EXHIBIT 3.2
AMH HOLDINGS, INC.
STATEMENT WITH RESPECT TO THE POWERS,
PREFERENCES AND RELATIVE, OPTIONAL
AND OTHER SPECIAL RIGHTS AND QUALIFICATIONS,
LIMITATIONS AND RESTRICTIONS PERTAINING TO
THE CLASS A CONVERTIBLE PREFERRED STOCK
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Pursuant to Section 151 of the General Corporation Law of the State of
Delaware
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AMH Holdings, Inc. (the "Company"), a corporation organized and
existing under the General Corporation Law of the State of Delaware (the
"DGCL"), does hereby certify that, pursuant to Section 151 of the DGCL, its
Board of Directors has adopted the following resolution, which resolution
remains in full force and effect as of the date hereof:
WHEREAS, the Board of Directors of the Company (the "Board of
Directors") is authorized, within the limitations and restrictions stated in the
Certificate of Incorporation of the Company, to fix by resolution the
designation of each series of preferred stock and the powers, designations,
preferences and relative participating, optional or other rights, if any, or the
qualifications, limitations or restrictions thereof, including, without limiting
the generality of the foregoing, such provisions as may be desired concerning
voting, redemption, dividends, dissolution or the distribution of assets,
conversion or exchange, and such other subject or matters as may be fixed by
resolution or resolutions of the Board of Directors under the DGCL; and
WHEREAS, it is the desire of the Board of Directors, pursuant to its
authority as aforesaid, to authorize and fix the terms of two series of
preferred stock and the number of shares constituting such series:
NOW, THEREFORE, BE IT RESOLVED, that there is hereby authorized such
series of preferred stock on the terms and with the provisions herein set forth:
ARTICLE 1
DESIGNATION
SECTION 1.1 There is hereby created out of the authorized and unissued
shares of preferred stock of the Issuer two series of Class A Convertible
Preferred Stock designated as the "Series I (Voting) Convertible Preferred
Stock", par value $0.01 per share (the "Series I Preferred Stock"), consisting
of 2,114,019 shares, and the "Series II (Non-Voting) Convertible Preferred
Stock", par value $0.01 per share (the "Series II Preferred Stock", and together
with the Series I Preferred Stock, the "Preferred Stock"), consisting of
1,614,019 shares. Certain terms used without definition below are defined
in Article 10 below.
ARTICLE 2
RANK
SECTION 2.1 The Preferred Stock shall, with respect to dividends and as to
distributions upon the voluntary or involuntary liquidation, winding-up and
dissolution of the Issuer (as set forth in Article 3 and Article 4 hereof), rank
(i) senior to all classes of Common Stock, and to each other class of Capital
Stock of the Issuer established after the Issue Date by the Board of Directors
of the Issuer the terms of which do not expressly provide that it ranks senior
to or on a parity with the Preferred Stock as to dividends and as to
distributions upon the liquidation, winding-up and dissolution of the Issuer
(collectively referred to with the Common Stock of the Issuer as "Junior
Securities"); (ii) on a parity with each series of Preferred Stock established
after the Issue Date by the Board of Directors of the Issuer, the terms of which
expressly provide that such class will rank on a parity with the Preferred Stock
as to dividends and as to distributions upon the liquidation, winding-up and
dissolution of the Issuer (collectively referred to as "Parity Securities") and
(iii) junior to all classes of Capital Stock of the Issuer established after the
Issue Date by the Board of Directors of the Issuer the terms of which expressly
provide that it ranks senior to the Preferred Stock as to dividends and as to
distributions upon the liquidation, winding-up and dissolution of the Issuer
(collectively referred to as "Senior Securities"). Notwithstanding the
foregoing, a security shall not be deemed to be a "Senior Security" solely
because such security has a stated dividend or interest coupon.
ARTICLE 3
DIVIDENDS
SECTION 3.1
(a) In the event the Issuer declares, makes or pays any dividends or other
distributions out of funds legally available therefor (whether payable in cash,
securities, rights or other property) other than the dividend in the aggregate
amount of $96,406,123 paid on the
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Class B Series I Common Stock and Class B Series II Common Stock on the Issue
Date (, the Issuer shall first pay such dividends or other distributions to
the Holders of the Preferred Stock until such Holders have received, for each
share of outstanding Preferred Stock, an amount (or securities, rights or other
property valued at an amount) equal to the Issue Price divided by the number of
outstanding shares of Preferred Stock (any such payment, a "Priority Dividend").
