or is a Permitted Transferee.
(e) At any time when the number of outstanding shares of
Class B Stock as reflected on the stock transfer books of the
Corporation falls below 5% of the aggregate number of the issued and
outstanding shares of the Common Stock and Class B Stock of the
Corporation, or the Board of Directors and the holders of a majority of
the outstanding shares of Class B Stock approve the conversion of all
of the Class B Stock into Common Stock, then, immediately upon the
occurrence of either such event, the outstanding shares of Class B
Stock shall be converted into shares of Common Stock. In the event of
such a conversion, certificates formerly representing outstanding
shares of Class B Stock shall thereupon and thereafter be deemed to
represent the like number of shares of Common Stock.
(f) Shares of Class B Stock shall be registered in the
names of the beneficial owners thereof and not in "street" or "nominee"
name. For this purpose, a "beneficial owner" of any shares of Class B
Stock shall mean a person who, or an entity which, possesses the power,
either singly or jointly, to direct the voting or disposition of such
shares. The Corporation shall note on the certificates for shares of
Class B Stock the restrictions on transfer and registration of transfer
imposed by this Section III.
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IV. Conversion Rights.
(a) Subject to the terms and conditions of this Section
IV, all outstanding shares of Class A Stock shall be converted into
fully paid and nonassessable shares of Common Stock, immediately and
without any action on the part of the holder of such stock, in the
event the Class B Stock is converted into Common Stock in accordance
with the provisions of subsection (e) of Section III of this Article
Third. Upon conversion, the shares of Common Stock issued shall be
subject to the same dividends or distributions theretofore declared but
not paid or issued on the Class A Stock immediately prior to conversion
but the Corporation shall not make any payment or adjustment on account
of any dividends or distributions declared but not paid or issued on
the Common Stock on such conversion. In the event of such conversion,
certificates formerly representing shares of Class A Stock shall
thereupon and thereafter be deemed to represent the like number of
shares of Common Stock.
(b) Subject to the terms and conditions of this Section
IV, each share of Class B Stock shall be convertible at any time or
from time to time, at the option of the respective holder thereof, at
the office of any transfer agent for Class B Stock, and at such other
place or places, if any, as the Board of Directors may designate, or,
if the Board of Directors shall fail so to designate, at the principal
office of the Corporation (attention of the Secretary of the
Corporation), into one (1) fully paid and nonassessable share of Common
Stock. Upon conversion, the Corporation shall make no payment or
adjustment on account of dividends accrued or in arrears on Class B
Stock surrendered for conversion or on account of any dividends on the
Common Stock issuable on such conversion. Before any holder of Class B
Stock shall be entitled to convert the same into Common Stock, he shall
surrender the certificate or certificates for such Class B Stock at the
office of said transfer agent (or other place as provided above), which
certificate or certificates, if the Corporation shall so request, shall
be duly endorsed to the Corporation or in blank or accompanied by
proper instruments of transfer to the Corporation or in blank (such
endorsements or instruments of transfer to be in form satisfactory to
the Corporation), and shall give written notice to the Corporation at
said office that he elects so to convert said Class B Stock in
accordance with the terms of this Section IV, and shall state in
writing therein the name or names in which he wishes the certificate or
certificates for Common Stock to be issued. Every such notice of
election to convert shall constitute a contract between the holder of
such Class B Stock and the Corporation, whereby the holder of such
Class B Stock shall be deemed to subscribe for the amount of Common
Stock which he shall be entitled to receive upon such conversion, and,
in satisfaction of such subscription, to deposit the Class B
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Stock to be converted and to release the Corporation from all liability
thereunder, and thereby the Corporation shall be deemed to agree that
the surrender of the certificate or certificates therefor and the
extinguishment of liability thereon shall constitute full payment of
such subscription for Common Stock to be issued upon such conversion.
The Corporation will as soon as practicable after such deposit of a
certificate or certificates for Class B Stock, accompanied by the
written notice and the statement above prescribed, issue and deliver at
the office of said transfer agent (or other place as provided above) to
the person for whose account such Class B Stock was so surrendered, or
to his nominee or nominees, a certificate or certificates for the
number of full shares of Common Stock to which he shall be entitled as
aforesaid. Subject to the provisions of subsection (d) of this Section
IV, such conversion shall be deemed to have been made as of the date of
such surrender of the Class B Stock to be converted; and the person or
persons entitled to receive the Common Stock issuable upon conversion
of such Class B Stock shall be treated for all purposes as the record
holder or holders of such Common Stock on such date.
(c) The issuance of certificates for shares of Common
Stock upon conversion of shares of Class A Stock and Class B Stock
shall be made without charge for any stamp or other similar tax in
respect of such issuance. However, if any such certificate is to be
issued in a name other than that of the holder of the share or shares
of Class A Stock or Class B Stock converted, the person or persons
requesting the issuance thereof shall pay to the Corporation the amount
of any tax which may be payable in respect of any transfer involved in
such issuance or shall establish to the satisfaction of the Corporation
that such tax has been paid.
(d) The Corporation shall not be required to convert
Class B Stock, and no surrender of Class B Stock shall be effective for
that purpose, while the stock transfer books of the Corporation are
closed for any purpose; but the surrender of Class B Stock for
conversion during any period while such books are so closed shall
become effective for conversion immediately upon the reopening of such
books, as if the conversion had been made on the date such Class B
Stock was surrendered.
(e) The Corporation covenants that it will at all times
reserve and keep available, solely for the purpose of issue upon
conversion of the outstanding shares of Class A Stock and Class B
Stock, such number of shares of Common Stock as shall be issuable upon
the conversion of all such outstanding shares, provided that nothing
contained herein shall be construed to preclude the Corporation from
satisfying its obligations in respect of the conversion of the
outstanding shares of Class A Stock and Class B Stock by
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delivery of shares of Common Stock which are held in the treasury of
the Corporation. The Corporation covenants that if any shares of Common
Stock required to be reserved for purposes of conversion hereunder
require registration with or approval of any governmental authority
under any federal or state law before such shares of Common Stock may
be issued upon conversion, the Corporation will use its best efforts to
cause such shares to be duly registered or approved, as the case may
be. The Corporation will endeavor to list the shares of Common Stock
required to be delivered upon conversion prior to such delivery upon
each national securities exchange, if any, upon which the outstanding
Common Stock is listed at the time of such delivery. The Corporation
covenants that all shares of Common Stock which shall be issued upon
conversion of the shares of Class A Stock and Class B Stock, will, upon
issue, be fully paid and nonassessable and not entitled to any
pre-emptive rights.
V. Liquidation Rights.
In the event of any dissolution, liquidation or winding up of
the affairs of the Corporation, whether voluntary or involuntary, after
payment or provision for payment of the debts and other liabilities of
the Corporation, the holders of each series of Preferred Stock shall be
entitled to receive, out of the net assets of the Corporation, an
amount for each share equal to the amount fixed and determined by the
Board of Directors in any resolution or resolutions providing for the
issuance of any particular series of Preferred Stock, plus an amount
equal to all dividends accrued and unpaid on shares of such series to
the date fixed for distribution, and no more, before any of the assets
of the Corporation shall be distributed or paid over to the holders of
Common Stock or Class A Stock. After payment in full of said amounts to
the holders of Preferred Stock of all series, the remaining assets and
funds of the Corporation shall be divided among and paid ratably to the
holders of Common Stock and Class A Stock (including those persons who
shall become holders of Common Stock by reason of converting their
shares of Class B Stock). If, upon such dissolution, liquidation or
winding up, the assets of the Corporation distributable as aforesaid
among the holders of Preferred Stock of all series shall be
insufficient to permit full payment to them of said preferential
amounts, then such assets shall be distributed among such holders,
first in the order of their respective preferences, and second, as to
such holders who are next entitled to such assets and who rank equally
with regard to such assets, ratably in proportion to the respective
total amounts which they shall be entitled to receive as provided in
this Section V. A merger or consolidation of the Corporation with or
into any other corporation or a sale or conveyance of all or any part
of the assets of the Corporation (which shall not in fact result in the
liquidation of the Corporation and the dis-
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tribution of assets to stockholders) shall not be deemed to be a
voluntary or involuntary liquidation or dissolution or winding up of
the Corporation within the meaning of this Section V.
VI. Change of Control.
In the event of a merger or consolidation of the Corporation
with or into another entity (whether or not the Corporation is the
surviving entity), the holders of Class A Stock shall be entitled to
receive the same per share consideration in such merger or
consolidation as is received by the holders of Common Stock, if any.
B. PREFERRED STOCK.
The Board of Directors is authorized, subject to limitations
prescribed by law and the provisions of this Article Third, to provide
for the issuance of the preferred shares in series, and by filing a
certificate pursuant to the General Corporation Law of Delaware, to
establish the number of shares to be included in each such series, and
to fix the designations, relative rights, preferences and limitations
of the shares of each such series. The authority of the Board with
respect to each series shall include, but not be limited to,
determination of the following:
(a) The number of shares constituting that series and the
distinctive designations of that series;
(b) The dividend rate on the shares of that series,
whether dividends shall be cumulative and, if so, from which date or
dates, and the relative rights of priority, if any, of payment of
dividends of shares of that series;
(c) Whether that series shall have voting rights, in
addition to the voting rights provided by law and, if so, the terms of
such voting rights;
(d) Whether that series shall have conversion privileges
and, if so, the terms and conditions of such conversion, including
provision for adjustment of the conversion rate in such events as the
Board of Directors shall determine;
(e) Whether or not the shares of that series shall be
redeemable and, if so, the terms and conditions of such redemption,
including the date or dates upon or after which they shall be
redeemable, and the amount per share payable in case of redemption,
which amount may vary under different conditions and at different
redemption dates;
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(f) Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series and, if so, the terms
and amount of such sinking fund;
(g) The rights of the shares of that series in the event
of voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, and the relative rights of priority, if any, of
payment of shares of that series;
(h) Any other relative rights, preferences and
limitations of that series.
Dividends on outstanding preferred shares shall be declared
and paid, or set apart for payment, before any dividends shall be
declared and paid, or set apart for payment, on the common shares with
respect to the dividend period.
Any and all such shares issued, and for which the full
consideration has been paid or delivered shall be deemed fully paid
stock and the holder of such shares shall not be liable for any further
call or assessment or any other payment thereon."
3. The amendment of the Certificate of Incorporation of the Corporation
herein certified was duly adopted pursuant to the provisions of Section
242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate this 21st day of April, 1992.
Attest
/s/ Kent E. Hansen /s/ S.A. Muscarnera
- ------------------------------ ----------------------------
Kent E. Hansen S.A. Muscarnera
Assistant Secretary Senior Vice President
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
FEDDERS CORPORATION
Fedders Corporation, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), does hereby certify
as follows:
1. The Certificate of Incorporation of the Corporation
is hereby amended by adding thereto a new Article ELEVENTH which reads in its
entirety as follows:
"ELEVENTH. The Board of Directors of the Corporation shall
have the power to amend the By-Laws of the Corporation."
2. This Amendment was duly adopted by a vote of the
stockholders of the Corporation in accordance with the provisions of Section 242
of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, Fedders Corporation has caused this
Certificate to be signed and attested by its duly authorized officers this 31st
day of July, 1987.
FEDDERS CORPORATION
Attest:
/s/ Joseph Giordano /s/ C. A. Keen
- ---------------------------------- By -------------------------------------
Joseph Giordano C. A. Keen
Assistant Secretary Vice President and Treasurer
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
FEDDERS CORPORATION
Fedders Corporation, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), does hereby certify
as follows:
1. The Certificate of Incorporation of the Corporation
is hereby amended by adding thereto a new Article TENTH which reads in its
entirety as follows:
"TENTH. A director of the Corporation shall not personally be
liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director except for
liability (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 Delaware General Corporation law, or (iv) for any
transaction from which the director derived an improper
personal benefit."
