Exhibit 4.4
TOTAL CONTAINMENT, INC.
FORM OF SERIES C FLOATING RATE
PREFERRED STOCK
THIS CERTIFIES that Canam Steel Corporation is the registered
holder of ________ Shares of Series C Floating Rate Preferred Stock transferable
only on the books of the Corporation by the holder hereof in person or by
Attorney upon surrender of this Certificate properly endorsed.
IN WITNESS WHEREOF, the said Corporation has caused this
Certificate to be signed by its duly authorized officers and its Corporate Seal
to be hereunto affixed this _____ day of ____________, A.D., _____.
/s/ Secretary /s/ President
AMENDED AND RESTATED STATEMENT WITH RESPECT TO
SHARES-DOMESTIC BUSINESS CORPORATION
DSCB:15-1522
In compliance with the requirements of 54 Pa. C.S. 1522(b)
(relating to statement with respect to shares), the undersigned corporation,
desiring to state the designation and voting rights, preferences, limitations,
and special rights, if any, of a class or series of its shares, hereby states
that:
1. The name of the corporation is: TOTAL CONTAINMENT, INC.
2. The resolution amending the Articles under 15 Pa. C.S. 1522(b) is set
forth in full in Attachment A appended hereto and made a part hereof.
3. The aggregate number of shares of such class or series is 80 shares.
4. The date of adoption of such resolution was August 9, 2000.
5. The resolution shall be effective upon the filing of this statement
with respect to shares in the Department of State.
IN TESTIMONY WHEREOF, the undersigned corporation has caused
this statement to be signed by a duly authorized officer thereof this 10th day
of November, 2000.
TOTAL CONTAINMENT, INC.
By /s/ John R. Wright, Jr.
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John R. Wright, Jr.
President and Chief Operating Officer
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Attachment A
TOTAL CONTAINMENT, INC.
Resolutions with Respect to
Series C Floating Rate Preferred Stock
of Total Containment, Inc.
RESOLVED, that pursuant to authority vested in the Board of Directors
by Article SIXTH of the Articles of Incorporation, this Board of Directors
hereby authorizes the issuance of a series of Preferred Stock of Total
Containment, Inc. (the "Corporation") and hereby fixes the designation and the
terms and conditions and relative rights and preferences thereof, in addition to
those set forth in the Articles of Incorporation, as follows:
1. Designation of Series. The distinctive designation of this
series of Preferred Stock shall be as follows: "Series C Floating Rate Preferred
Stock." The Series C Floating Rate Preferred Stock does not have par value. Each
share of the Series C Floating Rate Preferred Stock shall be identical in all
respects with the other shares of Series C Floating Rate Preferred Stock.
2. Number of Shares. The number of authorized shares of Series C
Floating Rate Preferred Stock shall initially be eighty (80). Shares of the
Series C Floating Rate Preferred Stock that are redeemed, purchased or otherwise
acquired by the Corporation may be reissued and the foregoing number of
authorized shares shall not be reduced by the number of shares of the Series C
Floating Rate Preferred Stock which are redeemed, purchased or otherwise
acquired by the Corporation.
3. Stated Value. Each share of Series C Floating Rate Preferred
Stock shall have a "Stated Value" of Fifty Thousand Dollars ($50,000) per share.
4. Dividends.
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(a) The holders of shares of Series C Floating Rate
Preferred Stock shall be entitled to receive, as and if declared by the Board of
Directors of the Corporation, out of any funds legally available for the
purpose, dividends which accrue under this Paragraph 4, which shall be paid
quarterly in arrears, on the fifteenth day of each of April, July, October, and
January, with respect to the preceding calendar quarter (such day known as the
"Required Dividend Payment Date").
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(b) The shares of Series C Floating Rate Preferred Stock
shall accrue dividends upon the Stated Value of such shares during each calendar
quarter at a rate equal to the "Reference Rate" (as hereinafter defined) as in
effect on the first day of the second month of each calendar quarter, plus three
and one-half percent (3.50%), but in no event shall the dividend rate be less
than twelve percent (12.00%). However, if from time to time any accrued
dividends have not been timely paid in accordance with this Paragraph 4 and are
in arrears, then the shares of Series C Floating Rate Preferred Stock shall
accrue dividends upon the Stated Value of such shares at the "Arrearage Rate"
(as hereinafter defined) as in effect on the first day of each calendar quarter,
provided, that the Arrearage Rate shall apply from the date from which dividends
become in arrears until all dividends then due and owing have been paid. Accrued
dividends shall be calculated and paid upon the basis of a 360 day year and
equal calendar quarters of 90 days each.
(c) Unpaid dividends shall cumulate. No interest, or sum
of money in lieu of interest, shall be payable in respect of any dividend
payment or payments which may be in arrears.
(d) No cash dividend or other cash distribution shall be
declared or paid on shares of common stock or on other stock of the Corporation
ranking junior to the Series C Floating Rate Preferred Stock in the payment of
dividends unless and until all accrued and unpaid Series C Floating Rate
Preferred Stock dividends have been concurrently declared and concurrently paid.
5. Reference Rate, etc. The "Reference Rate" shall be the "prime
rate" as defined by and reported in the money rates section of The Wall Street
Journal (being defined, on the date hereof, as the base rate on corporate loans
posted by at least 75% of the 30 largest banks in the United States), as such
may change from time to time. The "Arrearage Rate" shall be equal to the
Reference Rate as in effect on the relevant date plus one-half of one percent
(0.50%).
