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EXHIBIT 4.1
RESTATED CERTIFICATE OF INCORPORATION OF
ASSOCIATED MATERIALS INCORPORATED
Associated Materials Incorporated, a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the Corporation is Associated Materials
Incorporated.
2. The original Certificate of Incorporation was filed with
the Secretary of State of the State of Delaware on April 4, 1983.
3. This Restated Certificate of Incorporation amends, restates
and integrates the provisions of the Certificate of Incorporation, and all
previously filed amendments and restatements thereto, and has been duly adopted
pursuant to Sections 228, 242 and 245 of the General Corporation Law of the
State of Delaware.
4. The text of the Certificate of Incorporation, and all
previously filed amendments and restatements thereto, is hereby amended and
restated to read as follows:
ARTICLE I
NAME
The name of the Corporation is:
Associated Materials Incorporated
ARTICLE II
DELAWARE OFFICE AND REGISTERED AGENT
The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street in the City of Wilmington, County of New Castle
19801. The name of its registered agent at such address is The Corporation Trust
Company.
ARTICLE III
PURPOSE
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 (the "DGCL").
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ARTICLE IV
CAPITALIZATION
4.1. Number of Shares. The total number of shares of all classes of
stock which the Corporation shall have authority to issue is 17,800,000
consisting of (i) 100,000 shares of Preferred Stock, $.01 par value per share
issuable in series ("Preferred Stock"), (ii) 15,000,000 shares of Common Stock,
$.0025 par value per share ("Common Stock"), and (iii) 2,700,000 shares of Class
B Common Stock, $.0025 par value per share ("Class B Common Stock").
4.2. Designations. The following are the powers, designations,
preferences and rights, and the qualifications, limitations or restrictions
thereof of each class of stock of the Corporation:
A. Preferred Stock:
The Preferred Stock may be issued in one or more series. The Board of
Directors is hereby authorized to issue the shares of Preferred Stock in such
series and to fix from time to time before issuance the number of shares to be
included in any series and the designation, relative powers, preferences and
rights and qualifications, limitations or restrictions of all shares of such
series. The authority of the Board of Directors with respect to each series
shall include, without limiting the generality of the foregoing, the
determination of any or all of the following:
1. the number of shares of any series and the designation to
distinguish the shares of such series from the shares of all other
series;
2. the voting powers, if any, and whether such voting powers
are full or limited, in such series;
3. the redemption provisions, if any, applicable to such
series, including the redemption price or prices to be paid;
4. whether dividends, if any, shall be cumulative or
noncumulative, the dividend rate of such series, and the dates and
preferences of dividends on such series;
5. the rights of such series upon the voluntary or involuntary
dissolution of, or upon any distribution of the assets of, the
Corporation;
6. the provisions, if any, pursuant to which the shares of
such series are convertible into, or exchangeable for, shares of any
other class or classes or of any other series of the same or any other
class or classes of stock, or any other security, of the Corporation or
any other corporation, and price or prices or the rates of exchange
applicable thereto;
7. the right, if any, to subscribe for or to purchase any
securities of the Corporation or any other corporation;
8. the provisions, if any, of a sinking fund applicable to
such series; and
9. any other relative, participating, optional or other
special powers, preferences, rights, qualifications, limitations or
restrictions thereof;
all as shall be determined from time to time by the Board of Directors and shall
be stated in a resolution or resolutions providing for the issuance of such
Preferred Stock (a "Preferred Stock Designation").
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Holders of Preferred Stock shall not be entitled to receive notice of
any meeting of stockholders at which they are not entitled to vote.
B. Common Stock and Class B Common Stock:
1. Subject to Preferred Stock. The Common Stock and Class B
Common Stock shall be subject to the express terms of the Preferred
Stock and any series thereof.
2. Identical Rights of Common Stock and Class B Common Stock.
Except as otherwise expressly provided in this Restated Certificate of
Incorporation, all shares of Common Stock and Class B Common Stock
shall be identical and shall entitle the holders thereof to the same
rights and privileges.
