STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 07:00 PM 11/03/1993
933075197 -2354937
CERTIFICATE OF RESTATED
CERTIFICATE OF INCORPORATION
OF
ARCADE HOLDING CORPORATION
Michael J. Kluger and Paul Huston, being the President and Secretary,
respectively, of Arcade Holding Corporation, a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "Company"), do hereby certify as follows:
FIRST: That the Company filed its original Certificate of Incorporation
with the Delaware Secretary of State on October 13, 1993 (the "Certificate").
SECOND: That the Company has not yet received any payment for any of its
stock.
THIRD: That in accordance with Sections 241 and 245 of the General
Corporation Law of the State of Delaware, the Board of Directors of the
Company, pursuant to the unanimous written consent of all of its members,
adopted resolutions authorizing the Company to amend and restate the
Certificate in its entirety to read as set forth in Exhibit A attached hereto
and make a part hereof (the "Restated Certificate").
IN WITNESS WHEREOF, the undersigned, being the President and Secretary
hereinabove named, for the purpose of amending and restating the Certificate
of Incorporation of the Company pursuant to the General Corporation Law of
the State of Delaware, under penalties of perjury, do each hereby declare and
certify that this is the act and deed of the Company and the facts stated
herein are true, and accordingly have hereunto signed this Certificate of
Restated Certificate of Incorporation this 3rd day of November, 1993.
ARCADE HOLDING CORPORATION
By: /s/ Michael Kluger
----------------------------------------
President
ATTEST:
/s/ Paul Huston
- ---------------------------------
Secretary
EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
OF
ARCADE HOLDING CORPORATION
ARTICLE ONE
The name of the corporation is Arcade Holding Corporation.
ARTICLE TWO
The address of the corporations' registered office in the State of
Delaware is 32 Loockerman Square, Suite L-100, in the City of Dover, County
of Kent 19901. The name of its registered agent at such address is The
Prentice-Hall Corporation System, Inc.
ARTICLE THREE
The nature of the business or purposes to be conducted or promoted 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.
ARTICLE FOUR
A. AUTHORIZED SHARES
The total number of shares of capital stock which the Corporation has
authority to issue is 108,000 shares, consisting of:
(1) 8,000 shares of Preferred Stock, par value $1.00 per share (the
"Preferred Stock"); and
(2) 100,000 shares of Common Stock, par value $.01 per share (the "Common
Stock").
Certain other capitalized terms used herein are defined in Section 9 hereof.
B. COMMON STOCK
Section 1. Voting Rights. Except as otherwise required by applicable law,
the holders of Common Stock shall be entitled to one vote per share on all
matters to be voted on by the stockholders of the Corporation.
Section 2. Dividends. Subject to the preferential rights of the holders of
Preferred Stock set forth in Part C of this ARTICLE FOUR and to the extent
permitted under the General Corporation law of Delaware, dividends may be
paid on the Common Stock as and when declared by the Board of Directors of
the Corporation
Section 3. Liquidation. Subject to the preferential rights of the holders
of Preferred Stock set forth in Part C of this ARTICLE FOUR, the holders of
the Common Stock shall be entitled to participate ratably on a per share
basis in all distributions to the holders of capital stock in any
liquidation, dissolution or winding up of the Corporation.
C. PREFERRED STOCK
Section 1. Dividends.
1A. General Obligation. When and as declared by the Corporation's board of
directors and to the extent permitted under the General Corporation Law of
Delaware, the Corporation shall pay preferential dividends to the holders of
the Preferred Stock as provided in this Section 1. Except as otherwise
provided herein, dividends on each share of the Preferred Stock (a "Share")
shall accrue on a daily basis at the rate of 7% per annum of the sum of the
Liquidation Value thereof plus all accumulated and unpaid dividends thereon,
from and including the date of issuance of such Share to and including the
date on which the Liquidation Value of such Share (plus all accrued and
unpaid dividends thereon) is paid. Such dividends shall accrue 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. Such dividends shall be cumulative such that all accrued and
unpaid dividends shall be fully paid or declared with funds irrevocably set
apart for payment before any dividend, distribution or payment may be made
with respect to any Junior Securities. The date on which the Corporation
initially issues any Share shall 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.
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1B. Dividend Reference Dates. Each March 31, June 30, September 30 and
December 31 of each year, beginning December 31, 1993 shall be a "Dividend
Reference Date". To the extent not paid on a Dividend Reference Date, all
dividends which have accrued on each Share outstanding during the three-month
period (or other period in the case of the initial Dividend Reference Date)
ending upon each such Dividend Reference Date shall be accumulated and shall
remain accumulated dividends with respect to such Share until paid. On each
Dividend Reference Date occurring after December 31, 1994, all dividends
which have accrued on each Share outstanding during the three-month period
ending upon each such Dividend Reference Date shall be payable in cash.
1C. Distribution of Partial Dividend Payments. Except as otherwise
provided herein, if at any time the Corporation pays less than the total
amount of dividends then accrued with respect to the Preferred Stock, such
payment shall 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.
Section 2. Liquidation.