(b) After the Priority Dividend has been paid in full, in the event the
Issuer declares, makes or pays any other dividends or distributions out of funds
legally available therefor (whether payable in cash, securities, rights or other
property) on the Common Stock, the Issuer shall pay such dividends to the
Holders of Preferred Stock and the holders of Common Stock pro rata based on the
number of outstanding shares of Common Stock and Common Stock issuable upon
conversion of the outstanding shares of Preferred Stock in accordance with
Article 6 as of the date immediately prior to the record date for such dividend
or distribution, or if no record date is fixed, the date as of which the record
holders of Common Stock entitled to such dividends or distributions are
determined. Such dividends shall be payable on the same date (and with the same
record date) as such dividends are payable on the outstanding shares of Common
Stock and in the same form as such dividends are payable on the outstanding
shares of Common Stock.
SECTION 3.2 All dividends paid with respect to shares of the outstanding
Preferred Stock pursuant to Section 3.1 hereof shall be paid pro rata to the
Holders entitled thereto.
SECTION 3.3 Nothing herein contained shall in any way or under any
circumstances be construed or deemed to require the Board of Directors to
declare, or the Issuer to pay, or set apart for payment, any dividends at any
time.
SECTION 3.4 Holders of shares of Preferred Stock shall be entitled to
receive the dividends provided for in Section 3.1(a) hereof in preference to and
in priority over any dividends upon any Junior Securities and shall be entitled
to receive the dividends provided for in Section 3.1(b) hereof in preference to
and priority over any dividends upon any Junior Securities other than Common
Stock.
SECTION 3.5 The value of any non-cash dividends or distributions shall be
the fair market value of such dividends or distributions as of the date made, as
determined in good faith by the Board, based upon a customary appraisal prepared
by an independent appraisal company.
ARTICLE 4
LIQUIDATION PREFERENCE
SECTION 4.1 Upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Issuer, each Holder of the Preferred Stock will be entitled to
be paid, out of the assets of the Issuer available for distribution, and before
any distribution is made on any Junior Security, a liquidation preference (the
"Liquidation Preference") per share equal to the Aggregate Liquidation
Preference Amount divided by the number of shares of Preferred Stock outstanding
immediately before the record date of the determination of stockholders entitled
to receive distributions for such liquidation, dissolution or winding-up, or if
no record date is fixed, the date
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of such liquidation, dissolution or winding-up (such amount, the "Retained
Liquidation Preference"). In addition, each Holder of the Preferred Stock will
be entitled to an amount per share in cash equal to all declared but unpaid
dividends (other than Priority Dividends, if any) thereon to the date fixed for
liquidation, dissolution or winding-up. If, upon any voluntary or involuntary
liquidation, dissolution or winding-up of the Issuer, the amounts payable with
respect to the Preferred Stock and all other Parity Securities are not paid in
full, the Holders of the Preferred Stock and the Parity Securities will share
equally and ratably in any distribution of assets of the Issuer in proportion to
the full Liquidation Preference and declared and unpaid dividends (other than
Priority Dividends, if any) to which each is entitled. After payment of the full
amount of the Liquidation Preferences and declared and unpaid dividends (other
than Priority Dividends, if any) to which they are entitled, the Holders of
Preferred Stock will not be entitled to any further participation in any
distribution of assets of the Issuer.
SECTION 4.2 For purposes of Section 4.1, neither the sale, conveyance,
exchange or transfer (for cash, shares of stock, securities or other
consideration) of all or substantially all of the property or assets of the
Issuer nor the consolidation or merger of the Issuer with or into one or more
Persons or a Sale of the Business will be deemed to be a liquidation,
dissolution or winding-up of the Issuer.
ARTICLE 5
VOTING RIGHTS
SECTION 5.1 Except as otherwise required by law, the Holders of shares of
Series I Preferred Stock shall be entitled to vote (or act by written consent),
together with all the outstanding shares of Voting Stock of the Issuer, and not
as a separate class except as otherwise required under Delaware law or as set
forth in this Article 5, on all matters on which holders of Voting Common Stock
shall be entitled or permitted to vote (or act by written consent). Except as
otherwise required by law, the Holders of Series II Preferred Stock shall not be
entitled to vote on any matter presented to the stockholders of the Issuer and
the Series II Preferred Stock shall not be included in determining the number of
shares entitled to vote on such matters.