3. Dividends. When and as dividends are declared, whether
payable in cash, in property or in securities of the Corporation, the
holders of the Common Stock and Class B Common Stock shall be entitled
to share equally, share for share, in such dividends. However, if
dividends are declared which are payable in shares of Common Stock or
Class B Common Stock, dividends shall be declared which are payable at
the same rate on both classes of stock and such dividends shall be
payable only in shares of Common Stock to holders of the Common Stock
and shall be payable only in shares of Class B Common Stock to holders
of the Class B Common Stock.
4. Liquidation. Upon any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, after the
payment in full of all amounts to which holders of Preferred Stock
shall be entitled, the remaining assets of the Corporation to be
distributed to the holders of the capital stock of the Corporation
shall be distributed ratably among the holders of the shares of Common
Stock and Class B Common Stock.
5. Subdivision and Combination. If the Corporation shall in
any manner subdivide (by stock split, stock dividend or otherwise) or
combine (by reverse stock split or otherwise) the outstanding shares of
either the Common Stock or the Class B Common Stock, the outstanding
shares of the other shall be proportionately subdivided or combined.
6. Conversion.
(a) General. Subject to and upon compliance with the
provisions of this Section 4.2(B)(6), each holder of record of the
Class B Common Stock shall be entitled at any time and from time to
time to convert any or all of the shares of Class B Common Stock held
by such holder into the same number of shares of Common Stock;
provided, however, that no holder of the Class B Common Stock shall be
entitled to convert any share or shares of Class B Common Stock unless
such holder represents in writing to the Corporation that, as a result
of such conversion, such holder and its affiliates, directly or
indirectly, would not own, control or have power to vote a greater
quantity of securities of any kind issued by the Corporation than such
holder and its affiliates are permitted to own, control or have power
to vote under any law or under any regulation, rule or other
requirement of any governmental authority at the time applicable to
such holder and its affiliates.
(b) Conversion Procedures. Each conversion of shares
of Class B Common Stock into shares of Common Stock shall be effected
by (and the Corporation shall be obligated to issue such shares of
Common Stock upon) the surrender of the certificate or certificates
representing such shares of Class B Common Stock to be converted at the
principal office of the Corporation (or at such other office or agency
of the Corporation as the Corporation may designate by notice in
writing to the holders of the Class B Common Stock or, if such
conversion
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shall be in connection with an underwritten public offering of shares
of Common Stock, at the location at which the Corporation shall agree
to deliver the shares of Common Stock subject to such offering) at any
time during its usual business hours, together with written notice by
the holder of such Class B Common Stock (i) stating that such holder
desires to convert the shares, or a stated number of the shares, of
Class B Common Stock represented by such certificate or certificates
into shares of Common Stock and (ii) representing that upon such
conversion, such holder and its affiliates shall not, directly or
indirectly, own, control or have power to vote a greater quantity of
securities of any kind issued by the Corporation than such holder and
its affiliates are permitted to own, control or have power to vote
under any applicable law, regulation, rule or other governmental
requirement. Such notice shall also state the name or names (with
addresses) and denominations in which the certificate or certificates
for shares of Common Stock are to be issued and shall include
instructions for delivery thereof. In case such notice shall specify
that the new certificates to be issued are to be issued in a name or
names other than that of the holder of Class B Common Stock, such
notice shall be accompanied by payment of all transfer taxes, if any.
Promptly after such surrender and the receipt of such written notice
and payment of transfer taxes, if applicable, the Corporation shall
issue and deliver in accordance with such instructions the certificate
or certificates for the Common Stock issuable upon such conversion, and
the Corporation shall deliver to the converting holder a certificate
representing any shares of Class B Common Stock which were represented
by the certificate or certificates surrendered to the Corporation in
connection with such conversion but which were not converted. Such
conversion to the extent permitted by law shall be deemed to have been
effected as of the close of business on the date on which such
certificate or certificates have been surrendered, such notice has been
received and such transfer taxes paid, if applicable, and at such time
the rights of the holder of such Class B Common Stock (or specified
portion thereof) as such holder shall cease and the person or persons
in whose name or names the certificate or certificates for shares of
Common Stock are to be issued upon such conversion shall be deemed to
have become the holder or holders of record of the shares of Common
Stock represented thereby.