Upon any liquidation, dissolution or winding up of the Corporation, each
holder of Preferred Stock shall be entitled to be paid, before any
distribution or payment is made upon any Junior Securities, an amount in cash
equal to the aggregate Liquidation Value (plus all accrued and unpaid
dividends) of all Shares held by such holder, and the holders of Preferred
Stock shall not be entitled to any further payment or claim or right to any
assets of the Corporation. If upon any such liquidation, dissolution or
winding up of the Corporation, the Corporation's assets to be distributed
among the holders of the Preferred Stock are insufficient to permit payment
to such holders of the aggregate amount which they are entitled to be paid,
then the entire assets to be distributed shall be distributed ratably among
such holders based upon the aggregate Liquidation Value (plus all accrued and
unpaid dividends) of the Preferred Stock held by each such holder. The
Corporation shall mail written notice of such liquidation, dissolution or
winding up, not less than 60 days prior to the payment date stated therein,
to each record holder of Preferred Stock. Neither the consolidation or merger
of the Corporation into or with any other entity or entities, nor the sale or
transfer by the Corporation of all or any part of its assets, nor the
reduction of the capital stock of the Corporation, shall be deemed to be a
liquidation, dissolution or winding up of the Corporation within the meaning
of this Section 2.
Section 3. Priority of Preferred Stock. So long as any Preferred Stock
remains outstanding, neither the Corporation nor
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any Subsidiary shall redeem, purchase or otherwise acquire directly or
indirectly any Junior Securities, nor shall the Corporation directly or
indirectly pay or declare any dividend or make any distribution upon any
Junior Securities except for dividends payable in shares of Common Stock
issued upon the outstanding shares of Common Stock and except for cash
dividends payable after the Loan Repayment Date upon the outstanding shares
of Common Stock of up to 50% of Consolidated Net Income for the year
preceding the year in which such dividend is to be paid so long as there is
no Event of Noncompliance in existence at the time of payment of such cash
dividend and no failure in existence at such time to pay in cash the full
amount of accrued and unpaid dividends on the Preferred Stock (other than the
amount accrued and unpaid as of December 31, 1994) on any Dividend Reference
Date after January 1, 1995; provided that the Corporation may purchase shares
of Common Stock from present or former employees of the Corporation and its
Subsidiaries with the consent of the holders of at least 51% of the Preferred
Stock.
Section 4. Redemptions.
4A. Scheduled Redemption. On December 31, 2001 (the "Scheduled Redemption
Date"), the Corporation shall redeem all outstanding Shares at a price per
Share equal to the Liquidation Value thereof plus accrued and unpaid
dividends thereon.
4B. Optional Redemptions. The Corporation may at any time redeem all or
any portion of Preferred Stock then outstanding. On any such redemption, the
Corporation shall pay a price per Share equal to the Liquidation Value
thereof plus all accrued and unpaid dividends thereon.
4C. Redemption Payment. For each Share which is to be redeemed, the
Corporation shall be obligated on the 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) an amount in immediately
available funds equal to the Liquidation Value of such Share (plus all
accrued and unpaid dividends thereon). If the funds of the Corporation
legally available for redemption of Shares on any Redemption Date are
insufficient to redeem the total number of Shares to be redeemed on such
date, those funds which are legally available shall be used to redeem the
maximum possible number of Shares ratably among the holders of the Shares to
be redeemed based upon the aggregate Liquidation Value of such Shares (plus
all accrued and 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 Shares, such funds shall immediately be used
to redeem the balance of the Shares which the
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Corporation has become obligated to redeem on any Redemption Date but which
it has not redeemed.
4D. Notice of Redemption. The Corporation shall mail written notice of
each redemption of Preferred Stock (other than a redemption at the request of
a holder or holders of Preferred Stock) to each record holder of such class
not more than 60 nor less than 30 days prior to the date on which such
redemption is to be made. Upon mailing any notice of redemption which relates
to a redemption at the Corporation's option, the Corporation shall become
obligated to redeem the total number of Shares specified in such notice at
the time of redemption specified therein. In case fewer than the total number
of Shares represented by any certificate are redeemed, a new certificate
representing the number of unredeemed Shares shall be issued to the holder
thereof without cost to such holder within three business days after
surrender of the certificate representing the redeemed Shares.
4E. Determination of the Number of Each Holder's Shares to be Redeemed. The
number of Shares of Preferred Stock to be redeemed from each holder thereof
in redemptions hereunder shall be the number of Shares determined by
multiplying the total number of Shares to be redeemed times a fraction, the
numerator of which shall be the total number of Shares then held by such
holder and the denominator of which shall be the total number of Shares then
outstanding.
4F. Dividends After Redemption. No Share is entitled to any dividends
accruing after the date on which the Liquidation Value of such Share (plus
all accrued and unpaid dividends thereon) is paid to the holder thereof. On
such date all rights of the holder of such Share shall cease, and such Share
shall be deemed to be not outstanding.
4G. Redeemed or Otherwise Acquired Shares. Any Shares which are redeemed
or otherwise acquired by the Corporation shall be cancelled and shall not be
reissued, sold or transferred.
4H. Other redemptions or Acquisitions. Neither the Corporation nor any
Subsidiary shall redeem or otherwise acquire any Preferred Stock, except as
expressly authorized herein or pursuant to a purchase offer made pro-rata to
all holders of Preferred Stock on the basis of the number of Shares owned by
each such holder.
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4I. Special Redemptions.
(i) The term "Change in Ownership" shall mean any sale or issuance or
series of sales or issuances of the Corporation's capital stock by the
Corporation or any holders thereof, immediately after which (x) the owners
(immediately after the closing under the Purchase Agreement) of Common Stock
or of rights to acquire Common Stock, the senior executive officers of the
Corporation or their respective Permitted Transferees in the aggregate no
longer possess the voting power (under ordinary circumstances) to elect a
majority of the Corporation's board of directors or (y) such owners, the
senior executive officers of the Corporation or their respective Permitted
Transferees in the aggregate no longer hold record and beneficial ownership
of a majority of outstanding Common Stock; provided, however, that a Change
in Ownership that occurs solely as a result of the State Board of
Administration of Florida, Liberty Investment Partners IV, Limited
Partnership and/or their respective Permitted Transferees disposing of shares
of Common Stock and/or rights to acquire Common Stock shall not constitute a
Change in Ownership for purposes of paragraphs 4I(i) and (ii).
