Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
FCD ACQUISITION CORP.
FIRST: The name of the Corporation is FCD Acquisition Corp. (hereinafter
the "Corporation").
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of its registered agent at that address is The Corporation
Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware as set forth in Title 8 of the Delaware Code (the
"GCL").
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 1000 shares of Common Stock, each having a par value
of one penny ($.01).
FIFTH: The name and mailing address of the Sole Incorporator is as follows:
Name Mailing Address
---- ---------------
Deborah M. Reusch P.O. Box 636
Wilmington, DE 19899
SIXTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(1) The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors.
(2) The directors shall have concurrent power with the stockholders to
make, alter, amend, change, add to or repeal the By-Laws of the
Corporation.
(3) The number of directors of the Corporation shall be as from time
to time fixed by, or in the manner provided in, the By-Laws of the
Corporation. Election of directors need not be by written ballot unless the
By-Laws so provide.
(4) No director shall be personally liable to the Corporation or any
of its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) pursuant to Section 174 of the Delaware General
Corporation Law or (iv) for any transaction from which the director derived
an improper personal benefit. Any repeal or modification of this Article
SIXTH by the stockholders of the Corporation shall not adversely affect any
right or protection of a director of the
Corporation existing at the time of such repeal or modification with
respect to acts or omissions occurring prior to such repeal or
modification.
(5) In addition to the powers and authority hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation, subject, nevertheless, to the
provisions of the GCL, this Certificate of Incorporation, and any By-Laws
adopted by the stockholders; provided, however, that no By-Laws hereafter
adopted by the stockholders shall invalidate any prior act of the directors
which would have been valid if such By-Laws had not been adopted.
SEVENTH: Meetings of stockholders may be held within or without the State
of Delaware, as the By-Laws may provide. The books of the Corporation may be
kept (subject to any provision contained in the GCL) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-Laws of the Corporation.
EIGHTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
I, THE UNDERSIGNED, being the Sole Incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the GCL, do make this Certificate,
hereby declaring and certifying that this is my act and deed and the facts
herein stated are true, and accordingly have hereunto set my hands this 18th day
of October, 1991.
/s/ Deborah M. Reusch
--------------------------------
Deborah M. Reusch
Sole Incorporator
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RESTATED CERTIFICATE OF INCORPORATION
OF
FCD ACQUISITION CORP.
__________________________________________
Pursuant to Sections 245 and 241 of the General
Corporation Law of the State of Delaware
___________________________________________
Pursuant to Sections 245 and 241 of the General Corporation Law of the
State of Delaware, FCD Acquisition Corp., a Delaware corporation (the
"Corporation"), does hereby certify:
1. That the Corporation was organized in the State of Delaware on October
18, 1991 under the name FCD Acquisition Corp.
2. That the Corporation has not received any payment for any of its stock.
3. That the Corporation's Certificate of Incorporation is hereby amended
and restated to read in its entirety as set forth in Exhibit A attached hereto.
IN WITNESS WHEREOF, FCD Acquisition Corp. has caused this certificate to be
duly executed in its corporate name this 24th day of October, 1991.
/s/ Thomas M. Begel
-----------------------------
Thomas M. Begel
Sole Director
EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
OF
JAC HOLDINGS, INC.
FIRST: The name of the Corporation is JAC Holdings, Inc. (hereinafter the
"Corporation").
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of its registered agent at that address is The Corporation
Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware as set forth in Title 8 of the Delaware Code (the
"GCL").
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 30,000,000 shares of Common Stock, par value $.01 per
share (or in the case of Class I Common and Class J Common (each as defined
below), par value $.0001 per share) (the "Common Stock"), and 100,000 shares of
Preferred Stock, par value $.01 per share (the "Preferred Stock"), which shall
include:
(i) 8,196,428 shares of Class A Common Stock, par value $.01 per share
(the "Class A Common");
(ii) 2,892,857 shares of Class B Common Stock, par value $.01 per
share (the "Class B Common");
(iii) 1,446,429 shares of Class C Common Stock, par value $.01 per
share (the "Class C Common");
(iv) 964,286 shares of Class D Common Stock, par value $.01 per share
(the "Class D Common");
(v) 1,000,000 shares of Class E Common Stock, par value $.01 per share
(the "Class E Common");
(vi) 2,892,857 shares of Class F Common Stock, par value $.01 per
share (the "Class F Common");
(vii) 100 shares of Class G Common Stock, par value $.01 per share
(the "Class G Common");
(viii) 450,000 shares of Class H Common Stock, par value $.01 per
share (the "Class H Common");
(ix) 500,000 shares of Class I Common Stock, par value $.0001 per
share (the "Class I Common"); and
(x) 1,304,347 shares of Class J Common Stock, par value $.0001 per
share (the "Class J Common").
COMMON STOCK
Except as otherwise provided in this Article Fourth or as otherwise
required by applicable law, all shares of Common Stock shall be identical in all
respects and shall entitle the holders thereof to the same rights and
privileges, subject to the same qualifications, limitations and restrictions.
Part 1. Voting Rights.
1A. General. Except as otherwise provided in this Article Fourth or as
otherwise required by applicable law, all holders of Class A Common, Class B
Common, Class C Common, Class D Common, Class E Common, Class H Common, Class I
Common and Class J Common shall be entitled to one vote per share on all matters
to be voted on by the Corporation's stockholders and shall vote together as a
single class. The holders of shares of Class F Common and Class G Common shall
have no voting rights. Except for the additional voting rights of Class A Common
and Class B Common in certain circumstances as provided in Section 1B below and
as otherwise required by applicable law, the required vote on all matters to be
voted on by the Corporation's stockholders shall be the affirmative vote of a
majority of the Common Stock present and entitled to vote at a meeting at which
a quorum is present voting together as a single class. With respect to any such
matter, the holders of a majority of shares of Common Stock entitled to vote
thereon shall constitute a quorum. With respect to any matter upon which the
holders of Class A Common and Class B Common are entitled to additional voting
rights as provided in Section 1B below, the holders of a majority of the
outstanding shares of each such class shall represent a quorum.
1B. Additional Voting Rights of Class A Common and Class B Common in
Certain Circumstances. No action shall be taken by the Corporation (or permitted
by the Corporation to be taken by any Subsidiary of the Corporation) in
connection with any of the following transactions unless, in addition to any
vote required pursuant to Section 1A above, the holders of a majority of the
outstanding Class A Common and the holders of a majority of the outstanding
Class B Common, each voting as a separate class, shall have approved such
transaction:
(i) any amendment to the Certificate of Incorporation or By-laws of
the Corporation which reasonably could adversely affect the relative
rights, preferences or limitations of shares of Class B Common or Class F
Common;
(ii) any liquidation, dissolution or winding up of the Corporation;
(iii) any acquisition (other than raw materials, inventory and capital
expenditures in the ordinary course of business, which capital expenditures
shall not exceed $2,500,000 prior to the first anniversary of the Closing
Date and $2,800,000 prior to the
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second anniversary of the Closing Date) by the Corporation or any of its
Subsidiaries after the Closing Date and prior to the second anniversary of
the Closing Date (i) if the fair market value of aggregate consideration to
be paid with respect thereto (as determined in good faith by the Board of
Directors of the Corporation) shall equal or exceed $2,000,000 or (ii)
which, together with all other acquisitions by the Corporation or any of
its Subsidiaries after the Closing Date and prior to the second anniversary
of the Closing Date, would result in the fair market value of the aggregate
consideration paid or to be paid with respect to all such acquisitions (as
determined in good faith by the Board of Directors of the Corporation) to
equal or exceed $7,500,000;
(iv) any issuance of debt by the Corporation or any of its
Subsidiaries after the Closing Date and prior to the second anniversary of
the Closing Date which, together with all other issuances of debt by the
Corporation or any of its Subsidiaries after the Closing Date and prior to
the second anniversary of the Closing Date, would result in the issuance,
in the aggregate for all such issuances, of more than $2,000,000 of debt of
the Corporation and its Subsidiaries, taken as a whole (for purposes
hereof, the issuance of debt shall not include (x) amounts not to exceed
$30,000,000 borrowed pursuant to the Senior Secured Working Capital Notes
issued pursuant to the Credit Agreement, dated as of October 25, 1991,
among the Corporation, the lenders referred to therein and US West
Financial Services, Inc. ("US West"), as agent, or (y) trade credit,
letters of credit, performance bonds or other debt other than for money
borrowed incurred in the ordinary course of business); or
(v) any sale by the Corporation or any of its Subsidiaries of stock or
assets of the Corporation or any of its Subsidiaries whether by merger,
consolidation or otherwise (other than sales of inventory in the ordinary
course of business, sales of obsolete inventory and sales of obsolete or
worn out equipment) after the Closing Date and prior to the second
anniversary of the Closing Date which, together with all other such sales
(whether by merger, consolidation or otherwise) by the Corporation or any
of its Subsidiaries after the Closing Date and prior to the second
anniversary of the Closing Date, would result in the fair market value of
the aggregate consideration to be received with respect thereto (as
determined in good faith by the Board of Directors of the Corporation) to
equal or exceed $2,000,000.
Notwithstanding the foregoing, the applicability of the provisions of this
Section 1B shall be subject to the following:
(i) the provisions of this Section 1B shall become and thereafter
remain inapplicable at such time as Chemical Equity Associates, a
California Limited Partnership ("CEA"), as the initial holder of the Class
B Common and Class F Common, and its Affiliates have transferred shares of
Class B Common and Class F Common (excluding (i) shares transferred from
CEA to any Affiliate of CEA, from any Affiliate of CEA to CEA or from any
Affiliate of CEA to any other Affiliate of CEA and (ii) shares which CEA or
its Affiliates are required to transfer pursuant to drag-along rights
granted to Onex) such that the aggregate number of shares of Class B Common
and Class F Common so transferred by CEA and its Affiliates is greater than
964,286;
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(ii) upon any transfer of shares of Class B Common or Class F Common
other than to an Affiliate of CEA, the transferee of such shares shall not
be entitled to vote such shares for purposes of this Section 1B; and
(iii) the provisions of this Section 1B shall be inapplicable with
respect to any bona fide, underwritten public offering of Securities of the
Corporation or any of its Subsidiaries.
Part 2. Distribution.
2A. Class A Common and Class G Common. At the same time as distributions
made pursuant to Sections 2B and 2C below, the holders of Class A Common and
Class G Common shall be entitled to receive, as a group, a percentage of all
distributions made to holders of Common Stock, whether in cash, property, or
securities of the Corporation and whether by dividend, liquidating distributions
or otherwise, such percentage to be determined by dividing (i) the aggregate
number of outstanding shares of Class A Common on the record date for the
applicable distribution, by (ii) the number of shares of Common Stock
outstanding on the record date for the applicable distribution (excluding Class
G Common but including the number of shares of Class I Common issuable upon
exercise of the Warrant (as defined in Section 2D(i) hereof) in full on the
record date for the applicable distribution) (the "A Distributions"). The A
Distributions shall be distributed to the holders of Class A Common and Class G
Common in the following priority:
(i) The holders of Class A Common shall be entitled to receive all A
Distributions, ratably based upon the aggregate Unreturned Original Cost
and Unpaid Yield of the Class A Common held by each such holder, until such
time as the holders of Class A Common, as a group, receive distributions
equal to the sum of (A) the aggregate Unreturned Original Cost of the Class
A Common and (B) the aggregate Unpaid Yield on the Class A Common. The
distributions made pursuant to this Section 2A(i) to holders of the Class A
Common shall first be designated as a payment of Yield on and then as a
return of Original Cost of the Class A Common.
(ii) Following the distributions described in Section 2A(i) above, the
holders of Class A Common shall be entitled to receive, as a class, all A
Distributions until such time as the holders of Class A Common receive, as
a class, distributions equal to the excess of (A) the sum of (x) the
aggregate Unreturned Original Cost of all Onex Loss Investments and (y) the
aggregate Unpaid Yield on all Onex Loss Investments over (B) the aggregate
Disposition Value of all Onex Loss Investments. The distributions made
pursuant to this Section 2A(ii) to holders of the Class A Common shall be
distributed ratably, based upon the number of outstanding shares of Class A
Common held by each such holder, and shall be designated first as payment
of Yield on and then as a return of Original Cost of the Onex Loss
Investments.
(iii) Following the distributions described in Section 2A(ii) above,
the holders of Class G Common shall be entitled to receive A Distributions,
ratably based upon the number of shares of Class G Common held by each such
holder, until such time as the holders of Class G Common receive, as a
class, distributions equal to 25% of all distribu-
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tions made by all Portfolio Companies that were designated (according to
the distributing Portfolio Company's Certificate of Incorporation) as
payment of Yield on the Class A Common excluding distributions that were
designated as payment of Yield on Loss Investments.
(iv) Following the distributions described in Section 2A(iii) above,
the holders of Class A Common shall be entitled to receive, as a class, all
A Distributions until such time as the holders of Class A Common receive,
as a class, distributions equal to the excess of (A) the sum of (x) the
aggregate Unreturned Original Cost of all Onex Potential Loss Investments
and (y) the Aggregate Unpaid Yield on all Onex Potential Loss Investments
over (B) the aggregate Disposition Value of all Onex Potential Loss
Investments. The distributions made pursuant to this Section 2B(iv) to
holders of the Class A Common shall be distributed ratably, based upon the
number of outstanding shares of Class A Common held by each such holder,
and shall be designated first as payment of Yield on and then as a return
of Original Cost of the Onex Potential Loss Investments.
(v) Following the distributions described in Section 2A(iv) above, (A)
the holders of Class A Common shall be entitled to receive 80% of all
remaining A Distributions, ratably based upon the number of outstanding
shares of Class A Common held by each such holder and (B) the holders of
Class G Common shall be entitled to receive 20% of all remaining A
Distributions, ratably based upon the number of outstanding shares of Class
G Common held by each such holder.
2B. Class B Common, Class C Common, Class D Common, Class F Common, Class G
Common and Class I Common. At the same time as distributions made pursuant to
Section 2A above and Section 2C below, the holders of Class B Common, Class C
Common, Class D Common, Class F Common, Class G Common and Class I Common shall
be entitled to receive, each as a class, a percentage of all distributions made
to holders of Common Stock, whether in cash, property, or securities of the
Corporation and whether by dividend, liquidating distributions or otherwise,
such percentage to be determined by dividing (i) the aggregate number of
outstanding shares of Class B Common, Class C Common, Class D Common, Class F
Common and Class I Common on the record date for the applicable distribution by
(ii) the number of shares of Common Stock outstanding on the record date for the
applicable distributions (excluding Class G Common but including the number of
shares of Class I Common issuable upon exercise of the Warrant (as defined in
Section 2D(i) hereof) in full on the record date for the applicable
distributions) (the "Class Distributions"). The Class Distributions shall be
distributed to the holders of Class B Common, Class C Common, Class D Common,
Class F Common, Class G Common or Class I Common, as the case may be, in the
following priority:
(i) The holders of Class B Common, Class C Common, Class D Common,
Class F Common or Class I Common, as the case may be, shall be entitled to
receive all Class Distributions on such class of Common Stock, ratably
based upon the number of shares of Class B Common, Class C Common, Class D
Common, Class F Common or Class I Common, as the case may be, held by each
such holder, until such time as the holders of Class B Common, Class C
Common, Class D Common, Class F Common or Class I Common, each as a class,
receive distributions equal to the sum of (A) the aggre-
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gate Unreturned Original Cost of the Class B Common, Class C Common, Class
D Common, Class F Common or Class I Common, as the case may be, and (B) the
aggregate Unpaid Yield on such class of Common Stock. The distributions
made pursuant to this Section 2B(i) to holders of the Class B Common, Class
C Common, Class D Common, Class F Common or Class I Common shall first be
designated as a payment of Yield and then as a return or Original Cost of
such class of Common Stock.
(ii) Following the distributions described in Section 2B(i) above, the
holders of Class G Common shall be entitled to receive all Class
Distributions, ratably based upon the number of shares of Class G Common
held by each such holder, until such time as the holders of Class G Common
receive, as a class, distributions equal to 25% of all distributions
distributed in accordance with subsection 2B(i)(B) above that were
designated as payment of Yield on the Class B Common, Class C Common, Class
D Common, Class F Common or Class I Common, as the case may be.
(iii) Following the distributions described in Section 2B(ii) above,
(A) the holders of Class B Common, Class C Common, Class D Common, Class F
Common and Class I Common, each as a class, shall be entitled to receive
80% of all remaining Class Distributions on such shares of Common Stock,
ratably based upon the number of outstanding shares of Class B Common,
Class C Common, Class D Common, Class F Common or Class I Common, as the
case may be, held by each such holder, and (B) the holders of Class G
Common shall be entitled to receive, as a class, 20% of all remaining Class
Distributions on each such class of Common Stock, ratably based upon the
number of outstanding shares of Class G Common held by each such holder.
2C. Class E Common, Class H Common and Class J Common. At the same time as
distributions made pursuant to Sections 2A and 2B above, the holders of Class E
Common, Class H Common and Class J Common shall be entitled to receive, each as
a class, a percentage of all distributions made to holders of Common Stock,
whether in cash, property, or securities of the Corporation and whether by
dividend, liquidating distributions or otherwise, such percentage to be
determined by dividing (i) the number of shares of Class E Common, Class H
Common or Class J Common, as the case may be, outstanding on the record date for
the applicable distribution, by (ii) the number of shares of Common Stock
outstanding on the record date for the applicable distribution (excluding Class
G Common but including the number of shares of Class I Common issuable upon
exercise of the Warrant (as defined in Section 2D(i) hereof) in full on the
record date for the applicable distribution). The distributions to the holders
of Class E Common, Class H Common or Class J Common shall be distributed ratably
among holders of such class of Common Stock on a per share basis.
2D. Class G Common.
(i) Notwithstanding any other provision of this Part 2, if, at the time of
any distribution made to holders of Common Stock, whether in cash, property, or
securities of the Corporation and whether by dividend, liquidating distributions
or otherwise, any of the Warrant originally issued on the Closing Date to US
West to purchase 500,000 shares of Class I Common (the "Warrant") is exercisable
but has not yet been exercised, then at the same time as distributions made
pursuant to Sections 2A, 2B or 2C hereof the holders of Class G Common shall be
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entitled to receive, as a class, a percentage of all distributions made to
holders of Common Stock, whether in cash, property, or securities of the
Corporation and whether by dividend, liquidating distributions or otherwise,
such percentage to be determined by dividing (i) the number of shares of Common
Stock issuable upon exercise of the Warrant in full on the record date for the
applicable distribution, by (ii) the number of shares of Common Stock
outstanding on the record date for the applicable distribution (excluding Class
G Common but including the number of shares of Class I Common issuable upon
exercise of the Warrant in full on the record date for the applicable
distribution). The distributions to the holders of Class G Common shall be
distributed ratably among holders of Class G Common on a per share basis.
(ii) Except as provided in Sections 2A and 2B above and in this Section 2D,
the holders of Class G Common shall not be entitled to receive distributions
made to holders of Common Stock, whether in cash, property, or securities of the
Corporation and whether by dividend, liquidating distributions or otherwise.
2E. Treatment of Class B Common, Class C Common, Class D Common, Class F
Common or Class I Common Upon Certain Transfers. Upon a transfer of any shares
of Class B Common, Class C Common, Class D Common, Class F Common or Class I
Common (x) on or after the third anniversary of the Closing Date or (y) as a
part of a Sale of the Company, the shares of Class B Common, Class C Common,
Class D Common, Class F Common or Class I Common, as the case may be, so
transferred shall no longer be subject to or governed by the provisions of
Section 2B and, without further action on the part of such holder, shall
thereafter be governed by the provisions of Section 2C as it, for all purposes
of this Part 2, the shares so transferred were shares of Class E Common, Class H
Common or Class J Common.
Part 3. Conversion.
3A. Conversion of Class B Common. Each record holder of Class B Common
shall be entitled at any time, if such holder has or is reasonably expected to
have a Regulatory Problem, to convert any or all of the shares of such holder's
Class B Common into the same number of shares of Class F Common. For purposes of
this paragraph 3A, a holder will be deemed to have a "Regulatory Problem" when
such holder and such holder's affiliates would own, control or have power over a
greater quantity of securities of any kind issued by the Corporation than is
permitted under any applicable requirement of any governmental authority, or
would not be able to hold an investment or provide financing to the Corporation
in compliance with any applicable requirement of any governmental authority.
3B. Conversion of Class F Common.
(i) Upon the occurrence (or the expected occurrence as described in (iii)
below) of any Conversion Event, each holder of Class F Common shall be entitled
to convert into the same number of shares of Class B Common any or all of the
shares of such holder's Class F Common being (or expected to be) distributed,
disposed of or sold in connection with such Conversion Event.
(ii) For purposes of this Section 3B, a "Conversion Event" shall mean (a)
any public offering or public sale of securities of the Corporation (including a
public offering regis-
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tered under the Securities Act of 1933 and a public sale pursuant to Rule 144 of
the Securities and Exchange Commission or any similar rule then in force), (b)
any sale of securities of the Corporation to a person or group of persons
(within the meaning of the Securities Exchange Act of 1934, as amended (the
"1934 Act")) if, after such sale, such person or group of persons in the
aggregate would own or control securities which possess in the aggregate the
ordinary voting power to elect a majority of the Corporation's directors
(provided that such sale has been approved by the Corporation's Board of
Directors or a committee thereof), (c) any sale of securities of the Corporation
to a person or group of persons (within the meaning of the 1934 Act) if, after
such sale, such person or group of persons in the aggregate would own or control
securities of the Corporation (excluding any Class F Common being converted and
disposed of in connection with such Conversion Event) which possess in the
aggregate the ordinary voting power to elect a majority of the Corporation's
directors, (d) any sale of securities of the Corporation to a person or group of
persons (within the meaning of the 1934 Act) if, after such sale, such person or
group of persons would not, in the aggregate, own, control or have the right to
acquire more than two percent (2%) of the outstanding securities of any class of
voting securities of the Corporation, and (e) a merger, consolidation or similar
transaction involving the Corporation if, after such transaction, a person or
group of persons (within the meaning of the 1934 Act) in the aggregate would own
or control securities which possess in the aggregate the ordinary voting power
to elect a majority of the surviving corporation's directors (provided that the
transaction has been approved by the Corporation's Board of Directors or a
committee thereof). For purpose of this Section 3B, "person" shall include any
natural person and any corporation, partnership, joint venture, trust,
unincorporated organization and any other entity or organization.
(iii) Each holder of Class F Common shall be entitled to convert shares of
Class F Common in connection with any Conversion Event if such holder reasonably
believes that such Conversion Event will be consummated, and a written request
for conversion from any holder of Class F Common to the Corporation stating such
holder's reasonable belief that a Conversion Event shall occur shall be
conclusive and shall obligate the Corporation to effect such conversion in a
timely manner so as to enable each such holder to participate in such Conversion
Event. The Corporation will not cancel the shares of Class F Common so converted
before the tenth day following such Conversion Event and will reserve such
shares until such tenth day for reissuance in compliance with the next sentence.
If any shares of Class F Common are converted into shares of Class B Common in
connection with a Conversion Event and such shares of Class B Common are not
actually distributed, disposed of or sold pursuant to such Conversion Event,
such shares of Class B Common shall be promptly converted back into the same
number of shares of Class F Common.
3C. Conversion Procedure.
(i) Unless otherwise provided in connection with a Conversion Event with
respect to the Class F Common, each conversion of shares of one class of Common
Stock into shares of the other class of Common Stock shall be effected by the
surrender of the certificate or certificates representing the shares to be
converted at the principal office of the Corporation at any time during normal
business hours, together with a written notice by the holder of such Common
Stock stating that such holder desires to convert the shares, or a stated number
of the shares, of such Common Stock represented by such certificate or
certificates into shares of the
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other class of Common Stock. Unless otherwise provided in connection with a
Conversion Event, each conversion shall be deemed to have been effected as of
the close of business on the date on which such certificate or certificates have
been surrendered and such notice has been received, and at such time the rights
of the holder of the converted Class F Common or Class B Common, as the case may
be, as such holder shall cease and the person or persons in whose name or names
the certificate or certificates for shares of Class B Common or Class F Common
are to be issued upon such conversion shall be deemed to have become the holder
or holders of record of the shares of Class B Common or Class F Common
represented thereby.
(ii) Promptly after the surrender of certificates and the receipt of
written notice, the Corporation shall issue and deliver in accordance with the
surrendering holder's instructions (a) the certificate or certificates for the
Class B Common or Class F Common issuable upon such conversion and (b) a
certificate representing any Class F Common or Class B Common which was
represented by the certificate or certificates delivered to the Corporation in
connection with such conversion but which was not converted.
(iii) The issuance of certificates for Class B Common upon conversion of
Class F Common and for Class F Common upon conversion of Class B Common will be
made without charge to the holders of such shares for any issuance tax in
respect thereof or other cost incurred by the Corporation in connection with
such conversion and the related issuance of Class B Common or Class F Common, as
the case may be.
(iv) The Corporation shall at all times reserve and keep available out of
its authorized but unissued shares of Class B Common and Class F Common, solely
for the purpose of issuance upon the conversion of the Class F Common and Class
B Common, respectively, such number of shares of Class F Common and Class B
Common issuable upon the conversion of all outstanding Class B Common and Class
F Common, as the case may be. All shares of Common Stock which are so issuable
shall, when issued, be duly and validly issued, fully paid and nonassessable and
free from all taxes, liens and charges. The Corporation shall take all such
actions as may be necessary to assure that all such shares of Common Stock may
be so issued without violation of any applicable law or governmental regulation
or any requirements of any domestic securities exchange upon which shares of
Common Stock may be listed (except for official notice of issuance, which will
be immediately transmitted by the Corporation upon issuance).
(v) The Corporation shall not close its books against the transfer of
shares of Common Stock in any manner which would interfere with the timely
conversion of any shares of Common Stock.
3D. Regulated Holders.
(i) The Corporation shall not be a party to any merger, consolidation or
recapitalization pursuant to which any Regulated Stockholder (as defined in
subsection (iii) below) would be required to take (a) any voting securities
which would cause such holder to hold more than 4.99% of the outstanding shares
of any "class" of voting securities, or (b) any securities convertible into
voting securities which if such conversion took place would cause such holder to
hold more than 4.99% of the outstanding shares of any "class" of voting
securities other than securities which are specifically provided to be
convertible only in the event that such conversion
-9-
may occur without any violation of Regulation Y (as defined below), provided
that each such Regulated Stockholder shall convert or take such other action
(which action does not adversely affect such Regulated Stockholder) with respect
to the Common Stock it owns, controls or has the power to vote in order to
permit the Corporation to consummate any such merger, consolidation or
recapitalization. The term "class" shall be determined by reference to
Regulation Y of the Board of Governors of the Federal Reserve System (12 C.F.R.
Part 225), or any successor to such regulation ("Regulation Y") and all
authoritative interpretations of Regulation Y.
(ii) The Corporation shall not convert or directly or indirectly redeem,
purchase or otherwise acquire any shares of capital stock of the Corporation or
take any other action affecting the voting rights of such shares, if such action
will increase the percentage of any class of outstanding voting securities owned
or controlled by any Regulated Stockholder (other than any such stockholder
which requested that the Corporation take such action, or which otherwise waives
in writing its rights under this subsection (ii)) to more than 4.99% of the
outstanding shares of such voting securities, unless the Corporation gives
written notice (the "Deferral Notice") of such action to each Regulated
Stockholder. The Corporation will defer making any such conversion, or taking
any such other action for a period of 30 days (the "Deferral Period") after
giving the Deferral Notice in order to allow each Regulated Stockholder to
convert or take any other action with respect to the Common Stock it owns,
controls or has the power to vote in order to permit the Corporation to
consummate any such conversion or other action specified in the Deferral Notice
without violating this Section 3D. Each such Regulated Stockholder shall convert
or take such other action (which action does not adversely affect such Regulated
Stockholder) with respect to the Common Stock it owns, controls or has the power
to vote in order to permit the Corporation to consummate any such conversion or
other action without violating this Section 3D and shall notify the Corporation
in writing within 20 days of the issuance of the Deferral Notice of the
conversion or other action to be taken with respect to such Shares of Common
Stock. Thereupon, the Corporation shall (i) defer taking the pending action
until the end of the Deferral Period, (ii) promptly notify from time to time
each other Regulated Stockholder holding shares of such proposed conversion and
the proposed transactions, and (iii) effect the conversions requested by all
Regulated Stockholders in response to the notices issued pursuant to this
subsection (ii) at the end of the Deferral Period. The Corporation will not
directly or indirectly redeem, purchase, acquire or take any other action
affecting outstanding shares of Common Stock if such action will increase above
24.9% the percentage of outstanding Common Stock owned or controlled by any
Regulated Stockholder and its affiliates (other than a stockholder which waives
in writing its rights under this subsection (ii)), provided that each such
Regulated Stockholder shall convert or take such other action (which action does
not adversely affect such Regulated Stockholder) with respect to the Common
Stock it owns, controls or has the power to vote in order to permit the
Corporation to consummate any such conversion or other action without violating
this Section 3D.
(iii) As used herein, the term "Regulated Stockholder" shall mean any
stockholder that is subject to the provisions of Regulation Y or any successor
to such regulation, provided that, except in the case of Chemical Equity
Associates, a California Limited Partnership, such stockholder gives the
Corporation written notice that it is subject to such provisions of Regulation
Y.
-10-
3E. Amendment and Waiver. Notwithstanding anything to the contrary herein,
no amendment or waiver of any provision of this Part 3 shall be effective
without the prior approval of the holders of a majority of the then outstanding
Class B Common voting as a separate class.
Part 4. Stock Splits and Stock Dividends.
The Corporation shall not in any manner subdivide (by stock split, stock
dividend or otherwise), or combine (by stock split, stock dividend or otherwise)
the outstanding Common Stock of one class unless the outstanding Common Stock of
all the other classes shall be proportionately subdivided or combined. All such
subdivisions and combinations shall be payable only in shares of the same class
of Common Stock held by a holder of Common Stock. In no event shall a stock
split or stock dividend be designated as a payment of Yield or a return of
Original Cost.
Part 5. Registration of Transfer.
The Corporation shall keep at its principal office (or such other place as
the Corporation reasonably designates) a register for the registration of shares
of Common Stock. Upon the surrender of any certificate representing shares of
any class of Common Stock at such place, the Corporation shall, at the request
of the registered holder of such certificate, execute and deliver a new
certificate or certificates in exchange therefor representing in the aggregate
the number of shares of such class represented by the surrendered certificate,
and the Corporation forthwith shall cancel such surrendered certificate. Each
such new certificate will be registered in such name and will represent such
number of shares of such class as is requested by the holder of the surrendered
certificate and shall be substantially identical in form to the surrendered
certificate. The issuance of new certificates shall be made without charge to
the holders of the surrendered certificates for any issuance tax in respect
thereof or other cost incurred by the Corporation in connection with such
issuance.
Part 6. Replacement.
Upon receipt of evidence reasonably satisfactory to the Corporation (an
affidavit of the registered holder will be satisfactory) of the ownership and
the loss, theft, destruction or mutilation of any certificate evidencing one or
more shares of any class of Common Stock, and in the case of any such loss,
theft of destruction, upon receipt of indemnity reasonably satisfactory to the
Corporation (provided that if the holder is a financial institution or other
institutional investor its own agreement will be satisfactory), or, in the case
of any such mutilation upon surrender of such certificate, the Corporation shall
(at its expense) execute and deliver in lieu of such certificate a new
certificate of like kind representing the number of shares of such class
represented by such lost, stolen, destroyed or mutilated certificate and dated
the date of such lost, stolen, destroyed or mutilated certificate.
Part 7. Notices.
All notices referred to herein shall be dated and in writing, to the
Corporation at its principal executive offices and to any stockholder at such
holder's address as it appears in the
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stock records of the Corporation (unless otherwise specified in a written notice
to the Corporation by such holder), and shall be deemed to have been given (i)
when delivered, if delivered personally, sent by confirmed telecopy or certified
mail, return receipt requested, postage prepaid, (ii) on the next business day
if sent by overnight courier and (iii) when received if delivered otherwise.
Part 8. Amendment and Waiver.
No amendment or waiver of any provision of this Article Fourth (including,
without limitation, any merger, consolidation or other transaction subject to
stockholder approval in which any class of Common Stock is treated differently
from any other class in a manner not contemplated by this Article Fourth) shall
be effective without the prior written consent of the holders of a majority of
the then outstanding shares of each class of Common Stock voting as a separate
class.
Part 9. Definitions.
"Affiliate" shall have the meaning given such term in Rule 12b-2
promulgated under the Securities Exchange Act of 1934, as amended.
"Carried Interest" shall mean the rights and benefits provided hereunder to
the Class G Common.
"Closing Date" shall mean October 25, 1991.
"Disposition Value" of (i) any share of any Loss Investment means an amount
equal to (a) the amount realized on disposition of such share in connection with
the disposition by Onex of such Loss Investment or (b) if no amount is realized
on such share in connection with such disposition, the fair market value (as
determined in good faith by the Board of Directors of the Corporation) of such
share on its Loss Investment Date or (ii) any shares of any Potential Loss
Investment means an amount equal to the fair market value (as determined in good
faith by the Board of Directors of the Corporation) of such share on the date of
any distribution. The Disposition Value of any share shall not exceed its Unpaid
Yield and Unreturned Original Cost.
"Loss Investment" means any Portfolio Company previously disposed of and
with respect to which Onex has not, at the time any distribution is made
pursuant to Part 2 of Article Fourth, received its Original Cost and Yield on
such Onex Loss Investment through the Loss Investment Date.
"Loss Investment Date" means the date that a Loss Investment was disposed
of or determined by Onex in good faith to be worthless.
"Onex Loss Investment" means any common stock originally issued by any Loss
Investment to Onex or its Affiliates that has rights and preferences
substantially similar to those of the Class A Common.
-12-
"Onex Potential Loss Investment" means any common stock originally issued
by any Potential Loss Investment to Onex or its Affiliates that has rights and
preferences substantially similar to those of the Class A Common.
"Original Cost" of any shares of any class of common stock of any Portfolio
Company as of any particular date will be equal to the amount of cash originally
paid for such shares when they were issued.
"Person" means an individual, a partnership, a corporation, an association,
a joint stock company, a trust, a joint venture, an unincorporated organization
or a governmental entity or any department, agency or political subdivision
thereof.
"Portfolio Company" means (i) for purposes of Section 2A of Article Fourth,
(a) a Person that now or hereafter has common stock originally issued to Onex or
its Affiliates that has rights and preferences substantially similar to those of
the Class A Common and common stock originally issued to TMB Industries
Investments Inc., a Delaware corporation, or its Affiliates that has rights and
preferences substantially similar to those of the Class B Common and (b) Dayton
Superior Corporation, an Ohio corporation, and (ii) for purposes of Section 2B
of Article Fourth, the Corporation.
"Potential Loss Investment" means any Portfolio Company with respect to
which Onex has reasonably determined at the time any distribution is made
pursuant to Part 2 of Article Fourth that the value of such Onex Potential Loss
Investment is less than the Original Cost and Yield on such Onex Potential Loss
Investment.
"Sale of the Corporation" shall mean a sale of the Corporation to a Person
or Persons (other than Onex or any Affiliate of Onex) pursuant to which such
Person or Persons acquire (i) a number shares of Common Stock which represents a
majority of the outstanding shares of Common Stock (whether pursuant to the sale
of shares of Common Stock or by merger, consolidation, recapitalization,
reorganization or otherwise) or (ii) a number shares of Common Stock, par value
$.01 per share ("JAC Common Stock"), of Johnstown America Corporation, a
Delaware corporation and a wholly owned subsidiary of the Corporation ("JAC"),
which represents a majority of the outstanding shares of JAC Common Stock
(whether pursuant to the sale of shares of JAC Common Stock or by merger,
consolidation, recapitalization, reorganization or otherwise) or (iii) all or
substantially all of the assets of JAC.
"Securities" shall mean "securities" as defined in Section 2(l) of the
Securities Act of 1933, as amended.
"Subsidiary" shall mean, with respect to any Person, any corporation of
which the shares of stock having a majority of the general voting power in
electing the board of directors are, at the time as of which any determination
is being made, owned by such Person either directly or indirectly through
Subsidiaries.
