RESTATED CERTIFICATE OF INCORPORATION
OF
ALLTRISTA REINCORPORATION MERGERSUB, INC.
ALLTRISTA REINCORPORATION MERGERSUB, INC., a corporation
organized and existing under the laws of the State of Delaware, hereby certifies
as follows:
1. The name of the corporation is Alltrista Reincorporation
MergerSub, Inc. Alltrista Reincorporation MergerSub, Inc. was originally
incorporated under the same name and the original Certificate of Incorporation
of the corporation was filed with the Secretary of State of the State of
Delaware on December 11, 2001.
2. Pursuant to Section 242 and 245 of the General Corporation
Law of the State Delaware (the GCL"), this Restated Certificate of Incorporation
restates, integrates and amends the provisions of the Certificate of
Incorporation of this corporation.
3. The text of the Certificate of Incorporation of the
corporation is hereby restated and amended to read in its entirety as follows:
ARTICLE I. NAME OF CORPORATION
The name of the corporation is Alltrista Corporation
(hereinafter, the "Corporation").
ARTICLE II. REGISTERED OFFICE REGISTERED AGENT
The address of the registered office of the Corporation in the
State of Delaware is 2711 Centerville Road, Suite 400, in the City of
Wilmington, County of New Castle, Delaware 19808. The name of its registered
agent at that address is Corporation Service Company.
ARTICLE III. PURPOSE; TERM OF EXISTENCE
The purpose of the Corporation is to engage in any lawful act
or activity for which a corporation may be organized under the General
Corporation Law of the State of Delaware as set forth in Title 8 of the GCL.
The period during which the Corporation shall continue is
perpetual.
ARTICLE IV. CAPITAL STOCK
SECTION A. NUMBER OF SHARES OF CAPITAL STOCK AND DESIGNATION
OF CLASSES.
(1) The amount of total authorized capital stock of this
Corporation shall be 55,000,000 shares, divided as follows: (i) 50,000,000
shares of Common Stock, par value $.01,
(the "Common Stock"), and (ii) 5,000,000 shares of Preferred Stock, par value
$.01, of which 250,000 shall be designated as "Series A Junior Participating
Preferred Stock".
(2) The Preferred Stock may be issued from time to time as
herein provided in one or more series. The Board of Directors shall have the
authority to determine and state the designations and the relative rights
(including, if any, conversion rights, participation rights, voting rights,
dividend rights, and stated, redemption and liquidation values), ranking
preferences, limitations and restrictions of each such series by the adoption of
resolutions prior to the issuance of each such series authorizing the issuance
of such series. All shares of Preferred Stock of the same series shall be
identical with each other in all respects.
(3) Two hundred fifty thousand (250,000) shares of Preferred
Stock shall be designated as "Series A Junior Participating Preferred Stock" and
shall have the preferences, limitations, and relative voting and other rights as
follows:
(A) Dividends and Distributions.
(1) Subject to the prior and superior rights of the
holders of any shares of any series of Preferred Stock ranking
prior and superior to the shares of Series A Junior
Participating Preferred Stock with respect to dividends, the
holders of shares of Series A Junior Participating Preferred
Stock shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash on the last
day of March, June, September and December 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 share or fraction
of a share of Series A Junior Participating Preferred Stock,
in an amount per share (rounded to the nearest cent) equal to
the greater of (a) $5.00 or (b) subject to the provision 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 noncash
dividends or other distributions other than a dividend 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 share or fraction of a share of Series A Junior
Participating Preferred Stock. In the event the Corporation
shall at any time after the date rights are issued pursuant to
the Rights Agreement, dated as of March 23, 1993, as amended
and restated as of May 7, 1999 and as further amended as of
July 19, 2001, between the Corporation and EquiServe Trust
Company, N.A. a national banking association, as successor in
interest to The First Chicago Trust Company of New York (the
"Rights Declaration Date") (a) declare any dividend on Common
Stock payable in shares of Common Stock, (b) subdivide the
outstanding Common Stock, or (c) combine the outstanding
Common Stock into a smaller number of shares, then in each
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such case the amount to which holders of shares of Series A
Junior Participating Preferred Stock were entitled immediately
prior to such event under clause (b) of the preceding sentence
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.
(2) The Corporation shall declare a dividend or
distribution on the Series A Junior Participating Preferred
Stock as provided in paragraph (1) above immediately after it
declares a dividend or distribution on the Common Stock (other
than a dividend 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 $5.00 per share
on the Series A Junior Participating Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.
(3) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Junior Participating Preferred
Stock from the Quarterly Dividend Payment Date next preceding
the date of issue of such shares of Series A Junior
Participating Preferred Stock, 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 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 shares of Series A Junior
Participating Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in
either of which event 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 shares of Series A Junior Participating
Preferred Stock 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 shares of Series A Junior Participating Preferred
Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be no
more than 30 days prior to the date fixed for the payment
thereof.
(B) Voting Rights. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting rights:
(1) Subject to the provision for adjustment hereinafter
set forth, each share of Series A Junior Participating
Preferred Stock shall entitle the
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holder thereof to 100 votes on all matters submitted to a vote
of the shareholders of the Corporation. In the event the
Corporation shall at any time after the Rights Declaration
Date (a) declare any dividend on Common Stock payable in
shares of Common Stock, (b) subdivide the outstanding Common
Stock, or (c) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the number of
votes per share to which holders of shares of Series A Junior
Participating Preferred Stock were entitled immediately prior
to such event shall be adjusted by multiplying such 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.
