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EXHIBIT 99.B
CERTIFICATE OF INCORPORATION OF
A. M. CASTLE & CO.
First. The name of the corporation is A. M. Castle & Co.
Second. Its principal office in the State of Delaware is located at No. 100
West Tenth Street, in the City of Wilmington, County of New Castle. The name
and address of its resident agent is The Corporation Trust Company, No. 100
West Tenth Street, Wilmington, Delaware.
Third. The nature of the business, or objects or purposes to be transacted,
presented or carried on are:
To manufacture, buy, sell, lease, store, distribute, import, export and deal
in and deal with metals and materials of whatever kind and products and
by-products thereof in all forms, and in all articles made therefrom; to
manufacture, mine, produce, buy, sell, lease, store, distribute, import,
export and deal in any articles or materials used in the manufacture,
storage, sale or distribution of metals and materials of whatever kind and
products and by-products thereof in any form, or in the manufacture, storage,
sale or distribution of any article made therefrom;
To manufacture, purchase or otherwise acquire, and to hold, own, store,
distribute, use, sell, lease or otherwise dispose of and deal in and with, at
wholesale, retail or otherwise, goods, wares and merchandise and personal
property of every class and description;
To furnish and provide services of every kind and nature as principal or
agent (including, without limitation, the treating, coating and processing of
any materials, products or other personal property) to any persons, firms,
associations or corporations;
To acquire and pay for in cash, stock or bonds of this corporation or
otherwise, the goodwill, rights, assets and property, and to undertake or
assume the whole or any part of the obligations or liabilities, of any
person, firm, association or corporation;
To acquire, hold, use, sell, assign, grant licenses in respect of, mortgage
or otherwise dispose of letters patent of the United States or any foreign
country, patent rights, licenses and privileges, inventions, improvements and
processes, copyrights, trademarks and trade names, relating to or useful in
connection with any business of this corporation;
To acquire by purchase, subscription or otherwise, and to receive, hold, own,
sell, assign, exchange, transfer, mortgage, pledge or otherwise dispose of or
deal in and with any of the shares of the capital stock, or any voting trust
certificates in respect of the shares of capital stock, scrip, warrants,
rights, bonds, deben-
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tures, notes, trust receipts, and other securities, obligations, choses in
action and evidences of indebtedness or interest issued or created by any
corporation, joint stock companies, syndicates, associations, firms, trusts, or
persons, public or private, or by the government of the United States of
America, or by any foreign government, or by any state, territory, province,
municipality or other political subdivision or by any governmental agency, and
as owner thereof to possess and exercise all the rights, powers and privileges
of ownership, including the right to execute consents and vote thereon, and to
do any and all acts and things necessary or advisable for the preservation,
protection, improvement and enhancement in value thereof;
To enter into, make and perform contracts of every kind and description with
any person, firm, association, corporation, municipality, county, territory,
state, body politic or government or colony, possession or dependency
thereof;
To borrow or raise moneys for any of the purposes of the corporation and,
from time to time, without limit as to amount, to draw, make, accept,
endorse, execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures and other negotiable or non- negotiable
instruments and evidences of indebtedness, and to secure the payment of any
thereof and of the interest thereon by mortgage upon or pledge, conveyance or
assignment in trust of the whole or any part of the property of the
corporation, whether at the time owned or thereafter acquired, and to sell,
pledge or otherwise dispose of such bonds or other obligations of the
corporation for its corporate purposes;
To loan to any person, firm or corporation any of its surplus funds, either
with or without security, provided that no loan of money shall be made by the
corporation to any officer or director of the corporation;
To purchase, hold, sell and transfer the shares of its own capital stock;
provided it shall not use its funds or property for the purchase of its own
shares of capital stock when such use would cause any impairment of its
capital except as otherwise permitted by law, and provided further that
shares of its own capital stock belonging to it shall not be voted upon
directly or indirectly;
To have one or more offices, to carry on all or any of its operations and
business and without restriction or limit as to amount to purchase or
otherwise acquire, hold, own, mortgage, sell, convey, or otherwise dispose of
real and personal property of every class and description in any of the
states, districts, territories or possessions of the United States, and in
any and all foreign countries, subject to the laws of such state, district,
territory, possession or country; and
In general, to carry on any other business in connection with the foregoing,
and to have and exercise all the powers conferred by the laws of Delaware
upon corporation formed under the General Corpora-
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tion Law of the State of Delaware, and to do any or all the things
hereinbefore set forth to the same extent as natural persons might or
could do.
