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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
FCI HOLDING CORP.
FIRST: The name of the corporation is: FCI Holding Corp.
SECOND: The address of its registered office in the State of Delaware
is 1013 Centre Road in the City of Wilmington, County of New Castle. The name
of its registered agent at such address is Corporation Service 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.
FOURTH: The total number of shares of capital stock which the
corporation shall have authority to issue is Three Thousand (3,000) and the par
value of each of such shares is One Cent ($0.01), amounting in the aggregate to
Thirty Dollars ($30.00) of capital stock.
FIFTH: The name and mailing address of the sole incorporator is as
follows:
NAME MAILING ADDRESS
---- ---------------
Pamela A. Stiglitz c/o Bingham, Dana & Gould
150 Federal Street
Boston, Massachusetts 02110
SIXTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the corporation and for defining
and regulating the powers of the corporation and its directors and stockholders
and are in furtherance and not in limitation of the powers conferred upon the
corporation by statute:
(a) The election of directors need not be by written ballot.
(b) The Board of Directors shall have the power and authority:
(1) to adopt, amend or repeal by-laws of the corporation,
subject only to such limitation, if any, as may be from
time to time imposed by law or by the by-laws; and
(2) to the full extent permitted or not prohibited by law, and
without the consent of or other action by the
stockholders, to authorize or create mortgages, pledges or
other liens or encumbrances upon any or all of the assets,
real, personal or mixed, and franchises of the
corporation, including after-acquired property, and to
exercise all of the powers of the corporation in
connection therewith; and
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(3) subject to any provision of the by-laws, to determine
whether, to what extent, at what times and places and
under what conditions and regulations the accounts, books
and papers of the corporation (other than the stock
ledger), or any of them, shall be open to the inspection
of the stockholders, and no stockholder shall have any
right to inspect any account, book or paper of the
corporation except as conferred by statute or authorized
by the by-laws or by the Board of Directors.
SEVENTH: No director of the corporation shall be personally liable to
the corporation or to any of its stockholders for monetary damages for breach
of fiduciary duty as a director, notwithstanding any provision of law imposing
such liability; provided, however, that to the extent required from time to
time by applicable law, this Article Seventh shall not eliminate or limit the
liability of a director, to the extent such liability is provided by applicable
law, (i) for any breach of the director's duty of loyalty to the corporation or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174
of Title 8 of the Delaware Code, or (iv) for any transaction from which the
director derived an improper personal benefit. No amendment to or repeal of
this Article Seventh shall apply to or have any effect on the liability or
alleged liability of any director for or with respect to any acts or omissions
of such director occurring prior to the effective date of such amendment or
repeal.
THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, does make this certificate, hereby declaring an certifying
that this is my act and deed and the facts stated herein are true, and
accordingly have hereunto set my hand this 23rd day of June, 1995.
/s/ Pamela A. Stiglitz
------------------------------
Pamela A. Stiglitz
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FCI HOLDING CORP.
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
FCI Holding Corp., a Delaware corporation (the "Corporation") does
hereby certify, pursuant to Section 241 of the General Corporation Law of the
State of Delaware, that:
First: The Corporation has not received any payment for any of its
stock.
Second: Pursuant to Section 141(f) of the General Corporation Law of
the State of Delaware and Section 3.17 of the Corporation's By-Laws, by written
consent of the Board of Directors of the Corporation dated June 29, 1995, the
Amendment to the Corporation's Certificate of Incorporation changing Article
Fourth of the Certificate of Incorporation and referred to in the following
resolutions was duly adopted:
RESOLVED: That it is deemed advisable and in the best
interest of the Corporation to amend Article Fourth
of its Certificate of Incorporation to read as set
forth in Exhibit A, attached hereto.
RESOLVED: That the Corporation be and it hereby is authorized
and directed to amend its Certificate of
Incorporation as set forth in the foregoing
resolution, and that the appropriate officers of
the Corporation be and they hereby are authorized
and directed to execute and deliver any and all
documents or certificates deemed necessary to
effectuate the proposed amendment outlined above,
including, pursuant to Section 241 of the General
Corporation Law of the State of Delaware, a
Certificate of Amendment to the Certificate of
Incorporation for filing with the Delaware
Secretary of State.
Accordingly, Article Fourth of the Certificate of Incorporation of the
Corporation is hereby amended to read as set forth in Exhibit A attached
hereto.
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IN WITNESS WHEREOF, FCI Holding Corp. has caused this Certificate of
Amendment to its Certificate of Incorporation to be executed by Michel
Reichert, its President, and attested by Michael F. Gilligan, its Secretary,
this 29th day of June, 1995.
FCI HOLDING CORP.
By: /s/ Michel Reichert
-------------------------------
Michel Reichert, President
Attest:
By: /s/ Michael F. Gilligan
--------------------------------
Michael F. Gilligan, Secretary
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EXHIBIT A
AMENDMENT TO CERTIFICATE OF INCORPORATION
OF
FCI HOLDING CORP.
