AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
AMH HOLDINGS II, INC.
AMH HOLDINGS II, INC., a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), hereby certifies that:
1. The original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of the State of Delaware on December 2, 2004.
2. Pursuant to Sections 242 and 245 of the General Corporation Law of
the State of Delaware (the "DGCL"), this Amended and Restated Certificate of
Incorporation of the Corporation (this "Amended and Restated Certificate of
Incorporation") has been duly adopted in accordance therewith, and amends,
restates and integrates the provisions of the Certificate of Incorporation of
the Corporation.
3. The text of the Certificate of Incorporation is amended and
restated by this Amended and Restated Certificate of Incorporation to read as
herein set forth in full.
FIRST: The name of the corporation is AMH Holdings II, Inc. (the
"Corporation").
SECOND: The registered office and registered agent of the Corporation
in the State of Delaware is The Corporation Trust Company, 1209 Orange Street,
Wilmington, New Castle County, Delaware 19801.
THIRD: The purpose of the Corporation is to engage, directly or
indirectly, in any lawful act or activity for which corporations may now or
hereafter be organized under the Delaware General Corporation Law (the "DGCL")
as from time to time in effect and to possess and exercise all of the powers and
privileges granted by the DGCL.
FOURTH:
A. Authorized Capital Stock.
1. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is [---------] consisting of (i)
[---------] shares of Preferred Stock, par value $0.01 per share (the "Preferred
Stock") and (ii) [---------] shares of Common Stock, par value $0.01 per share
(the "Common Stock"). The Common Stock shall consist of (i) [-------] shares of
Class A, Series I (Voting) Common Stock (the "Class A Voting Common Stock"),
(ii) [---------] shares of Class A, Series II (Non-Voting) Common Stock (the
"Class A Non-Voting Common Stock"), (iii) [--------] shares of Class B, Series I
(Voting) Common Stock (the "Class B Voting Common Stock" and, collectively with
the Class A Voting Common Stock, the "Voting Common Stock"), and (iv) [-------]
shares of Class B, Series II (Non-
Voting) Common Stock (the "Class B Non-Voting Common Stock" and, collectively
with the Class B Voting Common Stock, the "Class B Common Stock"; the Class B
Non-Voting Common Stock, collectively with the Class A Non-Voting Common Stock,
the "Non-Voting Common Stock"). The number of authorized shares of any class or
series of Common Stock or Preferred Stock may be increased or decreased (but not
below the number of shares of such class or series then outstanding) by the
affirmative vote of the holders of a majority in voting power of the stock of
the Corporation entitled to vote thereon, irrespective of the provisions of
Section 242(b)(2) of the DGCL (or any successor provision thereto) and no vote
of the holders of any class or series of Common Stock or Preferred Stock voting
separately as a class shall be required therefor.
2. The Board of Directors of the Corporation is hereby expressly
authorized, by resolution or resolutions, to provide, out of the unissued shares
of Preferred Stock and/or the unissued shares of Common Stock, for one or more
classes or series of Preferred Stock and/or one or more classes or series of
Common Stock and, with respect to each such class or series, to fix the number
of shares constituting such class or series and the designation of such class or
series, the voting powers (if any) of the shares of such class or series, and
the preferences and relative, participating, optional or other special rights,
if any, and any qualifications, limitations or restrictions thereof, of the
shares of such class or series. The powers, preferences and relative,
participating, optional and other special rights of each class or series of
Preferred Stock or Common Stock, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other class
or series of Common Stock or Preferred Stock at any time outstanding.
3. Except as otherwise required by law, the holders of shares of
Preferred Stock or Common Stock of any class or series, as applicable, shall be
entitled only to such voting rights, if any, as shall be expressly granted
thereto by this Certificate of Incorporation (including any certificate of
designations, pursuant to Section 151(g) of the DGCL, relating to such class or
series).