(ii) If a Change in Ownership has occurred or the Corporation obtains
knowledge that a Change in Ownership is to occur, the Corporation shall give
prompt written notice of such Change in Ownership describing in reasonable
detail the definitive terms and date of consummation thereof to each holder
of Preferred Stock, but in any event such notice shall not be given later
than five days after the occurrence of such Change in Ownership. The holder
or holders of a majority of the Preferred Stock then outstanding may require
the Corporation to redeem all or any portion of the Preferred Stock owned by
such holder or holders at a price per Share equal to the Liquidation Value
thereof (plus all accrued and unpaid dividends thereon) by giving written
notice to the Corporation of such election prior to the later of (a) 20 days
after receipt of the Corporation's notice and (b) 20 days prior to the
consummation of the Change in Ownership (the "Expiration Date"). The
Corporation shall give prompt written notice of any such election to all
other holders of Preferred Stock within five days after the receipt thereof,
and each such holder shall have until the later of (a) the Expiration Date or
(b) ten days after receipt of such second notice to request redemption (by
giving written notice to the Corporation) of all or any portion of the
Preferred Stock owned by such holder. Upon receipt of such election(s), the
Corporation shall be obligated to redeem the aggregate number of Shares
specified therein on the later of (a) the occurrence of the Change in
Ownership or (b) five days after the Corporation's receipt of such
election(s). If in any case a proposed Change in Ownership does not occur,
all requests for redemption in connection therewith shall be automatically
rescinded.
(iii) The term "Fundamental Change" shall mean (a) a sale or transfer of
all or substantially all of the assets of the Corporation and its
Subsidiaries on a consolidated basis (measured by either book value in
accordance with generally accepted accounting principles consistently applied
or fair market value
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determined in the reasonable good faith judgment of the Corporation's board
of directors) in any transaction or series of transactions (other than sales
in the ordinary course of business) and (b) any merger or consolidation to
which the Corporation is a party, except for (A) a Qualified Merger of (B) a
Reincorporation Merger. The term "Qualified Merger" shall mean a merger in
which the Corporation is the surviving corporation and, after giving effect
to such merger, (x) the rights, privileges and preferences of the Preferred
Stock are not adversely affected thereby in any manner, (y) the owners
(immediately after the closing under the Purchase Agreement) of Common Stock
or of rights to acquire Common Stock, the senior executive officers of the
Corporation or their respective Permitted Transferees in the aggregate
continue to possess the voting power (under ordinary circumstances) to elect
a majority of the Corporation's board of directors (unless this clause (y) is
not true solely as a result of the State Board of Administration of Florida,
Liberty Investment Partners IV, Limited Partnership and/or their respective
Permitted Transferees disposing of shares of Common Stock and/or rights to
acquire Common Stock in such merger) and (z) such owners, the senior
executive officers of the Corporation or their respective Permitted
Transferees in the aggregate continue to hold record and beneficial ownership
of a majority of outstanding Common Stock (unless this clause (a) is not true
solely as a result of the State Board of Administration of Florida, Liberty
Investment Partners IV, Limited Partnership and/or their respective Permitted
Transferees disposing of shares of Common Stock and/or rights to acquire
Common Stock in such merger). The term "Reincorporation Merger" shall mean a
merger of the Corporation into a Subsidiary of the Corporation or a merger of
the Corporation into a newly formed corporation solely to change the state of
incorporation so long as (1) the rights, privileges and preferences of the
Preferred Stock are not adversely affected thereby in any manner, (2) the
Preferred Stock is not exchanged for cash, securities or other property in
connection therewith other than preferred stock of the surviving corporation
having identical rights and (3) the holders of the Common Stock immediately
prior to such merger own all of the common stock of the surviving corporation
immediately after such merger.
(iv) If a Fundamental Change is proposed to occur, the Corporation shall
give written notice of such Fundamental Change describing in reasonable
detail the definitive terms and date of consummation thereof to each holder
of Preferred Stock not more than 60 days nor less than 20 days prior to the
consummation thereof. The holder or holders of a majority of the Preferred
Stock then outstanding may require the Corporation to redeem all or any
portion of the Preferred Stock owned by such holder or holders at a price per
Share equal to the Liquidation Value thereof (plus all accrued and unpaid
dividends thereon) by giving written notice to the Corporation of such
election prior to the later of (a) 20 days prior to the consummation of the
Fundamental Change or (b) 20 days after receipt of notice from the
Corporation. The Corporation shall give prompt written notice of such
election to all other holders of Preferred Stock (but in any event within
five days prior to the consummation of the Fundamental Change), and each such
holder shall have until two days after the receipt of such notice
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to request redemption (by written notice given to the Corporation) of all or
any portion of the Preferred Stock owned by such holder. Upon receipt of such
election(s), the Corporation shall be obligated to redeem the aggregate
number of Shares specified therein upon the consummation of such Fundamental
Change. If any proposed Fundamental Change does not occur, all requests for
redemption in connection therewith shall be automatically rescinded.
(v) Redemptions made pursuant to this paragraph 4I shall not relieve the
Corporation of its obligation to redeem Preferred Stock on the Scheduled
Redemption Date pursuant to paragraph 4A.
Section 5. Events of Noncompliance.