2. This Amendment was duly adopted by a vote of the
stockholders of the Corporation in accordance with the provisions of Section 242
of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, Fedders Corporation has caused this
Certificate to be signed and attested by its duly authorized officers this 26th
day of June, 1987.
FEDDERS CORPORATION
Attest:
/s/ Joseph Giordano /s/ C.A. Keen
- -------------------------------------- By----------------------------------
Joseph Giordano C. A. Keen
Assistant Secretary Vice President and Treasurer
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CERTIFICATE OF THE POWERS, DESIGNATION,
PREFERENCES, RIGHTS AND LIMITATIONS OF
$1.75 Convertible Exchangeable Preferred Stock
of
FEDDERS CORPORATION
Pursuant to Section 151 of the General Corporation
Law of the State of Delaware
FEDDERS CORPORATION, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), hereby certifies
that, pursuant to the authority contained in Article Third of its Restated
Certificate of Incorporation, as amended, and in accordance with the provisions
of Section 151 of the General Corporation Law of the State of Delaware, the
Board of Directors o(pound) the Corporation at its meeting on January 27, 1987
and the Executive Committee of such board at its meeting on March 19, 1987 duly
adopted a resolution providing for the issuance of a series of 1,725,000 shares
of $1.75 Convertible Exchangeable Preferred Stock, which resolution is as
follows:
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RESOLVED, that pursuant to authority conferred upon the Board
of Directors by the Restated Certificate of Incorporation, as amended,
of the Corporation (hereinafter called the "Certificate of
Incorporation"), the Board of Directors does hereby authorize the
issuance of a series of Preferred Stock, par value $1.00 per share, to
be known as the $1.75 Convertible Exchangeable Preferred Stock and to
the extent that the voting powers, designations, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations and restrictions thereof, are not set forth
in the Certificate of Incorporation, does hereby fix and herein state
and express such voting powers, designations, preferences and relative,
participating, optional and other special rights, and qualifications,
limitations and restrictions thereof, as follows (all terms used herein
which are defined in the Corporation's Certificate of
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Incorporation shall have herein the meanings provided therein):
(A) DESIGNATION AND SIZE OF ISSUE
The distinctive designation of the series shall be "$1. 75
Convertible Exchangeable Preferred Stock" (hereinafter referred to as this
"Series"). The number of shares which shall constitute this Series shall be
1,725,000 shares. Each share of this Series shall have a par value of $1.00.
(B) DIVIDENDS
(1) The annual rate of dividends payable on each share
of this Series shall be $1.75.
(2) Dividends shall be payable in cash, quarterly on the
first day of March, June, September and December of each year, commencing June
1, 1987 (each such date hereinafter referred to as a "Dividend Payment Date"),
except that if such date is not a Business Day (as hereinafter defined), then
such dividend shall be payable on the next succeeding calendar day which is a
Business Day. The amount of dividends payable on shares of this Series for each
full quarterly dividend period shall be computed by dividing by four the annual
rate per share set forth in Section (B)(1). Dividends payable on shares of this
Series for any period less than a full quarterly period shall be computed on the
basis of a 360-day year of twelve 30-day months, Dividends shall be payable to
the record holders of shares of this Series as of the close of business on a
date, not more than sixty (60) days preceding the payment date thereof, fixed by
the Board of Directors of the Corporation. Dividends in arrears may be declared
and paid at any time, without reference to any regular Dividend Payment Date, to
record holders of shares of this Series as of the close of business on a date,
not more than sixty (60) days preceding the payment date thereof, fixed by the
Board of Directors of the Corporation. As used in this resolution, the term
"Business Day" means a day other than Saturday or Sunday and other than a day on
which banking institutions in New York, New York are authorized by law or
executive order to close.
(3) Dividends payable on shares of this Series shall be
cumulative and shall accumulate from March 27, 1987. Accumulations of dividends
shall not bear interest.
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(4) Except as hereinafter provided, so long as any shares
of this Series are outstanding, no dividend (other than a dividend in Common
Stock or in any other stock of the Corporation ranking junior to this Series as
to dividends and upon liquidation (collectively, the "Junior Stock")) shall be
declared or paid or set aside for payment, and no other distribution shall be
declared or made, upon the Junior Stock or upon any other stock of the
Corporation ranking on a parity with this Series as to dividends or upon
liquidation, nor shall any Junior Stock nor any other stock or the Corporation
ranking on a parity with this Series as to dividends or upon liquidation be
redeemed, purchased or otherwise acquired for any consideration (or any moneys
be paid to or made available for a sinking fund for the redemption of any shares
of any such stock) by the Corporation (except by conversion into or exchange for
Junior Stock of the Corporation), unless, in each case, the full cumulative
dividends on all outstanding shares of this Series shall have been paid or
contemporaneously are declared and paid through the last Dividend Payment Date.
When dividends are not paid in full upon the shares of this Series and any other
stock of the Corporation ranking on a parity as to dividends with this Series,
all dividends declared upon shares of this Series and any other stock of the
Corporation ranking on a parity as to dividends with this Series shall be
declared pro rata so that the amount of dividends declared per share on this
Series and such other stock shall in all cases bear to each other the same ratio
that accrued dividends per share on the shares of this Series and such other
stock bear to each other. Holders of shares of this Series shall not be entitled
to any dividends, whether payable in cash, property or stock, in excess of full
cumulative dividends, as herein provided, on this Series. No interest, or sum of
money in lieu of interest, shall be payable in respect of any dividend payment
or payments on this Series which may be in arrears.
(C) REDEMPTION
(1) The Corporation, at the option of the Board of
Directors, may, subject to the provisions of Sections (C)(2) and (C)(8) hereof,
redeem at any time or from time to time all or any part of the outstanding
shares of this Series. The redemption price for each share of this Series called
for redemption during the periods set forth below shall be the amount set forth
opposite such period.
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If Redeemed During
the Twelve-Month Redemption
Period Beginning March 1, Price Per Share
------------------------- ---------------
1987............. $26.750
1988............. 26.575
1989............. 26.400
1990............. 26.225
1991............. 26.050
1992............. 25.875
1993............. 25.700
1994............. 25.525
1995............. 25.350
1996............. 25.175
and $25 if redeemed on or after March 1, 1997 together in each case with
accumulated and unpaid dividends to the date fixed for redemption.
(2) Notwithstanding the provisions of Section (C)(1)
above, the Corporation may not redeem any shares of this Series prior to March
1, 1990 unless the Closing Price (as determined in Section (C)(3)) of the
Corporation's Common Stock shall have equaled or exceeded 140% of the then
applicable conversion price per share (as fixed or determined in accordance with
Section (D)) for at least twenty (20) Trading Days (as hereinafter defined)
within thirty (30) consecutive Trading Days ending within five Trading Days
prior to the date notice of redemption is given. For purposes of this
resolution, Trading Day means, so long as the Common Stock is listed or admitted
to trading on the New York Stock Exchange (or any successor to such Exchange), a
day on which the New York Stock Exchange (or such successor) is open for the
transaction of business, or, if the Common Stock is not listed or admitted to
trading on such Exchange, a day on which the principal national securities
exchange on which the Common Stock is listed is open for the transaction of
business, or, if the Common Stock is not listed or admitted to trading on any
national securities exchange, a day on which any New York Stock Exchange member
firm is open for the transaction of business.
(3) For purposes of this resolution, the Closing Price of
the Corporation's Common Stock shall be the last sale price as shown on the
Composite Tape of the New York Stock Exchange, or, in case no such sale takes
place on such day, the average of the closing bid and asked prices on the New
York Stock Exchange, or, if the Common Stock is not listed or admitted to
trading on such Exchange, on the principal national securities exchange on which
the Common Stock is
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listed or admitted to trading, or, if it is not listed or admitted to trading on
any national securities exchange, the average of the closing bid and asked
prices as furnished by any New York Stock Exchange member firm selected from
time to time by the Board of Directors of the Corporation for such purpose
(other than the Corporation or a subsidiary thereof).
(4) In the event that fewer than all the outstanding
shares of this Series are to be redeemed, the number of shares to be redeemed
shall be determined by the Board of Directors, and the shares to be redeemed
shall be determined by lot or by any other method as may be determined by the
Board of Directors in its sole discretion to be equitable.
(5) In the event the Corporation shall redeem shares of
this Series, notice of such redemption shall be given by first class mail,
postage prepaid, mailed not less than thirty (30) nor more than sixty (60) days
prior to the redemption date, to each record holder of the shares to be
redeemed, at such holder's address as the same appears on the books of the
Corporation. Each such notice shall state: (i) the redemption date; (ii) the
total number of shares of this Series 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; (iii) the redemption price; (iv) the place or places
where certificates for such shares are to be surrendered for payment of the
redemption price; (v) that dividends on the shares to be redeemed will cease to
accrue on such redemption date; and (vi) the conversion rights of the shares to
be redeemed, the period within which conversion rights may be exercised, and the
conversion rate at the time applicable.
(6) If notice shall have been given as provided in
Section (C)(5) and the Corporation shall have provided moneys at the time and
place specified for the payment of the redemption price pursuant to such notice,
then from and after the redemption date, dividends on the shares of this Series
so called for redemption shall cease to accrue, such shares shall no longer be
deemed to be outstanding, and all rights of the holders thereof as stockholders
of the Corporation (except the right to receive from the Corporation the
redemption price without interest) shall cease. Upon surrender (in accordance
with the notice) of the certificates for any shares so redeemed (properly
endorsed or assigned for transfer, if the Board of Directors of the Corporation
shall so require and the notice shall so state), such shares shall be redeemed
by the Corporation at the redemption price set forth in Section (C)(1). In case
fewer than all the shares represented by any such certificate are to be
redeemed, a new certificate shall be issued representing the unredeemed shares,
without cost to the holder thereof.
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(7) Any shares of this Series which have been redeemed
shall, after such redemption, have the status of authorized but unissued shares
of Preferred Stock, without designation as to series, until such shares are once
more designated as part of a particular series by the Board of Directors.
(8) Notwithstanding the foregoing provisions of this
Section (C), unless the full cumulative dividends on all outstanding shares of
this Series and any other Preferred Stock ranking on a parity with this Series
shall have been paid or contemporaneously are declared and paid through the last
Dividend Payment Date, no shares of this Series shall be redeemed, and the
Corporation shall not purchase or otherwise acquire any shares of this Series.
(D) CONVERSION RIGHTS
(1) Each holder of a share of this Series shall have the
right, at any time, or, as to any share of this Series called for redemption or
exchange, at any time prior to the close of business on the date fixed for such
redemption or exchange, to convert such share into fully paid and nonassessable
shares of Common Stock of the Corporation at a rate of 2.632 shares of Common
Stock for each share of this Series, subject to adjustment as provided in this
Section (D). For purposes of this resolution, except as the context may
otherwise require, the relationship between the "conversion rate" and the
"conversion price" shall be established by formula such that the conversion
price shall equal $25 divided by the conversion rate.
(2) If any shares of this Series are surrendered for
conversion subsequent to the record date preceding a Dividend Payment Date but
on or prior to such Dividend Payment Date (except shares called for redemption
on a redemption date between such record date or Dividend Payment Date), the
registered holder of such shares at the close of business on such record date
shall be entitled to receive the dividend payable on such shares on such
Dividend Payment Date notwithstanding the conversion thereof. Except as provided
in this Section (D)(2), no adjustments in respect of or payments of dividends on
shares surrendered for conversion or any dividend on the Common Stock issued
upon conversion shall be made upon the conversion of any shares of this Series.
(3) The Corporation shall not be required, in connection
with any conversion of shares of this Series, to issue a fraction of a share of
its Common Stock, but in lieu
21
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thereof the Corporation shall, subject to Section (D)(6)(f), make a cash payment
(calculated to the nearest cent) equal to such fraction multiplied by the
Closing Price of the Common Stock on the last Trading Day prior to the date of
conversion.