* * * * * * *
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 400,000, consisting solely of:
50,000 shares of preferred stock, $1.00 par value per share (the
"Preferred Stock");
150,000 shares of Class A Voting Common Stock, $.01 par value per share
(the "Class A Common Stock");
150,000 shares of Class B Non-Voting Common Stock, $.01 par value per
share (the "Class B Common Stock"); and
50,000 shares of Class C Voting Common Stock, $.01 par value per share
(the "Class C Common Stock").
As used in this Article Fourth:
"Change of Control" means any merger, consolidation, sale of Common
Stock or other transfer, as a result of which, the holders of 80% of the
Corporation's outstanding Common Stock prior to such transaction or series of
related transactions (calculated on a fully-diluted basis) shall cease to hold
at least 80% of such Common Stock subsequent to such transaction or series of
related transactions (calculated on a fully-diluted basis).
"Common Stock" means, collectively, the Class A Common Stock, the Class
B Common Stock and the Class C Common Stock.
"Default Period" means that period commencing on delivery to the
Corporation at its principal office of a Special Rights Notice, and ending on
the first to occur of the last day of the second full fiscal quarter of the
Corporation thereafter during which no Special Event of Default exists.
"Dividend Payment Date" has the meaning set forth in Part A, Section
1.1(a) of this Article Fourth.
"Special Event of Default" has the meaning set forth in Section 8.2(b)
of the Securities Purchase Agreement.
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"Junior Stock" has the meaning set forth in Part A, Section 1.1(b) of
this Article Fourth.
"Liquidation" has the meaning set forth in Part A, Section 1.2(a) of
this Article Fourth.
"Liquidation Value" has the meaning set forth in Part A, Section 1.2(a)
of this Article Fourth.
"Person" means an individual, partnership, corporation, association,
trust, joint venture, unincorporated organization, or any government,
governmental department or agency or political subdivision thereof.
"Qualified Public Offering" means Qualified Public Offering shall mean
the Corporation's underwritten public offering pursuant to an effective
registration statement under the Securities Act covering the offer and sale of
shares of Common Stock in which not less than $20,000,000 of gross proceeds
from such public offering are received by the Corporation for the account of
the Corporation.
"Redemption Date" as to any share of Preferred Stock, means the
redemption date for such share of Preferred Stock determined pursuant to Part
A, Section 1.4 of this Article Fourth.
"Redemption Event" means the occurrence of any of the following: (a) the
sale of all or substantially all of the assets of the Corporation or of all or
substantially all of the assets of any Subsidiary or Subsidiaries which
constitute all or substantially all of the assets of the Corporation, (b) a
Change of Control or (c) an initial public offering of the Common Stock
pursuant to a public offering registered under the Securities Act of 1933, as
amended.
"Securities Purchase Agreement" means the Securities Purchase Agreement,
dated as of July 3, 1995, among the Corporation and Heritage Fund I, L.P., a
Delaware limited partnership, as the same may be amended, restated, modified or
supplemented and in effect from time to time.
"Special Rights Notice" means a written notice to the Corporation at its
principal office by holders of not less than 51% of the then outstanding Class
C Common Stock stating that a Special Event of Default has occurred and is
continuing and specifying the nature of such default.
"Subsidiary" means any Person of which the Corporation or other
specified Person now or hereafter shall at the time own directly or indirectly
through a Subsidiary at least a majority of the outstanding capital stock (or
other shares of beneficial interest) ordinarily entitled to vote for the
election of such Person's directors (or, in the case of a Person that is not a
corporation, for those Persons exercising functions similar to directors of a
corporation).
The following is a statement of the designations, powers, privileges and
rights, and the qualifications, limitations and restrictions, in respect of
each class of capital stock of the Corporation.
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A. PREFERRED STOCK
1. Terms Applicable to Preferred Stock.
1.1 Dividends.
(a) The Corporation will pay preferential dividends to the holders of
the Preferred Stock as provided in this Section 1.1. Dividends on each
outstanding share of Preferred Stock will accrue cumulatively on a daily basis
during each fiscal quarter of the Corporation at the rate of 9 1/2% per annum
on the Liquidation Value thereof. Dividends accrued on the Preferred Stock
through June 30, 1998 will be payable by the Corporation upon the redemption of
such shares of Preferred Stock pursuant to Section 1.4 hereof. Dividends
accrued on the Preferred Stock during each fiscal quarter ending after June 30,
1998 will be payable on the last day of each fiscal quarter of the Corporation
(each such date, a "Dividend Payment Date"). In the event that any dividends
accrued during any fiscal quarter are not paid on the Dividend Payment Date
with respect thereto, or, in the case of any Dividend Payment Date that is not
a business day, on the next succeeding business day, the dividend rate on each
share of Preferred Stock shall be increased to provide that an additional
dividend shall be paid with respect to such accrued and unpaid dividends at the
rate of 12% per annum, compounded quarterly, until such time as such dividends
shall have been declared and paid as provided herein.
