EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
T.K.G. ACQUISITION CORP.
It is hereby certified that:
The present name of the corporation (hereinafter called the "Corporation")
is T.K.G. Acquisition Corp. The date of filing of the original Certificate of
Incorporation of the Corporation with the Secretary of State of the State of
Delaware was December 15, 1995.
This Amended and Restated Certificate of Incorporation has been duly
adopted in accordance with Sections 228, 242 and 245 of the General Corporation
Law of the State of Delaware. The majority stockholder has consented in writing
to the adoption of this Amended and Restated Certificate of Incorporation.
The text of the certificate of incorporation of the Corporation as amended
hereby is restated to read in its entirety as follows:
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
T.K.G. ACQUISITION CORP.
* * * * * * *
FIRST: The name of the corporation (the "Corporation") is T.K.G.
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ACQUISITION CORP.
SECOND: The address of the registered office of the Corporation in
the State of Delaware is Corporation Trust Company, 1209 Orange Street, in the
City of Wilmington, County of New Castle. The name of its registered agent at
such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware as now in effect or as hereafter
amended.
FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is 27,000,000 shares, consisting of (i) 24,000,000
shares of common stock, par value $0.01 per share ("Common Stock"), and (ii)
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3,000,000 shares of preferred stock, par value $1.00 per share (the "Preferred
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Stock"), of which 1,920,000 shares shall be designated as "Series A 12%
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Participating Convertible Preferred Stock" (the "Series A Preferred Stock").
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The Preferred Stock may be issued from time to time in one or more series. The
Board of Directors of the Corporation (the "Board of Directors") is expressly
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authorized at any time, and from time to time, to provide for the issuance of
shares of Preferred Stock in one or more series, for such consideration (not
less than its par value) and with the designations, powers, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations, or restrictions thereof, as shall be determined by
the Board of Directors and fixed by resolution or resolutions adopted by the
Board of Directors providing for the number of shares in each such series.
The Common Stock and Series A Preferred Stock shall have the
designations, powers, preferences and relative, participating, optional or other
special rights, and the qualifications, limitations, or restrictions thereof, as
hereinafter set forth in this Article FOURTH.
The ability of the Corporation to issue shares of its capital stock
shall be subject to the subscription rights of
certain stockholders of the Corporation set forth in Section 1(d) of that
certain Stockholders Agreement (Common Stock and Preferred Stock), dated as of
February 29, 1996, by and among the Corporation, Warburg, Pincus Ventures, L.P.
("Warburg") and certain other stockholders of the Corporation, as the same may
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be amended from time to time.
(A) COMMON STOCK.
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(1) Dividends. The holders of Common Stock shall be entitled to
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receive, when and as declared, out of assets and funds legally available
therefor, cash or non-cash dividends payable as and when the Board of
Directors in its sole business judgment so declares. Any such dividend
shall be payable ratably to all record holders of Common Stock as of the
record date fixed by the Board of Directors in accordance with the By-Laws
of the Corporation for the payment thereof.
(2) Liquidation Rights. In the event of any voluntary or
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involuntary liquidation, dissolution or winding up of the Corporation
("Liquidation"), the holders of Common Stock then outstanding shall be
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entitled to be paid ratably out of the assets and funds of the Corporation
available for distribution to its stockholders, after and subject to the
payment in full of all amounts required to be distributed to the holders of
any Preferred Stock upon Liquidation, an amount equal to their share
(including any declared but unpaid dividends on the Common Stock, subject
to proportionate adjustment in the event of any stock dividend, stock
split, stock distribution or combination with respect to such shares) of
such assets and funds.
(3) Voting.
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(a) Except as required by law, as may be limited in the T.K.G.
Acquisition Corp. 1996 Stock Incentive Plan (the "Stock Plan") or any other
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incentive plan established for the directors or employees of the
Corporation or any of its subsidiaries, or as otherwise provided herein or
in any amendment hereof, the entire voting power of the Corporation shall
be vested in the holders of the Common Stock and Series A Preferred Stock
voting together as a single class.