The objects and purposes specified in the foregoing clauses shall, except where
otherwise expressed, be in novice limited or restricted by reference to, or
inference from, the terms of any other clause in this Certificate of
Incorporation, but the objects and purposes specified in each of the foregoing
clauses of this article shall be regarded as independent objects and purposes.
Fourth. The total number of shares of stock which the corporation shall have
authority to issue is Ten Million (10,000,000) shares of common stock without
par value.
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions in respect of the shares of stock
are:
All of the authorized shares shall be designated Common Stock and each
outstanding share of the corporation shall be entitled to one vote on each
matter submitted to a vote at a meeting of stockholders.
No stockholder of this corporation shall by reason of his holding shares of any
class have any preemptive or preferential right to purchase or subscribe to any
shares of any class of this corporation, now or hereafter authorized, or any
notes, debentures, bonds, or other securities convertible into or carrying
options or warrants to purchase shares of any class, now or hereafter
authorized, whether or not the issuance of any such shares, or such notes,
debentures, bonds or other securities, would adversely affect the dividend or
voting rights of such stockholder, other than such rights, if any, as the Board
of Directors, in its discretion from time to time may grant, and at such prices
as the Board of Directors in its discretion may fix; and the Board of Directors
may issue shares of any class of this corporation, or any notes, debentures,
bonds, or other securities convertible into or carrying options or warrants to
purchase shares of any class, without offering any such shares of any class,
either in whole or in part, to the existing stockholders of any class.
Fifth. The minimum amount of capital with which the corporation will commence
business is One Thousand Dollars ($1,000).
Sixth. The names and places of residence of the incorporators are as follows:
Name Residence
---- ---------
S. H. Lovesay .................... Wilmington, Delaware
F. J. Ohara, Jr. ................. Wilmington, Delaware
A. D. Grier ...................... Wilmington, Delaware
Seventh. The corporation is to have perpetual existence.
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Eighth. The private property of the stockholders shall not be subject to the
payment of corporate debts to any extent whatever.
Ninth. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the
real and personal property of the corporation.
To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper purpose and to abolish
any such reserve in the manner in which it was created.
By resolution passed by a majority of the whole board, to designate
one or more committees, each committee to consist of two or more
directors of the corporation, which, to the extent provided in the
resolution or in the by-laws of the corporation, shall have and may
exercise the powers of the Board of Directors in the management of the
business and affairs of the corporation, and may authorize the seal of
the corporation to be affixed to all papers which may require it. Such
committee or committees shall have such name or names as may be stated
in the by-laws of the corporation or as may be determined from time to
time by resolution adopted by the Board of Directors.
When and as authorized by the affirmative mote of the holders
of a majority of the stock issued and outstanding having voting power
given at a stockholders' meeting called for that purpose, or when
authorized by the written consent of the holders of a majority of the
voting stock issued and outstanding, to sell, lease or exchange all of
the property and assets of the corporation, including its goodwill and
its corporate franchises, upon such terms and conditions and for such
consideration, which may be whole or in part shares of stock in, and/or
other securities of, any other corporation or corporations, as its
Board of Directors shall deem expedient and for the best interests of
the corporation.
Tenth. In the absence of fraud, no contract or transaction between this
corporation and any other corporation shall be affected by the fact that the
directors of this corporation or any of them are interested in or are directors
or officers of such other corporation, and any director individually may be a
party to, or may be interested in any such contract or transaction of this
corporation; and no such contract or transaction of this corporation with any
person or persons, firm or association, shall be affected by the fact that any
director of this corporation is a party to, or interested in, such contract or
transaction, or in any way connected with such person or persons, firm or
association, provided that the interest in any such contract or transaction of
any such director shall be fully disclosed, and that such contract or other
transaction shall be authorized or ratified by the vote of a sufficient number
of the directors of this corporation not so interested; and each and every
person who may become a director in
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this corporation is hereby relieved from any liability that might otherwise
exist from thus contracting with this corporation for the benefit of himself of
any firm, association, or corporation in which in any wise he may be
interested.