"Unpaid Yield" of any share of common stock of any Portfolio Company means
an amount equal to the excess, if any, of (a) the aggregate Yield accrued and
accumulated on such share over (b) the aggregate amount of distributions made by
all Portfolio Companies that
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are designated (according to the distributing Portfolio Company's Certificate of
Incorporation) as payment of Yield on such share.
"Unreturned Original Cost" of any share of common stock of any Portfolio
Company means an amount in cash equal to the excess, if any, of (a) the Original
Cost of such share over (b) the aggregate amount of distributions in cash made
by all Portfolio Companies that are designated (according to the distributing
Portfolio Company's Certificate of Incorporation) as a return of Original Cost
of such share.
"Yield" means (i) for purposes of all shares of Common Stock other than
shares of Class A Common, a yield on each share of Common Stock that will accrue
and accumulate at the rate of 20.0% per annum of the Unreturned Original Cost
thereof commencing on the date of issuance of such share, which yield shall
accumulate and compound if not paid in cash at least annually or (ii) except as
provided in (i) above, with respect to each share of common stock of any
Portfolio Company, a yield on each share of common stock that will accrue and
accumulate at the rate of 20.0% per annum of the Unreturned Original Cost
thereof commencing on the date of the issuance of such share, which yield shall
accumulate and compound if not paid in cash at least annually; provided that,
solely for the purposes of clause (ii) above, the Yield on any share of common
stock of any Portfolio Company shall cease accruing, accumulating and
compounding on the Loss Investment Date of such share. In computing the amount
of Yield accrued in respect of a fractional year, such amount shall be computed
on the basis of a 365-day year and actual number of days elapsed.
PREFERRED STOCK
The Board of Directors shall have the express authority from time to time
to fix or change the division of the Preferred Stock into series and the
designation and authorized number of shares of each series and to provide for
each such series: voting powers, full or limited or no voting powers; dividend
rates; dates of payment of dividends; dates from which dividends are cumulative;
liquidation prices; redemption rights and prices; sinking fund requirements;
conversion rights; restrictions on the issuance of shares of other series of
Preferred Stock; and such other designations, preferences and relative
participating options or other special rights and qualifications, powers,
limitations or restrictions thereon as may be determined by the Board of
Directors.
FIFTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(1) The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors.
(2) The directors shall have concurrent power with the stockholders to
make, alter, amend, change, add to or repeal the By-Laws of the
Corporation.
(3) The number of directors of the Corporation shall be five. Election
of directors need not be by written ballot unless the By-Laws so provide.
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(4) No director shall be personally liable to the Corporation or any
of its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) pursuant to Section 174 of the Delaware General
Corporation Law or (iv) for any transaction from which the director derived
an improper personal benefit. Any repeal or modification of this Article
Fifth by the stockholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation existing at the time
of such repeal or modification with respect to acts or omissions occurring
prior to such repeal or modification.
(5) In addition to the powers and authority hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation, subject, nevertheless, to the
provisions to the GCL, this Certificate of Incorporation, and any By-Laws
adopted by the stockholders; provided, however, that no By-Laws hereafter
adopted by the stockholders shall invalidate any prior act of the directors
which would have been valid if such By-Laws had not been adopted.
SIXTH: Meetings of stockholders may be held within or without the State of
Delaware, as the By-Laws may provide. The books of the Corporation may be kept
(subject to any provision contained in the GCL) outside the State of Delaware at
such place or places as may be designated from time to time by the Board of
Directors or in the By-Laws of the Corporation.
SEVENTH: Subject to Article Fourth, the Corporation reserves the right to
amend, alter, change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
-15-
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
JAC HOLDINGS, INC.
_________________________________________
Pursuant to Sections 242 and 228 of the
General Corporation Law of the State of Delaware
_________________________________________
JAC Holdings, Inc., a Delaware corporation (hereinafter called the
"Corporation"), does hereby certify as follows:
FIRST: Clause (viii) of Article FOURTH of the Corporation's Restated
Certificate of Incorporation is hereby amended to read in its entirety as set
forth below:
"(viii) 975,000 shares of Class H Common Stock par value $.01 per
share (the "Class H. Common");"
SECOND: The foregoing amendment was duly adopted in accordance with
Sections 242 and 228 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, JAC Holdings, Inc. has caused this Certificate to be
duly executed in its corporate name this 22nd day of July, 1992.
JAC HOLDINGS, INC.
By: /s/ Anthony J. Garcia
-------------------------------
Name: Anthony J. Garcia
Title: Vice President
ATTEST:
By: /s/ Edward Whalen
--------------------------------
Name: Edward Whalen
Title: Secretary
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
JAC HOLDINGS, INC.
_________________________________________
Pursuant to Sections 242 and 228 of the
General Corporation Law of the State of Delaware
_________________________________________
JAC Holdings, Inc., a Delaware corporation (hereinafter called the
"Corporation"), does hereby certify as follows:
FIRST: Article FIRST of the Corporation's Restated Certificate of
Incorporation is hereby amended to read in its entirety as set forth below:
"The name of the Corporation is Johnstown America Industries, Inc.
(hereinafter the "Corporation")."
SECOND: The foregoing amendment was duly adopted in accordance with
Sections 242 and 228 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, JAC Holdings, Inc. has caused this Certificate to be
duly executed in its corporate name this 21st day of May, 1993.
JAC HOLDINGS, INC.
By: /s/ Anthony J. Garcia
----------------------------------
Name: Anthony J. Garcia
Title: Vice President
ATTEST:
By: /s/ Edward Whalen
-----------------------------
Name: Edward Whalen
Title: Secretary
RESTATED CERTIFICATE OF INCORPORATION
OF
JOHNSTOWN AMERICA INDUSTRIES, INC.
_________________________________________
Pursuant to Section 103, Section 242 and
Section 245 of the General Corporation Law of
the State of Delaware
_________________________________________
The undersigned, Anthony J. Garcia and Edward J. Whalen, certify that they
are Executive Vice President and Secretary, respectively, of Johnstown America
Industries, Inc., a corporation organized and existing under the laws of the
State of Delaware (the "Corporation"), and do hereby further certify as follows:
FIRST: The name of the Corporation is Johnstown America Industries, Inc.
SECOND: The original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of the State of Delaware on October 18, 1991
under the name FCD Acquisition Corp.
THIRD: This Restated Certificate of Incorporation was duly adopted by the
stockholders of the Corporation in accordance with Sections 242 and 245 of the
General Corporation Law of the State of Delaware (the "GCL").
FOURTH: Upon this Restated Certificate of Incorporation becoming effective
pursuant to the GCL (the "Effective Time"), and without any further action on
the part of the Corporation or its stockholders: (i) the 7,896,428 shares of the
Corporation's Class A Common Stock, par value $.01 per share, issued and
outstanding immediately prior to the Effective Time shall automatically be
reclassified, changed and converted into 2,548,357 shares of common stock, par
value $.01 per share ("Common Stock"), of the Corporation; (ii) the 618,965
shares of the Corporation's Class B Common Stock, par value $.01 per share,
issued and outstanding immediately prior to the Effective Time shall
automatically be reclassified, changed and converted into 373,680 shares of
Common Stock; (iii) the 1,446,429 shares of the Corporation's Class C Common
Stock, par value $.01 per share, issued and outstanding immediately prior to the
Effective Time shall automatically be reclassified, changed and converted into
483,521 shares of Common Stock; (iv) the 964,286 shares of the Corporation's
Class D Common Stock, par value $.01 per share, issued and outstanding
immediately prior to the Effective Time shall automatically be reclassified,
changed and converted into 322,347 shares of Common Stock; (v) the 1,000,000
shares of Class E Common Stock, par value $.01 per share, issued and outstanding
immediately prior to the Effective Time shall automatically be reclassified,
changed and converted into 400,000 shares of Common Stock; (vi) the 2,273,892
shares of Class F Common Stock, par value $.01 per share, issued and outstanding
immediately prior to the Effective Time shall automatically be reclassified,
changed and converted into 593,361 shares of Class B Common Stock, par value
$.01 per share ("Class B Common Stock"), of the Corporation; (vii) the
100 shares of Class G Common Stock, par value $.01 per share, issued and
outstanding immediately prior to the Effective Time shall automatically be
reclassified, changed and converted into 991,591 shares of Common Stock; (viii)
the 1,012,700 shares of Class H Common Stock, par value $.01 per share, issued
and outstanding or subject to issuance immediately prior to the Effective Time
shall automatically be reclassified, changed and converted into 405,080 shares
of Common Stock; (ix) the 500,000 shares of Class I Common Stock, par value $.01
per share, subject to issuance immediately prior to the Effective Time shall
automatically be reclassified, changed and converted into 167,142 shares of
Common Stock; and (x) the 1,304,348 shares of Class J Common Stock, par value
$.01 per share, subject to issuance immediately prior to the Effective Time
shall automatically be reclassified, changed and converted into 521,739 shares
of Common Stock. No fractional shares of Common Stock or Class B Common Stock
will be issued after the Restated Certificate becomes effective; instead, each
fractional share will be rounded to the nearest whole shares.
FIFTH: The text of the Restated Certificate of Incorporation of the
Corporation, as amended, is hereby further amended and restated to read in its
entirety as set forth in Exhibit A attached hereto.
-2-
IN WITNESS WHEREOF, Johnstown America Industries, Inc. has caused this
Restated Certificate of Incorporation to be signed by Anthony J. Garcia, its
Executive Vice President, and attested by Edward J. Whalen, its Secretary, this
14th day of July, 1993.
JOHNSTOWN AMERICA INDUSTRIES, INC.
By: /s/ Anthony J. Garcia
----------------------------
Anthony J. Garcia
Executive Vice President
Attest:
/s/ Edward J. Whalen
- --------------------------
Edward J. Whalen
Secretary
-3-
EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
OF
JOHNSTOWN AMERICA INDUSTRIES, INC.
FIRST: The name of the corporation is Johnstown America Industries, Inc.
(hereinafter the "Corporation").
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of its registered agent at that address is The Corporation
Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware as set forth in Title 8 of the Delaware Code (the
"GCL").
FOURTH: The total number of shares of stock which the Corporation shall
have the authority to issue is 221,000,000 shares consisting of 200,000,000
shares of common stock with a par value of $.01 per share (the "Common Stock"),
1,000,000 shares of Class B Common Stock with a par value of $.01 per share (the
"Class B Common Stock"), and 20,000,000 shares of preferred stock with a par
value of $.01 per share (the "Preferred Stock").
I. Common Stock and Class B Common Stock. Except as otherwise provided in
this Article Fourth or as otherwise required by applicable law, shares of Common
Stock and Class B Common Stock shall be identical and shall entitle the holders
thereof to the same rights and privileges, subject to the same qualifications,
limitations and restrictions.
(a) Voting Rights. Except as otherwise provided in this Article Fourth or
as otherwise required by applicable law, holders of Common Stock shall be
entitled to one vote per share on all matters to be voted on by the
Corporation's stockholders and holders of shares of Class B Common Stock shall
have no voting rights.
(b) Conversion Rights. Each record holder of Common Stock shall be entitled
at any time, if such holder has or is reasonably expected to have a Regulatory
Issue, to convert any or all of the shares of such holder's Common Stock into
the same number of shares of Class B Common Stock. For purposes of this
paragraph, a holder will be deemed to have a "Regulatory Issue" when such holder
and such holder's affiliates would own, control or have power over a greater
quantity of securities of any kind issued by the Corporation than is permitted
under any applicable requirement of any governmental authority, or would not be
able to hold an investment or provide financing to the Corporation in compliance
with any applicable requirement of any governmental authority.
Upon the occurrence (or the expected occurrence as described in the next
paragraph) of any Conversion Event, each record holder of Class B Common Stock
shall be entitled to convert into the same number of shares of Common Stock any
or all of the shares of such
holder's Class B Common Stock being (or expected to be) distributed, disposed of
or sold in connection with the occurrence (or the expected occurrence as
described below) of a Conversion Event. For purposes of this paragraph, a
"Conversion Event" shall mean (i) any public offering or public sale of
securities of the Corporation (including a public offering registered under the
Securities Act of 1933 and a public sale pursuant to Rule 144 of the Securities
and Exchange Commission or any similar rule then in force), (ii) any sale of
securities of the Corporation to a person or group of persons (within the
meaning of the Securities Exchange Act of 1934, as amended (the "1934 Act")) if,
after such sale, such person or group of persons in the aggregate would own or
control securities which possess in the aggregate the ordinary voting power to
elect a majority of the Corporation's directors (provided that such sale has
been approved by the Corporation's Board of Directors (the "Board of Directors")
or a committee thereof), (iii) any sale of securities of the Corporation to a
person or group of persons (within the meaning of the 1934 Act) if, after such
sale, such person or group of persons in the aggregate would own or control
securities of the Corporation (excluding any Class B Common Stock being
converted and disposed of in connection with such Conversion Event) which
possess in the aggregate the ordinary voting power to elect a majority of the
Corporation's directors, (iv) any sale of securities of the Corporation to a
person or group of persons (within the meaning of the 1934 Act) if, after such
sale, such person or group of persons would not, in the aggregate, own, control
or have the right to acquire more than two percent (2%) of the outstanding
securities of any class of voting securities of the Corporation, and (v) a
merger, consolidation or similar transaction involving the Corporation if, after
such transaction, a person or group of persons (within the meaning of the 1934
Act) in the aggregate would own or control securities which possess in the
aggregate the ordinary voting power to elect a majority of the surviving
corporation's directors (provided that the transaction has been approved by the
Board of Directors or a committee thereof). For purpose of this paragraph,
"person" shall include any natural person and any corporation, partnership,
joint venture, trust, unincorporated organization and any other entity or
organization.
Each record holder of Class B Common Stock shall also be entitled to
convert shares of Class B Common Stock in connection with any Conversion Event
if such holder reasonably believes that such Conversion Event will be
consummated, and a written request for conversion from any holder of Class B
Common Stock to the Corporation stating such holder's reasonable belief that a
Conversion Event will occur shall be conclusive and shall obligate the
Corporation to effect such conversion in a timely manner so as to enable each
such holder to participate in such Conversion Event. The Corporation will not
cancel the shares of Class B Common Stock so converted before the tenth day
following such Conversion Event and will reserve such snares until such tenth
day for reissuance in compliance with the next sentence. If any shares of Class
B Common Stock are converted into shares of Common Stock in connection with a
Conversion Event and such shares of Common Stock are not actually distributed,
disposed of or sold pursuant to such Conversion Event, such shares of Common
Stock shall be promptly converted back into the same number of shares of Class B
Common Stock.
Unless otherwise provided in connection with a Conversion Event, each
conversion of shares of one class of common stock into shares of the other class
of common stock shall be effected by the surrender of the certificate or
certificates representing the shares to be converted at the principal office of
the Corporation at any time during normal business hours, together with a
written notice by the holder of such common stock stating that such holder
desires
-2-
to convert the shares, or a stated number of the shares, of such common stock
represented by such certificate or certificates into shares of the other class
of common stock. Unless otherwise provided in connection with a Conversion
Event, each conversion shall be deemed to have been effected as of the close of
business on the date on which such certificate or certificates have been
surrendered and such notice has been received, and at such time the rights of
the holder of the converted Common Stock or Class B Common Stock, as the case
may be, as such holder shall cease and the person or persons in whose name or
names the certificate or certificates for shares are to be issued upon such
conversion shall be deemed to have become the holder or holders of record of the
shares represented thereby. Promptly after the surrender of certificates and the
receipt of written notice, the Corporation shall issue and deliver in accordance
with the surrendering holder's instructions (a) the certificate or certificates
for the shares issuable upon such conversion and (b) a certificate representing
any shares which were represented by the certificate or certificates delivered
to the Corporation in connection with such conversion but which were not
converted. The issuance of certificates upon conversion will be made without
charge to the holders of such shares for any issuance tax in respect thereof or
other cost incurred by the Corporation in connection with such conversion.
The Corporation shall at all times reserve and keep available out of its
authorized but unissued shares of Common Stock solely for the purpose of
issuance upon the conversion of the Class B Common Stack, such number of shares
of Common Stock issuable upon the conversion of all outstanding Class B Common
Stock. All shares of Common Stock which are so issuable shall, when issued, be
duly and validly issued, full paid and nonassessable and free from all taxes,
liens and charges. The Corporation shall take all such actions as may be
necessary to assure that all such shares of Common Stock may be so issued
without violation of any applicable law or governmental regulation or any
requirements of any domestic securities exchange upon which shares of Common
Stock may be listed (except for official notice of issuance which will be
immediately transmitted by the Corporation upon issuance). The Corporation shall
not close its books against the transfer of shares in an manner which would
interfere with the timely conversion of any shares.
The Corporation shall not be a party to any merger, consolidation or
recapitalization pursuant to which any Regulated Stockholder (as defined in the
following paragraph) would be required to take (a) any voting securities which
would cause such holder to hold more than 4.99% of the outstanding shares of any
"class" of voting securities, or (b) any securities convertible into voting
securities which if such conversion took place would cause such holder to hold
more than 4.99% of the outstanding shares of any "class" of voting securities
other than securities which are specifically provided to be convertible only in
the event that such conversion may occur without any violation of Regulation Y
(as defined below), provided that each such Regulated Stockholder shall convert
or take such other action (which action does not adversely affect such Regulated
Stockholder) with respect to the common stock it owns, controls or has the power
to vote in order to permit the Corporation to consummate any such merger,
consolidation or recapitalization. The term "class" shall be determined by
reference to Regulation Y of the Board of Governors of the Federal Reserve
System (12 C.F.R. Part 225), or any successor to such regulation ("Regulation
Y") and all authoritative interpretations of Regulation Y. The Corporation shall
not convert or directly or indirectly redeem, purchase or otherwise acquire any
shares of capital stock of the Corporation or take any other action affecting
the voting rights of
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such shares, if such action will increase the percentage of any class of
outstanding voting securities owned or controlled by any Regulated Stockholder
(other than any such stockholder which has requested that the Corporation take
such action, or which otherwise waives in writing its rights hereunder to more
then 4.99% of the outstanding shares of such voting securities), unless the
Corporation gives written notice (the "Deferral Notice") of such action to each
Regulated Stockholder. The Corporation will defer making any such conversion or
taking any such other action for a period of 30 days (the "Deferral Period")
after giving the Deferral Notice in order to allow each Regulated Stockholder to
convert or take any other action with respect to the common stock it owns,
controls or has the power to vote in order to permit the Corporation to
consummate any such conversion or other action specified in the Deferral Notice
without violating this paragraph. Each such Regulated Stockholder shall convert
or take such other action (which action does not adversely affect such Regulated
Stockholder) with respect to the common stock it owns, controls or has the power
to vote in order to permit the Corporation to consummate any such conversion or
other action without violating this paragraph and shall notify the Corporation
in writing within 20 days of the issuance of the Deferral Notice of the
conversion or other action to be taken with respect to such shares of common
stock. Thereupon, the Corporation shall (i) defer taking the pending action
until the end of the Deferral Period, (ii) promptly notify from time to time
each other Regulated Stockholder holding shares of each proposed conversion and
the proposed transactions, and (iii) effect the conversions requested by all
Regulated Stockholders in response to the notices issued pursuant to this
paragraph at the end of the Deferral Period. The Corporation will not directly
or indirectly redeem, purchase, acquire or take any other action affecting
outstanding shares of common stock if such action will increase above 24.9% the
percentage of outstanding common stock owned or controlled by any Regulated
Stockholder and its affiliates (other than a stockholder which waives in writing
its rights under this paragraph), provided that each such Regulated Stockholder
shall convert or take such other action (which action does not adversely affect
such Regulated Stockholder) with respect to the common stock it owns, controls
or has the power to vote in order to permit the Corporation to consummate any
such conversion or other action without violating this paragraph.
As used herein, the term "Regulated Stockholder" shall mean any stockholder
that is subject to the provision of Regulation Y or any successor to such
regulation, provided that, except in the case of Chemical Equity Associates, a
California Limited Partnership, such stockholder gives the Corporation written
notice that it is subject to such provisions of Regulation Y.
Notwithstanding anything to the contrary herein, no amendment or waiver of
any provision pertaining to the conversion rights of the Common Stock and Class
B Common Stock shall be effective without the prior approval of the holders of a
majority of the then outstanding Class B Common stock voting as a separate
class.
II. Preferred Stock. Shares of the Preferred Stock of the Corporation may
be issued from time to time in one or more classes or series, each of which
class or series shall have such distinctive designation or title as shall be
fixed by the Board of Directors prior to the issuance of any shares thereof.
Each such class or series of Preferred Stock shall have such voting powers, full
or limited, or no voting powers, and such preferences and relative,
participating, optional or other special rights and such qualifications,
limitations or restrictions thereof as shall be stated in such resolution or
resolutions providing for the issue of such class or series of Preferred
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Stock as may be adopted from time to time by the Board of Directors prior to the
issuance of any shares thereof pursuant to the authority hereby expressly vested
in it, all in accordance with the laws of the State of Delaware.
FIFTH: The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. The number of directors of the
Corporation shall be not less than three nor more than nine, the exact number to
be fixed from time to time by the Board of Directors. A director shall hold
office until the annual meeting for the year in which his term expires and until
his successor shall be elected and shall be qualified, subject, however, to
prior death, resignation, retirement, disqualification or removal from office.
SIXTH: At the earlier of (x) such time as Onex U.S. Investments Inc., an
Ontario corporation ("Onex"), has sold or otherwise transferred in one or more
transactions to any persons or entities other than Affiliates (as hereinafter
defined) of Onex 50% or more of (i) the 2,308,450 shares of Common Stock held by
it after consummation of the initial public offering (the "Offering") of shares
of Common Stock or (ii) if the over-allotment option granted to the underwriters
in connection with the Offering is exercised, the 2,017,500 shares of Common
Stock held by it after exercise of such over-allotment option or (y) such time
as Onex has given its consent in writing to the Corporation, and without any
further action by the Corporation, the Board of Directors or the Corporation's
stockholders, the provisions of this Article Sixth shall become and thereafter
shall remain effective. The number of shares referred to in clauses (x) and (y)
of the previous sentence shall be adjusted to reflect any stock split or other
amendments to, or reclassifications of, the capital stock of the Corporation.
The Board of Directors shall be divided into three classes, designated Class I,
Class II and Class III, with each class consisting, as nearly as may be
possible, of one-third of the total number of directors constituting the entire
Board of Directors. The then chairman of the Board of the Corporation shall
designate the initial class of each director. The term of the initial Class I
directors shall terminate on the date of the first annual meeting of
stockholders thereafter; the term of the initial Class II directors shall
terminate on the date of the second annual meeting of stockholders thereafter;
and the term of the initial Class III directors shall terminate on the date of
the third annual meeting of stockholders thereafter. At the first annual meeting
of stockholders after the Board of Directors has been divided into classes and
at each annual meeting of stockholders thereafter, successors to the class of
directors whose term expires at that annual meeting shall be elected for a
three-year term. If the number of directors is changed, any increase or decrease
shall be apportioned among the classes so as to maintain the number of directors
in each class as nearly equal as possible, and any additional directors of any
class elected to fill a vacancy resulting from an increase in such class shall
hold office for a term that shall coincide with the remaining term of that
class, but in no case will a decrease in the number of directors shorten the
term of any incumbent director. Any vacancy on the Board of Directors, howsoever
resulting, may be filled only by a majority of the directors then in office,
even if less than a quorum, or by a sole remaining director. Any director
elected to fill a vacancy shall hold office for a term that shall coincide with
the term of the class to which such director shall have been elected. Any or all
of the directors of the Corporation may be removed from office at any time, but
only for cause and only by the affirmative vote of the holders of a majority of
the outstanding shares of stock of the Corporation then entitled to vote
generally in the election of directors.
-5-
For purposes of this Restated Certificate of Incorporation, the term
"Affiliate" shall mean, with respect to any person, any of (a) a director or
executive officer of such person, (b) a spouse, parent, sibling or descendant of
such person (or a spouse, parent, sibling or descendant of any director or
executive officer of such person), and (c) any other person that, directly or
indirectly, controls or is controlled by or is under common control with such
person. For the purpose of this definition, "control" (including the terms
"controlling", "controlled by" and "under common control with"), as used with
respect to any person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
person, whether through the ownership of voting securities or by contract or
agency or otherwise.
SEVENTH: At the earlier of (x) such time as Onex has sold or otherwise
transferred in one or more transactions to any persons or entities other than
Affiliates of Onex 50% or more of (i) the 2,308,450 shares of Common Stock held
by it after consummation of the Offering or (ii) if the over-allotment option
granted to the underwriters in connection with the Offering is exercised, the
2,017,500 shares of Common Stock held by it after exercise of such
over-allotment option or (y) such time as Onex has given its consent in writing
to the Corporation, and without any further action by the Corporation, the Board
of Directors or the Corporation's stockholders, the provisions of this Article
Seventh shall become and thereafter shall remain effective. The number of shares
referred to in clauses (x) and (y) of the previous sentence shall be adjusted to
reflect any stock split or other amendments to, or reclassifications of, the
capital stock of the Corporation. Special meetings of stockholders of the
Corporation for any purpose or purposes may be called at any time by a majority
of the Board of Directors, the Chairman of the Board of Directors or the
President of the Corporation. Special meetings of the stockholders of the
Corporation may not be called by any other person or persons. Any action
required or permitted to be taken at any annual or special meeting of
stockholders may be taken only upon the vote of the stockholders at an annual or
special meeting duly noticed and called, as provided in the By-laws of the
Corporation, and may not be taken by a written consent of the stockholders
pursuant to the GCL.
EIGHTH: No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for any breach of fiduciary
duty by such a director as a director. Notwithstanding the foregoing sentence, a
director shall be liable to the extent provided by applicable law (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the
GCL or (iv) for any transaction from which the director derived an improper
personal benefit. No amendment to or repeal of this Article Eighth shall apply
to or have any effect on the liability or alleged liability of any director of
the Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
NINTH: Meetings of the stockholders may be held within or without the State
of Delaware, as the By-laws may provide. The books of the Corporation may be
kept (subject to any provision contained in the GCL) outside of the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-laws of the Corporation.
-6-
TENTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to adopt, repeal, alter,
amend or rescind the By-laws of the Corporation; provided, however, that Article
IX of the By-laws shall be amended (i) only with the affirmative vote of the
holders of at least 80% of the outstanding shares of stock of the Corporation
then entitled to vote generally in the election of directors or (ii) by the
unanimous vote of the Board of Directors then in office.
ELEVENTH: Except as contemplated by Article Twelfth, the affirmative vote
of the holders of at least 80% of the outstanding shares of stock of the
Corporation then entitled to vote generally in the election of directors shall
be required to amend Article Fifth, Sixth, Seventh, Eighth, Ninth, Tenth,
Eleventh or Twelfth of this Restated Certificate of Incorporation, other than
technical amendments.
TWELFTH: Except as otherwise contemplated by the provisions of this
Restated Certificate of Incorporation, the Corporation reserves the right to
repeal, alter, amend, or rescind any provision contained in this Restated
Certificate of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred on stockholders herein are granted subject to
this reservation.
-7-
CERTIFICATE OF DESIGNATION, PREFERENCES
AND RIGHTS OF SERIES A JUNIOR
PARTICIPATING PREFERRED STOCK
OF
JOHNSTOWN AMERICA INDUSTRIES, INC.
Pursuant to Section 151 of the General Corporation Law of the State of Delaware
The undersigned officer of Johnstown America Industries, Inc., a
corporation organized and existing under the General Corporation Law of the
State of Delaware, in accordance with the provisions of Section 103 thereof,
DOES HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by the
Amended and Restated Certificate of Incorporation of the said Corporation, the
said Board of Directors on October 4, 1995, adopted the following resolution
creating a series of 20,000 shares of Preferred Stock designated as Series A
Junior Participating Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of Directors
of this Corporation in accordance with the provision of its Amended and Restated
Certificate of Incorporation, a series of Preferred Stock of the Corporation be
and it hereby is created, and that the designation and amount thereof and the
voting powers, preferences and relative, participating, optional and other
special rights of the shares of such series, and the qualifications, limitations
or restrictions thereof are as follows:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" and the number of
shares constituting such series shall be 20,000.
Section 2. Dividends and Distributions.
(A) The holders of shares of Series A Junior Participating Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of Directors
out of funds legally available for the purpose, quarterly dividends payable in
cash on the last day of March, June, September and December in each year (each
such date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first issuance
of a share or fraction of a share of Series A Junior Participating Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to the greater
of (a) $0.01 or (b) subject to the provision for adjustment hereinafter set
forth, 1000 times the aggregate per share amount of all cash dividends, and 1000
times the aggregate per share amount (payable in kind) of all non-cash dividends
or other distributions other than a dividend payable in shares of Common Stock
or a subdivision of the outstanding shares of Common Stock (by reclassification
or otherwise), declared on the Common Stock, par value $0.01 per share, of the
Corporation (the "Common Stock") since the immediately preceding Quarterly
Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a share of Series A
Junior Participating Preferred Stock. In the event the Corporation shall at any
time after October 4, 1995 (the "Rights Declaration Date") (i) declare any
dividend
on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the amount to which holders of
shares of Series A Junior Participating Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence shall
be adjusted by multiplying such amount by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the Series
A Junior Participating Preferred Stock as provided in Paragraph (A) above
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in the
event no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share on the
Series A Junior Participating Preferred Stock shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding shares
of Series A Junior Participating Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares of Series A Junior
Participating Preferred Stock, unless the date of issue of such shares is prior
to the record date for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of shares of Series
A Junior Participating Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Junior Participating Preferred Stock in an amount
less than the total amount of such dividends at the time accrued and payable on
such shares shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may fix a record date for
the determination of holders of shares of Series A Junior Participating
Preferred Stock entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be no more than 30 days prior to the
date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Junior Participating Preferred Stock shall entitle the holder
thereof to 1000 votes on all matters submitted to a vote of the stockholders of
the Corporation. In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the number of votes per share to which holders of shares of Series A Junior
Participating Preferred
-2-
Stock were entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of shares of
Series A Junior Participating Preferred Stock and the holders of shares of
Common Stock shall vote together as one class on all matters submitted to a vote
of stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A Junior Participating
Preferred Stock shall be in arrears in an amount equal to six (6) quarterly
dividends thereon, the occurrence of such contingency shall mark the beginning
of a period (herein called a "default period") which shall extend until such
time when all accrued and unpaid dividends for all previous quarterly dividend
periods and for the current quarterly dividend period on all shares of Series A
Junior Participating Preferred Stock then outstanding shall have been declared
and paid or set apart for payment. During each default period, all holders of
Preferred Stock (including holders of the Series A Junior Participating
Preferred Stock) with dividends in arrears in an amount equal to six (6)
quarterly dividends thereon, voting as a class, irrespective of series, shall
have the right to elect two (2) Directors.
(ii) During any default period, such voting right of the holders of Series
A Junior Participating Preferred Stock may be exercised initially at a special
meeting called pursuant to subparagraph (iii) of this Section 3(c) or at any
annual meeting of stockholders, and thereafter at annual meetings of
stockholders, provided that such voting right shall not be exercised unless the
holders of ten percent (10%) in number of shares of Preferred Stock outstanding
shall be present in person or by proxy. The absence of a quorum of the holders
of Common Stock shall not affect the exercise by the holders of Preferred Stock
of such voting right. At any meeting at which the holders of Preferred Stock
shall exercise such voting right initially during an existing default period,
they shall have the right, voting as a class, to elect Directors to fill such
vacancies, if any, in the Board of Directors as may then exist up to two (2)
Directors or, if such right is exercised at an annual meeting, to elect two (2)
Directors. If the number which may be so elected at any special meeting does not
amount to the required number, the holders of the Preferred Stock shall have the
right to make such increase in the number of Directors as shall be necessary to
permit the election by them of the required number. After the holders of the
Preferred Stock shall have exercised their right to elect Directors in any
default period and during the continuance of such period, the number of
Directors shall not be increased or decreased except by vote of the holders of
Preferred Stock as herein provided or pursuant to the rights of any equity
securities ranking senior to or pari passu with the Series A Junior
Participating Preferred Stock.
(iii) Unless the holders of Preferred Stock shall, during an existing
default period, have previously exercised their right to elect Directors, the
Board of Directors may order, or any stockholder or stockholders owning in the
aggregate not less than ten percent (10%) of the total number of shares of
Preferred Stock outstanding, irrespective of series, may request, the calling of
a special meeting of the holders of Preferred Stock, which meeting shall
thereupon be called by the President, a Vice-President or the Secretary of the
Corporation. Notice of such
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meeting and of any annual meeting at which holders of Preferred Stock are
entitled to vote pursuant to this Paragraph (C)(iii) shall be given to each
holder of record of Preferred Stock by mailing a copy of such notice to him or
her at his or her last address as the same appears on the books of the
Corporation. Such meeting shall be called for a time not earlier than 20 days
and not later than 60 days after such order or request or in default of the
calling of such meeting within 60 days after such order or request, such meeting
may be called on similar notice by any stockholder or stockholders owning in the
aggregate not less than ten percent (l0%) of the total number of shares of
Preferred Stock outstanding. Notwithstanding the provisions of this Paragraph
(C) (iii), no such special meeting shall be called during the period within 60
days immediately preceding the date fixed for the next annual meeting of the
stockholders.
(iv) In any default period, the holders of Common Stock, and other classes
of stock of the Corporation if applicable, shall continue to be entitled to
elect the whole number of Directors until the holders of Preferred Stock shall
have exercised their right to elect two (2) Directors voting as a class, after
the exercise of which right (x) the Directors so elected by the holders of
Preferred Stock shall continue in office until their successors shall have been
elected by such holders or until the expiration of the default period, and (y)
any vacancy in the Board of Directors may (except as provided in Paragraph
(C)(ii) of this Section 3) be filled by vote of a majority of the remaining
Directors theretofore elected by the holders of the class of stock which elected
the Director whose office shall have become vacant. References in this Paragraph
(C) to Directors elected by the holders of a particular class of stock shall
include Directors elected by such Directors to fill vacancies as provided in
clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x) the right of
the holders of Preferred Stock as a class to elect Directors shall cease, (y)
the term of any Directors elected by the holders of Preferred Stock as a class
shall terminate, and (z) the number of Directors shall be such number as may be
provided for in the certificate of incorporation or by-laws irrespective of any
increase made pursuant to the provisions of Paragraph (C)(ii) of this Section 3
(such number being subject, however, to change thereafter in any manner provided
by law or in the certificate of incorporation or by-laws). Any vacancies in the
Board of Directors effected by the provisions of clauses (y) and (z) in the
preceding sentence may be filled by a majority of the remaining Directors.
(D) Except as set forth herein, holders of Series A Junior Participating
Preferred Stock shall have no special voting rights and their consent shall not
be required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Junior Participating Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid dividends
and distributions, whether or not declared, on shares of Series A Junior
Participating Preferred Stock outstanding shall have been paid in full, the
Corporation shall not
-4-
(i) declare or pay dividends on, make any other distributions on, or
redeem or purchase or otherwise acquire for consideration any shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior Participating Preferred
stock;
(ii) declare or pay dividends on or make any other distributions on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Junior
Participating Preferred Stock, except dividends paid ratably on the Series
A Junior Participating Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to
which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares
of any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the series A Junior
Participating Preferred Stock, provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares of any such parity stock
in exchange for shares of any stock of the Corporation ranking junior
(either as to dividends or upon dissolution, liquidation or winding up) to
the Series A Junior Participating Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of
Series A Junior Participating Preferred Stock, or any shares of stock
ranking on a parity with the Series A Junior Participating Preferred Stock,
except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors, after consideration
of the respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective
series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under Paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Junior Participating
Preferred Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein.