(4) Any holder of shares of this Series electing to
convert such shares into Common Stock shall surrender the certificate or
certificates for such shares at the office of the Transfer Agent therefor (or at
such other place as the Corporation may designate by notice to the holders of
shares of this Series) during regular business hours, duly endorsed to the
Corporation or in blank, or accompanied by instruments of transfer to the
Corporation or in blank, in form satisfactory to the Corporation, and shall give
written notice to the Corporation at such office that such holder elects to
convert such shares of this Series. The Corporation shall, as soon as
practicable (subject to Section (D)(6)(f) hereof) after such deposit of
certificates for shares of this Series, accompanied by the written notice above
prescribed and the payment of cash in the amount required by Section (D)(2),
issue and deliver at such office to the holder for whose account such shares
were surrendered, or to his nominee, certificates representing the number of
shares of Common Stock and the cash, if any, to which such holder is entitled
upon such conversion.
(5) Conversion shall be deemed to have been made as of
the date of surrender of certificates for the shares of this Series to be
converted, and the giving of written notice and payment, as prescribed in
Section (D)(2) and (D)(4); and the person entitled to receive the Common Stock
issuable upon such conversion shall be treated for all purposes as the record
holder of such Common Stock on such date. The Corporation shall not be required
to deliver certificates for shares of its Common Stock while the stock transfer
books for such stock or for this Series are duly closed for any purpose, but
certificates for shares of Common Stock shall be issued and delivered as soon as
practicable after the opening of such books.
(6) The conversion rate shall be adjusted from time to
time as follows:
(a) In case the Corporation shall, at any time
or from time to time while any of the shares of this Series
are outstanding, (i) pay a dividend in shares of its Common
Stock, (ii) subdivide its outstanding shares of Common Stock,
or (iii) combine its outstanding shares of Common Stock into a
smaller number of shares, the conversion price and the
conversion rate in effect
22
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immediately prior to such action shall be adjusted so that the
holder of any shares of this Series thereafter surrendered for
conversion shall be entitled to receive the number of shares
of capital stock of the Corporation which such holder would
have owned or have been entitled to receive immediately
following such action had such shares of this Series been
converted immediately prior thereto. An adjustment made
pursuant to this Section (D)(6)(a) shall become effective
retroactively to immediately after the opening of business on
the day following the record date in the case of a dividend
and shall become effective immediately after the opening of
business on the day following the effective date in the case
of a subdivision or combination. If, as a result of an
adjustment made pursuant to this Section (D)(6)(a), the holder
of any shares of this Series thereafter surrendered for
conversion shall become entitled to receive shares of two or
more classes of capital stock of the Corporation, the Board of
Directors (whose determination shall be conclusive) shall
determine the allocation of the adjusted conversion price
and/or conversion rate between or among shares of such classes
of capital stock.
(b) In case the Corporation shall, at any time
or from time to time while any of the shares of this Series
are outstanding, issue rights or warrants to all holders of
shares of its Common Stock entitling them to subscribe for or
purchase shares of Common Stock (or securities convertible
into or exchangeable for Common Stock) at a price per share
less than the current market price per share of Common Stock
(as defined in Section (D)(6)(d)), at such record date, the
conversion rate shall be adjusted so that it shall equal the
rate determined by multiplying the conversion rate in effect
immediately prior to the date of issuance of such rights or
warrants by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding on the date of
issuance of such rights or warrants plus the number of
additional shares of Common Stock offered for subscription or
purchase, and the denominator of which shall be the number of
shares of Common Stock outstanding on the date of issuance of
such rights or warrants plus the number of shares which the
aggregate offering price of the total number of shares so
offered would purchase at such current market price. For the
purposes of this Section (D)(6)(b), the issuance of rights or
warrants to subscribe for or purchase securities convertible
into Common Stock shall be deemed to be the issuance of rights
or warrants to purchase the shares of Common Stock into which
such securities are convertible at an aggregate offering price
equal to the aggregate
23
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offering price of such securities plus the minimum aggregate
amount (if any) payable upon conversion of such securities
into shares of Common Stock; provided, however, that if all of
the shares of Common Stock subject to such rights or warrants
have not been issued when such rights or warrants expire, then
the conversion price shall promptly be readjusted to the
conversion price which would then be in effect had the
adjustment upon the issuance of such rights or warrants been
made on the basis of the actual number of shares of Common
Stock issued upon the exercise of such rights or warrants. An
adjustment made pursuant to this Section (D)(6)(b) shall
become effective retroactively immediately after the record
date for the determination of stockholders entitled to receive
such rights or warrants.
(c) In case the Corporation shall, at any time
or from time to time while any of the shares of this Series
are outstanding, distribute to all holders of shares of its
Common Stock evidences of its indebtedness or securities or
assets (excluding cash dividends payable out of consolidated
earnings or retained earnings or dividends payable in shares
of Common Stock) or rights or warrants to subscribe for
securities of the Corporation or any of its subsidiaries
(excluding those referred to in Section (D)(6)(b)), then in
each such case the conversion rate shall be adjusted so that
it shall equal the rate determined by multiplying the
conversion rate in effect immediately prior to the date of
such distribution by a fraction, the numerator of which shall
be the current market price per share (determined as provided
in Section (D)(6)(d)) of the Common Stock on the record date
referred to below, and the denominator of which shall be such
current market price per share of the Common Stock less the
then fair market value (as determined by the Board of
Directors of the Corporation, whose determination shall be
conclusive) of the portion of the assets or evidences of
indebtedness or securities or assets so distributed or of such
subscription rights or warrants applicable to one share of
Common Stock. Such adjustment shall become effective
retroactively immediately after the record date for the
determination of stockholders entitled to receive such
distribution.
(d) For the purpose of any computation under
Section (D)(6)(b) and (D)(6)(c), the current market price of a
share of Common Stock on any date shall be the average of the
daily Closing Prices for 10 consecutive Trading Days before
the day in question.
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(e) The Corporation shall be entitled to make
such additional adjustments in the conversion price, in
addition to those required by subsections D(6)(a), D(6) (b)
and D(6)(c), as shall be necessary in order that any dividend
or distribution in shares of stock, subdivision or combination
of shares of Common Stock, issuance of rights or warrants,
evidences of indebtedness or assets (other than cash dividends
payable out of consolidated earnings or retained earnings)
referred to above, shall not be taxable to the Stockholders.
(f) In any case in which this Section (D)(6)
shall require that an adjustment be made retroactively
immediately following a record date, the Corporation may elect
to defer (but only for five (5) Business Days following the
filing of the statement referred to in Section (D)(6)(h))
issuing to the holder of any shares of this Series converted
after such record date (i) the shares of Common Stock and
other capital stock of the Corporation issuable upon such
conversion over and above (ii) the shares of Common Stock and
other capital stock of the Corporation issuable upon such
conversion on the basis of the conversion rate prior to
adjustment.
(g) Notwithstanding any other provisions of this
Section (D)(6), the Corporation shall not be required to make
any adjustment of the conversion rate unless such adjustment
would require an increase or decrease of at least 1% in such
rate. Any lesser adjustment shall be carried forward and shall
be made at the time of and together with the next subsequent
adjustment which, together with any adjustment or adjustments
so carried forward, shall amount to an increase or decrease of
at least 1% in such rate.
(h) Whenever an adjustment in the conversion
rate is required, the Corporation shall forthwith place on
file with its Transfer Agent a statement signed by its Chief
Executive Officer, Chief Administrative and Financial Officer,
Chief Operating Officer or a Senior Vice President and by its
Secretary, Assistant Secretary or Treasurer, stating the
adjusted conversion rate determined as provided herein. Such
statements shall set forth in reasonable detail such facts as
shall be necessary to show the reason and the manner of
computing such adjustment. Promptly after the adjustment of
the conversion rate, the Corporation shall mail a notice
thereof to each holder of shares of this Series.
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(i) The term "Common Stock" as used in this
resolution means the Corporation's Common Stock, $1.00 par
value, as the same exists at the date of filing of the
Certificate of Designation relating to this Series or any
other class of stock resulting from successive changes or
reclassifications of such Common Stock consisting solely of
changes in par value, or from par value to no par value, or
from no par value to par value. In the event that at any time
as a result of an adjustment made pursuant to Section
(D)(6)(a), the holder of any share of this Series thereafter
surrendered for conversion shall become entitled to receive
any shares of the Corporation other than shares of its Common
Stock, the conversion rate of such other shares so receivable
upon conversion of any share shall be subject to adjustment
from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to
Common Stock contained in subparagraphs (a) through (g) of
this Section (D)(6), and the provisions of Section (D)(1)
through (5) and (7) through (11) with respect to the Common
Stock shall apply on like or similar terms to any such other
shares.
(7) In case of (a) any reclassification or change of
outstanding shares of Common Stock issuable upon conversion of shares of this
Series (other than a change in par value or from par value to no par value or
from no par value to par value, or as a result of a subdivision or combination),
or (b) any consolidation or merger of the Corporation with one or more other
corporations (other than a consolidation or merger in which the Corporation is
the continuing corporation and which does not result in any reclassification or
change of outstanding shares of Common Stock issuable upon conversion of shares
of this Series), or (c) any sale or conveyance to another corporation or other
entity of all or substantially all of the property of the Corporation, then the
Corporation, or such successor corporation or other entity, as the case may be,
shall make appropriate provision so that the holder of each share of this Series
then outstanding shall have the right to convert such share of this Series into
the kind and amount of shares of stock or other securities and property
receivable upon such consolidation, merger, sale, reclassification, change or
conveyance by a holder of the number of shares of Common Stock into which such
shares of this Series might have been converted immediately prior to such
consolidation, merger, sale, reclassification, change or conveyance, subject to
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section (D). The provisions of this Section
(D)(7) shall apply similarly to successive consolidations, mergers, sales or
conveyances.
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(8) Any shares of this Series which shall at any time
have been converted shall, after such conversion, have the status of authorized
but unissued shares of Preferred Stock, without designation as to series until
such shares are once more designated as part of a particular series by the Board
of Directors. The Corporation shall at all times reserve and keep available out
of its authorized but unissued stock, for the purpose of effecting the
conversion of the shares of this Series, such number of its duly authorized
shares of Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of this Series; provided, however, that
nothing contained herein shall preclude the Corporation from satisfying its
obligations in respect of the conversion of the shares by delivery of purchased
shares of Common Stock which are held in the treasury of the Corporation.
(9) If any shares of Common Stock required to be reserved
for purposes of conversion of shares of this Series hereunder require
registration with or approval of any governmental authority before such shares
may be issued upon conversion, the Corporation shall cause such shares to be
duly registered or approved, as the case may be. The Corporation will endeavor
to list the shares of Common Stock required to be delivered upon conversion of
shares of this Series prior to such delivery upon each national securities
exchange upon which the outstanding Common Stock is listed at the time of such
delivery.
(10) The Corporation shall pay any and all issue or other
taxes that may be payable in respect of any issue or delivery of shares of
Common Stock on conversion of shares of this Series pursuant hereto. The
Corporation shall not, however, be required to pay any tax which is payable in
respect of any transfer involved in the issue or delivery of Common Stock in a
name other than that in which the shares of this Series so converted were
registered, and no such issue or delivery shall be made unless and until the
person requesting such issue has paid to the Corporation the amount of such tax,
or has established, to the satisfaction of the Corporation, that such' tax has
been paid.
(11) Before taking any action that would result in the
conversion price being less than the then par value of the Common Stock, the
Corporation shall take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Corporation may validly and legally
issue fully paid and nonassessable shares of Common Stock at the conversion
price.