SECTION 5.2 Without the affirmative vote or consent of the Holders of at
least a majority of the then outstanding shares of Series I Preferred Stock,
voting or consenting, as the case may be, separately as one class, given in
person or by proxy, either in writing or by resolution adopted at an annual or
special meeting, the Issuer shall not:
(a) amend this Certificate of Designation or the Certificate of
Incorporation, whether by operation of law, by merger or otherwise, so as to
affect adversely the special rights, powers, preferences, privileges or voting
rights of Holders of the Preferred Stock; provided that (i) the creation,
authorization or issuance of any non-voting shares of Junior Securities, (ii)
the decrease in the amount of authorized Capital Stock of any class (but not
below the amount of outstanding Capital Stock of such class), including the
Preferred Stock or (iii) the increase in the amount of authorized Capital Stock
of any class of Junior Securities shall not require the consent of the Holders
of Series I Preferred Stock and shall not be deemed to affect adversely the
special rights, powers, preferences, privileges or voting rights of Holders of
shares of Preferred Stock; or
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(b) authorize, create or issue any Senior Securities or Parity Securities
and the Issuer shall not permit any of its Subsidiaries to issue any Capital
Stock to any Person other than the Issuer or its Subsidiaries.
SECTION 5.3 In any case in which the Holders of shares of the Preferred
Stock shall be entitled to vote pursuant to this Article 5 or pursuant to
Delaware law, each Holder of shares of the Preferred Stock shall be entitled to
the number of votes per share equal to the number of shares of Common Stock
issuable upon conversion of such share of Preferred Stock in accordance with
Article 6 as of the date fixed for the determination of holders entitled to vote
on such proposal. Any action that may be taken hereunder by the Holders of the
Preferred Stock voting as a separate class at a meeting may be taken by written
consent of a majority of the Holders of the then outstanding shares of such
Preferred Stock.
ARTICLE 6
CONVERSION
SECTION 6.1 Conversion.
(a) The Holder of any shares of Preferred Stock at its option may at any
time convert all or any of such Holder's shares of (i) Series I Preferred Stock
into fully paid and non-assessable shares of Class A Series I Common Stock and
(ii) Series II Preferred Stock into fully paid and non-assessable shares of
Class A Series II Common Stock (collectively, the Class A Series I Common Stock
and the Class A Series II Common Stock are referred to as the "Conversion
Shares"), in each case, at the conversion rate at which Conversion Shares shall
be delivered upon conversion (the "Conversion Rate") in effect at the time of
conversion. Concurrently with (A) an initial public offering of Common Stock of
the Issuer in a firm commitment underwritten public offering by a nationally
recognized underwriter for which either (x) the per share price to the public of
the Common Stock so offered translates to the Issuer's implied equity valuation
resulting from the per share price to the public in such offering shall be no
less than $450,000,000 or (y) the Holders of Series I Preferred Stock are at the
time entitled to designate one or more members of the Board and the Issuer
obtained the prior written approval from at least one such director designated
by the Holders of Series I Preferred Stock (either (x) or (y) a "Qualified IPO")
or (B) the consummation of any transaction pursuant to which the Aggregate
Liquidation Preference Amount is reduced to zero (0) (a "Forced Conversion"),
all shares of Preferred Stock shall be automatically converted into fully paid
and non-assessable Conversion Shares at the Conversion Rate in effect on the
date of such offering or event.
(b) The Conversion Rate shall initially be 1 Conversion Share for each
share of Preferred Stock, subject to adjustment in certain instances as provided
in Section 6.2. The number of Conversion Shares deliverable upon such conversion
shall be the number obtained by multiplying the number of shares of Preferred
Stock being so converted by the Conversion Rate fixed or determined pursuant to
the provisions of this paragraph (b) of this Section 6.1 and
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Section 6.2. Such conversion shall be exercised by the surrender to the Issuer
of the certificate or certificates, duly endorsed, representing the shares to be
so converted at any time during normal business hours at the office of the
Issuer and, accompanied (i) in the case of a Holder electing to convert at its
option, by written notice of such Holder's election to convert, (ii) if so
required by the Issuer, by instruments of transfer, in form satisfactory to the
Issuer, duly executed by the registered Holder or by his or her duly authorized
attorney and (iii) transfer tax stamps or funds therefor, if required pursuant
to paragraph (h) of this Section 6.1. All certificates representing the
converted Preferred Stock, including all certificates not so delivered by such
Holders, shall be, or shall be deemed to be, canceled by the Issuer as of the
date the election to convert is made or the date of the Qualified IPO or a
Forced Conversion and shall thereafter no longer be of any force or effect.
(c) As promptly as practicable after the surrender for conversion of any
certificate(s) representing shares of Preferred Stock in the manner provided in
paragraph (b) of this Section 6.1 and the payment in cash of any amount required
by the provisions of paragraphs (b) and (h) of this Section 6.1, the Issuer will
deliver to, or at the written direction of, the Holder, such certificates
representing the number of full Conversion Shares issuable upon such conversion,
issued in such name or names as such Holder may direct. Such conversion shall be
deemed to have been made, in the case of an election to convert by the Holder,
immediately prior to the close of business on the date of such surrender of the
certificate(s) representing the shares to be converted and, in the case of a
mandatory conversion in connection with a Qualified IPO or a Forced Conversion ,
upon the opening of business on the date of such Qualified IPO or a Forced
Conversion, and all rights of the Holder of such shares as a Holder of such
shares shall cease at such time and the person or persons in whose name or names
the certificates for such Conversion Shares are to be issued shall be treated
for all purposes as having become the record holder or holders thereof at such
time and such conversion shall be at the Conversion Rate in effect at such time.