Section 6. Liquidation, Dissolution or Winding Up. (A) Upon any liquidation
(voluntary or otherwise), dissolution or winding up of the Corporation, no
distribution shall be made to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the
Series A Junior Participating Preferred Stock unless, prior thereto, the holders
of Shares of Series A Junior Participating Preferred Stock shall have received
an amount equal to 1000 times the Exercise Price, plus an amount equal to
accrued and unpaid
-5-
dividends and distributions thereon, whether or not declared, to the date of
such payment (the "Series A Liquidation Preference"). Following the payment of
the full amount of the Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series A Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of
Common Stock shall have received an amount per share (the "Common Adjustment")
equal to the quotient obtained by dividing (i) the Series A Liquidation
Preference by (ii) 1000 (as appropriately adjusted as set forth in subparagraph
(C) below to reflect such events as stock splits, stock dividends and
recapitalizations with respect to the Common stock) (such number in clause (ii),
the "Adjustment Number"). Following the payment of the full amount of the Series
A Liquidation Preference and the Common Adjustment in respect of all outstanding
shares of Series A Junior Participating Preferred Stock and Common Stock,
respectively, holders of Series A Junior Participating Preferred stock and
holders of shares of Common Stock shall receive their ratable and proportionate
share of the remaining assets to be distributed in the ratio of the Adjustment
Number to 1 with respect to such Preferred Stock and Common Stock, on a per
share basis, respectively.
(B) In the event, however, that there are not sufficient assets available
to permit payment in full of the Series A Liquidation Preference and the
liquidation preferences of all other series of preferred stock, if any, which
rank on a parity with the Series A Junior Participating Preferred Stock, then
such remaining assets shall be distributed ratably to the holders of such parity
shares in proportion to their respective liquidation preferences. In the event,
however, that there are not sufficient assets available to permit payment in
full of the Common Adjustment, then such remaining assets shall be distributed
ratably to the holders of Common Stock.
(C) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of
Series A Junior Participating Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share (subject to the provision
for adjustment hereinafter set forth) equal to 1000 times the aggregate amount
of stock, securities, cash and/or any other property (payable in kind), as the
case may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series A Junior Participating Preferred Stock shall be
adjusted by multiplying such amount by a fraction the nu-
-6-
merator of which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Junior Participating
Preferred Stock shall not be redeemable.
Section 9. Amendment. The Amended and Restated Certificate of Incorporation
of the Corporation shall not be further amended in any manner which would
materially alter or change the powers, preferences or special rights of the
Series A Junior Participating Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of a majority or more of the
outstanding shares of Series A Junior Participating Preferred Stock, voting
separately as a class.
Section 10. Fractional Shares. Series A Junior Participating Preferred
Stock may be issued in fractions of a share which shall entitle the holder, in
proportion to such holders fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit of all other
rights of holders of Series A Junior Participating Preferred Stock.
-7-
IN WITNESS WHEREOF, I have executed and subscribed this Certificate and do
affirm the foregoing as true under the penalties of perjury this 4th day of
October, 1995.
JOHNSTOWN AMERICA INDUSTRIES, INC.
By: /s/ Andrew M. Weller
-----------------------------
Andrew M. Weller
Executive Vice President and
Chief Financial Officer
-8-
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
TRANSPORTATION TECHNOLOGIES INDUSTRIES, INC.
WITH AND INTO
JOHNSTOWN AMERICA INDUSTRIES, INC.
(Pursuant to Section 253 of the
General Corporation Law of the State of Delaware)
JOHNSTOWN AMERICA INDUSTRIES, INC., a Delaware corporation organized and
existing under the laws of the State of Delaware (the "Corporation"), DOES
HEREBY CERTIFY:
FIRST: The Corporation owns all of the outstanding shares of common stock
(the only outstanding class of stock) of TRANSPORTATION TECHNOLOGIES INDUSTRIES,
INC., a corporation incorporated on the 11th day of June, 1999 (the
"Subsidiary"), pursuant to the General Corporation Law of the State of Delaware,
8 Del. C. ss. 101 et seq. (the "DGCL").
SECOND: The Corporation, by resolutions (the "Resolutions of Merger") duly
adopted by its Board of Directors, at a meeting thereof duly called and held on
the 9th day of June, 1999, at which a quorum was present and acting throughout,
determined to effect a merger of said Subsidiary into itself, pursuant to
Section 253 of the DGCL, in which the Corporation shall be the surviving
corporation (the "Merger"). A true and correct copy of the Resolutions of Merger
is annexed hereto as Exhibit A and incorporated herein by reference. The
Resolutions of Merger have not been amended, modified, rescinded or revoked and
are in full force and effect on the date hereof.
THIRD: That, as provided in the Resolutions of Merger: (a) Pursuant to
Section 253(b) of the DGCL, upon the Merger becoming effective, the name of the
surviving corporation shall be changed from "Johnstown America Industries, Inc."
to "Transportation Technologies Industries, Inc."
FIFTH: The certificate of incorporation of the Corporation as in effect
immediately prior to the effective time of the Merger shall be the certificate
of incorporation of the surviving corporation.
[signature page follows]
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Ownership and Merger to be executed by its duly authorized officer this 11th day
of June, 1999.
JOHNSTOWN AMERICA INDUSTRIES, INC.
By: /s/ Kenneth M. Tallering
-------------------------------------------
Name: Kenneth M. Tallering
Office: Vice President, General Counsel and
Secretary
-2-
EXHIBIT A
RESOLUTIONS OF MERGER
WHEREAS, Johnstown America Industries, Inc., a Delaware corporation (the
"Corporation"), owns all of the outstanding shares of the capital stock of
Transportation Technologies Industries, Inc., a Delaware corporation
("Subsidiary"); and
WHEREAS, the Board of Directors of the Corporation has deemed it advisable
that the Subsidiary be merged with and into the Corporation pursuant to Section
253 of the General Corporation Law of the State of Delaware (the "DGCL");
NOW, THEREFORE, BE IT RESOLVED, that the Subsidiary be merged with and into
the Corporation pursuant to Section 253 of the DGCL (the "Merger");
RESOLVED, FURTHER, the Corporation shall be the corporation surviving the
Merger and shall continue its corporate existence under the DGCL, including,
without limitation, the provisions of Section 259 of the DGCL, and shall possess
all of the rights and assets of the constituent corporations and be subject to
and be deemed to have hereby assumed, all the liabilities and obligations of
each of the constituent corporations in accordance with the provisions of the
DGCL;
RESOLVED, FURTHER, that by virtue of the Merger and without any action on
the part of the holder thereof, each then outstanding share of common stock of
the Corporation shall remain unchanged and continue to remain outstanding as one
share of common stock of the Corporation, held by the person who was the holder
of such share of common stock of the Corporation immediately prior to the
Merger;
RESOLVED, FURTHER,, that by virtue of the Merger and without any action on
the part of the holder thereof, each then outstanding share of common stock of
the Subsidiary shall be canceled and no consideration shall be issued in respect
thereof;
RESOLVED, FURTHER, that the certificate of incorporation of the
Corporation, as in effect immediately prior to the effective time of the Merger,
shall continue in full force and effect as the certificate of incorporation of
the surviving corporation, until amended as provided by law, except that upon
the effective time of the Merger, in accordance with Section 253(b) of the DGCL,
the certificate of incorporation of the Corporation shall be, and hereby is,
amended to change the name of the Corporation from "Johnstown America
Industries, Inc." to "Transportation Technologies Industries, Inc." Pursuant to
Section 104 of the DGCL, the filed Certificate of Ownership and Merger shall
have the effect of striking the text of Article I of the certificate of
incorporation of the Corporation in its entirety and inserting in lieu thereof
the following:
"ARTICLE I
NAME
The name of the corporation is Transportation Technologies Industries, Inc.
(the "Corporation")."
RESOLVED, FURTHER , that the By-laws of the Corporation, as in effect
immediately prior to the effective time of the Merger, shall continue in full
force and effect as the By-laws of the surviving corporation until amended or
repealed as therein provided, except that the By-laws of the Corporation shall
be, and hereby are, amended to delete the name "Johnstown America Industries,
Inc." wherever it may therein appear, and substitute therefor in all such places
the name "Transportation Technologies Industries, Inc.";
RESOLVED, FURTHER, that the officers and directors of the Corporation
immediately prior to the effective time of the Merger shall continue to be the
officers and directors of the surviving corporation and shall serve until their
respective successors have been duly appointed or duly elected and qualified, as
the case may be;
RESOLVED, FURTHER, that the proper officers of the Corporation be and they
hereby are authorized and directed to make, execute and acknowledge, in the name
and under the corporate seal of the Corporation, a Certificate of Ownership and
Merger for the purpose of effecting the Merger and to file the same in the
office of the Secretary of State of the State of Delaware, and to do all other
acts and things that may be necessary to carry out and effectuate the purpose
and intent of the resolutions relating to the Merger.
-2-
CERTIFICATE OF OWNERSHIP AND MERGER
OF
TRANSPORTATION ACQUISITION I CORP.
WITH AND INTO
TRANSPORTATION TECHNOLOGIES INDUSTRIES, INC.
_________________________________
Pursuant to Section 253 of the General
Corporation Law of the State of Delaware
_________________________________
Transportation Acquisition I Corp. (the "Company"), pursuant to Section 253
of the General Corporation Law of the State of Delaware (the "DGCL"), hereby
certifies as follows:
FIRST: That the name and state of incorporation of each of the constituent
corporations to the merger are as follows:
Name State of Incorporation
---- ----------------------
Transportation Acquisition I Corp. Delaware
Transportation Technologies Industries, Inc. Delaware
SECOND: That the Company owns more than 90% of the outstanding shares of
the Common Stock, par value $0.01 per share, of Transportation Technologies
Industries, Inc., which is the only outstanding class of capital stock of
Transportation Technologies Industries, Inc.;
THIRD: That the sole director of the Company, by written consent dated
March 9, 2000, pursuant to Section 141(f) of the DGCL, duly adopted resolutions
authorizing the merger of the Company with and into Transportation Technologies
Industries, Inc. pursuant to Section 253 of the DGCL (the "Merger"). A true copy
of such resolutions is annexed hereto as Exhibit A. Such resolutions have not
been modified or rescinded and are in full force and effect on the date hereof.
FOURTH: That the stockholders of the Company, by written consent dated
March 9, 2000, pursuant to Section 228 of the DGCL, have approved the merger of
the Company with and into Transportation Technologies Industries, Inc. pursuant
to Section 253 of the DGCL.
FIFTH: That the Company will be merged with and into Transportation
Technologies Industries, Inc., with Transportation Technologies Industries, Inc.
as the corporation surviving the Merger.
SIXTH: That at the effective time of the Merger (the "Effective Time"), the
Restated Certificate of Incorporation of Transportation Technologies Industries,
Inc., shall be
amended in its entirety to read in the form attached hereto as Exhibit B, and
such Restated Certificate of Incorporation shall be the Certificate of
Incorporation of the, surviving corporation.
SEVENTH: That in accordance with Section 103(d) of the DGCL, the Merger
shall be effective upon the filing of this Certificate of Ownership and Merger
with the Secretary of State of the State of Delaware.
-2-
IN WITNESS WHEREOF, Transportation Acquisition I Corp. has caused this
Certificate of Ownership and Merger to be executed in its corporate name this
9th day of March, 2000.
TRANSPORTATION ACQUISITION I CORP.
By: /s/ Thomas M. Begel
--------------------------------------------
Name: Thomas M. Begel
Office: Chairman of the Board and President
-3-
EXHIBIT A
CONSENT IN LIEU OF MEETING
OF
THE SOLE DIRECTOR
OF
TRANSPORTATION ACQUISITION I CORP.
The undersigned., being the sole director of Transportation Acquisition I
Corp., a Delaware corporation (the "Company"), acting pursuant to Section 141(f)
of the General Corporation Law of the State of Delaware, hereby adopts, by this
written consent, the following resolutions and directs that this written consent
be filed with the minutes of the proceedings of the Board of Directors of the
Company:
RESOLVED, that the Company merge itself (the "Merger") with and into
Transportation Technologies Industries, Inc., a Delaware corporation
("TTII"), which shall be the surviving corporation (the "Surviving
Corporation"), pursuant to Section 253 of the General Corporation Law of
the State of Delaware (the "DGCL"); and
FURTHER RESOLVED, that by virtue of the Merger, each issued and
outstanding share of common stock, par value $0.01 per share, of the
Company shall be converted into and become one validly issued, fully paid
and nonassessable share of preferred stock, per value $0.01 per share, of
the Surviving Corporation; and
FURTHER RESOLVED, that by virtue of the Merger, each issued and
outstanding share of preferred stock, par value $0.01 per share, of the
Company shall be converted into and become one validly issued, fully paid
and nonassesssble share of preferred stock, par value $0.01 per share, of
the Surviving Corporation; and
FURTHER RESOLVED, that by virtue of the Merger, each issued and
outstanding share of common stock, par value $0.01 per share, of TTII
immediately prior to the effective time of the Merger (collectively,
"Shares") (other than (i) shares held in TTII's treasury, (ii) shares held
directly or indirectly by the Company or by a Participant (as such term is
defined in the Agreement and Plan of Merger, dated as of January 28, 2000,
between the Company and TTII) and (iii) shares which are held by a
stockholder who has properly exercised appraisal rights with respect
thereto in accordance with Section 262 of the DGCL) shall be converted into
the right to receive $21.50 in cash, without interest (the "Per Share
Amount"), upon surrender of the certificate formerly representing such
Share in accordance with the Agreement and Plan of Merger, dated as of
January 28, 2000, between the Company and TTII; and
FURTHER RESOLVED, that by virtue of the Merger, each Share that is
held in TTII's treasury or that is owned by the Company or any subsidiary
of the Company, shall automatically be cancelled and shall cease to exist,
and no cash or other consideration shall be delivered or deliverable in
exchange therefore; and
FURTHER RESOLVED, that by virtue of the Merger, each Share that is
held by a Participant shall be converted into the right to retain one fully
paid and nonassessable share of common stock, par value $0.01 per share, of
the Surviving Corporation (a "Retained Share"), or the right to receive the
Per Share Amount, upon surrender of the certificate formerly representing
such Share, as agreed to between the Company and each Participant; and
FURTHER RESOLVED, that by virtue of the Merger; each Share to be
converted into the right to receive either the Per Share Amount or the
Retained Shares, when so converted, shall no longer be outstanding and
shall be cancelled and retired and shall cease to exist; and
FURTHER RESOLVED, that at the effective time of the Merger (the
"Effective Time"), the certificate of incorporation of TTII shall be
amended and restated in its entirety to read in the form of the certificate
of incorporation of the Company as in effect immediately prior to the
Effective Time, and such amended and restated certificate of incorporation
shall be the certificate of incorporation of the Surviving Corporation
until thereafter changed or amended in accordance with the provisions
thereof and applicable law; and
FURTHER RESOLVED, that at the effective time of the Merger (the
"Effective Time"), the by-laws of TTII shall be amended and restated in its
entirety to read in the form of the by-laws of the Company as in effect
immediately prior to the Effective Time, and such amended and restated
by-laws shall be the by-laws of the Surviving Corporation until thereafter
changed or amended in accordance with the provisions thereof and applicable
laws; and
FURTHER RESOLVED, that the directors of the Company immediately prior
to the Merger shall be the directors of the Surviving Corporation, each to
hold office until their respective successors are duly elected or appointed
and qualified in the manner provided in the by-laws of the Surviving
Corporation, or as otherwise provided by law; and
FURTHER RESOLVED, that the President or any Vice-President of the
Company, acting individually, and the Secretary of the Company be, and each
of them hereby is, authorized and directed to execute and acknowledge in
the name of and on behalf of the Company, a Certificate of Ownership and
Merger setting forth, among other things, a copy of these resolutions and
the date of their adoption; and that such officers are hereby authorized
and directed to cause such executed Certificate of Ownership and Merger to
be filed in the Office of the Secretary of State of the State of Delaware
and to cause a certified copy of such Certificate to be recorded in the
Office of the Recorder of Deeds of New Castle County, all in accordance
with Sections 103 and 253 of the DGCL; and
FURTHER RESOLVED, that the Merger shall become effective and the
corporate existence of the Company shall cease upon the filing of such
Certificate of Ownership and Merger with the Secretary of State of the
State of Delaware in accordance with Sections 103 and 253 of the DGCL; and
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FURTHER RESOLVED, that the appropriate officers of the Company be, and
each of them hereby is, authorized and directed to take or cause to be
taken all such further actions and to execute and deliver or cause to be
delivered all such further instruments and documents in the name and on
behalf of the Company, and to incur all such fees and expenses as in their
judgment shall be necessary or advisable in order to carry out fully the
intent and purposes of the foregoing resolutions; and
FURTHER RESOLVED, that all actions previously taken by an officer or
director of the Company in connection with the transactions contemplated by
these resolutions are hereby adopted, ratified, confirmed and approved in
all respects.
-3-
EXHIBIT B
RESTATED
CERTIFICATE OF INCORPORATION OF
TRANSPORTATION TECHNOLOGIES INDUSTRIES, INC.
FIRST: The name of the Corporation is TRANSPORTATION TECHNOLOGIES
INDUSTRIES, INC. (the "Corporation").
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1013 Centre Road, in the City of Wilmington, County of New
Castle. The name of its registered agent at that address is Corporation Service
Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware as set forth in Title 8 of the Delaware Code (the
"GCL").
FOURTH: (a) The total number of shares of stock which the Corporation shall
have authority to issue is 20,000,000 shares of common stock, par value $0.01
per share (the "Common Stock"), and 400,000 shares of preferred stock, par value
$0.01 per share (the "Preferred Stock"). The Board of Directors of the
Corporation (the "Board of Directors") has authorized the issuance of 173,000
shares of the 14 1/2% Senior Redeemable Preferred Stock, Series A, with such
powers, preferences, rights, qualifications, limitations and restrictions as are
set forth in Exhibit 1 to this Exhibit B.
(b) The powers, preferences and rights, and the qualifications, limitations
and restriction, of each class of the Common Stock are as follows:
(1) Subject to clause (2) of this paragraph (b) of this Article FOURTH, the
powers, preferences and rights of the shares of Common Stock, and the
qualifications, limitations and restriction thereof, shall be in all respects
identical.
(2) The holders of any outstanding shares of Common Stock shall be entitled
to one vote for each share of Common Stock held of record by such holder and
shall be entitled to vote with respect to all matters as to which a stockholder
of a Delaware corporation would be entitled to vote. Notwithstanding the
foregoing, unless permitted under applicable law (as determined by the affected
holder of Common Stock), if shares of Common Stock owned by any person subject
to the provisions of the Bank Holding Company Act of 1956, as amended (the "BHC
Act") (such person is referred to herein as a "Regulated Entity") represent more
than 5% of the total issued and outstanding shares of Common Stock (including
shares of Common Stock held by affiliates (as defined in the BHC Act) of the
Regulated Entity), those shares that represent the excess over the 5% limit
shall be non-voting Common Stock so long as such shares continue to be held by a
Regulated Entity or its affiliates (as defined in the BHC Act), such shares of
non-voting Common Stock shall not be included in determining whether the
requisite percentage
B-1
of shares has consented to, approved, adopted or taken any action and shall in
all other respects be equivalent to all other outstanding shares of Common
Stock; provided that such shares shall not be non-voting on matters that
significantly and adversely affect the rights or preferences of the Common Stock
as determined by such Regulated Entity. Any Common Stock that is non-voting
pursuant to this paragraph while held by a Regulated Entity shall become voting
upon transfer to any entity that is not a Regulated Entity.
(3) Subject to the rights of the holders of Preferred Stock, holders of
shares of Common Stock shall be entitled to receive dividends and other
distributions in cash, stock or property of the Corporation when, as and if
declared thereon by the Board of Directors from time to time out of assets or
funds of the Corporation legally available therefore.
(4) In the event of any dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, the holders of shares of Common
Stock shall be entitled to receive the assets and funds of the Corporation
available for distribution after payments to creditors and to the holders of any
Preferred Stock that may at the time be outstanding, in proportion to the number
of shares held by them, respectively.
(5) Except as otherwise agreed to by the Corporation, no holder of shares
of Common Stock shall be entitled to preemptive or subscription rights.
FIFTH: (a) The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders.
(1) Subject to the other provisions in this Article FIFTH, the business and
affairs off the Corporation shall be managed by or under the direction of the
Board of Directors. The number of directors of the Corporation shall be not less
than 3 nor more than 10, the exact number to be fixed from time to time by the
Board of Directors.
(2) Except as otherwise required by law or the provisions hereof, at all
meetings of the Board of Directors, a majority of the entire Board of Directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors. If a quorum shall not be present at
any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the
meeting of the time and place of the adjourned meeting, until a quorum shall be
present. Unless otherwise provided herein or in the by-laws of the Corporation,
any action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting, if all the
members of the Board of Directors or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors.
(3) Except as otherwise provided by law or by the by-laws of the
Corporation, the holders of a majority of the capital stock of the Corporation
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders of the Corporation for the transaction of business. If, how-
B-2
ever, such quorum shall not be present or represented at any meeting of the
stockholders of the Corporation, the stockholders of the Corporation entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of the Corporation
entitled to vote at the meeting. Unless otherwise required by law, the by-laws
of the Corporation or by the provisions of Stockholders' Agreement, dated as of
March 9, 2000 (the "Stockholders Agreement"), by and among Caravalle Investment
Fund, L.L.C., CIBC WMC Inc. Albion Alliance Mezzanine Fund, L.P., Albion
Alliance Mezzanine Fund II, L.P., Transportation Technologies Industries, Inc.,
and the persons listed on Exhibit A attached thereto, who are or become
signatories to the Stockholders Agreement, any question brought before any
meeting of stockholders of the Corporation shall be decided by the vote of the
holders of a majority of the stock represented and entitled to vote thereat.
Each stockholder of the Corporation represented at a meeting of stockholders of
the Corporation shall be entitled to cast one vote for each share of the capital
stock entitled to vote thereat held by such stockholder. Any action required or
permitted to be taken at any annual or special meeting of stockholders of the
Corporation, may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those shareholders of the
Corporation who have not consented in writing.
(4) Nothing contained herein or in the Stockholders Agreement, express or
implied, shall relieve any officer or director of the Corporation or any of its
subsidiaries, or any stockholder of the Corporation, of any fiduciary or other
duties or obligations they may have to the stockholders of the Corporation.
(5) Subject to the provisions of the Stockholders Agreement, the directors
shall have concurrent power with the stockholders of the Corporation to make,
alter, amend, change, add to or repeal the by-laws of the Corporation.
(6) The number of directors of the Corporation shall be as from time to
time fixed by, or in the manner provided in, the by-laws of the Corporation.
Election of directors need not be by written ballot unless the by-laws of the
Corporation so provide.
(7) No director shall be personally liable to the Corporation or any of its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the GCL or (iv) for any transaction from which the
director derived an improper personal benefit. Any repeal or modification of
this Article FIFTH by the stockholders of the Corporation shall not adversely
affect any right or protection
B-3
of a director of the Corporation existing at the time of such repeal or
modification with respect to acts or omissions occurring prior to such repeal or
modification.
(8) In addition to the powers and authority hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done by
the Corporation, subject, nevertheless, to the provisions of the GCL, this
Amended and Restated Certificate of Incorporation, any by-laws adopted by the
stockholders and the Stockholders Agreement; provided, however, that no by-laws
hereafter adopted by the stockholders shall invalidate any prior act of the
directors which would have been valid if such by-laws had not been adopted.
SIXTH: At such time as the Corporation has consummated a public offering
and sale of Common Stock for cash pursuant to an effective registration
statement under the Securities Act of 1933, as amended, which public offering
accounted for at least 20% of the outstanding Common Stock of the Corporation on
a fully-diluted basis and yielded net proceeds of not less than $75.0 million,
and without any further action by the Corporation, the Board of Directors or the
Corporation's stockholders, the provisions of this Article SIXTH shall become
and thereafter shall remain effective.
(a) The Board of Directors shall be divided into three classes, designated
Class I, Class II and Class III, with each class consisting, as nearly as may be
possible, of one-third of the total number of directors constituting the entire
Board of Directors. The then Chairman of the Board of the Corporation shall
designate the initial class of each director. The total of the initial Class I
directors shall terminate on the date of the first annual meeting of
stockholders thereafter; the term of the initial Class II directors shall
terminate on the date of the second annual meeting of stockholders thereafter;
and the term of the initial Class III directors shall terminate on the date of
the third annual meeting of stockholders thereafter. At the first annual meeting
of stockholders after the Board of Directors has been divided into classes and
at each annual meeting of stockholders thereafter, successors to the class of
directors whose term expires at that annual meeting shall be elected for a
three-year term. If the number of directors is changed, any increase or decrease
shall be apportioned among the classes so as to maintain the number of directors
in each class as neatly equal as possible, and any additional directors of any
class elected to fill a vacancy resulting from an increase in such class shall
hold office for a term that shall coincide with the remaining term of that
class, but in no case will a decrease in the number of directors shorten the
term of my incumbent director. Any vacancy on the Board of Directors, however
resulting, may be filled only by a majority of the directors then in office,
even if less than a quorum, or by a sole remaining director. Any director
elected to fill a vacancy shall hold office for a term that shall coincide with
the term of the class to which such director shall have been elected. Any or all
of the directors of the Corporation may be removed from office at any time, but
only for cause and only by the affirmative vote of the holders of a majority of
the outstanding shares of stock of the Corporation then entitled to vote
generally in the election of directors.
(b) Special meetings of stockholders of the Corporation for any purpose or
purposes may be called at any time by a majority of the Board of Directors, the
Chairman of the Board of Directors or the President of the Corporation. Special
meetings of stockholders of the
B-4
Corporation may not be called by any other person or persons. Any action
required or permitted to be taken at any annual or special meeting of
stockholders may be taken only upon the vote of the stockholders at an annual or
special meeting duly noticed and called, as provided in the by-laws of the
Corporation, and may not be taken by a written consent of the stockholders
pursuant to the GCL.
SEVENTH: Meetings of stockholders of the Corporation may be held within or
without the State of Delaware, as the by-laws of the Corporation may provide.
The books of the Corporation may be kept (subject to any provision contained in
the GCL) outside the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or in the by-laws of the
Corporation.
EIGHTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to adopt, repeal, alter,
amend or rescind the bylaws of the Corporation; provided, however, that Article
IX of the by-laws of the Corporation shall be amended (a) only with the
affirmative vote of the holders of at least 80% of the outstanding shares of
stock of the Corporation than entitled to vote generally in the election of
directors or (b) by the unanimous vote of the Board of Directors then in office.
NINTH: Except as contemplated by Article TENTH, the affirmative vote of the
holders of at least 80% of the outstanding shares of stock of the Corporation
then entitled to vote generally in the election of directors shall be required
to amend Articles FIFTH, SIXTH, SEVENTH, EIGHTH or NINTH of this Amended and
Restated Certificate of Incorporation, other than technical amendments.
TENTH: Except as otherwise contemplated by the provisions of this Amended
and Restated Certificate of Incorporation, the Corporation reserves the right to
amend, alter, change or repeal any provision contained in this Amended and
Restated Certificate of Incorporation, in the manner now or hereafter prescribed
by statute, and all rights conferred upon stockholders of the Corporation herein
are granted subject to this reservation.
B-5
EXHIBIT 1 TO EXHIBIT B
THE POWERS, PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL AND OTHER SPECIAL RIGHTS OF 14 1/2%
SENIOR REDEEMABLE PREFERRED STOCK, SERIES A, AND
QUALIFICATIONS, LIMITATIONS AND RESTRICTIONS THEREOF
(a) Designation. There is hereby created out of the authorized and unissued
shares of Preferred Stock of the Corporation a class of Preferred Stock
designated as the "14 1/2% Senior Redeemable Preferred Stock." The number of
shares constituting such class shall be 173,000 and are referred to herein as
the "Senior Preferred Stock." 70,000 shares of Senior Preferred Stock,
designated as the "14 1/2% Senior Redeemable Preferred Stock, Series A," shall
be initially issued with an additional 103,000 shares of Senior Preferred Stock
reserved for issuance in accordance with paragraph (c) (i) hereof. The
Corporation may issue up to one additional series of the Senior Preferred Stock
(designated as the "14 l/2% Senior Redeemable Preferred Stock, Series S")
pursuant to this Resolution and Certificate of Designation to Holders of the 14
1/2% Senior Redeemable Preferred Stock, Series A, in exchange for shares of the
14 1/2% Senior Redeemable Preferred Stock, Series A, as is necessary to comply
with the registration and exchange provisions of the Registration Rights
Agreement and for issuance in accordance with paragraph (c)(i) hereof following
such exchange. The liquidation preference of the Senior Preferred Stock shall be
$1,000.00 per share.
(b) Rank. The Senior Preferred Stock shall, with respect to dividend
distributions and distributions upon liquidation, winding-up and dissolution of
the Corporation, rank (i) senior (to the extent set forth herein) to all classes
of Common Stock of the Corporation and to each other class of Capital Stock of
the Corporation or series of Preferred Stock of the Corporation hereafter
created the terms of which do not expressly provide that it ranks senior to, or
on a parity with, the Senior Preferred Stock as to dividend distributions and
distributions upon liquidation, winding-up and dissolution of the Corporation
(collectively referred to, together with all classes of Common Stock of the
Corporation, as "Junior Securities"); (ii) on a parity with any class of Capital
Stock of the Corporation or series of Preferred Stock of the Corporation
hereafter created the terms of which expressly provide that such class or series
will rank on a parity with the Senior Preferred Stock as to dividend
distributions and distributions upon liquidation, winding-up and dissolution
(collectively referred to as "Parity Securities"), provided that any such Parity
Securities that were not approved by the Holder in accordance with paragraph
(f)(ii)(A) hereof (to the extent such approval is required) shall be deemed to
be Junior Securities and not Parity Securities; and (iii) junior to each other
class of Capital Stock of the Corporation or series of Preferred Stock of the
Corporation hereafter created the terms of which expressly provide that such
class or series will rank senior to the Senior Preferred Stock as to dividend
distributions and distributions upon liquidation, winding-up and dissolution of
the Corporation (collectively referred to as "Senior Securities"), provided that
any such Senior Securities that were not approved by the Holders in accordance
with paragraph (f)(ii)(B) hereof shall be deemed to be Junior Securities and not
Senior Securities.
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(c) Dividends.
(i) From the Issue Date, the Holders of the outstanding shares of Senior
Preferred Stock shall be entitled to receive, when, as and if declared by the
Board of Directors, out of funds legally available therefor, dividends on each
share of Senior Preferred Stock at a rate per annum, equal to 14 1/2% of the
liquidation preference per share of Senior Preferred Stock. All dividends shall
be cumulative, whether or not earned or declared, an a daily basis from the
Issue Date and shall be payable quarterly in arrears on each Dividend Payment
Date, commencing on the first Dividend Payment Date after the Issue Date. All
unpaid dividends will compound on a quarterly basis at a rate per annum equal to
the then applicable dividend rate. Dividends accumulating on or prior to March
15, 2005, shall be paid by the issuance of additional shares of Senior Preferred
Stock (including fractional shares) having an aggregate liquidation preference
equal to the amount of such dividends. In the event that on or prior to March
15, 2005, dividends are declared and paid through the issuance of additional
shares of Senior Preferred Stock as provided in the previous sentence, such
dividends shall be deemed paid in full and shall not accumulate. Dividends
accumulating after March 15, 2005, must be paid in cash (when, as and if
declared by the Board of Directors out of funds legally available therefor). If
(A) any dividend payable on any Dividend Payment Date subsequent to March 15,
2005, is not paid in full in cash on such Dividend Payment Date, or (B) at any
time, any of the types of Voting Rights Triggering Events described in clauses
(2), (3), (4) or (5) of paragraph (f)(iv)(A) shall have occurred, the per annum
dividend rate will be increased by 2.0% per annum (y) from such Dividend Payment
Date until such dividend is paid in full in cash (in the case of clause (A)
above) or (z) from the occurrence of any such Voting Rights Triggering Event
until the termination of any such Voting Rights Triggering Event (in case of
clause (B) above), as the case may be. After the date on which such dividend is
paid in cash or such Voting Rights Triggering Event ceases to exist, the
dividend rate will revert to the rate originally borne by the Senior Preferred
Stock. Each dividend shall be payable to the Holders of record as they appear on
the stock books of the Corporation on the Dividend Record Date immediately
preceding the related Dividend Payment Date.
(ii) All dividends paid with respect to shares of the Senior Preferred
Stock pursuant to paragraph (c)(i) shall be paid pro rata to the Holders
entitled thereto.
(iii) Dividends accruing after March 15, 2005, on the Senior Preferred
Stock for any past Dividend Period and dividends in connection with any optional
redemption pursuant to paragraph (e)(i) may be declared and paid at any time,
without reference to any Dividend Payment Date, to Holders of record on such
date, not more than forty-five (45) days prior to the payment thereof, as may be
fixed by the Board of Directors.
(iv) (A) No full dividends shall be declared by the Board of Directors or
paid or set apart for payment by the Corporation on any Parity Securities for
any period unless (1) full cumulative dividends have been or contemporaneously
are declared and paid in full, or declared and, if payable in cash, a sum in
cash set apart sufficient for such payment, on the Senior Preferred Stock for
all Dividend Periods terminating on or prior to the date of payment of such full
dividends on such Parity Securities and (2) such payment is in compliance with
paragraph (k)(ii) hereof. If any dividends are not so paid, all dividends
declared upon shares of the
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Senior Preferred Stock and any other Parity Securities shall be declared pro
rata so that the amount of dividends declared per share on the Senior Preferred
Stock and such Parity Securities shall in all cases bear to each other the same
ratio that accrued dividends per share on the Senior Preferred Stock and such
Parity Securities bear to each other.
(B) So long as any share of the Senior Preferred Stock is outstanding, the
Corporation shall not declare, pay or set apart for payment any dividend on any
of the Junior Securities (other than dividends in Junior Securities to the
holders of 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 whether in cash, obligations or shares of the Corporation or other
property (other than in exchange for Junior Securities), and shall not permit
any corporation or other entity directly or indirectly controlled by the
Corporation to purchase or redeem any of the Junior Securities or any such
warrants, rights, calls or options (other than in exchange for Junior
Securities) unless (1) full cumulative dividends determined in accordance
herewith on the Senior Preferred Stock have been paid in full for all full
quarterly dividend periods ended prior to the date of such payment in respect of
Junior Securities and (2) such payment is in compliance with paragraph (k)(ii)
hereof.
(C) So long as any share of the Senior Preferred Stock is outstanding, the
Corporation shall not (except with respect to dividends as permitted by
paragraph (c)(iv)(A)) 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 whether
in cash, obligations or shares of the Corporation or other property, and shall
not permit any corporation or other entity directly or indirectly controlled by
the Corporation to purchase or redeem any of the Parity Securities or any such
warrants, rights, calls or options unless (1) full cumulative dividends
determined in accordance herewith on the Senior Preferred Stock have been or
contemporaneously are paid in full and (2) such payment is in compliance with
paragraph (k)(ii) hereof.
(v) Dividends payable on the Senior Preferred Stock for any period less
than a year shall be computed on the basis of a 360-day year of twelve 30-day
months and, for periods not involving a full calendar month, the actual number
of days elapsed (not to exceed 30 days).
(vi) Additional Dividends shall become due and payable with respect to the
Senior Preferred Stock on the terms and subject to the conditions set forth in
the Registration Rights Agreement.
(d) Liquidation Preference.
(i) In the event of any voluntary or involuntary liquidation, dissolution
or winding-up of the affairs of the Corporation, the Holders of shares of Senior
Preferred Stock then outstanding shall be entitled to be paid out of the assets
of the Corporation available for distribution to its stockholders an amount in
cash equal to the liquidation preference for each share outstanding, plus,
without duplication, an amount in cash equal to accumulated and unpaid dividends
thereon to the date fixed for liquidation, dissolution or winding-up (including
an amount
B-1-3
equal to a prorated dividend for the period from the last Dividend Payment Date
to the date fixed for liquidation, dissolution or winding-up) before any
distribution shall be made or any assets distributed in respect of Junior
Securities to the holders of any Junior Securities including, without
limitation, Common Stock of the Corporation. If upon any voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation, the
amounts payable with respect to the Senior Preferred Stock and all other Parity
Securities are not paid in full, the Holders of the Senior Preferred Stock and
the Parity Securities will share equally and ratably in any distribution of
assets of the Corporation first in proportion to the full liquidation preference
to which each is entitled until such preferences are paid in full, and then in
proportion to their respective amounts of accumulated but unpaid dividends.
(ii) For the purposes of this paragraph (d), neither the 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
Corporation nor the consolidation or merger of the Corporation with or into one
or more entities shall be deemed to be a liquidation, dissolution or winding-up
of the affairs of the Corporation.
(e) Redemption.
