Exhibit 3.1
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF DESIGNATION
OF THE POWERS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL AND OTHER SPECIAL RIGHTS
OF 12 1/4% SENIOR EXCHANGEABLE PREFERRED STOCK DUE 2010
AND QUALIFICATIONS, LIMITATIONS AND RESTRICTIONS THEREOF
OF
DAY INTERNATIONAL GROUP, INC.
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Under Section 242 of the
Delaware General Corporation Law
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Day International Group, Inc., a Delaware corporation (hereinafter
called the "COMPANY"), hereby certifies to the Secretary of State of Delaware
that:
FIRST: The Certificate of Designation of the Powers, Preferences and
Relative, Participating, Optional and Other Special Rights of 12 1/4% Senior
Exchangeable Preferred Stock Due 2010 and Qualifications, Limitations and
Restrictions Thereof, filed with the Secretary of State of Delaware on March 18,
1998 (the "12 1/4% CERTIFICATE OF DESIGNATION"), is hereby amended as follows:
1. The second sentence in paragraph (a) is hereby deleted and replaced
with the following:
"The number of shares constituting such series shall be 105,000 shares
of Exchangeable Preferred Stock consisting of 35,000 shares of
Exchangeable Preferred Stock issued in exchange for shares of
Exchangeable Preferred Stock initially issued plus up to 70,000
additional shares of Exchangeable Preferred Stock which may be issued
to pay dividends on the Exchangeable Preferred Stock if the Company
elects to pay dividends in additional shares of Exchangeable Preferred
Stock.
2. The third and fourth sentences in paragraph (c)(i) are hereby
deleted and replaced with the following:
"Dividends may be paid, at the Company's option, either in cash or by
the issuance of additional fully paid and non-assessable shares of
Exchangeable Preferred Stock (including fractional shares) having an
aggregate liquidation preference equal to the amount of such dividends
(rounded to the nearest whole cent). In the event that dividends are
declared and paid through the issuance of additional fully paid and
non-assessable shares of Exchangeable Preferred Stock as provided in
the previous sentence, such dividends shall be deemed paid in full and
shall not accumulate."
3. The first sentence of paragraph (c)(v) is hereby deleted and
replaced with the following:
"No full dividends shall be declared by the Board of Directors or paid
or funds set apart for payment of dividends by the Company on any
Parity Securities for any period unless (i) full cumulative dividends
shall have been or contemporaneously are declared, and paid in full or
declared, and (in the case of dividends payable in cash) a sum in cash
set apart sufficient for such payment, on the Exchangeable Preferred
Stock for all Dividend Periods following March 15, 2003, and
terminating on or prior to the date of payment of such full dividends
on such Parity Securities and (ii) the Company redeems (by payment of
cash to the Holders) a number of shares of Exchangeable Preferred Stock
(not including for this calculation the redemption of Exchangeable
Preferred Stock by the Company on December 5, 2005) having an aggregate
liquidation preference equal to or greater than an amount equal to the
full cumulative dividends paid or payable to the Holders and not paid
in cash to the Holders for all Dividend Periods following March 15,
2003 and terminating on or prior to the date of payment of such full
dividends on such Parity Securities."
4. Paragraph (c)(vi)(B) is hereby deleted and replaced with the
following:
"So long as any shares of Exchangeable Preferred Stock are outstanding,
the Company shall not declare, pay or set apart for payment any
dividend on any of the Junior Securities or make any payment on account
of, or set apart for payment money for a sinking or other similar fund
for, the purchase, redemption or other retirement of, any of the Junior
Securities or any warrants, rights, calls or options exercisable for or
convertible into any of the Junior Securities, or make any distribution
in respect thereof, either directly or indirectly, and whether in cash,
obligations or shares of the Company or other property (other than
dividends on Junior Securities paid in additional shares of Junior
Securities), and shall not permit any corporation or other entity
directly or indirectly controlled by the Company to purchase or redeem
any of the Junior Securities or any such warrants, rights, calls or
options unless (i) full cumulative dividends determined in accordance
herewith have been paid in full on the Exchangeable Preferred Stock,
and (ii) the Company redeems (by payment of cash to the Holders) a
number of shares of Exchangeable Preferred Stock (not including for
this calculation the redemption of Exchangeable Preferred Stock by the
Company on December 5, 2005) having an aggregate liquidation preference
equal to or greater than an amount equal to the full cumulative
dividends paid or payable to the Holders and not paid in cash to the
Holders following March 15, 2003 and terminating on or prior to the
date of any such payment, purchase, redemption or other retirement."
5. Paragraph (c)(vi)(C) is hereby deleted and replaced with the
following:
"So long as any shares of Exchangeable Preferred Stock are outstanding,
the Company shall not make any payment on account of, or set apart for
payment money for a sinking or other similar fund for, the purchase,
redemption or other retirement of, any of the Parity Securities or any
warrants, rights, calls or options exercisable for or convertible into
any of the Parity Securities, and shall not permit any corporation or
other entity directly or indirectly controlled by the Company to
purchase or redeem any of the Parity Securities or any such warrants,
rights calls or options unless (i) the dividends determined
in accordance herewith on the Exchangeable Preferred Stock have been
paid in full, and (ii) the Company redeems (by payment of cash to the
Holders) a number of shares of Exchangeable Preferred Stock (not
including for this calculation the redemption of Exchangeable Preferred
Stock by the Company on December 5, 2005) having an aggregate
liquidation preference equal to or greater than an amount equal to the
full cumulative dividends paid or payable to the Holders and not paid
in cash to the Holders following March 15, 2003 and terminating on or
prior to the date of any such payment, purchase, redemption or other
retirement."