(2) Except as otherwise provided herein or by law, the
holders of shares of Series A Junior Participating Preferred
Stock and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of
shareholders of the Corporation.
(3) (a) If at any time dividends on any Series A Junior
Participating Preferred Stock shall be in arrears in an amount
equal to six (6) quarterly dividends thereon, the occurrence
of such contingency shall mark the beginning of a period
(herein called a "default period") which shall extend until
such time when all accrued and unpaid dividends for all
previous quarterly dividend periods and for the current
quarterly period on all shares of Series A Junior
Participating Preferred Stock then outstanding shall have been
declared and paid or set apart for payment. During each
default period, all holders of Preferred Stock (including
holders of the Series A Junior Participating Preferred Stock)
with dividends in arrears in an amount equal to six (6)
quarterly dividends thereon, voting as a class, irrespective
of series, shall have the right to elect two (2) directors.
(b) During any default period, such voting right of
the holders of Series A Junior Participating Preferred
Stock may be exercised initially at a special meeting
called pursuant to subparagraph (3)(c) of this Section (B)
or at any annual meeting of shareholders, and thereafter
at annual meetings of shareholders, provided that neither
such voting right nor the right of the holders of any
other series of Preferred Stock, if any, to increase, in
certain cases, the authorized number of directors shall be
exercised unless the holders of ten percent (10%) in
number of shares of Preferred Stock outstanding shall be
present in person or by proxy. The absence of a quorum of
the holders of Common Stock shall not affect the exercise
by the holders of Preferred Stock of such voting right. At
any meeting at which the holders of Preferred Stock shall
exercise such voting right initially during an existing
default
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period, they shall have the right, voting as a class, to
elect directors to fill such vacancies, if any, in the
Board of Directors as may then exist up to two (2)
directors or, if such right is exercised at an annual
meeting, to elect two (2) directors. If the number which
may be so elected at any special meeting does not amount
to the required number, the holders of the Preferred Stock
shall have the right to make such increase in the number
of directors as shall be necessary to permit the election
by them of the required number. After the holders of the
Preferred Stock shall have exercised their right to elect
directors in any default period and during the continuance
of such period, the number of directors shall not be
increased or decreased except by vote of the holders of
Preferred Stock as herein provided or pursuant to the
rights of any equity securities ranking senior to or pari
passu with the Series A Junior Participating Preferred
Stock.
(c) Unless the holders of Preferred Stock shall,
during an existing default period, have previously
exercised their right to elect directors, the Board of
Directors may order, or any shareholder or shareholders
owning in the aggregate not less than ten percent (10%) of
the total number of shares of Preferred Stock outstanding,
irrespective of series, may request, the calling of a
special meeting of the holders of Preferred Stock, which
meeting shall thereupon be called by the President, a Vice
President or the Corporate Secretary of the Corporation.
Notice of such meeting and of any annual meeting at which
holders of Preferred Stock are entitled to vote pursuant
to this subparagraph (3)(c) shall be given to each holder
of record of Preferred Stock by mailing a copy of such
notice to him at his last address as the same appears on
the books of the Corporation. Such meeting shall be called
for a time not earlier than 20 days and not later than 60
days after such order or request or in default of the
calling of such meeting within 60 days after such order or
request, such meeting may be called on similar notice by
any shareholder or shareholders owning in the aggregate
not less than ten percent (10%) of the total number of
shares of Preferred Stock outstanding. Notwithstanding the
provisions of this subparagraph (3)(c), no such special
meeting shall be called during the period within 60 days
immediately preceding the date fixed for the next annual
meeting of shareholders.
(d) In any default period, the holders of Common
Stock, and other classes of stock of the Corporation if
applicable, shall continue to be entitled to elect the
whole number of directors until the holders of Preferred
Stock shall have exercised their right to elect two (2)
directors voting as a class, after the exercise of which
right (x) the directors so elected by the holders of
Preferred Stock
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shall continue in office until their successors shall have
been elected by such holders or until the expiration of
the default period, and (y) any vacancy in the Board of
Directors may, except as provided in subparagraph (3)(b)
of this Section (B), be filled by vote of a majority of
the remaining directors theretofore elected by the holders
of the class of stock which elected the director whose
office shall have become vacant. References in this
paragraph (3) to directors elected by the holders of a
particular class of stock shall include directors elected
by such directors to fill vacancies as provided in clause
(y) of the foregoing sentence.
(e) Immediately upon the expiration of a default
period, (x) the right of the holders of Preferred Stock as
a class to elect directors shall cease, (y) the term of
any directors elected by the holders of Preferred Stock as
a class shall terminate, and (z) the number of directors
shall be such number as may be provided for in these
Amended Articles or the Bylaws irrespective of any
increase made pursuant to the provisions of subparagraph
(3)(b) of this Section (B) (such number being subject,
however, to change thereafter in any manner provided by
law or in these Amended Articles or the Bylaws). Any
vacancies in the Board of Directors effected by the
provisions of clauses (y) and (z) in the preceding
sentence may be filled by a majority of the remaining
directors.