B. Common Stock. The voting powers, rights and qualifications,
limitations or restrictions of each class of the Common Stock shall be identical
in all respects except as otherwise set forth below. There follows certain
specific rights, qualifications, limitations and restrictions pertaining to the
various classes and series of Common Stock:
1. Dividends. Subject to the provisions of law and the rights, if any,
of the holders of any outstanding class or series of Preferred Stock, and except
for one dividend in an aggregate amount not greater than $96,406,123.00 payable
on shares of Class B Common Stock on or prior to December 31, 2004 (with respect
to which holders of Preferred Stock shall not participate and shall not be
entitled to an Equivalent Dividend), no dividends or other distributions,
whether payable in securities, in cash, in property or in shares of capital
stock of the Corporation shall be declared or paid on the shares of any class or
series of Common Stock unless an Equivalent Dividend (as hereinafter defined)
per share is declared and paid on outstanding shares of all other classes or
series of Common Stock and Preferred Stock. An "Equivalent Dividend," when used
with reference to a dividend or distribution declared or paid on any class or
series of Common Stock, shall mean a dividend in the same form and per share
amount that is paid on another class or series of Common Stock, except that each
class or series
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of Common Stock shall be considered to be identical to each other class or
series in the case of dividends or distributions payable in capital stock or in
debt or securities exchangeable or exercisable for, or convertible into, capital
stock.
2. Liquidation. Subject to the provisions of law and the rights, if
any, of the holders of any outstanding class or series of Preferred Stock or any
class or series of stock having a preference over or right to participate with
the Common Stock, in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the assets available for
distribution to the holders of Common Stock shall be distributed to each of the
holders of shares of all classes and series of Common Stock ratably on the basis
of the number of shares held by such holder, without any preference or priority
of any class or series over any other class or series.
3. Voting. (a) Except as otherwise required by law, the holders of
shares of Class A Voting Common Stock and the holders of shares of Class B
Voting Common Stock shall have one vote per share on all matters on which
holders of Common Stock shall have the right or otherwise be entitled to vote
upon. Except as otherwise provided by law, the holders of shares of Class A
Non-Voting Common Stock and the holders of shares of Class B Non-Voting Common
Stock shall have no right to vote on any matter presented to the stockholders of
the Corporation, and the Class A Non-Voting Common Stock and Class B Non-Voting
Common Stock shall not be included in determining the number of shares voting or
entitled to vote on such matters.
(b) If the holders of any shares of Class A Non-Voting Common Stock or
Class B Non-Voting Common Stock are entitled, by reason of applicable law, to
vote on any matter, either as a separate class or together with the holders of
shares of Class A Voting Common Stock or Class B Voting Common Stock, as
applicable, then, unless prohibited by applicable law, the holders of the shares
of Class A Voting Common Stock and the holders of shares of Class B Voting
Common Stock shall also have the right to vote, separately as a single class,
thereon.
4. Conversion. Upon the sale of Common Stock through an underwritten
public offering pursuant to an effective registration statement filed with the
Securities and Exchange Commission, each outstanding share of Non-Voting Common
Stock shall automatically convert into, and shall thereupon be and become
(without the necessity of any further action to be taken by the Corporation),
one share of Voting Common Stock (an "IPO Conversion"); provided, however, that
no IPO Conversion shall occur, and the provisions of this Article Fourth,
Section 4, shall be without effect, with respect to any public offering of
shares of Common Stock if, prior to the consummation of such offering, the Board
of Directors of the Corporation shall have determined by resolution that such
IPO Conversion would result in a breach of or default under any contract,
agreement or instrument relating to the indebtedness of the Corporation or would
give rise to an obligation to repay, repurchase, redeem, or otherwise discharge
any such indebtedness or evidence thereof, or to offer to do any of the
foregoing.
FIFTH:
1. The business and affairs of the Corporation shall be managed by or
under the direction of a Board of Directors, except as otherwise provided by
law. The number of directors constituting the Board of Directors shall be fixed
from time to time by, or in the manner
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provided in, the By-laws of the Corporation. Election of Directors need not be
by written ballot unless the By-laws of the Corporation shall so provide. A
director shall hold office until the annual meeting for the year in which his
term expires and until his successor shall be elected and shall qualify,
subject, however, to prior death, resignation, retirement, disqualification or
removal from office. Any newly created directorship on the Board of Directors
that results from an increase in the number of directors and any vacancy
occurring in the Board of Directors shall be filled only by a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director. Any director elected to fill a vacancy not resulting from an increase
in the number of directors shall have the same remaining term as that of his
predecessor.
2. The Board of Directors of the Corporation shall be authorized to
make, amend, alter, change, add to or repeal the By-Laws of the Corporation in
any manner not inconsistent with the laws of the State of Delaware, subject to
the power of the stockholders of the Corporation to amend, alter, change, add to
or repeal the By-Laws made by the Board of Directors of the Corporation.