(i) Optional Redemption. (A) The Corporation may redeem the Senior
Preferred Stock at its option, in whole at any time or in part from time to
time, on or after the Issue Date, subject to contractual and other restrictions
with respect thereto, from any source of funds legally available therefor, in
the manner provided for in paragraph (e)(iii) hereof, at the redemption prices
in cash (expressed as a percentage of the liquidation preference) set forth
below, plus, without duplication, an amount in cash equal to all accumulated and
unpaid dividends (including Additional Dividends, if any) (including an amount
in cash equal to a prorated dividend for the period from the Dividend Payment
Date immediately prior to the Redemption Date to the Redemption Date) if
redeemed during the 12-month period beginning on each date listed below:
Issue Date................................. 114.500%
March 15, 2001............................. 114.500%
March 15, 2002............................. 114.500%
March 15, 2003............................. 112.083%
March 15, 2004............................. 109.667%
March 15, 2005............................. 107.250%
March 15, 2006............................. 104.833%
March 15, 2007............................. 102.417%
March 15, 2008 and thereafter ............. 100.000%;
provided that no redemption pursuant to this paragraph (e)(i)(A) shall be
authorized or made unless prior thereto full accumulated and unpaid dividends
(including Additional Dividends, if any) are declared and paid in full, or
declared and a sum in cash is set apart sufficient for such
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payment, on the Senior Preferred Stock for all Dividend Periods terminating on
or prior to the Redemption Date.
(B) In the event of a redemption pursuant to paragraph (e)(i)(A) hereof of
only a portion of the then outstanding shares of Senior Preferred Stock, the
Corporation shall effect such redemption on a pro rata basis according to the
number of shares held by each Holder of Senior Preferred Stock, except that the
Corporation may redeem such shares held by Holders of fewer than one share (or
shares held by Holders who would hold less than one share as a result of such
redemption), as may be determined by the Corporation.
(ii) Mandatory Redemption. On March 15, 2010 (the "Mandatory Redemption
Date"), the Corporation shall redeem, to the extent of funds legally available
therefor, all of the shares of Senior Preferred Stock then outstanding at a
redemption price equal to 100% of the liquidation preference per share, plus,
without duplication, an amount in cash equal to all accumulated and unpaid
dividends (including Additional Dividends, if any) per share (including 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) (the
"Mandatory Redemption Price").
(iii) Procedures for Redemption. At least 15 days and not more than 90 days
prior to the date fixed for any redemption of the Senior Preferred Stock,
written notice (the "Redemption Notice") shall be given by first-class mail,
postage prepaid, to each Holder of record on the record date fixed for such
redemption of the Senior Preferred Stock at such Holder's address as it appears
in the register maintained by the transfer agent for the Senior Preferred Stock,
provided that no failure to give such notice nor any deficiency therein shall
affect the validity of the procedure for the redemption of any shares of Senior
Preferred Stock to be redeemed except as to the Holder or Holders to whom the
Corporation has failed to give said notice or except as to the Holder or Holders
whose notice was defective. The Redemption Notice shall state:
(1) that the redemption is pursuant to paragraph (e)(i)(A) hereof;
(2) the redemption price;
(3) whether all or less than all the outstanding shares of Senior
Preferred Stock are to be redeemed and the total number of shares of Senior
Preferred Stock being redeemed;
(4) the Redemption Date;
(5) that the Holder is to surrender to the Corporation, in the manner,
at the place or places and at the price designated, his certificate or
certificates representing the shares of Senior Preferred Stock to be
redeemed; and
(6) that dividends on the shares of Senior Preferred Stock to be
redeemed shall cease to accumulate on such Redemption Date unless the
Corporation defaults in the payment of the redemption price.
B-1-5
(C) Each Holder of Senior Preferred Stock shall surrender the certificate
or certificates representing such shares of Senior Preferred Stock to the
Corporation, duly endorsed (or otherwise in proper form for transfer, as
determined by the Corporation), in the manner and at the place designated in the
Redemption Notice, and on the Redemption Date the full redemption price for such
shares shall be payable in cash to the Person whose name appears on such
certificate or certificates as the owner thereof, and each surrendered
certificate shall be canceled and retired. In the event that less than all of
the shares represented by any such certificate are redeemed, a new certificate
shall be issued representing the unredeemed shares.
(D) On and after the Redemption Date, unless the Corporation defaults in
the payment in full of the applicable redemption price, dividends on Senior
Preferred Stock called for redemption shall cease to accumulate on the
Redemption Date, and all rights of the Holders of redeemed shares shall
terminate with respect thereto on the Redemption Date, other than the right to
receive the redemption price; provided, however, that if a notice of redemption
shall have been given as provided in paragraph (iii)(A) above and the funds
necessary for redemption (including an amount in cash in respect of all
dividends that will accumulate to the Redemption Date) shall have been
irrevocably deposited in trust for the equal and ratable benefit for the Holders
of the shares of Senior Preferred Stock to be redeemed, then, at the close of
business on the Business Day on which such funds are segregated and set aside,
the Holders of the shares to be redeemed shall cease to be stockholders of the
Corporation and shall be entitled only to receive the redemption price.
(f) Voting Rights.
(i) The Holders of Senior Preferred Stock, except as otherwise required
under Delaware law or as set forth in paragraphs (ii), (iii) and (iv) below,
shall not be entitled or permitted to vote on any matter required or permitted
to be voted upon by the stockholders of the Corporation.
(ii) (A) So long as any shares of Senior Preferred Stock are outstanding,
the Corporation shall not authorize or issue any class of Parity Securities
without the affirmative vote or consent of Holders of at least a majority of the
then outstanding shares of Senior Preferred Stock, voting or consenting, as the
case may be, as one class, given in person or by proxy, either in writing or by
resolution adopted at an annual or special meeting; provided, however, that no
such vote or consent shall be necessary in connection with the issuance of
additional shares of Senior Preferred Stock pursuant to the provisions of
paragraph (c) of this Certificate of Designation.
(B) So long as any shares of Senior Preferred Stock are outstanding, the
Corporation shall not authorize or issue any class of Senior Securities without
the affirmative vote or consent of Holders of at least a majority of the
outstanding shares of Senior Preferred Stock, voting or consenting, as the case
may be, as one class, given in person or by proxy, either in writing or by
resolution adopted at an annual or special meeting.
(C) So long as any shares of Senior Preferred Stock are outstanding, the
Corporation shall not amend its Certificate of Incorporation or this Resolution
and Certificate of Designation so as to affect adversely the rights,
preferences, privileges or voting rights of
B-1-6
Holders of shares of Senior Preferred Stock without the affirmative vote or
consent of Holders of at least a majority of the issued and outstanding shares
of Senior Preferred Stock, voting or consenting, as the case may be, as one
class, given in person or by proxy, either in writing or by resolution adopted
at an annual or special meeting; provided, however, that, without the
affirmative vote or consent of each Holder of shares of Senior Preferred Stock
affected, an amendment may not: (I) reduce the percentage of outstanding shares
of Senior Preferred Stock whose Holders must consent to an amendment; (II)
reduce the rate of or change the time for payment of dividends (including
Additional Dividends) on any share of Senior Preferred Stock; (III) reduce the
liquidation preference of or change or have the effect of changing the fixed
redemption date of any share of Senior Preferred Stock, or change the date on
which any share of Senior Preferred Stock may be subject to redemption or
repurchase, or reduce the redemption or repurchase price therefor; (IV) make any
share of Senior Preferred Stock payable in money other than that stated herein;
or (V) affect the ranking of the Senior Preferred Stock in a manner adverse to
the Holders.
(iii) Without the affirmative vote or consent of Holders of a majority of
the issued and outstanding shares of Senior Preferred Stock, voting or
consenting, as the case may be, as a separate class, given in person or by
proxy, either in writing or by resolution adopted at an annual or special
meeting, the Corporation shall not, in a single transaction or series of related
transactions, consolidate with or merge with or into, or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its assets to,
another Person unless: (I) at or prior to the consummation of such transaction
all of the then outstanding shares of the Senior Preferred Stock are redeemed in
accordance with the provisions of this Certificate of Designation or (II) (A)
either (1) the Corporation is the continuing Person or (2) the Person (if other
than the Corporation) formed by such consolidation or into which the Corporation
is merged or to which the properties and assets of the Corporation are sold,
assigned, transferred, leased, conveyed or otherwise disposed of shall be a
corporation organized and existing under the laws of the United States or any
State thereof or the District of Columbia and shall expressly assume all of the
obligations of the Corporation under this Resolution and Certificate of
Designation and the obligations hereunder and thereunder shall remain in full
force and effect; (B) if the Corporation is not the surviving Person, the Senior
Preferred Stock shall be converted into or exchanged for and shall become shares
of such successor, transferee or resulting Person, having in respect of such
successor, transferee or resulting Person the same powers, preferences and
relative, participating, optional or other special rights and the
qualifications, limitations or restrictions thereon, and ranking in relation to
all other Capital Stock then outstanding, that the Senior Preferred Stock had
immediately prior to such transaction; (C) except in the case of the Merger,
immediately after giving effect to such transaction on a pro forma basis the
Corporation or such Person (1) could incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with paragraph
(k)(i) and (2) will have a Consolidated Net Worth equal to or greater than the
Consolidated Net Worth of the Corporation immediately prior to such transaction;
and (D) except in the case of the Merger, immediately after giving effect to
such transaction (including any Indebtedness incurred or anticipated to be
incurred in connection with the transaction), no Voting Rights Triggering Event
shall have occurred or be continuing.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of related transactions) of all or
substantially all of the
B-1-7
properties or assets of one or more Restricted Subsidiaries of the Corporation,
the Capital Stock of which constitutes all or substantially all of the
properties and assets of the Corporation shall be deemed to be the transfer of
all or substantially all of the properties and assets of the Corporation.
(iv) (A) If (1) after March 15, 2005, cash dividends on the Senior
Preferred Stock are in arrears and unpaid for three or more quarterly Dividend
Periods (whether or not consecutive) (a "Dividend Default"); (2) the Corporation
fails to redeem all of the then outstanding shares of Senior Preferred Stock on
or before the Mandatory Redemption Date or otherwise fails to discharge any
redemption obligation with respect to the Senior Preferred Stock; (3) the
Corporation fails to make a Change of Control Offer following a Change of
Control if such Change of Control Offer is required by paragraph (g) hereof or
fails to purchase shares of Senior Preferred Stock from Holders who elect to
have such shares purchased pursuant to the Change of Control Offer; (4) the
Corporation breaches or violates one of the provisions set forth in paragraph
(c)(iv), (d), (f)(ii), (f)(iii) or (k) hereof and the breach or violation
continues for a period of 60 says or more after the Corporation receives written
notice thereof specifying the default from the Holders of at least 25% of the
shares of Senior Preferred Stock then outstanding; or (5) the Corporation fails
to pay when due (giving effect to any applicable grace periods and any waiver or
extension thereof) principal, interest or premium with respect to any
Indebtedness of the Corporation or any Restricted Subsidiary thereof, or any
such Indebtedness is accelerated, if the aggregate amount of such Indebtedness,
together with the amount of any other such Indebtedness in default for failure
to pay principal, interest or premium or which has been accelerated, aggregates
$10.0 million or more at any time; then in the case of any of clauses (1)
through (5) (each of such clauses (1) through (5) a "Voting Rights Triggering
Event"), the number of directors constituting the Board of Directors shall be
adjusted by the number, if any, necessary to permit the Holders of the Senior
Preferred Stock, voting or consenting separately and as one class, to elect the
lesser of two directors or that number of directors constituting at least 20% of
the Board of Directors; provided, that, in the event more than one of the above
defaults occurs, at the same or at different times, the maximum number of
directors that such Holders shall be entitled to elect is the lesser of two
directors and that number of directors constituting 20% of the Board of
Directors. Holders of a majority of the issued and outstanding shares of Senior
Preferred Stock, voting separately and as one class, shall have the exclusive
right to elect the lesser of two directors or 20% of the members of the Board of
Directors at a meeting therefor called upon occurrence of such Voting Rights
Triggering Event, and at every subsequent meeting at which the terms of office
of the directors so elected by the Holders of Senior Preferred stock expire
(other than as described in paragraph (f)(iv)(B) below).
(B) The right of the Holders of the Senior Preferred Stock voting or
consenting together as a separate class to elect members of the Board of
Directors as set forth in paragraph (f)(iv)(A) above shall continue until such
time as (x) in the event such right arises due to a Dividend Default, all
accumulated dividends that are in arrears on the Senior Preferred Stock are paid
in full in cash, and (y) in all other cases, the failure, breach or default
giving rise to such Voting Rights Triggering Event is remedied, cured or waived
by the Holders of at least a majority of the shares of Senior Preferred Stock
then outstanding and entitled to vote thereon, at which time (1) the special
right of the Holders of Senior Preferred Stock so to vote or consent as a class
for the election of directors and (2) the term of office of the directors
elected by the Holders of
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Senior Preferred Stock shall each terminate and the directors elected by the
holders of Common Stock or Capital Stock (other than the Senior Preferred Stock)
shall constitute the entire Board of Directors. At any time after voting power
to elect directors shall have become vested and be continuing in the Holders of
Senior Preferred Stock pursuant to this paragraph (f)(iv), or if vacancies shall
exist in the offices of directors elected by the Holders of Senior Preferred
Stock, (1) the Holders of a majority of the issued and outstanding shares of
Senior Preferred Stock may consent to the election of directors which such
Holders are entitled to elect or (2) a proper officer of the Corporation may,
and upon the written request of the Holders of record of at least 25% of the
shares of Senior Preferred Stock then outstanding addressed to the secretary of
the Corporation shall, call a special meeting of the Holders of Senior Preferred
Stock, for the purpose of electing the directors which such Holders are entitled
to elect. If such meeting shall not be called by a proper officer of the
Corporation within 20 days after personal service of said written request upon
the secretary of the Corporation, or within 20 days after mailing the same
within the United States by certified mail, addressed to the secretary of the
Corporation at its principal executive offices, then the Holders of record of at
least 25% of the outstanding shares of Senior Preferred Stock may designate in
writing one Holder to call such meeting at the expense of the Corporation, and
such meeting may be called by the Person so designated upon the notice required
for the annual meetings of stockholders of the Corporation and shall be held at
the place for holding the annual meetings of stockholders. Any Holder of Senior
Preferred Stock so designated shall have, and the Corporation shall provide,
access to the lists of stockholders to be called pursuant to the provisions
hereof.
(C) At any meeting held for the purpose of electing directors at which the
Holders of Senior Preferred Stock shall have the right, voting together as a
separate class, to elect directors as aforesaid, the presence in person or by
proxy of the Holders of at least a majority of the outstanding shares of Senior
Preferred Stock entitled to vote thereat shall be required to constitute a
quorum of the Senior Preferred Stock.
(D) Any vacancy occurring in the office of a director elected by the
Holders of the Senior Preferred Stock may be filled by the remaining director
elected by the Holders of the Senior Preferred Stock unless and until such
vacancy shall be filled by the Holders of the Senior Preferred Stock.
(v) In any case in which the Holders of the Senior Preferred Stock shall be
entitled to vote pursuant to this paragraph (f) or pursuant to Delaware law,
each holder of Senior Preferred Stock entitled to vote with respect to such
matter shall be entitled to one vote for each share of Senior Preferred Stock
held.
(g) Change of Control.
(i) Upon the occurrence of a Change of Control (the date of such occurrence
being the "Change of Control Date"), the Corporation shall make an offer to
purchase (the "Change of Control Offer") the outstanding shares of Senior
Preferred Stock at a purchase price equal to 101% of the liquidation preference
thereof, plus, without duplication, an amount in cash equal to all accumulated
and unpaid dividends (including Additional Dividends, if any) thereon (including
an amount in cash equal to a prorated dividend for the period from the
immediately
B-1-9
preceding Dividend Payment Date to the Change of Control Payment Date) (the
"Change of Control Purchase Price").
(ii) Within 30 days of the occurrence of a Change of Control, the
Corporation also shall send by first-class mail, postage prepaid, to each Holder
of Senior Preferred Stock, at the address appearing in the register maintained
by the transfer agent for the Senior Preferred Stock, a notice stating:
(1) that the Change of Control Offer is being made pursuant to this
paragraph (g) and that all of the Senior Preferred Stock tendered will be
accepted for payment, and otherwise subject to the terms and conditions set
forth herein;
(2) the Change of Control Purchase Price and the purchase date (which
shall be a Business Day no earlier than 30 days nor later than 45 days from
the date such notice is mailed (the "Change of Control Payment Date"));
(3) that any of the Senior Preferred Stock not tendered will continue
to accumulate dividends;
(4) that, unless the Corporation defaults in the payment of the Change
of Control Purchase Price, any of the Senior Preferred Stock accepted for
payment pursuant do the Change of Control Offer shall cease to accumulate
dividends after the Change of Control Payment Date;
(5) that Holders accepting the offer to have their Senior Preferred
Stock purchased pursuant to a Change of Control Offer will be required to
surrender their certificates representing the Senior Preferred Stock to the
Corporation, properly endorsed for transfer together with such customary
documents as the Corporation and the transfer agent may reasonably require,
in the manner and at the address specified in the notice prior to the close
of business on the Business Day preceding the Change of Control Payment
Date;
(6) that Holders will be entitled to withdraw their acceptance if the
Corporation receives, not later than the close of business on the third
Business Day preceding the Change of Control Payment Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the number of shares of Senior Preferred Stock delivered for
purchase, and a statement that such Holder is withdrawing its election to
have such Senior Preferred Stock purchased;
(7) that Holders whose shares of Senior Preferred Stock are being
purchased only in part will be issued new certificates representing the
number of shares of Senior Preferred Stock equal to the unpurchased portion
of the certificates surrendered; and
(8) any other reasonable procedures that a Holder must follow to
accept a Change of Control Offer or effect withdrawal of such acceptance.
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(iii) The Corporation will 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 shares of Senior Preferred Stock pursuant to a Change of Control
Offer. To the extent that the provisions of any securities laws or regulations
conflict with the provisions of this paragraph (g), the Corporation will comply
with the applicable securities laws and regulations and will not be deemed to
have breached its obligations under this paragraph (g) by virtue thereof.
(iv) On the Change of Control Payment Date, the Corporation shall (A)
accept for payment the shares of Senior Preferred Stock validly tendered
pursuant to the Change of Control Offer, (B) promptly mail to the Holders of
shares so accepted the Change of Control Purchase Price therefor in cash and (C)
cancel and retire each surrendered certificate and execute a new certificate
representing that number of shares of Senior Preferred Stock equal to any
unpurchased shares represented by a certificate surrendered. Unless the
Corporation defaults in the payment for the shares of Senior Preferred Stock
tendered pursuant to the Change of Control Offer, dividends shall cease to
accumulate with respect to the shares of Senior Preferred Stock tendered and all
rights of Holders of such tendered shares shall terminate, except for the right
to receive payment therefor, on the Change of Control Payment Date.
(v) If the repurchase of the Senior Preferred Stock pursuant to this
paragraph (g) would violate or constitute a default or be otherwise prohibited
under any Indebtedness of the Corporation then outstanding, then,
notwithstanding anything to the contrary contained above, prior to complying
with the foregoing provisions, but in any event within 30 days following the
Change of Control Date, the Corporation shall, to the extent required to permit
the repurchase of the Senior Preferred Stock required by this paragraph (g),
either (A) repay in full all obligations and terminate all commitments under or
in respect of all outstanding Indebtedness the terms of which prohibit the
purchase by the Corporation of the Senior Preferred Stock upon a Change of
Control in compliance with the terms of this paragraph (g) or offer to repay in
full all obligations and terminate all commitments under or in respect of all
such Indebtedness and repay the Indebtedness owed to each such lender who has
accepted such offer or (B) obtain the requisite consents, if any, under such
Indebtedness containing such prohibition to permit the repurchase of the Senior
Preferred Stock required by this paragraph (g). The Corporation must first
comply with the covenant described in the preceding sentence before it shall be
required to purchase shares of Senior Preferred Stock in the event of a Change
of Control; provided that the Corporation's failure to consummate a Change of
Control Offer in accordance with the provisions of this covenant due to the
covenant described in the immediately preceding sentence shall constitute a
Voting Rights Triggering Event described in clause (3) of the definition of
"Voting Rights Triggering Event."
(h) Conversion or Exchange. The Holders of shares of Senior Preferred Stock
shall not have any rights hereunder to convert such shares into or exchange such
shares for shares of any other class or classes or of any other series of any
class or classes of Capital Stock of the Corporation other than as provided in
this Resolution and Certificate of Designation and the Registration Rights
Agreement.
B-1-11
(i) Reissuance of Senior Preferred Stock. Shares of Senior Preferred Stock
that have been issued and reacquired in any manner, including shares purchased
or redeemed or exchanged, shall (upon compliance with any applicable provisions
of the laws of Delaware) have the status of authorized and unissued shares of
Preferred Stock undesignated as to series and may be redesignated and reissued
as part of any series of Preferred Stock; provided that shares of Senior
Preferred Stock reacquired pursuant to the exchange offer contemplated by the
Registration Rights Agreement shall be reissued as Senior Preferred Stock with
the series designation referred to in paragraph (a) hereof; and provided,
further, that any issuance of such shares of Senior Preferred Stock must be in
compliance with the terms hereof.
(j) Business Day. If any payment, redemption or exchange shall be required
by the terms hereof to be made on a day that is not a Business Day, such
payment, redemption or exchange shall be made on the immediately succeeding
Business Day.
(k) Certain Covenants.
(i) Limitation on Additional Indebtedness. The Corporation will not, and
will not permit any of its Restricted Subsidiaries to, directly or indirectly,
incur any Indebtedness (including Acquired Indebtedness); provided that, from
and after the Effective Time, the Corporation or any of its Restricted
Subsidiaries may incur Indebtedness (including Acquired Indebtedness) if, after
giving effect to the incurrence of such Indebtedness and the receipt and
application of the proceeds thereof, the Corporation's Consolidated Fixed Charge
Coverage Ratio is at least 2.0 to 1 if the Indebtedness is incurred prior to
September 9, 2001 and 2.25 to 1 if the Indebtedness is incurred thereafter.
Notwithstanding the foregoing, the Corporation and its Restricted
Subsidiaries may incur Permitted Indebtedness.
Notwithstanding any other provision of this paragraph (k)(i), in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Indebtedness or is otherwise entitled to be incurred
pursuant to this paragraph (k)(i), the Corporation may, in its sole discretion,
classify (or reclassify) such item of Indebtedness in any manner that complies
with this paragraph and such items of Indebtedness will be treated as having
been incurred pursuant to only one of the categories of Permitted Indebtedness
or pursuant to the first paragraph hereof. Accrual of interest or accretion of
accreted value will not be deemed to be an incurrence of Indebtedness for
purposes of this paragraph.
(ii) Limitation on Restricted Payments.
(A) The Corporation will not make, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment;
provided that from and after the Effective Time the Corporation and its
Restricted Subsidiaries may make Restricted Payments if:
(1) no Voting Rights Triggering Event shall have occurred and be
continuing at the time of or immediately after giving effect to such
Restricted Payment;
B-1-12
(2) immediately after giving pro forma effect to such Restricted
Payment, the Corporation could incur $1.00 of additional Indebtedness
(other than Permitted Indebtedness) in compliance with paragraph (k)(i);
and
(3) immediately after giving effect to such Restricted Payment, the
aggregate of all Restricted Payments declared or made after the Issue Date
does not exceed the sum of, without duplication:
(a) 50% of the Corporation's Cumulative Consolidated Net Income
(or minus 100% of any cumulative deficit in Consolidated Net Income
during such period);
(b) 100% of the aggregate Net Proceeds received by the
Corporation from the issue or sale after the Issue Date of Capital
Stock (other than Disqualified Capital Stock or Capital Stock of the
Corporation issued to any Subsidiary of the Corporation or to an
employee stock ownership plan or other trust established by the
Corporation or any of its Subsidiaries for the benefit of their
employees to the extent the purchase by such plan or trust is financed
by Indebtedness of such plan or trust and for which the Corporation is
liable as guarantor or otherwise) of the Corporation or any
Indebtedness or other securities of the Corporation convertible into
or exercisable or exchangeable for Capital Stock (other than
Disqualified Capital Stock) of the Corporation which have been so
converted, exercised or exchanged, as the case may be;
(c) without duplication of any amounts included in clause (3) (b)
above, 100% of the aggregate Net Proceeds received by the Corporation
from any equity contribution from a holder of the Corporation's
Capital Stock; and
(d) without duplication, the sum of:
(i) the aggregate amount returned in cash on or with respect
to an investment; (other than a Permitted Investment) made
subsequent to the Issue Date whether through interest payments,
principal payments, dividends and other distributions;
(ii) the net proceeds received by the Corporation or any of
its Restricted Subsidiaries from the disposition (other than to
the Corporation or a Subsidiary of the Corporation), retirement
or redemption of all or any portion of an Investment described in
clause (3) (d)(i); and
(iii) upon redesignation of an Unrestricted Subsidiary as a
Restricted Subsidiary, the fair market value of the net assets of
such Subsidiary;
provided, however, that, with respect to an Investment in any Person,
the sum of clauses (i), (ii) and (iii) above with respect to the
Investment in such Person may
B-1-13
not exceed the aggregate amount of all Investments made in such Person
subsequent to the Issue Date.
For purposes of determining under clause (3) above, the amount expended for
Restricted Payments, cash distributed shall be valued at the face amount thereof
and property other than cash shall be valued at its fair market value.
(B) The provisions of this covenant shall not prohibit
(1) from and after the Effective Time, the payment of any
distribution within 60 days after the date of declaration thereof, if
at such date of declaration such payment would comply with the
provisions of this Resolution and Certificate of Designation;
(2) from and after the Effective Time, the repurchase,
redemption, defeasance or other acquisition or retirement of any
shares of Capital Stock of the Corporation by conversion into, or by
or in exchange for, shares of Capital Stock of the Corporation (other
than Disqualified Capital Stock), or out of the Net Proceeds of the
substantially concurrent sale (other than to a Subsidiary of the
Corporation or to an employee stock ownership plan or other trust
established by the Corporation or any of its Subsidiaries for the
benefit of their employees to the extent the purchase by such plan or
trust is financed by Indebtedness of such plan or trust and for which
the Corporation is liable as guarantor or otherwise) of other shares
of Capital Stock of the Corporation (other than Disqualified Capital
Stock);
(3) Restricted Payments made pursuant to the terms of the Tender
Offers and the Agreement and Plan of Merger, Including transaction
fees and expenses;
(4) the repurchase of shares of, or options to purchase shares
of, Common Stock of the Corporation or any of its Subsidiaries from
employees, former employees, directors or former directors of the
Corporation or any of its Subsidiaries (or permitted transferees of
such employees, former employees, directors or former directors),
pursuant to the terms of the agreements (including employment
agreements and stockholders' agreements) or plans (or amendments
thereto) approved by the Board of Directors under which such persons
purchase or sell or are granted the option to purchase or sell, shares
of such Common Stock; provided, however, that the aggregate amount of
such repurchases shall not exceed $1.0 million; and
(5) so long as no Voting Rights Triggering Event shall have
occurred and be continuing, the payment of management and other
related fees (including, without limitation, director's fees) not to
exceed during any fiscal year an amount equal to $1.5 million plus the
amount of previously accrued but unpaid management fees and related
fees from prior fiscal years.
(C) In calculating the aggregate amount of Restricted Payments made
subsequent to the Issue Date for purposes of clause (A)(3), amounts expended
pursuant to clauses (B)(1) and (4) shall be included in such calculation.
B-1-14
The amount of all Restricted Payments (other than cash) shall be the fair
market value on the date of the Restricted Payment of the asset(s) or securities
proposed to be acquired, transferred or issued to or by the Corporation or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
(iii) Limitation on Transactions with Affiliates.
(A) The Corporation will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into any transaction or series of
related transactions (including, without limitation, the sale, purchase,
exchange or lease of assets, property or services) with or for the benefit of
any Affiliate (each, an "Affiliate Transaction") or extend, renew, waive or
otherwise modify the terms of any Affiliate Transaction entered into prior to
the Issue Date unless
(1) such Affiliate Transaction is between or among the Corporation and
one or more of its Wholly Owned Subsidiaries; or
(2) the terms of such Affiliate Transaction are fair and reasonable to
the Corporation or such Restricted Subsidiary, as the case may be, and the
terms of such Affiliate Transaction are at least as favorable as the terms
which could be obtained by the Corporation or such Restricted Subsidiary,
as the case may be, in a comparable transaction made on an arm's-length
basis between unaffiliated parties.
(B) In any Affiliate Transaction (or any series of related Affiliate
Transactions which are similar or part of a common plan) involving an amount or
having a fair market value in excess of $1.0 million which is not permitted
under clause (A)(1) above, the Corporation must obtain a resolution of the Board
of Directors of the Corporation certifying that such Affiliate Transaction
complies with clause (A)(2) above. In any Affiliate Transaction (or any series
of related Affiliate Transactions which are similar or part of a common plan)
involving an amount or having a fair market value in excess of $5.0 million
which is not permitted under clause (A)(1) above, the Corporation must obtain a
favorable written opinion as to the fairness of such transaction or
transactions, as the case may be, from an Independent Financial Advisor.
(C) The foregoing provisions will not apply to
(1) from and after the Effective Time, any Restricted Payment that is
not prohibited by paragraph (k)(ii);
(2) from and after the Effective Time, reasonable fees and
compensation paid to, and indemnity provided on behalf of, officers,
directors or employees of the Corporation or any Restricted Subsidiary of
the Corporation as determined in good faith by the Corporation's Board of
Directors;
(3) the grant of stock options, restricted stock or similar rights to
employees and directors of the Corporation pursuant to plans approved by
the Corporation's Board of Directors;
B-1-15
(4) loans or advances to employees in the ordinary course of business
in accordance with the past practices of the Corporation or its Restricted
Subsidiaries, but in any event not to exceed $1.0 million in the aggregate
outstanding at any one time;
(5) any agreement as in effect as of the Issue Date or any amendment
thereto or any transaction contemplated thereby (including pursuant to any
amendment thereto) in any replacement agreement thereto so long as any such
amendment or replacement agreement is not more disadvantageous to the
Holders in any material respect than the original agreement as in effect on
the Issue Date;
(6) issuances of Capital Stock of the Corporation (other than
Disqualified Capital Stock);
(7) any transaction between the Corporation and any of its Affiliates
involving ordinary course of business investment banking, commercial
banking, financial advisory services and related activities;
(8) any of the Transactions; and
(9) the payment of management and other related fees (including,
without limitation, director's fees) not to exceed during any fiscal year
an amount equal to $1.5 million plus the amount of previously accrued but
unpaid management fees and related fees from prior fiscal years.
(iv) Limitation on Asset Sales.
(A) Prior to the Effective Time, the Corporation will not, and will not
permit any of its Restricted Subsidiaries to, consummate an Asset Sale. From and
after the Effective Time, the Corporation will not, and will not permit any of
its Restricted Subsidiaries to, consummate an Asset Sale unless
(1) the Corporation or such Restricted Subsidiary, as the case may be,
receives consideration at the time of such sale or other disposition at
least equal to the fair market value of the assets sold or otherwise
disposed of;
(2) not less than 80% of the consideration received by the Corporation
or such Restricted Subsidiary, as the case may be, is in the form of cash
or Cash Equivalents other than in the case where the Corporation is
undertaking a Permitted Asset Swap; provided that the following will be
deemed to be cash for purposes of this clause (2):
(a) any liabilities (as shown on the Corporation's or such
Restricted Subsidiary's most recent balance sheet) of the Corporation
or any Restricted Subsidiary (other than contingent liabilities) that
are assumed by the transferee of any such assets pursuant to a
customary novation agreement that releases the Corporation or such
Restricted Subsidiary from further liability; and
B-1-16
(b) any securities, notes or other obligations received by the
Corporation or any such Restricted Subsidiary from such transferee
that are converted by the Corporation or such Restricted Subsidiary
into cash (to the extent of the cash received in that conversion)
within 180 days after the applicable Asset Sale; and
(3) the Asset Sale Proceeds received by the Corporation or such
Restricted subsidiary are applied:
(a) first, to the extent the Corporation or any such Restricted
Subsidiary, as the case may be, elects, or is required, to prepay,
repay or purchase Indebtedness under any then existing Indebtedness of
the Corporation or any such Restricted Subsidiary within 180 days
following the receipt of the Asset Sale Proceeds from any Asset Sale;
provided that any such repayment, to the extent relating to revolving
credit, must result in a permanent reduction of the commitments
thereunder in an amount equal to the principal amount so repaid;
(b) second, to the extent of the balance of Asset Sale Proceeds
after application as described above, to the extent the Corporation
elects, to an Investment in property or other assets (including
Capital Stock or other securities purchased in connection with the
acquisition of Capital Stock or property of another Person) in
compliance with paragraph (k) (v) within 365 days following receipt of
such Asset Sale Proceeds; and
(c) third, if on such 180th day in the case of clause (3)(a) or
on such 365th day in the case of clause (3)(b) with respect to any
Asset Sale, the Available Asset Sale Proceeds exceed $5.0 million, the
Corporation must apply an amount equal to the Available Asset Sale
Proceeds to an offer to repurchase the Senior Preferred Stock (the
"Excess Proceeds Offer"), at a purchase price in cash equal to 100% of
the liquidation preference thereof plus, without duplication, an
amount in cash equal to all accumulated and unpaid dividends
(including Additional Dividends, if any) (including an amount in cash
equal to a prorated dividend from the period from the Dividend Payment
Date immediately prior to the Excess Proceeds Payment Date to the
Excess Proceeds Payment Date (an "Excess Proceeds Purchase Price").
(B) If an Excess Proceeds Offer is not fully subscribed, the Corporation
may retain the portion of the Available Asset Sale Proceeds not required to
repurchase Senior Preferred Stock.
(C) If the Corporation is required to make an Excess Proceeds Offer, the
Corporation shall send by first-class mail, postage prepaid, within 30 days
following the date specified in clause (3)(c) above, a notice to each Holder of
Senior Preferred Stock stating:
(1) that such Holders have the right to require the Corporation to
apply the Available Asset Sale Proceeds to repurchase Senior Preferred
Stock in accordance with this paragraph (k)(iv);
B-1-17
(2) the Excess Proceeds Purchase Price and the purchase date (which
shall be a Business Day no earlier than 30 days and not later than 45 days
from the date such notice in mailed (the "Excess Proceeds Payment Date"));
(3) that any Senior Preferred Stock not tendered will continue to
accumulate dividends;
(4) that, unless the Corporation defaults in the payment of the Excess
Proceeds Purchase Price, any Senior Preferred Stock accepted for payment
pursuant to the Excess Proceeds Offer, shall cease to accumulate dividends
after the Excess Proceeds Payment Date;
(5) that Holders accepting the offer to have their Senior Preferred
Stock purchased pursuant to an Excess Proceeds Offer will be required to
surrender their the certificates representing the Senior Preferred Stock to
the Corporation, properly endorsed for transfer together with such
customary documents as the Corporation and the transfer agent may
reasonably require, in the manner and at the address specified in the
notice prior to the close of business on the Business Day preceding the
Excess Proceeds Payment Date;
(6) that Holders will be entitled to withdraw their acceptance of the
Excess Proceeds Offer if the Corporation receives, not later than the close
of business on the third Business Day preceding the Excess Proceeds Payment
Date, a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the number of shares of Senior Preferred Stock
delivered for purchase, and a statement that such Holder is withdrawing its
election to have such Senior Preferred Stock purchased;
(7) that if the aggregate liquidation preference of the Senior
Preferred Stock surrendered by Holders exceeds the amount of Available
Asset Sale Proceeds, the Corporation shall select the Senior Preferred
Stock to be purchased on a pro rata basis;
(8) that Holders whose Senior Preferred Stock are being purchased only
in part will be issued new certificates representing the number of shares
of Senior Preferred Stock equal to the unpurchased portion of the
certificates surrendered;
(9) the calculations used in determining the amount of Available Asset
Sale Proceeds to be applied to the purchase of such Senior Preferred Stock;
and
(10) any other procedures that a Holder must follow to accept an
Excess Proceeds Offer or effect withdrawal of such acceptance.