(c) Reservation of Shares, Validity, Etc. The
Corporation shall at all times reserve and keep available out of its
authorized but unissued shares of Common Stock or its treasury shares,
for the purpose of issuance upon the conversion of the Class B Common
Stock as provided in this Section 4.2(B)(6) such number of shares of
Common Stock as are then issuable upon the conversion of all
outstanding shares of Class B Common Stock (assuming that all such
shares of Class B Common Stock are held by persons entitled to convert
such shares fully into shares of Common Stock). The Corporation
covenants that all shares of Common Stock which are issuable upon
conversion shall, when issued, be duly and validly issued, fully paid
and nonassessable and free from all taxes, liens and charges. The
Corporation shall take all such action as may be necessary to assure
that all such shares of Common Stock may be so issued without violation
of any law or any regulation, rule or other requirement of any
governmental authority applicable to the Corporation or any requirement
of any domestic securities exchange upon which shares of Common Stock
may be listed; provided, however, that the Corporation shall be
entitled to rely on the representations of the holders of the Class B
Common Stock required under subsections (a) or (b) of this Section
4.2(B)(6). The Corporation shall not take any action which would affect
the number of shares of Common Stock outstanding or issuable for any
purposes unless immediately following such action the Corporation would
have authorized but unissued shares of Common Stock or treasury shares,
not then reserved or required to be reserved for any purpose other than
the purpose of issue upon conversion of the Class B Common Stock,
sufficient to meet the reservation requirements of the first sentence
of this subsection (c).
(d) Registration and Listing. If any shares of Common
Stock required to be reserved for purposes of conversion hereunder
require, before such shares may be issued upon conversion, registration
with or approval of any governmental authority under any federal or
state law (other than any registration under the Securities Act of
1933, as then in effect, or any similar
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federal statute then in force, or any state securities law, required by
reason of any transfer involved in such conversion), or listing on any
domestic securities exchange, the Corporation shall, at its expense and
as expeditiously as possible, use its best efforts to cause such shares
to be duly registered or approved or listed, as the case may be.
(e) Charges. The issuance of certificates for shares
of Common Stock upon conversion of shares of Class B Common Stock shall
be made without charge to the holders of such shares of Class B Common
Stock for any issue tax in respect thereof or other cost incurred by
the Corporation in connection with such conversion and the related
issue of shares of Common Stock; provided, however, that the
Corporation shall not be required to pay any tax which may be payable
in respect of any transfer involved in the issue and delivery of any
certificate in a name other than that of the holder of the Class B
Common Stock converted.
(f) Converted or Otherwise Acquired Shares To Be
Retired. Any shares of Class B Common Stock which are converted into
shares of Common Stock pursuant to this Section 4.2(B)(6) or otherwise
acquired by the Company in any manner whatsoever shall be permanently
retired promptly on the acquisition thereof and shall not under any
circumstances be reissued, and the Corporation shall from time to time
take such appropriate action as may be necessary to reduce the
authorized number of shares of Class B Common Stock accordingly.
7. Voting Rights.
(a) General. Except as otherwise provided by law or
this Article IV, the holders of the Common Stock shall be entitled to
vote as a class for the election or removal of all Directors of the
Corporation and on all other matters to be voted on by the stockholders
of the Corporation and the holders of the Class B Common Stock shall
have no right to vote on matters to be voted on by the stockholders of
the Corporation, and the Class B Common Stock shall not be included in
determining the number of shares voting or entitled to vote on such
matters.