(b) Dividends on each share of Preferred Stock will accrue from and
including the date of issuance of such share to and including the date on which
the Liquidation Value (plus all then accrued but unpaid dividends thereon) of
such share is paid, whether or not they have been declared and whether or not
there are profits, surplus or other funds of the Corporation legally available
for the payment of dividends. The date on which the Corporation initially
issues any share of Preferred Stock will be deemed to be its "date of
issuance," regardless of the number of times transfer of such share is made on
the stock records maintained by or for the Corporation and regardless of the
number of certificates which may be issued to evidence such share. No
dividends or other distributions will be paid, declared or set apart with
respect to the Common Stock or any other shares of capital stock of the
Corporation ranking on liquidation junior to the Preferred Stock (together with
the Common Stock, "Junior Stock") without the prior written consent of the
holders of a majority of the then outstanding shares of Preferred Stock, unless
all accrued but unpaid dividends on the Preferred Stock shall have been paid.
(c) If at any time the Corporation pays less than the total amount of
dividends then accrued with respect to the Preferred Stock, such payment will
be distributed ratably among the holders of the Preferred Stock based upon the
aggregate accrued but unpaid dividends on the shares of Preferred Stock held by
each such holder.
(d) All dividends payable on the Preferred Stock pursuant to this
Section 1.1 shall be paid in cash.
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1.2 Liquidation.
(a) Upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation (each such event being hereafter referred to as a
"liquidation"), the holders of Preferred Stock will be entitled to be paid,
before any payment shall be made to the holders of Junior Stock, an amount in
cash equal to $1,000 per share of Preferred Stock, subject to appropriate
adjustment in the event of any stock dividend, stock split, combination or
other similar recapitalization affecting the Preferred Stock (as so adjusted,
the "Liquidation Value"), plus all then accrued and unpaid dividends to the
date of payment, and the holders of Preferred Stock will not be entitled to any
further payment. If, upon any Liquidation, the Corporation's assets to be
distributed among the holders of the Preferred Stock are insufficient to permit
payment to such holders of the full amount to which they are entitled
hereunder, then the entire assets to be distributed will be distributed ratably
among such holders based upon the ten aggregate Liquidation Value (plus all
then accrued but unpaid dividends) of the Preferred Stock held by each such
holder.
(b) Upon and after any Liquidation, unless and until the holder of
each share of Preferred Stock receives payment in full of the Liquidation Value
plus all accrued and unpaid dividends on such share of Preferred Stock, the
Corporation shall not redeem, repurchase or otherwise acquire for value, or
declare or pay any dividend or other distribution on or with respect to, any
class or series of Junior Stock. Upon any after any Liquidation, after the
payment of all preferential amounts required to be paid to the holders of
Preferred Stock and any other class or series of stock of the Corporation
ranking on liquidation on a parity with the Preferred Stock, the holders of
Junior Stock then outstanding shall be entitled to receive the remaining assets
of the Corporation available for distribution to its stockholders.
1.3 Voting Rights.
(a) General. Except as otherwise provided in subsection (b) of this
Section 1.3, or as otherwise required by law, the holders of Preferred Stock
shall have no right to vote on any matter submitted to stockholders of the
Corporation for vote, consent or approval.
(b) No Amendment, Alteration or Repeal. The Corporation will not
amend, alter or repeal the preferences, special rights or other powers of the
Preferred Stock so as to affect adversely the Preferred Stock without the
written consent or affirmative vote of the holders of at least two-thirds of
the then outstanding shares of Preferred Stock, given in writing or by vote at
a meeting, consenting or voting (as the case may be) separately as a class.
For this purpose, without limiting the generality of the foregoing, the
increase in the number of authorized shares of Preferred Stock or the
authorization or issuance of any series of preferred stock with either
preference or priority over the Preferred Stock or parity with the Preferred
Stock as to the right to receive either dividends or amounts distributable upon
a Liquidation of the Corporation shall be deemed to affect adversely the
Preferred Stock.
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1.4 Redemptions.
(a) Redemption upon Occurrence of Redemption Event. The Corporation
will, upon the occurrence of any Redemption Event, redeem all of the Preferred
Stock then outstanding at a price per share equal to the Liquidation Value
thereof (plus all then accrued but unpaid dividends thereon) unless, in the
case of such Redemption Event, the holders of a majority of the outstanding
shares of Preferred Stock advise the Corporation in writing that they do not
wish to be redeemed in connection with such Redemption Event, in which case no
shares of Preferred Stock shall be redeemed in connection with such Redemption
Event.
(b) Late Payments. If any share of Preferred Stock is not redeemed
on the date scheduled for redemption pursuant to this Section 1.4 other than
with the consent of the holders of a majority of the outstanding shares of
Preferred Stock, the dividend rate applicable to such share shall be increased
to 12% per annum, compounded quarterly, accruing from such scheduled redemption
date to the date on which such share actually shall be redeemed.