(b) Each holder of Common Stock entitled to vote shall at every
meeting of the stockholders of the Corporation be entitled to one vote for
each share of Common Stock registered in his or her name on the record of
stockholders. Prior to the Conversion Date (as defined herein), each
holder of Series A Preferred Stock entitled to vote shall at every meeting
of the stockholders of the Corporation be entitled to one thousand votes
for each share of Series A Preferred Stock registered in his or her name on
the record of stockholders. From and after the Conversion
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Date, each holder of Series A Preferred Stock entitled to vote shall at
every meeting of the stockholders of the Corporation be entitled to the
number of votes equal to the number of shares of Common Stock into which
each share of Series A Preferred Stock would have been convertible at the
Conversion Date (assuming all outstanding shares of Series A Preferred
Stock were converted) for each share of Series A Preferred Stock registered
in his or her name on the record of stockholders.
(c) Without first obtaining the affirmative vote or written
consent of a majority of the stockholders of the Corporation, the
Corporation shall not amend the Stock Plan, adopt any other incentive plan
that provides for the grant or sale of shares of the Corporation's capital
stock or securities convertible or exchangeable therefor or issue any
shares of the Corporation's capital stock or securities convertible or
exchangeable therefor.
(B) SERIES A PREFERRED STOCK.
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(1) Dividends. (a) The holders of Series A Preferred Stock
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shall be entitled to receive, when and as declared, out of funds legally
available therefor, dividends at the rate of $12.00 per annum, payable as
the Board of Directors may determine, before any dividends or other amounts
shall be set apart for or paid upon the Common Stock in any year. All
dividends declared upon the Series A Preferred Stock shall be declared pro
rata per share.
(b) Dividends on the Series A Preferred Stock shall be fully
cumulative, whether or not in any fiscal year there shall be net profits or
surplus available for the payment of dividends in such fiscal year, so that
if in any fiscal year or years dividends in whole or in part are not paid
upon the Series A Preferred Stock, unpaid dividends shall accumulate and be
compounded quarterly. Dividends on the Series A Preferred Stock shall
accrue on a quarterly basis. Notwithstanding the foregoing, no dividends
on any shares of Series A Preferred Stock shall be declared after the
Conversion Date or shall accrue from and after such date.
(c) Notwithstanding Section (A)(1) of this Article FOURTH, for so
long as dividends on the Series A Preferred Stock are accrued and unpaid,
the Corporation shall not pay any dividend upon the Common Stock, whether
in cash or other property (other than Common Stock), or purchase, redeem or
otherwise acquire any such Common Stock (other than redemptions or
repurchases of any Common Stock held by employees of the Corporation or its
subsidiaries, and then only upon such person's ceasing to be an employee of
the Corporation or its subsidiaries, each in accordance with terms of any
applicable agreement between the
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Corporation or its subsidiaries and any such employee or the terms of any
agreement or plan pursuant to which such Common Stock was issued).
(2) Liquidation Rights. (a) In the event of Liquidation, the
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holders of Series A Preferred Stock then outstanding shall be entitled to
be paid out of the assets of the Corporation available for distribution to
its stockholders upon Liquidation, but before any payment shall be made to
the holders of Common Stock, an amount equal to $100 per share plus any
dividends thereon declared or accrued but unpaid (including as a result of
quarterly compounding), subject to proportionate adjustment in the event of
any stock dividend, stock split, stock distribution or combination with
respect to such shares.
(b) If upon Liquidation the remaining assets of the Corporation
available for the distribution to its stockholders shall be insufficient to
pay the holders of Series A Preferred Stock the full preferential amount
set forth in paragraph (a) above, the holders of Series A Preferred Stock
shall share ratably in any distribution of the remaining assets and funds
of the Corporation in proportion to the respective amounts which would
otherwise be payable in respect of the shares held by them upon such
distribution if all amounts payable on or with respect to said shares were
paid in full.
(c) After the payment of all preferential amounts required to be
paid to the holders of Series A Preferred Stock upon Liquidation, the
holders of Common Stock then outstanding shall be entitled to receive the
remaining assets and funds of the Corporation available for distribution to
its stockholders, as provided in Section (A)(2) above.
(d) The merger or consolidation of the Corporation into or with
another corporation, the merger or consolidation of any other corporation
into or with the Corporation, or the sale, conveyance, mortgage, pledge or
lease of all or substantially all the assets of the Corporation shall not
be deemed to be a Liquidation for purposes of this Section 3.
