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Exhibit 4.1
CERTIFICATE OF DESIGNATIONS, PREFERENCES
AND RELATIVE, PARTICIPATING, OPTIONAL AND
OTHER SPECIAL RIGHTS OF PREFERRED
STOCK AND QUALIFICATIONS, LIMITATIONS
AND RESTRICTIONS THEREOF
OF
16% CUMULATIVE REDEEMABLE PREFERRED STOCK
OF
TRANSDIGM HOLDING COMPANY
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PURSUANT TO SECTION 151 OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
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TransDigm Holding Company (the "COMPANY"), a corporation organized and
existing under the General Corporation Law of the State of Delaware, certifies
that pursuant to the authority contained in Article Four of its Restated
Certificate of Incorporation (the "CERTIFICATE OF INCORPORATION") and in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, the Board of Directors of the Company has duly approved
and adopted the following resolution (this "CERTIFICATE OF DESIGNATIONS"), which
resolution remains in full force and effect on the date hereof:
RESOLVED, that pursuant to the authority vested in the Board of
Directors by the Certificate of Incorporation, the Board of Directors does
hereby designate, create, authorize and provide for the issue of 75,000 shares
of 16% Cumulative Redeemable Preferred Stock, par value $0.01 per share, with a
liquidation preference of $1,000 per share. The 16% Redeemable Preferred Stock
shall have the following powers, preferences and relative, participating,
optional and other special rights, and qualifications, limitations and
restrictions, as follows:
Unless the context otherwise requires, references to a section or
sections contained in this Certificate of Designations refers to the referenced
section or sections hereof.
SECTION 1. CERTAIN DEFINITIONS.
Unless the context otherwise requires, the terms defined in this
SECTION 1 shall have, for all purposes of this Certificate of Designations, the
meanings herein specified (with terms defined in the singular having comparable
meanings when used in the plural).
"ACCELERATION CONSENT" means a written consent or approval signed by a
Holder of Outstanding Indebtedness for Money Borrowed that specifically consents
to or approves the relevant purchase of Preferred Stock.
"ACCELERATION EVENT" has the meaning given to it in SECTION 7.
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"ACQUISITION" means any transaction or series of related transactions,
consummated on or after the date hereof, by which the Company directly, or
indirectly through one or more Subsidiaries:
(1) acquires any going business, or all or substantially all
of the assets of any Person, whether through the purchase of assets,
merger, consolidation or otherwise; or
(2) acquires securities or other ownership interests of any
Person such that the Company owns at least a majority of the combined
voting power of the then outstanding securities or other ownership
interests of such Person.
"ACQUISITION INDEBTEDNESS" means Indebtedness incurred to finance,
directly or indirectly (including by assumption), any Acquisition made by the
Company or any of its Subsidiaries, if such Indebtedness is incurred either:
(1) contemporaneously with the Acquisition;
(2) prior thereto in anticipation thereof; or
(3) within 90 days after such Acquisition is consummated
(other than for (i) Indebtedness incurred to supplement working capital
in the ordinary course of business, (ii) Indebtedness incurred to fund
reasonable post-closing expenses and fees of Persons other than
Affiliates of the Company or any Odyssey Party incurred in connection
with the Acquisition, and (iii) customary purchase price adjustments
based on the working capital of the business or assets acquired as of
the closing date of the Acquisition.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person (including without limitation such Person's investment
decisions), whether through the ownership of voting securities, by agreement or
otherwise; PROVIDED that beneficial ownership of 10% or more of the Voting Stock
of a Person shall be deemed to be control. For purposes of this definition, the
terms "controlling," "controlled by" and "under common control with" shall have
correlative meanings.
"APPROPRIATE ADJUSTMENTS" means, with respect to any particular
Acquisition and for purposes of calculating the Consolidated Leverage Ratio for
a Four-Quarter Period, the sum, without duplication, of:
(1) the impact for the full Four-Quarter Period of any PRO FORMA
expense and cost reductions and other operating improvements that have occurred
as a result of such Acquisition or that are reasonably expected to occur as a
result of such Acquisition, all as determined in accordance with Regulation S-X
promulgated under the Securities Act of 1933, as amended;
(2) the impact for the full Four-Quarter Period of any bona-fide
planned expense reductions as a result of headcount reductions that the Company
and its Subsidiaries intend to effect in good faith within 90 days following the
consummation of the Acquisition, taking into
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account the general functions and assumed compensation rates with respect to
such headcount reductions;
(3) the impact for the full Four-Quarter Period of any price increases
planned to be implemented within 90 days of such Acquisition, taking into
account with respect to such planned price increases, both (i) the specific
product line and (ii) the magnitude of the planned price increase for such
product line; PROVIDED, HOWEVER, that any adjustment pursuant to this clause (3)
shall be subject to the approval of the Majority Holders, which approval shall
not be unreasonably withheld; and
(4) the impact for the full Four-Quarter Period of any other PRO FORMA
expense and cost reductions and other operating improvements that have or are
expected to occur; PROVIDED, HOWEVER, that any adjustment pursuant to this
clause (4) shall be subject to the approval of the Majority Holders.
"BOARD OF DIRECTORS" means:
(1) with respect to a corporation, the board of directors of
the corporation;
(2) with respect to a partnership, the board of directors of
the general partner of the partnership; and
(3) with respect to any other Person, the board or committee
of such Person serving a similar function.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL STOCK" means (i) with respect to any Person that is a
corporation, any and all shares, interests or equivalents in capital stock
(whether voting or nonvoting, and whether common or preferred) of such
corporation, and (ii) with respect to any Person that is not a corporation, any
and all partnership, membership, limited liability company or other equity
interests of such Person.
"CAPITAL STOCK EQUIVALENTS" means any and all warrants, rights, options
or other securities to provide the right to purchase Capital Stock (by
conversion or otherwise).
"CAPITALIZED LEASE OBLIGATIONS" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"CERTIFICATE OF DESIGNATIONS" has the meaning given to it in the
introductory paragraph hereof.
"CERTIFICATE OF INCORPORATION" has the meaning given to it in the
introductory paragraph hereof.
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"CHANGE OF CONTROL" means the occurrence of any of the following:
(1) any sale, lease, exchange or transfer of all or
substantially all of the assets of the Company and its Subsidiaries
taken as a whole, other than to any Odyssey Party;
(2) approval by the directors or holders of Capital Stock of
the Company of any plan or proposal for the liquidation, dissolution,
or winding up of the Company;
(3) the Odyssey Parties ceasing to own in the aggregate at
least 51% of the outstanding Common Stock (on both an economic and
voting basis) or the sale or transfer by the Odyssey Parties, in any
one transaction or series of transactions (other than to another
Odyssey Party), of more than 20% of the economic or voting interest in
the Company's Capital Stock held by the Odyssey Parties on the Issue
Date;
(4) the Company (or its successor) ceases to own 100% of the
Capital Stock and Capital Stock Equivalents of TransDigm Inc.; or
(5) the first day on which a majority of the members of the
Board of Directors of the Company are not Continuing Directors.
"CHANGE-OF-CONTROL CONSENT" means a written consent or approval signed
by a Holder of Outstanding Indebtedness for Money Borrowed that specifically
consents to or approves the relevant purchase of Preferred Stock.