(c) Notice of Redemption. The Corporation shall provide written
notice of any event giving rise to the redemption of Preferred Stock pursuant
to this Section 1.4 specifying the time and place of redemption and the
redemption price per share, by first class or registered mail, postage prepaid,
to each holder of record of Preferred Stock at the address for such holder last
shown on the records of the transfer agent therefor (or the records of the
Corporation, if it serves as its own transfer agent), not more than 60 nor less
than 30 days prior to the date on which such redemption is to be made. If less
than all the shares of Preferred Stock owned by such holder are then to be
redeemed, the notice will also specify the number of shares of Preferred Stock
which are to be redeemed.
(d) Redemption Price and Priority of Payment. For each share of
Preferred Stock which is to be redeemed, the Corporation will be obligated on
the applicable Redemption Date to pay to the holder thereof (upon surrender by
such holder at the Corporation's principal office of the certificate
representing such share of Preferred Stock), in immediately available funds, an
amount equal to the Liquidation Value thereof (plus all then accrued but unpaid
dividends thereon). If the funds of the Corporation legally available for
redemption of shares of Preferred Stock on any Redemption Date are insufficient
to redeem the total number of shares of Preferred Stock to be redeemed on such
date, those funds which are legally available will be used to redeem the
maximum possible number of shares of Preferred Stock ratably among the holders
of such shares to be redeemed based upon the aggregate Liquidation Value of
such shares (plus all then accrued but unpaid dividends thereon) held by each
such holder. At any time thereafter when additional funds of the Corporation
are legally available for the redemption of Preferred Stock, such funds will
immediately be used to redeem the balance of the shares which the Corporation
has become obligated to redeem on any Redemption Date, but which it has not
redeemed. In case fewer than the total number of shares of Preferred Stock
represented by any certificate are redeemed, a new certificate representing the
number of unredeemed shares will be issued to the holder thereof without cost
to such holder within seven business days after surrender of the certificate
representing the redeemed shares of Preferred Stock.
(e) Pro Rata Treatment of Preferred Stock. The Corporation shall not
redeem, repurchase or otherwise acquire any Preferred Stock except as expressly
authorized herein or pursuant to a
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purchase offer made pro rata to all holders of Preferred Stock on the basis of
the aggregate Liquidation Value (plus all then accrued but unpaid dividends
thereon) of shares of Preferred Stock owned by each such holder.
(f) Dividends after Redemption Date. No share of Preferred Stock is
entitled to any dividends accruing after the date on which the Liquidation
Value (plus all then accrued but unpaid dividends thereon) of such share is
paid. On such date all rights of the holder of such share of Preferred Stock
will cease, and such share of Preferred Stock will be deemed not to be
outstanding.
(g) Payments on Junior Stock. If and so long as there are any shares
of Preferred Stock outstanding which the Corporation has become obligated to
redeem pursuant to this Section 1.4, until the Corporation has redeemed all of
such shares of Preferred Stock, the Corporation shall not redeem, repurchase or
otherwise acquire for value, or declare or pay and dividend or other
distribution on or with respect to, any class or series of Junior Stock.
B. COMMON STOCK
1. Terms Applicable to Common Stock.
1.1 Dividend and Other Rights of Common Stock.
(a) Ratable Treatment. Except as specifically otherwise provided
herein, all shares of Common Stock shall be identical and shall entitle the
holders thereof to the same rights and privileges. The Corporation shall not
subdivide or combine any shares of Common Stock, or pay any dividend or retire
any share or make any other distribution on any share of Common Stock, or
accord any other payment, benefit or preference to any share of Common Stock,
except by extending such subdivision, combination, distribution, payment,
benefit or preference equally to all shares of Common Stock. If dividends are
declared which are payable in shares of Common Stock, such dividends shall be
payable in shares of Class A Common Stock to holders of Class A Common Stock,
in shares of Class B Common Stock to holders of Class B Common Stock and in
shares of Class C Common Stock to holders of Class C Common Stock.
(b) Dividends. Subject to the rights of the holders of Preferred
Stock, the holders of Common Stock shall be entitled to dividends out of funds
legally available therefor, when declared by the Board of Directors in respect
of Common Stock, and, upon a Liquidation of the Corporation, to share ratably
in the assets of the Corporation available for distribution to the holders of
Common Stock.
1.2 Voting Rights of Common Stock.
(a) Class A Common Stock. Except as otherwise provided by law, the
holders of Class A Common Stock shall have full voting rights and powers to
vote on all matters submitted to stockholders of the Corporation for vote,
consent or approval, and each holder of Class A Common Stock shall be entitled
to one vote for each share of Class A Common Stock held of record by such
holder.
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(b) Class B Common Stock. Except as otherwise provided by law, the
holders of Class B Common Stock shall have no rights to vote on any matter
submitted to stockholders of the Corporation for vote, consent or approval, and
the Class B Common Stock shall not be included in determining the number of
shares voting or entitled to vote on such matters.