(b) Special Voting Rights. The holders of the Class B
Common Stock shall be entitled to vote on, and shall be included in
determining the number of shares of Common Stock and Class B Common
Stock voting or entitled to vote on, the following matters: (i) any
amendment to this Restated Certificate of Incorporation, (ii) any sale,
lease, transfer or other disposition of all or substantially all of the
property and assets of the Corporation on which the holders of the
Common Stock have the right to vote, (iii) any merger or consolidation
of the Corporation with or into any other corporation on which the
holders of the Common Stock have the right to vote, and (iv) any
liquidation, dissolution or winding up of the Corporation on which the
holders of the Common Stock have the right to vote.
(c) Meeting Procedures. At every meeting of the
holders of the Common Stock, such holders shall vote together as a
class. At every meeting of the holders of the Common Stock and Class B
Common Stock, at which the holders of the Class B Common Stock are
entitled to vote on any matter, the holders of the Class B Common Stock
and the holders of the Common Stock shall vote thereon together as a
single class; provided, however, that the holders of the Class B Common
Stock shall be entitled to vote separately as a class on any amendment
to the provisions pertaining to Class B Common Stock set forth in this
Article IV.B.
(d) One Vote Per Share. On all matters to be voted on
by the holders of Common Stock or the Class B Common Stock, the holders
of such class shall be entitled to one vote for each share thereof held
of record.
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ARTICLE V
POWERS OF BOARD OF DIRECTORS
5.1. Expanded Powers of the Board. In furtherance of, and not in
limitation of, the powers conferred by law, the Board of Directors is expressly
authorized and empowered:
A. to adopt, amend or repeal the Bylaws of the Corporation;
provided, however, that the Bylaws adopted by the Board of Directors under the
powers hereby conferred may be amended or repealed by the Board of Directors or
by the stockholders entitled to vote with respect thereto; and
B. from time to time to determine whether and to what extent,
and at what times and places, and under what conditions and regulations, the
accounts and books of the Corporation, or any of them, shall be open to
inspection of stockholders; and, except as so determined or as so provided in
any Preferred Stock Designation, no stockholder shall have any right to inspect
any account, book or document of the Corporation other than such rights as may
be conferred by applicable law.
5.2. Powers Specified in Bylaws. The Corporation may in its Bylaws
confer powers upon the Board of Directors in addition to the foregoing and in
addition to the powers and authorities expressly conferred upon the Board of
Directors by applicable law.
ARTICLE VI
NO STOCKHOLDER ACTION BY WRITTEN CONSENT
Subject to the rights of the holders of any series of Preferred Stock
as set forth in a Preferred Stock Designation to elect additional Directors
under specific circumstances, upon the closing of the Corporation's first public
offering of Common Stock under a registration statement filed with the
Securities and Exchange Commission, any action required or permitted to be taken
by the stockholders of the Corporation must be effected at a duly called annual
or special meeting of stockholders of the Corporation and may not be effected by
any consent in writing of such stockholders.
ARTICLE VII
ELECTION OF DIRECTORS
7.1. Number, Election and Terms of Directors. Subject to the rights of
the holders of Preferred Stock to elect additional Directors under specific
circumstances, the number of the Directors of the Corporation shall be fixed
from time to time by or pursuant to the Bylaws of the Corporation. The
Directors, other than those who may be elected by the holders of Preferred
Stock, shall be classified with respect to the time for which they severally
hold office into three classes, as nearly their equal in number as possible, as
shall be provided in the manner specified in the Bylaws of the Corporation. At
each annual meeting of the stockholders of the Corporation, the successors of
the class of Directors whose term expires at that meeting shall be elected by
plurality vote of all votes cast at such meeting to hold office for a term
expiring at the annual meeting of stockholders held in the third year following
the year of their election.