Eleventh. Meetings of stockholders may be held without the State of Delaware,
if the by-laws so provide. The books of the corporation may be kept (subject
to any provision contained in the statutes) outside of the State of Delaware at
such place or places as may from time to time be designated by the Board of
Directors or in the by-laws of the corporation. Elections of directors need
not be by ballot unless the by-laws of the corporation shall so provide.
Twelfth. The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
Any action required or permitted to be taken by the stockholders of the
Corporation, whether voting as a class or otherwise, must be taken at a duly
called annual or special meeting of the stockholders of the Corporation and may
not be taken by consent in writing of such stockholders.
No amendment shall change, repeal or make inoperative any of the provisions of
this Article Twelfth, unless such amendment receives the affirmative vote of
the holders of 66-2/3% of all shares of voting stock of the Corporation.
Thirteenth. Not used.
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Fourteenth.
A. Required Vote. The affirmative vote of the holders of 66-2/3% of
all shares of stock of the Corporation entitled to vote in an election of
directors, considered for the purposes of this Article Fourteenth as one class
(referred to in this Article Fourteenth as "voting stock"), shall be required
for the adoption or authorization of any "extraordinary business transaction"
(as hereinafter defined) with any "interested person" (as hereinafter defined)
if, as of the record date for the determination of stockholders entitled to
notice thereof and to vote thereon or consent thereto, or as of the date of any
such vote or consent, or immediately prior to the consummation of the
extraordinary business transaction, such interested person is the beneficial
owner, directly or indirectly, of at least 5% of the voting stock of the
Corporation; provided, that such 66-2/3% voting requirement shall not be
applicable if the extraordinary business transaction is approved by a
resolution adopted by the Board of Directors and receives the affirmative vote
of a majority of the continuing directors of the Corporation, provided that the
continuing directors constitute a majority of the Board of Directors.
B. Price and Other Requirements. Whether or not a 66-2/3% voting
requirement shall be applicable, the cash, or fair market value (as hereinafter
defined) of other consideration, to be received per share by common
stockholders of the Corporation in an extraordinary business transaction with
an interested person involving a distribution to stockholders must not be less
than the higher of either:
(i) the highest per share price (including brokerage
commissions and/or soliciting dealers' fees) paid by such interested
person in acquiring any of its holdings of the Corporation's Common
Stock during the two year period immediately preceding the first public
announcement of the terms of such extraordinary business transaction;
or
(ii) the book value per share of the Corporation's Common Stock
as shown on the Corporation's then most recently published financial
statements.
Furthermore, when a stockholder vote is required under this Article or
pursuant to Delaware law, a majority of the continuing directors shall select
two independent experts, which experts shall evaluate the terms of any
extraordinary business transaction and determine whether they are fair to the
holders of the outstanding shares of stock of the Corporation which are not
beneficially owned, directly or indirectly, by the interested person. Such
experts in making this evaluation shall take into account whether such
stockholders receive thereby their proportionate share of the economic
benefits which reasonably can be foreseen from the extraordinary business
transaction, as well as such other factors as they deem relevant. The
Corporation shall pay the reasonable fees and expenses associated with the
retention of such experts.
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In addition, when a stockholder vote is required under this Article or
pursuant to Delaware law a proxy statement responsive to the requirements of
the Securities Exchange Act of 1934, as amended, shall be mailed to the
common stockholders of the Corporation and shall contain (i) any
recommendations as to the advisability of the extraordinary business
transaction which the continuing directors (as hereinafter defined), or any
of them, may choose to state, and (ii) the opinions received by the Board of
Directors from the two independent experts as to the fairness of the terms of
the extraordinary business transaction.
C. Certain Definitions. As used in this Article Fourteenth, the
following terms shall have the following meanings, respectively.
1. The term "interested person" shall include any corporation,
person or other entity and any other entity with which it or its
"affiliate" or "associate" (as hereinafter defined) has any agreement,
arrangement or understanding, directly or indirectly, for the purpose
of acquiring, holding, voting or disposing of stock of the Corporation,
or which is its "affiliate" or "associate" as those terms are defined
in Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended, as in effect on January 22, 1986,
together with the successors and assigns of such persons in any
transaction or series of transactions not involving a public offering
of the Corporation's stock within the meaning of the Securities Act of
1933, as amended.
An interested person shall be deemed to be the beneficial owner
of any shares of stock of the Corporation which the interested person
(as defined above) has the right to acquire pursuant to any agreement
or upon the exercise of conversion rights, warrants or options, or
otherwise.