(c) Class C Common Stock.
(i) Except as otherwise provided by law, the holders of Class
C Common Stock shall have full voting rights and powers to vote on all
matters submitted to stockholders of the Corporation for vote, consent
or approval. Except as provided in Section 1.2(c)(ii) below, each
holder of Class C Common Stock shall be entitled to one vote for each
share of Class C Common Stock held of record by such holder, and holders
of Class A Common Stock and Class C Common Stock shall vote together as
a single class.
(ii) (A) So long as any Special Event of Default shall be
continuing, the holders of not less than 51% of the then outstanding
shares of Class C Common Stock shall be entitled to deliver a Special
Rights Notice to the Corporation. Upon delivery of a Special Rights
Notice and during the resulting Default Period, each holder of Class C
Common Stock shall be entitled to have 1,000 votes for each share of
Class C Common stock held of record by such holder. During a Default
Period, the holders of Class C Common Stock shall be entitled to the
rights with respect to the election of directors set forth in Section
1.2(c)(ii)(B) below and shall be entitled to vote with the holders of
Class A Common Stock, voting together as a single class, on all matters,
other than the election or removal of directors, submitted to
stockholders of the Corporation for vote, consent or approval. Within
ten days after any delivery of a Special Rights Notice, the Board of
Directors shall call a special meeting of stockholders for the election
of directors to be held upon not less than 15 nor more than 30 days'
notice to such holders. If such notice of meeting is not given within
the ten days required above, those holders of Class C Common Stock
delivering the Special Rights Notice may call such meeting and shall
have access to the stock books and records of the Corporation for such
purpose. At any meeting so called or at any other meeting held (or
consent action taken) during a Default Period, holders of Class C Common
Stock shall be entitled to the number of votes per share provided in
this Section 1.2(c)(ii)(A). At any such meeting, the holders of a
majority of the aggregate number of the then outstanding shares of Class
C Common Stock present in person or by proxy, shall be sufficient to
constitute a quorum.
(B) At any meeting of stockholders for the purpose of election
of directors called as provided in Section 1.2(c)(ii)(A) above, holders
of Class C Common Stock, voting together as a separate class, shall be
entitled to elect the smallest number of directors to the Board of
Directors of the Corporation that shall constitute a majority of the
authorized number of directors on the Board of Directors of the
Corporation. In each such election, holders of Class C Common Stock
shall vote together as a separate class and not with holders of Class A
Common Stock; and holders of Class A Common Stock, voting as a separate
class, shall be entitled to elect the remaining members of the Board of
Directors. Upon the election by holders of Class C Common Stock of the
directors they are entitled to
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elect as provided above, the terms of office of all persons who were
previously directors of the Corporation shall immediately terminate.
(C) In case of any vacancy in the office of any director
occurring among the directors elected by holders of Class C Common Stock
pursuant to the provisions of the foregoing subsection (ii), the
remaining directors elected by holders of Class C Common Stock, by
affirmative vote of a majority thereof, or the remaining director so
elected if there be but one, may, if permitted by law and subject to the
provisions of subsection (B) above, elect a successor or successors to
hold office for the unexpired terms of the director or directors whose
place or places shall be vacant. Any director who shall have been
elected by holders of Class C Common Stock (or by any directors so
elected by directors elected by the holders of Class C Common Stock as
provided in this subsection (C)) may be removed during his term of
office, either with or without cause, by, and only by, the affirmative
vote of holders of Class C Common Stock given at a special meeting of
such stockholders duly called for that purpose.
(D) The provisions of this Section 1.2(c) shall not be
amended, modified or waived without the written consent or affirmative
vote of the holders of at least two-thirds of the then outstanding
shares of Class C Common Stock, given in writing or by vote at a
meeting, consenting or voting (as the case may be) separately as a
class.
2. Conversion.
(a) Conversion of Class A Common Stock. Subject to and upon
compliance with the provisions of this Section 2, each record holder of Class A
Common Stock is entitled at any time and from time to time to convert any or
all of the shares of Class A Common Stock held by it into the same number of
shares of Class B Common Stock.
(b) Conversion of Class C Common Stock. Subject to and upon
compliance with the provisions of this Section 2, each record holder of Class C
Common Stock is entitled at any time and from time to time to convert any or
all of the shares of Class C Common Stock held by it into the same number of
shares of Class B Common Stock.
(c) Automatic Conversion. Upon the closing of a Qualified Public
Offering, all shares of Class B Common Stock then issued and outstanding and
all shares of Class C Common Stock then issued and outstanding shall be
converted, without any further action by the holders thereof, into shares of
Class A Common Stock.
(d) Conversion Procedure.