"COMMON STOCK" means the capital stock of the Company, however
designated, that is not limited as to the amount of dividends, or that is not
limited as to the amount of distributions upon liquidation or dissolution of the
Company.
"COMPANY" has the meaning given to it in the introductory paragraph
hereof.
"CONSOLIDATED EBITDA" means, with respect to the Company, for any
period, the sum (without duplication) of the Company's (1) Consolidated Net
Income for such period; and (2) to the extent Consolidated Net Income for such
period has been reduced thereby:
(1) all income taxes and foreign withholding taxes of the
Company and its Subsidiaries paid or accrued in accordance with GAAP
for such period;
(2) Consolidated Interest Expense for such period;
(3) Consolidated Non-cash Charges less any non-cash items
increasing Consolidated Net Income for such period (other than normal
accruals in the ordinary course of business), all as determined on a
consolidated basis for the Company and its Subsidiaries in accordance
with GAAP; and
(4) any cash charges resulting from the Transactions that are
incurred prior to the six-month anniversary of the Issue Date.
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"CONSOLIDATED INDEBTEDNESS" means, with respect to the Company as of
any date, the sum of all Indebtedness of the Company and its Subsidiaries on a
consolidated basis (including without limitation all Acquisition Indebtedness)
as of such date that would appear as a debt on a consolidated balance sheet in
accordance with GAAP, PLUS, without duplication, the Liquidation Amount of the
Preferred Stock and the liquidation preference of any class or series of
preferred stock of the Company or its Subsidiaries that ranks senior to or on a
parity with the Preferred Stock with respect to dividends, redemption, or
liquidation (any preferred stock issued by a Subsidiary of the Company to any
Person other than the Company or a Subsidiary thereof being deemed to be senior
to the Preferred Stock for this purpose and this purpose only).
"CONSOLIDATED INTEREST EXPENSE" means, with respect to the Company for
any period, the sum of, without duplication:
(1) the aggregate of all cash and non-cash interest expense
with respect to all outstanding Indebtedness of the Company and its
Subsidiaries, including the net costs associated with Interest Rate
Protection Agreements, for such period determined on a consolidated
basis in conformity with GAAP, but excluding amortization or write-off
of debt issuance costs;
(2) the consolidated interest expense of the Company and its
Subsidiaries that was capitalized during such period; and
(3) the interest component of Capitalized Lease Obligations
paid, accrued and/or scheduled to be paid or accrued by the Company and
its Subsidiaries during such period as determined on a consolidated
basis in accordance with GAAP.
"CONSOLIDATED LEVERAGE RATIO" means, with respect to the Company as of
any date, the ratio of Consolidated Indebtedness of the Company as of such date
to the Consolidated EBITDA of the Company during the most recent four completed
fiscal quarters for which quarterly financial statements are available or are
required to have been delivered pursuant to SECTION 8.2 of this Certificate of
Designations (the "FOUR-QUARTER PERIOD") ending prior to such date. In addition
to and without limitation of the foregoing, for purposes of this definition, the
Consolidated Leverage Ratio shall be calculated after giving effect on a PRO
FORMA basis for the period of such calculation to:
(1) the incurrence or repayment of any Indebtedness or the
issuance of any preferred stock of the Company or any of its
Subsidiaries (and the application of the proceeds thereof) giving rise
to the need to make such calculation and any incurrence or repayment of
other Indebtedness or the issuance or redemption of other preferred
stock (and the application of the proceeds thereof), other than the
incurrence or repayment of Indebtedness in the ordinary course of
business for working capital purposes pursuant to revolving credit
facilities, occurring during the Four-Quarter Period or at any time
subsequent to the last day of the Four-Quarter Period and on or prior
to the date of measurement, as if such incurrence or repayment or
issuance or redemption, as the case may be (and the application of the
proceeds thereof), had occurred on the first day of the Four-Quarter
Period; and
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(2) any asset sales or other dispositions outside of the
ordinary course of business or Acquisitions (including without
limitation any Acquisition giving rise to the need to make such
calculation as a result of the Company or one of its Subsidiaries
(including any Person who becomes a Subsidiary as a result of the
Acquisition) incurring, assuming or otherwise being liable for
Acquisition Indebtedness and also including any EBITDA (calculated in
the same manner as Consolidated EBITDA of the Company but including all
Appropriate Adjustments) attributable to the assets that are the
subject of the Acquisition or asset sale or other disposition and
without regard to clause (4) of the definition of Consolidated Net
Income) occurring during the Four-Quarter Period or at any time
subsequent to the last day of the Four-Quarter Period and on or prior
to such date, as if such asset sale or other disposition or Acquisition
(including the incurrence or assumption of any such Acquired
Indebtedness) occurred on the first day of the Four-Quarter Period.
"CONSOLIDATED NET INCOME" means, for any period, the aggregate net
income (or loss) of the Company and its Subsidiaries for such period on a
consolidated basis, determined in accordance with GAAP and without any deduction
in respect of preferred stock dividends; PROVIDED, HOWEVER, that there shall be
excluded therefrom:
(1) gains and losses from asset sales that are outside of the
ordinary course of business and the related tax effects, determined in
accordance with GAAP;
(2) gains and losses due solely to fluctuations in currency
values and the related tax effects, determined in accordance with GAAP;
(3) all extraordinary, unusual or nonrecurring charges, gains
and losses (including without limitation all restructuring costs and
any expenses or charges related to the repurchase of Capital Stock or
Capital Stock Equivalents of the Company, and the related tax effects
according to GAAP;
(4) the net income (or loss) of any Person acquired in a
pooling of interests transaction accrued prior to the date it becomes a
Subsidiary of the Company or is merged or consolidated with or into the
Company or any Subsidiary of the Company;
(5) the net loss of any Person other than the Company or a
Subsidiary of the Company;
(6) the net income of any Person other than the Company or a
Subsidiary of the Company, except to the extent of cash dividends or
distributions paid to the Company or a Subsidiary of the Company by
such Person;
(7) in the case of a successor to the referent Person by
consolidation or merger or as a transferee of the referent Person's
assets, any earnings of the successor corporation prior to such
consolidation, merger or transfer of assets; and
(8) any non-cash compensation charges, including any arising
from existing stock options resulting from any merger or
recapitalization transaction.
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"CONSOLIDATED NON-CASH CHARGES" means, with respect to the Company, for
any period, the aggregate depreciation, amortization and other non-cash charges
and expenses of such Person and its Subsidiaries reducing Consolidated Net
Income of such Person and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP (excluding any such charges that
require an accrual of or a reserve for cash payments for any future period other
than accruals or reserves associated with mandatory repurchases of equity
securities).