7.2. Removal of Directors. Until such time as The Prudential Insurance
Company of America ("Prudential") and its Affiliates (as defined) are the record
holders of shares of Common Stock and/or Class B Common Stock representing less
than 5% of the then issued and outstanding Common Stock, on a Fully-Diluted
Basis (as defined) that, when acquired by Prudential and/or its Affiliates, had
not been
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registered pursuant to the Securities Act of 1933, as amended, any Director or
the entire Board of Directors may be removed, with or without cause, by the
holders of a majority of the shares then entitled to vote at an election of
Directors and the holders of 25% or more of the outstanding Common Stock shall
have the right to call a special meeting of stockholders solely for the purpose
of removing any Director and filling any vacancy created thereby.
Notwithstanding Article VI hereof, the removal of a director pursuant to this
Section 7.2 may be effected by the written consent of stockholders.
7.3. Stockholder Nomination of Director Candidates and Introduction of
Business. Advance notice of stockholder nominations for the election of
Directors and advance notice of business to be brought by stockholders before an
annual meeting shall be given in the manner provided in the Bylaws of the
Corporation.
7.4. Newly Created Directorships and Vacancies. Except as otherwise
provided for or fixed by or pursuant to the provisions of Article IV of this
Restated Certificate of Incorporation relating to the rights of the holders of
Preferred Stock to elect Directors under specified circumstances, newly created
directorships resulting from any increase in the number of Directors and any
vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled only by the affirmative
vote of a majority of the remaining Directors then in office, even though less
than a quorum of the Board of Directors. Any Director elected in accordance with
the preceding sentence shall hold office for the remainder of the full term of
the class of Directors in which the new directorship was created or the vacancy
occurred and until such Director's successor shall have been elected and
qualified. Notwithstanding the foregoing provisions of this Section 7.4, until
such time as Prudential and its Affiliates are the record holders of shares of
Common Stock and/or Class B Common Stock representing less than 5% of the then
issued and outstanding shares of Common Stock, on a Fully-Diluted Basis that,
when acquired by Prudential and/or its Affiliates, had not been registered
pursuant to the Securities Act of 1933, as amended, at any meeting of
stockholders at which action is taken resulting in the removal of a Director,
the vacancy on the Board of Directors resulting from such removal may be filled
by the holders of a majority of the shares then entitled to vote at an election
of Directors and, if so filled, such Director shall hold office for the
remainder of the full term of the class of Directors in which the vacancy
occurred and until such Director's successor shall have been elected and
qualified. Notwithstanding Article VI hereof, any action permitted to be taken
at a meeting pursuant to the preceding sentence of this Section 7.4 may be
effected by the written consent of stockholders.
7.5. Decrease in Number of Directors. No decrease in the number of
Directors constituting the Board of Directors shall shorten the term of an
incumbent Director.
7.6. No Requirement of Written Ballot. The election of the Directors
may be conducted in any form adopted by the Board of Directors, and need not be
by written ballot. In the event, however, that a majority of the stockholders
vote to require written ballots, written ballots shall be used.
7.7. Certain Defined Terms. As used in this Article VII, (i) the term
"Affiliate" shall mean a person that directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such person; (ii) the term "control" shall mean the power to cause the election
of a majority of the members of the board of directors or other governing body
of any entity; and (iii) the term "Fully-Diluted Basis" shall mean after giving
effect to the exercise, conversion and exchange of all securities or other
rights then exercisable or convertible into or exchangeable for Common Stock
(including, without limitation, any subscriptions, options, warrants,
conversions or other rights pursuant to any agreements, arrangements or
commitments of any kind obligating the Corporation to issue or sell any shares
of Common Stock or any securities exercisable or convertible into or
exchangeable for Common Stock).