If the last day for the exercise of the conversion right shall be other
than a Business Day, then such conversion right may be exercised on the next
succeeding Business Day.
(d) If shares of Preferred Stock shall be converted subsequent to the
record date preceding a Dividend Payment Date for the Preferred Stock, but prior
to such 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 in the form which such
Holder is entitled to notwithstanding the conversion thereof or the Issuer's
default in payment of the dividend due on such Dividend Payment Date.
(e) So long as permitted by the Certificate of Incorporation, fractional
Conversion Shares may be issued upon the conversion of any share or shares of
Preferred Stock. If more than one such share of Preferred Stock shall be
surrendered for conversion at the same time by the same Holder, the number of
full Conversion Shares which shall be issuable upon the conversion thereof shall
be computed on the basis as specified in Section 6.1(b).
(f) If either of the following shall occur: (i) any consolidation,
reorganization or merger to which the Issuer is a party, other than a
consolidation, reorganization or a merger in which the Issuer is a continuing
corporation and which does not result in any reclassification,
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change or exchange (other than changes in par value or from par value to no par
value or from no par value to par value or changes as a result of a subdivision
or combination) in outstanding Conversion Shares, or (ii) any sale or conveyance
to another Person of all or substantially all of the assets of the Issuer; then;
except as otherwise provided in Article 7, the Holder of each share of Preferred
Stock then outstanding shall have the right to convert such share only into the
kind and amount of shares of stock and other securities and property receivable
upon such consolidation, reorganization, merger, sale or conveyance by a Holder
of the number of Conversion Shares issuable upon conversion of such share of
Preferred Stock immediately prior to such consolidation, reorganization, merger,
sale or conveyance, subject to adjustments which shall be as nearly equivalent
as may be practicable to the adjustments provided for in Section 6.2. The
provisions of this paragraph (f) shall similarly apply to successive
consolidations, reorganizations, mergers, sales or conveyances. The issuer shall
cause to be given to the Holders of shares of Preferred Stock as promptly as
possible, but in any event at least 15 days prior to the applicable date of the
occurrence of an event described in clause (i) or (ii) above, a notice stating
the date on which such event is expected to become effective or occur, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such consolidation, reorganization, merger, sale or
conveyance.
(g) The Issuer covenants that it will at all times reserve and keep
available, solely for the purpose of issue upon conversion of the shares of
Preferred Stock, such number of Conversion Shares as shall be issuable upon the
conversion of all such outstanding shares. The Issuer covenants that if any
Conversion Shares required to be reserved for purposes of conversion of the
shares hereunder require registration with or approval of any governmental
authority under any Federal or State law or regulation before such shares may be
issued upon conversion, the Issuer will cause such shares to be duly registered
or approved, as the case may be. The Issuer will use its reasonable best efforts
to list the Conversion Shares required to be delivered upon conversion of shares
prior to such delivery upon each national securities exchange, if any, upon
which the outstanding Conversion Shares are listed at the time of such delivery,
and, if such outstanding Conversion Shares are not listed on any exchange but
are traded in the over-the-counter market, to qualify such shares for trading
and quotation privileges such as are then available for the outstanding
Conversion Shares. The Issuer covenants that all Conversion Shares which shall
be issued upon conversion of the Preferred Stock will upon issue be fully paid
and non-assessable and not subject to any preemptive rights.
(h) The issuance of certificates for Conversion Shares upon conversion
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 converted, the person or persons
requesting the issuance thereof shall pay to the Issuer 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 Issuer that such tax has been paid.
(i) The Conversion Shares issued upon conversion of the Preferred Stock
shall bear such legends and shall have such transfer restrictions as provided
for in Section 8.2, the Certificate of Incorporation and by the laws of any
state or other jurisdiction.
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(j) Subject to and in compliance with this Article 6, each Holder of shares
of Series II Preferred Stock shall be entitled to convert, at any time and from
time to time, any or all of the shares of Series II Preferred Stock held by such
Holder into an equal number of shares of Series I Preferred Stock. No conversion
of Series II Preferred Stock shall be consummated unless such conversion will
not result in a change of control of the Issuer under the Issuer's debt
instruments and the Holder electing to so convert delivers an opinion of counsel
to the Issuer, reasonably acceptable to the Issuer, stating that such conversion
will not result in a change of control of the Issuer under the Issuer's debt
instruments.