"CONTINGENT OBLIGATIONS" means, as to any Person, any obligation of
such Person as a result of such Person being a general partner of the other
Person, unless the underlying obligation is expressly made non-recourse as to
such general partner, and any obligation of such Person guaranteeing or intended
to guarantee any Indebtedness, leases, dividends or other obligations ("primary
obligations") of any other Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of such
Person, whether or not contingent:
(1) to purchase, repurchase or otherwise acquire any such
primary obligation or any property constituting direct or indirect
security therefor;
(2) to advance or supply funds (x) for the purchase or payment
of any such primary obligation or (y) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net
worth, solvency or financial condition of the primary obligor;
(3) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary
obligation; or
(4) otherwise to assure or hold harmless the owner of such
primary obligation against loss or failure or inability to perform in
respect thereof; PROVIDED, HOWEVER, that the term Contingent Obligation
shall not include endorsements of instruments for deposit or collection
or standard contractual indemnities entered into, in each case in the
ordinary course of business. The amount of any Contingent Obligation
shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent
Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as determined by such Person
in good faith.
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Board of Directors of the Company who:
(1) was a member of such Board of Directors on the Issue Date;
or
(2) was nominated for election or elected to such Board of
Directors by any Odyssey Party or with the approval of a majority of
the Continuing Directors who were members of such Board of Directors at
the time of such nomination or election.
"CREDIT DOCUMENTS" means the Credit Agreement dated as of December 3,
1998 and amended and restated as of May 31, 2001 among the Company, TransDigm
Inc., the lenders
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party thereto in their capacities as lenders thereunder, and Bankers Trust
Company, as administrative agent, together with the related documents thereto
(including without limitation any guarantee agreements, security documents,
notes and letters of credit), in each case as such agreements may be amended
(including any amendment and restatement thereof), supplemented or otherwise
modified from time to time, including any agreement extending the maturity of,
refinancing, replacing or otherwise restructuring (including increasing the
amount of available borrowings thereunder or adding Subsidiaries of the Company
as additional borrowers or guarantors thereunder) all or any portion of the
indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders.
"DIVIDEND-IN-KIND SHARES" has the meaning given to it in SECTION 3.
"DIVIDEND PAYMENT DATE" has the meaning given to it in SECTION 3.
"EVENT OF NONCOMPLIANCE" means any of the following:
(1) the Company's failure to pay dividends on the Preferred
Stock as provided herein, unless such payment has been made in full
within 30 days after receipt of written notice of such nonpayment from
the Holders of 25% or more of the shares of Preferred Stock then
outstanding;
(2) the Company's failure to purchase or redeem or pay the
redemption or purchase price of any share of Preferred Stock in full
when required as provided herein, unless such redemption or payment has
been made within three Business Days after receipt of written notice of
such nonpayment from the Holders of 25% or more of the shares of
Preferred Stock then outstanding;
(3) the Company makes an assignment for the benefit of
creditors or admits in writing its inability to pay its debts generally
as they become due, or the Company files a voluntary petition for
bankruptcy, or a petition for bankruptcy is filed against the Company
and such petition is not removed within 60 days; and
(4) the Company's failure to observe any of the protective
covenants set forth in SECTION 7 or SECTION 8 hereof unless such
failure has been cured within 30 days after receipt of written notice
thereof from the Holders of 25% or more of the shares of Preferred
Stock then outstanding.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FINANCIAL OFFICER" means, with respect to the Company, the chief
financial officer, vice president - finance, principal accounting officer or
treasurer of the Company.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment
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of the accounting profession, which are in effect at the time of the preparation
of the Company's financial statements as of and for the year ended September 30,
2000.
"HOLDER" means a Person in whose name any share of Preferred Stock is
registered.
"INDEBTEDNESS" of any Person means, without duplication:
(1) all indebtedness of such Person for borrowed money;
(2) the deferred purchase price of assets or services payable
to the sellers thereof or any of such seller's assignees that in
accordance with GAAP would be shown on the liability side of the
balance sheet of such Person but excluding deferred rent as determined
in accordance with GAAP;
(3) the face amount of all letters of credit issued for the
account of such Person and, without duplication, all drafts drawn
thereunder;
(4) all Indebtedness of a second Person secured by any lien on
any property owned by such first Person, whether or not such
Indebtedness has been assumed;
(5) all Capitalized Lease Obligations of such Person;
(6) all obligations of such Person to pay a specified purchase
price for goods or services whether or not delivered or accepted, I.E.,
take-or-pay and similar obligations;
(7) all obligations under Interest Rate Protection Agreements
and Other Hedging Agreements calculated as the amount of unrealized net
loss position, if any, of such Person thereunder on a marked-to-market
basis determined no more than one month prior to such time; and
(8) all Contingent Obligations of such Person relating to or
arising in connection with Indebtedness contemplated by the foregoing
clauses (1) through (7) of this definition of Indebtedness, PROVIDED
that Indebtedness shall not include trade payables and accrued
expenses, in each case arising in the ordinary course of business.
"INTEREST RATE PROTECTION AGREEMENT" means any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest
rate hedging agreement or other similar agreement or arrangement.
"INVESTMENT AGREEMENT" means that certain Investment Agreement, dated
as of the Issue Date, between the Company and First Union Investors, Inc.
"ISSUE DATE" means May 31, 2001.
"JUNIOR SECURITIES" means, with respect to the Company, any Capital
Stock or Capital Stock Equivalents of the Company ranking junior to the
Preferred Stock as to the payment of dividends and as to rights in liquidation,
dissolution and winding up of the affairs of the
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Company (with any Capital Stock or Capital Stock Equivalents of a Subsidiary of
the Company automatically being deemed not to rank junior to the Preferred
Stock).
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or Charlotte, North Carolina are authorized
by law, regulation or executive order to remain closed.
"LIQUIDATION AMOUNT" means, with respect to any share of Preferred
Stock, including without limitation any Dividend-in-Kind Shares, whether or not
actually issued and represented by certificates), the amount equal to $1,000 per
share (subject to equitable adjustment after the Issue Date for stock splits,
stock dividends (other than as payment-in-kind dividends) and similar
occurrences).
"MAJORITY HOLDERS" means holders of a majority of the then outstanding
shares of Preferred Stock.
"MANAGEMENT AGREEMENTS" means that certain Management Shareholders'
Agreement dated as of December 3, 1998 and all other current or future
agreements between the Company or any of its Subsidiaries and stockholders
thereof who are members of management of the Company or any of its Subsidiaries,
PROVIDED, HOWEVER, that to constitute a Management Agreement, grants of options
or stock bonuses made under such agreement must be based upon performance
standards established in good faith by the Company's Board of Directors.
"MANAGEMENT REDEMPTIONS" means redemptions required pursuant to the
Management Agreements; PROVIDED, HOWEVER, that no such redemptions shall include
any securities held by an Odyssey Party; PROVIDED, FURTHER, HOWEVER, that the
aggregate number of securities so redeemed under the Management Agreements shall
not exceed 11,204.33 shares of the Company's Common Stock (such number of shares
subject to equitable adjustment for stock splits, stock dividends and similar
occurrences).
"MANDATORY REDEMPTION DATE" has the meaning given to it in SECTION 5.
"ODYSSEY PARTIES" means Odyssey Investment Partners Fund, LP, Odyssey
Coinvestors, LLC, and all Permitted Odyssey Transferees.