(4) Except as set forth herein, holders of Series A Junior
Participating Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the
extent they are entitled to vote with holders of Common Stock
as set forth herein) for taking any corporate action.
(C) Certain Restrictions.
(1) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating
Preferred Stock as provided in Section (A) are in arrears,
thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A
Junior Participating Preferred Stock outstanding shall have
been paid in full, the Corporation shall not:
(a) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise
acquire for consideration any shares of stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior
Participating Preferred Stock;
(b) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity
(either as to
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dividends or upon liquidation, dissolution or winding up)
with the Series A Junior Participating Preferred Stock,
except dividends paid ratably on the Series A Junior
Participating Preferred Stock 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;
(c) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity
(either as to dividends or upon liquidation, dissolution
or winding up) with the Series A Junior Participating
Preferred Stock, provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any stock of
the Corporation ranking junior (either as to dividends or
upon dissolution, liquidation or winding up) to the Series
A Junior Participating Preferred Stock;
(d) purchase or otherwise acquire for consideration
any shares of Series A Junior Participating Preferred
Stock, or any shares of stock ranking on a parity with the
Series A Junior Participating Preferred Stock, 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 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 of 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 (C), purchase or
otherwise acquire such shares at such time and in such manner.
(D) Reacquired Shares. Any shares of Series A Junior
Participating Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and cancelled
promptly after the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued shares of Preferred
Stock and may be reissued as part of a new series of Preferred Stock to
be created by resolution or resolutions of the Board of Directors,
subject to the conditions and restrictions on issuance set forth
herein.
(E) Liquidation, Dissolution or Winding Up.
(1) Upon any liquidation (voluntary or otherwise),
dissolution or winding up of the Corporation, no distribution
shall be made to the
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holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to
the Series A Junior Participating Preferred Stock unless,
prior thereto, the holders of shares of Series A Junior
Participating Preferred Stock shall have received $100 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 of shares of Series A Junior Participating
Preferred Stock 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 (a) the Series A Liquidation Preference by (b) 100
(as appropriately adjusted as set forth in subparagraph (3)
below to reflect such events as stock splits, stock dividends
and recapitalizations with respect to the Common Stock) (such
number in clause (c), the "Adjustment Number"). Following the
payment of the full amount of the Series A Liquidation
Preference and Common Adjustment in respect of all outstanding
shares of Series A Junior Participating Preferred Stock and
Common Stock, respectively, holders of Series A Junior
Participating Preferred Stock 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 1 with respect to such Preferred Stock
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 Junior Participating Preferred Stock,
then such remaining assets shall be distributed ratably to 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 such remaining
assets shall be distributed ratably to the holders of Common
Stock.
(3) In the event the Corporation shall at any time after
the Rights Declaration Date (a) declare any dividend on Common
Stock payable in shares of Common Stock, (b) subdivide the
outstanding Common Stock, or (c) 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 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.
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(F) Consolidation Merger, etc. 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 shares of Series A Junior Participating Preferred Stock
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 Corporation shall at any time after the
Rights Declaration Date (a) declare any dividend on Common Stock
payable in shares of Common Stock, (b) subdivide the outstanding Common
Stock, or (c) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of
Series A Junior Participating Preferred Stock 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.
(G) Redemption. The shares of Series A Junior Participating
Preferred Stock shall be redeemable at a price equal to the product of
(a) the current market price of the Common Stock and (b) the Adjustment
Number.
(H) Ranking. The Series A Junior Participating Stock shall
rank junior to all other series of the Corporation's Preferred Stock as
to the payment of dividends and the distribution of assets, unless the
terms of any such series shall provide otherwise.
(I) Amendment. These Amended Articles shall not be amended in
any manner which would materially alter or change the powers,
preferences or special rights of the Series A Junior Participating
Preferred Stock so as to affect them adversely without the affirmative
vote of the holders of a majority or more of the outstanding shares of
Series A Junior Participating Preferred Stock, voting separately as a
class.
(J) Fractional Shares. Series A Junior Participating Preferred
Stock may be issued in fractions of a share which shall entitle the
holder, in proportion to such holder's fractional shares, to exercise
voting rights, receive dividends, participate in distributions and to
have the benefit of all other rights of holders of Series A Junior
Participating Preferred Stock.
SECTION B. ISSUE AND CONSIDERATION FOR CAPITAL STOCK
(1) The Board of Directors shall have the authority to authorize and
direct the issuance by the Corporation of shares of Common Stock and Preferred
Stock at such times, in such amounts, to such persons, for such consideration,
and upon such terms and conditions as it may determine, subject to the
restrictions, limitations, conditions and requirements imposed by the provisions
of this Restated Certificate of Incorporation, by the provisions of the
resolutions
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authorizing the issuance of any series of shares of Preferred Stock adopted by
the Board of Directors, or by the provisions of the GCL.
(2) When payment of the consideration for which any share or shares of
stock so authorized to be issued shall have been received by the Corporation,
such share or shares of stock so authorized to be issued shall have been
received by the Corporation, such share or shares shall be declared and be taken
to be fully paid and not liable to any further call or assessment, and the
holder or holders thereof shall not be liable for any further payments thereon.