The outstanding shares of any class of stock of the Corporation
shall be deemed to include shares deemed owned through the application
of the preceding paragraph but shall not include any other shares of
stock which may be issuable pursuant to any agreement, or upon exercise
of conversion rights, warrants or options, or otherwise.
2. The term "extraordinary business transaction" shall include
(a) any merger or consolidation of the Corporation with or into any
other corporation; (b) the sale, lease, exchange or other disposition
of all or any substantial part (meaning assets which represent 10% or
more of the total assets of the Corporation as recorded on its books of
account or 10% or more of the going concern value of the Corporation as
determined by the Board of Directors) of the assets of the Corporation;
and (c) the sale or lease to the Corporation or any subsidiary, in
exchange for voting securities (or securities convertible into or
exchangeable for voting securities)
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of the Corporation or any subsidiary, of any assets having an aggregate fair
market value of more than $5,000,000.
3. The term "continuing director" shall mean a person who is
not, and has not been during the preceding 5 years, an affiliate or an
associate, as defined above, of an interested person and who was a
member of the Board of Directors of the Corporation prior to the time
that such other entity first acquired more than 5% of the voting stock
of the Corporation (this specifically excludes any entity that owned
such amount of stock prior to January 22, 1986), or a person designated
(whether before or after election as a director) to be a continuing
director by a majority of the continuing directors.
4. The "fair market value" of other consideration referred to
in Section 8 shall be as determined in good faith by the Board of
Directors of the Corporation and concurred in by a majority of the
continuing directors.
5. in the event of a transaction in which the Corporation is
the surviving corporation, the "other consideration to be received" as
used in Section B shall include Common Stock of the Corporation
retained by its existing stockholders.
D. Determination by the Board of Directors. A majority of the
continuing directors shall have the power and duty to determine for the
purposes of this Article Fourteenth, on the basis of information known to them,
whether:
1. such interested person beneficially owns more than 5% of
the outstanding shares of voting stock of the Corporation;
2. another entity is an "affiliate" or "associate" of
interested person;
3. another entity has an agreement, arrangement or
understanding with interested person; or
4. a particular transaction is an "extraordinary business
transaction" for the purpose of this Article Fourteenth.
E. Other Provisions. Nothing contained in this Article Fourteenth
shall be construed to relieve any interested person from any fiduciary
obligation imposed by law. The voting requirements of this Article Fourteenth
shall be in addition to the voting requirements imposed by law or other
provisions of this Certificate of Incorporation in favor of certain classes of
stock.
F. Applicability. The provisions of this Article Fourteenth shall not
apply to any extraordinary business transaction involving an interested person
if the Board of Directors of the Corporation shall by resolution have approved
a memorandum of understanding
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with such person of the substantive terms of such extraordinary
business transaction prior to the time such person becomes the
beneficial owner, directly or indirectly, of at least 5% of the voting
stock of the Corporation.
G. Amendments. No amendment shall change, repeal or make
inoperative any of the provisions of this Article Fourteenth, unless
such amendment receives the affirmative vote of the holders of 66-2/3%
of all shares of voting stock of the Corporation.
Fifteenth. A director of this Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach or
fiduciary duty as a director except that this Article Fifteenth shall not
eliminate or limit a director's liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders; (ii) for acts and
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.
If the Delaware Corporation Law is hereafter amended to authorize the further
elimination or limitation of the personal liability of directors, then the
liability of a Director of the Corporation shall be eliminated or limited to
the fullest extent permitted by the Delaware General Corporation Law as so
amended.
Any repeal or modification of the foregoing provisions of this Article
Fifteenth by the stockholders of this Corporation shall not adversely affect
any right or protection of any Director of this Corporation or any act or
occurrence taking place prior to such repeal or modification, or otherwise
adversely affect any right or protection existing at the time of such repeal or
modification.
The provisions of this Article Fifteenth shall not be deemed to limit or
preclude indemnification, to the extent permitted by Delaware Law, of a
director by this Corporation for any liability for a director which has not
been eliminated by the provisions of this Article Fifteenth.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, do make this certificate, hereby declaring and
certifying that the facts herein stated are true, and accordingly have hereunto
set our hands and seals this 21st day of April, 1966.
S. H. Lovesay (Seal)
F. J. Ohara, Jr. (Seal)
A. D. Grier (Seal)