5A. Definition. An Event of Noncompliance shall be deemed to have occurred
if:
(i) the Corporation fails to pay on four consecutive Dividend Reference
Dates, the full amount of accrued and unpaid dividends on the Preferred Stock
(other than the amount accrued and unpaid as of December 31, 1994), whether
or not such payment is legally permissible or is prohibited by any agreement
to which the Corporation is subject, when each of such four consecutive
Dividend Reference Dates is after January 1, 1995;
(ii) the Corporation fails to make any redemption payment with respect to
the Preferred Stock which it is obligated to make hereunder, whether or not
such payment is legally permissible or is prohibited by any agreement to
which the Corporation is subject;
(iii) The Corporation breaches or otherwise fails to perform or observe
any other covenant or agreement set forth herein or in the Purchase Agreement
and the holders of at least 51% of the Preferred Stock give the Corporation
written notice thereof, provided that no Event of Noncompliance shall be
deemed to have occurred under this subparagraph (iii) if either (a) the
Corporation has exercised, and continues to exercise, best efforts to
expeditiously cure the Event of Noncompliance (if cure is possible) and such
cure occurs within 30 days after the occurrence of such Event of
Noncompliance or (b) the Event of Noncompliance is not material to the
financial conditions, operating results, operations or assets of the
Corporation and its Subsidiaries, taken as a whole, and does not materially
adversely affect the rights of holders or Preferred Stock;
(iv) any representation or warranty contained in the Purchase Agreement is
false or misleading on the date made or furnished and the facts or
circumstances which cause such representation or warranty to be false or
misleading are materially adverse to the financial condition, operating
results, operations or assets of the Corporation and its Subsidiaries, taken
as a whole, and the holders of at least 51% of the Preferred Stock give the
Corporation written notice thereof;
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(v) the Corporation or any subsidiary makes an assignment for the benefit
of creditors or admits in writing its inability to pay its debts generally as
they become due; or an order, judgment or decree is entered adjudicating the
Corporation or any Subsidiary bankrupt or insolvent; or any order for relief
with respect to the Corporation or any Subsidiary is entered under the
Federal Bankruptcy Code; or the Corporation or any Subsidiary petitions or
applies to any tribunal for the appointment of a custodian, trustee, receiver
or liquidator of the Corporation or any Subsidiary or of any substantial part
of the assets of the Corporation or any Subsidiary, or commences any
proceeding (other than a proceeding for the voluntary liquidation and
dissolution of a Subsidiary) relating to the Corporation or any Subsidiary
under any bankruptcy, reorganization, arrangement, insolvency, readjustment
of debt, dissolution or liquidation law of any jurisdiction; or any such
petition or application is filed, or any such proceeding is commenced,
against the Corporation or any Subsidiary and either (a) the Corporation or
any such Subsidiary by any act indicates its approval thereof, consent
thereto or acquiescence therein or (b) such petition, application or
proceeding is not dismissed within 60 days;
(vi) a judgment in excess of $500,000 is rendered against the Corporation
or any Subsidiary and, within 60 days after entry thereof, such judgment is
not discharged or execution thereof stayed pending appeal, or within 60 days
after the expiration of any such stay, such judgment is not discharged; or
(vii) the Corporation or any Subsidiary defaults in the performance of any
obligation or agreement if the effect of such default is to cause an amount
exceeding $500,000 to become due prior to its stated maturity.
5B. Consequences of Certain Events of Noncompliance.
(i) If an Event of Noncompliance has occurred and is continuing, the
dividend rate on the Preferred Stock shall increase immediately by an
increment of two percentage points. Any increase of the dividend rate
resulting from the operation of this paragraph shall terminate as of the
close of business on the date on which no Event of Noncompliance exists,
subject to subsequent increases pursuant to this paragraph.
(ii) If an Event of Noncompliance has occurred and is continuing, the
holder or holders of a majority of the Preferred Stock then outstanding may
demand (by written notice delivered to the Corporation) immediate redemption
of all or any portion of the Preferred Stock owned by such holder or holders
at a price per Share equal to the Liquidation Value thereof (plus all accrued
and unpaid dividends thereon). The Corporation shall give prompt written
notice of such election to the other holders of Preferred Stock (but in any
event within five days after receipt of the initial demand for redemption),
and each such other holder may demand immediate redemption of all or any
portion of such holder's Preferred Stock by giving written notice thereof to
the Corporation within seven days after receipt of the Corporation's notice.
The
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Corporation shall redeem all Preferred Stock as to which rights under this
paragraph have been exercised within 15 days after receipt of the initial
demand for redemption.
(iii) If any Event of Noncompliance under paragraph 5A(i) or 5A(ii) has
occurred and is continuing, the number of directors constituting the
Corporation's board of directors shall, at the request of a majority of the
Preferred Stock then outstanding, be increased by one member, and the holders
of Preferred Stock shall have the special right, voting separately as a
single class (with each Share being entitled to one vote) and to the
exclusion of all other classes of the Corporation's stock, to elect an
individual to fill such newly created directorship, to fill any vacancy of
such directorship and to remove any individual elected to such directorship.
The newly created directorship shall constitute a separate class of
directors, and the director elected by the holders of the Preferred Stock
shall be entitled to cast a number of votes on each matter considered by the
board of directors (including for purposes of determining the existence of a
quorum) equal to the sum of the number of voted entitled to be cast by all of
the other directors plus one. The special right of the holders of Preferred
Stock to elect members of the board of directors may be exercised at the
special meeting called pursuant to this subparagraph (iii), at any annual or
other special meeting of stockholders and, to the extent and in the manner
permitted by applicable law, pursuant to a written consent in lieu of a
stockholders meeting. Such special right shall continue until such time as
there is no longer any Event of Noncompliance in existence, at which time
such special right shall terminate subject to revesting upon the occurrence
and continuation of any Event of Noncompliance which gives rise to such
special right hereunder.