SIXTH:
1. To the fullest extent permitted by the laws of the State of
Delaware:
(a) the Corporation shall indemnify any person (and such person's
heirs, executors or administrators) who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding
(brought in the right of the Corporation or otherwise), whether civil, criminal,
administrative or investigative, and whether formal or informal, including
appeals, by reason of the fact that such person is or was a director or officer
of the Corporation or, while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, partner,
trustee, employee or agent of another corporation, partnership, joint venture,
trust, limited liability company or other enterprise, for and against all
expenses (including attorneys' fees), judgments, fines, penalties and amounts
paid in settlement actually and reasonably incurred by such person or such
heirs, executors or administrators in connection with such action, suit or
proceeding, including appeals. Notwithstanding the preceding sentence, the
Corporation shall be required to indemnify a person described in such sentence
in connection with any action, suit or proceeding (or part thereof) commenced by
such person only if the commencement of such action, suit or proceeding (or part
thereof) by such person was authorized by the Board of Directors of the
Corporation. The Corporation may indemnify any person (and such person's heirs,
executors or administrators) who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding
(brought in the right of the Corporation or otherwise), whether civil, criminal,
administrative or investigative, and whether formal or informal, including
appeals, by reason of the fact that such person is or was an employee or agent
of the Corporation or is or was serving at the request of the Corporation as a
director, officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, limited liability company or other
enterprise, for and against all expenses (including attorneys' fees), judgments,
fines, penalties and amounts paid in settlement actually and reasonably incurred
by such person or such heirs, executors or administrators in connection with
such action, suit or proceeding, including appeals.
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(b) the Corporation (i) shall promptly pay expenses incurred by any
person described in the first sentence of subsection (a) of this Article Sixth,
Section 1 and (ii) may pay expenses incurred by any person whom the Corporation
has determined to indemnify pursuant to the third sentence of subsection (a) of
this Article Sixth, Section 1, in each case in defending any action, suit or
proceeding in advance of the final disposition of such action, suit or
proceeding, including appeals, upon presentation of appropriate documentation.
(c) The Corporation may purchase and obtain insurance on behalf of any
person described in subsection (a) of this Article Sixth, Section 1 against any
liability asserted against such person, whether or not the Corporation would
have the power to indemnify such person against such liability under the
provisions of this Article Sixth, Section 1 or otherwise.
(d) The provisions of this Article Sixth, Section 1 shall be
applicable to all actions, claims, suits or proceedings made or commenced after
the adoption hereof, whether or not arising from acts or omissions to act
occurring before or after the adoption hereof. The provisions of this Article
Sixth, Section 1 shall be deemed to be a contract between the Corporation and
each director or officer who serves in such capacity at any time while this
Article Sixth, Section 1 and the relevant provisions of the laws of the State of
Delaware and other applicable law, if any, are in effect, and any repeal or
modification hereof shall not affect any rights or obligations then existing
with respect to any state of facts or any action, suit or proceeding then or
theretofore existing, or any action, suit or proceeding thereafter brought or
threatened based in whole or in part on any such state of facts. If any
provisions of this Article Sixth, Section 1 shall be found to be invalid or
limited in application by reason of any law or regulation, such finding shall
not affect the validity of the remaining provisions hereof. The rights of
indemnification provided in this Article Sixth, Section 1 shall neither be
exclusive of, nor be deemed in limitation of, any rights to which an officer,
director, employee or agent of the Corporation may otherwise be entitled or
permitted by contract, this Certificate of Incorporation, vote of the
stockholders or directors of the Corporation or otherwise, or as a matter of
law, both as to actions in such person's official capacity and actions in any
other capacity while holding such office, it being the policy of the Corporation
that indemnification of any person whom the Corporation is obligated to
indemnify pursuant to the first sentence of subsection (a) of this Article
Sixth, Section 1 shall be made to the fullest extent permitted by law.
(e) For purposes of this Article Sixth, references to "other
enterprises" shall include, without limitation, employee benefit plans;
references to "fines" shall include, without limitation, any excise taxes
assessed on a person with respect to an employee benefit plan; and references to
"serving at the request of the Corporation" shall include, without limitation,
any service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves service by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries.
2. A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent such exemption from liability or
limitation thereof is not permitted under the DGCL as the same exists or may
hereafter be amended. Any amendment, modification or repeal of the foregoing
sentence shall not adversely affect any right or protection of a director of the
Corporation
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hereunder in respect of any act or omission occurring prior to the time of such
amendment, modification or repeal.
