EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
AMH HOLDINGS, INC.
AMH HOLDINGS, INC., a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), hereby certifies as follows:
1. The original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of the State of Delaware on February 19, 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. This Amended and Restated Certificate of Incorporation was duly
adopted by written consent of the stockholders of the Corporation in accordance
with the applicable provisions of Sections 228, 242 and 245 of the DGCL and
written notice of the adoption of this Amended and Restated Certificate of
Incorporation has been given as provided by Section 228 of the DGCL to every
stockholder entitled to such notice.
4. 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, Inc.
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 12,123,678 consisting of (i)
3,728,038 shares of Preferred Stock, par value $0.01 per share (the "Preferred
Stock") and (ii) 8,395,640 shares of Common Stock, par value $0.01 per share
(the "Common Stock"). The Common Stock shall consist of (i) 2,114,019 shares of
Class A, Series I (Voting) Common Stock (the "Class A Voting Common Stock"),
(ii) 1,614,019 shares of Class A, Series II (Non-Voting) Common Stock (the
"Class A
Non-Voting Common Stock"), (iii) 2,583,801 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) 2,803,801 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 Amended and Restated 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, 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 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. Reclassification. Effective immediately and automatically upon the
filing with the Secretary of State of the State of Delaware of (i) this Amended
and Restated Certificate of Incorporation and (ii) a Certificate of Designations
with respect to the Class A, Series I (Voting) Convertible Preferred Stock of
the Company, par value $0.01 per share (the "Voting Preferred Stock") and the
Class A, Series II (Non-Voting) Convertible Preferred Stock of the Company, par
value $0.01 per share (the "Non-Voting Preferred Stock"), each outstanding share
of the capital stock of the Corporation shall be reclassified, pursuant to
Section 242 of the DGCL, as follows:
(a) each outstanding share of Class A Common Stock of the Corporation
held by Harvest Partners III, L.P., Harvest Partners III
Beteilingungsgesellschaft Burgerlichen Rechts (Mit Haftungsbeschrankung),
Harvest Partners IV, L.P. or Harvest Partners IV, GmbH & Co. KG (collectively,
the "Harvest Shareholders") shall be and become (i) one share of Voting
Preferred Stock and (ii) one share of Class B Voting Common Stock;
(b) each share of Class A Common Stock of the Corporation issued upon
the exercise after December 20, 2004 of options granted pursuant to pursuant to
the the AMH Holdings, Inc. 2002 stock Option Plan (the "Option Exercise Shares")
as two shares of Non-Voting Preferred Stock;
(c) three hundred forty and one-half (340.5) shares of Class A Common
Stock of the Corporation (other than Option Exercise Shares) held by 3755428
Canada Inc. (the "Existing Vollmershausen Shares") as six hundred eighty one
(681) shares of Non-Voting Preferred Stock;
(d) each share of Class A Common Stock of the Corporation (other than
the Existing Vollmershausen Shares and any Option Exercise Shares) held by
Michael Caporale, Jr., Kenneth L. Bloom, D. Keith LaVanway or Dennis W.
Vollmershausen (the "Management Shares") as two shares of Class B Non-Voting
Common Stock; and
(e) each outstanding share of Class A Common Stock or Class B Common
Stock of the Company, as applicable, held by shareholders of the Corporation
that are not Harvest Related Shareholders (other than the Existing
Vollmershausen Shares and any Option Exercise Shares and any Management Shares)
as (i) one share of Class A Non-Voting Preferred Stock and (ii) one share of
Class B Non-Voting Common Stock.
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 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.
(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 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 International 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 Eighth 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 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 Eighth.
NINTH: 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.
IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation has been signed by a duly authorized officer of the Corporation
this 22nd day of December 2004.
By:
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Name: D. Keith LaVanway
Title: Chief Financial Officer