SECTION 6.2 Adjustments of Conversion Rate. The Conversion Rate shall be
subject to adjustment as follows:
(a) Adjustment for Changes in Common Stock. If, after the Issue Date, the
Issuer:
(i) subdivides or splits any of its outstanding shares of any
class of Common Stock into a greater number of shares;
(ii) combines any of its outstanding shares of any class of
Common Stock into a smaller number of shares; or
(iii) issues by reclassification of any class of its Common
Stock any shares of any of its Common Stock;
then the Conversion Rate in effect immediately prior to such action for each
share of Preferred Stock then outstanding shall be adjusted by multiplying
the Conversion Rate in effect immediately prior to such action by a fraction (A)
the numerator of which shall be the number of shares of all classes of Common
Stock outstanding immediately after such action giving pro forma effect to the
exercise of all then outstanding Convertible Securities (other than the
Preferred Stock) and (B) the denominator of which shall be the number of shares
of all classes of Common Stock outstanding immediately prior to such action or
the record date applicable to such action, if any (giving pro forma effect to
the exercise of all then outstanding Convertible Securities (other than the
Preferred Stock)). The adjustment shall become effective immediately after the
record date in the case of a dividend or distribution and immediately after the
effective date in the case of a subdivision, combination or reclassification. In
the event that such dividend or distribution is not so paid or made or such
subdivision, combination or reclassification is not effected, the Conversion
Rate shall again be adjusted to be the Conversion Rate which would then be in
effect if such record date or effective date had not been so fixed.
If, as a result of an adjustment made pursuant to this Section 6.2(a)
a holder of shares of Preferred Stock upon conversion of such shares of
Preferred Stock may receive shares of two or more classes of Capital Stock of
the Issuer, the Conversion Rate shall thereafter be subject to adjustment upon
the occurrence of an action taken with respect to any such class of Capital
Stock as is contemplated by this Section 6.2 with respect to the Common Stock,
on terms comparable to those applicable to Common Stock in this Section 6.2.
(b) Notice of Adjustment.
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Whenever the Conversion Rate is adjusted, the Issuer shall promptly mail to
Holders of Preferred Stock then outstanding at the addresses appearing on the
stock register a notice of the adjustment. The Issuer shall keep with its
records such notice and a certificate from the Issuer's Chief Financial Officer
briefly stating the facts requiring the adjustment and the manner of computing
it. The certificate shall be conclusive evidence that the adjustment is correct,
absent manifest error.
(c) Voluntary Adjustment.
The Issuer from time to time may increase the Conversion Rate by any number
and for any period of time; provided that such period is not less than 20
Business Days. Whenever the Conversion Rate is so increased, the Issuer shall
mail to holders at the addresses appearing on the stock register. The Issuer
shall give the notice at least 15 days before the date the increased Conversion
Rate takes effect. The notice shall state the increased Conversion Rate and the
period it will be in effect. A voluntary increase in the Conversion Rate shall
not change or adjust the Conversion Rate otherwise in effect as determined by
this Section 6.2.
(d) Multiple Adjustments.
After an adjustment to the Conversion Rate for outstanding Preferred Stock
under this Section 6.2, any subsequent event requiring an adjustment under this
Section 6.2 shall cause an adjustment to the Conversion Rate for outstanding
Preferred Stock as so adjusted. For the purposes of adjustments with respect to
Convertible Securities, the maximum number of shares of Capital Stock issuable
upon exercise, exchange or conversion of such Convertible Securities shall be
deemed to be outstanding, provided that no further adjustment shall be made upon
the actual issuance of Capital Stock upon exercise, exchange or conversion of
such Convertible Securities.
(e) When De Minimis Adjustment May Be Deferred.
No adjustment in the Conversion Rate shall be required unless such
adjustment would require an increase or decrease of at least 1% in such rate;
provided, however, that any adjustments which by reason of the foregoing are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations shall be made by the Issuer and shall be
rounded to the sixth decimal place. No adjustment need be made for a change in
the par value or no par value of the Common Stock and no adjustment shall be
deferred beyond the date on which a share of Preferred Stock is converted.
ARTICLE 7
MISCELLANEOUS
SECTION 7.1 Reissuance of Preferred Stock. Shares of Preferred Stock that
have been issued and reacquired in any manner, including shares redeemed,
repurchased or exchanged, shall be cancelled and may not be reissued and the
number of such reacquired shares shall automatically reduce the authorized
number of shares of Preferred Stock.
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SECTION 7.2 Business Day. If any payment, repurchase or exchange shall be
required by the terms hereof to be made on a day that is not a Business Day,
such payment, repurchase, or exchange shall be made on the immediately
succeeding Business Day.