On the Excess Proceeds Payment Date, the Corporation shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, Senior
Preferred Stock or portions thereof tendered pursuant to the Excess Proceeds
Offer. The Corporation shall promptly mail to each Holder so accepted payment in
an amount equal to the purchase price for such Senior Preferred Stock, and the
Corporation shall execute and issue to such Holder, a new certificate
representing any unpurchased portion of the Senior Preferred Stock surrendered.
B-1-18
(D) In the event of the transfer of substantially all of the property and
assets of the Corporation and its Restricted Subsidiaries as an entirety to a
Person in a transaction permitted under paragraph (f)(iii), the successor Person
shall be deemed to have sold the properties and assets of the Corporation and
its Restricted Subsidiaries not so transferred for purposes of this covenant,
and shall comply with the provisions of this covenant with respect to such
deemed sale as if it were an Asset Sale.
(E) The Corporation will comply with the requirements of Rule 14e-1 under
the Exchange Act and other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Senior Preferred Stock pursuant to an Excess Proceeds Offer. To
the extent that the provisions of any securities laws or regulations conflict
with the provisions of this paragraph (k)(iv), the Corporation will comply with
the applicable securities laws and regulations and will not be deemed to have
breached its obligations under the provisions of this paragraph (k)(iv) by
virtue thereof.
(v) Limitation on Conduct of Business. The Corporation and its Restricted
Subsidiaries will not engage in any businesses which are not the same, similar,
ancillary, complementary or related to the businesses in which the Corporation
and its Restricted Subsidiaries are engaged in on the Issue Date.
Notwithstanding the foregoing, the Corporation may acquire and operate any
business which at the time of acquisition is primarily the same, similar,
ancillary or related to the businesses in which the Corporation and its
Restricted Subsidiaries are engaged in on the Issue Date. Notwithstanding the
foregoing, prior to the Effective Time, the Corporation shall not engage in any
business or activities other than holding the TTII Stock and activities related
thereto.
(vi) Limitation on Sale and Lease-Back Transactions. The Corporation will
not, and will not permit any of its Restricted Subsidiaries to, enter into any
Sale and Lease-Back Transaction; provided that from and after the Effective Time
the Corporation or any Restricted Subsidiary may enter into a Sale and
Lease-Back Transaction if:
(1) the Corporation or such Restricted Subsidiary could have
(a) incurred Indebtedness (other than Permitted Indebtedness) in
an amount equal to the Attributable Indebtedness relating to such Sale
and Lease-Back Transaction under paragraph (k)(i); and
(b) incurred a Lien to secure such Indebtedness pursuant to
paragraph (k)(vii) (assuming solely for purposes of this clause (b)
that the Attributable Indebtedness relating to such Sale and
Lease-Back Transactions constituted Capitalized Lease Obligations);
(2) the gross cash proceeds of that Sale and Lease-Back Transaction
are at least equal to the fair market value of the property sold; and
(3) the transfer of assets in that Sale and Lease-Back Transaction is
permitted by, and the Corporation or such Restricted subsidiary, as the
case may be, applies the proceeds of such transaction in compliance with,
paragraph (k)(iv).
B-1-19
(vii) Limitation on Liens. The Corporation will not, and will not permit
any of its Restricted Subsidiaries to, create, incur or otherwise cause or
suffer to exist or become effective any Liens of any kind (other than Permitted
Liens) upon any property or asset of the Corporation or any of its Restricted
Subsidiaries or any shares of Capital Stock or Indebtedness of any Restricted
Subsidiary of the Corporation which owns property or assets, now owned or
hereafter acquired. Notwithstanding the foregoing, prior to the Effective Time,
the Corporation will not create, incur or otherwise suffer to exist any Liens of
any kind on the TTII Stock.
(viii) Limitation on Creation of Subsidiaries. The Corporation will not
create or acquire, and will not permit any of its Restricted Subsidiaries to
create or acquire, any Subsidiary other than
(1) a Restricted Subsidiary existing as of the Issue Date;
(2) a Restricted Subsidiary that is acquired or created after the
Issue Date; or
(3) from and after the Effective Time, an Unrestricted Subsidiary.
(ix) Limitation on Preferred Stock of Restricted Subsidiaries. The
Corporation will not permit any of its Restricted Subsidiaries to issue any
Preferred Stock (except Preferred Stock issued to the Corporation or a Wholly
Owned Subsidiary of the Corporation) or permit any Person (other than the
Corporation or a Wholly Owned Subsidiary of the Corporation) to hold any such
Preferred Stock unless such Restricted Subsidiary would be entitled to incur or
assume Indebtedness (other than Permitted Indebtedness) in compliance with
paragraph (k)(i) in the aggregate principal amount equal to the aggregate
liquidation value of the Preferred Stock to be issued.
(x) Limitation on Capital Stock of Restricted Subsidiaries. The Corporation
will not
(1) sell, pledge, hypothecate or otherwise convey or dispose of any
Capital Stock of a Restricted Subsidiary of the Corporation (other than any
such transaction resulting in a Lien which constitutes a Permitted Lien);
or
(2) permit any of its Restricted Subsidiaries to issue any Capital
Stock, other than to the Corporation or a Wholly Owned Subsidiary of the
Corporation.
From and after the Effective Time, the foregoing restrictions will not apply to
an Asset Sale made in compliance with paragraph (k)(iv) (provided that if such
Asset Sale is for less than all of the outstanding Capital Stock of any
Restricted Subsidiary held by the Corporation or any of its Restricted
Subsidiaries, such Asset Sale must also comply with paragraph (k)(ii)) or the
issuance of Preferred Stock in compliance with paragraph (k)(ix).
(xi) Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries. The Corporation will not, and will not permit any of
its Restricted Subsidiaries to, directly or indirectly, create or otherwise
cause or suffer to exist or become effective any encumbrance or restriction on
the ability of any Restricted Subsidiary of the Corporation to
B-1-20
(1) pay dividends or make any other distributions to the Corporation
or any Restricted Subsidiary of the Corporation
(a) on its Capital Stock or
(b) with respect to any other interest or participation in, or
measured by, its profits;
(2) repay any Indebtedness or any other obligations owed to the
Corporation or any Restricted Subsidiary of the Corporation;
(3) make loans or advances or capital contributions to the Corporation
or any of its Restricted Subsidiaries; or
(4) transfer any of its properties or assets to the Corporation or any
of its Restricted Subsidiaries;
except for such encumbrances or restrictions existing under or by reason of
(1) encumbrances or restrictions existing on the Issue Date to the
extent and in the manner such encumbrances and restrictions are in effect
on the Issue Date;
(2) the (a) Senior Credit Facility, (b) Notes Purchase Agreement and
the Notes, (c) the Take-Out Notes and (d) the guarantee of the Notes and
the Take-Out Notes by Subsidiaries of the Corporation;
(3) applicable law;
(4) any instrument governing Acquired Indebtedness, which encumbrance
or restriction is not applicable to any Person, or the properties or assets
of any Person, other than the Person, or the property or assets of the
Person (including any Subsidiary of the Person), so acquired or any
contract to which the Person (including any Subsidiary of such Person) so
acquired is a party so long as such contract was not entered into in
contemplation of such acquisition;
(5) customary non-assignment provisions in leases or other agreements
entered in the ordinary course of business and consistent with past
practices;
(6) Refinancing Indebtedness; provided that such restrictions are no
more restrictive than those contained in the agreements governing the
Indebtedness being refunded, refinanced or extended;
(7) customary restrictions in Capitalized Lease Obligations, security
agreements or mortgages securing Indebtedness of the Corporation or a
Restricted Subsidiary to the extent such restrictions restrict the transfer
of the property subject to such Capitalized Lease Obligations, security
agreements and mortgages;
B-1-21
(8) customary restrictions with respect to a Restricted Subsidiary of
the Corporation pursuant to an agreement that has been entered into for the
sale or disposition of all or substantially all of the Capital Stock or
assets of such Restricted Subsidiary; or
(9) customary provisions restricting dispositions of real property
interests set forth in any reciprocal easement agreements of the
Corporation or any Restricted Subsidiary.
(xii) Consummation of Merger. The Corporation shall cause the Merger to be
consummated as promptly as practical and in accordance with the terms of the
Agreement and Plan of Merger, but in no event later than August 31, 2000.
(xiii) Pre-Merger Activities of TTII. From and after the Issue Date and
prior to the Effective Time, the Corporation will not permit TTII to issue any
Capital Stock or declare or pay any dividend or distribution on its Capital
Stock. At the Effective Time, TTII will have no outstanding Capital Stock other
than Common Stock which shall constitute Junior Securities.
(xiv) Payments for Consent. The Corporation will not, and will not permit
any of its Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder of
Senior Preferred Stock for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Resolution and Certification
of Designation or the Senior Preferred Stock unless such consideration is
offered to be paid or agreed to be paid to all Holders of Senior Preferred Stock
which so consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or agreement.
(xv) Reports. Whether or not required by the Commission, so long as any
shares of Senior Preferred Stock are outstanding, the Corporation will furnish
to the Holders, within the time periods specified in the Commission's rules and
regulations:
(1) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q and
10-K if the Corporation were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and, with respect to the annual information only, a report on
the annual financial statements by the Corporation's certified independent
accountants; and
(2) all current reports that would be required to be filed with the
Commission on Form 8-K if the Corporation were required to file such
reports.
If the Corporation has designated any of its Subsidiaries as Unrestricted
Subsidiaries, then the quarterly and annual financial information required by
the preceding paragraph will include a reasonably detailed presentation, either
on the face of the financial statements or in the footnotes thereto, and in
Management's Discussion and Analysis of Financial Condition and Results of
Operations, of the financial condition and results of operations of the
Corporation and its Restricted Subsidiaries separate from the financial
condition and results of operations of the Unrestricted Subsidiaries of the
Corporation.
B-1-22
In addition, whether or not required by the Commission, the Corporation
will file a copy of all of the information and reports referred to in clauses
(1) and (2) above with the Commission for public availability within the time
periods specified in the Commission's rules and regulations (unless the
Commission will not accept such a filing) and make such information available to
securities analysts and prospective investors upon request. The Corporation will
also furnish to Holders, securities analysts and prospective investors upon
request the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
(l) Definitions. As used in this Resolution and Certificate of Designation,
the following terms shall have the following meanings (with terms defined in the
singular having comparable meanings when used in the plural and vice versa),
unless the context otherwise requires:
"Acquired Indebtedness" means Indebtedness of a Person (including an
Unrestricted Subsidiary) existing at the time such Person becomes a Restricted
Subsidiary or is merged into or consolidated with any other Person or which is
assumed in connection with the acquisition of assets from such Person and, in
each case, whether or not incurred by such Person in connection with, or in
anticipation or contemplation of, such Person becoming a Restricted Subsidiary
or such merger, consolidation or acquisition.
"Additional Dividends" has the meaning provided in the Registration Rights
Agreement.
"Affiliate" means, with respect to any specific Person, any other Person
that directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person. For the
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling," "controlled by" and "under common control with"), 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, whether through the ownership of voting securities, by agreement or
otherwise; provided that, for purposes of paragraph (k)(iii), ownership of at
least 10% of the voting securities of a Person, either directly or indirectly,
shall be deemed to be control.
"Affiliate Transaction" shall have the meaning provided in paragraph
(k)(iii)(A).
"Agreement and Plan of Merger" means the Agreement and Plan of Merger dated
as of January 28, 2000 by and between the Corporation and TTII.
"Asset Acquisition" means
(1) an Investment by the Corporation or any Restricted Subsidiary of
the Corporation in any other Person (other than Investments in the
Corporation or any existing Restricted Subsidiary of the Corporation)
pursuant to which such Person becomes a Restricted Subsidiary of the
Corporation or any Restricted Subsidiary of the Corporation, or is merged
with or into the Corporation or any Restricted Subsidiary of the
Corporation; or
B-1-23
(2) the acquisition by the Corporation or any Restricted Subsidiary of
the Corporation of the assets of any Person (other than a Restricted
Subsidiary of the Corporation) which constitute all or substantially all of
the assets of such Person or comprise any division or line of business of
such Person or any other properties or assets of such Person other than in
the ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
assignment, transfer, lease or other disposition (including any Sale and
Lease-Back Transaction), other than to the Corporation or any of its Wholly
Owned Subsidiaries, in any single transaction or series of related transactions
of
(1) any Capital Stock of or other equity interest in any Restricted
Subsidiary of the Corporation; or
(2) any other property or assets of the Corporation or of any
Restricted Subsidiary thereof;
provided that Asset Sales shall not include
(1) receipt of proceeds from transactions that involve assets, in each
fiscal year of the Corporation having a fair market value or for which the
Corporation or its Restricted Subsidiaries receive aggregate consideration
of no more than $1.0 million;
(2) sales of inventory and the Corporation's products in the ordinary
course of business and consistent with past practices;
(3) the sale, lease, conveyance, disposition or other transfer of all
or substantially all of the assets of the Corporation as permitted under
paragraph (f)(iii);
(4) sales of Cash Equivalents;
(5) granting of Liens not otherwise prohibited by this Resolution and
Certificate of Designation;
(6) leases or subleases to third persons in the ordinary course of
business that do not interfere in any material respect with the business of
the Corporation or any of its Restricted Subsidiaries;
(7) sales or other disposition of assets that are obsolete,
uneconomic, negligible, worn out or surplus in the ordinary course of
business;
(8) sales of assets in connection with Sale and Lease-Back
Transactions that occur substantially contemporaneously with the
acquisition of such assets by the Corporation and its Restricted
Subsidiaries; provided that such Sale
B-1-24
and Lease-Back Transactions occur no later than 180 days after the
acquisition of such assets; and
(9) issuances of directors' qualifying shares.
"Asset Sale Proceeds" means, with respect to any Asset Sale,
(1) cash received by the Corporation or any Restricted Subsidiary of
the Corporation from such Asset Sale (including cash received as
consideration for the assumption of liabilities incurred in connection with
or in anticipation of such Asset Sale), after
(a) provision for all income or other taxes measured by or
resulting from such Asset Sale,
(b) payment of all brokerage commissions, underwriting and other
fees and expenses related to, and other costs and charges incurred in
connection with, such Asset Sale,
(c) provision for minority interest holders in any Restricted
Subsidiary of the Corporation as a result of such Asset Sale,
(d) repayment of Indebtedness that is secured by the assets
subject to such Asset Sale or otherwise required to be repaid in
connection with such Asset Sale, and
(e) deduction of appropriate amounts to be provided by the
Corporation or a Restricted Subsidiary of the Corporation as a
reserve, in accordance with GAAP, against any liabilities associated
with the assets sold or disposed of in such Asset Sale and retained by
the Corporation or a Restricted Subsidiary after such Asset Sale,
including, without limitation, pension and other post-employment
liabilities and liabilities related to environmental matters or
against any indemnification obligations associated with the assets
sold or disposed of in such Asset Sale; and
(2) promissory notes and other noncash consideration received by the
Corporation or any Restricted Subsidiary of the Corporation from such Asset
Sale or other disposition upon the liquidation or conversion of such
promissory notes or noncash consideration into cash.
"Attributable Indebtedness" in respect of a Sale and Lease-Back Transaction
means, as at the time of determination, the present value (discounted at the
rate of interest implicit in such transaction, determined in accordance with
GAAP) of the total obligations of the lessee for rental payments during the
remaining term of the lease included in such Sale and Lease-Back Transaction
(including any period for which such lease has been extended).
B-1-25
"Available Asset Sale Proceeds" means, with respect to any Asset Sale, the
aggregate Asset Sale Proceeds from such Asset Sale that have not been applied in
accordance with clause (3)(a) or (3)(b), and which have not yet been the basis
for an Excess Proceeds Offer in accordance with clause (3)(c) of paragraph
(k)(iv)(A).
"Board of Directors" shall have the meaning provided in the first paragraph
of this Resolution and Certificate of Designation.
"Borrowing Base" means, as of any date, an amount equal to the sum of (i)
60% of the aggregate book value of inventory (adjusted to include any LIFO
reserves) and (ii) 85% of the aggregate book value of all accounts receivable
(net of bad debt reserves) of the Corporation and its Restricted Subsidiaries on
a consolidated basis, as determined in accordance with GAAP consistently
applied. To the extent that information is not available as to the amount of
inventory or accounts receivable as of a specific date, the Corporation shall
use the most recent available information for purposes of calculating the
Borrowing Base.
"Business Day" means any day except a Saturday, a Sunday or any day on
which banking institutions in New York, New York or Chicago, Illinois are
required or authorized by law or other governmental action to be closed.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated and whether
or not voting) of corporate stock, partnership or limited liability company
interests or any other participation, right or other interest in the nature of
an equity interest in such Person including, without limitation, Common Stock
and Preferred Stock of such Person, or any option, warrant or other security
convertible into any of the foregoing.
"Capitalized Lease Obligations" means, with respect to any Person,
Indebtedness represented by obligations under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP, and the
amount of such Indebtedness shall be the capitalized amount of such obligations
determined in accordance with GAAP.
"Cash Equivalents" means
(1) marketable direct obligations issued by, or unconditionally
guaranteed by, the United States Government or issued by any agency or
instrumentality thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition thereof;
(2) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any
public instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either Standard & Poor's Corporation
("S&P") or Moody's Investors Service, Inc. ("Moody's");
B-1-26
(3) commercial paper maturing no more than one year from the date of
creation thereof and, at the time of acquisition, having a rating of at
least A-1 from S&P or at least P-1 from Moody's;
(4) certificates of deposit or bankers' acceptances maturing within
one year from the date of acquisition thereof issued by any bank organized
under the laws of the United States of America or any state thereof or the
District of Columbia or any U.S. branch of a foreign bank having at the
date of acquisition thereof combined capital and surplus of not less than
$250.0 million;
(5) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (1) above entered
into with any bank meeting the qualifications specified in clause (4)
above; and
(6) investments in money market funds which invest substantially all
their assets in securities of the types described in clauses (1) through
(5) above.
"Certificate of Designation" means this Certificate of Designation creating
the Senior Preferred Stock.
"Certificate of Incorporation" shall have the meaning provided in the first
paragraph of this Resolution and Certificate of Designation.
A "Change of Control" of the Corporation will be deemed to have occurred at
such time as
(1) any Person or group of related Persons for purposes of Section
13(d) of the Exchange Act (a "Group"), other than a Permitted Holder,
becomes the beneficial owner (as defined under Rule 13d-3 or any successor
rule or regulation promulgated under the Exchange Act, except that a Person
shall be deemed to have "beneficial ownership" of all securities that such
Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time) of more than 50% of the
total voting power of the Corporation's Capital Stock; it being understood
that the Senior Preferred Stock shall not be included in any calculation of
the voting power of the Corporation's Capital Stock for purposes of this
definition;
(2) there is consummated any sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of all or
substantially all of the assets of the Corporation and its Restricted
Subsidiaries, taken as a whole, to any Person or Group, together with any
Affiliates thereof (whether or not otherwise in compliance with the
provisions of this Resolution and Certificate of Designation) other than to
the Corporation, any of its Restricted Subsidiaries or the Permitted
Holders; or
(3) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of the
Corporation
B-1-27
(together with any new directors whose election by such Board of Directors
or whose nomination for election by the shareholders of the Corporation has
been approved by a majority of the directors then still in office who
either were directors at the beginning of such period or whose election or
recommendation for election was previously so approved) cease to constitute
a majority of the Board of Directors of the Corporation.
"Change of Control Date" shall have the meaning provided in paragraph
(g)(i).
"Change of Control Offer" shall have the meaning provided in paragraph
(g)(i).
"Change of Control Payment Date" shall have the meaning provided in
paragraph (g)(ii).
"Change of Control Purchase Price" shall have the meaning provided in
paragraph (g)(i).
"Commission" means the United States Securities and Exchange Commission.
"Common Stock" of any Person means all Capital Stock of such Person that is
generally entitled to
(1) vote in the election of directors of such Person; or
(2) if such Person is not a corporation, vote or otherwise participate
in the selection of the governing body, partners, managers or others that
will control the management and policies of such Person.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to any
Person, the ratio of EBITDA of such Person during the four full fiscal quarters
(the "Four Quarter Period") ending on or prior to the date of the transaction
giving rise to the need to calculate the Consolidated Fixed Charge Coverage
Ratio (the "Transaction Date") to Consolidated Fixed Charges of such Person for
the Four Quarter Period. In addition to and without limitation of the foregoing,
for purposes of this definition, "EBITDA" and "Consolidated Fixed Charges" 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 of such Person or
any of its Restricted Subsidiaries or the issuance or redemption or other
repayment of Preferred Stock of any such Restricted Subsidiary (and the
application of the proceeds thereof) giving rise to the need to make such
calculation and any incurrence or repayment of other Indebtedness, and, in
the case of any Restricted Subsidiary, the issuance or redemption or other
repayment of 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 working capital
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
B-1-28
the Transaction Date, as if such incurrence or repayment or issuance or
redemption or other repayment, as the case may be (and the application of
the proceeds thereof), occurred on the first day of the Four Quarter
Period; and
(2) any Asset Sale or Asset Acquisitions (including, without
limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of such Person or one of its Restricted
Subsidiaries (including any Person who becomes a Restricted Subsidiary as a
result of the Asset Acquisition) incurring, assuming or otherwise being
liable for Acquired Indebtedness and also including any EBITDA (provided
that such EBITDA shall be included only to the extent that Consolidated Net
Income would be includable pursuant to the definition of "Consolidated Net
Income") (including any pro forma expense and cost reductions calculated on
a basis consistent with Regulation S-X of the Exchange Act) attributable to
the assets which are the subject of the Asset Acquisition or Asset Sale
during the Four Quarter Period) 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 Transaction Date, as if such Asset Sale or Asset Acquisition
(including the incurrence, assumption or liability for any such Acquired
Indebtedness) occurred on the first day of the Four Quarter Period.
If such Person or any of its Restricted Subsidiaries directly or indirectly
guarantees Indebtedness of a third Person, the preceding sentence shall
give effect to the incurrence of such guaranteed Indebtedness as if such
Person or any Restricted Subsidiary of such Person had directly incurred or
otherwise assumed such guaranteed Indebtedness. Furthermore, in calculating
"Consolidated Fixed Charges" for purposes of determining the denominator
(but not the numerator) of this "Consolidated Fixed Charge Coverage Ratio,"
(1) interest on outstanding Indebtedness determined on a
fluctuating basis as of the Transaction Date and which will continue
to be so determined thereafter shall be deemed to have accrued at a
fixed rate per annum equal to the rate of interest on such
Indebtedness in effect on the Transaction Date;
(2) if interest on any Indebtedness actually incurred on the
Transaction Date may optionally be determined at an interest rate
based upon a factor of a prime or similar rate, a eurocurrency
interbank offered rate, or other rates, then the interest rate in
effect on the Transaction Date will be deemed to have been in effect
during the Four Quarter Period; and
(3) notwithstanding clause (1) above, interest on Indebtedness
determined on a fluctuating basis, to the extent such interest is
covered by one or more agreements in respect of Hedging Obligations,
shall be deemed to accrue at the rate per annum resulting after giving
effect to the operation of such agreements.
"Consolidated Fixed Charges" means, with respect to any Person, for any
period, the sum, without duplication, of
(1) Consolidated Interest Expense, plus
B-1-29
(2) the product of
(a) the amount of all dividend payments (whether or not in
cash) on any series of Preferred Stock of the Restricted
Subsidiaries of such Person (other than dividends paid in Capital
Stock (other than Disqualified Capital Stock)) paid, accrued or
scheduled to be paid in cash or accrued during such period plus
the amount of all dividend payments (whether or not in cash) on
any series of Preferred Stock of the Corporation that is
Disqualified Capital Stock paid, accrued, or scheduled to be paid
or accrued during such period, times
(b) a fraction, the numerator of which is one and the
denominator of which is one minus the then current effective
consolidated federal, state and local tax rate of such Person,
expressed as a decimal.
"Consolidated Interest Expense" means, with respect to any Person, without
duplication, for any period, the aggregate amount of interest expense which, in
conformity with GAAP, would be set forth opposite the caption "interest expense"
or any like caption on an income statement for such Person and its Restricted
Subsidiaries on a consolidated basis including, but not limited to,
(1) imputed interest included in Capitalized Lease
Obligations;
(2) all commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers' acceptance
financing;
(3) the net payment obligations associated with Hedging
Obligations;
(4) amortization of financing fees and expenses and the
write-offs of deferred financing costs;
(5) the interest portion of any deferred payment obligation;
(6) amortization of discount or premium, if any;
(7) all non-cash interest expense (other than interest
amortized to cost of sales);
(8) all capitalized interest for such period; and
(9) all interest incurred or paid under any guarantee of
Indebtedness (including a guarantee of principal, interest or any
combination thereof) of any Person.
"Consolidated Net Income" means, with respect to any Person, for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided, however, that
B-1-30
(1) the Net Income of any Person, other than a Restricted
Subsidiary of the referent Person, will be included only to the
extent of the amount of dividends or distributions paid to the
referent Person or a Restricted Subsidiary of such referent
Person;
(2) the Net Income of any Restricted Subsidiary of the
Person in question that is subject to any restriction or
limitation on the payment of dividends or the making of other
distributions will be excluded to the extent of such restriction
or limitation;
(3) solely for the purposes of determining the aggregate
amount available for Restricted Payments under clause (3)(a) of
paragraph (k)(ii)(A), the Net Income of any Person acquired in a
pooling of interests transaction for any period prior to the date
of such acquisition will be excluded;
(4) any net gain (but not loss) resulting from an Asset Sale
by the Person in question or any of its Restricted Subsidiaries
other than in the ordinary course of business will be excluded;
(5) extraordinary gains and losses will be excluded;
(6) income or loss attributable to discontinued operations
(including, without limitation, operations disposed of during
such period whether or not such operations were classified as
discontinued) will be excluded; and
(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 will be
excluded.
"Consolidated Net Worth" of any Person means the consolidated stockholders'
equity of such Person, determined on a consolidated basis in accordance with
GAAP, less (without duplication) amounts attributable to Disqualified Capital
Stock of such Person.
"Cumulative Consolidated Net Income" means, with respect to any Person, as
of any date of determination, Consolidated Net Income from January 1, 2000 to
the end of such Person's most recently ended full fiscal quarter prior to such
date, taken as a single accounting period.
"Corporation" shall have the meaning provided in the first paragraph of
this Certificate of Designation.
"Disqualified Capital Stock" means any Capital Stock of a Person or a
Restricted Subsidiary thereof which, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable at the
option of the holder), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or
B-1-31
in part, on or prior to the mandatory redemption date of the Senior Preferred
Stock, for cash; provided, however, that (i) Preferred Stock of a Person that is
issued with the benefit of provisions requiring a change of control offer or an
asset sale offer to be made for such Preferred Stock in the event of a change of
control or the sale of assets of such Person or Restricted Subsidiary which
provisions have substantially the same effect as the provisions of paragraphs
(g) and (k)(iv), respectively, shall not be deemed to be Disqualified Capital
Stock solely by virtue of such provisions and (ii) the Senior Preferred Stock
shall be deemed to not be Disqualified Capital Stock.
"Dividend Default" shall have the meaning provided in paragraph (f)(iv)(A).
"Dividend Payment Date" means March 15, June 15, September 15 and December
15 of each year.
"Dividend Period" means the Initial Dividend Period and, thereafter, each
quarterly period from a Dividend Payment Date to the next following Dividend
Payment Date (but without including such Dividend Payment Date).
"Dividend Record Date" means March 1, June 1, September 1 and December 1 of
each year.
"EBITDA" means, with respect to any Person and its Restricted Subsidiaries,
for any period, an amount equal to
(1) the sum of
(a) Consolidated Net Income for such period, plus
(b) the provision for taxes for such period based on income or
profits to the extent such income or profits were included in
computing Consolidated Net Income and any provision for taxes utilized
in computing net loss under clause (a) hereof, plus
(c) Consolidated Interest Expense for such period, plus
(d) depreciation for such period on a consolidated basis, plus
(e) amortization of intangibles for such period on a consolidated
basis, plus
(f) any other non-cash items reducing Consolidated Net Income for
such period, other than non-cash items that represent accruals of, or
reserves for, cash disbursements to be made in any future period,
minus
(2) all non-cash items increasing Consolidated Net Income for such
period, all for such Person and its Restricted Subsidiaries determined on a
consolidated basis in accordance with GAAP.
B-1-32
"Effective Time" means the time at which the Merger is consummated.
"Excess Proceeds Offer" shall have the meaning provided in paragraph
(k)(iv)(A)(3)(c).
"Excess Proceeds Payment Date" shall have the meaning provided in paragraph
(k)(iv)(A)(3)(c).
"Excess Proceeds Purchase Price" shall have the meaning provided in
paragraph (k)(iv)(A)(3)(c).
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"fair market value" means, with respect to any asset or property, the price
which could be negotiated in an arm's-length, free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of whom is under
undue pressure or compulsion to complete the transaction. Fair market value
shall be determined by the Board of Directors of the Corporation acting
reasonably and in good faith.
"GAAP" means generally accepted accounting principles consistently applied
as in effect in the United States from time to time.
"Hedging Obligations" means, with respect to any Person, the net payment
obligations of such Person under (a) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (b) other agreements
or arrangements entered into in order to protect such Person against
fluctuations in commodity prices, interest rates or currency exchange rates.
"Holder" means a holder of shares of Senior Preferred Stock as reflected in
the register maintained by the transfer agent for the Senior Preferred Stock.
"incur" means, with respect to any Indebtedness or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
guarantee or otherwise become liable in respect of such Indebtedness or other
obligation or the recording, as required pursuant to GAAP or otherwise, of any
such Indebtedness or other obligation on the balance sheet of such Person (and
"incurrence," "incurred," "incurable," and "incurring" shall have meanings
correlative to the foregoing); provided that a change in GAAP that results in an
obligation of such Person that exists at such time becoming Indebtedness shall
not be deemed an incurrence of such Indebtedness.
"Indebtedness" means (without duplication), with respect to any Person, any
indebtedness at any time outstanding, secured or unsecured, contingent or
otherwise, which is for borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion
thereof), or evidenced by bonds, notes, debentures or similar instruments or
representing the balance deferred and unpaid of the purchase price of any
property if and to the extent and of the foregoing indebtedness would
B-1-33
appear as a liability upon a balance sheet of such Person prepared in accordance
with GAAP, and shall also include, to the extent not otherwise included
(1) any Capitalized Lease Obligation of such Person;
(2) obligations secured by a lien to which the property or assets
owned or held by such Person is subject, whether or not the obligation or
obligations secured thereby shall have been assumed; provided that the
amount of Indebtedness attributed to such obligations shall not exceed the
fair market value of the property or assets securing such obligations;
(3) guarantees of (or obligations with respect to letters of credit
supporting) obligations of other Persons which would be included within
this definition as Indebtedness for such other Persons (whether or not such
items would appear upon the balance sheet of the guarantor);
(4) all obligations for the reimbursement of any obligor on any letter
of credit, banker's acceptance or similar credit transaction;
(5) Disqualified Capital Stock of such Person or any Restricted
Subsidiary thereof; and
(6) hedging obligations of any such Person applicable to any of the
foregoing (if and to the extent such hedging obligations would appear as a
liability upon a balance sheet of such Person prepared in accordance with
GAAP).
The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and, with respect to contingent obligations, the maximum reasonably
anticipated liability upon the occurrence of the contingency giving rise to the
obligation as determined in good faith by the Person incurring such liability;
provided that
(1) the amount outstanding at any time of any Indebtedness issued with
original issue discount is the principal amount of such Indebtedness less
the remaining unamortized portion of the original issue discount of such
Indebtedness at such time as determined in conformity with GAAP; and
(2) Indebtedness shall not include:
(a) any liability for federal, state, local or other taxes, and
(b) any accounts payable, trade payables and other accrued
liabilities arising in the ordinary course of business.
"Independent Financial Advisor" means an investment banking firm of
national reputation in the United States
B-1-34
(1) which does not, and whose directors, officers and employees or
Affiliates do not, have a direct or indirect financial interest in the
Corporation, and
(2) which, in the judgment of the Board of Directors of the
Corporation, is otherwise independent and qualified to perform the task for
which it is to be engaged.
"Initial Dividend Period" means the dividend period commencing on the Issue
Date and ending on the first Dividend Payment Date to occur thereafter.
"Investments" means, with respect of any Person, directly or indirectly,
any advance, account receivable (other than an account receivable arising in the
ordinary course of business of such Person), loan or capital contribution to (by
means of transfers of property to others, payments for property or services for
the account or use of others or otherwise), the purchase of any Capital Stock,
bonds, notes, debentures, partnership or joint venture interests or other
securities of, the acquisition, by purchase or otherwise, of all or
substantially all of the business or assets or stock or other evidence of
beneficial ownership of, any Person or the making of any investment in any
Person. Investments shall exclude
(1) extensions of trade credit on commercially reasonable terms in
accordance with normal trade practices of such Person; and
(2) the repurchase of securities of any Person by such Person.
For the purposes of paragraph (k)(ii), "Investments" (1) (a) include and
are valued at the fair market value of the net assets of any Restricted
Subsidiary at the time that such Restricted Subsidiary is designated an
Unrestricted Subsidiary and (b) exclude the fair market value of the net
assets of any Unrestricted Subsidiary at the time that such Unrestricted
Subsidiary is designated a Restricted Subsidiary; provided that in no event
may such amount exceed the net amount of any Investments constituting
Restricted Payments made in such Subsidiary after the Issue Date and (2)
the amount of any Investment shall be the original cost of such Investment
plus the cost of all additional Investments by the Corporation or any of
its Restricted Subsidiaries, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with respect to
such Investment, reduced by the (i) amount returned in cash with respect to
such Investment whether through interest payments, principal payments,
dividends or other distributions and (ii) proceeds received by the
Corporation or any of its Restricted Subsidiaries from the disposition,
retirement or redemption of all or any portion of such Investment; provided
that the aggregate of all such reductions may not exceed the amount of such
initial Investment plus the cost of all additional Investments; provided,
further, that no such payment or distributions or receipt of any such other
amounts may reduce the amount of any Investment if such payment of
distributions or receipt of any such amounts would be included in
Consolidated Net Income. If the Corporation or any Restricted Subsidiary of
the Corporation sells or otherwise disposes of any Common Stock of any
direct or indirect Restricted Subsidiary of the Corporation such that,
after giving effect to any such
B-1-35
sale or disposition, the Corporation no longer owns, directly or
indirectly, 100% of the outstanding Common Stock of such Restricted
Subsidiary, the Corporation shall be deemed to have made an Investment on
the date of any such sale or disposition equal to the fair market value of
the Common Stock of such Restricted Subsidiary not sold or disposed of.
"Issue Date" means March 9, 2000.
"Junior Securities" shall have the meaning provided in paragraph (b).
"Lien" means, with respect to any property or assets of any Person, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement, encumbrance, preference,
priority, or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including
without limitation, any Capitalized Lease Obligation, conditional sales, or
other title retention agreement having substantially the same economic effect as
any of the foregoing).
"Mandatory Redemption Date" shall have the meaning provided in paragraph
(e)(ii).
"Mandatory Redemption Price" shall have the meaning provided in paragraph
(e)(ii).
"Merger" means the merger of the Corporation with and into TTII in
accordance with the terms of the Agreement and Plan of Merger.
"Net Income" means, with respect to any Person, for any period, the net
income (loss) of such Person determined in accordance with GAAP.
"Net Proceeds" means
(1) in the case of any sale of Capital Stock by or equity contribution
to any Person, the aggregate net cash proceeds received by such Person,
after payment of expenses, commissions and the like incurred in connection
therewith; and
(2) in the case of any exchange, exercise, conversion or surrender of
outstanding securities of any kind for or into shares of Capital Stock of
the Corporation which is not Disqualified Capital Stock, the net book value
of such outstanding securities on the date of such exchange, exercise,
conversion or surrender (plus any additional amount required to be paid by
the holder to such Person upon such exchange, exercise, conversion or
surrender, less any and all payments made to the holders, e.g., on account
of fractional shares and less all expenses incurred by such Person in
connection therewith).
"Notes" means (i) the Senior Subordinated Increasing Rate Notes of TTII
issued concurrently with the Senior Preferred Stock pursuant to the Notes
Purchase Agreement
B-1-36
and (ii) the senior subordinated notes of TTII issued in exchange for
outstanding Notes pursuant to the trust indenture attached as an exhibit to the
Notes Purchase Agreement in accordance with the terms of the Notes Purchase
Agreement.