SECTION C. NO PREEMPTIVE RIGHTS
The shareholders have no preemptive rights to subscribe to or purchase
any additional issues of shares of capital stock of the Corporation purchased or
acquired by the Corporation and not canceled but held as treasury stock.
SECTION D. AMENDMENT
Notwithstanding anything contained in this Restated Certificate of
Incorporation to the contrary, the affirmative vote of at least three-fourths of
the combined voting power of the outstanding shares entitled to vote generally
in the election of directors, voting together as a single class, shall be
required to alter amend or adopt any provision inconsistent with the first
sentence of Section A, paragraph 2, of this Article IV.
ARTICLE V. VOTING
SECTION A. COMMON STOCK
Each owner of record (as of the record date fixed by the By Laws or the
Board of Directors for any such determination of shareholders) of shares of
Common Stock shall have one (1) vote per share of Common Stock standing in his,
her or its name on the books of the Corporation with respect to each matter to
be voted on, including the election of directors and on matters referred to
shareholders.
SECTION B. PREFERRED STOCK
Subject to the requirements of the GCL or applicable regulations of any
exchange on which the Corporation's capital stock may be listed, holders of
Preferred Stock shall have such voting rights as may be determined and
designated by the Board of Directors in accordance with Article IV hereof.
SECTION C. NO CUMULATIVE VOTING
No holders of shares of Common Stock shall have any right to cumulative
voting.
ARTICLE VI. DIRECTORS
SECTION A. NUMBER AND TERM
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The maximum number of directors shall be nine and the minimum number
shall be two. The exact number may from time to time be specified by the Bylaws
of the Corporation at not less than two nor more than nine. If the number of
directors is not specified by the Bylaws, the number shall be six. Subject to
the rights, if any, of the holders of shares of any class or series of Preferred
Stock then outstanding to elect directors under specified circumstances as may
be required by the GCL or applicable regulations of any exchange on which the
Corporation's capital stock may be listed, the directors shall be classified,
with respect to the time for which they severally hold office, into three (3)
classes, as nearly equal in number as possible, as shall be specified by the
Bylaws, one (1) class to be originally elected for a term expiring at the Annual
Meeting of Shareholders to be held in 2002, another class to be originally
elected for a term expiring at the Annual Meeting of Shareholders to be held in
2003, and another class to be originally elected for a term expiring at the
Annual Meeting of Shareholders to be held in 2004, with each director to hold
office until his successor is elected and qualified. At each Annual Meeting of
Shareholders of the Corporation, the successor of each director whose term
expires at that Annual Meeting shall be elected to hold office for a term
expiring at the Annual Meeting of Shareholders held in the third year following
the year of his election, or until his successor is elected and qualified.
SECTION B. QUALIFICATIONS
Directors need not be shareholders of the Corporation. A majority of
the directors at any time shall be citizens of the United States.
SECTION C. VACANCIES
Subject to the rights, if any, of the holders of shares of any class or
series of Preferred Stock then outstanding to elect directors under specified
circumstances as may be required by the GCL or applicable regulations of any
exchange on which the Corporation's capital stock may be listed, 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 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 director's
successor shall have been elected and qualified. No decrease in the number of
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
SECTION D. REMOVAL
Subject to the rights, if any, of the holders of any class or series of
Preferred Stock then outstanding to elect directors under specified
circumstances as may be required by the GCL or applicable regulations of any
exchange on which the Corporation's capital stock may be listed, any director
may be removed from office, but only for cause and only by the affirmative vote
of the holders of at least three-fourths of the combined voting power of the
outstanding shares of stock entitled to vote generally in the election of
directors, voting together as a single class.
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SECTION E. AMENDMENT
Notwithstanding anything contained in this Restated Certificate to the
contrary, the affirmative vote of the holders of at least three-fourths of the
combined voting power of the outstanding shares of stock entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to alter, amend or adopt any provision inconsistent with or to
repeal this Article VI.
SECTION F. BYLAWS.
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter, amend,
change, add to or repeal the Bylaws of the Corporation.
SECTION G. EXCULPATION OF LIABILITY.
No director shall be personally liable to the Corporation or any of its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (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)
pursuant to Section 174 of the GCL, or (iv) for any transaction from which the
director derived an improper personal benefit. Any repeal or modification of
this Article VI by the stockholders of the Corporation shall not adversely
affect any right or protection of a director of the Corporation existing at the
time of such repeal or modification with respect to acts or omissions occurring
prior to such repeal or modification.
ARTICLE VII. PROVISIONS FOR REGULATIONS OF BUSINESS AND CONDUCT OF AFFAIRS OF
THE CORPORATION
SECTION A. MEETINGS
Meetings of the stockholders and the directors of this Corporation may
be held either within or without the State of Delaware, and at such place as the
Bylaws shall provide or, in default of such provisions, at such place as the
Board of Directors shall designate.