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ARTICLE VIII
INDEMNIFICATION
Each person who is or was a Director or officer of the Corporation, or
each such person who is or was serving at the request of the Board of Directors
or an officer of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
(including the heirs, executors, administrators or estate of such person), shall
be indemnified by the Corporation to the full extent permitted from time to time
by the DGCL as the same exists or may hereafter be amended (but, in the case of
any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment) or any other applicable laws
as presently or hereafter in effect. Without limiting the generality or the
effect of the foregoing, the Corporation may enter into one or more agreements
with any person which provide for indemnification greater or different than that
provided in this Article VIII. Any amendment or repeal of this Article VIII
shall not adversely affect any right or protection existing hereunder
immediately prior to such amendment or repeal.
ARTICLE IX
NO MONETARY LIABILITY OF DIRECTORS TO STOCKHOLDERS
To the full extent permitted by the DGCL or any other applicable laws
presently or hereafter in effect, no Director of the Corporation shall be
personally liable to the Corporation or its stockholders for or with respect to
any acts or omissions in the performance of his or her duties as a Director of
the Corporation. Any repeal or modification of this Article Ninth shall not
adversely affect any right or protection of a Director of the Corporation
existing immediately prior to such repeal or modification.
ARTICLE X
AMENDMENT
The Corporation reserves the right at any time and from time to time to
amend, alter, change or repeal any provision contained in this Restated
Certificate of Incorporation or a Preferred Stock Designation, and any other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted, in the manner now or hereafter prescribed herein or by
applicable law, and all rights, preferences and privileges of whatsoever nature
conferred upon stockholders, Directors or any other persons whomsoever by and
pursuant to this Restated Certificate of Incorporation in its present form or as
hereafter amended are granted subject to the right reserved in this Article X;
provided, however, that any amendment or repeal of Article VIII or Article IX of
this Restated Certificate of Incorporation shall not adversely affect any right
or protection existing hereunder immediately prior to such amendment or repeal,
and provided further that no Preferred Stock Designation shall be amended after
the issuance of any shares of the series of Preferred Stock created thereby,
except in accordance with the terms of such Preferred Stock Designation and the
requirements of applicable law.
5. In lieu of a vote of the stockholders, written consents to
this Restated Certificate of Incorporation have been signed by
the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled
to vote thereon were present and voted, in accordance with the
provisions of Sections 228, 242 and 245 of the DGCL.
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IN WITNESS WHEREOF, the said ASSOCIATED MATERIALS INCORPORATED has
caused this certificate to be signed by William W. Winspear, its President,
under its corporate seal attested by Robert L. Winspear, its Secretary, this
12th day of October, 1994.
ASSOCIATED MATERIALS INCORPORATED
/s/ William W. Winspear
---------------------------------
William W. Winspear, President
/s/ Robert L. Winspear
- ------------------------------------
Robert L. Winspear, Secretary
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CERTIFICATE OF RETIREMENT OF STOCK
OF
ASSOCIATED MATERIALS INCORPORATED
Associated Materials Incorporated, a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation duly adopted a
resolution which identified shares of the capital stock of the Corporation,
which to the extent hereinafter set forth, had the status of retired shares, and
which retired shares had capital applied in connection with their conversion.
SECOND: The shares of capital stock of the Corporation which are
retired are identified as being 1,150,000 shares of Class B Common Stock, par
value of $.0025 per share ("Class B Common Stock").
THIRD: That the Restated Certificate of Incorporation of the
corporation prohibits the reissuance of the shares of Class B Common Stock when
so retired and, pursuant to the provisions of Section 243 of the General
Corporation Law of the State of Delaware, upon the effective date of the filing
of this Certificate, the Restated Certificate of Incorporation of the
Corporation shall be amended so as to effect a reduction in the authorized
number of shares of the Class B Common Stock to the extent of 1,150,000 shares,
being the total number of shares of Class B Common Stock retired.
FOURTH: This Certificate of Retirement of Stock shall be effective upon
filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by William W. Winspear, its Chairman of the Board, President and Chief
Executive Officer and attested by Robert L. Winspear, its Vice President,
Treasurer and Secretary, this 31st day of March, 1998.