"Notes Purchase Agreement" means the Purchase Agreement governing the Notes
dated March 9, 2000 among TTII, its Subsidiaries, as guarantors, and the
purchasers named therein, and also includes the trust indenture attached as an
exhibit thereto following the issuance of the senior subordinated notes of TTII
issued pursuant thereto in exchange for outstanding Notes.
"Parity Securities" shall have the meaning provided in paragraph (b).
"Permitted Asset Swap" means, with respect to any Person, the substantially
concurrent exchange of assets of such Person for assets of another Person which
are useful to the business of such aforementioned Person.
"Permitted Holders" means (a) (i) CIBC WMC Inc., (ii) Caravelle Investment
Fund, L.L.C., (iii) Albion Alliance Mezzanine Fund, L.P., (iv) Albion Alliance
Mezzanine Fund II, L.P., (v) Trimaran Fund II, L.L.C., (vi) any Affiliate of any
Person named in clauses (a)(i) through (a)(v) (collectively, the "Institutional
Investors") and (vii) with respect to any Institutional Investor, any person
managed by such Institutional Investor or any of its Affiliates (other than
their other portfolio companies) and (b) (i) Thomas M. Begel, (ii) Andrew
Weller, (iii) Camillo M. Santomero III, (iv) James D. Cirar and (v) Persons that
are wholly-owned by the individuals named in clauses (b)(i) through (b)(iv)
above.
"Permitted Indebtedness" means
(1) Indebtedness of the Corporation incurred pursuant to the Term Loan
Facility not to exceed $250.0 million aggregate principal amount at any
time outstanding, less the amount of any repayments of principal made since
the Issue Date;
(2) Indebtedness of the Corporation incurred pursuant to the Revolving
Facility in principal amount outstanding at any time not to exceed the
greater of (A) $50.0 million and (B) the Borrowing Base;
(3) Indebtedness under (a) the Notes in aggregate principal amount
outstanding not to exceed the sum of (i) $125.0 million plus (ii) the
principal amount of any Notes issued as in-kind interest on Notes in
accordance with the terms of the Note Purchase Agreement as in effect on
the Issue Date less (iii) the principal amount of Notes redeemed or
repurchased or which otherwise cease to be outstanding; (b) the Take-Out
Notes in a principal amount equal to the principal amount of the Notes
redeemed with the proceeds from the issuance thereof and (c) the guarantees
of the Notes and the Take-Out Notes by TTII's Subsidiaries;
B-1-37
(4) Indebtedness not covered by any other clause of this definition
which is outstanding on the Issue Date reduced by the amount of any
mandatory prepayments, permanent reductions or scheduled payments actually
made thereunder;
(5) Indebtedness of the Corporation to any Wholly Owned Subsidiary and
Indebtedness of any Wholly Owned Subsidiary to the Corporation or another
Wholly Owned Subsidiary, in each case subject to no Lien held by a Person
other than the Corporation; provided, however, that if as of any date any
Person other than the Corporation or a Wholly Owned Subsidiary of the
Corporation owns or holds any such Indebtedness or if as of any date any
Person other than the Corporation holds a Lien in respect of such
Indebtedness, such date will be deemed to be the incurrence of Indebtedness
not constituting Permitted Indebtedness by the issuer of such Indebtedness;
(6) Purchase Money Indebtedness of the Corporation or any Restricted
Subsidiary and Capitalized Lease Obligations of the Corporation or any
Restricted Subsidiary incurred to acquire property in the ordinary course
of business which Purchase Money Indebtedness and Capitalized Lease
Obligations do not in the aggregate exceed $10.0 million at any one time
outstanding;
(7) Indebtedness of the Corporation or any Restricted Subsidiary
arising from the honoring by a bank or other financial institution of a
check, draft or similar instrument inadvertently (except in the case of
daylight overdrafts) drawn against insufficient funds in the ordinary
course of business; provided that such Indebtedness is extinguished within
two business days of incurrence;
(8) the incurrence by the Corporation or any Restricted Subsidiary of
Hedging Obligations that are incurred in the ordinary course of business of
the Corporation or such Restricted Subsidiary and not for speculative
purposes; provided that, in the case of any Hedging Obligation that relates
to (i) interest rate risk, the notional principal amount of such Hedging
Obligation does not exceed the principal amount of the Indebtedness to
which such Hedging Obligation relates and (ii) currency risk, such Hedging
Obligation does not increase the Indebtedness of the Corporation and its
Restricted Subsidiaries outstanding other than as a result of fluctuations
in foreign currency exchange rates or by reason of fees, indemnities and
compensation payable thereunder;
(9) Indebtedness in respect of performance bonds, bankers'
acceptances, letters of credit and surety or appeal bonds provided by the
Corporation and the Restricted Subsidiaries to their customers in the
ordinary course of their business;
(10) Refinancing Indebtedness;
B-1-38
(11) from and after the Effective Time, additional Indebtedness of the
Corporation and its Restricted Subsidiaries not to exceed a $10.0 million
in aggregate principal amount at any one time outstanding;
(12) Indebtedness of the Corporation or any Restricted Subsidiary
consisting of guarantees, indemnities or obligations in respect of purchase
price adjustments (including adjustments in the purchase price related to
the performance or results of any acquired business) in connection with the
acquisition or disposition of assets permitted under this Resolution and
Certificate of Designation;
(13) Indebtedness of the Corporation or any of its Restricted
Subsidiaries represented by letters of credit for the account of the
Corporation or such Restricted Subsidiary, as the case may be, issued in
the ordinary course of business of the Corporation or such Restricted
Subsidiary, including, without limitation, in order to provide security for
workers' compensation claims or payment obligations in connection with
self-insurance or similar requirements in the ordinary course of business
and other Indebtedness with respect to workers' compensation claims,
self-insurance obligations, performance, surety and similar bonds and
completion guarantees provided by the Corporation or any Restricted
Subsidiary in the ordinary course of business; or
(14) guarantees of Indebtedness otherwise permitted under this
Resolution and Certificate of Designation.
"Permitted Investments" means Investments made on or after the Issue Date
consisting of
(1) Investments by the Corporation, or by a Restricted Subsidiary
thereof, in the Corporation or a Restricted Subsidiary;
(2) Investments by the Corporation, or by a Restricted Subsidiary
thereof, in a Person, if as a result of such Investment
(a) such Person becomes a Restricted Subsidiary of the
Corporation or
(b) such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets to, or
is liquidated into, the Corporation or a Restricted Subsidiary
thereof;
(3) Investments in cash and Cash Equivalents;
(4) receivables owing to the Corporation or any Restricted Subsidiary,
if created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; provided, however,
that such trade terms may include such concessionary trade terms as the
Corporation or any such Restricted Subsidiary deems reasonable under the
circumstances;
B-1-39
(5) payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated as expenses
for accounting purposes and that are made in the ordinary course of
business;
(6) loans or advances to employees made in the ordinary course of
business consistent with past practices of the Corporation or such
Restricted Subsidiary not to exceed $1.0 million in the aggregate
outstanding at any one time;
(7) stock, obligations or securities received in settlement of debts
created in the ordinary course of business and owing to the Corporation or
any Restricted Subsidiary or in satisfaction of judgments;
(8) an Investment that is made by the Corporation or a Restricted
Subsidiary thereof in the form of any Capital Stock, bonds, notes,
debentures, partnership or joint venture interests or other securities that
are issued by a third party to the Corporation or such Restricted
Subsidiary solely as partial consideration for the consummation of an Asset
Sale that is otherwise permitted under paragraph (k)(iv);
(9) Investments in securities of trade creditors or customers received
pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade creditors or customers;
(10) Hedging Obligations entered into in the ordinary course of the
Corporation's or its Restricted Subsidiaries' business and not for
speculative purposes;
(11) from and after the Effective Time, Capital Stock of a joint
venture or similar entity primarily engaged in a business which is the
same, similar, ancillary or related to the businesses in which the
Corporation and its Restricted Subsidiaries are engaged in on the Issue
Date; provided that such Investments shall not exceed $10.0 million at any
time outstanding;
(12) notes or chattel paper received by the Corporation or a
Restricted Subsidiary as consideration for the ordinary course of business
sale or lease of trucks or other products or inventory;
(13) Investments in prepaid expenses, negotiable instruments held for
collection and lease, utility and workers compensation, performance and
similar deposits entered into as a result of the operations of the business
in the ordinary course of business; and
(14) obligations of one or more officers or other employees of the
Corporation or any of its Restricted Subsidiaries in connection with such
officer's or employee's acquisition of shares of Common Stock of the
Corporation so long as no cash is paid by the Corporation or any of its
Restricted Subsidiaries to such officers or employees in connection with
the acquisition of any such obligations.
B-1-40
"Permitted Liens" means
(1) Liens on property or assets of, or any shares of Capital Stock of
or secured Indebtedness of, any Person existing at the time such Person
becomes a Restricted Subsidiary of the Corporation or at the time such
Person is merged into the Corporation or any of its Restricted
Subsidiaries; provided that such Liens
(a) are not incurred in connection with, or in contemplation of,
such Person becoming a Restricted Subsidiary of the Corporation or
merging into the Corporation or any of its Restricted Subsidiaries,
and
(b) do not extend to or cover any property, assets, Capital Stock
or Indebtedness other than those of such Person at the time such
Person becomes a Restricted Subsidiary or is merged into the
Corporation or any of its Restricted Subsidiaries;
(2) Liens securing Indebtedness incurred in compliance with paragraph
(k)(i);
(3) Liens existing on the Issue Date;
(4) Liens securing the Notes and the Take-Out Notes;
(5) Liens securing Refinancing Indebtedness; provided that any such
Lien does not extend to or cover any property, asset, Capital Stock or
Indebtedness other than the property, assets, Capital Stock or Indebtedness
so refunded, refinanced or extended;
(6) Liens in favor of the Corporation or any of its Restricted
Subsidiaries;
(7) Liens to secure Purchase Money Indebtedness that is otherwise
permitted under this Resolution and Certificate of Designation; provided
that
(a) the principal amount of the Indebtedness secured by such Lien
does not exceed 100% of the purchase price, or the cost of
installation, construction or improvement, of the property or asset to
which such Purchase Money Indebtedness relates,
(b) such Lien does not extend to or cover any Property or asset
other than such item of property or asset and any improvements on such
property or asset, and
(c) such Lien is created within 180 days of such acquisition or
the completion of such installation, construction or improvement, as
the case may be;
B-1-41
(8) statutory Liens or landlords', carriers', warehouseman's,
mechanics', suppliers', materialmen's, repairmen's or other like Liens
arising in the ordinary course of business which do not secure any
Indebtedness and with respect to amounts not yet delinquent or being
contested in good faith by appropriate proceedings; provided that with
respect to any amounts so contested a reserve or other appropriate
provision, if any, as is required in conformity with GAAP shall have been
made therefor;
(9) Liens for taxes, assessments or governmental charges that are
being contested in good faith by appropriate proceedings;
(10) Liens securing Capitalized Lease Obligations permitted to be
incurred under clause (5) of the definition of "Permitted Indebtedness";
provided that such Lien does not extend to any property other than that
subject to the underlying lease;
(11) easements, rights-of-way, zoning restrictions and other similar
charges or encumbrances in respect of real property not interfering in any
material respect with the ordinary conduct of the business of the
Corporation or any of its Restricted Subsidiaries;
(12) other Liens securing obligations incurred in the ordinary course
of business which obligations do not exceed $1.0 million in the aggregate
at any one time outstanding;
(13) Liens to secure the performance of statutory obligations, surety
or appeal bonds, performance bonds or other similar obligations (other than
obligations for borrowed money) in the ordinary course of business;
(14) Liens securing the payment of workers' compensation, unemployment
insurance, other social security benefits or other insurance-related
obligations in the ordinary course of business;
(15) Liens securing Hedging Obligations permitted by this Resolution
and Certificate of Designation;
(16) Liens arising out of judgments, decrees, orders or awards in
respect of which the Corporation shall in good faith be prosecuting an
appeal or proceedings for review; and
(17) any extensions, substitutions, replacements or renewals of the
foregoing.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government (including any agency or political subdivision
thereof).
B-1-42
"Preferred Stock" means any Capital Stock of a Person, however designated,
which entitles the holder thereof to a preference with respect to dividends,
distributions or liquidation proceeds of such Person over the holders of other
Capital Stock issued by such Person.
"Purchase Money Indebtedness" means Indebtedness of any Person incurred for
the purpose of financing all or any part of the purchase price, or the cost of
installation, construction or improvement of, any property or asset.
"Purchasers" means, collectively, CIBC WMC Inc., a Delaware corporation,
Caravelle Investment Fund, L.L.C., a Delaware limited liability company, Albion
Alliance Mezzanine Fund, L.P., a Delaware limited partnership, and Albion
Alliance Mezzanine Fund II, L.P., a Delaware limited partnership.
"Redemption Date," with respect to any shares of Senior Preferred Stock,
means the date on which such shares of Senior Preferred Stock are redeemed by
the Corporation.
"Redemption Notice" shall have the meaning provided in paragraph (e)(iii).
"Refinancing Indebtedness" means Indebtedness that refunds, refinances or
extends any Indebtedness of the Corporation outstanding on the Issue Date or
other Indebtedness permitted to be incurred by the Corporation or its Restricted
Subsidiaries pursuant to the terms of this Resolution and Certificate of
Designation, but only to the extent that
(1) the Refinancing Indebtedness is scheduled to mature either
(a) no earlier than the Indebtedness being refunded, refinanced
or extended, or
(b) after the mandatory redemption date of the Senior Preferred
Stock;
(2) the portion, if any, of the Refinancing Indebtedness that is
scheduled to mature on or prior to the mandatory redemption date of the
Senior Preferred Stock has a Weighted Average Life to Maturity at the time
such Refinancing Indebtedness is incurred that is equal to or greater than
the Weighted Average Life to Maturity of the portion of the Indebtedness
being refunded, refinanced or extended that is scheduled to mature on or
prior to the mandatory redemption date of the Senior Preferred Stock;
(3) such Refinancing Indebtedness is in an aggregate principal amount
that is equal to or less than the sum of
(a) the aggregate principal amount then outstanding under the
Indebtedness being refunded, refinanced or extended,
B-1-43
(b) the amount of accrued and unpaid interest, if any, and
premiums owed, if any, not in excess of preexisting prepayment
provisions on such Indebtedness being refunded, refinanced or
extended, and
(c) the amount of customary fees, expenses and costs related to
the incurrence of such Refinancing Indebtedness; and
(4) such Refinancing Indebtedness is incurred by the same Person that
initially incurred the Indebtedness being refunded, refinanced or extended;
provided that the Corporation may incur Refinancing Indebtedness to refund,
refinance or extend Indebtedness that was initially incurred by a
Restricted Subsidiary.
"Registration Rights Agreement" means the Preferred Stock Registration
Rights Agreement dated as of the Issue Date among the Corporation and the
Purchasers.
"Resolution" shall have the meaning provided in the first paragraph of this
Resolution and Certificate of Designation.
"Restricted Payment" means any of the following:
(1) the declaration or payment of any dividend or any other
distribution or payment on Capital Stock of the Corporation or any
Restricted Subsidiary of the Corporation or any payment made to the direct
or indirect holders (in their capacities as such) of Capital Stock of the
Corporation or any Restricted Subsidiary of the Corporation (other than (a)
dividends or distributions in respect of Senior Securities of the
Corporation, (b) dividends or distributions payable solely in Capital Stock
(other than Disqualified Capital Stock) or in options, warrants or other
rights to purchase such Capital Stock (other than Disqualified Capital
Stock), and (c) in the case of Restricted Subsidiaries of the Corporation,
dividends or distributions payable to the Corporation or to a Restricted
Subsidiary of the Corporation);
(2) the purchase, redemption or other acquisition or retirement for
value of any Capital Stock of the Corporation or any of its Restricted
Subsidiaries (other than (a) Senior Securities of the Corporation and (b)
Capital Stock owned by the Corporation or a Wholly Owned Subsidiary of the
Corporation, excluding Disqualified Capital Stock) or any option, warrants
or other rights to purchase such Capital Stock;
(3) the making of any Investment or guarantee of any Investment in any
Person other than a Permitted Investment;
(4) any designation of a Subsidiary as an Unrestricted Subsidiary
(valued at the fair market value of the net assets of such Restricted
Subsidiary on the date of such designation); and
B-1-44
(5) the forgiveness of any Indebtedness of an Affiliate of the
Corporation to the Corporation or a Restricted Subsidiary of the
Corporation.
"Restricted Subsidiary" means a Subsidiary of the Corporation other than an
Unrestricted Subsidiary and includes all of the Subsidiaries of the Corporation
existing as of the Issue Date, including, without limitation, TTII and its
Subsidiaries. The Board of Directors of the Corporation may designate any
Unrestricted Subsidiary as a Restricted Subsidiary if immediately after giving
effect to such action (and treating any Acquired Indebtedness as having been
incurred at the time of such action),
(1) the Corporation could have incurred at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to paragraph
(k)(i); and
(2) no Voting Rights Triggering Event has occurred and is continuing
or results therefrom.
"Revolving Facility" means the revolving credit facility provided to the
Corporation as a portion of the Senior Credit Facility.
"Sale and Lease-Back Transaction" means any arrangement with any Person
providing for the leasing by the Corporation or any Restricted Subsidiary of the
Corporation of any real or tangible personal property, which property has been
or is to be sold or transferred by the Corporation or such Restricted Subsidiary
to such Person in contemplation of such leasing.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Senior Credit Facility" means the Credit Agreement dated as of March 9,
2000, among TTII, TTII's Subsidiaries, the lenders party thereto in their
capacities as lenders thereunder and Canadian Imperial Bank of Commerce, as
syndication agent, First Union National Bank, as administrative agent, and CIBC
World Markets Corp. and First Union Securities, Inc., as arrangers, together
with the related documents thereto (including, without limitation, any guarantee
agreements and security documents, including as provided by any Subsidiaries of
TTII), 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 (provided that such increase in borrowings is permitted by paragraph
(k)(i)) or adding Subsidiaries of TTII 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 agents,
lender or group of lenders.
"Senior Securities" shall have the meaning provided in paragraph (b).
"Senior Preferred Stock" shall have the meaning provided in paragraph (b).
B-1-45
"Subsidiary" or any specified Person means any corporation, partnership,
limited liability company, joint venture, association or other business entity,
whether now existing or hereafter organized or acquired,
(1) in the case of a corporation, of which more than 50% of the total
voting power of the Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors,
officers or trustees thereof is held by such first-named Person or any of
its Subsidiaries; or
(2) in the case of a partnership, limited liability company, joint
venture, association or other business entity, with respect to which such
first-named Person or any of its Subsidiaries has the power to direct or
cause the direction of the management and policies of such entity by
contract or otherwise or if in accordance with GAAP such entity is
consolidated with the first-named Person for financial statement purposes.
"Take-Out Notes" means the senior subordinated debt securities of TTII the
proceeds from the issuance of which are concurrently used to redeem the Notes in
accordance with the terms of the Notes Purchase Agreement.
"Tender Offers" means (i) the offer to purchase by the Corporation and TTII
of any and all shares of the common stock, par value $.01 per share, of TTII
pursuant to the Offer to Purchase Statement dated March 3, 2000 and (ii) the
offers to purchase and related consent solicitations by TTII relating to its
outstanding 11 3/4% Senior Subordinated Notes due 2005 and its outstanding 11
3/4% Series C Senior Subordinated Notes due 2005 pursuant to the Offers to
Purchase and Consent Solicitations Statement dated March 3, 2000.
"Term Loan Facility" means the term loans under the Senior Credit Facility.
"Transactions" means the transactions contemplated by the Agreement and
Plan of Merger, including, without limitation, the Tender Offers.
"TTII" means Transportation Technologies Industries, Inc., a Delaware
corporation.
"TTII Stock" means the common stock, par value $.01 per share, of TTII
held, directly or indirectly, by the Corporation or any of its Subsidiaries.
"Unrestricted Subsidiary" means
(1) any Subsidiary of an Unrestricted Subsidiary; and
(2) any Subsidiary of the Corporation which is designated after the
Issue Date as an Unrestricted Subsidiary by a resolution adopted by the
Board of Directors of the Corporation;
B-1-46
provided that a Subsidiary may be so designated as an Unrestricted
Subsidiary only if
(a) such designation is in compliance with paragraph (k)(ii);
(b) immediately after giving effect to such designation, the
Corporation could have incurred at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to paragraph
(k)(i);
(c) no Voting Rights Triggering Event has occurred and is
continuing or results therefrom; and
(d) neither the Corporation nor any Restricted Subsidiary shall
at any time
(i) provide a guarantee of, or similar agreement or
undertaking as credit support to, any Indebtedness of such
Subsidiary (including any undertaking, agreement or instrument
evidencing such Indebtedness),
(ii) be directly or indirectly liable for any Indebtedness
of such Subsidiary or
(iii) be directly or indirectly liable for any other
Indebtedness which provides that the holder thereof may (upon
notice, lapse of time or both) declare a default thereon (or
cause the payment thereof to be accelerated or payable prior to
its final scheduled maturity) upon the occurrence of a default
with respect to any other Indebtedness that is Indebtedness of
such Subsidiary (including any corresponding right to take
enforcement action against such Subsidiary),
except in the case of clause (i) or (ii) to the extent
(i) that the Corporation or such Restricted Subsidiary could
otherwise provide such a guarantee or incur such Indebtedness
(other than as Permitted Indebtedness) pursuant to paragraph
(k)(i) and
(ii) the provisions of such guarantee and the incurrence of
such Indebtedness otherwise would be permitted under paragraph
(k)(ii).
"Voting Rights Triggering Event" shall have the meaning provided in
paragraph (f)(iv).
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing
(1) the then outstanding aggregate principal amount of such
Indebtedness into
B-1-47
(2) the sum of the total of the products obtained by multiplying
(a) the amount of each then remaining installment, sinking fund,
serial maturity or other required payment of principal, including
payment at final maturity, in respect thereof, by
(b) the number of years (calculated to the nearest one-twelfth)
which will elapse between such date and the making of such payment
"Wholly-Owned Subsidiary" means any Restricted Subsidiary, all of the
outstanding voting securities (other than directors' qualifying shares) of which
are owned, directly or indirectly, by the Corporation.
B-1-48
CERTIFICATE OF DESIGNATIONS, NUMBER, VOTING POWERS,
PREFERENCES AND RIGHTS OF SERIES C
PREFERRED STOCK
OF
TRANSPORTATION TECHNOLOGIES INDUSTRIES, INC.
PURSUANT TO SECTION 151 OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
The undersigned DOES HEREBY CERTIFY that the following
resolution was duly adopted by the Board of Directors (the "Board of Directors")
of Transportation Technologies Industries, Inc., a Delaware corporation (the
"Corporation"), with the preferences and rights set forth therein relating to
dividends, conversion, dissolution and distribution of assets of the Corporation
having been fixed by the Board of Directors pursuant to authority granted to it
under the Corporation's 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:
RESOLVED: That, pursuant to authority conferred upon the Board
of Directors by the Certificate of Incorporation, the Board of Directors hereby
authorizes the creation of 14,000 shares of Series C Preferred Stock of the
Corporation, and hereby fixes the designations, powers, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of such shares, in addition
to those set forth in the Certificate of Incorporation, as follows:
1. DESIGNATION AND AMOUNT. There is hereby created out of the authorized and
unissued shares of preferred stock of the Corporation ("Preferred Stock") a
series of Preferred Stock designated "Series C Preferred Stock" (the "Series C
Preferred Stock"), and the number of shares constituting such series shall be
14,000.
2. DIVIDENDS. The holders of Series C Preferred Stock shall not be entitled to
receive dividends on shares of Series C Preferred Stock.
3. MANDATORY REDEMPTION UPON AN INITIAL PUBLIC OFFERING.
(a) Concurrently with the consummation of an IPO (other than an IPO after a
Valuation Event), the Corporation shall redeem all of the outstanding shares of
Series C Preferred Stock. Such shares shall be redeemed from the holders thereof
at a per share redemption price equal to the IPO Redemption Price.
(b) At least 5 days and not more than 90 days prior to the date fixed for
any redemption of the Series C Preferred Stock pursuant to this Section 3,
written notice (the "IPO Redemption Notice") shall be given by first class mail,
postage prepaid (which notice shall be effective upon deposit for mailing), to
each holder of record on the record date fixed for such redemption of the Series
C Preferred Stock at such holder's address as it appears in the register
maintained by the transfer agent (which may be the Corporation) for the Series C
Preferred
Stock; provided that no failure to give such notice nor any deficiency
therein shall affect the validity of the procedure for the redemption of any
shares of Series C Preferred Stock to be redeemed except as to the holder or
holders to whom the Corporation has failed to give said notice or except as to
the holder or holders whose notice was defective. The IPO Redemption Notice
shall state:
(1) the IPO Redemption Price (and the type of consideration to be paid
in respect thereof);
(2) the date of such redemption; and
(3) that the holder is to surrender to the Corporation, in the manner
and at the plate or places designated, his certificate or certificates
representing the shares of Series C Preferred Stock to be redeemed.
(c) Each holder of Series C Preferred Stock shall surrender the certificate
or Certificates representing such shares of Series C Preferred Stock to the
Corporation, duly endorsed (or otherwise in proper form for transfer, as
determined by the Corporation), in the manner and at the place designated in the
IPO Redemption Notice, and on the related redemption date the full IPO
Redemption Price for such shares shall be payable in cash (or in such other
consideration as provided in Section 3(e)) to the person whose name appears on
such certificate or certificates as the owner thereof, and each surrendered
certificate shall be canceled and retired.
(d) On and after such redemption date, unless the Corporation defaults in
the payment in full of the IPO Redemption Price, all rights of the holders of
the Series C Preferred Stock to be redeemed shall terminate with respect
thereto, other than the right to receive the IPO Redemption Price; provided,
however, that if a notice of redemption shall have been given as provided in
Section 3(b) above and the funds (or property) necessary for redemption shall
have been irrevocably deposited in the trust for the equal and ratable benefit
for the holders of the shares of Series C Preferred Stock, then at the close of
business on the day on which such funds are segregated and set aside, the
holders of the shares to be redeemed shall cease to be stockholders of the
Corporation and shall be entitled only to receive the IPO Redemption Price.
(e) Anything in this Certificate of Designations to the contrary
notwithstanding, the Corporation shall pay the IPO Redemption Price in respect
of the Series C Preferred Stock pursuant to this Section 3 with such types of
consideration such that the holders of Series C Preferred Stock shall receive:
(i) an amount of cash equal to the sum of (A) the lesser of (x) the
IPO Cash Excess, if any, and (y) the product of (1) the Maximum Liquidation
Value and (2) a fraction, the numerator of which is the sum of the
Redemption Proceeds prior to the IPO and the Series A Cash Shortfall, and
the denominator of which is the sum of the Redeemed Series A Preferred
Accreted Value and the Series A Preferred Accreted Value, in each case
immediately prior to the consummation of the IPO, plus (B) the product of
(1) the Maximum Liquidation Value and a (2) fraction, the numerator of
which is the IPO Cash Excess less the Cash paid in respect of the Series C
Preferred Stock pursuant to the immediately preceding Clause (A), and the
denominator of which is the sum of the Re-
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deemed Series A Preferred Accreted Value, the Series A Preferred Accreted
Value and the Maximum Liquidation Value, in each case immediately prior to
the consummation of the IPO; and
(ii) an amount of Common Stock (which shall be valued, per share, at
the IPO Value) equal to the aggregate IPO Redemption Price over the amount
of cash paid in redemption of the Series C Preferred Stock pursuant to this
Section 3; provided that the Board of Directors may elect to pay cash
instead of any non-cash consideration (based on the value of such non-cash
consideration as so determined by the Board of Directors) otherwise so
payable in respect of any share of the Series C Preferred Stock to any
holder of Series C Preferred Stock, if it concludes that paying such
non-cash consideration to such holder may create regulatory or compliance
burdens on the part of the Corporation or any other participant in the
transaction giving rise to such redemption event or is otherwise unable to
pay such non-cash consideration.
(f) Anything in this Section 3 to the contrary notwithstanding, the Board
of Directors may require that the holder of the Series C Preferred Stock execute
such agreements in respect of any non-cash consideration paid thereto upon
redemption as the Board of Directors may reasonably determine so long as the
holders of Series A Preferred Stock are also required to execute such agreements
in respect of such non-cash consideration; provided, that no holder of Series C
Preferred Stock shall be required to have liability under such agreements in
respect of breaches of representations and warranties in excess of the IPO
Redemption Price for such holders Series C Preferred Stock. Any holder's failure
to execute such agreement shall not affect the status of the Series C Preferred
Stock as redeemed, such holder's rights to be limited to the receipt of such
non-cash consideration upon its execution of such agreements.
4. MANDATORY REDEMPTION UPON LIQUIDITY EVENT (INCLUDING IPO) OCCURRING AFTER A
REFINANCING OR THIRD PARTY SALE.
(a) No later than 3 days after the occurrence of a Liquidity Event, the
Corporation shall redeem, to the extent of funds or property legally available
therefor, all of the outstanding shares of Series C Preferred Stock. Such shares
shall be redeemed from the holders thereof at a per share redemption price,
payable in cash, equal to the Liquidity Event Redemption Price.
(b) At least 1 day and not more than 90 days prior to the date fixed for
any redemption of the Series C Preferred Stock pursuant to this Section 4,
written notice (the "Mandatory Redemption Notice") shall be given by first class
mail, postage prepaid (which notice shall be effective upon deposit for
mailing), to each holder of record on the record date fixed for such redemption
of the Series C Preferred Stock at such holder's address as it appears in the
register maintained by the transfer agent (which may be the Corporation) for the
Series C Preferred Stock; provided that no failure to give such notice nor any
deficiency therein shall affect the validity of the procedure for the redemption
of any shares of Series C Preferred Stock to be redeemed except as to the holder
or holders to whom the Corporation has failed to give said notice or except as
to the holder or holders whose notice was defective. The Mandatory Redemption
Notice shall state:
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(1) the Liquidity Event Redemption Price:
(2) the date of such redemption; and
(3) that the holder is to surrender to the Corporation, in the manner
and at the place or places designated, his certificate or certificates
representing the shares of Series C Preferred Stock to be redeemed.
(c) Each holder of Series C Preferred Stock shall surrender the certificate
or certificates representing such shares of Series C Preferred Stock to the
Corporation, duly endorsed (or otherwise in proper form for transfer, as
determined by the Corporation), in the manner and at the place designated in the
Mandatory Redemption Notice, and on the related redemption date the full
Liquidity Event Redemption Price for such shares shall be payable in cash to the
person whose name appears on such certificate or certificates as the owner
thereof, and each surrendered certificate shall be canceled and retired.
(d) On and after such redemption date, unless the Corporation defaults in
the payment in full of the Liquidity Event Redemption Price, all rights of the
holders of the Series C Preferred Stock to be redeemed shaft terminate with
respect thereto, other than the right to receive the Liquidity Event Redemption
Price; provided, however that if a notice of redemption shall have been given as
provided in Section 4(b) above and the funds necessary for redemption shall have
been irrevocably deposited in the trust for the equal and ratable benefit for
the holders of the shares of Series C Preferred Stock, then, at the close of
business on the day on which such funds are segregated and set aside, the
holders of the shares to be redeemed shall cease to be stockholders of the
Corporation and shall be entitled only to receive the Liquidity Event Redemption
Price.
(e) The Corporation's obligations in this Section 4 shall be subject to its
compliance with the provisions of all Senior Preferred Stock and Parity
Securities.
5. OPTIONAL REDEMPTION.
(a) At any time, the Corporation may redeem, to the extent of funds legally
available therefor, all or any portion of the outstanding shares of Series C
Preferred Stock. Such shares shall be redeemed from the holders thereof pro rata
and the redemption shall be at a per share redemption price, payable in cash,
equal to the Option to Redemption Price.
(b) At least 5 days and not more than 90 days prior to the date fixed for
any redemption of the Series C Preferred Stock pursuant to this Section 5,
written notice (the "Optional Redemption Notice") shall be given by first class
mail, postage prepaid (which notice shall be effective upon deposit for
mailing), to each holder of record on the record date fixed for such redemption
of the Series C Preferred Stock at such holder's address as it appears in the
register maintained by the transfer agent (which may be the Corporation) for the
Series C Preferred Stock; provided that no failure to give such notice nor any
deficiency therein shall affect this validity of the procedure for the
redemption of any shares of Series C Preferred stock to be redeemed except as to
the holder or holders to whom the Corporation has failed to give said notice
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or except as to the holier or holders whose notice was defective. The Optional
Redemption Notice shall state:
(1) the Optional Redemption Price;
(2) the date of such redemption; and
(3) that the holder is to surrender to the Corporation, in the manner
and at the place or places designated, his certificate or certificates
representing the shares of Series C Preferred Stock to be redeemed.
(c) Each holder of Series C Preferred Stock shall surrender the certificate
or certificates representing such shares of Series C Preferred Stock to the
Corporation, duly endorsed (or otherwise in proper form for transfer, as
determined by the Corporation), in the manner and at the place designated in the
Optional Redemption Notice, and on the related redemption date the full Optional
Redemption Price for such shares shall be payable in cash to the person whose
name appears an such certificate or certificates as the owner thereof, and each
surrendered certificate shall be canceled and retired.
(d) On and after such redemption date, unless the Corporation defaults in
the payment in full of the Optional Redemption Price, all rights of the holders
of the Series C Preferred Stock to be redeemed shall terminate with respect
thereto, other than the right to receive the Optional Redemption Price;
provided, however, that if a notice of redemption shall have been given as
provided in Section 5(b) above and the funds necessary for redemption shall have
been irrevocably deposited in the trust for the equal and ratable benefit for
the holders of the shares of Series C Preferred Stock, then, at the close of
business on the day on which such funds are segregated and set aside, the
holders of the shares to be redeemed shall cease to be stockholders of the
Corporation and shall be entitled only to receive the Optional Redemption Price.
6. LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) Upon the occurrence of a Liquidity Event and a related voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of shares of Series C Preferred Stock then outstanding
shall be entitled to be paid out of the assets of the Corporation available for
distribution to its stockholders, after and subject to the payment in full of
all amounts required to be distributed to the holders of all Senior Preferred
Stock but before any payment shall be made to the holders of Junior Securities,
an amount per share of Series C Preferred Stock held thereby equal to the
applicable Liquidity Event Redemption Price determined as of the time of such
Liquidity Event.
(b) After the payment of all preferential amounts required to be paid to
the holders of Senior Preferred Stock and Parity Securities, the holders of
Junior Securities then outstanding shall be entitled to receive the remaining
assets and funds of the Corporation available for distribution to its
stockholders.
(c) Nothing in this Section 6 shall affect the redemption rights of the
holders of the Series C Preferred Stock pursuant to Sections 3 and 4 in respect
of a redemption date that
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precedes the date on which a distribution in respect of the Series C Preferred
Stock is required pursuant to this Section 6.
7. DEFINITIONS.
(a) "Adjusted Liquidation Amount" means, in respect of a Liquidity Event:
(i) in respect of a Refinancing, the product of (A) the Maximum
Liquidation Value at the time of the Liquidity Event and (B) a fraction
(which, notwithstanding the remainder of this clause (e), may never exceed
1), the numerator of which is the Redemption Proceeds and the denominator
of which is the Redeemed Series A Preferred Accreted Value; and
(ii) in respect of a Third Party Sale, the product of (A) the Maximum
Liquidation Value at the time of the Liquidity Event and (B) a fraction,
the numerator of which is the lesser of (x) the sum of Redemption Proceeds
and Third Party Sale Proceeds and (y) the sum of the Redeemed Series A
Preferred Accreted Value and the Sold Series A Preferred Accreted Value,
and the denominator of which is the sum of the Redeemed Series A Preferred
Accreted Value and the Sold Series A Preferred Accretes Value.
(b) "Affiliate" means, in respect of any Person, any Person, directly or
indirectly, controlling, controlled by or under common control with such Person;
provided that, in respect of any Person who is an individual, Affiliate shall
also mean any Person related by blood or marriage (no more remote than first
cousin) to such Person or any Affiliate of such related person. The Corporation
shall not be deemed to be an Affiliate of any original Series A Holder.
(c) "Common Stock" has the meaning set forth in the Series A Certificate of
Designation.