(i) Each conversion of shares of Class A Common Stock, shares
of Class B Common Stock or shares of Class C Common Stock will be
effected by the surrender to the Corporation of the certificate or
certificates representing the shares to be converted, duly endorsed or
assigned in blank, with signatures guaranteed if reasonably requested by
the Corporation, at the principal office of the Corporation (or such
other office or agency of the Corporation as the Corporation may
designate in writing to the holder or holders of the
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Common Stock) at any time during its usual business hours, and in the
case of the conversion of Class A Common Stock or Class C Common Stock
pursuant to paragraphs (a) or (b) of this Section 2, the delivery of
written notice by the holder of such Class A Common Stock or Class C
Common Stock stating that such holder desires to convert all or a stated
number of the shares of Class A Common Stock or Class C Common Stock
represented by such certificate or certificates into Class B Common
Stock, which notice will also state the name or names (with addresses)
and denominations in which the certificate or certificates for such
shares will be issued and will include instructions for delivery
thereof.
(ii) Promptly after such surrender and the receipt of such
written notice and statement, the Corporation will issue and deliver in
accordance with such instructions the certificate or certificates for
the Class A Common Stock or Class B Common stock issuable upon such
conversion. In addition, the Corporation will deliver to the converting
holder a certificate representing any portion of the shares of Class A
Common Stock or Class C Common Stock which had been represented by the
certificate or certificates delivered to the Corporation in connection
with such conversion but which were not converted. Such conversion, to
the extent permitted by law, will be deemed to have been effected as of
the close of business on the date on which such certificate or
certificates have been surrendered in accordance herewith and such
notice has been received in the case of any conversion pursuant to
paragraphs (a) or (b) of this Section 2, and upon the closing of a
Qualified Public Offering in the case of a conversion pursuant to
paragraph (c) of this Section 2, and at such time the rights of the
holder of such Class A Common Stock, Class B Common Stock or Class C
Common Stock, as the case may be (or specified portion thereof), as such
holder will cease, and the person or persons in whose name or names the
certificate or certificates for shares of Class A Common Stock or Class
B Common Stock are to be issued upon such conversion will be deemed to
have become the holder or holders of record of the shares of Class A
Common Stock or Class B Common Stock represented thereby.
(iii) The Corporation will at all times (A) reserve and keep
available out of its authorized but unissued shares of Class A Common
Stock or its treasury shares of Class A Common Stock, solely for the
purpose of issuance upon the conversion of the Class B Common Stock and
Class C Common Stock as provided in this Section, such number of shares
of Class A Common Stock as are then issuable upon conversion of all then
outstanding shares of Class B Common Stock and Class C Common Stock into
shares of Class A Common Stock hereunder, and (B) reserve and keep
available out of its authorized but unissued shares of Class B Common
Stock or its treasury shares of Class B Common Stock, solely for the
purpose of issuance upon conversion of the Class A Common Stock and
Class C Common Stock as provided in this Section, such number of shares
of Class B Common Stock as are then issuable upon conversion of all then
outstanding shares of Class A Common Stock and Class C Common Stock into
shares of Class B Common Stock hereunder. Notwithstanding the
foregoing, if, at any time, there shall be an insufficient number of
authorized or treasury shares of Class A Common stock available for
issuance upon conversion of Class B Common Stock or Class C Common
Stock, or an insufficient number of authorized or treasury shares of
Class B Common Stock available for issuance upon conversion of Class A
Common Stock or Class C Common Stock, the Corporation will take all
action necessary to propose and recommend to the stockholders of the
Corporation
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that this Certificate of Incorporation be amended to authorize
additional shares in an amount sufficient to provide adequate reserves
of shares for issuance upon such conversion, including the diligent
solicitation of votes and proxies to vote in favor of such an amendment.
All shares of Class A Common Stock and Class B Common Stock which are
issuable upon conversion hereunder will, when issued, be duly and
validly issued, fully paid and nonassessable.
(iv) The issuance of certificates for shares of Class A Common
Stock upon automatic conversion of Class B Common Stock or Class C
Common Stock and for shares of Class B Common Stock upon conversion of
shares of Class A Common Stock and Class C Common Stock will be made
without charge to any original holder of any shares of Common Stock for
any issuance tax in respect thereof, or other cost incurred by the
Corporation in connection with such conversion and the related issuance
of Class A Common Stock or Class B Common Stock, provided that the
Corporation will not be required to pay any such taxes or costs which
may be payable in respect of any such conversion by any other person or
in respect of any transfer involved in the issuance and delivery of any
certificate in a name other than that of the registered holder of the
shares converted.