"OPTIONAL REDEMPTION PRICE" means, with respect to a share of Preferred
Stock, the sum of (i) the applicable percentage set forth in the table below of
the Liquidation Amount of such share, and (ii) all accrued but unpaid dividends
in respect of such share to the date of redemption:
Years From Issue Date Applicable Percentage
- --------------------------------------- --------------------------
1 103%
- --------------------------------------- --------------------------
2 102%
- --------------------------------------- --------------------------
3 101%
- --------------------------------------- --------------------------
Thereafter 100%
- --------------------------------------- --------------------------
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"OTHER HEDGING AGREEMENTS" means any foreign exchange contracts,
currency swap agreements, commodity agreements or other similar agreements or
arrangements designed to protect against the fluctuations in currency or
commodity values.
"OUTSTANDING INDEBTEDNESS FOR MONEY BORROWED" means each of: (i) the
Credit Documents (other than to any Odyssey Party), (ii) each Interest Rate
Protection Agreement and Other Hedging Agreement entered into with a lender
under the Credit Documents (even if any such lender subsequently ceases to be a
lender under the Credit Documents for any reason), or any affiliate of such
lender, and (iii) the PIK Notes Indenture.
"PIK NOTES INDENTURE" means that certain Indenture dated as of December
3, 1998 between the Company and State Street Bank and Trust Company, as Trustee,
relating to $20,000,000 of 12% Pay-in-Kind Notes due 2009, as in effect on the
date of this Agreement (including as amended in connection with the sale and
purchase of the Preferred Stock).
"PARITY SECURITIES" has the meaning given to it in SECTION 2.
"PERMITTED ODYSSEY TRANSFEREE" means, with respect to each of Odyssey
Investment Partners Fund, LP and Odyssey Coinvestors, LLC (each, an "ODYSSEY
STOCKHOLDER"), (i) any general or limited partner or manager of such Odyssey
Stockholder (each, an "ODYSSEY PARTNER"), (ii) any corporation, partnership,
limited liability company or other entity that is an Affiliate of such Odyssey
Stockholder or of any Odyssey Partner (collectively, "ODYSSEY AFFILIATES"),
(iii) any managing director, member, general partner, director, limited partner,
officer or employee of (a) such Odyssey Stockholder, (b) such Odyssey Partner,
or (c) any Odyssey Affiliate of such Odyssey Stockholder or Odyssey Partner or
of an Odyssey Affiliate, or the heirs, executors, administrators, testamentary
trustees, legatees or beneficiaries of any of the foregoing Persons referred to
in this clause (iii) (collectively, "ODYSSEY ASSOCIATES"), (iv) any trust, the
beneficiaries of which, or a corporation, limited liability company or
partnership, the stockholders, members or general or limited partners of which,
include only such Odyssey Stockholder, Odyssey Affiliates, Odyssey Associates,
or their spouses, parents or lineal descendants, and (v) a voting trustee for
one or more of such Odyssey Stockholder, Odyssey Affiliates or Odyssey
Associates; PROVIDED, HOWEVER, that in no event shall the Issuer or any of its
Subsidiaries be deemed a Permitted Odyssey Transferee.
"PERMITTED TRANSFER" means:
(1) any transfer to an Affiliate of First Union Investors,
Inc.; or
(2) any other transfer that has been approved in advance by
the Company (such approval not to be unreasonably withheld).
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"PREFERRED STOCK" means the 16% Cumulative Redeemable Preferred Stock
created and issued pursuant to this Certificate of Designations.
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"RECORD DATE" has the meaning given to it in SECTION 3.
"SENIOR SECURITIES" has the meaning given to it in SECTION 2.
"SUBSIDIARY" means, with respect to any Person, any corporation or
other Person of which more than 50% of the outstanding Capital Stock having
ordinary voting power to elect a majority of the board of directors, board of
managers or other governing body of such Person, is at the time, directly or
indirectly, owned or controlled by such Person and one or more of its other
Subsidiaries or a combination thereof (irrespective of whether, at the time,
securities of any other class or classes of any such corporation or other Person
shall or might have voting power by reason of the happening of any contingency).
When used without reference to a parent entity, the term "Subsidiary" shall be
deemed to refer to a Subsidiary of the Company.
"TRANSACTIONS" means, collectively:
(1) the acquisition pursuant to that certain Asset Purchase
Agreement, dated as of April 29, 2001, among Aviation Acquisition
Corporation and Federal-Mogul Ignition Company, and other related
documents;
(2) the issuance and sale of Preferred Stock pursuant to the
Investment Agreement and other related documents; and
(3) the entering into of the Credit Agreement and the
incurrence of all loans and issuance of all letters of credit
thereunder.
"VOTING STOCK" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
SECTION 2. RANKING.
The Preferred Stock shall rank senior in right of payment to all
classes or series of the Company's Capital Stock as to dividends and upon
liquidation, dissolution or winding up of the Company.
Without the consent of the Holders of at least a majority in
Liquidation Amount of the then outstanding Preferred Stock, the Company shall
not authorize, create (by way of reclassification or otherwise) or issue:
(1) any class or series of Capital Stock of the Company
ranking on a parity with the Preferred Stock ("PARITY SECURITIES");
(2) any obligation or security convertible or exchangeable
into or evidencing a right to purchase any Parity Securities;
(3) any class or series of Capital Stock of the Company
ranking senior to the Preferred Stock ("SENIOR SECURITIES"); or
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(4) any obligation or security convertible or exchangeable
into or evidencing a right to purchase any Senior Securities.
SECTION 3. DIVIDENDS.
The Holders of the Preferred Stock as of the preceding May 15th and
November 15th (each, a "RECORD Date") shall be entitled, to the extent of
legally available funds, to receive cumulative preferential dividends at the
rate per share of 16% per annum; PROVIDED, HOWEVER, that such rate shall be
increased to 23% PER ANNUM upon and during the continuance of an Event of
Noncompliance. Dividends on the Preferred Stock shall be payable semiannually in
arrears on June 1 and December 1 of each year (each, a "DIVIDEND PAYMENT DATE"),
commencing on December 1, 2001. Dividends will be payable in arrears and will be
calculated on the basis of a 360-day year consisting of twelve 30-day months.
The aggregate amount of the first dividend on the Preferred Stock will be
$1,200,000 (assuming that no Event of Noncompliance has occurred).
The Company shall, at its option, pay dividends:
(1) in cash out of and to the extent of legally available
funds; or
(2) in additional fully paid and non-assessable shares of
Preferred Stock (including fractional shares), the number of which
shall be determined by dividing the amount of the dividend by the
Liquidation Amount (such shares, "DIVIDEND-IN-KIND SHARES").
Dividends on the Preferred Stock shall accrue and accumulate on the
terms hereof whether or not:
(1) the Company has earnings or profits;
(2) there are funds legally available for the payment of such
dividends; or
(3) dividends are declared.
Dividends shall accrue and accumulate on unpaid dividends from and
after the Dividend Payment Date on which such Dividend was required to be paid.
Accumulated unpaid dividends will accrue dividends at the rate of 16% PER ANNUM
and shall compound semi-annually on successive Dividend Payment Dates; PROVIDED,
HOWEVER, that such rate shall be increased to 23% PER ANNUM upon and during the
continuance of an Event of Noncompliance.