(d) "IPO" means the initial public offering of Common Stock (or securities
convertible into, or exercisable for, Common Stock).
(e) "IPO Cash Excess" means, in respect of an IPO, the aggregate amount of
cash available to redeem shares of Series A Preferred Stock and Series C
Preferred Stock in connection with (but on or after the consummation of) the IPO
that is in excess of the Series A Cash Shortfall.
(f) "IPO Reallocation Percentage" means, in respect of an IPO, the
percentage obtained by dividing (A) the lesser of (x) the sum of the Redemption
Proceeds, the Series A Preferred Accreted Value and the Maximum Liquidation
Value and (y) the Total Equity Value plus the Redemption Proceeds, by (B) the
sum of the Redeemed Series A Preferred Accreted Value, the Series A Preferred
Accreted Value and the Maximum Liquidation Value, in each case immediately prior
to the consummation of such IPO.
(g) "IPO Redemption Price" means, an amount, determined in connection with
an IPO, equal to (A) the lesser of (i) the excess, if any, of the sum of the
Total Equity Value and the Redemption Proceeds immediately prior to the
consummation of such IPO, over $70 mil-
-6-
lion, or (ii) the product of (x) the Maximum Liquidation Value immediately prior
to the consummation of such IPO and (y) the IPO Reallocation Percentage, divided
by (B) 14,000.
(h) "IPO Value" means, in respect of an IPO, the offering price to the
public of the Common Stock in such IPO.
(i) "Junior Securities" means any capital stock of the Corporation ranking
on liquidation junior and not preferred to the Series C Preferred Stock and
shall include, in any event, the Series D Preferred Stock, par value $0.01 per
share, of the Corporation and Common Stork.
(j) "Liquidity Event" means the first to occur of any of the following
events after a Valuation Event: (A) the merger or consolidation of the
Corporation into or with another Corporation or the merger or consolidation of
another corporation into or with the Corporation, (B) the sale, conveyance or
lease (but not including a transfer by pledge or mortgage or lease to a bona
fide, third party lender) of all or substantially all the assets of the
Corporation, (C) the sale of any Common Stock by stockholders, in the case in
arty of clauses (A), (B) or (C) in which the stockholders of record of the
corporation immediately prior to such event shall beneficially own (as such term
is used for purposes of Section 13(d) of the Securities Exchange Art of 1934, as
amended, and the rules promulgated thereunder) less than 50% of the voting
securities of the corporation surviving such merger or consolidation or the
person acquiring such assets or shares, (D) the transfer by Transportation
Investment Partners L.L.C. ("TIP") of the right to elect at least a of the 5
directors that TIP is entitled to elect as of the date hereof to a Person other
than its Affiliates or any other Original Series A Holder (provided, that, if
the holders of the Series C Preferred Stock have elected not to exercise their
rights to transfer such shares pursuant to Section 8B of that certain
Stockholders' Agreement dated as of March 9, 2000, as amended on February 28,
2001 end on December 18, 2003, the event contemplated by this clause (D) shall
not be a Liquidity Event), or (E) an IPO.
(k) "Liquidity Redemption Price" means, in respect of a Liquidity Event,
(A) the applicable Adjusted Liquidation Amount divided by (B) 14,000.
(l) "Maximum Liquidation Value" means $14,000,000 if a Liquidity Event
occurs on or prior to December 31, 2004, and $16,500,000 if a Liquidity Event
occurs after December 31, 2004.
(m) "Optional Redemption Price" means a per share redemption price, in
cash, equal to (A) the lesser of (x) $16,500,000 or (y) if a Valuation Event
occurred, the Adjusted Liquidation Amount, divided by (B) 14.000; provided that
after any transfer of Sores C Preferred Stock pursuant to Section 8A or Section
8B of that certain Stockholders' Agreement dated as of March 9, 2000, as amended
on February 28, 2001 and on December 18, 2003, the Optional Redemption Price
shall be $0.10 per share and in no event shall the Corporation be required to
pay an amount greater than $0.10 per share in respect of any redemption thereof.
(n) "Original Series A Holder" means, in respect of shares of the Series A
Preferred Stock, any Person holding such shares as of the date of this
Certificate of Designations, or any of such Person's Affiliates who acquire
shares of Series A Preferred Stock from such Per-
-7-
son; provided that in respect of shares of Series A Preferred Stock hereafter
acquired by any Original Series A Holder from a Person that is not an Original
Series A Holder in respect of such shares, such acquiring Person shall not be
deemed to be an Original Series A Holder in respect of the shares so acquired.
(o) "Parity Securities" means any preferred stock of the Corporation
ranking on liquidation on a parity with the Series C Preferred stock, and, in
any event, shall include the Series A Preferred Stock, and the Series B
Preferred Stock of the Corporation, par value $0.01 per share.
(p) "Person" means an individual, partnership, joint-stock company,
corporation, limited liability company, trust, estate or unincorporated
organization, and a government or agency be subdivision thereof.
(q) "Publicly Traded Securities" means, in respect of a Third Party Sale,
securities (A) of a class that is listed on the New York Stock Exchange, NASDAQ
National Market, or other nationally recognized stock exchange, (B) which are
tradeable on such exchange without legal or contractual restraint (other than
prohibitions on the use of material non-public information), and (C) which, in
the reasonable judgment of the Board of Directors, may be transferred in their
entirety to the public within 30 days of receipt thereof without discount to the
average market price thereof for the 30 days immediately prior to the date of
such event.
(r) "Redeemed Series A Preferred Accreted Value" means, as of any time, in
respect of shares of Series A Preferred Stock redeemed by the Corporation or a
subsidiary thereof prior to such time, the sum of (A) the product of $1,000 and
the number of such shares, (B) the aggregate premium paid payable in respect of
such shares payable pursuant to paragraph (e)(i) of the Series A Certificate of
Designation on the date such shares were redeemed (whether or not such premium
was actually paid by Corporation or such shares were actually redeemed by the
Corporation at such time) and (C) an amount equal to all accumulated and unpaid
dividends on such shares as of the time such shares wore so redeemed.
(s) "Redemption Proceeds" means an amount, as of any time, equal to the
aggregate value of the cash and Publicly Traded Securities (which shall be
valued, as of the time of receipt, by the Board of Directors) received by
holders of Series A Preferred Stack in respect of redemptions of such shares by
the Corporation or a subsidiary thereof prior to such time.
(t) "Refinancing" means the redemption by the Corporation or a subsidiary
thereof of all outstanding shares of Series A Preferred Stock in one or more
redemptions pursuant to the Series A Certificate of Designation with the
proceeds of debt or equity financings of the Corporation.
(u) "Senior Preferred Stock" means any other preferred stock of the
Corporation ranking on liquidation prior and in preference to the Series C
Preferred Stock and, in any event, shall include the Series E Preferred Stock of
the Corporation, par value $0.01 per share.
(v) "Series A Cash Shortfall" means, in respect of an IPO, excess of $70
million over the Redemption Proceeds prior to the IPO.
-8-
(w) "Series A Certificate of Designation" means the Certificate of
Designation of the Powers, Preferences and Relative, Participating, Optional and
Other Special Rights of 14 1/2% Senior Redeemable Preferred Stock, Series A, and
Qualifications, Limitations and Restrictions thereof, dated as of March 13,
2000, as amended on December 18, 2003 and as the same may be hereafter amended,
modified or supplemented.
(x) "Series A Preferred Accreted Value" means, as of any point in time, the
sum of (A) the product of $1,000 and the number of shares of Series A Preferred
Stock outstanding immediately prior to such time, (e) the aggregate premium
payable in respect of such Shares of Series A Preferred Stock, had the
Corporation redeemed all such shares pursuant to paragraph (e)(i) of the Series
A Certificate of Designation at such time (whether or not actually redeemed by
the Corporation pursuant to such paragraph) and (C) an amount equal to all
accumulated and unpaid dividends immediately prior to such Time on such shares
of Series A Preferred Stock.
(y) "Series A Preferred Stock" means the 14 1/2% Senior Redeemable
Preferred Stock, Series A, of the Corporation, with a slated value of $1.000 per
share.
(z) "Sold Series A Preferred Accreted Value" means in respect of shares of
Series A Preferred Stock sold or otherwise transferred in a Third Party Sale,
the sum of (A) the product of $1,000 and the number of such shares, and (B) an
amount equal to all accumulated and unpaid dividends on such shares as of the
time such shares were so sold or otherwise transferred.
(aa) "Third Party Sale" means the transfer or all outstanding snares of
Series A Preferred Stock in one transaction to a person who is not an Affiliate
of any Original Series A Holder solely for cash and Publicly Traded Securities.
(bb) "Third Party Sale Proceeds" means an amount, determined upon a Third
Party Sale, equal to the aggregate value of the cash and Publicly Traded
Securities (which shall be valued, as of the time of receipt, by the Board of
Directors) received by holders of Series A Preferred Stock in respect of a Third
Party Sale.
(cc) "Total Equity Value" means, in respect of an IPO, an amount equal to
the aggregate value of Parity Securities and Junior Securities immediately prior
to the consummation of the IPO (such value to be determined in good faith by the
Board of Directors, with shares of Common Stock valued, per share, at the IPO
Value).
(dd) "Valuation Event" means a Refinancing or Third Party Sale.
8. VOTING.
(a) The Series C Preferred Stock shall have no voting rights except as may
be required by law or as set forth in Section 8(b); provided, that the
Corporation shall not amend, alter or repeal the preferences, special rights or
other powers of the Series C preferred Stock so as to affect adversely the
Series C Preferred Stock, without the written consent or affirmative vote of the
holders of at least a majority of the then outstanding shares of Series C
Preferred
-9-
Stock, given in writing or by vote at a meeting, consenting or voting (as the
case may be) separately as a class. For this purpose, the authorization or
issuance of any series of Preferred Stock with preference or priority over, or
being on a parity with, the Series C Preferred Stock as to the right to receive
amounts distributable upon liquidation, dissolution or winding up of the
Corporation shall not be deemed so to affect adversely the series C Preferred
Stock.
(b) Without the prior consent of holders of a majority of the outstanding
shares of Series C Preferred Stock, after a Valuation Event, the Corporation
shall not pay any dividends on nor shall the Corporation or any subsidiary
thereof purchase, redeem or otherwise acquire any Junior Securities; provided,
that the Corporation may make payments permitted by paragraph (k)(ii)(B) of the
Series A Certificate of Designation and the terms of any other indebtedness of
the Corporation or Senior Securities similar thereto.
9. CONVERSION. The Series C Preferred Stock is not convertible into any other
Class of capital stock of the Corporation.
10. PAYMENTS SUBJECT TO CREDIT AGREEMENT AND SENIOR PREFERRED STOCK.
Notwithstanding anything to the contrary herein, no payment (whether as a
dividend, liquidation preference, optional or mandatory redemption or otherwise)
may be made in cash in respect of any shares of Series C Preferred Stock unless
all obligations under that certain Credit Agreement dated as of March 9, 2000,
among the Corporation, the Corporation's subsidiaries, the lenders party thereto
in their capacities as lenders thereunder and Wachovia Bank, National
Association (as successor to First Union National Bank), as administrative agent
(the "Credit Agreement"), together with the related documents thereto
(including, without limitation, any guarantee agreements and security documents,
including as provided by any subsidiaries of the Corporation), 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 Corporation 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 agents, lender or group of lenders that shall have been paid in full
in cash or the Credit Agreement shall permit such payment. Notwithstanding
anything to the contrary herein, no payment (whether as a dividend, liquidation
preference, optional or mandatory redemption or otherwise) may be made in cash
in respect of any shares of Series C Preferred Stock unless the terms of any
Senior Preferred Stock shall permit such payment.
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IN WITNESS WHEREOF, Transportation Technologies Industries, Inc. has caused
this Certificate of Designations, Number, Voting Powers, Preferences and Rights
of Series C Preferred Stock to be duly executed by a duly authorized officer
this 19th day of December, 2003.
TRANSPORTATION TECHNOLOGIES INDUSTRIES, INC.
By: /s/ Donald C. Mueller
----------------------------------------
Name: Donald C. Mueller
Title: Chief Financial Officer
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CERTIFICATE OF DESIGNATIONS, NUMBER, VOTING POWERS,
PREFERENCES AND RIGHTS OF SERIes D
PREFERRED STOCK
OF
TRANSPORTATION TECHNOLOGIES INDUSTRIES, INC.
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
The undersigned DOES HEREBY CERTIFY that the following resolution was duly
adopted by the Board of Directors (the "Board of Directors") of Transportation
Technologies Industries, Inc., a Delaware corporation (the "Corporation"), with
the preferences and rights set forth therein relating to dividends, conversion,
dissolution and distribution of assets of the Corporation having been fixed by
the Board of Directors pursuant to authority granted to it under the
Corporation's 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:
RESOLVED: That, pursuant to authority conferred upon the Board of Directors
by the Certificate of Incorporation, the Board of Directors hereby authorizes
the creation of 42,000 shares of Series D Preferred Stock of the Corporation,
and hereby fixes the designations, powers, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, of such shares, in addition to those set
forth in the Certificate of Incorporation, as follows:
1. DESIGNATION AND AMOUNT. There is hereby created out of the authorized and
unissued shares of preferred stock of the Corporation ("Preferred Stock") a
series of Preferred Stock designated "Series D Preferred Stock" (the "Series D
Preferred"), and the number of shares constituting such series shall be 42,000.
2. DIVIDENDS. The holders of Series D Preferred stock shall not be entitled to
receive dividends on shares of Series D Preferred Stock,
3. MANDATORY REDEMPTION UPON AN INITIAL PUBLIC OFFERING.
(a) Concurrently with the consummation of an IPO (other than an IPO after a
Valuation Event), the Corporation shall redeem all of the outstanding shares of
Series D Preferred Stock. Such shares shall be redeemed from the holders thereof
at a per share redemption price equal to the IPO Redemption Price.
(b) At least 5 days and not more than 90 days prior to the date fixed for
any redemption of the Series D Preferred Stock pursuant to this Section 3,
written notice (the "IPO Redemption Notice") shall be given by first class mail,
postage prepaid (which notice shall be effective upon deposit for mailing), to
each holder of record on the record date fixed for such redemption of the Series
D Preferred Stock at such holder's address as it appears in the register
maintained by the transfer agent (which may be the Corporation) for the Series D
Preferred
Stock; provided that no failure to give such notice nor any deficiency therein
shall affect the validity of the procedure for the redemption of any shares of
Series D Preferred Stock to be redeemed except as to the holder or holders to
whom the Corporation has failed to give said notice or except as to the holder
or holders whose notice was defective. The IPO Redemption Notice shall state:
(i) the IPO Redemption Price (and the type of consideration to be paid
in respect thereof).
(ii) the date of such redemption; and
(iii) that the holder is to surrender to the Corporation, in the
manner and at the place or places designated, his certificate or
certificates representing the shares of Series D Preferred Stock to be
redeemed.
(c) Each holder of Series D Preferred Stock shall surrender the certificate
or certificates representing such shares of Series D Preferred Stock to the
Corporation, duly endorsed (or otherwise in proper form for transfer, as
determined by the Corporation), in the manner and at the place designated in the
IPO Redemption Notice, and on the related redemption date the full IPO
Redemption Price for such shares shall be payable in cash (or in such other
consideration as provided in Section 3(e)) to the person whose name appears on
such certificate or certificates as the owner thereof, and each surrendered
certificate shaft be canceled and retired.
(d) On and after such redemption date, unless the Corporation defaults in
the payment in full of the IPO Redemption Price, all rights of the holders of
the Series D Preferred Stock to be redeemed shall terminate with respect
thereto, other than the right to receive the IPO Redemption Price; provided,
however, that if a notice of redemption shall have been given as provided in
Section 3(b) above and the funds (or property) necessary for redemption shall
have been irrevocably deposited to the trust for the equal and ratable benefit
for the holders of the shares of Series D Preferred Stock, then, at the close of
business on the day on which such funds are segregated and set aside, the
holders of the shares to be redeemed shall cease to be stockholders of the
Corporation and shall be entitled only to receive the IPO Redemption Price.
(e) Anything in this Certificate of Designations to the contrary
notwithstanding, the Corporation shall pay the IPO Redemption Price in respect
of the Series D Preferred Stock pursuant to this Section 3 with such types of
consideration such that the holders of Series D Preferred Stock shall receive
(x) an amount in cash equal to the aggregate amount of cash that is available to
redeem securities of the Corporation after payments of all amounts required to
be paid in respect of Senior Preferred Stock; and (y) an amount of Common Stock
(which shall be valued, per share, at the IPO Value) equal to the aggregate IPO
Redemption Price over the amount of cash paid in redemption of the Series D
Preferred Stock pursuant to this Section 3.
(f) Anything in this Section 3 to the contrary notwithstanding, the Board
of Directors may require that the holder of the Series D Preferred Stock execute
such agreements in respect of any non-cash consideration paid thereto upon
redemption as the Board of Directors may reasonably determine so long as the
holders of Series A Preferred Stock are also required to execute such agreements
in respect of such non-cash consideration; provided, that no holder of
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Series D Preferred Stock shall be required to have liability under such
agreements in respect of breaches of representations and warranties in excess of
the IPO Redemption Price for such holder's Series D Preferred Stock, Any
holder's failure to execute such agreement shall not affect the status of the
Series D Preferred Stock as redeemed, such holder's rights to be limited to the
receipt of such non-cash consideration upon its execution of such agreements.
4. MANDATORY REDEMPTION UPON LIQUIDITY EVENT (INCLUDING IPO) OCCURRING AFTER A
REFINANCING OR THIRD PARTY SALE.
(a) No later than 3 days after the occurrence of a Liquidity Event, the
Corporation shall redeem, to the extent of funds or property legally available
therefor, all of the outstanding shares of Series D Preferred Stock. Such shares
shall be redeemed from the holders thereof at a per share redemption price,
payable in cash, equal to the Liquidity Event Redemption Price.
(b) At least 1 day and not more then 90 days prior to the date fixed for
any redemption of the Series D Preferred Stock pursuant to this Section 4,
written notice (the "Mandatory Redemption Notice") shall be given by first class
mail, postage prepaid (which notice shall be effective upon deposit for
mailing), to each holder of record on the record date fixed for such redemption
of the Series D Preferred Stock at such holder's address as it appears in the
register maintained by the transfer agent (which may be the Corporation) for the
Series D Preferred Stock; provided that no failure to give such notice nor any
deficiency therein shall affect the validity of the procedure for the redemption
of any shares of Series D Preferred Stock to be redeemed except as to the holder
or holders to whom the Corporation has failed to give said notice or except as
to the holder or holders whose notice was defective. The Mandatory Redemption
Notice shall state:
(i) the Liquidity Event Redemption Price;
(ii) the date of such redemption; and
(iii) that the holder is to surrender to the Corporation, in the
manner and at the place or places designated, his certificate or
certificates representing the shares of Series D Preferred Stock to be
redeemed.
(c) Each holder of Series D Preferred Stock shall surrender the certificate
or certificates representing such shares of Series D Preferred Stock to the
Corporation, duly endorsed (or otherwise in proper form for transfer, as
determined by the Corporation), in the manner and at the place designated in the
Mandatory Redemption Notice, and on the related redemption date the full
Liquidity Event Redemption Price for such shares shall be payable in cash to the
person whose name appears on such certificate or certificates as the owner
thereof, and each surrendered certificate shall be canceled and retired.
(d) On and after such redemption date, unless the Corporation defaults in
the payment in full of the Liquidity Event Redemption Price, all rights of the
holders of the Series D Preferred Stock to be redeemed shell terminate with
respect thereto, other than the right to receive the liquidity Event Redemption
Price; provided, however, that if a notice of redemption
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shall have been given as provided in Section 4(b) above and the funds necessary
for redemption shall have been irrevocably deposited in the trust for the equal
and ratable benefit for the holders of the shares of Series D Preferred Stock,
then, at the close of business on the day on which such funds are segregated and
set aside, the holders of the shares to be redeemed shall cease to be
stockholders of the Corporation and shah be entitled only to receive the
Liquidity Event Redemption Price.
(e) The Corporation's obligations in this Section 4 shall be subject to its
compliance with the provisions of all Senior Preferred Stock and Parity
Securities.
5. FINAL REDEMPTION.
(a) At any time, the Corporation may redeem, to the extent of funds legally
available therefor, all or any portion of the outstanding shares of Series D
Preferred Stock. Such shares shall be redeemed from the holders thereof pro rata
and the redemption shall be at a per share redemption price, payable in cash,
equal to the Optional Redemption Price.
(b) At least 5 days and not more than 90 days prior to the date fixed for
any redemption of the Series D Preferred Stock pursuant to this Section 5,
written notice (the "Optional Redemption Notice") shall be given by first class
mail, postage prepaid (which notice shall be effective upon deposit for
mailing), to each holder of record on the record date fixed for such redemption
of the Series D Preferred Stock at such holder's address as it appears in the
register maintained by the transfer agent (which may be the Corporation) for the
Series D Preferred Stock; provided that no failure to give such notice nor any
deficiency therein shall affect the validity of the procedure for the redemption
of any shares of Series D Preferred Stock to be redeemed except as to the holder
or holders to whom the Corporation has failed to give said notice or except as
to the holder or holders whose notice was defective. The Optional Redemption
Notice shall state:
(i) the Optional Redemption Price;
(ii) the date of such redemption; and
(iii) that the holder is to surrender to the Corporation, in the
manner and at the place or places designated, his certificate or
certificates representing the shares of Series D Preferred Stock to be
redeemed.
(c) Each holder of Series D Preferred Stock shall surrender the certificate
or certificates representing such shares of Series D Preferred Stock to the
Corporation, duly endorsed (or otherwise in proper form for transfer, as
determined by the Corporation), in the manner and at the place designated in the
Optional Redemption Notice, and on the related redemption date the full Optional
Redemption Price for such shares shall be payable in cash to the person whose
name appears on such certificate or certificates as the owner thereof, and each
surrendered certificate shall be canceled and retired.
(d) On and after such redemption date, unless the Corporation defaults in
the payment in full of the Optional Redemption Price, all rights of the holders
of the Series D Pre-
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ferred Stock to be redeemed shall terminate with respect thereto, other than the
right to receive the Optional Redemption Price; provided, however, that if a
notice of redemption shall have been given as provided in Section 5(b) above and
the funds necessary for redemption shall have been irrevocably deposited in the
trust for the equal and ratable benefit for the holders of the shares of Series
D Preferred Stock, then, at the close of business on the day on which such funds
are segregated and set aside, the holders of the shares to be redeemed shall
cease to be stockholders of the Corporation and shall be entitled only to
receive the Optional Redemption Price.
6. LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) Upon the occurrence of a Liquidity Event and a related voluntary or
involuntary liquidation, dissolution at winding-up of the affairs of the
Corporation, the holders of shares of Series D Preferred Stock then outstanding
shall be entitled to be paid out of the assets of the Corporation available for
distribution to its stockholders, after and subject to the payment in full of
all amounts required to be distributed to the holders of all Senior Preferred
Stock but before any payment shall be made to the holders of Junior Securities,
an amount per share of Series D Preferred Stock held thereby equal to the
applicable Liquidity Event Redemption Price, determined as of the time of such
Liquidity Event.
(b) After the payment of all preferential amounts required to be paid to
the holders of Senior Preferred Stock and Parity Securities, the holders of
Junior Securities then outstanding shall be entitled to receive the remaining
assets and funds of the Corporation available for distribution to its
stockholders.
(c) Nothing in this Section 6 shall affect the redemption rights of the
holders of the Series D Preferred Stock pursuant to Sections 3 and 4 in respect
of a redemption date that precedes the date on which a distribution in respect
of the Series D Preferred Stock is required pursuant to this Section 6.
7. DEFINITIONS.
(a) "Adjusted Liquidation Amount" means, in respect of a Liquidity Event:
(i) in respect of a Refinancing, the product of (A) the Maximum
Liquidation Value at the time of the Liquidity Event and (B) a
fraction (which, notwithstanding the remainder of this clause
(B), may never exceed 1), the numerator of which is the
Redemption Proceeds and the denominator of which is the Redeemed
Series A Preferred Accreted Value;
(ii) in respect of a Third Party Sale, the product of (A) the Maximum
Liquidation Value at the time of the Liquidity Event and (B) a
fraction, the numerator of which is the lessor of (x) the sum of
Redemption Proceeds and Third Party Sale Proceeds and (y) the sum
of the Redeemed Series A Preferred Accreted Value and the Sold
Series A Preferred Accreted Value, and the denominator of which
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is the sum of the Redeemed Series A Preferred Accreted Value and
the Sold Series A Preferred Accreted Value; and
(iii) in respect of a Series A Total Sale, the product of (A) the
Maximum Liquidation Value at the time of the Liquidity Event and
(B) a fraction, the numerator of which is the aggregate
consideration received by the holders of the Series C Preferred
Stock in the Series A Total Sale, and the denominator of which is
Series C Maximum Liquidation Value.
(b) "Affiliate" means, in respect of any Person, any Person, directly or
indirectly, controlling, controlled by or under common control with such Person;
provided that, in respect of any Person who is an individual, "Affiliate" shall
also mean any Person related by blood or marriage (no more remote than first
cousin) to such Person or any Affiliate of such related person. The Corporation
shall not be deemed to be an Affiliate of any Original Series A Holder.
(c) "Common Stock" has the meaning set forth in the Series A Certificate of
Designation.
(d) "IPO" means the initial public offering of Common Stock (or securities
convertible into, or exercisable for, Common Stock).
(e) "IPO Redemption Price" means, an amount, determined in connection with
an IPO, equal to (A) the lesser of (i) the Maximum Liquidation Value immediately
prior to the consummation of the IPO and (ii) the IPO Residual Equity Value
immediately prior to the consummation of the IPO, divided by (B) 42,000.
(f) "IPO Residual Equity Value" means, in respect of an IPO, an amount
equal to the aggregate value of Parity Securities and Junior Securities
immediately prior to the consummation of the IPO (such value to be determined in
good faith by the Board of Directors, with shares of Common Stock valued, per
share, at the IPO Value).
(g) "IPO Value" means, in respect of an IPO, the offering price to the
public of the Common Stock in such IPO.
(h) "Junior Securities" means any capital stock of the Corporation, ranking
on liquidation junior and not preferred to the Series D Preferred Stock and
shall include, in any event, Common Stock.
(i) "Liquidity Event" means the first to occur of any of the following
events after a Valuation Event: (A) the merger or consolidation of the
Corporation into or with another Corporation or the merger or consolidation of
another corporation into or with the Corporation, (B) the sale, conveyance or
lease (but not including a transfer by pledge or mortgage or lease to a bona
fide, third party lender) of all or substantially all the assets of the
Corporation, (C) the sale of any Common Stock by stockholders, in the case in
any of clauses (A), (B) or (C) in which the stockholders of record of the
Corporation immediately prior to such event shall beneficially own
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(as such term is used for purposes of Section 13(d) of the Securities Exchange
Act of 1934, as amended, and the rules promulgated thereunder) less than 50% of
the voting securities of the corporation surviving such merger or consolidation
or the person acquiring such assets or shares, (D) the transfer by
Transportation Investment Partners L.L.C. ("TIP") of the right to elect at least
3 of the 5 directors that TIP is entitled to elect as of the date hereof to a
Person other than its Affiliates or any other Original Series A Holder;
provided, that, if the holders of the Series C Preferred Stock have elected not
to exercise their rights to transfer such shares pursuant to Section 8B of that
certain Stockholders' Agreement dated as of March 9, 2000, as amended on
February 28, 2001 and on December 18, 2003, the event contemplated by this
clause (D) shall not be a Liquidity Event), or (E) an IPO.
(j) "Liquidity Event Redemption Price" means, in respect of a Liquidity
Event, (A) the applicable Adjusted Liquidation Amount divided by (B) 42,000.
(k) "Maximum Liquidation Value" means $42,000,000 if a Liquidity Event
occurs on or prior to December 31, 2004, and $49,500,000 if a Liquidity Event
occurs after December 31, 2004.
(l) "Option Redemption Price" means a per share redemption price, in cash,
equal to (A) the lesser of (x) $49,500,000 or (y) if a Valuation Event has
occurred, the Adjusted Liquidation Amount, divided by (B) 42,000; provided that
after any transfer of Series D Preferred Stock pursuant to Section 8A of that
certain Stockholders' Agreement dated as of March 9, 2000, as amended on
February 28, 2001 and on December 18, 2003, the Optional Redemption Price shall
be $0.10 per share and in no event shall the Corporation be required to pay an
amount greater then $0.10 per share in respect of any redemption thereof.
(m) "Original Series A Holder" means, in respect of shares of the Series A
Preferred Stock, any Person holding such shares as of the date of this
Certificate of Designations, or any of such Person's Affiliates who acquire
shares of Series A Preferred Stock from such Person; provided that, in respect
of shares of Series A Preferred stock hereafter acquired by any Original Series
A Holder from a Person that is not an Original Series A Holder in respect of
such shares, such acquiring Person shall not be deemed to be an Original Series
A Holder in respect of the shares so acquired.
(n) "Parity Securities" means any preferred Stock of the Corporation
ranking on liquidation on a parity with the Series D Preferred stock.
(o) "Person" means an individual, partnership, joint-stock company,
corporation, limited liability company, trust, estate or unincorporated
organization, and a government or agency or subdivision thereof.
(p) "Publicly Traded Securities" means, in respect of a Third Party Sale,
securities (A) of a class that is listed on the New York Stock Exchange, NASDAQ
National Market, or other nationally recognized stock exchange, (B) which are
tradeable on such exchange without legal or contractual restraint (other than
prohibitions on the use of material non-public information), and (C) which, in
the reasonable judgment of the Board of Directors, may be transferred in
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their entirety to the public within 30 days of receipt thereof without discount
to the average market price thereof for the 30 days immediately prior to the
date of such event.
(q) "Redeemed Series A Preferred Accreted Value" means, as of any time, in
respect of shares of Series A Preferred Stock redeemed by the Corporation or a
subsidiary thereof prior to such time, the sure of (A) the product of $1,000 and
the number of such shares, (B) the aggregate premium paid payable in respect of
such shares payable pursuant to paragraph (e)(i) of the Series A Certificate of
Designation on the date such shares were redeemed (whether or not such premium
was actually paid by Corporation or such shares were actually redeemed by the
Corporation at such time) and (C) in amount equal to all accumulated and unpaid
dividends on such shares as of the time such shares were so redeemed.
(r) "Redemption Proceeds" means an amount, as of any time, equal to the
aggregate value of the cash and Publicly Traded Securities (which shall be
valued, as of the time of receipt by the Board of Directors) received by holders
of Series A Preferred Stock in respect of redemptions of such shares by the
Corporation or a subsidiary thereof prior to such time.
(s) "Refinancing" means the redemption by the Corporation or a subsidiary
thereof of all outstanding shares of Series A Preferred Stock in one or more
redemptions pursuant to the Series A Certificate of Designation with the
proceeds of debt or equity financings of the Corporation.
(t) "Senior Preferred Stock" means any other preferred stock of the
Corporation ranking on liquidation prior and in preference to the Series D
Preferred Stock and, in any event, shall include the Series A Preferred Stock,
Series B Preferred Stock, par value $0.01 per share, Series C Preferred Stock
and Series E Preferred Stock, par value $0.01 per share, in each case of the
Corporation.
(u) "Series A Certificate of Designation" means the Certificate of
Designation of the Powers, Preferences and Relative, Participating, Optional and
Other Special Rights of 14 1/2% Senior Redeemable Preferred Stock Series A, and
Qualifications, Limitations and Restrictions thereof, dated as of March 13,
2000, as amended on December 18, 2003 and as the same may be hereafter amended,
modified or supplemented.
(v) "Series A Preferred Accreted Value" means, as of any point in time, the
sum of (A) the product of $1,000 and the number of shares of Series A Preferred
Stock outstanding immediately prior to such time (B) the aggregate premium
payable in respect of such shares of Series A Preferred Stock, had the
Corporation redeemed all such shares pursuant to paragraph (a)(i) of the Series
A Certificate of Designation at such time (whether or not actually redeemed by
the Corporation pursuant to such paragraph) and (C) an amount equal to all
accumulated and unpaid dividends immediately prior to such time an such shares
of Serial A Preferred Stock.
(w) "Series A Preferred Stock" means the 14 1/2% Senior Redeemable
Preferred Stock, Series A, of the Corporation, with a stated value of $1,000 per
share.
-8-
(x) "Series A Total Sale" means any transfer of Series A Preferred Stock
and Series C Preferred Stock pursuant to Section 8B of that certain
Stockholders' Agreement dated as of March 9, 2000, as amended on February 28,
2001 and on December 18, 2003.
(y) "Series C Maximum Liquidation Value" means, in respect of a Series A
Total Sale, $14,000,000 if such event occurs on or prior to December 31, 2004,
and $16,500,000 if such event occurs after December 31, 2004.
(z) "Series C Preferred Stock" means the Series C Preferred Stock, par
value $0.01 per share, of the Corporation.
(aa) "Sold Series A Preferred Accreted Value" means in respect of shares of
Series A Preferred Stock sold or otherwise transferred in a Third Party Sale,
the sum of (A) the product of $1,000 and the number of such shares, and (B) an
amount equal to all accumulated and unpaid dividends on such shares as of the
time such shares were so sold or otherwise transferred.
(bb) "Third Party Sale" means the transfer of all outstanding shares of
Series A Preferred Stock in one transaction to a Person who is not an Affiliate
of any Original Series A Holder solely for cash and Publicly Traded Securities.
(cc) "Third Party Sale Proceeds" means an amount, determined upon a Third
Party Sale, equal to the aggregate value of the cash and Publicly Traded
Securities (which shall be valued, as of the time of receipt, by the Board of
Directors) received by holders of Series A Preferred Stock in respect of a Third
Party Sale.
(dd) "Valuation Event" means a Refinancing, Series A Total Sale or Third
Party Sale.
8. VOTING.
(a) The Series D Preferred Stock shall have no eating rights except as may
be required by law or as provided in Section 8(b); provided, that the
Corporation shall not amend, alter or repeal the preferences, special rights or
other powers of the Series D Preferred Stock so as to affect adversely the
Series C Preferred Stock, without the written consent or affirmative vote of the
holders of at least a majority of the then outstanding shares of Series D
Preferred Stock, given in writing or by vote at a meeting, consenting or voting
(as the case may be) separately as a class. For this purpose, the authorization
or issuance of any series of Preferred Stock with preference or priority over,
or being on a parity with, the Series D Preferred Stock as to the right to
receive amounts distributable upon liquidation, dissolution or winding up of the
Corporation shall not be deemed so to affect adversely the Series D Preferred
Stock.
(b) Without the prior consent of holders of a majority of the outstanding
shares of Series D Preferred Stock, after the date on which there are no shares
of Series C Preferred Stock outstanding, the Corporation shall not pay any
dividends on nor shall the Corporation or any subsidiary thereof purchase,
redeem or otherwise acquire any Junior Securities; provided, that the
Corporation may make payments permitted by paragraph (k)(ii)(b) of the Series A
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Certificate of Designation and the terms of any other indebtedness of the
Corporation or Senior Securities similar thereto.
9. CONVERSION. The Series D Preferred Stock is not convertible into any other
class of capital stock of the Corporation.
10. PAYMENTS SUBJECT TO CREDIT AGREEMENT AND SENIOR PREFERRED STOCK.
Notwithstanding anything to the contrary herein, no payment whether as a
dividend, liquidation preference, optional or mandatory redemption or otherwise)
may be made in cash in respect of any shares of Series D Preferred Stock unless
all obligations under that certain Credit Agreement dated as of March 9, 2000,
among the Corporation, the Corporation's subsidiaries, the lenders party thereto
in their capacities as lenders thereunder and Wachovia Bank, National
Association (as successor to First Union National Bank), as administrative agent
(the "Credit Agreement"), together with the related documents thereto
(including, without limitation, any guarantee agreements and security documents,
including as provided by any subsidiaries of the Corporation), 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 Corporation 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 agents, lender or group of lenders shall have been paid in full in
cash or the Credit Agreement shall permit such payment. Notwithstanding anything
to the contrary herein, no payment (whether as a dividend, liquidation
preference, optional or mandatory redemption or otherwise) may be made in cash
in respect of any shares of Series D Preferred Stock unless the terms of any
Senior Preferred Stock shall permit such payment.