SECTION 7.3 Waiver. The Holders of at least a majority of the outstanding
shares of Series I Preferred Stock, voting or consenting, as the case may be, as
one class, may waive compliance with any provision of this Certificate of
Designation.
SECTION 7.4. Notice. Any notice or communication given pursuant to this
Certificate of Designation shall be in writing and shall be deemed duly given
(a) on the date of delivery if delivered personally, or if by facsimile, upon
written confirmation of receipt by facsimile, (b) on the first Business Day
following the date of dispatch if delivered by a recognized next-day courier
service, or (c) on the earlier of confirmed receipt or the fifth Business Day
following the date of mailing if delivered by registered or certified mail,
return receipt requested, postage prepaid. All notices hereunder shall be
delivered as follows:
if to the Issuer, to:
AMH Holdings, Inc.
3737 State Road
Cuyahoga Falls, Ohio 44223
Attention: Chief Financial Officer
Facsimile: (330) 922-2312
with a copy to:
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
Attention: John M. Reiss, Esq.
Oliver C. Brahmst, Esq.
Facsimile: (212) 354-8113
And
Gibson, Dunn & Crutcher LLP
200 Park Avenue
47th Floor
New York, New York 10166-0193
Attention: David Rosenauer
E. Michael Greaney
Telephone: (212) 351-4000
Facsimile: (212) 351-4035
Any notice or communication mailed to a Holder of Preferred Stock shall be
sent, mailed or delivered to the Holder at the Holder's address as it appears in
the stock register of the Issuer and shall be sufficiently given if so mailed
within the time prescribed. Failure to mail a notice or communication to a
Holder or any defect in such notice shall not affect its sufficiency with
respect to other Holders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it.
ARTICLE 8
TRANSFER RESTRICTIONS
SECTION 8.1 Preferred Stock.
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(a) The certificates evidencing the Preferred Stock shall, unless otherwise
agreed to by the Issuer and the Holders of any such certificates, bear a legend
substantially to the following effect:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND SUCH SECURITIES MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED OF EXCEPT (I) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (II) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES. HEDGING TRANSACTIONS INVOLVING THIS SECURITY MAY NOT BE CONDUCTED UNLESS
IN COMPLIANCE WITH THE SECURITIES ACT.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE ISSUER SUCH
CERTIFICATES AND OTHER INFORMATION AS THE ISSUER MAY REASONABLY REQUIRE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
THE SECURITY REPRESENTED BY THIS CERTIFICATE MAY BE AUTOMATICALLY
CONVERTED, UPON THE OCCURRENCE OF CERTAIN EVENTS SPECIFIED IN THE CERTIFICATE OF
DESIGNATION. SUCH AUTOMATIC CONVERSION CAN BE ACCOMPLISHED WITHOUT THIS
CERTIFICATE BEING SURRENDERED AND WHETHER OR NOT THE ISSUER GIVES NOTICE OF SUCH
AUTOMATIC CONVERSION. THE COMPANY WILL FURNISH WITHOUT CHARGE TO EACH HOLDER WHO
SO REQUESTS A COPY OF THE CERTIFICATE OF DESIGNATION.
(b) The Issuer shall refuse to register any attempted transfer of shares of
Preferred Stock not in compliance with Section 8.1(a).
(c) Whenever the restrictions imposed by this Section 8.1 shall terminate
and, if requested by the Issuer, upon delivery by any Holder of an opinion of
counsel stating that such shares of Preferred Stock are no longer Restricted
Securities, such opinion to be in a form and from counsel reasonably acceptable
to the Issuer, the holder thereof shall be entitled to receive from the Issuer,
without expense to the Holder, a new stock certificate not bearing the
restrictive legend set forth in this Section 8.1.
SECTION 8.2 Conversion Shares.
(a) The certificates evidencing Conversion Shares issued upon a conversion
of Preferred Stock pursuant to Section 6.1 shall, unless otherwise agreed to by
the Issuer and the Holders of any such certificates, bear a legend substantially
to the following effect:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
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"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION,
AND SUCH SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
OF EXCEPT (I) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, OR PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND (II) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES. HEDGING TRANSACTIONS INVOLVING THIS SECURITY
MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT. HEDGING
TRANSACTIONS INVOLVING THIS SECURITY MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE
WITH THE SECURITIES ACT.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE ISSUER SUCH
CERTIFICATES AND OTHER INFORMATION AS THE ISSUER MAY REASONABLY REQUIRE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
In addition to such legend, such certificates shall bear any legends
required by the Certificate of Incorporation and by the laws of any state or
other jurisdiction.