At any time when such special right has vested in the holders of Preferred
Stock, a proper officer of the Corporation shall, upon the written request of
the holder of at least 10% of the Preferred Stock then outstanding, addressed
to the secretary of the Corporation, call a special meeting of the holders of
Preferred Stock for the purpose of electing a director pursuant to this
subparagraph. Such meeting shall be held at the earliest legally permissible
date at the principal office of the Corporation, or at such other place
designated by the holders of at least 10% of the Preferred Stock then
outstanding. If such meeting has not been called by a proper officer of the
Corporation within 10 days after personal service of such written request
upon the secretary of the Corporation or within 20 days after mailing the
same to the secretary of the Corporation at its principal office, then the
holders of at least 10% of the Preferred Stock then outstanding may designate
in writing one of their number to call such meeting at the expense of the
Corporation, and such meeting may be called by such Person so designated upon
the notice required for annual meetings of stockholders and shall be held at
the Corporation's principal office, or at such other place designated by the
holders of at least 10% of the Preferred Stock then outstanding. Any holder
of Preferred Stock so designated shall be given access to the stock record
books of the Corporation for the purpose of
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causing a meeting of stockholders to be called pursuant to this paragraph.
At any meeting or at any adjournment thereof at which the holders of
Preferred Stock have the special right to elect a director, the presence, in
person or by proxy, of the holders of a majority of the Preferred Stock then
outstanding shall be required to constitute a quorum for the election or
removal of any director by the holders of the Preferred Stock exercising such
special right. The vote of a majority of such quorum shall be required to
elect or remove any such director.
Any director so elected by the holders of Preferred Stock shall continue
to serve as a director until the date on which no Event of Noncompliance
under paragraph 5A(i) or 5A(ii) exists. After such date, the number of
directors constituting the board of directors of the Corporation shall
decrease to such number as constituted the whole board of directors of the
Corporation immediately prior to the occurrence of the Event or Events of
Noncompliance giving rise to the special right to elect directors.
(iv) If any Event of Noncompliance exists, each holder of Preferred Stock
shall also have any other rights which such holder is entitled to under any
contract or agreement at any time and any other rights which such holder may
have pursuant to applicable law.
Section 6. Voting Rights.
Except as otherwise provided herein and as otherwise required by law, the
Preferred Stock shall have no voting rights; provided that each holder of
Preferred Stock shall be entitled to notice of all stockholders meetings at
the same time and in the same manner as notice is given to the stockholders
entitled to vote at such meeting.
Section 7. Registration of Transfer.
The Corporation shall keep at its principal office a register for the
registration of Preferred Stock. Upon the surrender of any certificate
representing Preferred Stock at such place, the Corporation shall, at the
request of the record holder of such certificate, execute and deliver (at the
Corporation's expense) a new certificate or certificates in exchange therefor
representing in the aggregate the number of Shares represented by the
surrendered certificate. Each such new certificate shall be registered in
such name and shall represent such number of Shares as is requested by the
holder of the surrendered certificate and shall be substantially identical in
form to the surrendered certificate, and dividends shall 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.
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Section 8. Replacement.
Upon receipt of evidence reasonably satisfactory to the Corporation (an
affidavit of the registered holder shall be satisfactory) of the ownership
and the loss, theft, destruction or mutilation of any certificate evidencing
Shares of any class of Preferred Stock, and in the case of any such loss,
theft or destruction, upon receipt of indemnity reasonably satisfactory to
the Corporation (provided that if the holder is a financial institution or
other institutional investor its own agreement shall be satisfactory), or, in
the case of any such mutilation upon surrender of such certificate, the
Corporation shall (at its expense) execute and deliver in lieu of such
certificate a new certificate of like kind representing the number of Shares
of such class represented by such lost, stolen, destroyed or mutilated
certificate and dated the date of such lost, stolen, destroyed or mutilated
certificate, and dividends shall 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.
Section 9. Definitions.
"Common Stock" means, collectively, the Corporation's Common Stock and any
capital stock of any class of the Corporation hereafter authorized which is
not limited to a fixed sum or percentage of par or stated value in respect to
the rights of the holders thereof to participate in dividends or in the
distribution of assets upon any liquidation, dissolution or winding up of the
Corporation.
"Consolidated Net Income" shall mean for any period the consolidated net
after-tax income (or loss) of the Company and its Subsidiaries for such
period determined in accordance with GAAP consistently applied; provided that
in determining Consolidated Net Income hereunder, gains and losses from the
sale or disposition of assets outside of the ordinary course of business and
extraordinary items (determined in accordance with GAAP consistently applied)
shall be excluded.
"GAAP" means United States generally accepted accounting principles,
consistently applied.
"Junior Securities" means any of the Corporation's capital stock or equity
securities other than the Preferred Stock.
"Liquidation Value" of any Share as of any particular date shall be equal
to $1,000.
"Loan Repayment Date" means the date upon which the entire outstanding
indebtedness and all other amounts due and owing under the Senior and
Subordinated Loan Agreements between the Company's Subsidiary, Arcade, Inc.,
and the State Board of Administration of Florida, each dated as of November
4, 1993, have been paid in full, and all rights of Arcade, Inc. to borrow
funds under such Loan Agreements have been terminated.
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"Permitted Transferees" shall have the meaning set forth in the
Stockholders Agreement.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, limited liability company, a trust, a
joint venture, an unincorporated organization and a governmental entity or
any department, agency or political subdivision thereof.