SECTION B. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Indemnification of directors, officers and employees shall be as
follows:
(1) The Corporation shall indemnify each person who is or was a
director, officer or employee of the Corporation, or of any other corporation,
partnership, joint venture, trust or other enterprise which he is serving or
served in any capacity at the request of the Corporation, against any and all
liability and reasonable expense that may be incurred by him in connection with
or resulting from any claim, actions, suit or proceeding (whether actual or
threatened, brought by or in the right of the corporation of such other
corporation, partnership, joint venture, trust or other enterprise, or
otherwise, civil, criminal, administrative, investigative, or in connection with
an appeal relating thereto), in which he may become involved, as a party or
otherwise, by reason of his being or having been a director, officer or employee
of the
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Corporation or of such other corporation, partnership, joint venture, trust or
other enterprise or by reason of any past or future action taken or not taken in
his capacity as such director, officer or employee, whether or not he continues
to be such at the time such liability or expense is incurred, provided that a
determination is made by the Corporation in accordance with Delaware law that
such person acted in good faith and in a manner he reasonably believed to be in
the best interests of the Corporation or at least not opposed to the best
interests of such other corporation, partnership, joint venture, trust or other
enterprise, as the case may be, and, in addition, in any criminal action or
proceedings, had reasonable cause to believe his conduct was lawful or no
reasonable cause to believe that his conduct was unlawful. The termination of a
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent is not, of itself, determinative that the person
did not meet the standard of conduct described in the previous sentence.
Notwithstanding the foregoing, there shall be no indemnification (a) as to
amounts paid or payable to the Corporation or such other corporation,
partnership, joint venture, trust or other enterprise, as the case may be, for
or based upon the director, officer or employee having gained in fact any
personal profit or advantage to which he was not legally entitled; (b) as to
amounts paid or payable to the Corporation for an accounting of profits in fact
made from the purchase or sale of securities of the corporation within the
meaning of Section 16(b) of the Securities Exchange Act of 1934 and amendments
thereto or similar provisions of any state statutory law; or (c) with respect to
matters as to which indemnification would be in contravention of the laws of the
State of Delaware or of the United States of America whether as a matter of
public policy or pursuant to statutory provisions.
(2) Any such director, officer or employee who has been wholly
successful, on the merits or otherwise, with respect to any claim, action, suit
or proceeding of the character described herein shall be entitled to
indemnification as of right, except to the extent he has otherwise been
indemnified. Except as provided in the preceding sentence, any indemnification
hereunder shall be granted by the Corporation, but only if (a) the Board of
Directors, acting by a quorum consisting of directors who are not partners to or
who have been wholly successful with respect to such claim, action, suit or
proceeding, shall find that the director, officer or employee has met the
applicable standards of conduct set forth in paragraph 1 of this Section B of
Article VII; or (b) outside legal counsel engaged by the Corporation (who may be
regular counsel of the Corporation) shall deliver to the corporation its written
opinion that such director, officer or employee has met such applicable
standards of conduct; or (c) a court of competent jurisdiction has determined
that such director, officer or employee has met such standards, in an action
brought either by the Corporation, or by the director, officer or employee
seeking indemnification, applying de novo such applicable standards of conduct.
The termination of any claim, action, suit or proceeding, civil or criminal, by
judgment, settlement (whether with or without court approval) or conviction or
upon a plea of guilty or of nolo contendere, or its equivalent, shall not create
a presumption that a director, officer or employee did not meet the applicable
standards of conduct set forth in paragraph 1 of this Section B of Article VII.
(3) As used in this Section B of Article VII, the term "liability"
shall mean amounts paid in settlement or in satisfaction of judgments of fines
or penalties, and the term "expense" shall include, but not be limited to,
attorneys' fees and disbursements, incurred in connection with the claim,
action, suit or proceeding. The Corporation may advance expenses to, or where
appropriate may at its option and expense undertake the defense of, any such
director, officer or employee upon receipt of an undertaking by or on behalf of
such person to
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repay such expenses if it should ultimately be determined that the person is not
entitled to indemnification under this Section B of Article VII.
(4) The provisions of this Section B of Article VII shall be applicable
to claims, actions, suits or proceedings made or commenced after the adoption
hereof, whether arising from acts or omissions to act occurring before or after
the adoption hereof. If several claims, issues or matters of action are
involved, any such director, officer or employee may be entitled to
indemnification as to some matters even though he is not so entitled as to
others. The rights of indemnification provided hereunder shall be in addition to
any rights to which any director, officer or employee concerned may otherwise be
entitled by contract or as a matter of law, and shall inure to the benefit of
the heirs, executors and administrators of any such director, officer or
employee. Any repeal or modification of the provisions of this Section B of
Article VII by the stockholders of the Corporation shall not adversely affect
any rights to indemnification and advancement of expenses existing pursuant to
this Section B of Article VII with respect to any acts or omissions occurring
prior to such repeal or modification.
ARTICLE VIII. FAIR PRICE, FORM OF CONSIDERATION AND PROCEDURAL SAFEGUARDS FOR
CERTAIN RELATED PARTY BUSINESS COMBINATIONS
SECTION A. HIGHER VOTE REQUIRED FOR CERTAIN RELATED PARTY BUSINESS
COMBINATIONS
(1) In addition to any affirmative vote required by law or under these
Amended Articles, and except as otherwise expressly provided in Section B of
this Article VIII, any Related Party Business Combination (as hereinafter
defined) shall require the affirmative vote of the holders of at least
three-fourths of the Voting Stock (as hereinafter defined), voting together as a
single class. For purposes of this Article VIII, each share of Voting Stock
shall have the number of votes granted to it pursuant to this Restated
Certificate of Incorporation.