(b) Whenever the restrictions imposed by this Section 8.2 shall terminate
and, if requested by the Issuer, upon delivery by any Holder of an opinion of
counsel stating that such Conversion Shares are no longer Restricted Securities,
such opinion to be in a form and from counsel reasonably acceptable to the
Issuer, the holder thereof shall be entitled to receive from the Issuer, without
expense to the Holder, a new stock certificate not bearing the restrictive
legend set forth in this Section 8.2.
ARTICLE 9
DELIVERY AND FORM
SECTION 9.1 The certificates representing the Preferred Stock will be
issued in fully registered form. Holders of Preferred Stock will be entitled to
receive physical delivery of a physical certificate for their Preferred Stock
("Certificated Preferred Stock"), which shall bear the legend referred to in
Section 8.1. Record ownership of Certificated Preferred Stock will be shown on,
and the transfer of that ownership will be effected only through, records
maintained by the Issuer.
ARTICLE 10
DEFINITIONS
SECTION 10.1 As used in this Certificate of Designation, the following
terms shall have the following meanings:
"Affiliate" of any specified Person means:
(1) any other Person, directly or indirectly, controlling or controlled by
or under direct or indirect common control with such specified Person; or
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(2) any other Person that owns, directly or indirectly, 10% or more of such
specified Person's Voting Stock; or
(3) any Person who is a director or officer (a) of such Person, (b) of any
Subsidiary of such Person or (c) of any Person described in clause (1) or (2)
above.
For purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling," "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities,
by agreement or otherwise.
"Aggregate Liquidation Preference Amount" means, at any given time, the
Issue Price minus the aggregate amount of any Priority Dividends declared and
paid at or prior to such time and minus the aggregate proceeds, if any, received
by the Holders from the Company pursuant to any repurchase or redemption of
Preferred Stock by the Company or any other distribution on, or payment in
respect of, the Preferred Stock by the Company consummated at or prior to such
time.
"Board of Directors" means, with respect to any Person, the Board of
Directors of such Person, or any authorized committee of the Board of Directors
of such Person.
"Board Resolution" means a copy of a resolution certified by an officer of
the Issuer to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification.
"Business Day" means a day other than a Saturday, Sunday or other day on
which banking institutions in the State of New York are authorized or required
by law to close.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock (including common and
preferred stock);
(2) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and
(3) in the case of an association or other business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock.
"Certificated Preferred Stock" has the meaning set forth in Section 9.1.
"Certificate of Designations" means this Statement with Respect to the
Powers, Preferences and Relative, Optional and Other Special Rights and
Qualifications, Limitations and Restrictions Pertaining to the Class A
Convertible Preferred Stock.
"Certificate of Incorporation" means the Certificate of Incorporation of
the Issuer, as amended from time to time.
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"Class A Series I Common Stock" means the Class A Series I (Voting) Common
Stock of the Issuer, par value $0.01 per share.
"Class A Series II Common Stock" means the Class A Series II (Non-Voting)
Common Stock of the Issuer, par value $0.01 per share.
"Class B Series I Common Stock" means the Class B Series I (Voting) Common
Stock of the Issuer, par value $0.01 per share.
"Class B Series II Common Stock" means the Class B Series II (Non-Voting)
Common Stock of the Issuer, par value $0.01 per share.
"Common Stock" means all shares of Capital Stock of the Issuer, whether or
not denominated as "common stock," which are entitled to share ratably in the
ordinary dividends of the Issuer or share ratably in the proceeds of any
liquidation of the Issuer after the payment of all preferential claims, and
shall include, without limitation, the Class A Series I Common Stock, the Class
A Series II Common Stock, the Class B Series I Common Stock and the Class B
Series II Common Stock of the Issuer authorized on the Issue Date, but excluding
the Preferred Stock.
"Conversion Rate" has the meaning set forth in Section 6.1(b).
"Conversion Shares" has the meaning set forth in Section 6.1(a). For
purposes of the Series I Preferred Stock, Conversion Shares shall be deemed to
mean the Class A Series I Common Stock, and for purposes of the Series II
Preferred Stock, Conversion Shares shall be deemed to mean the Class A Series II
Common Stock.
"Dividend Payment Date" means any date on which dividends are paid to the
Holders of Preferred Stock.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Forced Conversion" has the meaning set forth in Section 6.1(a).
"GAAP" means generally accepted accounting principles in the United States
of America as in effect from time to time, including those set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession. All ratios and computations based on GAAP contained in this
Certificate of Designation shall be computed in conformity with GAAP as in
effect from time to time.
"Holder" means with respect to any share of Preferred Stock, a Person in
whose name such share of Preferred Stock is registered in the register for the
Preferred Stock.