"Purchase Agreement" means the Stock and Warrant Purchase Agreement, dated
as of November 4, 1993 by and among the Corporation and certain investors, as
such agreement may from time to time be amended in accordance with its terms.
"Redemption Date" as to any Share means the date specified in the notice
of any redemption at the Corporation's option or at the holder's option or
the applicable date specified herein in the case of any other redemption.
"Stockholders Agreement" means the Stockholders Agreement, dated as of
November 4, 1993 by and among the Corporation and certain investors and other
Persons, as such agreement may from time to time be amended in accordance
with its terms.
"Subsidiary" means, with respect to any Person, any partnership,
corporation, association, joint stock company, limited liability company,
trust, joint venture, unincorporated organization or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by that Person or one or more of
the other Subsidiaries of that Person or a combination thereof, or (ii) if a
partnership, limited liability company, joint stock company, association or
other business entity, a majority of the partnership or other similar
ownership interest thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more Subsidiaries of that Person or a
combination thereof. For purposes hereof, a Person or Persons shall be deemed
to have a majority ownership interest in a partnership, limited liability
company, joint stock company, association or other business entity if such
Person or Persons shall be allocated a majority of partnership, limited
liability company, joint stock company, association or other business entity
gains or losses or shall be or control the managing director or a general
partner of such partnership, limited liability company, joint stock company,
association or other business entity.
Section 10. Amendment and Waiver.
No amendment, modification or waiver shall be binding or effective with
respect to any provision of this ARTICLE FOUR without the prior written
consent of the holders of a majority of the Preferred Stock outstanding at
the time such action is taken; provided that no such action shall change (a)
the rate at which or
13
the manner in which dividends on the Preferred Stock accrue or the times at
which such dividends become payable or the amount payable on redemption of
the Preferred Stock or the times at which redemption of Preferred Stock is to
occur, without the prior written consent of the holders of at least 90% of
the Preferred Stock then outstanding or (b) the percentage required to
approve any change described in clause (a) above, without the prior written
consent of the holders of at least 90% of the Preferred Stock; and provided
further that no change in the terms hereof may be accomplished by merger or
consolidation of the Corporation with another corporation or entity unless
the Corporation has obtained the prior written consent of the holders of the
applicable percentage of the class of classes of the Preferred Stock then
outstanding.
Section 11. Notices.
Except as otherwise expressly provided hereunder, all notices referred to
herein shall be in writing and shall be personally delivered or delivered by
registered or certified mail, return receipt requested and postage prepaid,
or by reputable overnight courier service, charges prepaid, and shall be
deemed to have been given five business days after being so mailed or sent
(i) to the Corporation, at its principal executive offices and (ii) to any
stockholder, at such holder's address as it appears in the stock records of
the Corporation (unless otherwise indicated by any such holder).
ARTICLE FIVE
The corporation is to have perpetual existence.
ARTICLE SIX
The By-Laws of the Corporation shall not be amended, modified or repealed
unless approved by, in addition to any vote of the holders of any class or
series of stock of the Corporation required by law or by this Certificate of
Incorporation, the affirmative vote of the holders of not less than 75% of
the outstanding shares of Common Stock.
ARTICLE SEVEN
Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws of the corporation may provide. The books of the
corporation may be kept outside the State of Delaware at such place or places
as may be designated from time to time by the board of directors or in the
by-laws of the
14
corporation. Election of directors need not be by written ballot unless the
by-laws of the corporation so provide.
ARTICLE EIGHT
To the fullest extent permitted by the General Corporation Law of the
State of Delaware as the same exists or may hereafter by amended, a director
of this corporation shall not be liable to the corporation or its
stockholders for monetary damages for a breach of fiduciary duty as a
director. Any repeal or modification of this ARTICLE EIGHT shall not
adversely affect any right or protection of a director of the corporation
existing at the time of such repeal or modification.
ARTICLE NINE
The corporation expressly elects not to be governed by Section 203 of the
General Corporation Law of the State of Delaware.
ARTICLE TEN
The corporation reserves the right to amend, alter, change or repeal any
provision contained in this certificate of incorporation in the manner now or
hereafter prescribed herein and by the laws of the State of Delaware, and all
rights conferred upon stockholders herein are granted subject to this
reservation; provided however, that this Certificate of Incorporation shall
not be amended, modified or repealed unless approved by, in addition to any
vote of the holders of any class or series of stock of the Corporation
required by law or by this Certificate of Incorporation, the affirmative vote
of the holders of not less than 75% of the outstanding shares of Common
Stock.
15
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 11:00 AM 02/08/1995
950029554 - 2354937
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
ARCADE HOLDING CORPORATION
Arcade Holding Corporation, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware
(the "Company").
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Company, pursuant to the
unanimous written consent of all of its members, adopted resolutions amending
and restating Article Four, Part A, Article Four, Part C, Section 1B and
Article Four, Part C, Section 5A(i) of the Restated Certificate of
Incorporation of the Company to read in their entirety as follows:
ARTICLE FOUR, PART A
The total number of shares of capital stock which the Corporation has
authority to issue is 108,700 shares, consisting of:
(1) 8,700 shares of Preferred Stock, par value $1.00 per share (the
"Preferred Stock"); and
(2) 100,000 shares of Common Stock, par value $0.1 per share (the
"Common Stock").
Certain other capitalized terms used herein are defined in Section 9
hereof.