(2) Such affirmative votes shall be required notwithstanding the fact
that no vote may be required, or that a lesser percentage or separate class vote
may be specified, by law or in any agreement with any national securities
exchange or otherwise.
SECTION B. WHEN HIGHER VOTE NOT REQUIRED
The provisions of Section A of this Article VIII shall not be
applicable to any particular Related Party Business Combination, and such
Related Party Business Combination shall require only such affirmative vote as
is required by law or any other provision of this Restated Certificate of
Incorporation or the Bylaws of the Corporation, or any agreement with any
national securities exchange, if all of the conditions specified in either of
the following subparagraphs 1 or 2 are met:
(1) Approval of Disinterested Directors. The Related Party Business
Combination shall have been expressly approved by a majority (whether such
approval is made prior to or subsequent to the acquisition of beneficial
ownership of the Voting Stock that caused the Related Party, as hereinafter
defined, to become a Related Party) of the Disinterested Directors (as
hereinafter defined); or
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(2) Fair Price, Form of Consideration and Procedural Requirements. All
of the following conditions shall have been met:
(A) The aggregate amount of the cash and the Fair Market Value
(as hereinafter defined) as of the date of the consummation of the
Related Party Business Combination (the "Consummation Date") of
consideration other than cash to be received per share by holders of
shares of any class or series of Capital Stock (as hereinafter defined)
in such Related Party Business Combination shall be at least equal to
the highest of the following (it being intended that the requirements
of this subparagraph (2). (A) shall be required to be met with respect
to every class or series of outstanding Capital Stock, whether or not
the Related Party has previously acquired beneficial ownership of any
shares of a particular class or series of Capital Stock):
(1) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by or on behalf of the Related Party for
any shares of such class or series of Capital Stock acquired
by or on behalf of the Related Party (a) within the two-year
period immediately prior to the first public announcement of
the proposal of the Related Party Business Combination (the
"Announcement Date") or (b) in the transaction in which it
became a Related Party, whichever is higher;
(2) the Fair Market Value per share of such class or
series of Capital Stock on the Announcement Date or on the
date on which the Related Party became a Related Party (the
"Determination Date"), whichever is higher;
(3) (if applicable) the price per share equal to the Fair
Market Value per share of such class or series of Capital
Stock determined pursuant to the immediately preceding clause
(2), multiplied by the ratio calculated by dividing (a) the
highest per share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid by or on
behalf of the Related Party for any share of such class or
series of Capital Stock in connection with the acquisition by
the Related Party of beneficial ownership of shares of such
class or series of Capital Stock within the two-year period
immediately prior to the Announcement Date by (b) the Fair
Market Value per share of such class or series of Capital
Stock on the first day in such two-year period on which
Related Party acquired beneficial ownership of any share of
such class or series of Capital Stock;
(4) in the case of Common Stock, the Corporation's net
income per share of Common Stock for the four full consecutive
fiscal quarters immediately preceding the Announcement Date,
multiplied by the higher of the then price/earnings multiple
(if any) of such Related Party or the highest price/earnings
multiple of the Corporation within the two-year period
immediately preceding the Announcement Date (such
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price/earnings multiples being determined as customarily
computed and reported in the financial community); or
(5) in the case of any class or series of Capital Stock
other than Common Stock, the highest preferential amount per
share to which the holders of shares of such class or series
of Capital Stock are entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation.
All per share prices shall be adjusted for any intervening stock
splits, stock dividends and reverse stock splits.
(B) The consideration to be received by holders of a
particular class or series of Capital Stock shall be in cash or in the
same form as the Related Party has previously paid for shares of such
particular stock. If the Related Party has paid for shares of any class
or series of Capital Stock with varying forms of consideration, the
form of consideration for such particular stock shall be either cash or
the form used to acquire the largest number of shares of such
particular stock previously acquired by it.
(C) After such Related Party has become a Related Party and
prior to the Consummation Date:
(1) there shall have been (a) no reduction in the annual
rate of dividends paid on the Common Stock (except as
necessary to reflect any subdivision of Common Stock), except
as approved by a majority of the Disinterested Directors, and
(b) an increase in such annual rate of dividends as necessary
to reflect any reclassification (including any reverse stock
split), recapitalization, reorganization or any similar
transaction which has the effect of reducing the number of
outstanding shares of the Common Stock, unless the failure so
to increase such annual rate is approved by a majority of the
Disinterested Directors;
(2) there shall have been no failure to declare and pay at
the regular date therefor any full quarterly dividends
(whether or not cumulative) payable in accordance with the
terms of any other outstanding class or series of Capital
Stock, except as approved by a majority of the Disinterested
Directors; and
(3) such Related Party shall have not become the
beneficial owner of any additional shares of Capital Stock,
except as part of the transaction which results in such
Related Party becoming a Related Party.
(D) After such Related Party has become a Related Party, such
Related Party shall not have received the benefit, directly or
indirectly (except proportionately as a stockholder), of any loans,
advances, guaranties, pledges or other financial assistance or any tax
credits or other tax advantages provided by the Corporation, whether in
anticipation of or in connection with such Related Party Business
Combination, or otherwise.