All Dividend-in-Kind Shares issued or deemed issued hereunder shall,
for all purposes, be deemed issued and outstanding on the applicable Dividend
Payment Date, and dividends shall begin to accrue on Dividend-in-Kind Shares as
of the day following the Dividend Payment Date with respect to which such
Dividend-in-Kind Shares were to be issued, regardless of the actual date of
distribution of a certificate representing such Dividend-in-Kind Shares. The
number of shares to be issued as Dividend-in-Kind Shares shall be rounded to the
nearest 1/1000th of a share and fractional shares representing such amount shall
be issued.
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Unless the Company has declared and paid full cumulative dividends
upon, or declared and set apart a sufficient sum for the payment of full
cumulative dividends on, all outstanding shares of Preferred Stock due for the
current and all past Dividend Payment Dates, then:
(1) no dividend, other than a dividend payable solely in
Junior Securities, shall be declared or paid upon, or any sum set apart
for the payment of dividends upon, any Junior Securities;
(2) no other distribution shall be declared or made by the
Company upon, or any sum set apart by the Company for the payment of
any distribution upon, any Junior Securities;
(3) no Junior Securities shall be purchased, redeemed or
otherwise acquired or retired for value (excluding an exchange for
other Junior Securities) by the Company or any of its Subsidiaries; and
(4) no monies shall be paid into or set apart or made
available for a sinking or other like fund for the purchase, redemption
or other acquisition or retirement for value of any Junior Securities
by the Company or any of its Subsidiaries.
Holders of the Preferred Stock shall not be entitled to any dividends,
whether payable in cash, property or stock, in excess of the full cumulative
dividends as herein described.
SECTION 4. VOTING RIGHTS.
Holders of the Preferred Stock shall have no voting rights, except as
required by law and as provided in this Certificate of Designations (which shall
in any event include rights of approval under this Certificate of Designations).
Under this Certificate of Designations, upon the occurrence and during the
continuance of an Event of Noncompliance, the number of members of the Company's
Board of Directors shall immediately and automatically increase by two, the
Majority Holders shall have the right to appoint and elect two directors (in the
event the resulting number of directors is 10 or less) or, alternatively, a
number of directors constituting at least 20% of the number of directors of the
Company's Board of Directors (in the event the number of resulting directors is
more than 10). Such directors shall be appointed by the Company's Board of
Directors to serve on each committee of such Board of Directors at least in the
same proportions that the number of such directors bears to the total number of
directors then constituting such Board of Directors, but in any event at least
one director on each such committee. No such director appointed by the Majority
Holders may be removed from the Board of Directors of the Company, with or
without cause, without the consent of the Majority Holders. The term of each
director appointed and elected pursuant to this SECTION 4 shall continue until
the earlier of the next annual meeting of stockholders or the first date on
which no Event of Noncompliance is continuing. Upon such time as the Event of
Noncompliance shall no longer be continuing, the number of members of the
Company's Board of Directors shall immediately and automatically be decreased by
the same number as the Board of Directors was increased upon the occurrence of
such Event of Noncompliance.
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SECTION 5. REDEMPTION.
5.1 MANDATORY REDEMPTION.
On May 31, 2010 (the "MANDATORY REDEMPTION DATE"), the Company shall,
to the extent of legally available funds, be required to redeem all outstanding
shares of Preferred Stock at a price per share in cash in immediately available
funds equal to the Liquidation Amount, plus accrued and unpaid dividends in
respect thereof, if any, to the date of redemption. If the funds of the Company
legally available for redemption of shares of the Preferred Stock then required
to be redeemed are insufficient to redeem the total number of such shares then
outstanding, those funds that are legally available shall be used to redeem the
maximum possible number of shares of the Preferred Stock, which shares to be
redeemed shall be allocated PRO RATA among the holders of the Preferred Stock
based on the number of shares of the Preferred Stock held by such holders. At
any time and from time to time thereafter, when additional funds of the Company
are legally available to pay its obligation to redeem all of the outstanding
shares of Preferred Stock required to be redeemed pursuant to this SECTION 5.1,
such funds shall be immediately used to pay such redemption obligation until the
balance of such shares have been redeemed. If and so long as such redemption
obligation shall not be fully discharged, dividends on any remaining outstanding
shares of Preferred Stock shall continue to accrue, accumulate and compound and
be added to the dividends payable pursuant this SECTION 5.1.
5.2 OPTIONAL REDEMPTION.
At any time and from time to time, the Company may redeem any or all
shares of Preferred Stock then outstanding (including any Dividend-in-Kind
Shares) from the Holders thereof, upon not less than 30 days' and not more than
60 days' notice, for cash in immediately available funds at the Optional
Redemption Price; PROVIDED, HOWEVER, that if there is a redemption within the
first 36 months after the Issue Date of all, but not less than all, of the
Preferred Stock outstanding (including any Dividend-in-Kind Shares), and all,
but not less than all, of the Warrants to acquire Common Stock of the Company
(which Warrants were issued pursuant to the Investment Agreement in connection
with the issuance of the Preferred Stock), and the underlying shares of Common
Stock if any of such Warrants shall have been exercised, are redeemed in
accordance with Article VI of the instrument evidencing such Warrants, then the
applicable redemption price of the Preferred Stock shall be the aggregate
Liquidation Amount (rather than the Optional Redemption Price) thereof. Any such
purchases shall be made on a PRO RATA basis among all Holders of Preferred
Stock.
If less than all of the Preferred Stock is to be redeemed at any time,
the Company will select Preferred Stock for redemption as follows:
(1) if the Preferred Stock is listed, in compliance with the
requirements of the principal national securities exchange on which the
Preferred Stock is listed; or
(2) if the Preferred Stock is not so listed, on a PRO RATA
basis, by lot or by such method as the Company shall in good faith deem
fair and appropriate.
No shares of Preferred Stock shall be redeemed in part. Notices of
redemption shall be mailed by first class mail at least 30 but not more than 60
days before the redemption date to
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each Holder of Preferred Stock to be redeemed at its registered address. Notices
of redemption may not be conditional.
A new certificate representing the unredeemed portion of the original
certificate evidencing Preferred Stock presented for redemption shall be issued
in the name of the Holder thereof upon cancellation of the certificate. On and
after the redemption, dividends shall cease to accrue on the redeemed Preferred
Stock.
SECTION 6. LIQUIDATION RIGHTS.
Each Holder of the Preferred Stock shall be entitled to payment, out of
the assets of the Company available for distribution to its stockholders (after
giving effect to the prior payment in full in cash of all Indebtedness and other
claims of the Company's creditors), of an amount equal to the Liquidation Amount
of such Holder's Preferred Stock plus accrued but unpaid dividends, if any, to
the date of liquidation, before any distribution is made on any Junior
Securities, upon any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Company.