6. Paragraph (e)(i)(A)(1) is hereby deleted and replaced with the
following:
"(1) unless prior thereto (x) the Company redeems (by payment of cash
to the Holders) a number of shares of Exchangeable Preferred Stock (not
including for this calculation the redemption of Exchangeable Preferred
Stock by the Company on December 5, 2005) having an aggregate
liquidation preference equal to or greater than an amount equal to the
full cumulative dividends paid or payable to the Holders and not paid
in cash to the Holders for all Dividend Periods following March 15,
2003 and terminating on or prior to the Redemption Date and (y) full
unpaid cumulative dividends for an amount equal to a prorated dividend
for the period from the Dividend Payment Date immediately prior to the
Redemption Date to the Redemption Date shall have been or immediately
prior to the Redemption Notice (as defined in paragraph (e)(iii)(A)
hereof) are declared and paid in cash or declared and a sum set apart
sufficient for such cash payment on the Redemption Date, on the
outstanding shares of the Exchangeable Preferred Stock or"
7. Paragraph (f)(iii)(B)(1) is hereby deleted and replaced with the
following:
"(1) in the event such right arises due to a Dividend Default, all
accumulated dividends that are in arrears on the Exchangeable Preferred
Stock are paid in full, and the Company shall have redeemed (by payment
of cash to the Holders) a number of shares of Exchangeable Preferred
Stock (not including for this calculation the redemption of
Exchangeable Preferred Stock by the Company on December 5, 2005) having
an aggregate liquidation preference equal to or greater than an amount
equal to the full cumulative dividends paid or payable to the Holders
and not paid in cash to the Holders following March 15, 2003 and
terminating on or prior to such time; and"
8. Paragraph (h)(iii)(B) is hereby deleted and replaced with the
following:
"On the repurchase date, all shares of Exchangeable Preferred Stock
purchased by the Company under this paragraph (h) shall be delivered to
the Trustee for cancellation, and the Company shall pay the purchase
price plus accumulated and unpaid dividends, if any, in cash to the
Holders entitled thereto."
9. Paragraph (m)(ii)(y) is hereby deleted and replaced with the
following:
"(y) the Company shall not have (i) declared and paid in full all
cumulative dividends on the Exchangeable Preferred Stock payable on
Dividend Payment Dates occurring after March 15, 2003, and (ii)
redeemed (by payment of cash to the Holders) a number of shares of
Exchangeable Preferred Stock (not including for this calculation the
redemption of Exchangeable Preferred Stock by the Company on December
5, 2005) having an
aggregate liquidation preference equal to or greater than an amount
equal to the full cumulative dividends paid or payable to the Holders
and not paid in cash to the Holders on all Dividend Payment Dates
occurring after March 15, 2003 and prior to the time of such Junior
Payment."
10. The definition of "Consolidated Interest Expense" in Paragraph (n)
is hereby deleted and replaced with the following:
""Consolidated Interest Expense" means, for any period, the total
consolidated interest expense of the Company and its Restricted Subsidiaries,
the Company and its consolidated Restricted Subsidiaries, determined in
accordance with GAAP, minus, to the extent included in such interest expense,
amortization or write-off of financing costs, and plus, to the extent incurred
by the Company and its Restricted Subsidiaries in such period but not included
in such interest expense, without duplication, (i) interest expense attributable
to Capitalized Lease Obligations and the interest component of rent expense
associated with Attributable Debt in respect of the relevant lease giving rise
thereto, determined as if such lease were a capitalized lease, in accordance
with GAAP, (ii) amortization of debt discount, (iii) interest in respect of
Indebtedness of any other Person that has been Guaranteed by the Company or any
Restricted Subsidiary, (iv) non-cash interest expense, (v) net costs associated
with Hedging Obligations, (vi) cash or non-cash dividends in respect of all
Preferred Stock of the Company and its Restricted Subsidiaries and Disqualified
Stock of the Company, in each case held by Persons other than the Company or a
Restricted Subsidiary, (vii) cash redemptions of shares of Exchangeable
Preferred Stock (not including for this calculation the redemption of
Exchangeable Preferred Stock by the Company on December 5, 2005); provided,
that, the maximum amount that can be included as interest expense pursuant to
this clause (vii) for any such period shall be an amount equal to the full
cumulative dividends paid or payable to the Holders and not paid in cash to the
Holders for all Dividend Periods following March 15, 2003 and terminating on or
prior to the end of such period; and (viii) the cash contributions to any
employee stockownership plan or similar trust to the extent such contributions
are used by such plan or trust to pay interest to any Person (other than the
Company or any Restricted Subsidiary) on Indebtedness Incurred by such plan or
trust; provided, however, that there shall be excluded therefrom any such
interest expense of any Unrestricted Subsidiary to the extent the related
Indebtedness is not Guaranteed or paid by the Company or any Restricted
Subsidiary. For purposes of the foregoing, gross interest expense shall be
determined after giving effect to any net payments made or received by the
Company and its Subsidiaries with respect to Interest Rate Agreements."
SECOND: The amendment of the 12 1/4% Certificate of Designation as
herein set forth, has been duly adopted in accordance with the provisions of
Section 242 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, the Company has caused this Amendment to the 12
1/4% Certificate of Designation of the Company to be signed in its name and on
its behalf by the undersigned duly authorized officer this 10th day of May,
2006.
DAY INTERNATIONAL GROUP, INC.
By:
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Name: Thomas J. Koenig
Title: Vice President and Chief
Financial Officer