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(E) A proxy or information statement describing the proposed
Related Party Business Combination and complying with the requirements
of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (or any subsequent provisions replacing such
Act, rules or regulations) shall be mailed to public stockholders of
the Corporation at least 30 calendar days prior to the consummation of
such Related Party Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to such Act or
subsequent provisions). The proxy or information statement shall
contain on the first page thereof, in a prominent place, any statement
as to the advisability (or inadvisability) of the Related Party
Business Combination that the Disinterested Directors, or any of them,
may choose to make and, if deemed advisable by a majority of the
Disinterested Directors, the opinion of an investment banking firm
selected by a majority of the Disinterested Directors as to the
fairness (or not) of the terms of the Related Party Business
Combination from a financial point of view to the holders of the shares
of any class or series of Capital Stock other than the Related Party
and its Affiliates or Associates (as hereinafter defined), such
investment banking firm to be paid a reasonable fee for its services by
this Corporation.
(F) Such Related Party shall not have made any major change in
the Corporation's business or equity capital structure without the
approval of a majority of the Disinterested Directors.
SECTION C. DEFINITIONS FOR ARTICLE VIII
For the purposes of this Article VIII:
(1) The term "Related Party Business Combination" shall mean any
transaction referred to in one or more of the following:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (1) any Related Party or (2)
any other corporation (whether or not itself a Related Party) which is,
or after such merger or consolidation would be, an Affiliate or
Associate (as hereinafter defined) of any Related Party; or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to
or with any Related Party or any Affiliate or Associate of any Related
Party of any assets of the Corporation or any subsidiary having an
aggregate Fair Market Value of Ten Million Dollars ($10,000,000) or
more; or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of any
securities having an aggregate Fair Market Value of Ten Million Dollars
($10,000,000) or more of the Corporation or any subsidiary to any
Related Party or any Affiliate or Associate of any Related Party in
exchange for cash, securities or other property (or combination
thereof); or
(D) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation proposed by or on behalf of any
Related Party or any Affiliate or Associate of any Related Party; or
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(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
other transaction (whether or not with or into or otherwise involving a
Related Party or any Affiliate or Associate of any Related Party) which
has the effect, directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity or convertible
securities of the Corporation or any Subsidiary which is directly or
indirectly owned by any Related Party or any Affiliate or Associate of
any Related Party; or
(F) any agreement, contract or other arrangement providing for
any one or more of the actions specified in the foregoing clauses (A)
through (E).
(2) The term "Related Party" shall mean any person (other than the
Corporation or any Subsidiary, and other than any profit-sharing, employee stock
ownership or other employee benefit plan of the Corporation or any Subsidiary or
any trustee of or fiduciary with respect to any such plan when acting in such
capacity) who or which:
(A) is the beneficial owner (as hereinafter defined) of more
than 10 percent of the voting power of the outstanding Voting Stock; or
(B) is an Affiliate or Associate of the Corporation and at any
time within the two-year period immediately prior to the date in
question was the beneficial owner, directly or indirectly, of 10
percent or more of the voting power of the then outstanding Voting
Stock; or
(C) is an assignee of or has otherwise succeeded to any shares
of Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any
Related Party, if such assignment or succession shall have occurred in
the course of a transaction or series of transactions not involving a
public offering within the meaning of the Securities Act of 1933, as
amended.
For purposes of determining whether a person is a Related Party, the
number of shares of Voting Stock deemed to be outstanding shall include shares
deemed owned through application of Section C(4), hereof, but shall not include
any other shares of Voting Stock which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
(3) The term "person" shall mean any individual, firm, partnership,
trust, corporation or other entity and shall include any group comprised of any
person and any other person with whom such person or any Affiliate or Associate
of such person has any agreement, arrangement or understanding, directly or
indirectly, for the purpose of acquiring, holding, voting or disposing of Voting
Stock.
(4) A person shall be a "beneficial owner" of any Voting Stock:
(A) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
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(B) which such person or any of its Affiliates or Associates
has (1) the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any
agreement, arrangement, understanding or relationship or upon the
exercise of conversion rights, exchange rights, warrants or options, or
otherwise; or (2) the right to vote pursuant to any agreement,
arrangement, understanding or relationship; or (3) the right to invest,
including the power to dispose or to direct the disposition of,
pursuant to any agreement, arrangement, understanding or relationship;
or
(C) which is beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement, understanding or
relationship for the purpose of acquiring, holding, voting or disposing
of any shares of Voting Stock.
(5) The term "Affiliate," used to indicate a relationship with a
specified person, shall mean a person that directly, or indirectly through one
or more intermediaries, controls, or is controlled by, or is under common
control with, the person specified.
(6) The term "Associate," used to indicate a relationship with a
specified person, shall mean:
(A) any corporation or organization (other than the
Corporation or a Subsidiary) of which such person is an officer or
partner or is, directly or indirectly, the beneficial owner of 10
percent or more of any class of equity securities; or
(B) any trust or other estate in which such person has a
substantial beneficial interest or as to which such person serves as
trustee or in a similar fiduciary capacity; or
(C) any relative or spouse of such person, or any relative of
such spouse, who has the same home as such person; or
(D) any person who is a director or officer of such specified
person or any of its parents or subsidiaries (other than the
Corporation or a Subsidiary).