C. PROVISIONS OF COMMON APPLICATION
1.1 Registration of Transfer. The Corporation will keep at its
principal office or at the office of its legal counsel a register for the
registration of Preferred Stock and all classes of Common Stock. Upon the
surrender of any certificate representing Preferred Stock or Common Stock at
such place, the Corporation will, at the request of the record holder of such
certificate, execute and deliver a new certificate or certificates in exchange
therefor representing in the aggregate the number of shares of Preferred Stock
or Common Stock represented by the surrendered certificate. Each such new
certificate will be registered in such name and will represent such number of
shares of Preferred Stock or Common Stock as is requested by the holder of the
surrendered certificate and will be substantially identical in form to the
surrendered certificate, and, with respect to the Preferred Stock, dividends
will accrue on the Preferred Stock represented by such new certificate from the
date to which dividends have been fully paid on such Preferred Stock
represented by the surrendered certificate. The issuance of new certificates
will be made without charge to the holders of the surrendered certificates for
any issuance tax in respect thereof or other cost incurred by the Corporation
in connection with such issuance, unless such issuance is made in connection
with a transfer of Preferred Stock or Common stock, in which case the
transferring holder will pay all taxes arising from such transfer.
1.2 Replacement. Upon receipt of evidence reasonably satisfactory to
the Corporation (an affidavit of the registered holder will be satisfactory) of
the ownership and the loss, theft, destruction or mutilation of any certificate
evidencing shares of Preferred Stock or Common Stock, and in the case of any
such loss, theft or destruction upon receipt of indemnity reasonably
satisfactory to the Corporation, or, in the case of any such mutilation upon
surrender of such certificate, the Corporation will (at its expense) execute
and deliver in lieu of such certificate a new certificate of like kind
representing the number of shares of Preferred Stock or number of shares and
class of Common Stock represented by such lost, stolen, destroyed or mutilated
certificate and dated
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the date of such lost, stolen, destroyed or mutilated certificate, and, with
respect to Preferred Stock, dividends will accrue on the Preferred Stock
represented by such new certificate from the date to which dividends have been
fully paid on such lost, stolen, destroyed or mutilated certificate.
1.3 Notices. Except as otherwise provided, all notices referred to
herein will be in writing and will be deemed properly delivered if either
personally delivered or sent by overnight courier or mailed certified or
registered mail, return receipt requested, postage prepaid, to the recipient
(i) in the case of any Stockholder, at such holder's address as it appears in
the stock records of the Corporation (unless otherwise indicated by any such
holder) and (ii) in the case of the Corporation, at its principal office. Any
such notice shall be effective (i) if delivered personally, when received, (ii)
if sent by overnight courier, when receipted for, and (iii) if mailed, 3 days
after being mailed as described above.
--------------------
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CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
FOJTASEK COMPANIES, INC.
INTO
FCI HOLDING CORP.
The undersigned corporations do hereby certify, pursuant to Section 253
of the General Corporation Law of the State of Delaware, to the following
information relating to the merger (the "Merger") of FOJTASEK COMPANIES, INC.,
a Texas corporation and a direct, wholly-owned subsidiary of FCI (as defined
below) ("Fojtasek"), with and into FCI HOLDING CORP., a Delaware corporation
("FCI"):
1. FCI was incorporated on June 23, 1995, pursuant to and in
accordance with the General Corporation Law of the State of Delaware.
2. FCI owns 100% of the issued and outstanding shares of common
stock, par value $.01 per share, of Fojtasek, a corporation incorporated on
September 4, 1970, pursuant to and in accordance with the Texas Business
Corporation Act.
3. The Texas Business Corporation Act permits the merger of
corporations organized under the laws of the State of Texas with and into
corporations organized under the laws of other jurisdictions.
4. The Board of Directors of FCI unanimously consented on November
6, 1996 to the adoption of the following resolutions, which resolutions
provided that Fojtasek be merged (the "Merger") with and into FCI and set forth
the terms and conditions of the Merger:
RESOLVED: That, pursuant to the terms of the Agreement and Plan of Merger,
dated as of November 6, 1996 (the "Merger Agreement"), Fojtasek
shall merge with and into FCI such that the separate corporate
existence of Fojtasek shall cease, FCI, as the surviving company
(the "Surviving Company"), shall assume all of the liabilities
and obligations of Fojtasek, and the Merger shall be effective
upon filing a Certificate of Ownership and Merger with the
Secretary of State of the State of Delaware and Articles of
Merger with the Secretary of State of the State of Texas (the
"Effective Time").
RESOLVED: That, in connection with the foregoing, the form, terms and
provisions of the Merger Agreement, and the Merger, be, and they
hereby are, in all respects ratified, adopted and approved.
RESOLVED: That, at the Effective Time, the Certificate of Incorporation, as
amended, of FCI, as in effect immediately prior to the Effective
Time, shall be the Certificate of Incorporation of the Surviving
Company, except that the Certificate of Incorporation of FCI
shall be amended at the Effective Time by (a) deleting Articles
First and
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Fourth thereof in their entireties, and (b) substituting in lieu
thereof the following Article First:
********************
FIRST: The name of the corporation is: Atrium Companies, Inc.
********************
RESOLVED: That, at the Effective Time, the By-Laws of FCI, as in effect
immediately prior to the Effective Time, shall be the By-Laws of
the Surviving Company.