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(E) EXCHANGE FOR DEBENTURES
(1) The shares of this Series are exchangeable in whole,
but not in part, at the sole option of the Corporation, at any time on and after
March 1, 1989, on any Dividend Payment Date, into the Corporation's 7%
Convertible Subordinated Debentures Due 2012 (the "Debentures") described in the
Corporation's Registration Statement on Form S-2 (Registration No. 33-12248) as
filed with the Securities and Exchange Commission (the "Registration
Statement"); provided, that on or prior to the date fixed for exchange (the
"Exchange Date") the Corporation shall have paid to the holders of outstanding
shares of this Series and of Preferred Stock ranking on a parity with this
Series all accumulated and unpaid dividends to the Exchange Date. Holders of
outstanding shares of this Series shall be entitled to receive $25 principal
amount of Debentures in exchange for each share of this Series held on the
Exchange Date.
(2) In the event the Corporation shall exchange shares of
this Series, notice of such exchange shall be given by first class mail, postage
prepaid, mailed not less than thirty (30) nor more than sixty (60) days prior to
the Exchange Date, to each record holder of shares of this Series, at such
holder's address as the same appears on the books of the Corporation. Each such
notice shall state: (a) the Exchange Date; (b) the place or places where
certificates for such shares are to be surrendered for exchange into Debentures;
(c) that dividends on the shares to be exchanged will cease to accumulate on the
Exchange Date; and (d) the period within which conversion rights may be
exercised and the conversion rate at the time applicable. Prior to giving notice
of intention to exchange, the Corporation shall have executed and delivered with
The First National Bank of Boston, as trustee, shall have qualified under the
Trust Indenture Act of 1939, an Indenture (the "Indenture") in substantially the
form filed as an exhibit to the Registration Statement with such changes therein
as may be required by law or usage and shall have caused to be delivered to the
Trustee an opinion of counsel acceptable to the Trustee to the effect that (i)
the Debentures have been duly authorized by the Corporation; the Debentures
(assuming that they bear the facsimile signature of the Chief Executive Officer,
the Chief Administrative and Financial Officer, the Chief Operating Officer or a
Senior Vice President of the Corporation under its corporate seal reproduced
thereon and have been attested by the facsimile signature of its Secretary,
Assistant Secretary or Treasurer and have been authenticated by the Trustee in
accordance with the provisions of the Indenture) have been duly issued and
delivered by the Corporation and constitute valid and binding
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obligations of the Corporation entitled to the benefits of the Indenture, except
as the enforceability thereof may be limited by bankruptcy, insolvency, or other
similar laws relating to or affecting the enforcement of creditors' rights
generally and by general equitable principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law; (ii) the
Indenture has been authorized, executed and delivered by the Corporation and
(assuming due authorization, execution and delivery by the Trustee) constitutes
a legal, valid and binding agreement of the Corporation, enforceable against the
Corporation in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, or other similar laws relating to or
affecting the enforcement of creditors' rights generally and by general
equitable principles, regardless of whether such enforceability is considered in
a proceeding in equity or at law; (iii) the Common Stock initially issuable upon
conversion of the Debentures has been duly authorized and such Common Stock has
been duly reserved for issuance upon such conversion; and (iv) the issuance of
the Debentures and the Common Stock initially issuable upon conversion of the
Debentures and the compliance by the Corporation with all of the provisions of
the Debentures and the Indenture will not conflict with or result in any breach
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Corporation is a party or by which
the Corporation is bound or to which any of the property or assets of the
Corporation is subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or the By-Laws of the Corporation
or of any applicable order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over the Corporation;
and, to the best of such counsel's knowledge, no consent, approval,
authorization, order, registration or qualification of or with any court or any
such regulatory authority or other governmental agency or body will be required
for the issuance on the part of the Corporation of the Debentures or the shares
of Common Stock issuable upon conversion of the Debentures or the consummation
by the Corporation of the other transactions contemplated by the Indenture,
except such as have been obtained and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws. The Corporation shall cause the Debentures to be authenticated on
the Dividend Payment Date on which the exchange is effective, and the
Corporation shall pay interest on the Debentures at the rate and on the dates
specified in the Indenture from the Exchange Date.
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(3) Notice having been mailed as aforesaid, from and
after the Exchange Date (unless the Corporation shall default in issuing
debentures in exchange for shares of this Series or in making the final dividend
payment on the Exchange Date), dividends on the shares of this Series shall
cease to accumulate, such shares shall no longer be deemed to be outstanding,
and all rights of the holders thereof as stockholders of the Corporation (except
the right to receive from the Corporation the Debentures) shall cease. Upon
surrender (in accordance with the notice provided for above in Section (E) (2))
of the certificates for any shares of this Series so exchanged (properly
endorsed or assigned for transfer, if the Board of Directors shall so require
and the notice shall so state), such shares shall be exchanged by the
Corporation into Debentures as aforesaid.
(4) All shares of this Series which have been exchanged
shall, after such exchange, have the status of authorized but unissued shares of
preferred stock, without designation as to series until such shares are once
more designated as part of a particular series by the Board of Directors.
(F) VOTING
(1) The shares of this Series shall have the following
voting rights:
(a) If and whenever at any time or times
dividends payable on shares of this Series shall have been in
arrears and unpaid in an aggregate amount equal to or
exceeding the amount of dividends payable thereon for six
quarterly dividend periods, then the holders of shares of this
Series shall have the right, voting separately as a class with
any other series of Preferred Stock so entitled as provided in
the certificate of designation of such series, to elect two
directors of the Corporation, such directors to be in addition
to the number of directors constituting the Board of Directors
immediately prior to the accrual of such right, the remaining
directors to be elected by the other class or classes of stock
entitled to vote therefor at each meeting of stockholders held
for the purpose of electing directors. So long as the
Corporation's Board of Directors is divided into classes, the
two directors of the Corporation so elected by the holders of
shares of this Series and of such other series of Preferred
Stock so entitled shall be elected to the two classes with the
longest remaining terms.
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(b) Such voting right may be exercised initially
either at a special meeting of the holders of the Preferred
Stock having such voting right, called as hereinafter
provided, or at any annual meeting of stockholders held for
the purpose of electing directors, and thereafter at each such
annual meeting. The right of the holders of this Series to
vote for the election of such members of the Board of
Directors of the Corporation as aforesaid shall continue until
such time as all dividends accumulated on the shares of this
Series shall have been paid in full, at which time such voting
right of the holders of this Series shall terminate and, if
such voting right of the holders of this Series and all other
series of Preferred Stock so entitled shall have terminated,
subject to the requirements of the General Corporation Law of
Delaware, the term of the directors elected pursuant to
Section (F)(1)(a) shall terminate, subject to revesting on the
basis set forth in Section (F)(1)(a).
(c) At any time when such voting right shall
have vested in holders of this Series, and if such right shall
not already have been initially exercised, a proper officer of
the Corporation shall, upon the written request of the record
holders of 10% in number of shares of this Series then
outstanding, addressed to the Secretary of the Corporation,
call a special meeting of the holders of this Series and of
any other class or classes of stock having voting power with
respect to the election of such directors. Such meeting shall
be held at the earliest practicable date upon the notice
required for annual meetings of stockholders at the place for
holding annual meetings of stockholders of the Corporation or,
it none, at a place designated by the Board of Directors. If
such meeting is not called by the proper officers of the
Corporation within 30 days after the personal service of such
written request upon the Secretary of the Corporation, or
within 35 days after mailing the same within the United States
of America, by registered mail, addressed to the Secretary of
the Corporation at its principal office (such mailing to be
evidenced by the registry receipt issued by the postal
authorities), then the record holders of 10% in number of
shares of this Series then outstanding may designate in
writing one of their number to call such meeting at the
expense of the Corporation, and such meeting may be called by
such person so designated upon the notice required for annual
meetings of stockholders and shall be held at the same place
as is elsewhere provided for in this Section (F)(1)(c) or such
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other place as is selected by such designated stockholder. Any
holder of the Preferred Stock who would be entitled to vote at
such meeting shall have access to the stock books of the
Corporation for the purpose of causing a meeting of
stockholders to be called pursuant to the provisions of this
Section (F)(1). Notwithstanding the provisions of this Section
(F)(1), no such special meeting shall be called during a
period within 90 days immediately preceding the date fixed for
the next annual meeting of stockholders.
(d) At any meeting held for the purpose of
electing directors at which the holders of the Preferred Stock
shall have the right to elect directors as provided herein,
the presence in person or by proxy of the holders of fifty
percent (50%) of the then outstanding shares of Preferred
Stock having such right shall be required and shall be
sufficient to constitute a quorum of such class for the
election of directors by such class. At any such meeting or
adjournment thereof (i) the absence of a quorum of the holders
of the Preferred Stock having such right shall not prevent the
election of directors other than those to be elected by the
holders of the Preferred Stock, and the absence of a quorum or
quorums of the holders of capital stock entitled to elect such
other directors shall not prevent the election of directors to
be elected by the holders of the Preferred Stock entitled to
elect such directors and (ii) except as otherwise required by
law, in the absence of a quorum of the holders of any class of
stock entitled to vote for the election of directors, a
majority of the holders present in person or by proxy of such
class shall have the power to adjourn the meeting for the
election of directors which the holders of such class are
entitled to elect, from time to time, without notice other
than announcement at the meeting, until a quorum is present.
(e) Any vacancy in the Board of Directors in
respect of a director elected by holders of Preferred Stock
pursuant to the voting right created under this Section (F)(1)
shall be filled by vote of the remaining director so elected,
or if there be no such remaining director, by the holders of
Preferred Stock entitled to elect such director or directors
at a special meeting called in accordance with the procedures
set forth in Section (F)(1)(c), or, if no such special meeting
is called, at the next annual meeting of stockholders.
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(f) So long as any shares of this Series remain
outstanding, the Corporation shall not, either directly or
indirectly or through merger or consolidation with any other
corporation, without the affirmative vote at a meeting or the
written consent with or without a meeting of the holders of at
least 66 2/3% in number of shares of this Series then
outstanding, (i) amend, alter or repeal any of the provisions
of the Certificate of Designation relating to this Series or
the Certificate of Incorporation, or authorize any
reclassification of the shares of this Series, so as in any
such case to affect adversely the preferences, special rights
or powers of the shares of this Series or (ii) authorize or
create any class of stock ranking prior to or on a parity with
the Corporation's authorized class of Preferred Stock as to
dividends or distribution of assets on liquidation, create any
series of the Corporation's authorized Preferred Stock ranking
prior to the Preferred Stock as to dividends or distributions
on liquidation or increase the authorized amount of the
Corporation's Preferred Stock.
(g) In exercising the voting rights set forth in
this Section (F)(1), each share of Preferred Stock entitled to
such voting right shall have equal voting power,
notwithstanding any greater or lesser general voting powers of
one or more series of Preferred Stock.
(2) No consent of holders of shares of this Series shall
be required for (i) the creation of any indebtedness of any kind of the
Corporation, (ii) the authorization or issuance of any class of stock of the
Corporation junior to the shares of this Series as to dividends and upon
liquidation, dissolution or winding up of the Corporation or (iii) subject to
Section (F)(l)(f), the issuance of any shares of Preferred Stock.
(G) LIQUIDATION RIGHTS
(1) Upon the dissolution, liquidation or winding up of
the Corporation, whether voluntary or involuntary, the holders of the shares of
this Series shall be entitled to receive out of the assets of the Corporation
available for distribution to stockholders, before any payment or distribution
shall be made on the Common Stock or on any other class of stock ranking junior
to this Series upon liquidation, the amount of $25 per share, plus all
accumulated and unpaid dividends to the date of final distribution.
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(2) Neither the sale, lease or exchange (for cash, shares
of stock, securities or other consideration) of all or substantially all the
property and assets of the Corporation nor 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 (G).
(3) After the payment to the holders of the shares of
this Series of the full preferential amounts provided for in this Section (G),
the holders of this Series as such shall have no right or claim to any of the
remaining assets of the Corporation.