If within three years of the Issue Date, there is any liquidation,
dissolution or winding up of the Company a principal purpose of which is to
avoid paying the premium contemplated by the Optional Redemption Price, such
premium nevertheless shall be added to the Liquidation Amount due and payable
pursuant to this SECTION 6. After payment in full of the Liquidation Amount and
all accrued and unpaid dividends, if any, to which Holders of Preferred Stock
are entitled, such Holders shall not further participate in any distribution of
assets of the Company. However, neither the voluntary sale, conveyance, exchange
or transfer (for cash, shares of stock, securities or other consideration) of
all or substantially all of the property or assets of the Company nor the
consolidation or merger of the Company with or into one or more Persons shall be
a voluntary or involuntary liquidation, dissolution or winding up of the
Company, unless such sale, conveyance, exchange or transfer is in connection
with a liquidation, dissolution or winding up of the business of the Company.
If the Company has insufficient assets to permit payment of the
Liquidation Amount in full to all Holders of Preferred Stock, the assets of the
Company shall be distributed ratably to such Holders in proportion to the
Liquidation Amount to which each such Holder otherwise would be entitled.
To the extent applicable, after the full Liquidation Amount on all
outstanding shares of Preferred Stock has been paid, any remaining funds and
assets of the Company legally available for distribution to stockholders shall
be distributed in accordance with the Company's Certificate of Incorporation and
any distribution to the holders of the Common Stock shall be made on a PRO RATA
basis.
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SECTION 7. REPURCHASE AT THE OPTION OF HOLDERS.
7.1 CHANGE OF CONTROL.
Each Holder of Preferred Stock shall have the right to require the
Company to repurchase such Holder's shares of Preferred Stock for cash in
immediately available funds at the following applicable redemption price, upon
the occurrence of a Change of Control, in accordance with the procedures set
forth below:
(1) if the Change of Control occurs on or prior to the third
anniversary of the Issue Date, such redemption price shall be 101% of
the Liquidation Amount plus accrued and unpaid dividends to the date of
repurchase; and
(2) if the Change of Control occurs after such third
anniversary, 100% of the Liquidation Amount plus accrued and unpaid
dividends to the date of repurchase.
7.2 ACCELERATION OF INDEBTEDNESS.
Each Holder of Preferred Stock shall have the right to require the
Company to repurchase such Holder's shares of Preferred Stock, for cash in
immediately available funds at the Optional Redemption Price, in accordance with
the procedures set forth below, upon the acceleration of the Company's
obligations under the Credit Documents (an "ACCELERATION EVENT").
7.3 PROCEDURES.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of the Preferred Stock as a result of a Change of Control or an
Acceleration Event. To the extent that the provisions of any securities laws or
regulations conflict with this SECTION 7, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this SECTION 7 by virtue of such conflict.
If a Change of Control or Acceleration Event has occurred, the Company
shall give prompt written notice of such Change of Control or Acceleration Event
to the Holders of Preferred Stock, describing in reasonable detail the material
terms and conditions and, in the case of a Change of Control, the date of
consummation thereof, to each Holder of Preferred Stock and stating that such
Holder has the right to require the Company (to the extent provided herein) to
purchase such Holder's shares of Preferred Stock and establishing an expiration
time for the Holders to elect repurchase of their shares (which in no event
shall be less than 10 Business Days after the Holders' receipt of such notice).
Within 10 Business Days after receipt by the Company of any such
election by any Holder of Preferred Stock, the Company shall repurchase the
aggregate number of shares of Preferred Stock specified therein. Payment by the
Company to the Holders shall be made upon surrender by the Holders of such
shares of Preferred Stock to the Company.
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Notwithstanding the foregoing, (i) prior to any obligation of the
Company to purchase any shares of Preferred Stock upon the occurrence of a
Change of Control or Acceleration Event, the Company covenants to, within 60
days following such Change of Control or Acceleration Event, either (x) pay in
full in cash all amounts owing in respect of its Outstanding Indebtedness for
Money Borrowed or (y) obtain from all holders of its Outstanding Indebtedness
for Money Borrowed a Change-of-Control Consent, in the case of a Change of
Control, or an Acceleration Consent, in the case of an Acceleration Event, and
(ii) the Company shall not be required to purchase any shares of Preferred Stock
pursuant to SECTION 7.1 and 7.2 to the extent it does not have legally available
funds to effect such purchase. In the event that the Company does not comply
with the covenant contained in clause (i) of the immediately preceding sentence,
the Company hereby acknowledges and agrees that the Holders shall be entitled to
seek any and all available equitable relief, in an action in law or equity in
any court of competent jurisdiction or otherwise, to cause the Company to comply
with such covenant. To the extent that the Company is not required or permitted
to purchase any shares of Preferred Stock upon the occurrence of a Change of
Control or an Acceleration Event as provided for in this SECTION 7 or the
Company fails to comply with the covenant contained in the immediately
proceeding, such event shall, nevertheless, constitute an Event of Noncompliance
from and after the date of notice of acceptance of the Change of Control or
Acceleration Event offer by a Holder until such repurchase is effected, without
regard to whether such obligation to repurchase is delayed or deferred because
the Company has not repaid such Outstanding Indebtedness for Money Borrowed or
obtained such Change-of-Control Consent or Acceleration Consent or has legally
available funds to effect such purchase. This paragraph, however, shall not in
any way affect the right of the Holders of Preferred Stock to receive an
increased dividend upon the occurrence of an Event of Noncompliance.
If the funds of the Company legally available for purchase of shares of
the Preferred Stock then required to be purchased are insufficient to effect
such purchase in full, those funds that are legally available shall be used to
purchase the maximum possible number of shares of the Preferred Stock, which
shares to be purchased shall be allocated PRO RATA among the holders of the
Preferred Stock based on the number of shares of the Preferred Stock held by
such holders. At any time and from time to time thereafter, when additional
funds of the Company are legally available to pay its obligation to purchase all
of the outstanding shares of Preferred Stock required to be purchased pursuant
to this ARTICLE VII, such funds shall be immediately used to pay such purchase
obligation until the balance of such shares have been purchased. If and so long
as such purchase obligation shall not be fully discharged, dividends on any
remaining outstanding shares of Preferred Stock shall continue to accrue,
accumulate and compound and be added to the dividends payable hereunder.
SECTION 8. CERTAIN COVENANTS.