6. Liquidation Rights.
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(a) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the holders of the
Series C Floating Rate Preferred Stock shall be entitled to receive, before any
payment in regard to or distribution of the assets of the Corporation shall be
made to or set apart for any class or classes of common stock or other stock of
the Corporation ranking junior to the Series C Floating Rate Preferred Stock in
the distribution of liquidation proceeds, an amount equal to the Stated Value
per share, plus an amount equal to all dividends accrued and unpaid thereon to
the date of final distribution to such holders; but such holders shall be
entitled to no further payments whatsoever. The Series C Floating Rate Preferred
Stock shall be of equal priority with all shares of the Corporation's Series A
Floating Rate Preferred Stock and Series B Floating Rate Preferred Stock.
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(b) None of the following shall be considered a
liquidation, dissolution or winding up of the Corporation within the meaning of
this Paragraph 6:
(i) a consolidation or merger of the Corporation
with or into any other corporation;
(ii) a merger of any other corporation into the
Corporation;
(iii) a reorganization of the Corporation;
(iv) the purchase or redemption of all or part of
the outstanding shares of any class or series of the Corporation;
(v) a sale or transfer of all or any part of the
assets of the Corporation;
(vi) a share exchange to which the Corporation is
a party; or
(vii) a division of the Corporation.
7. No Conversion. The holders of Series C Floating Rate Preferred
Stock shall not have the right to convert such stock into any other shares,
whether common stock or other stock ranking senior or junior to the Series C
Floating Rate Preferred Stock.
8. Redemption.
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(a) Right to Redeem. Subject to the limitations set forth
in this Paragraph 8(a), the Corporation may in its sole and absolute discretion
at any time and from time to time redeem some or all outstanding shares of
Series C Floating Rate Preferred Stock at a redemption price equal to the Stated
Value per share plus any accrued and unpaid dividends thereon to the redemption
date. Redemption shall be made following notice given as hereinafter specified.
The redemption price shall be payable in cash. The Corporation may effect a
redemption of some or all outstanding shares of Series C Floating Rate Preferred
Stock only if:
(i) such redemption shall have been approved by
the affirmative vote of at least a majority of the members of the audit
committee of the Corporation's Board of Directors who (i) are not employees or
officers of the Corporation, (ii) are independent of the holders of Series C
Floating Rate Preferred Stock and, (iii) who have no financial or beneficial
interest in the Series C Floating Rate Preferred Stock or in the redemption
thereof; and
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(ii) Such redemption shall have been evidenced by
a resolution, certified as true and correct by the appropriate officer of the
Corporation.
(b) Notice. Notice of every redemption of shares of
Series C Floating Rate Preferred Stock shall be mailed by first class mail,
postage prepaid, addressed to the holders of record of the shares to be redeemed
at their respective last addresses as they shall appear on the books of the
Corporation. Such mailing shall be at least 5 days prior to the redemption date;
but failure to mail such notice or any defect therein or in the mailing thereof
shall not affect the validity of the proceeding for the redemption of any shares
to be redeemed. The notice of redemption shall state: (i) the redemption date
("Redemption Date") determined by the Board of Directors of the Corporation in
compliance with subparagraph (a); (ii) the amount of accrued and unpaid
dividends on each share and the amount of the redemption price; (iii) that on
the Redemption Date the redemption price plus the amount of accrued but unpaid
dividends will become due and payable upon each share as of the close of
business on the business day prior to such Redemption Date; and (iv) the place
or places where certificates representing the shares to be redeemed are to be
surrendered for payment of the redemption price.
(c) Deposit of Funds. If notice of redemption shall have
been duly given, and if on or before the Redemption Date specified therein the
Corporation shall have deposited the funds necessary for such redemption with a
Qualified Institution (as defined below) in trust for the pro rata benefit of
the holders of the shares called for redemption, then, notwithstanding that any
certificates for shares so called for redemption shall not have been surrendered
for cancellation, from and after the Redemption Date, all shares so called for
redemption shall no longer be deemed to be outstanding and all other rights with
respect to such shares shall forthwith cease and terminate, except only the
right of the holders thereof to receive from such Qualified Institution at any
time after the Redemption Date the funds so deposited. Any interest accrued on
such funds and not necessary to pay for shares redeemed shall be paid to the
Corporation from time to time. Any funds so set aside or deposited, as the case
may be, and unclaimed at the end of two years from the applicable Redemption
Date shall, to the extent permitted by law, shall be released or repaid to the
Corporation, after which repayment the holders of the shares so called for
redemption shall look only to the Corporation for payment thereof. "Qualified
Institution" means a bank or trust Corporation organized and in good standing
under the laws of the United States of America or of the State of Pennsylvania,
shall be doing business in Pennsylvania, shall have capital, surplus and
undivided profits aggregating at least $25,000,000 according to its last
published statement of condition, and shall be identified in the notice of
redemption.
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(d) Certain Amendments Prohibited. The provisions of
Paragraph 8(a) hereof shall not be amended or superseded, unless such amendment
shall have been approved by the affirmative vote of at least a majority of the
members of the audit committee of the Corporation's Board of Directors who (i)
are not employees or officers of the Corporation, (ii) are independent of the
holders of Series C Floating Rate Preferred Stock, and (iii) have no financial
or beneficial interest in the Series C Floating Rate Preferred Stock or in the
redemption thereof. The provisions of Paragraph 8(d) hereof, which specify the
manner in which Paragraph 8(a) hereof shall be amended, constitute a covenant
between the Corporation, the holders of the Corporation's common stock, and the
holders of the Series C Floating Rate Preferred Stock.
9. Voting. The shares of Series C Floating Rate Preferred Stock
shall have no voting rights whatsoever.
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