(4) In the event the assets of the Corporation available
for distribution to the holders of shares of this Series upon any dissolution,
liquidation or winding up of the Corporation, whether voluntary or involuntary,
shall be insufficient to pay in full all amounts to which such holders are
entitled pursuant to Section (G)(1), no such distribution shall be made on
account of any shares of any other class or series of Preferred Stock ranking on
a parity with the shares of this Series upon such dissolution, liquidation or
winding up unless proportionate distributive amounts shall be paid on account of
the shares of this Series, ratably, in proportion to the full distributable
amounts for which holders of all such parity shares are respectively entitled
upon such dissolution, liquidation or winding up.
(H) PRIORITY
(1) For purposes of this resolution, any stock of any
class or series of the Corporation shall be deemed to rank:
(i) Prior to the shares of this Series, either
as to dividends or upon liquidation, if the holders of such
class or classes shall be entitled to the receipt of dividends
or of amounts distributable upon dissolution, liquidation or
winding up of the Corporation, whether voluntary or
involuntary, as the case may be, in preference or priority to
the holders of shares of this Series;
(ii) On a parity with shares of this Series,
either as to dividends or upon liquidation, whether or not the
dividend rates, Dividend Payment Dates, or redemption or
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20
liquidation prices per share or sinking fund provisions, if
any, are different from those of this Series, if the holders
of such stock are entitled to the receipt of dividends or of
amounts distributable upon dissolution, liquidation or winding
up of the Corporation, whether voluntary or involuntary, in
proportion to their respective dividend rates or liquidation
prices, without preference or priority, one over the other, as
between the holders of such stock and the holders of shares of
this Series; and
(iii) Junior to shares of this Series, either as
to dividends or upon liquidation, if such class or series
shall be Common Stock or if the holders of shares of this
Series shall be entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of
the Corporation, whether voluntary or involuntary, as the case
may be, in preference or priority to the holders of shares of
such class or series.
(I) CERTAIN RESTRICTIONS
(1) So long as any shares of this Series are outstanding,
the Corporation will not, and will not permit any Subsidiary to, directly or
indirectly, create, incur, assume or suffer to be created, incurred, assumed or
to exist or become effective any consensual encumbrance or restrictions on the
ability of any Subsidiary to (i) pay any dividends or make any other
distributions on such Subsidiary's capital stock; (ii) pay any indebtedness owed
to the Corporation or any other Subsidiary; or (iii) make any loans or advances
or transfer any of its property or assets to the Corporation or any other
Subsidiary.
(2) So long as any shares of this Series are outstanding,
the Corporation will not, directly or indirectly, (a) declare or pay any
dividend or make any distribution in respect of Common Stock or any other class
of capital stock of the Corporation ranking junior to shares of this Series as
to dividends and upon liquidation (other than a dividend or distribution payable
in shares of capital stock of the Corporation), or (b) make or permit any
Subsidiary to make any payment on account of the purchase, redemption or other
acquisition or retirement of any Common Stock or any other class of capital
stock of the Corporation ranking junior to shares of this Series upon
liquidation, dissolution or winding up of the Corporation or warrants, rights or
options to purchase or acquire any such capital stock, unless after giving
effect, as if paid, to the proposed dividend,
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distribution or payment, the aggregate amount of all such dividends,
distributions and payments (the amount of any such payment, if other than cash,
to be determined by the Board of Directors, whose determination shall be
conclusive) declared or made after the date hereof does not exceed the sum of
(w) the aggregate net proceeds, including the fair market value of property
other than cash (as determined by the Board of Directors of the Corporation,
whose determination shall be conclusive), received by the Corporation from the
issuance or sale after December 31, 1986 of shares of its capital stock (other
than the shares of this Series) or of warrants, rights or options to purchase or
acquire any such capital stock; plus (x) the aggregate principal amount of any
indebtedness of the Corporation which is converted into shares of its capital
stock, subsequent to December 31, 1986 (other than any conversion of
Debentures); plus (or minus, in the case of a Consolidated Net Loss) (y) 75% of
the Consolidated Net Income (but 100% of a Consolidated Net Loss) of the
Corporation for the period (taken as one accounting period) from December 31,
1986 to the date of the proposed dividend, distribution or payment; plus (z)
$10,000,000. The provisions of this Section shall not be deemed to prohibit (A)
the payment of regular dividends on, or the making of mandatory sinking fund
payments in respect of, any shares of capital stock of the Company issued in
connection with the acquisition, other than in the ordinary course of business,
of any property or assets (other than cash or securities of the Company or its
Subsidiaries) where such capital stock ranks senior to the Company's Common
Stock and junior to the shares of this Series as to dividends or upon
liquidation, but all payments made for such purposes shall be taken into account
in any computation under this Section, (B) the payment of any dividend within 60
days after the date of declaration thereof, if at such declaration date such
declaration complied with the provisions of this provision or (C) the retirement
of shares of any class of capital stock of the Corporation in exchange for
(including any such exchange pursuant to exercise of a conversion right or
privilege in connection with which cash is paid in lieu of the issuance of
fractional shares or scrip), or out of the proceeds to be received from the
substantially concurrent sale of, other shares of capital stock of the
Corporation and no such retirement or the proceeds of any such sale or exchange
shall be included in any computation under this Section. For purposes of this
Section (I)(2), (i) "Consolidated Net Income (Loss)" for any period means the
consolidated net income (loss) of the Corporation and its consolidated
Subsidiaries as determined in accordance with generally accepted accounting
principles adjusted by excluding (a) net extraordinary gains or net
extraordinary losses, as the case may be, during such
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period and (b) net gains or losses in respect of dispositions of assets other
than in the ordinary course of business, and (ii) "Subsidiary" means a
corporation a majority of the voting stock of which is at the time owned,
directly or indirectly, by the Corporation.
IN WITNESS WHEREOF, Fedders Corporation has caused this certificate to
be signed and attested this 24th day of March, 1987.
FEDDERS CORPORATION
/s/ Salvatore Giordano
By---------------------------------
Title: Chairman
/s/ Joseph Giordano
Attest:----------------------------
Asst. Secretary
37
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
FEDDERS CORPORATION
FEDDERS CORPORATION, a corporation organized and existing
under the laws of the State of Delaware, does hereby certify as follows:
1. The present name of the corporation (hereinafter
called the "Corporation") is Fedders Corporation, which is the name under which
the Corporation was originally incorporated.
The original Certificate of Incorporation of the Corporation
was filed with the Secretary of State on April 4, 1984. A Restated Certificate
of Incorporation was filed with the Secretary of State of Delaware on January 2,
1985.
2. This Certificate of Amendment amends the Certificate
of Incorporation, as amended by the addition of 30,000,000 shares of a new class
of capital stock to be denominated Class B Stock.
3. The text of Article "THIRD" of the Certificate of
Incorporation, as heretofore amended, is further amended hereby as follows:
Article THIRD of the Certificate of Incorporation is hereby
amended to read in its entirety as follows:
"THIRD: The aggregate number of shares of stock of all classes
which the Corporation shall have authority to issue is 65,000,000, consisting of
30,000,000 shares of Common Stock having a par value of $1.00 per share,
30,000,000 shares of Class B Stock having a par value of $1.00 per share and
5,000,000 shares of Preferred Stock having a par value of $1.00 per share.
The powers, preferences and the relative, participating,
optional and other rights and the qualifications, stock, and the express grant
of authority to the Board of Directors to fix by resolution the designations and
the powers, preferences and rights of each share of Preferred Stock and the
qualifications, limitations and restrictions thereof which are not fixed by this
Certificate of Incorporation, are as follows:
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A. COMMON STOCK AND CLASS B STOCK
I. Dividends, etc. Subject to the rights of the holders
of Preferred Stock, and subject to any other provisions of this Certificate of
Incorporation, as amended from time to time, holders of Common Stock and Class B
Stock shall be entitled to receive such dividends and other distributions in
cash, stock or property of the Corporation as may be declared thereon by the
Board of Directors from time to time out of assets or funds of the Corporation
legally available therefor, provided that in the case of cash dividends, if at
any time a cash dividend is paid on the Common Stock, a cash dividend will also
be paid on the Class B Stock in an amount per share of Class B Stock equal to
90% of the amount of the cash dividends paid on each share of the Common Stock
(rounded down, if necessary, to the nearest one-hundredth of a cent), and
provided, further, that in the case of dividends or other distributions payable
in stock of the Corporation other than Preferred Stock, including distributions
pursuant to stock splits or divisions of stock of the Corporation other than
Preferred Stock, which occur after the initial issuance of shares of Class B
Stock by the Corporation, only shares of Common Stock shall be distributed with
respect to Common Stock and only shares of Class B Stock in an amount per share
equal to the amount per share paid with respect to the Common Stock shall be
distributed with respect to Class B Stock, and that, in the case of any
combination or reclassification of the Common Stock, the shares of Class B Stock
shall also be combined or reclassified so that the number of shares of Class B
Stock outstanding immediately following such combination or reclassification
shall bear the same relationship to the number of shares outstanding immediately
prior to such combination or reclassification as the number of shares of Common
Stock outstanding immediately following such combination or reclassification
bears to the number of shares of Common Stock outstanding immediately prior to
such combination or reclassification.
II. Voting: (a) At every meeting of the stockholders
every holder of Common Stock shall be entitled to one (1) vote in person or by
proxy for each share of Common Stock standing in his name on the transfer books
of the Corporation and every holder of Class B Stock shall be entitled to one
(1) vote in person or by proxy for each share of Class B Stock standing in his
name on the transfer books of the Corporation, except that each holder of Class
B Stock shall be entitled to ten (10) votes per share on the election of any
directors at any stockholders' meeting (i) if more than 15% of the shares of
Common Stock outstanding on the record
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date for such meeting are beneficially owned by a person or group of persons
acting in concert (unless such person or group is also the beneficial owner of a
majority of the shares of Class B Stock on such record date), or (ii) if a
nomination for the Board of Directors is made by a person or group of persons
acting in concert (other than the Board of Directors), provided that such
nomination is not made by one or more holders of Class B Stock, acting in
concert with each other who beneficially own more than 15% of the shares of
Class B Stock outstanding on such record date.
(b) The provisions of this Certificate of Incorporation
shall not be modified, revised, altered or amended, repealed or rescinded in
whole or in part, without (i) the affirmative vote of the holders of a majority
of the shares of the Common Stock and of a voting majority of the shares of the
Class B Stock, each voting separately as a class, and (ii) additionally with
respect to Article Eighth, the vote required by Article Eighth.
(c) The Corporation may not effect or consummate:
(1) any merger or consolidation of the Corporation with
or into any other corporation;
(2) any sale, lease, exchange or other disposition of all
or substantially all of the assets of the Corporation to or with any other
person; or
(3) any dissolution of the Corporation;
unless and until such transaction is authorized by the vote, if any, required by
Articles Eighth and Ninth of this Certificate of Incorporation and by Delaware
law; and unless and until such transaction is authorized by a majority of the
voting power of the shares of Common Stock and of Class B Stock entitled to
vote, each voting separately as a class, but the foregoing shall not apply to
any merger or other transaction described in the preceding subparagraphs (1) and
(2) if the other party to the merger or other transaction is a Subsidiary of the
Corporation.
For purposes of this paragraph (c) a "Subsidiary" is any
corporation more than 50% of the voting securities of which are owned directly
or indirectly by the Corporation; and a "person" is any individual, partnership,
corporation or entity.
(d) Following the initial issuance of shares of Class B
Stock, the Corporation may not effect the issuance of any additional shares of
Class B Stock (except in connection with stock splits and stock dividends)
unless
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and until such issuance is authorized by the holders of a majority of the voting
power of the shares of Common Stock and of Class B Stock entitled to vote, each
voting separately as a class.
(e) Every reference in this Certificate of Incorporation
to a majority or other proportion of shares of stock shall refer to such
majority or other proportion of the votes of such shares of stock.
(f) Except as may be otherwise required by law or by this
Article Third the holders of Common Stock and Class B Stock shall vote as a
single class, subject to any voting rights which may be granted to holders of
Preferred Stock.