ARTICLE FOUR, PART C, SECTION 1B
1B. Dividend Reference Dates. Each March 31, June 30, September 30 and
December 31 of each year, beginning December 31, 1993 shall be a "Dividend
Reference Date". To the extent not paid on a Dividend Reference Date, all
dividends which have accrued on
each Share outstanding during the three-month period (or other period in the
case of the initial Dividend Reference Date) ending upon each such Dividend
Reference Date shall be accumulated and shall remain accumulated dividends with
respect to such Share until paid. On each Dividend Reference Date occurring on
or prior to December 31, 1994, all dividends which have accrued on each Share
outstanding during the three-month period ending upon each such Dividend
Reference Date (or other period in the case of the initial Dividend Reference
Date) shall be paid, in lieu of cash dividends, by the issuance on each such
Dividend Reference Date of additional Shares of Preferred Stock (including
fractional Shares) having an aggregate Liquidation Value at the time of such
payment equal to the amount of the dividend to be paid on such Dividend
Reference Date. On each Dividend Reference Date occurring after December 31,
1994, all dividends which have accrued on each Share outstanding during the
three-month period ending upon each such Dividend Reference Date shall be
payable in cash.
ARTICLE FOUR, PART C, SECTION 5A(i)
(i) the Corporation fails to pay, in the manner provided under Section 1B
of this Part C, on any Dividend Reference Date occurring on or prior to
December 31, 1994, the full amount of accrued and unpaid dividends on the
Preferred Stock or the Corporation fails to pay,in the manner required under
Section 1B of this Part C, on any four consecutive Dividend Reference Dates
occurring after December 31, 1994 the full amount of accrued and unpaid
dividends on the Preferred Stock (other than the amount accrued and unpaid as
of December 31, 1994), whether or not such payment is legally permissible or is
prohibited by any agreement to which the Corporation is subject, when each of
such four consecutive Dividend Reference Dates is after January 1, 1995;
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
the amendments were submitted to the stockholders of the corporation for
their approval, which approval was given by written consent pursuant to
Section 228 of the General Corporation Law of the State of Delaware.
THIRD: That said amendments were duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
-2-
IN WITNESS WHEREOF, Arcade Holding Corporation has caused this Certificate
of Amendment to be signed by its Secretary this 8th day of February, 1995.
ARCADE HOLDING CORPORATION
/s/ JOSEPH WYGODA
-------------------------------------
Joseph Wygoda, Secretary
-3-
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 12:00 PM 12/15/1997
971429235 - 2354937
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
AHC I MERGER CORP.
INTO
ARCADE HOLDING CORPORATION
(PURSUANT TO SECTION 253 OF THE GENERAL
CORPORATION LAW OF DELAWARE)
AHC I Merger Corp., a Delaware corporation (the "Corporation"), does
hereby certify:
FIRST: That the Corporation is incorporated pursuant to the General
Corporation Law of the State of Delaware (the"DGCL").
SECOND: That the Corporation owns all of the outstanding shares of each
class of the capital stock of Arcade Holding Corporation, a Delaware
corporation ("Holding").
THIRD: That the Corporation, by the following resolutions of its Board
of Directors, duly adopted on the 15th day of December, 1997, authorized and
approved the merger of the Corporation with and into Holding on the terms and
conditions set forth in such resolutions:
WHEREAS, it is proposed that the Corporation be merged with and into
its wholly-owned subsidiary, Holding, with Holding being the surviving
corporation.
NOW, THEREFORE, BE IT RESOLVED, that, subject to the prior approval
of the sole stockholder of the Corporation, the Corporation merge itself with
and into Holding, its wholly-owned subsidiary, with Holding being the
surviving corporation, pursuant to Section 253 of the DGCL (the "Merger"), and
pursuant to and upon the consummation of the Merger, Holding will assume all
of the Corporation's liabilities and obligations;
FURTHER RESOLVED, that the Merger be submitted to AHC I Acquisition
Corp., a Delaware corporation and the sole stockholder of the Corporation
("AHC I"), for its approval therof, and that the sole director of the
Corporation hereby recommends that the sole stockholder approve the Merger;
FURTHER RESOLVED, that immediately upon the consummation of the
Merger, each share of capital stock of Holding outstanding prior to the
Merger shall be cancelled and automatically cease to be outstanding and each
share of the
capital stock of the Corporation therefore outstanding shall by virtue of the
Merger be converted into and exchangeable for one share of common stock of the
surviving entity in the Merger (such that Holding, as the surviving entity in
the Merger, shall have 1,000 shares issued and outstanding following the
Merger, all of which will be held by AHC I), and following the consummation of
the Merger, certificates evidencing the ownership of the capital stock in the
surviving entity will be issued upon the surrender of the certificates
previously evidencing the ownership of the outstanding capital stock of the
Corporation;
FURTHER RESOLVED, that immediately upon the consummation of the
Merger, Holding, as the surviving corporation of the Merger, shall change its
corporate name to Arcade Marketing, Inc., and upon the effective date of the
Merger, the name of Holding shall be so changed.