(3) Voting. In addition to the voting rights of holders of
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Series A Preferred Stock provided in Section A(3) above or as required by
law, the Corporation shall not (and the holders of the Common Stock shall
not cause the Corporation to), without first obtaining the affirmative vote
or written consent of the holders of a majority of the outstanding Series A
Preferred Stock:
(a) amend or repeal any provision of the Corporation's
Certificate of Incorporation or By-Laws;
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(b) authorize or effect (i) any sale, lease, transfer or other
disposition of all or substantially all the assets of the Corporation or of
any assets of the Corporation not in the ordinary course of its business
(including, without limitation, capital stock of or other ownership
interests in any other entity); (ii) any merger or consolidation or other
reorganization of the Corporation with or into another corporation, (iii)
the acquisition by the Corporation of another corporation by means of a
purchase of all or substantially all the assets of such corporation, or
(iv) a liquidation, winding up or dissolution of the Corporation or
adoption of any plan for the same;
(c) employ or terminate the employment of the chief executive
officer, chief financial officer or chief operating officer of the
Corporation or any of its subsidiaries (or any person serving in any such
capacity); or
(d) amend the Stock Plan, adopt any other incentive plan that
provides for the grant or sale of shares of the Corporation's capital stock
or securities convertible or exchangeable therefor or issue any shares of
the Corporation's capital stock or securities convertible or exchangeable
therefor.
(C) CONVERSION OF SERIES A PREFERRED STOCK. Each holder of
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Series A Preferred Stock shall be entitled to convert such Series A
Preferred Stock into Common Stock upon the terms and subject to conditions
hereinafter set forth in this Article FOURTH (C):
(1) Conversion Decision. The holder or holders of a majority of
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the outstanding Series A Preferred Stock, upon written notice to the
Corporation, may elect (the "Conversion Decision") to cause all or a
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portion of the shares of Series A Preferred Stock to be converted into
shares of Common Stock and to determine the percentage of the shares of
Series A Preferred Stock outstanding to be so converted (the "Conversion
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Percentage") as set forth herein. Such notice shall set forth the date (the
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"Conversion Date"), which shall not precede the date of the Conversion
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Decision nor be more than sixty days following such date and which may be
conditioned on the occurrence of one or more events. Within five days
following receipt of such notice, the Corporation shall notify all holders
of Series A Preferred Stock of the Conversion Decision and the terms
thereof, including the Conversion Percentage and the Conversion Date. Such
notice shall be sent by overnight mail, postage prepaid, to each record
holder of Series A Preferred Stock at such holder's address appearing on
the stock register of the Corporation. Upon conversion of shares of Series
A Preferred Stock on the Conversion Date,
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the Series A Preferred Stock shall no longer be convertible into Common
Stock or any other class of capital stock of the Corporation.
Notwithstanding anything to the contrary contained herein, the holder or
holders of a majority of the outstanding Series A Preferred Stock, upon
written notice to the Corporation prior to the Conversion Date, may elect
to revoke the Conversion Decision. Within five days following receipt of
such notice, the Corporation shall notify all holders of Series A Preferred
Stock of such revocation of the Conversion Decision.
(2) Conversion of Shares. (a) On the Conversion Date, each share
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of Series A Preferred Stock to be converted pursuant to Section (C)(1)
above (the aggregate of such shares of Series A Preferred Stock being the
"Aggregate Preferred Conversion Shares") shall be converted into that
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number of fully paid and nonassessable shares of Common Stock as shall be
equal to the quotient of (x) the Aggregate Common Conversion Shares (as
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defined below) divided by (y) the Aggregate Preferred Conversion Shares;
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provided, however, that if the Conversion Decision was made prior to March
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1, 1998, then such number of fully paid and nonassessable shares of Common
Stock shall be equal to the lesser of (i) the Ceiling Ratio (as defined
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below) and (ii) the foregoing quotient.
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(b) For purposes of the foregoing conversion formula,
(i) "Aggregate Common Conversion Shares" shall be equal to
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(NPF x GPS)
___________ - NPS
1 - NPF
where
GPS = the number of shares of Common Stock outstanding
immediately prior to conversion that have been granted,
whether vested or unvested, under the Stock Plan (also
referred to herein as the "Granted Plan Shares");
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NPS = the number of shares of Common Stock issued and outstanding
immediately prior to conversion other than Granted Plan
Shares (also referred to herein as the "Non-Plan Shares");
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and
NPF = the Non-Plan Fraction (as defined below).