III. Transfer.
(a) No person holding shares of Class B Stock of record
(hereinafter called a "Class B Holder") may transfer, and the Corporation shall
not register the transfer of, such shares of Class B Stock, as Class B Stock,
whether by sale, assignment, gift, bequest, appointment or otherwise, except to
a Permitted Transferee and any attempted transfer of shares not permitted
hereunder shall be converted into Common Stock as provided by subsection (d) of
this Section III. A Permitted Transferee shall mean, with respect to each person
from time to time shown as the record holder of shares of Class B Stock:
(i) In the case of a Class B Holder who is a
natural person;
(A) The spouse of such Class B Holder, any lineal
descendant of a parent of such Class B Holder, and any spouse of such lineal
descendant (which lineal descendants, their spouses, the Class B Holder, and his
or her spouse are herein collectively referred to as "Class B Holder's Family
Members");
(B) The trustee of a trust (including a voting trust)
principally for the benefit of such Class B Holder and/or one or more of his or
her permitted Transferees described in each subclause of this clause (i) other
than this subclause (B), provided that such trust may also grant a general or
special power of appointment to one or more of such Class B Holder's Family
Members and may permit trust assets to be used to pay taxes, legacies and other
obligations of the trust or of the estates of one or more of such Class B
Holder's Family Members payable by reason of the death of any of such Family
Members;
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(C) Any organization contributions to which are
deductible for federal income, estate or gift tax purposes or any split-interest
trust described in Section 4947 of the Internal Revenue Code, as it may from
time to time be amended (hereinafter called a "Charitable Organization");
(D) A corporation if a majority of the beneficial
ownership of outstanding capital stock of such corporation which is entitled to
vote for the election of directors is owned by, or a partnership if a majority
of the beneficial ownership of the partnership is held by, the Class B Holder of
his or her Permitted Transferees determined under this clause (i), provided that
if by reason of any change in the ownership of such stock or partnership
interest, such corporation or partnership would no longer qualify as a Permitted
Transferee, all shares of Class B Stock then held by such corporation or
partnership would no longer qualify as a Permitted Transferee, all shares of
Class B Stock then held by such corporation or partnership shall, upon the
election of the Corporation given by written notice to such corporation or
partnership, without further act on anyone's part, be converted into shares of
Common Stock effective upon the date of the giving of such notice, and stock
certificates formerly representing such shares of Class B Stock shall thereupon
and thereafter be deemed to represent the like number of shares of Common Stock;
and
(E) The estate of such Class B Holder.
(ii) In the case of a Class B Holder holding the shares of
Class B Stock in question as trustee pursuant to a trust (other than a
Charitable Organization or a trust described in clause (iii) below), "Permitted
Transferee" means (A) any person transferring Class B Stock to such trust and
(B) any Permitted Transferee of any such transferor determined pursuant to
clause (i) above.
(iii) In the case of a Class B Holder holding the shares of
Class B Stock in question as trustee pursuant to a trust (other than a
Charitable Organization) which was irrevocable on the record date (hereinafter
in this Section III called the "Record Date") for determining the persons to
whom the Class B Stock is first issued by the Corporation, "Permitted
Transferee" means (A) any person to whom or for whose benefit principal may be
distributed either during or at the end of the term of such trust whether by
power of appointment or otherwise and (B) any Permitted Transferee of any such
person determined pursuant to clause (i) above.
(iv) In the case of a Class B Holder which is a Charitable
Organization holding record and beneficial ownership of the shares of Class B
Stock in question, "Permitted Transferee" means any Class B Holder.
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(v) In the case of a Class B Holder which is a
corporation or partnership other than a Charitable Organization; acquiring
record and beneficiary ownership of the shares of Class B Stock in question upon
its in initial issuance by the Corporation, "Permitted Transferee" means (A) any
partner of such partnership, or stockholder of such corporation, on the Record
Date, (B) any person transferring such shares of Class B Stock to such
corporation or partnership, and (C) any Permitted Transferee of any such person,
partner, or stockholder referred to in subclauses (A) and (B) of this clause
(v), determined under clause (i) above.
(vi) In the case of a Class B Holder which is a
corporation or partnership (other than a Charitable Organization or a
corporation or partnership described in clause (v) above) holding record and
beneficial ownership of the shares of Class B Stock in question, "Permitted
Transferee" means (a) any person transferring such shares of Class B Stock to
such corporation or partnership and (b) any Permitted Transferee of any such
transferor determined under clause (i) above.
(vii) In the case of a Class B Holder which is the estate
of a deceased Class B Holder, or which is the estate of a bankrupt or insolvent
Class B Holder, which holds record and beneficial ownership of the shares of
Class B Stock in question, "Permitted Transferee" means a Permitted Transferee
of such deceased, bankrupt or insolvent Class B Holder as determined pursuant to
clause (i), (ii), (iii), (iv), (v) or (vi) above, as the case may be.
(b) Notwithstanding anything to the contrary set forth
herein, any Class B Holder may pledge such Holder's share of Class B Stock to a
pledgee pursuant to a bona fide pledge of such shares as collateral security for
indebtedness due to the pledgee, provided that such shares shall not be
transferred to or registered in the name of the pledgee and shall remain subject
to the provisions of this Section III. In the event of foreclosure of other
similar action by the pledgee, such pledged shares of Class B Stock may only be
transferred to a Permitted Transferee of the pledgor or converted into shares of
Common Stock, as the pledgee may elect.
(c) For purposes of this Section III:
(i) The relationship of any person that is derived by or
through legal adoption shall be considered a natural one.
(ii) Each joint owner of shares of Class B Stock shall be
considered a "Class B Holder" of such shares.
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(iii) A minor for whom shares of Class B Stock are held
pursuant to a Uniform Gifts to Minors Act or similar law shall be considered a
Class B Holder of such shares.
(iv) Unless otherwise specified, the term "person" means
both natural persons and legal entities.
(v) Without derogating from the election conferred upon
the Corporation pursuant to subclause (D) of clause (i) above, each reference to
a corporation shall include any successor corporation resulting from merger or
consolidation and each reference to a partnership shall include any successor
partnership resulting from the death or withdrawal of a partner.
(d) Any transfer of shares of Class B Stock not permitted
hereunder shall result in the conversion of the transferee's shares of Class B
Stock into shares of Common Stock, effective the date on which certificates
representing such shares are presented for transfer on the books of the
Corporation. The Corporation may, in connection with preparing a list of
stockholders entitled to vote at any meeting of stockholders, or as a condition
to the transfer or the registration of shares of Class B Stock on the
Corporation's books, require the furnishing of such affidavits or other proof as
it deems necessary to establish that any person is the beneficial owner of
shares of Class B Stock or is a Permitted Transferee.
(e) At any time when the number of outstanding shares of
Class B Stock as reflected on the stock transfer books the Corporation falls
below 5% of the aggregate number of the issued and outstanding shares of the
Common Stock and Class B Stock of the Corporation, or the Board of Directors and
the holders of a majority of the outstanding shares of Class B Stock approve the
conversion of all of the Class B Stock into Common Stock, then, immediately upon
the occurrence of either such event, the outstanding shares of Class B Stock
shall be converted into shares of Common Stock. In the event of such a
conversion, certificates formerly representing outstanding shares of Class B
Stock shall thereupon and thereafter be deemed to represent the like number of
shares of Common Stock.
(f) Shares of Class B Stock shall be registered in the
names of the beneficial owners thereof and not in "street" or "nominee" name.
For this purpose, a "beneficial owner" of any shares of Class B Stock shall mean
a person who, or an entity which, possesses the power, either singly or jointly,
to direct the voting or disposition of such shares.
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The Corporation shall note on the certificates for shares of Class B Stock the
restrictions on transfer and registration of transfer imposed by this Section
III.
IV. Conversion Rights.
(a) Subject to the terms and conditions of this Section
IV, each share of Class B Stock shall be convertible at any time or from time to
time, at the option of the respective holder thereof, at the office of any
transfer agent for Class B Stock, and at such other place or places, if any, as
the Board of Directors may designate, or, if the Board of Directors shall fail
so to designate, at the principal office of the Corporation (attention of the
Secretary of the Corporation), into one (1) fully paid and nonassessable share
of Common Stock. Upon conversion, the Corporation shall make no payment or
adjustment on account of dividends accrued or in arrears on Class B Stock
surrendered for conversion or on account of any dividends on the Common Stock
issuable on such conversion. Before any holder of Class B Stock shall be
entitled to convert the same into Common Stock, he shall surrender the
certificate or certificates for such Class B Stock at the office of said
transfer agent (or other place as provided above), which certificate or
certificates, if the Corporation shall so request, shall be duly endorsed to the
Corporation or in blank or accompanied by proper instruments of transfer to the
Corporation or in blank) (such endorsements or instruments of transfer to be in
form satisfactory to the Corporation), and shall give written notice to the
Corporation at said office that he elects so to convert said Class B Stock in
accordance with the terms of this Section IV, and shall state in writing therein
the name or names in which he wishes the certificate or certificates for Common
Stock to be issued. Every such notice of election to convert shall constitute a
contract between the holder of such Class B Stock and the Corporation, whereby
the holder of such Class B Stock shall be deemed to subscribe for the amount of
Common Stock which he shall be entitled to receive upon such conversion, and, in
satisfaction of such subscription, to deposit the Class B Stock to be converted
and to release the Corporation from all liability thereunder, and thereby the
Corporation shall be deemed to agree that the surrender of the certificate or
certificates therefor and the extinguishment of liability thereon shall
constitute full payment of such subscription for Common Stock to be issued upon
such conversion. The Corporation will as soon as practicable after such deposit
of a certificate or certificates for Class B Stock, accompanied by the written
notice and the statement above prescribed, issue and deliver at the office of
said transfer agent (or other place as provided above) to the person for whose
account
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9
such Class B Stock was so surrendered, or to his nominee or nominees, a
certificate or certificates for the number of full shares of Common Stock to
which he shall be entitled as aforesaid. Subject to the provisions of subsection
(c) of this Section IV, such conversion shall be deemed to have been made as of
the date of such surrender of the Class B Stock to be converted; and the person
or persons entitled to receive the Common Stock issuable upon conversion of such
Class B Stock shall be treated for all purposes as the record holder or holders
of such Common Stock on such date.
(b) The issuance of certificates for shares of Common
Stock upon conversion of shares of Class B Stock shall be made without charge
for any stamp or other similar tax in respect of such issuance. However, if any
such certificate is to be issued in a name other than that of the holder of the
share of shares of Class B Stock converted, the person or persons requesting the
issuance thereof shall pay to the Corporation the amount of any tax which may be
payable in respect of any transfer involved in such issuance or shall establish
to the satisfaction of the Corporation that such tax has been paid.
(c) The Corporation shall not be required to convert
Class B Stock, and no surrender of Class B Stock shall be effective for that
purpose, while the stock transfer books of the Corporation are closed for any
purpose; but the surrender of Class B Stock for conversion during any period
while such books are so closed shall become effective for conversion immediately
upon the reopening of such books, as if the conversion had been made on the date
such Class B Stock was surrendered.
(d) The Corporation covenants that it will at all times
reserve and keep available, solely for the purpose of issue upon conversion of
the outstanding shares of Class B Stock, such number of shares of Common Stock
as shall be issuable upon the conversion of all such outstanding shares,
provided that nothing contained herein shall be construed to preclude the
corporation from satisfying its obligations in respect of the conversion of the
outstanding shares of Class B Stock by delivery of shares of Common Stock which
are held in the treasury of the Corporation. The Corporation covenants that if
any shares of Common Stock, required to be reserved for purposes of conversion
hereunder, required registration with or approval of any governmental authority
under any federal or state law before such shares of Common Stock may be issued
upon conversion, the Corporation will use its best
46
10
efforts to cause such shares to be duly registered or approved, as the case may
be. The Corporation will endeavor to list the shares of Common Stock required to
be delivered upon conversion prior to such delivery upon each national
securities exchange, if any, upon which the outstanding Common Stock is listed
at the time of such delivery. The Corporation covenants that all shares of
Common Stock which shall be issued upon conversion of the shares of Class B
Stock, will, upon issue, be fully paid and nonassessable and not entitled to any
preemptive rights.