ASSOCIATED MATERIALS INCORPORATED
By: /s/ William W. Winspear
------------------------------------
William W. Winspear
Chairman of the Board, President and
Chief Executive Officer
ATTEST:
By: /s/ Robert L. Winspear
- -------------------------------------
Robert L. Winspear
Secretary
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CERTIFICATE OF AMENDMENT
OF
RESTATED
CERTIFICATE OF INCORPORATION
OF
ASSOCIATED MATERIALS INCORPORATED
Associated Materials Incorporated (the "Corporation"), a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of the Corporation held on
February 22, 2001, resolutions were duly adopted setting forth a proposed
amendment to the Amended and Restated Certificate of Incorporation of the
Corporation, declaring said amendment to be advisable and directing that said
amendment be considered at the next annual meeting of the stockholders of the
Corporation. The resolution setting forth the proposed amendment is as follows:
"RESOLVED, that Section 7.1 of Article VII of the Certificate of
Incorporation be amended and restated in its entirety as follows:
7.1 Number, Election and Terms of Directors. Subject to the
rights of the holders of Preferred Stock to elect additional
Directors under specific circumstances, the number of the
Directors of the Corporation shall be fixed from time to time
by or pursuant to the Bylaws of the Corporation. At each
annual meeting of the stockholders of the Corporation, the
Directors, other than those who may be elected by the holders
of Preferred Stock, shall be elected by plurality vote of all
votes cast at such meeting to hold office for a term expiring
at the immediately following annual meeting of stockholders."
SECOND: That an annual meeting of the stockholders of the Corporation was duly
called and held on May 24, 2001, upon notice in accordance with Section 222 of
the General Corporation Law of the State of Delaware, at which meeting the
necessary number of shares as required by statute were voted in favor of the
amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by William W. Winspear, its Chairman, President and Chief Executive
Officer and attested by Robert L. Winspear, its Vice President, Chief Financial
Officer and Secretary, on this 24th day of May, 2001.
ASSOCIATED MATERIALS INCORPORATED
By: /s/ William W. Winspear
--------------------------------------
William W. Winspear, Chairman, President
and Chief Executive Officer
Attest:
By: /s/ Robert L. Winspear
-------------------------------------
Robert L. Winspear, Vice President,
Chief Financial Officer and Secretary
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CERTIFICATE OF RETIREMENT OF STOCK
OF
ASSOCIATED MATERIALS INCORPORATED
Associated Materials Incorporated, a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation duly adopted a
resolution which identified 1,550,000 shares of the capital stock of the
Corporation, which, to the extent hereinafter set forth, had the status of
retired shares and of which 1,000,000 retired shares represented a reduction of
capital and 550,000 retired shares had capital applied in connection with their
conversion.
SECOND: The shares of capital stock of the Corporation which are
retired are identified as being 1,550,000 shares of Class B Common Stock, par
value of $.0025 per share ("Class B Common Stock").
THIRD: That the Restated Certificate of Incorporation of the
Corporation prohibits the reissuance of the shares of Class B Common Stock when
so retired and, pursuant to the provisions of Section 243 of the General
Corporation Law of the State of Delaware, upon the effective date of the filing
of this Certificate, the Restated Certificate of Incorporation of the
Corporation shall be amended so as to effect a reduction in the authorized
number of shares of the Class B Common Stock to the extent of 1,550,000 shares,
being the total number of shares of Class B Common Stock retired.
FOURTH: This Certificate of Retirement of Stock shall be effective upon
filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by William W. Winspear, its Chairman, President and Chief Executive
Officer and attested by Robert L. Winspear, its Vice President, Chief Financial
Officer and Secretary, this 24th day of May 2001.
ASSOCIATED MATERIALS INCORPORATED
By: /s/ William W. Winspear
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William W. Winspear, Chairman, President
and Chief Executive Officer
Attest:
By: /s/ Robert L. Winspear
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Robert L. Winspear, Vice President,
Chief Financial Officer and Secretary