(7) The term "Subsidiary" shall mean any corporation of which a
majority of any class of equity security is owned, directly or indirectly, by
the Corporation; provided, however, that for the purposes of the definition of
Related Party set forth in Section C(2), hereof, the term "Subsidiary" shall
mean only a corporation of which a majority of each class of equity security is
owned, directly or indirectly, by the Corporation.
(8) The term "Disinterested Director" shall mean:
(A) any member of the Board of Directors of the Corporation
who is unaffiliated with the Related Party and was a member of the
Board of Directors prior to the time that the Related Party became a
Related Party; or
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(B) any successor of a Disinterested Director who is
unaffiliated with the Related Party and is recommended to succeed a
Disinterested Director by a majority of Disinterested Directors then on
the Board of Directors.
(9) The term "Fair Market Value" shall mean:
(A) in the case of stock, the highest closing sale price
during the 30-calendar-day period immediately preceding the date in
question of a share of such stock on the Composite Tape for New York
Stock Exchange-Listed Stocks, or, if such stock is not quoted on the
Composite Tape, on the New York Stock Exchange, Inc., or, if such stock
is not listed on such Exchange, on the principal United States
securities exchange registered under the Securities Exchange Act of
1934, as amended, on which such stock is listed or, if such stock is
not listed on any such exchange, the highest closing bid quotation with
respect to a share of such stock during the 30-calendar-day period
preceding the date in question on the National Association of
Securities Dealers, Inc., Automated Quotations System or any system
then in use, or if no such quotation is available, the Fair Market
Value on the date in question of a share of such stock as determined by
a majority of the Disinterested Directors in good faith; and
(B) in the case of property other than cash or stock, the Fair
Market Value of such property on the date in question as determined by
a majority of the Disinterested Directors in good faith.
(10) The term "Capital Stock" shall mean all Capital Stock of the
Corporation authorized to be issued from time to time under Article V of these
Amended Articles, and the term "Voting Stock" shall mean the then outstanding
shares of Capital Stock of the Corporation entitled to vote generally in the
election of directors.
(11) In the event of any Related Party Business Combination in which
the Corporation survives, the phrase "other consideration to be received" as
used in Sections B(2) (A) and B(2) (B) of this Article VIII shall include the
shares of Common Stock and/or the shares of any other class or series of Capital
Stock retained by the holders of such shares.
SECTION D. DETERMINATION BY THE DISINTERESTED DIRECTORS
A majority of the Disinterested Directors or, if there should be no
Disinterested Directors, a majority of the directors, shall have the power and
duty to determine for the purposes of this Article VIII, on the basis of
information known to them after reasonable inquiry:
(1) Whether a person is a Related Party;
(2) The number of shares of Voting Stock beneficially owned by any
person;
(3) Whether a person is an Affiliate or Associate of another;
(4) Whether the assets which are the subject of any Related Party
Business Combination have, or the consideration to be received for the issuance
or transfer of securities by
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the Corporation or any Subsidiary in any Related Party Business Combination has,
an aggregate Fair Market Value of Ten Million Dollars ($10,000,000) or more; and
(5) Such other matters with respect to which a determination is
required under this Article VIII.
A majority of the Disinterested Directors or, if there should be no
Disinterested Directors, a majority of the directors shall have the further
power to interpret all of the terms and provisions of this Article VIII.
SECTION E. EFFECT ON FIDUCIARY OBLIGATIONS
(1) Nothing contained in this Article VIII shall be construed to
relieve any Related Party from any fiduciary obligation imposed by law.
(2) The fact that any Related Party Business Combination complies with
the provisions of Section B. of this Article VIII shall not be construed to
impose any fiduciary duty, obligation or responsibility on the Board of
Directors, or any member thereof, to approve such Related Party Business
Combination or recommend its adoption or approval to the stockholders of the
Corporation, nor shall such compliance limit, prohibit or otherwise restrict in
any manner the Board of Directors, or any member thereof, with respect to
evaluations of or actions and responses taken with respect to such Related Party
Business Combination.
SECTION F. AMENDMENT
Notwithstanding any other provision of law, this Restated Certificate
of Incorporation or the Bylaws of the Corporation, and notwithstanding the fact
that a lesser vote may be specified by law, this Restated Certificate of
Incorporation or the Bylaws of the Corporation, and in addition to any
affirmative vote of holders of any class or series of Capital Stock of the
Corporation then outstanding which is required by law or by or pursuant to this
Restated Certificate of Incorporation, the affirmative vote of the holders of at
least three-fourths of the combined voting power of the shares of the
outstanding Voting Stock, voting together as a single class, shall be required
to amend or repeal, or adopt any provisions inconsistent with, this Article
VIII; provided, however, that this Section F. shall not apply to, and such
three-fourths vote shall not be required for, any amendment, repeal or adoption
unanimously recommended by the Board of Directors if all such directors are
persons who would be eligible to serve as Disinterested Directors within the
meaning of this Article VIII.
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IN WITNESS WHEREOF, Alltrista Corporation has caused this Restated
Certificate of Incorporation to be duly executed by its duly authorized officer
this 18th day of December 2001.
/s/ Ian G.H. Ashken
-----------------------
Ian G.H. Ashken
Secretary
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