V. Liquidation Rights. In the event of any dissolution,
liquidation or winding up of the affairs of the Corporation, whether voluntary
or involuntary, after payment or provision for payment of the debts and other
liabilities of the Corporation, the holders of each series of Preferred Stock
shall be entitled to receive, out of the net assets of the Corporation, an
amount for each share equal to the amount fixed and determined by the Board of
Directors in any resolution or resolutions providing for the issuance of any
particular series of Preferred Stock, plus an amount equal to all dividends
accrued and unpaid on shares of such series to the date fixed for distribution,
and no more, before any of the assets of the Corporation shall be distributed or
paid over to the holders of Common Stock. After payment in full of said amounts
to the holders of Preferred Stock of all series, the remaining assets and funds
of the Corporation shall be divided among and paid ratably to the holders of
Common Stock (including those persons who shall become holders of Common Stock
by reasons of converting their shares of Class B Stock). If, upon such
dissolution, liquidation or winding up, the assets of the Corporation
distributable as aforesaid among the holders of Preferred Stock of all series
shall be insufficient to permit full payment to them of said preferential
amounts, then such assets shall be distributed among such holders, first in the
order of their respective preferences, and second, as to such holders who are
next entitled to such assets and who rank equally with regard to such assets,
ratably in proportion to the respective total amounts which they shall be
entitled to receive as provided in this Section V. A merger or consolidation of
the Corporation with or into any other corporation or a sale or conveyance of
all or any part of the assets of the Corporation (which shall not in fact result
in the liquidation of the Corporation and the distribution of assets to
stockholders) shall not be deemed to be a voluntary or involuntary liquidation
or dissolution or winding up of the Corporation within the meaning of this
Section V.
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B. Preferred Stock.
The Board of Directors is authorized, subject to limitations
prescribed by law and the provisions of this Article Third, to provide for the
issuance of the preferred shares in series, and by filing a certificate pursuant
to the General Corporation Law of Delaware, to establish the number of shares to
be included in each such series, and to fix the designations, relative rights,
preferences and limitations of the shares of each such series. The authority of
the Board with respect to each series shall include, but not be limited to,
determination of the following:
(a) The number of shares constituting that
series and the distinctive designations of that series;
(b) The dividend rate on the shares of that
series, whether dividends shall be cumulative and, if so, from
which date or dates, and the relative rights of priority, if
any, of payment of dividends on shares of that series;
(c) Whether that series shall have voting
rights, in addition to the voting rights provided by law and,
if so, the terms of such voting rights;
(d) Whether that series shall have conversion
privileges and, if so, the terms and conditions of such
conversion, including provision for adjustment of the
conversion rate in such events as the Board of Directors shall
determine;
(e) Whether or not the shares of that series
shall be redeemable and, if so, the terms and conditions of
such redemption, including the date or dates upon or after
which they shall be redeemable, and the amount per share
payable in case of redemption, which amount may vary under
different conditions and at different redemption dates;
(f) Whether that series shall have a sinking
fund for the redemption or purchase of shares of that series
and, if so, the terms and amount of such sinking fund;
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(g) The rights of the shares of that series in
the event of voluntary of involuntary liquidation, dissolution
or winding up of the Corporation, and the relative rights of
priority, if any, of payment of shares of that series;
(h) Any other relative rights, preferences and
limitations of that series.
Dividends on outstanding preferred shares shall be declared
and paid, or set apart for payment, before any dividends shall be declared and
paid, or set apart for payment, on the common shares with respect to the
dividend period.
Any and all such shares issued, and for which the full
consideration has been paid or delivered shall be deemed fully paid stock and
the holder of such shares shall not be liable for any further call or assessment
or any other payment thereon.
4. The capital of the Corporation will not be reduced
under or by reason of this amendment.
5. This amendment was duly adopted by a vote of the
stockholders in accordance with Section 242 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, said FEDDERS CORPORATION has caused this
certificate to be signed by its President and attested by its Secretary, and its
corporate seal to be hereunto affixed this 23rd day of May, 1985.
/s/ S. Giordano, Jr.
--------------------------------------------
S. Giordano, Jr.
President
/s/ Howard S. Modlin
Attest: --------------------------------------------
Howard S. Modlin
Secretary
[CORPORATE SEAL]
49
CERTIFICATE OF CORRECTION
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
FEDDERS CORPORATION
It is hereby certified that:
1. The name of the corporation (hereinafter called the
"Corporation") is FEDDERS CORPORATION.
2. The Restated Certificate of Incorporation of the
Corporation, which was filed by the Secretary of State of Delaware on January 2,
1985, is hereby corrected.
3. The inaccuracy to be corrected in said instrument is
as follows:
The reinsertion of Article NINTH which was inadvertently
omitted from the Restated Certificate of Incorporation as
previously filed.
4. The portion of the instrument in corrected form is as
follows:
"NINTH: The affirmative vote of two-thirds (2/3) of
the outstanding stock of the Corporation entitled to vote for
a merger or consolidation shall be required for the approval
of any merger or consolidation to which the corporation is a
party or for any sale, lease, exchange or other disposition by
the Corporation of all or substantially all of its assets."
Signed and attested to on May 23, 1985.
/s/ S. Giordano, Jr.
----------------------------------
S. Giordano, Jr.
President
Attest:
/s/ Howard S. Modlin
- ----------------------------------------
Howard S. Modlin
Secretary
50
RESTATED
CERTIFICATE OF INCORPORATION
of
FEDDERS CORPORATION
The name of the corporation (hereunder referred to as the
"Corporation") is FEDDERS CORPORATION. The certificate of incorporation was
filed in the office of the Secretary of State of Delaware on the 4th day of
April, 1984.
The 999 shares of common stock of the Corporation outstanding
immediately prior to the time this restated certificate of incorporation is
filed with the Secretary of State of Delaware shall be and they hereby are, upon
such filing, automatically split and changed (without any further act of the
Corporation or its stockholders) into fully paid and non-assessable shares of
common stock of the Corporation, with a par value of $1.00 per share, and the
amount of capital of the Corporation is increased to an amount equal to the
aggregate par value of the shares of common stock of the Corporation outstanding
after giving effect to such stock split and change. To reflect such stock split
and change, each certificate representing shares of common stock of Fedders
Corporation, a New York Corporation ("Fedders NY"), issued and outstanding
immediately prior to the effectiveness of the merger of Fedders of Delaware,
Inc. into Fedders NY shall represent a like number of shares of common stock of
the Corporation and the holder of each such certificate shall be entitled to
receive a new certificate or certificates of the Corporation representing said
number of shares of common stock of the Corporation, so that upon the filing of
this restated certificate of incorporation each holder or record of a
certificate representing theretofore issued and outstanding common stock of
Fedders NY will have or be entitled to new certificates representing in the
aggregate a like number of shares of common stock of the Corporation, with a par
value of $1.00 per share. The certificate for the 999 shares of common stock of
the Corporation owned of record by Fedders NY on the date of the filing of this
restated certificate of incorporation shall thereupon be cancelled.
The certificate of incorporation is hereby restated to read as
follows:
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2
CERTIFICATE OF INCORPORATION
of
FEDDERS CORPORATION
FIRST: The name of the corporation shall be FEDDERS
CORPORATION.
SECOND: The purpose for which the Corporation is formed are
as follows:
(a) To design, manufacture, buy, sell,
distribute, at wholesale or retail, import and export, rent
and lease, repair and maintain, dispose of, and generally deal
in all kinds of air-conditioning apparatus, equipment and
appliances, refrigeration apparatus, equipment and appliances,
heating apparatus, equipment and appliances, gas and electric
stoves and ranges, automatic clothes-washing machines and
clothes drying machines of all kinds and for all purposes,
automobile radiators and other components of all kinds,
sheetmetal specialties, and all other devices of any kind or
nature used in conjunction therewith, or incidental or
accessory thereto.
(b) To design, create, manufacture, product,
export, import, purchase, acquire, sell, dispose of, and
generally deal in and with materials, articles, machinery,
apparatus, equipment, appliances, supplies, goods and other
personal property of every kind and description, tangible or
intangible, and to engage in any mercantile, commercial
manufacturing or trading business of any character.
(c) To acquire, by purchase or otherwise, own,
hold, lease, mortgage, sell, or otherwise, dispose of, and
generally deal in and with rights and interests in real and
personal property of every kind and description.
(d) To acquire, sell or otherwise dispose of,
deal in and with, and grant and obtain licenses for all kinds
of intangible property, including patent rights, improve-
52
3
ments thereon, inventions, discoveries, formulas and
processes, copyrights, trademarks, trade names and designs.
(e) To the extent permitted by law, to promote,
finance, underwrite and assist, financially or otherwise, and
to assume and guarantee the obligations of any individual,
corporation or other entity, and to purchase or otherwise
acquire, hold, own, sell or otherwise dispose of securities
and obligations of every nature and kind of any issuer,
whether or not incorporated.
(f) To do all and everything necessary, suitable
or proper for the accomplishment of any of the purposes or the
attainment of any of the objects hereinabefore set forth,
either alone or in association with other corporations, firms
or individuals, and to do every other act or acts, thing or
things, incidental or appurtenant to or arising out of or
connected with the aforesaid businesses or any part or parts
thereof.
(g) To engage in any lawful act or activity for
which Corporation may be organized under the General
Corporation Law of Delaware.
THIRD: The aggregate number of shares of stock which the
Corporation shall have authorized to issue is 35,000,000, consisting of
30,000,000 shares of common stock having a par value of $1.00 per share, and
5,000,000 shares of preferred stock having a par value of $1.00 per share.
The Board of Directors is authorized, subject to limitations
prescribed by law and the provisions of this Article THIRD, to provide for the
issuance of the preferred shares in series, and by filing a certificate pursuant
to the General Corporation Law of Delaware, to establish the number of shares of
be included in each such series, and to fix the designations, relative rights,
preferences and limitations of the shares of each such series. The authority of
the Board
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4
with respect to each series shall include, but not be limited to, determination
of the following:
(a) The number of shares constituting that
series and the distinctive designations of that series;
(b) The dividend rate on the shares of that
series, whether dividends shall be cumulative and, if so, from
which date or dates, and the relative rights of priority, if
any, of payment of dividends on shares of that series;
(c) Whether that series shall have voting
rights, in addition to the voting rights provided by law and,
if so, the terms of such voting rights;
(d) Whether that series shall have conversion
privileges and, if so, the terms and conditions of such
conversion, including provision for adjustment of the
conversion rate in such events as the Board of Directors shall
determine;
(e) Whether or not the shares of that series
shall be redeemable and, if so, the terms and conditions of
such redemption, including the date or dates upon or after
which they shall be redeemable, and the amount per share
payable in case of redemption, which amount may vary under
different conditions and at different redemption dates;
(f) Whether that series shall have a sinking
fund for the redemption or purchase of shares of that series
and, if so, the terms and amount of such sinking fund;
(g) The rights of the shares of that series in
the event of voluntary of involuntary liquidation, dissolution
or winding up of the Corporation, and the relative rights of
priority, if any, of payment of shares of that series;
(h) Any other relative rights, preferences and
limitations of that series.
54
5
Dividends on outstanding preferred shares shall be declared
and paid, or set apart for payment, before any dividends shall be declared and
paid, or set apart for payment, on the common shares with respect to the
dividend period.
Any and all such shares issued, and for which the full
consideration has been paid or delivered shall be deemed fully paid stock and
the holder of such shares shall not be liable for any further call or assessment
or any other payment thereon.