8.1 Until the time that no shares of Preferred Stock remain
outstanding, the Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, take any of the following actions without first
obtaining the written approval of the Majority Holders:
(1) alter or modify the terms, rights, preferences or
privileges of the Preferred Stock; increase the authorized number of
shares of Preferred Stock; or authorize the
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issuance of, issue or sell any additional shares of Preferred Stock
other than issuances of Dividend-in-Kind Shares;
(2) create, authorize or issue any Senior Securities or Parity
Securities;
(3) (i) declare, pay or set aside for payment any dividend on,
or make any other distribution (whether in cash or other
property) in respect of, any shares of any class or series of
Capital Stock of the Company (other than the Preferred Stock),
except for any dividends or distributions payable solely in
shares of any such class or series of Capital Stock of the
Company (with respect to which the dividend or distribution is
being paid);
(ii) permit any of its Subsidiaries to declare, pay or set
aside for payment to any Odyssey Party any dividend on, or
make to any Odyssey Party any other distribution (whether in
cash or other property) in respect of, any class or series of
Capital Stock of such Subsidiary, except for dividends or
distributions payable solely in shares of any such class or
series of Capital Stock (with respect to which the dividend or
distribution is being paid);
(iii) redeem, purchase or otherwise acquire any shares of
Capital Stock or any Capital Stock Equivalents of the Company
for any consideration (which shall include any cash,
securities or other property being paid to or made available
for a sinking fund or otherwise for the redemption, purchase
or acquisition of any such shares), other than redemptions,
purchases or acquisitions of the Preferred Stock (on the terms
provided herein) and Management Redemptions; or
(iv) permit any of the Company's Subsidiaries to redeem,
purchase, or otherwise acquire from any Odyssey Party any
shares of Capital Stock or Capital Stock Equivalents of such
Subsidiary for any consideration (which shall include any
cash, securities or other property being paid to or made
available for a sinking fund or otherwise for the purchase,
redemption or acquisition of any such shares), other than
Management Redemptions;
(4) incur or issue any Acquisition Indebtedness if, after
giving effect to such incurrence or issuance, the Company's
Consolidated Leverage Ratio would be greater than or equal to 5.5 to
1.0;
(5) effect or enter into any agreement with respect to any
merger, consolidation, statutory share exchange or other reorganization
involving the Company unless the surviving entity in such transaction,
if other than the Company, expressly assumes all obligations of the
Company with respect to the Preferred Stock and all surviving
obligations under the Investment Agreement;
(6) enter into any transactions, except as expressly permitted
by the Company's Certificate of Incorporation or the PIK Notes
Indenture, with any Affiliate; or
(7) amend the Company's Certificate of Incorporation or bylaws
in a manner that would materially and adversely affect the Holders of
Preferred Stock (including any
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such amendment, change, or alteration that is effected in connection
with any merger, consolidation, statutory share exchange, or other
reorganization involving the Company).
8.2 FINANCIAL STATEMENTS. So long as any shares of Preferred Stock are
outstanding, the Company shall furnish, or shall cause to be furnished, to the
Holders:
(1) MONTHLY REPORTS. Within 30 days after the end of each
fiscal month of the Company, the consolidated balance sheet of the
Company and its Subsidiaries as of the end of such fiscal month and the
related consolidated statements of income for such fiscal month and for
the elapsed portion of the fiscal year ended with the last day of such
fiscal month, and comparable figures for the corresponding fiscal month
in the prior fiscal year, all of which shall be certified by a
Financial Officer of the Company that they fairly present in all
material respects on a basis consistent with GAAP the financial
condition of the Company and its Subsidiaries as of the dates indicated
and the results of their operations for the periods indicated, subject
to normal year-end audit adjustments and the absence of footnotes.
(2) QUARTERLY FINANCIAL STATEMENTS. Within 45 days after the
close of the first three quarterly accounting periods in each fiscal
year of the Company, (i) the consolidated balance sheet of the Company
and its Subsidiaries as at the end of such quarterly accounting period
and the related consolidated statements of income and retained earnings
and cash flows for such quarterly accounting period and for the elapsed
portion of the fiscal year ended with the last day of such quarterly
accounting period, and comparative figures for the corresponding
quarterly accounting period in the prior fiscal year, and (ii)
management's discussion and analysis of the important operational and
financial developments during such quarterly accounting period, all of
which shall be in reasonable detail and certified by Financial Officer
of the Company that they fairly present in all material respects in
accordance with GAAP the financial condition of the Company and its
Subsidiaries as of the dates indicated and the results of their
operations and changes in their cash flows for the periods indicated,
subject to normal year-end audit adjustments and the absence of
footnotes.
(3) ANNUAL FINANCIAL STATEMENTS. Within 90 days after the
close of each fiscal year of the Company, the consolidated balance
sheet of the Company and its Subsidiaries as at the end of such fiscal
year and the related consolidated statements of income and retained
earnings and cash flows for such fiscal year, and comparative
consolidated figures for the preceding fiscal year certified by the
Company's independent certified public accountants (which shall be of
recognized national standing and reasonably acceptable to the Holders,
PROVIDED that in any event any of the "Big Five" accounting firms,
including without limitation Deloitte & Touche LLP, shall be acceptable
to the Holders), in each case to the effect that such statements fairly
present in all material respects the financial condition of the Company
and its Subsidiaries as of the dates indicated and the results of their
operations and changes in its financial position for the periods
indicated in conformity with GAAP applied on a basis consistent with
prior years, together with a certificate of such accounting firm
stating that in the course of its regular audit of the business of the
Company and its Subsidiaries, which audit was conducted in accordance
with generally accepted auditing standards, no Event of
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Noncompliance relating to financial or accounting matters that have
occurred and are continuing has come to their attention or, if such an
Event of Noncompliance has come to their attention, a statement as to
the nature thereof.
(4) OFFICER'S CERTIFICATES. At the time of the delivery of the
financial statements provided for above, a certificate of a Financial
Officer of the Company to the effect that no Event of Noncompliance
exists or, if any Event of Noncompliance does exist, specifying the
nature and extent thereof, which certificate shall, if delivered in
connection with the financial statements in respect of a period ending
on the last day of a fiscal quarter or fiscal year of the Company, set
forth (in reasonable detail) the calculations required to establish
whether the Company and its Subsidiaries were in compliance with the
financial covenant contained in SECTION 8(1)(4).
SECTION 9. AMENDMENT, SUPPLEMENT AND WAIVER.
Except as provided in the next two succeeding paragraphs, this
Certificate of Designations or the Preferred Stock may be amended or
supplemented with the consent of the Majority Holders (including without
limitation consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Preferred Stock), and any existing compliance or
noncompliance with any provision of this Certificate of Designations or the
Preferred Stock may be waived with the consent of the Majority Holders
(including without limitation consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Preferred Stock).
Without the consent of each Holder affected, an amendment or waiver
shall not (with respect to any shares of Preferred Stock held by a
non-consenting Holder):
(1) alter the voting rights with respect to the Preferred
Stock set forth in this SECTION 9 or reduce the number of shares of
Preferred Stock whose Holders must consent to an amendment, supplement
or waiver;
(2) change or alter in any way adverse to the Holders the
Liquidation Amount, the Mandatory Redemption Date or the Optional
Redemption Price of the Preferred Stock;
(3) reduce the rate of or change the time for payment of
dividends on any Preferred Stock;
(4) waive a failure of the Company to pay the Liquidation
Amount, or dividends or premium, if any, on, the Preferred Stock as
provided herein;
(5) make any Preferred Stock payable in any form or money
other than that stated in this Certificate of Designations; or
(6) make any change in the preceding amendment and waiver
provisions.
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Notwithstanding the preceding, without the consent of any Holder of
Preferred Stock, the Company may (to the extent permitted by Delaware law) amend
or supplement this Certificate of Designations:
(1) to provide for the assumption of the Company's obligations
to Holders of Preferred Stock in the case of a merger or consolidation
or sale of all or substantially all of the Company's assets; or
(2) to make any change that would provide any additional
rights or benefits to the Holders of Preferred Stock or that does not
adversely affect the legal rights under this Certificate of
Designations of any such Holder.
SECTION 10. REISSUANCE.
Preferred Stock redeemed or otherwise acquired or retired by the
Company shall assume the status of authorized but unissued preferred stock and
may thereafter be reissued in the same manner as the other authorized but
unissued preferred stock, but not as Preferred Stock.
