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EXHIBIT 3.2
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00AM 12/01/1992
923365183 - 2087251
SYRATECH CORPORATION
CERTIFICATE OF DESIGNATIONS
in respect of
SERIES A PREFERRED STOCK
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Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
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The undersigned, being the Chairman, President and Chief Executive
Officer of Syratech Corporation (the "Corporation"), a corporation organized and
existing under the General Corporation Law of the State of Delaware, hereby
certifies that, pursuant to the provisions of Section 151 of the General
Corporation Law of the State of Delaware, the Board of Directors of the
Corporation duly adopted the following resolution at a meeting of said Board of
Directors duly called and held on October 26, 1992, which resolution remains in
full force and effect as of the date hereof:
RESOLVED, that the Board of Directors of the Corporation, pursuant to
authority expressly vested in it by the provisions of the Corporation's
Certificate of Incorporation, as amended (the "Charter"), hereby
establishes a series of the Preferred Stock, par value $0.10 per share, of
the Corporation and fixes the number of shares of such series and the
powers, designations, preferences and relative, participating, optional or
other rights of such series, and the qualifications, limitations or
restrictions thereof, as follows:
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The first series of Preferred Stock, par value $0.10 per share, of the
Corporation shall be, and hereby is, designated "Series A Preferred Stock" (the
"Series A Shares"), and the number of shares constituting such series shall be
one hundred thirty-five thousand (135,000). The relative rights and preferences
of the Series A Shares shall be as follows:
Section a. Dividends and Distributions.
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(1) Subject to the prior and superior rights of the holders of any shares
of any series of stock ranking prior and superior to the Series A Shares with
respect to dividends, the holders of Series A Shares, in preference to the
holders of the Common Stock, par value $0.01 per share, of the Corporation (the
"Common Stock") and of any other junior stock, shall be entitled to receive,
when and as declared by the Board of Directors, out of any funds lawfully
available therefor, cash dividends theron, payable quarterly, from the date of
issuance therof, upon the tenth days of January, April, July and October in each
year (each such date being referred to herein as a "quarterly Dividend Payment
Date"), commencing on the first Quarterly Dividend Payment Date after the first
issuance of a Series A Share, in an amount per share (rounded to the nearest
cent) equal to the greater of
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(a) $10.00 or (b) subject to the provisions for adjustment hereinafter set
forth, 100 times the aggregate per share amount of all cash dividends, and 100
times the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions, other than a dividend or distribution payable
in shares of Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock since
the immediately preceding Quarterly Dividend Payment Date or, with respect to
the first Quarterly Dividend Payment Date, since the first issuance of any
Series A Share. In the event the Corporation shall at any time after October
31, 1992 (i) declare any dividend on Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such
case the amounts to which holders of Series A Shares were entitled immediately
prior to such event under clause (a) and clause (b) of the preceding sentence
shall be adjusted by multiplying each such amount by a fraction the numerator
of which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which
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is the number of shares of Common Stock that were outstanding immediately prior
to such event.
(2) The Corporation shall declare a dividend or distribution on the Series
A Shares as provided in paragraph (1) of this Section a immediately after it
declares a dividend or distribution payable in shares of Common Stock); PROVIDED
that, in the event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date, a dividend of $10.00 per
share on the Series A Shares shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date; and PROVIDED FURTHER that nothing contained in
this paragraph (2) shall be construed so as to conflict with any provision
relating to the declaration of dividends contained in the Charter.
(3) Dividends shall begin to accrue and be cumulative on outstanding Series
A Shares from the Quarterly Dividend Payment Date next preceding the date of
issue of such Series A Shares, unless the date of issue of such shares is prior
to the record date for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue
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from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of Series A Shares entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the Series A Shares in an amount less than the
total amount of such dividends at the time accrued and payable on such shares
shall be allocated pro rata on a share-by-share basis among all such shares at
the time outstanding. The Board of Directors may fix a record date for the
determination of holders of Series A Shares entitled to receive payment of a
dividend or distribution declared thereon.
Section b. REDEMPTION. The Series A Shares are not redeemable.
Section c. LIQUIDATION, DISSOLUTION OR WINDING UP. In the event of the
voluntary liquidation of the Corporation the "preferential amount" which the
holders of the Series A Shares shall be entitled to receive out of the assets
of the Corporation shall be $100.00 per share plus all accrued and unpaid
dividends thereon.
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(1) Upon any liquidation, dissolution or winding up of the Corporation, no
distribution shall be made to the holders of shares of stock ranking junior
(upon liquidation, dissolution or winding up) to the Series A Shares unless,
prior thereto, the holders of Series A Shares shall have received $100.00 per
share, plus an amount equal to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such payment (the "Series A
Liquidation Preference"). Following the payment of the full amount of the Series
A Liquidation Preference, no additional distributions shall be made to the
holders Series A Shares unless, prior thereto, the holders of shares of Common
Stock shall have received an amount per share (the "Common Adjustment") equal to
the quotient obtained by dividing (i) the Series A Liquidation Preference by
(ii) 100 (as appropriately adjusted as set forth in paragraph (3) of this
Section c to reflect such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock) (such number in clause (ii),
the "Adjustment Number"). Following the payment of the full amount of Series A
Liquidation Preference and the Common Adjustment in respect of all outstanding
Series A Shares and Common Stock, respectively, holders of Series A Shares
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and holders of shares of Common Stock shall receive their ratable and
proportionate share of the remaining assets to be distributed in the ratio of
the Adjustment Number to one with respect to the Series A Shares and Common
Stock, on a per share basis, respectively.