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(ii) "Non-Plan Fraction" shall be equal to
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P + (M x (E - P))
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E
where
P = the sum of (x) the aggregate liquidation preference of the
Aggregate Preferred Conversion Shares but not including any
dividends declared or accrued thereon, less any dividends
previously paid thereon, plus (y) the aggregate purchase
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price paid for the Non-Plan Shares;
M = 1 minus the product of .15 and the Granted Plan Shares
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Percentage; and
E = the fair market value of the Corporation (also referred to
herein as the "Total Equity Value"), determined in good
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faith by the Board of Directors; provided that the fair
market value of the Corporation with respect to any
Conversion Decision made in connection with an initial
public offering of the Corporation's equity securities shall
be determined by reference to the initial public offering
price of such securities, net of any underwriting discounts
or commissions.
(iii) "Ceiling Ratio" shall be equal to
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(CRM x GPS) - ((1 - CRM) x NPS)
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(1 - CRM) x (Aggregate Preferred Conversion Shares)
where
CRM = 1 minus the product of .10 and the
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Granted Plan Shares Percentage.
(iv) "Granted Plan Shares Percentage" shall be equal to the
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quotient of (x) the Granted Plan Shares divided by (y) the sum of (a)
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the Granted Plan Shares and (b) the total number of shares of Common
Stock available for future grant under the Stock Plan.
(v) Notwithstanding anything in this Section (C)(2) of
Article FOURTH to the contrary, shares of the Corporation's capital
stock issued or issuable pursuant to the Corporation's 1997 Stock
Incentive Plan shall be ignored for purposes of determining the number
of Aggregate Common Conversion Shares and making the other
calculations pursuant to such Section.
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(c) If any fraction of a share of Common Stock would be issuable
upon conversion of any Series A Preferred Stock, the Corporation may issue
fractions of the shares of Common Stock, or in lieu thereof, pay to the
person entitled thereto an amount in cash equal to the current value of
such fraction, calculated to the nearest one-hundredth (1/100) of a share,
to be computed (i) if the Common Stock is listed on any national securities
exchange, on the basis of the last sales price per share of the Common
Stock on such exchange (or the quoted closing bid price if there shall have
been no sales) on the date of conversion, or (ii) if the Common Stock shall
not be so listed, on the basis of the mean between the closing bid and
asked prices per share for the Common Stock on the date of conversion as
reported by NASDAQ, or its successor, and if there are not such closing bid
and asked prices, on the basis of the fair market value per share as
determined by the Board of Directors.
(3) Conversion Procedure.
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(a) On or after the Conversion Date, each holder of Series A
Preferred Stock (i) shall surrender the certificate or certificates
therefor to the principal office of the transfer agent for the Series A
Preferred Stock (or if no transfer agent be at the time appointed, then to
the Corporation at its principal office), and (ii) shall give written
notice to the Corporation at such office of the name or names (with
address) in which the certificate or certificates for Common Stock which
shall be issuable on such conversion shall be issued, subject to any
restrictions on transfer relating to shares of the Series A Preferred Stock
or Common Stock upon conversion thereof. If so required by the
Corporation, certificates surrendered for conversion shall be endorsed or
accompanied by written instrument or instruments of transfer, in form
satisfactory to the Corporation, duly authorized in writing. As soon as
practicable after receipt of such notice and the surrender of the
certificate or certificates for Series A Preferred Stock as aforesaid, the
Corporation shall cause to be issued and delivered at such office to such
holder, or on such holder's written order, a certificate or certificates
for (i) the number of full shares of Common Stock issuable on such
conversion of each holder's Conversion Percentage of his Series A Preferred
Stock in accordance with the provisions hereof and fractional shares of
Common Stock or cash as provided in Section (C)(2)(c) in respect of any
fraction of a Common Stock otherwise issuable upon such conversion, and
(ii) the number of shares of Series A Preferred Stock not being converted.
The Corporation may legend or alter the form of the certificates for such
shares of Series A Preferred Stock not being converted to reflect changes
in the rights thereof as a result of the conversion.
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(b) The Corporation shall at all times when Series A Preferred
Stock shall be outstanding reserve and keep available out of its authorized
but unissued stock, for the purposes of effecting the conversion of the
Series A Preferred Stock, such number of shares of its duly authorized
Common Stock as shall from time to time be sufficient to effect the
conversion of all then outstanding Series A Preferred Stock.
Notwithstanding the foregoing, for purposes of this Section (C) of Article
FOURTH, the Corporation shall not be required to determine Total Equity
Value except in connection with a Conversion Decision.