SECTION 11. PREFERRED STOCK CERTIFICATES; TRANSFERS.
11.1 FORM AND DATING
The certificates evidencing the shares of Preferred Stock shall be
substantially in the form of the certificates issued on the Issue Date. Each
such certificate may have notations, legends or endorsements required by law,
stock exchange rule or usage. Each Preferred Stock certificate shall be dated
the date of its issuance (or with respect to Dividend-in-Kind Shares in any
event on the applicable Dividend Payment Date). The terms and provisions
contained in the Preferred Stock certificates shall constitute, and are hereby
expressly made, a part of this Certificate of Designations.
11.2 EXECUTION
Two officers shall sign the certificates representing the Preferred
Stock for the Company by manual or facsimile signature.
If an officer whose signature is on a certificate representing
Preferred Stock no longer holds that office at the time the Company issues such
certificate, the shares of Preferred Stock evidenced thereby shall nevertheless
be valid.
11.3 TRANSFER AND EXCHANGE
(a) If any Holder of shares of Preferred Stock proposes to transfer
such shares, then, upon receipt by the Company of the following documentation:
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(1) if such shares are being transferred to a "qualified
institutional buyer" in accordance with Rule 144A under the Securities
Act of 1933, as amended, a certificate to that effect in form and
substance satisfactory to the Company;
(2) if such shares are being transferred pursuant to another
exemption from the registration requirements of the Securities Act, a
certificate to that effect in form and substance satisfactory to the
Company, and, in each such case set forth in this subparagraph (2), if
the Company so requests, an opinion of counsel in form and substance
acceptable to the Company to the effect that such transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein are no longer required in order to maintain
compliance with the Securities Act;
the Company shall effect the transfer; PROVIDED that the Company shall have
received documentation reasonably satisfactory to the Company that will enable
the Company to ascertain that such transfer will not result in the Company being
required to withhold or deduct any taxes, levies, imposts, or other governmental
charges with respect to dividends or distributions with respect to such shares;
and, PROVIDED FURTHER, that in no event will the Company be obligated to effect
any transfer of shares of Preferred Stock unless the transfer constitutes a
Permitted Transfer. Any transfer in violation of this SECTION 11.3 shall be void
AB INITIO.
(b) LEGENDS. The following legends shall appear on the face of all
certificates representing shares of Preferred Stock issued under this
Certificate of Designations unless specifically stated otherwise in the
applicable provisions of this Certificate of Designations.
(1) PRIVATE PLACEMENT LEGEND. Except as permitted law, each
certificate shall bear the legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS, AND WILL NOT BE
TRANSFERRED UNLESS THE COMPANY HAS RECEIVED A WRITTEN OPINION
FROM COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY
STATING THAT SUCH TRANSFER IS BEING MADE IN COMPLIANCE WITH
ALL APPLICABLE FEDERAL AND STATE SECURITIES LAWS.
(2) TAX LEGEND. Each certificate shall bear a legend in
substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT
MAY NOT BE TRANSFERRED TO ANY PERSON UNLESS SUCH PERSON
PROVIDES DOCUMENTATION REASONABLY SATISFACTORY TO THE COMPANY
THAT WILL ENABLE THE COMPANY TO ASCERTAIN THAT SUCH TRANSFER
WILL NOT RESULT
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IN THE COMPANY BEING REQUIRED TO WITHHOLD OR DEDUCT ANY TAXES,
LEVIES, IMPOSTS, OR OTHER GOVERNMENTAL CHARGES WITH RESPECT TO
DIVIDENDS OR DISTRIBUTIONS WITH RESPECT TO SUCH SECURITIES.
ANY TRANSFER IN VIOLATION OF THIS LEGEND SHALL BE VOID AB
INITIO.
11.4 REPLACEMENT PREFERRED STOCK
If any mutilated Preferred Stock certificate is surrendered to the
Company and the Company receives evidence to its satisfaction of the
destruction, loss or theft of any Preferred Stock certificate, the Company shall
issue a replacement certificate evidencing Preferred Stock if the Company's
requirements are met. If required by the Company, an indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the Company to
protect the Company from any loss that any of them may suffer if a Preferred
Stock certificate is replaced. The Company may charge for its expenses in
replacing a Preferred Stock certificate.
Every replacement certificate evidencing Preferred Stock is an
additional obligation of the Company and shall be entitled to all of the
benefits of this Certificate of Designations equally and proportionately with
all other Preferred Stock duly issued hereunder.
11.5 OUTSTANDING PREFERRED STOCK
The Preferred Stock outstanding at any time is all the Preferred Stock
issued by the Company except for those canceled by it, those delivered to it for
cancellation, and those described in this SECTION 11 as not outstanding.
If a certificate evidencing Preferred Stock is replaced pursuant to
SECTION 11.4 hereof, it ceases to be outstanding unless the Company receives
proof satisfactory to it that the replaced Preferred Stock is held by a bona
fide purchaser.
SECTION 12. HEADINGS OF SUBDIVISIONS.
The headings of the various subdivisions hereof are for convenience of
reference only and shall not affect the interpretation of any of the provisions
hereof.
SECTION 13. SEVERABILITY OF PROVISIONS.
If any powers, preferences and relative, participating, optional and
other special rights of the Preferred Stock, and the qualifications, limitations
and restrictions thereof, set forth in this Certificate of Designations (as it
may be amended from time to time) are invalid, unlawful or incapable of being
enforced by reason of any rule of law or public policy, all other powers,
preferences and relative, participating, optional and other special rights of
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the Preferred Stock, and the qualifications, limitations and restrictions
thereof, set forth in this Certificate of Designations (as so amended) that can
be given effect without the invalid, unlawful or unenforceable powers,
preferences and relative, participating, optional and other special rights of
the Preferred Stock, and the qualifications, limitations and restrictions
thereof, shall, nevertheless, remain in full force and effect, and no powers,
preferences and relative, participating, optional or other special rights of the
Preferred Stock, and the qualifications, limitations and restrictions thereof,
set forth herein shall be deemed dependent upon any other such powers,
preferences and relative, participating, optional or other special rights of
Preferred Stock, and qualifications, limitations and restrictions thereof,
unless so expressed herein.
SECTION 14. AVAILABLE REMEDIES.
Subject to Section 6.11 of the Investment Agreement, any Holder of
Preferred Stock may proceed to protect and enforce its rights and the rights of
any other Holder of Preferred Stock with such legal and equitable relief,
including injunctive and recissory relief, as any court of competent
jurisdiction deems appropriate to specifically enforce any terms or provisions
hereof, all to the extent not inconsistent with the Delaware General Corporation
Law. The provisions of Section 6.11 of the Investment Agreement (and the
definitions related thereto) are incorporated into and are made a part of this
Certificate of Designations as if such provisions and related definitions were
set forth herein in their entirety.
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IN WITNESS WHEREOF, the Company has caused this Certificate of
Designations to be duly executed this 31st day of May, 2001.
TRANSDIGM HOLDING COMPANY
By: /s/ Gregory Rufus
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Name: Gregory Rufus
Title: Chief Financial Officer