"Initial Control Group" means the investors who are the holders of the
Voting Stock of the Issuer immediately following the Issue Date, any Person
acting in the capacity of an underwriter or initial purchaser in connection with
a public or private offering of the Issuer's Capital Stock, or any Permitted
Transferee of any of the foregoing Persons.
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"Issue Date" means the date on which such series of Preferred Stock is
originally issued.
"Issue Price" means $150,000,000.
"Issuer" means AMH Holdings, Inc., a Delaware corporation, and any
successor.
"Junior Securities" has the meaning set forth in Section 2.1.
"Liquidation Preference" has the meaning set forth in Section 4.1.
"Parity Securities" has the meaning set forth in Section 2.1.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof or any
other entity.
"Permitted Transferee" means, (A) with respect to any Person, (i) the
spouse, former spouse, lineal descendants, heirs, executors, administrators,
testamentary trustees, legatees or beneficiaries of any such Person, (ii) a
trust, the beneficiaries of which, or a corporation or partnership or limited
liability company, the stockholders, general or limited partners or members of
which, include only such Person or his or her spouse, former spouse, lineal
descendants or heirs, in each case to whom such Person has transferred, or
through which it holds, the beneficial ownership of any securities of the
Issuer, (iii) any investment fund or investment entity that is a subsidiary of
such Person or a Permitted Transferee of such Person, (B) with respect to any
Holder of Preferred Stock as of the Issue Date, any company incorporated in the
Cayman Islands with whom Investcorp S.A. or any of its Affiliates have a
financial advisory relationship with respect to the Preferred Stock and (C) with
respect to any member of the Initial Control Group, any Affiliate of such member
or the partners, members or beneficiaries of such member upon the liquidation or
dissolution of such member, as the case may be, in accordance with its
controlling fund or other controlling documents, as applicable.
"Preferred Stock" has the meaning set forth in Section 1.1.
"Priority Dividend" has the meaning set forth in Section 3.1(a).
"Qualified IPO" has the meaning set forth in Section 6.1(a).
"Restricted Securities" shall have that meaning ascribed to such term in
Rule 144(a)(3) of the Securities Act.
"Retained Liquidation Preference" has the meaning set forth in Section 4.1.
"Sale of the Business" means:
(i) the consummation of any transaction or series of related transactions
the result of which the Initial Control Group ceases to be the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of more than 50% of the total voting power of the
Voting Stock or 50% of the
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Common Stock of the Issuer that the Initial Control Group beneficially
owned immediately following the Issue Date, whether as a result of any
merger, consolidation, liquidation or dissolution of the Issuer, any direct
or indirect transfer of securities by the Initial Control Group or
otherwise (for purposes of this clause (i), the Initial Control Group shall
be deemed to beneficially own any Common Stock and Voting Stock of an
entity (the "specified entity") held by any other entity (the "parent
entity") so long as the Initial Control Group beneficially owns (as so
defined), directly or indirectly, in the aggregate a majority of the total
voting power of the Voting Stock of the parent entity); or
(ii) any transfer (other than by way of merger or consolidation) of all
or substantially all of the assets of the Issuer and its Subsidiaries taken as a
whole to any "person" (as used in Section 13(d) and 14(d) of the Exchange Act)
other than the Initial Control Group.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Securities" has the meaning set forth in Section 2.1.
"Series I Preferred Stock" has the meaning set forth in Section 1.1.
"Series II Preferred Stock" has the meaning set forth in Section 1.1.
"Subsidiary" means, with respect to any Person:
(1) any corporation, association or other business entity of which more
than 50% of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other Subsidiaries
of that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the managing general
partner of which is such Person or a Subsidiary of such Person or (b) the only
general partners of which are such Person or of one or more Subsidiaries of such
Person (or any combination thereof).
Unless otherwise specified, "Subsidiary" refers to a Subsidiary of the
Issuer.
"Voting Common Stock" means the Class A Series I Common Stock, the Class B
Series I Common Stock and any other classes or series of Common Stock of the
Issuer created after the Issue Date that constitute Voting Stock.
"Voting Stock" of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
SECTION 10.2 Rules of Construction. For the purposes of this Certificate of
Designation (i) words in the singular shall be held to include the plural and
vice versa and words of one gender shall be held to include the other gender as
the context requires, (ii) the word "including" and words of similar import
shall mean "including, without limitation," (iii) a word
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has the meaning assigned to it, (iv) an accounting term not otherwise defined
has the meaning assigned to it in accordance with GAAP, and (v) "or" is not
exclusive.
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IN WITNESS WHEREOF, AMH Holdings, Inc. has caused this Certificate to
be executed by its duly authorized offices this 22nd day of December, 2004.
AMH HOLDINGS, INC.
By: /s/ D. Keith LaVanway
----------------------------
Name: D. Keith LaVanway
Title: Chief Executive Officer