SEVENTH: Meetings of stockholders may be held within or without the
State of Delaware, as the By-Laws may provide. The books of the Corporation may
be kept (subject to any provision contained in the DGCL) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-Laws of the Corporation.
EIGHTH:
1. In anticipation that Harvest Partners IV, LP and/or its affiliates
(collectively, "Harvest") and Investcorp S.A. and/or its affiliates
(collectively, "Investcorp"), and certain partners, directors, officers,
employees and agents of Harvest or Investcorp, respectively (each, a "Related
Person"), will be substantial stockholders of the Corporation, and in
anticipation that at some time in the future Harvest and/or Investcorp
(including, without limitation, entities in which Harvest and/or Investcorp
acquires an interest) may engage in the same or similar activities or lines of
business as does the Corporation, and may thereby be interested in the same
corporate opportunities as is the Corporation, and in recognition of the
benefits to be derived by the Corporation through its continued contractual,
corporate and business relations with Harvest and Investcorp (including the
service of Related Persons as officers and directors of the Corporation), the
provisions of this Article Sixth are set forth pursuant to Section 122(17) of
the DGCL to regulate and define the conduct of certain affairs of the
Corporation as they may involve Harvest, Investcorp or Related Persons, and the
powers, rights, duties and liabilities of the Corporation and its officers,
directors and stockholders in connection therewith.
2. Neither Harvest nor Investcorp shall have any duty not to (i)
engage in, acquire or possess an interest in any other business venture of any
kind, nature or description, independently or with others, whether or not such
ventures are competitive with or in the same or similar lines of business as
that of the Corporation or (ii) engage in business or other dealing with persons
or entities transacting business with the Corporation. To the fullest extent
permitted by Section 122(17) of the DGCL, the Corporation hereby renounces any
interest or expectancy of the Corporation to participate in any such venture or
business of Harvest or Investcorp, and acknowledges that none of Harvest,
Investcorp or any Related Person shall be liable to the Corporation or its
stockholders for breach of fiduciary duty solely by reason of the participation
of Harvest or Investcorp, as applicable, in any such venture.
3. In the event that Harvest or Investcorp acquires knowledge of a
potential transaction or matter which may constitute a corporate opportunity for
either Harvest or Investcorp, on the one hand, and the Corporation, on the other
hand, neither Harvest nor Investcorp shall have any duty to offer or communicate
information regarding such corporate opportunity to the Corporation. To the
fullest extent permitted by Section 122(17) of the DGCL, the Corporation hereby
renounces any interest or expectancy of the Corporation in any such corporate
opportunity and acknowledges neither Harvest nor Investcorp shall be liable to
the Corporation or its stockholders for breach of any fiduciary duty as a
stockholder of the Corporation by reason of the fact that Harvest or Investcorp
pursues or acquires such corporate
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opportunity for itself, directs such corporate opportunity to another person or
does not communicate information regarding such corporate opportunity to the
Corporation.
4. In the event that a Related Person serving as an officer or
director of the Corporation acquires knowledge of a potential transaction or
matter which may constitute a corporate opportunity for both the Corporation, on
the one hand, and Harvest or Investcorp, on the other hand, such officer or
director shall have no duty to offer or communicate information regarding such
corporate opportunity to the Corporation except as provided below. To the
fullest extent permitted by Section 122(17) of the DGCL, the Corporation hereby
renounces any interest or expectancy of the Corporation in any such corporate
opportunity and acknowledges that such officer or director shall not be liable
to the Corporation or its stockholders for breach of any fiduciary duty by
reason of the fact that Harvest or Investcorp pursues or acquires such corporate
opportunity for itself, directs such corporate opportunity to another person or
does not communicate or offer information regarding such corporate opportunity
to the Corporation; provided, however, that any corporate opportunity that is
expressly offered to a Related Person in writing solely in his or her capacity
as an officer or director of the Corporation shall belong to the Corporation.
5. Any person or entity purchasing or otherwise acquiring any interest
in any shares of capital stock of the Corporation shall he deemed to have notice
of, and to have consented to, the provisions of this Article Ninth.
TENTH: 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.
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IN WITNESS WHEREOF, the undersigned has executed this Amended and
Restated Certificate of Incorporation this [_] day of December, 2004.
------------------------------
Philip J. Power
Incorporator
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