FOURTH: The duration of such Corporation shall be perpetual.
FIFTH: The name and mailing address of the Corporation's
Registered Agent and Office in the State of Delaware are: The Prentice-Hall
Corporation System, Inc. 229 South State Street in the City of Dover, County of
Kent, Delaware 19901.
SIXTH: Directors shall be divided into three classes, each
class to be determined by the directors prior to the election of a particular
class. In the event that at any time or from time to time the number of
directors is increased, the newly created directorships resulting therefrom
shall be filled by a vote of the majority of the directors in office immediately
prior to such increase and directors so elected shall serve until the term of
such class expires. In conformity with the statute, the initial First Class
directors shall be elected to a term of one year, Second Class directors to a
term of two years, and Third Class directors to a term of three years, and at
each subsequent annual meeting, the successors to directors whose term shall
expire that year shall be elected to a term of three years.
SEVENTH: No holder of shares of the Corporation of any class,
now or hereafter authorized, shall have any preferential or preemptive right to
subscribed for, purchase or receive any shares of the Corporation of any class,
now or hereafter authorized, or any options or warrants for such shares, or any
rights to subscribe for or purchase such shares, or any securities convertible
into or exchangeable for
55
6
such shares, which may at any time be issued, sold or offered for sale by the
Corporation.
EIGHTH: The following provisions shall apply in addition to
any other affirmative vote required by law or this certificate of incorporation:
SECTION I
CERTAIN BUSINESS COMBINATIONS
The affirmative vote of the holders of not less than
four-fifths of the outstanding shares of Voting Stock (as hereinafter defined)
held by stockholders other than the Acquiring Person (as hereinafter defined)
with which or by or on whose behalf, directly or indirectly, a Business
Combination (as hereinafter defined) is proposed, voting as a single class,
shall be required for the approval or authorization of such Business
Combination. Notwithstanding the foregoing, the four-fifths voting requirement
shall not be applicable if such Business Combination is approved by the
Corporation's Board of Directors prior to the Acquiring Person becoming such or
if the cash or fair market value of the property, securities or other
consideration to be received per share by holders of shares of each class of
Voting Stock in such Business Combination as of the date of consummation thereof
is an amount not less than the higher of (a) the Highest Per Share Price or the
Highest Equivalent Price (as these terms are hereinafter defined) paid by such
Acquiring Person in acquiring any of its holdings of Voting Stock, and (b) the
Fair Market Price (as hereinafter defined) of such class of Voting Stock
determined on the date the proposal for such Business Combination was first
publicly announced, and such consideration shall be in the same form and of the
same kind as the consideration paid by such Acquiring Person in acquiring the
shares of the Voting Stock already acquired by it. If the Acquiring Person had
paid for shares of Voting Stock with varying forms of consideration, the form of
consideration to be received by the holders of Voting Stock shall be the form
used to acquire the largest number of shares of Voting Stock acquired by such
Acquiring Person.
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SECTION II
DEFINITIONS
For purposes of this Article EIGHTH:
1. Business Combination. The term "Business Combination" shall
mean (a) any merger or consolidation of the Corporation or a subsidiary of the
Corporation with or into an Acquiring Person, (b) any sale, lease, exchange,
transfer or other disposition, including, without limitation, a mortgage or any
other security device, in a single transaction or related series of
transactions, of all or any Substantial Part (as hereinafter defined) of the
assets either of the Corporation (including without limitation any voting
securities of a subsidiary) or of a subsidiary of the Corporation to an
Acquiring Person, (c) any merger or consolidation of an Acquiring Person with or
into the Corporation or a subsidiary of the Corporation, (d) any sale, lease,
exchange, transfer or other disposition, including without limitation a mortgage
or other security device, in a single transaction or related series of
transactions, of all or any Substantial Part of the assets of an Acquiring
Person to the Corporation or a subsidiary of the Corporation, (e) the issuance
of any securities of the Corporation or a subsidiary of the Corporation to an
Acquiring Person, (f) any recapitalization, merger or consolidation that would
have the effect of increasing the voting power of an Acquiring Person, (g) the
adoption of any plan or proposal for the liquidation or dissolution of the
Corporation proposed, directly or indirectly, by or on behalf of an Acquiring
Person, (h) any merger or consolidation of the Corporation with a subsidiary of
the Corporation proposed by or on behalf of an Acquiring Person, unless the
surviving or consolidated corporation, as the case may be, has a provision in
its certificate of incorporation substantially identical to this Article
TWELFTH, (i) any agreement, contract or other arrangement provided for any of
the transactions described in this definition of Business Combination, and (j)
any other transaction with an Acquiring Person which requires the approval of
the stockholders of the Corporation under the Business Corporation Law of New
York. A person who is an Acquiring Person as of (x) the time any definitive
agreement relating to a Business Combination is entered into, (y) the record
date for the determination of stockholders entitled to notice of and to vote on
a Business Combination, or (z) immediately prior to the consummation of a
Business Combination, shall be deemed an Acquiring Person for purposes of this
definition.
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8
2. Acquiring Person. The term "Acquiring Person" shall mean
and include any individual, corporation (other than the Corporation),
partnership or other person or entity which, together with its Affiliates and
Associates (as defined in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934 as in effect at April 30, 1984,
collectively, and as so in effect, the "Exchange Act"), and with any other
individual, corporation (other than the Corporation), partnership or other
person or entity with which it or they have any agreement, arrangement or
understanding with respect to acquiring, holding, voting or disposing of Voting
Stock, Beneficially Owns (as described in Rule 13d-3 of the Exchange Act) in the
aggregate 5% or more of the outstanding Voting Stock of the Corporation. A
person or entity, its Affiliates and Associates and all such other persons or
entities with whom they have any such agreement, arrangement or understanding
shall be deemed a single Acquiring Person for purposes of this Article EIGHTH.
For purposes of this Article, the Board of Directors shall have the power to
determine, on the basis of information known to the Board, if and when there is
an Acquiring Person. Any such determination shall be conclusive and binding for
all purposes of this Article.
3. Substantial Part. The term "Substantial Part" shall mean an
amount equal to more than 10% of the fair market value of the total consolidated
assets of the Corporation and its subsidiaries taken as a whole as of the end of
its most recent fiscal year ended prior to the time the determination is being
made.
4. Rights to Acquire. Without limitation, any share of Voting
Stock of the Corporation that any Acquiring Person has the right to acquire at
any time (notwithstanding that Rule 13d-3 of the Exchange Act deems such shares
to be beneficially owned only if such right may be exercised within 60 days)
pursuant to any agreement, or upon exercise of conversion rights, warrants or
options, or otherwise, shall be deemed to be Beneficially Owned by the Acquiring
Person and to be outstanding for purposes of Paragraph 2 of this Section II.
5. Other Consideration to be Received. For the purposes of
Section I of this Article EIGHTH, the term "other consideration to be received"
shall include, without limitation, Common Stock, Preferred Stock or other
capital of
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the Corporation retained by its existing stockholders other than the Acquiring
Person with which or by or on whose behalf, directly or indirectly, a Business
Combination has been proposed or other parties to such Business Combination in
the event of a Business Combination in which the Corporation is the surviving
corporation.
6. Voting Stock. The term "Voting Stock" shall mean all of the
outstanding shares of capital stock of the Corporation entitled to vote in
elections of directors (considered for this purpose as one class), and each
reference to a percentage of shares of Voting Stock shall refer to such
percentage of the votes entitled to be cast by such shares.
7. Time of Acquisition. An Acquiring Person shall be deemed to
have acquired shares of the Voting Stock of the Corporation at the time when
such Acquiring Person became the Beneficial Owner thereof. The price paid by an
Acquiring Person for such shares held by a person or entity at the time it
became part of such Acquiring Person shall be deemed to be the higher of (a) the
price paid upon the acquisition thereof by such person or entity and (b) the
market price of the shares in question at the time when such person or entity
became part of such Acquiring Person.
8. Highest Per Share Price; Highest Equivalent Price. The
terms "Highest Per Share Price" and "Highest Equivalent Price" as used in this
Article EIGHTH shall mean the following: If there is only one class of capital
stock of the Corporation issued and outstanding, the Highest Per Share Price
shall mean the highest per share price that can be determined to have been paid
at any time by the Acquiring Person by or on whose behalf, directly or
indirectly, the Business Combination has been proposed for any share or shares
of that class of capital stock. If there is more than one class of capital stock
of the Corporation issued and outstanding, the Highest Equivalent Price shall
mean, with respect to each class and series of capital stock of the Corporation,
the highest per share price equivalent of the highest price that can be
determined to have been paid at any time by such Acquiring Person for any share
or shares of any class or series of capital stock of the Corporation. In
determining the Highest Per Share Price and Highest Equivalent Price, all
purchases by an Acquiring Person shall be taken into account regardless of
whether the shares were purchased before or after the Acquiring Person became an
Acquiring Person. Also, the Highest Per Share Price and the
59
10
Highest Equivalent Price shall include any brokerage commissions, transfer taxes
and soliciting dealers' fees paid by the Acquiring Person with respect to the
shares of capital stock of the Corporation acquired by the Acquiring Person. The
Highest Per Share Price and the Highest Equivalent Price shall be appropriately
adjusted to take into account stock dividends, subdivisions, combinations and
reclassifications.
9. Fair Market Price. The term "Fair Market Price" shall mean
for any class of Voting Stock the highest closing sale price during the 30-day
period immediately preceding the date in question of a share of such class of
Voting Stock on the Composite Tape for New York Stock Exchange-listed stocks,
or, if such class of Voting Stock is not quoted on the Composite Tape, on the
New York Stock Exchange, or, if such class of Voting Stock is not listed on such
Exchange, on the principal United States securities exchange registered under
the Securities Exchange Act of 1934 on which such class of Voting Stock is
listed, or, if such class of Voting Stock is not listed on any such exchange,
the highest closing bid quotation with respect to a share of such class of
Voting Stock during the 30-day period preceding the date in question on the
National Association of Securities Dealers, Inc. Automated Quotations System or
any system then in use, or if no such quotations are available, the fair market
value on the date in question of a share of such stock.
SECTION III
AMENDMENT
The provisions set forth in this Article EIGHTH may not be
amended, altered, changed or repealed in any respect unless such action is
approved by the affirmative vote of the holders of not less than four-fifths of
the outstanding shares of Voting Stock of the Corporation at a meeting of the
stockholders duly called for the consideration of such amendment, alteration,
change or repeal, provided, however, that if such action has been proposed,
directly or indirectly, on behalf of an Acquiring Person, it must also be
approved by the affirmative vote of the holders of not less than four-fifths of
the outstanding shares of Voting Stock held by the stockholders other than such
Acquiring Person.
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IN WITNESS WHEREOF, this restated certificate of incorporation
having been duly adopted by the Board of Directors and the sole stockholder of
Fedders Corporation entitled to vote in accordance with sections 141(f), 228,
242 and 245 of the General Corporation Law of Delaware, we have signed and
attested this certificate this 31st day of December, 1984.
Fedders Corporation
/s/ Salvatore Giordano, Jr.
By--------------------------------
Salvatore Giordano, Jr.
President
/s/ S. A. Muscarnera
- --------------------------------------------
Secretary
STATE OF NEW JERSEY )
) ss.:
COUNTY OF SOMERSET )
BE IT REMEMBERED that, on December 31, 1984, before me, a
Notary Public duly authorized by law to take acknowledgment of deeds, personally
came Salvatore Giordano, Jr., of FEDDERS CORPORATION, who duly signed the
foregoing instrument before me and acknowledged that such signing is his act and
deed, that such instrument as executed is the act and deed of said corporation,
and that the facts stated therein are true.
GIVEN under my hand on December 31st, 1984.
/s/ Marlene M. Volpe
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Notary Public
Marlene M. Volpe
Notary Public of New Jersey
My Commission Expires April 15, 1989