FURTHER RESOLVED, that the Chairman of the Board, the President, the
Chief Financial Officer, any Vice President, the Treasurer, the Secretary and
any Assistant Secretary (each a "Proper Officer") of the Corporation, any one
of whom may act without the joinder of any of the others, be, and they hereby
are, authorized, empowered, and directed, for, on behalf and in the name of
the Corporation, to make, execute, certify and deliver and acknowledge a
Certificate of Ownership and Merger (herein so called) setting forth these
resolutions and the date of adoption thereof and to cause the same to be
filed in the office of the Secretary of State of Delaware and to do or cause
to be done any and all such other acts and things as they, or any of them,
may deem necessary or advisable to make effective or implement the intent and
purposes of the foregoing resolutions, and any such document so executed or
act or thing done or caused to be done by them, or any of them, shall be
conclusive evidence of their or his authority in so doing; and
FURTHER RESOLVED, that each Proper Officer of the Corporation, any
one of whom may act without the joinder of any of the others, be, and they
hereby are, authorized, empowered, and directed, for and on behalf and in the
name of the Corporation, to take any further action and to do all things that
they, or any of them, may deem necessary, appropriate or advisable to effect
the Merger, including, without limitation, preparing and filing such
regulatory applications, notices, or other documents as may be required by
the appropriate regulatory authorities, and any such action taken by any
Proper Officer shall be conclusive evidence of their of his authority in so
doing.
FOURTH: That the Merger was approved on the 15th day of December, 1997,
by the written consent of AHC I, the sole stockholder of the Corporation.
2
IN WITNESS WHEREOF, the undersigned has caused this Certificate of
Ownership and Merger to be signed this 15th day of December, 1997.
AHC I MERGER CORP.
By: /s/ DAVID WITTELS
---------------------------------
David Wittels
Vice President and
Assistant Secretary
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 03:45 PM 12/15/1997
971429440 - 2354937
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
ARCADE INC.
INTO
ARCADE MARKETING, INC.
(FORMERLY ARCADE HOLDING CORPORATION)
(PURSUANT TO SECTION 253 OF THE GENERAL
CORPORATION LAW OF DELAWARE)
Arcade Marketing, Inc. (formerly Arcade Holding Corporation), a Delaware
corporation (the "Corporation"), does hereby certify:
FIRST: That the Corporation is incorporated pursuant to the General
Corporation Law of the State of Delaware (the "DGCL").
SECOND: That the Corporation owns all of the outstanding shares of each
class of the capital stock of Arcade, Inc., a Tennessee corporation,
incorporated pursuant to the Tennessee Business Corporation Act.
THIRD: That the Corporation, by the following resolutions of its sole
director, duly adopted on the 15th day of December, 1997, authorized and
approved the merger of Arcade into the Corporation on the terms and
conditions set forth in such resolutions:
WHEREAS, it is proposed that Arcade Inc., a Tennessee corporation and a
wholly-owned subsidiary of the Corporation ("Arcade"), be merged with and
into the Corporation, with the Corporation being the surviving corporation.
NOW, THEREFORE, BE IT RESOLVED, that the Corporation merge its
wholly-owned subsidiary, Arcade, into itself pursuant to Section 253 of the
DGCL and Section 48-21-105 of the Tennessee Business Corporation Act (the
"Merger"), and pursuant to and upon consummation of the Merger, assume all of
Arcade's liabilities and obligations and cancel each share of capital stock
of Arcade (heretofore outstanding so that such shares shall automatically
cease to be outstanding;
FURTHER RESOLVED, that the Merger is intended to qualify as a tax-free
liquidation of Arcade by means of a merger, pursuant to Sections 332 and 337
of the Internal Revenue Code of 1986, as amended;
FURTHER RESOLVED, that the Chairman of the Board, the President, the
Chief Financial Officer, any Vice President, the Treasurer, the Secretary and
any Assistant Secretary (each a "Proper Officer") of the Corporation, any one
of whom may act without the joinder of any of the others, be, and they hereby
are, authorized, empowered, and directed, for and on behalf and in the name
of the Corporation, to make, execute, certify and deliver and acknowledge
Articles of Merger (herein so called) and a Certificate of Ownership and
Merger (herein so called), which Certificate of Ownership and Merger shall
set forth these resolutions and the date of adoption thereof, and to cause
the Articles of Merger and Certificate of Ownership and Merger to be filed
in the office of the Secretary of State of Tennessee and the Secretary of
State of Delaware, respectively, and to do or cause to be done any and all
such other acts and things as they, or any of them, may deem necessary or
advisable to make effective or implement the intent and purposes of the
foregoing resolutions, and any such document so executed or act or thing done
or caused to be done by them, or any of them, shall be conclusive evidence of
their or his authority in so doing; and
FURTHER RESOLVED, that each Proper Officer of the Corporation, any one of
whom may act without the joinder of any of the others, be, and they hereby
are, authorized, empowered, and directed, for and on behalf and in the name
of the Corporation, to take any further action and to do all things that they,
or any of them, may deem necessary, appropriate or advisable to effect
the Merger, including, without limitation, preparing and filing such
regulatory applications, notices, or other documents as may be required by
the appropriate regulatory authorities, and any such action taken by any
Proper Officer shall be conclusive evidence of their or his authority in so
doing.
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2
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Ownership and Merger to be signed this 15th day of December, 1997.
ARCADE MARKETING, INC.
By: /s/ David Wittels
--------------------------------
David Wittels
Vice President and
Assistant Secretary
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 12:30 PM 06/22/1998
981240017 - 2354937
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
ARCADE MARKETING, INC.
Arcade Marketing, Inc., a Delaware corporation ("Corporation"), pursuant
to the provisions of the General Corporation Law of the State of Delaware
(the "DGCL"), does hereby certify that:
FIRST: The name of the Corporation is Arcade Marketing, Inc.
SECOND: The First Article of the Restated Certificate of Incorporation
of the Corporation is hereby amended to read it its entirety as follows:
"The name of the Corporation is AKI, Inc."
THIRD: The aforesaid amendment to the Restated Certificate of
Incorporation of the Corporation was duly adopted in accordance with the
provisions of Section 242 of the DGCL and has been consented to in writing
by the stockholder's in accordance with the provisions of Section 228 of the
DGCL.
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