(c) From and after the Conversion Date, all Series A Preferred
Stock which shall have been surrendered for conversion and converted as
herein provided shall no longer be deemed to be outstanding and all rights
with respect to such shares, including the rights, if any, to receive
notices and to vote, shall forthwith cease and terminate except only the
right of the holder thereof to receive certificates representing Common
Stock in exchange therefor and payment of any accrued and unpaid dividends
upon such Common Stock. Any Series A Preferred Stock so converted shall be
retired and canceled and shall not be reissued, and the Corporation may
from time to time take such appropriate action as may be necessary to
reduce the authorized Preferred Stock accordingly.
FIFTH: The mailing address of the Corporation is as follows:
c/o Warburg, Pincus Ventures, L.P.
466 Lexington Avenue
New York, New York 10017
SIXTH: In furtherance and not in limitation of the powers conferred
by statute, the by-laws of the Corporation may be made, altered, amended or
repealed by the stockholders or by a majority of the entire Board of Directors.
SEVENTH: Elections of directors need not be by written ballot.
EIGHTH: 1. Indemnification. The Corporation shall indemnify to the
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fullest extent permitted under and in accordance with the laws of the State of
Delaware any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he is or was a director,
officer, incorporator, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, trustee,
employee or agent of or in any other similar capacity with another corporation,
partnership, joint venture, trust or other enterprise, against
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expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, and, with respect to any criminal action or proceeding, shall not,
of itself, create a presumption that the person had reasonable cause to believe
that his conduct was unlawful.
2. Payment of Expenses. Expenses (including attorneys' fees) incurred
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in defending any civil, criminal, administrative or investigative action, suit
or proceeding shall (in the case of any action, suit or proceeding against a
director of the Corporation) or may (in the case of any action, suit or
proceeding against an officer, trustee, employee or agent) be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors upon receipt of an
undertaking by or on behalf of the indemnified person to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the
Corporation as authorized in this Article EIGHTH.
3. Nonexclusivity of Provision. The indemnification and other rights
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set forth in this Article EIGHTH shall not be exclusive of any provisions with
respect thereto in the by-laws or any other contract or agreement between the
Corporation and any officer, director, employee or agent of the Corporation.
4. Effect of Repeal. Neither the amendment nor repeal of this Article
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EIGHTH, subparagraph 1, 2, or 3, nor the adoption of any provision of this
Certificate of Incorporation inconsistent with Article EIGHTH, subparagraph 1,
2, or 3, shall eliminate or reduce the effect of this Article EIGHTH,
subparagraphs 1, 2, and 3, in respect of any matter occurring before such
amendment, repeal or adoption of an inconsistent provision or in respect of any
cause of action, suit or claim relating to any such matter which would have
given rise to a right of indemnification or right to receive expenses pursuant
to this Article EIGHTH, subparagraph 1, 2, or 3, if such provision had not been
so amended or repealed or if a provision inconsistent therewith had not been so
adopted.
5. Limitation on Liability. No director or officer shall be
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personally liable to the Corporation or any stockholder for monetary damages for
breach of fiduciary duty as a director or officer, except for any matter in
respect of which such
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director or officer (A) shall be liable under Section 174 of the General
Corporation Law of the State of Delaware or any amendment thereto or successor
provision thereto, or (B) shall be liable by reason that, in addition to any and
all other requirements for liability, he:
(i) shall have breached his duty of loyalty to the Corporation or its
stockholders;
(ii) shall not have acted in good faith or, in failing to act, shall
not have acted in good faith;
(iii) shall have acted in a manner involving intentional misconduct
or a knowing violation of law or, in failing to act, shall have acted
in a manner involving intentional misconduct or a knowing violation of
law; or
(iv) shall have derived an improper personal benefit.
If the General Corporation Law of the State of Delaware is amended
after the date of the filing of this Amended and Restated Certificate of
Incorporation to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted
by the General Corporation Law of the State of Delaware, as so amended.
NINTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof on the
application of any receiver or receivers appointed for this Corporation under
the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for the Corporation under the provisions of section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of the Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
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IN WITNESS WHEREOF, T.K.G. Acquisition Corp. has caused this Amended and
Restated Certificate of Incorporation to be signed by Burton B. Staniar, its
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Chairman of the Board, this 3rd day of March, 1997.
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/s/ Burton B. Staniar
____________________________
Name: Burton B. Staniar
Title: Chairman of the Board
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