RESOLVED: That, at the Effective Time, the officers of Fojtasek and the
directors of FCI immediately prior to the Effective Time, shall
be the officers and directors of the Surviving Company.
RESOLVED: That, at the Effective Time, by virtue of the Merger,
automatically and without any action on the part of the holders
thereof, (i) each share of the Preferred Stock of FCI, $1.00 par
value per share, of the Class B Non-Voting Common Stock of FCI,
$.01 par value per share, and of the Class C Voting Common Stock
of FCI, $.01 par value per share, issued and outstanding
immediately prior to the Effective Time (including such shares,
if any, held as treasury stock by FCI) shall be canceled and
retired and shall cease to exist, (ii) one hundred (100) shares
of the Class A Voting Common Stock of FCI, $.01 par value per
share (the "Class A Stock"), issued and outstanding immediately
prior to the Effective Time, shall become and be deemed for all
purposes to represent one hundred (100) shares of the common
stock of the Surviving Company, par value $.01 per share, and
(iii) the remainder of the Class A Stock outstanding immediately
prior to the Effective Time (including such shares, if any, held
as treasury stock by FCI) shall be canceled and retired and shall
cease to exist.
RESOLVED: That, the officers of FCI be, and each of them hereby is,
directed and authorized to execute and deliver the Merger
Agreement, and to execute and deliver a Certificate of Ownership
and Merger and Articles of Merger setting forth a copy of the
resolutions adopted by FCI's Board of Directors to merge Fojtasek
with and into FCI, and the date of adoption thereof, and to file
the same with the Secretary of State of the State of Delaware and
the Secretary of State of the State of Texas, respectively, and
to cause a certified copy of the Certificate of Ownership and
Merger to be recorded in the office of the Recorder of Deeds of
the County in the State of Delaware in which the registered
office of FCI is located; and that the officers of FCI be, and
each of them hereby is, authorized and directed to take any and
all actions necessary and proper, in the judgment of said
officers, to effect the Merger.
5. Notwithstanding anything to the contrary contained in this
Certificate of Ownership and Merger, the Merger may be amended or terminated
and abandoned by the Board of Directors of FCI at any time prior to the date of
filing said Certificate of Ownership and Merger and said Articles of Merger.
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IN WITNESS WHEREOF, FCI HOLDING CORP. has caused this Certificate of
Ownership and Merger to be executed by Louis W. Simi, Jr., its Executive Vice
President, and attested by Shirley Crutcher, its Secretary, this 6th day of
November, 1996.
FCI HOLDING CORP.
By: /s/ Louis W. Simi, Jr.
--------------------------------
Louis W. Simi, Jr.
Executive Vice President
[SEAL]
Attest:
By: /s/ Shirley Crutcher
-------------------------------
Shirley Crutcher, Secretary
FOJTASEK COMPANIES, INC.
By: /s/ Louis W. Simi, Jr.
--------------------------------
Louis W. Simi, Jr.
Executive Vice President
[SEAL]
Attest:
By: /s/ Shirley Crutcher
-------------------------------
Shirley Crutcher, Secretary
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ATRIUM COMPANIES, INC.
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
Atrium Companies, Inc., a Delaware corporation (the "Corporation"), does
hereby certify, pursuant to Section 242 of the General Corporation Law of the
State of Delaware, that:
1. Pursuant to Section 141(f) of the General Corporation Law of the
State of Delaware, by unanimous written consent of the Board of
Directors of the Corporation dated November 6, 1996, the Board
resolved to amend the Corporation's Certificate of Incorporation
by deleting Article Fourth thereof and substituting in lieu
thereof the following Article Fourth:
FOURTH: The total number of shares of capital stock which
the corporation shall have authority to issue is
Three Thousand (3,000) shares of common stock, and
the par value of each of such shares is One Cent
($0.01), amounting in the aggregate to Thirty
Dollars ($30.00) of Capital Stock.
2. Pursuant to Section 228 of the General Corporation Law of the
State of Delaware, the sole stockholder of the Corporation by
written consent dated November 8, 1996, has voted in favor of the
amendment to the Corporation's Certificate of Incorporation
described above.
3. Accordingly, Article Fourth of the Corporation's Certificate of
Incorporation is hereby amended to read as follows:
FOURTH: The total number of shares of capital stock which
the corporation shall have authority to issue is
Three Thousand (3,000) shares of common stock, and
the par value of each of such shares is One Cent
($0.01), amounting in the aggregate to Thirty
Dollars ($30.00) of Capital Stock.
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IN WITNESS WHEREOF, Atrium Companies, Inc. has caused this Certificate
of Amendment to its Certificate of Incorporation to be executed by Randall S.
Fojtasek, its President, and attested by Shirley Crutcher, its Secretary, this
8th day of November, 1996.
ATRIUM COMPANIES, INC.
By: /s/ Randall S. Fojtasek
------------------------
Randall S. Fojtasek
President
Attest:
By: /s/ Shirley Crutcher
---------------------
Shirley Crutcher, Secretary
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