(2) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference and
the liquidation preferences of all other series of preferred stock, if any,
which rank on a parity with the Series A Shares, then all such available assets
shall be distributed ratably to the holders of the Series A Shares and the
holders of such parity shares in proportion to their respective liquidation
preferences. In the event, however, that there are not sufficient assets
available to permit payment in full of the Common Adjustment, then any such
remaining assets shall be distributed ratably to the holders of Common Stock.
(3) In the event the Corporation shall at any time after October 31,
1992 (i) declare any dividend on Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such
case the Adjustment Number in effect immediately prior to such
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event shall be adjusted by multiplying such Adjustment Number by a fraction,
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
Section d. SINKING FUND. The Preferred Shares shall not be entitled to
the benefit of any sinking fund for the redemption or purchase of such shares.
Section e. CONVERSION.
(1) Except pursuant to paragraph (2) of this Section e, the Preferred
Shares shall not be convertible.
(2) In case the Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other
property, then in any such case the Series A Shares shall at the same time be
similarly exchanged or changed in an amount per share (subject to the provision
for adjustment hereinafter set forth) equal to 100 times the aggregate amount
of stock, securities, cash and/or any other property (payable in kind), as the
case may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the
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Corporation shall at any time declare or pay any dividend on Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise) into a greater or lesser number of shares of Common Stock, then in
each such case the amount set forth in the preceding sentence with respect to
the exchange or change of Series A Shares shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event, and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
Section f. Voting Rights.
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(1) The holders of Series A Shares shall have no voting rights except as
provided by Delaware statutes or by paragraph (2) of this Section f.
(2) So long as any Series A Shares shall be outstanding, and in addition to
any other approvals or consents required by law, without the consent of the
holders of 66-2/3% of the Series A Shares outstanding as of a record date fixed
by the Board of Directors, given either by their affirmative vote at a special
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meeting called for that purpose, or, if permitted by law, in writing without a
meeting:
(i) The Corporation shall not sell, transfer or lease all or
substantially all the properties and assets of the Corporation; PROVIDED,
HOWEVER, that nothing herein shall require the consent of the holders of
Series A Shares for or in respect of the creation of any mortgage, pledge,
or other lien upon all or any part of the assets of the Corporation.
(ii) The Corporation shall not effect a merger or consolidation with
any other corporation or corporations unless as a result of such merger or
consolidation and after giving effect thereto holders of Series A Shares
are entitled to receive a per share amount and type of consideration equal
to 100 times the per share amount and type of consideration received by
holders of shares of Common Stock, or (1) either (A) the Corporation shall
be the surviving corporation or (B) if the Corporation is not the surviving
corporation, the successor corporation shall be a corporation duly
organized and existing under the laws of any state of the United States of
America or the District of Columbia, and all obligations or the Corporation
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with respect to the Series A Shares shall be assumed by such successor
corporation, (2) the Series A Shares then outstanding shall continue to be
outstanding, and (3) there shall be no alteration or change in the
designation or the preferences, relative rights or limitations applicable
to outstanding Series A Shares prejudicial to the holders thereof.
(iii) The Corporation shall not amend, alter or repeal any of the
provisions of its Certificate of Incorporation in any manner which
adversely affects the relative rights, preferences or limitations of the
Series A Shares or the holders thereof.
Section g. Certain Restrictions.
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(1) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Shares as provided in Section a are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on Series A Shares outstanding shall have been paid in full,
the Corporation shall not:
(i) declare or pay dividends on, make any other distributions on, or
redeem or purchase or otherwise acquire for consideration any shares of
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stock ranking junior (as to dividends) to the Series A Shares;
(ii) declare or pay dividends on or make any other distributions on
any shares of stock ranking on a parity (as to dividends) with the Series A
Shares, except dividends paid ratably on the Series A Shares and all such
parity stock on which dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares
of any stock ranking junior (as to dividends) to the Series A Shares, PROVIDED
that the Corporation may at any time redeem, purchase or otherwise acquire
shares of any such junior stock in exchange for shares of any stock of the
Corporation, ranking junior (as to dividends) to the Series A Shares; and
(iv) purchase or otherwise acquire for consideration any Series A
Shares, or any shares of stock ranking on a parity (as to dividends) with the
Series A Shares, except in accordance with a purchase offer made in writing or
by publication (as determined by the Board of Directors) to all holders of such
shares upon such terms as the
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Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective series or
classes.
(2) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of
the Corporation unless the Corporation could, under paragraph (1) of this
Section g, purchase or otherwise acquire such shares at such time and in
such manner.
Section h. FRACTIONAL SHARES. The Corporation may issue fractions and
certificates representing fractions of Series A Shares in integral multiples of
1/100th of a Series A Share, or in lieu thereof, at the election of the Board
of Directors of the Corporation at the time of the first issue of any Series A
Shares, evidence such fractions by depositary receipts, pursuant to an
appropriate agreement between the Corporation and a depositary selected by it,
provided that such agreement shall provide that the holders of such depositary
receipts shall have all rights, privileges and pre-ferences to which they would
be entitled as beneficial owners of Series A Shares. In the event that
fractional Series A Shares are issued, the holders thereof
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shall have all the rights provided herein for holders of full Series A Shares
in the proportion which such fraction bears to full share.
IN TESTIMONY WHEREOF, Syratech Corporation has caused this Statement to
be signed under its corporate seal by its Chairman, President and Chief
Executive Officer and its Secretary as of the 26th day of October, 1992.
SYRATECH CORPORATION
By: /s/ Leonard Florence
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Leonard Florence
Chairman, President and
Chief Executive Officer
ATTEST:
/s/ Faye A. Florence
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Faye A. Florence
Secretary