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IN WITNESS WHEREOF, Transportation Technologies Industries, Inc. has caused
this Certificate of Designations, Number, Voting Powers, Preferences and Rights
of Series D Preferred Stock be duly executed by duly authorized officer this
10th day of December, 2003.
TRANSPORTATION TECHNOLOGIES INDUSTRIES, INC.
By /s/ Donald C. Mueller
----------------------------------------
Name: Donald C. Mueller
Title: Chief Financial Officer
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CERTIFICATE OF DESIGNATION OF THE POWERS,
PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL AND OTHER SPECIAL RIGHTS OF 25%
SENIOR REDEEMABLE PREFERRED STOCK, SERIES E, AND
QUALIFICATIONS, LIMITATIONS AND RESTRICTIONS THEREOF
-------------------------------------------------------------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
-------------------------------------------------------------
Transportation Technologies Industries, Inc. (the "Corporation"), a
corporation organized and existing under the General Corporation Law of the
State of Delaware, does hereby certify that, pursuant to authority conferred
upon the board of directors of the Corporation (the "Board of Directors") by its
Certificate of Incorporation, as amended (hereinafter referred to as the
"Certificate of Incorporation"), and pursuant to the provisions of Section 151
of the General Corporation Law of the State of Delaware, said Board of
Directors, by unanimous written consent dated December 13, 2003, duly approved
and adopted the following resolution (the "Resolution"):
RESOLVED, that, pursuant to the authority vested in the Board of
Directors by the Corporation's Certificate of Incorporation, the Board of
Directors does hereby create, authorize and provide for the issuance of 25%
Senior Redeemable Preferred Stock, Series E, Par value $.01 per share, with
a stated value of $l,000.00 per share, consisting of 41,475 shares, having
the designations, preferences, relative, participating, optional and other
special rights and the qualifications, limitations and restrictions thereof
that are set forth in the Certificate of Incorporation and in this
Resolution as follows:
(a) Designation. There is hereby created out of the authorized and unissued
shares of Preferred Stock of the Corporation a class of Preferred Stock
designated as the "25% Senior Redeemable Preferred Stock." The number of shares
constituting such class shall be 41,475 and is referred to herein as the "Senior
Preferred Stock." The liquidation preference of the Senior Preferred Stock shall
be $1,000.00 per share (the "Liquidation Preference").
(b) Rank. The Senior Preferred Stock shall, with respect to dividend
distributions and distributions upon liquidation, winding-up and dissolution of
the Corporation, rank (i) senior (to the extent set forth herein) to all classes
of Common Stock of the Corporation and to each other class of Capital Stock of
the Corporation or series of Preferred Stock of the Corporation now in existence
or hereafter created the terms of which do not expressly provide that it ranks
senior to, or on a parity with, the Senior Preferred Stock as to dividend
distributions and distributions upon redemption, liquidation, winding-up and
dissolution or Change of Control of the Corporation (collectively referred to,
together with all classes of Common Stock of the Corporation, as "Junior
Securities"); (ii) on a parity with any class of Capital Stock of the
Corporation or series of Preferred Stock of the Corporation hereafter created
the terms of which expressly provide that such class or series will rank on a
parity with the Senior Preferred Stock as to dividend distributions and
distributions upon liquidation, winding up and dissolution (collectively
referred to as "Parity Securities"), provided that any such Parity Securities
that were not
approved by the Holders in accordance with paragraph (f)(ii)(A) hereof shall be
deemed to be Junior Securities and not Parity Securities; and (iii) junior to
each other class of Capital Stock of the Corporation or series of Preferred
Stock of the Corporation hereafter created the terms of which expressly provide
that such class or series will rank senior to the Senior Preferred Stock as to
dividend distributions and distributions upon liquidation, winding-up and
dissolution of the Corporation (collectively referred to as "Senior
Securities"), provided that any such Senior Securities that were not approved by
the Holders in accordance with paragraph (f)(ii)(B) hereof shall be deemed to be
Junior Securities and not Senior Securities. The Senior Preferred Stock shall
rank senior to the outstanding 14 1/2% Senior Redeemable Preferred Stock of the
Corporation originally issued on March 9, 2000 (the "Existing Preferred Stock"),
the Series C Preferred Stock of the Corporation issued on December 18, 2003 (the
"Series C Preferred Stock") and the Series D Preferred Stock of the Corporation
issued on December 18, 2003 (the "Series D Preferred Stock") and shall
constitute "Senior Securities" under the "Certificate of Designations,
Preferences and Relative, Participatory, Optional and Other Special Rights of 14
1/2% Senior Redeemable Preferred Stock, Series A, and Qualifications,
Limitations and Restrictions Thereof" governing the terms of the Existing
Preferred Stock and "Senior Preferred Stock" under the "Certificate of
Designations, Number, Voting Powers, Preferences and Rights of Series C
Preferred Stock" governing the terms of the Series C Preferred Stock and the
"Certificate of Designations, Number, Voting Powers, Preferences and Rights of
Series D Preferred Stock" governing the terms of the Series D Preferred Stock.
(c) Dividends.
(i) From the Issue Date, the Holders of the outstanding shares of Senior
Preferred Stock shall be entitled to receive, when, as and if declared by the
Board of Directors, out of funds legally available therefor, dividends on each
share of Senior Preferred Stock at a rate per annum equal to 25% of the
Liquidation Preference per share of Senior Preferred Stock. All dividends shall
be cumulative, whether or not earned or declared, on a daily basis from the
Issue Date and shall be payable semi-annually in arrears on each Dividend
Payment Date, commencing on the first Dividend Payment Date after the Issue
Date. All unpaid dividends will compound on a semi-annual basis at a rate per
annum equal to the then applicable dividend rate. Dividends shall be payable in
cash (when, as and if declared by the Board of Directors out of funds legally
available therefor). Each dividend shall be payable to the Holders of record as
they appear on the stock books of the Corporation on the Dividend Record Date
immediately preceding the related Dividend Payment Date.
(ii) All dividends paid with respect to shares of the Senior Preferred
Stock pursuant to paragraph (e)(i) shall be paid pro rata to the Holders
entitled thereto.
(iii) Dividends accruing on the Senior Preferred Stock for any past
Dividend Period may be declared and paid at any time, without reference to any
Dividend Payment Date to Holders of record on such date, not more than ten (10)
days prior to the payment hereof as may be fixed by the Board of Directors.
(iv) (A) No full dividends shall be declared by the Board of Directors or
paid or set apart for payment by the Corporation on any Parity Securities for
any period unless full cumulative dividends have been or contemporaneously are
declared and paid in full, or declared
-2-
and a sum in cash set apart sufficient for such payment, on the Senior Preferred
Stock for all Dividend Periods terminating on or prior to the date of payment of
such full dividends on such Parity Securities. If any dividends are not so paid,
all dividends declared upon shares of the Senior Preferred Stock and any other
Parity Securities shall be declared pro rata so that the amount of dividends
declared per share on the Senior Preferred Stock and such Parity Securities
shall in all cases bear to each other the same ratio that accrued dividends per
share on the Senior Preferred Stock and such Parity Securities bear to each
other.
(B) So long as any share of the Senior Preferred Stock is outstanding, the
Corporation shall not declare, pay or set apart for payment any dividends on any
of the Junior Securities (other than dividends in the form of the same class of
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 whether
in cash, obligations or shares of the Corporation or other property (other than
in exchange for Junior Securities), and shall not permit any corporation or
other entity directly or indirectly controlled by the Corporation to purchase or
redeem any of the Junior Securities or any such warrants, rights, calls or
options (other than in exchange for Junior Securities).
(C) So long as any share of the Senior Preferred Stock is outstanding, the
Corporation shall not (except with respect to dividends as permitted by
paragraph (c)(iv)(A)) 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 whether
in cash, obligations or shares of the Corporation or other property, and shall
not permit any corporation or other entity directly or indirectly controlled by
the Corporation to purchase or redeem any of the Parity Securities or any such
warrants, rights, calls or options.
(v) Dividends payable on the Senior Preferred Stock for any period less
than a year shall be computed on the basis of a 360-day year of twelve 30-day
months and, for periods not involving a full calendar month, the actual number
of days elapsed (not to exceed 30 days).
(d) Liquidation Preference.
(i) In the event of any voluntary or involuntary liquidation, dissolution
or winding-up of the affairs of the Corporation, the Holders of shares of Senior
Preferred Stock then outstanding shall be entitled to be paid out of the assets
of the Corporation available for distribution to its stockholders an amount in
cash equal to the Liquidation Preference for each share outstanding, plus,
without duplication, an amount in cash equal to accumulated and unpaid dividends
thereon to the date fixed for liquidation, dissolution or winding-up (including
an amount equal to a prorated dividend for the period from the last Dividend
Payment Date to the date fixed for liquidation, dissolution or winding-up)
before any distribution shall be made or any assets distributed in respect of
Junior Securities to the holders of any Junior Securities including, without
limitation, Common Stock of the Corporation. If upon any voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation, the
amounts payable with respect to the Senior Preferred Stock and all other Parity
Securities are not paid in full, the Holders of the Senior Preferred Stock and
the Parity Securities will share equally and ratably in any distribution of
as-
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sets of the Corporation first in proportion to the full liquidation preference
to which each is entitled until such preferences are paid in full, and then in
proportion to their respective amounts of accumulated but unpaid dividends.
(ii) For the purposes of this paragraph (d), neither the 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
Corporation nor the consolidation or merger of the Corporation with or into one
or more entities shall be deemed to be a liquidation, dissolution or winding-up
of the affairs of the Corporation.
(e) Redemption.
(i) Optional Redemption. (A) The Corporation may redeem the Senior
Preferred Stock at its option in whole at any time or in part from time to time,
on or after the Issue Date, subject to contractual and other restrictions with
respect thereto, from any source of funds legally available therefor, in the
manner provided for in paragraph (e)(ii) hereof, at the redemption prices in
cash (expressed as a percentage of the Liquidation Preference) set forth below,
plus, without duplication, an amount in cash equal to all accumulated and unpaid
dividends (including an amount in cash equal to a prorated dividend for the
period from the Dividend Payment Date immediately prior to the Redemption Date
to the Redemption Date) if redeemed during the 12-month period beginning on each
date listed below:
Issue Date - December 31, 2004................... 118.75%
January 1, 2005 - December 31, 2009.............. 112.50%
January 1, 2010 - December 31, 2010.............. 106.25%
January 1, 2011 and thereafter................... 100.00%
; provided that no redemption pursuant to this paragraph (e)(i)(A) shall be
authorized or made unless prior thereto full accumulated and unpaid dividends
are declared and paid in full, or declared and a sum in each is set apart
sufficient to such payment, on the Senior Preferred Stock for all Dividend
Periods terminating on or prior to the Redemption Date.
(B) In the event of a redemption pursuant to paragraph (e)(i)(A) hereof of
only a portion of the then outstanding shares of Senior Preferred Stock, the
Corporation shall effect such redemption on a pro rata basis according to the
number of shares held by each Holder of Senior Preferred Stock, except that the
Corporation may redeem such shares held by Holders of fewer than one share (or
shares held by Holders who would hold less than one share as a result of such
redemption), as may be determined by the Corporation.
(ii) Procedures for Redemption. (A) At least 15 days and not more than 90
days prior the date fixed for any redemption of the Senior Preferred Stock,
written notice (the "Redemption Notice") shall be given by first-class mail,
postage prepaid, to each Holder of record on the record date fixed for such
redemption of the Senior Preferred Stock at such Holder's address as it appears
in the register maintained by the transfer agent for the Senior Preferred Stock,
provided that no failure to give such notice nor any deficiency therein shall
affect the validity of the procedure for the redemption of any shares of Senior
Preferred Stock to be redeemed
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except as to the Holder or Holders to whom the Corporation has failed to give
said notice or except as to the Holder or Holders whose notice was defective.
The Redemption Notice shall state:
(1) that the redemption is pursuant to paragraph (e)(i)(A) hereof;
(2) the redemption price;
(3) whether all or less than all the outstanding shares of Senior
Preferred Stock are to be redeemed and the total number of shares of Senior
Preferred Stock being redeemed;
(4) the Redemption Date;
(5) that the Holder is to surrender to the Corporation, in the manner,
at the place or places and at the price designated, his certificate or
certificates representing the shares of Senior Preferred Stock to be
redeemed; and
(6) that dividends on the shares of Senior Preferred Stock to be
redeemed shall cease to accumulate on such Redemption Date unless the
Corporation defaults in the payment of the redemption price.
(B) Each Holder of Senior Preferred Stock shall surrender the certificate
or certificates representing such shares of Senior Preferred Stock to the
Corporation, duly endorsed (or otherwise in proper form for transfer, as
determined by the Corporation), in the manner and at the place designated in the
Redemption Notice, and on the Redemption Date the full redemption price for such
shares shall be payable in cash to the Person whose name appears on such
certificate or certificates as the owner thereof, and each surrendered
certificate shall be canceled and retired. In the event that less than all of
the shares represented by any such certificate are redeemed, a new certificate
shall be issued on the Redemption Date representing the unredeemed shares.
(C) On and after the Redemption Date, unless the Corporation defaults in
the payment in full of the applicable redemption price, dividends on Senior
Preferred Stock called for redemption shall cease to accumulate on the
Redemption Date, and all rights of the Holders of redeemed shares shall
terminate with respect thereto on the Redemption Date, other than the right to
receive the redemption price; provided, however, that if a notice of redemption
shall have been given as provided in paragraph (ii)(A) above and the funds
necessary for redemption (including an amount in cash in respect of all
dividends that will accumulate to the Redemption Date) shall have been
irrevocably deposited in trust for the equal and ratable benefit for the Holders
of the shares of Senior Preferred Stock to be redeemed, then, at the close of
business on the Business Day on which such funds are segregated and set aside,
the Holders of the shares to be redeemed shall cease to be stockholders of the
Corporation and shall be entitled only to receive the redemption price.
(f) Voting Rights.
-5-
(i) The Holders of Senior Preferred Stock, except as otherwise required
under Delaware law or as set forth in paragraphs (ii), (iii) and (iv) below,
shall not be entitled or permitted to vote on any matter required or permitted
to be voted upon by the stockholders of the Corporation.
(ii) (A) So long as any shares of Senior Preferred Stock are outstanding,
the Corporation shall not authorize or issue any class of Parity Securities
without the affirmative vote or consent of Holders of at least 66 2/3% of the
then outstanding shares of Senior Preferred Stock, voting or consenting, as the
case may be, as one class, given in person or by proxy, either in writing or by
resolution adopted at an annual or special meeting.
(B) So long as any shares of Senior Preferred Stock are outstanding, the
Corporation shall not authorize or issue any class of Senior Securities without
the affirmative vote or consent of Holders of at least 66 2/3% of the
outstanding shares of Senior Preferred Stock, voting or consenting, as the case
may be, as one class, given in person or by proxy, either in writing or by
resolution adopted at an annual or special meeting.
(C) So long as any shares of Senior Preferred Stock are outstanding, the
Corporation shall not amend, alter or repeal (whether by merger, consolidation,
operation of law, or otherwise) its Certificate of Incorporation including,
without limitation, increasing the total number of shares of Preferred Stock
that the corporation has the authority to issue so as to affect adversely the
rights, preferences, privileges or voting rights of Holders of shares of Senior
Preferred Stock or amend, alter or repeal this Resolution and Certificate of
Designation in any way (whether by merger, consolidation, operation of law, or
otherwise) without the affirmative vote or consent of Holders of at least 66
2/3% of the issued and outstanding shares of Senior Preferred Stock, voting or
consenting, as the case may be, as one class, given in person or by proxy,
either in writing or by resolution adopted at an annual or special meeting;
provided, however, that, no amendment that adversely affects the rights of a
specific Holder, as opposed to all Holders, shall be in effect against such
Holder without its prior consent; provided, further, however, that, without the
affirmative vote or consent of 98% of the Holders of shares of Senior Preferred
Stock affected, an amendment may not: (I) reduce the percentage of outstanding
shares of Senior Preferred Stock whose Holders must consent to an amendment;
(II) reduce the rate of or change the time for payment of dividends on any share
of Senior Preferred Stock; (III) reduce the Liquidation Preference of any share
of Senior Preferred Stock, or change the date on which any share of Senior
Preferred Stock may be subject to redemption or repurchase, or reduce the
redemption or repurchase price therefor; (IV) make any share of Senior Preferred
Stock payable in money other than that stated herein; (V) except as provided in
paragraphs (f)(ii)(A) and (f)(ii)(B) above, affect the ranking of the Senior
Preferred Stock in a manner adverse to the Holders; or (VI) reduce or increase
the number of authorized shares of Senior Preferred Stock.
(D) So long as any shares of Senior Preferred Stock are outstanding, the
Corporation shall not permit any Subsidiary of the Corporation to issue any
Capital Stock, or securities convertible into or exercisable or exchangeable for
Capital Stock or other securities of such Subsidiary, to any person or entity
other than the Corporation without the affirmative vote or consent of Holders of
at least 66 2/3% of the issued and outstanding shares of Senior Preferred Stock.
-6-
(E) So long as any shares of Senior Preferred Stock are outstanding, the
Corporation shall not reclassify any Capital Stock in a manner that alters the
designations, preferences, powers and/or the relative, participating, optional
or other special rights, or the restrictions provided for the benefit of, the
Senior Preferred Stock without the affirmative vote or consent of Holders of at
least 66 2/3% of the issued and outstanding shares of Senior Preferred Stock.
(F) So long as any shares of Senior Preferred Stock are outstanding, the
Corporation shall not take any other action not described in paragraph (f)(ii)
if such action would have the effect of adversely altering or changing the
preferences, rights, privileges or powers of, or the restrictions provided for
the benefit of, the Senior Preferred Stock without the affirmative vote or
consent of Holders of at least 66 2/3% of the issued and outstanding shares of
Senior Preferred Stock.
(G) So long as any shares of Senior Preferred Stock are outstanding, the
Corporation shall not enter into any agreement to do any of the foregoing that
is not expressly made conditional on obtaining the vote or consent of Holders of
at least 66 2/3% of the outstanding shares of Senior Preferred Stock.
(iii) Without the affirmative vote or consent of Holders of 66 2/3% of the
issued and outstanding shares of Senior Preferred Stock, voting or consenting,
as the case may be, as a separate class, given in person or by proxy, either in
writing or by resolution adopted at an annual or special meeting, the
Corporation shall not in a single transaction or series of related transactions,
consolidate with or merge with or into, or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its assets to, another
Person unless: (I) at or prior to the consummation of such transaction all of
the then outstanding shares of the Senior Preferred Stock are redeemed in
accordance with the provisions of this Certificate of Designation or (II) (A)
either (1) the Corporation is the continuing Person or (2) the Corporation has
complied with all of its obligations hereunder and the Person (if other than the
Corporation) formed by such consolidation or into which the Corporation is
merged or to which the properties and assets of the Corporation are sold,
assigned, transferred, leased, conveyed or otherwise disposed of shall be a
corporation organized and existing under the laws of the United States or any
State thereof or the District of Columbia and shall expressly assume all of the
obligations of the Corporation under this Resolution and Certificate of
Designation and all the obligations hereunder and thereunder shall remain in
full force and effect; and (B) if the Corporation is not the surviving Person,
the Senior Preferred Stock shall be converted into or exchanged for and shall
become shares of such successor, transferee or resulting Person, having in
respect of such successor, transferee or resulting Person the same powers,
preferences and relative, participating, optional or other special rights and
the qualifications, limitations or restrictions thereon, and ranking in relation
to all other Capital Stock then outstanding, that the Senior Preferred Stock had
immediately prior to such transaction.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of related transactions) of all or
substantially all of the properties or assets of one or more Subsidiaries of the
Corporation, the Capital Stock of which constitutes all or substantially all of
the properties and assets of the Corporation shall be deemed to be the transfer
of all or substantially all of the properties and assets of the Corporation.
-7-
(iv) In any case in which the Holders of the Senior Preferred Stock shall
be entitled to vote pursuant to this paragraph (f) or pursuant to Delaware law,
each Holder of Senior Preferred Stock entitled to vote with respect to such
matter shall be entitled to one vote for each share of Senior Preferred Stock
held.
(g) Change of Control.
(i) in connection with, and as part of and as a condition to the
effectiveness of, a Change of Control (the date of such occurrence being the
"Change of Control Date"), the Corporation shall redeem the outstanding shares
of Senior Preferred Stock tendered for redemption at a purchase price equal to
the Applicable Redemption Price plus, without duplication, an amount in cash
equal to all accumulated and unpaid dividends thereon (including an amount in
cash equal to a prorated dividend for the period from the immediately preceding
Dividend Payment Date to the Change of Control Payment Date) (the "Change of
Control Purchase Price"), such amount to be payable in cash, and no payment
shall be made to the holders of the Common Stock, Junior Securities or any other
capital stock ranking with regard to dividend rights, rights upon liquidation or
a Change of Control or redemption rights junior to the Senior Preferred Stock
unless such amount is paid in full.
The Corporation shall not participate in any Change of Control or make or
agree to have made any payments to the holders of Junior Securities or shares of
Common Stock or any other class or series of capital stock of the Corporation
ranking in a Change of Control on a parity with the Senior Preferred Stock
unless the holders of Senior Preferred Stock shall have received the full
preferential amount to which they are entitled hereunder in a Change of Control.
(ii) Not less than fifteen (15) days prior to the occurrence of a Change of
Control, the Corporation shall send by first-class mail, postage prepaid, to
each Holder of Senior Preferred Stock, at the address appearing in the register
maintained by the transfer agent for the Senior Preferred Stock, a notice (the
"Change of Control Offer") stating:
(1) that the Change of Control Offer is being made pursuant to this
paragraph (g) and that all of the Senior Preferred Stock tendered will be
accepted for payment, and otherwise subject to the terms and conditions set
forth herein;
(2) the Change of Control Purchase Price and the date proposed for the
Change of Control (which shall be a Business Day no later than 30 days from
the date such notice if mailed);
(3) that any of the Senior Preferred Stock not tendered will continue
to accumulate dividends;
(4) that, unless the Corporation defaults in the payment of the Change
of Control Purchase Price, any of the Senior Preferred Stock accepted for
payment pursuant to the Change of Control Offer shall cease to accumulate
dividends after the Change of Control;
-8-
(5) that Holders accepting the offer to have their Senior Preferred
Stock purchased pursuant to a Change of Control Offer will be required to
surrender their certificates representing the Senior Preferred Stock to the
Corporation, properly endorsed for transfer together with such customary
documents as the Corporation and the transfer agent may reasonably require,
in the manner and at the address specified in the notice prior to the close
of business on the Business Day preceding the Change of Control;
(6) that Holders will be entitled to withdraw their acceptance if the
Corporation receives, not late than the close of business on the third
Business Day preceding the Change of Control, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the number of
shares of Senior Preferred Stock delivered to purchase, and a statement
that such Holder is withdrawing its election to have such Senior Preferred
Stock purchased;
(7) that Holders whose shares of Senior Preferred Stock are being
purchased only in part will be issued new certificates representing the
number of shares of Senior Preferred Stock equal to the unpurchased portion
of the certificates surrendered; and
(8) any other reasonable procedures that a Holder must follow to
accept a Change of Control Offer or effect withdrawal of such acceptance.
(iii) The Corporation will 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 shares of Senior Preferred Stock pursuant
to a Change of Control Offer. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this
paragraph (g), the Corporation will comply with the applicable securities
laws and regulations and will not be deemed to have breached its
obligations under this paragraph (g) by virtue thereof.
(iv) On the Change of Control, the Corporation shall (A) accept for
payment the shares of Senior Preferred Stock validly tendered pursuant to
the Change of Control Offer, (B) mail to the Holders of shares so accepted
the Change of Control Purchase Price therefor in cash and (C) cancel and
retire each surrendered certificate and execute a new certificate
representing that number of shares of Senior Preferred Stock equal to any
unpurchased shares represented by a certificate surrendered. Unless the
Corporation defaults in the payment for the shares of Senior Preferred
Stock, tendered pursuant to the Change of Control Offer, dividends shall
cease to accumulate with respect to the shares of Senior Preferred Stock
tendered and all rights of Holders of such tendered shares shall terminate,
except for the right to receive payment therefor, upon the Change of
Control.
(h) No Avoidance. The Corporation shall not, by amendment to its
Certificate of Incorporation or this Resolution and Certificate Designation (by
way of merger, consolidation, operation of law, or otherwise) or through any
Change of Control or other reorganization, transfer of assets, consolidation,
merger, dissolution, issuance or sale of securities, agreement or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Corporation and shall at
all times in good faith as-
-9-
sist in the carrying out of all the provisions of this Certificate of
Designation and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the holders of the Senior
Preferred Stock against impairment. Any successor to the Corporation shall agree
in writing, as a condition to such succession, to carry out and observe the
obligations of the Corporation hereunder with respect to the Senior Preferred
Stock.
(i) Contractual Rights of Holders. The various provisions set forth herein
for the benefit of the holders of the Senior Preferred Stock shall be deemed
contract rights enforceable by them, including, without limitation, one or more
actions for specific performance.
(j) Conversion or Exchange. The Holders of shares of Senior Preferred Stock
shall not have any rights hereunder to convert such shares into or exchange such
shares for shares of any other class or classes or of any other series of any
class or classes of Capital Stock of the Corporation other than as provided in
this Resolution and Certificate of Designation.
(k) Reissuance of Senior Preferred Stock. Shares of Senior Preferred Stock
that have been issued and reacquired in any manner, including shares purchased
or redeemed or exchanged, shall (upon compliance with any applicable provisions
of the laws of Delaware) have the status of authorized and unissued shares of
Preferred Stock, undesignated as to series and may be redesignated and resissued
as part of any series of Preferred Stock, but in no event shall such shares be
reissued as additional shares of Senior Preferred Stock.
(l) Business Day. If any payment, redemption or exchange shall be required
by the terms hereof to be made on a day that is not a Business Day, such
payment, redemption or exchange shall be made on the immediately succeeding
Business Day.
(m) Payments Subject to Credit Agreement. Notwithstanding anything to the
contrary herein, no payment (whether as a dividend, liquidation preference,
optional or mandatory redemption or otherwise) may be made in cash in respect of
any shares of Senior Preferred Stock unless all obligations under that certain
Credit Agreement dated as of March 9, 2000, among the Corporation, the
Corporation's subsidiaries, the lenders party thereto in their capacities as
lenders thereunder and Wachovia Bank, National Association (as successor to
First Union National Bank), as administrative agent (the "Credit Agreement"),
together with the related documents thereto (including, without limitation, any
guarantee agreements and security documents, including as provided by any
subsidiaries of the Corporation), in each cash 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
Corporation 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 agents, lender or group of
lenders shall have been paid in full in cash or the Credit Agreement shall
permit such payment.
(n) Taxes. The Company shall treat the Senior Preferred Stock as "common
stock" for all federal income tax purposes, including for purposes for Section
305 of the Internal Revenue Code of 1986, as amended.
-10-
(o) Definitions. As used in this Resolution and Certificate of Designation,
the following terms shall have the following meanings (with terms defined in the
singular having comparable meanings when used in the plural and vice versa),
unless the context otherwise requires:
"Affiliate" means, with respect to any specific Person, any other Person
that directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person. For the
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling," "controlled by," and "under common control with"), 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, whether through the ownership of voting securities, by agreement or
otherwise.
"Applicable Redemption Price" means the redemption price at which the
Senior Preferred Stock is optionally redeemable on such date pursuant to
paragraph (e)(i).
"Board of Directors" shall have the meaning provided in the first paragraph
of this Resolution and Certificate of Designation.
"Business Day" means any day except a Saturday, a Sunday, or any day on
which banking institutions in New York, New York or Chicago, Illinois are
required or authorized by law or other governmental action to be closed.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated and whether
or not voting) of corporate stock, partnership or limited liability company
interests or any other participation, right or other interest in the nature of
an equity interest in such Person including, without limitation, Common Stock
and Preferred Stock of such Person, or any option, warrant or other security
convertible into any of the foregoing.
"Certificate of Designation" means this Certificate of Designation creating
the Senior Preferred Stock
"Certificate of Incorporation" shall have the meaning provided in the first
paragraph of this Resolution and Certificate of Designation.
A "Change of Control" of the Corporation will be deemed to have occurred at
such time as
(1) any Person or group of related Persons for purposes of Section
13(d) of the Exchange Act (a "Group"), other than a Permitted Holder,
becomes the beneficial owner (as defined under Rule 13d-3 or any successor
rule or regulation promulgated under the Exchange Act, except that a Person
shall be deemed to have "beneficial ownership" of all securities that such
Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time) of more than 50% of the
total voting power of the Corporation's Capital Stock; it being understood
that the Senior Pre-
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ferred Stock shall not be included in any calculation of the voting power
of the Corporation's Capital Stock for purposes of this definition;
(2) there is consummated any sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of all or
substantially all of the assets of the Corporation and its Subsidiaries,
taken as a whole, to any Person or Group, together with any Affiliates
thereof (whether or not otherwise in compliance with the provisions of this
Resolution and Certificate of Designation) other than to the Corporation,
any of its Subsidiaries or the Permitted Holders;
(3) there is consummated any merger or consolidation of the
Corporation with or into another corporation (with respect to which less
than a majority of the outstanding voting power of the surviving or
consolidated corporation immediately following such event is held by
persons or entities who were stockholders of the Corporation immediately
prior to such event); or
(4) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of the
Corporation (together with any new directors whose election by such Board
of Directors whose nomination for election by the shareholders of the
Corporation has been approved by a majority of the directors then still in
office who either were directors at the beginning of such period or whose
election or recommendation for election was previously so approved) cease
to constitute a majority of the Board of Directors of the Corporation.
"Change of Control Date" shall have the meaning provided in paragraph
(g)(i).
"Change of Control Offer" shall have the meaning provided in paragraph
(g)(i).
"Change of Control Purchase Price" shall have the meaning provided in
paragraph (g)(i).
"Commission" means the United States Securities and Exchange Commission.
"Common Stock" of any Person means all Capital Stock of such Person that is
generally entitled to
(1) vote in the election of directors of such Person; or
(2) if such Person is not a corporation, vote or otherwise participate
in the selection of the governing body, partners, managers or others that
will control the management and policies of such Person.
"Corporation" shall have the meaning provided in the first paragraph of
this Certificate of Designation.
"Credit Agreement" shall have the meaning provided in paragraph (m).
"Dividend Payment Date" means June 1 and December 1 of each year.
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"Dividend Period" means the Initial Dividend Period and, thereafter, each
semi-annual period from a Dividend Payment Date to the next following Dividend
Payment Date (but without including such Dividend Payment Date).
"Dividend Record Date" means May 15 and November 15 of each year.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Holder" means a holder of shares of Senior Preferred Stock as reflected in
the register maintained by the transfer agent for the Senior Preferred Stock.
"Initial Dividend Period" means the dividend period commencing on the Issue
Date and ending on the first Dividend Payment Date to occur thereafter.
"Issue Date" means December 18, 2003.
"Junior Securities" shall have the meaning provided in paragraph (b).
"Liquidation Preference" shall have the meaning provided in paragraph (a).
"Parity Securities" shall have the meaning provided in paragraph (b).
"Permitted Holders" means (a)(i) Transportation Investment Partners,
L.L.C., (ii) Caravelle Investment Fund, L.L.C., (iii) Albion Alliance Mezzanine
Fund, L.P., (iv) Albion Alliance Mezzanine Fund II, L.P., (v) Trimaran Fund II,
L.L.C., (vi) any Affiliate of any Person named in clauses (a)(i) through (a)(v)
(collectively, the "Institutional Investors") and (vii) with respect to any
Institutional Investor, any person managed by such Institutional Investor or any
of its Affiliates (other than their other portfolio companies) and (b)(i) Thomas
B. Begel, (ii) Andrew Weller, (iii) Camillo M. Santomero III, (iv) James D.
Cirar and (v) Persons that are wholly-owned by the individuals named in clauses
(b)(i) through (b)(iv) above.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government (including any agency or political subdivision
thereof).
"Preferred Stock" means any Capital Stock of a Person, however designated,
which entitles the holder thereof to a preference with respect to dividends,
distributions or liquidation proceeds of such Person over the holders of other
Capital Stock issued by such Person.
"Redemption Date", with respect to any shares of Senior Preferred Stock are
redeemed by the Corporation.
"Redemption Notice" shall have the meaning provided in paragraph (e)(ii).
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"Resolution" shall have the meaning provided in the first paragraph of this
Resolution and Certificate of Designation.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Senior Securities" shall have the meaning provided in paragraph (b).
"Senior Preferred Stock" shall have the meaning provided in paragraph (b).
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IN WITNESS WHEREOF, Transportation Technologies Industries, Inc., has
caused this Resolution and Certificate of Designation to be signed by a duly
authorized officer this 19th day of December, 2003.
TRANSPORTATION TECHNOLOGIES INDUSTRIES, INC.
By /s/ Donald C. Mueller
--------------------------------------
Name: Donald C. Mueller
Title: Chief Financial Officer
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CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF DESIGNATION OF THE POWERS, PREFERENCES AND
RELATIVE, PARTICIPATING, OPTIONAL AND OTHER SPECIAL RIGHTS OF
14 1/2% SENIOR REDEEMABLE PREFERRED STOCK, SERIES a, AND
QUALIFICATIONS, LIMITATIONS AND RESTRICTIONS THEREOF
Transportation Technologies Industries, Inc. (the "Corporation"), a
corporation organized and existing under and by virtue of the General
Corporation Law of the State Delaware (the "DGCL"), for the purpose of amending
the Corporation's Certificate of Designation of the Powers, Preferences and
Relative, Participating, Optional and Other Special Rights of 14 1/2% Senior
Redeemable Preferred Stock, Series A, and Qualifications, Limitations and
Restrictions Thereof (the "Certificate of Designation") filed pursuant to
Section 151 of the DGCL, hereby certifies, pursuant to Sections 242 and 103 of
the DGCL, as follows:
FIRST: The amendments effected hereby have been duly adopted in accordance
with the provisions of Section 242 of the DGCL.
SECOND: That paragraph (b) of the Certificate of Designation is hereby
amended by adding the following to the end thereof:
"Notwithstanding anything contained herein to the contrary, with respect to
dividends distributions and distributions upon liquidation, winding-up and
dissolution of the Corporation, (i) the Series C Preferred Stock, par value
$0.01 per share, of the Corporation (the "Series C Preferred Stock") shall rank
on a parity with the Senior Preferred Stock and be deemed to be "Parity
Securities," (ii) the Series D Preferred Stock, par value $0.01 per share, of
the Corporation (the "Series D Preferred Stock") shall rank junior to the Senior
Preferred Stock and be deemed to be "Junior Securities" and (iii) and the Series
E Preferred Stock, par value $0.01 per share, of the Corporation (the "Series E
Preferred Stock") shall rank senior to the Senior Preferred Stock and be deemed
to be "Senior Securities." Notwithstanding anything to the contrary herein, no
payment (whether as a dividend, liquidation preference, optional or mandatory
redemption or otherwise) may be made in cash in respect of any shares of Senior
Preferred Stock unless all obligations under that certain Credit Agreement dated
as of March 9, 2000, among the Corporation, the Corporation's subsidiaries, the
lenders party thereto in their capacities as lenders thereunder and Wachovia
Bank, National Association (as successor to First Union National Bank), as
administrative agent (the "Credit Agreement"), together with the related
documents thereto (including, without limitation, any guarantee agreements and
security documents, including as provided by any subsidiaries of the
Corporation), 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 Corporation as
additional borrowers or guarantors thereunder) all or any portion of the
indebtedness under such agreement or any successor or replacement agree-
ment and whether by the same of any other agents, lender or group of lenders
shall have been paid in full in cash or the Credit Agreement shall permit such
payment."
THIRD: A. That the following is added to paragraph (k)(ii)(B) of the
Certificate of Designation:
"(6) The issuance of the Series C Preferred Stock, Series D Preferred Stock
and Series E Preferred Stock and any dividend or distribution on shares of
Senior Preferred Stock or Series E Preferred Stock, or acquisition of, any
shares of Senior Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock or Series E Preferred Stock by the Corporation or any Subsidiary thereof;
(7) The payment of the 2003 SD/PS Transaction Costs and the fees and
expenses incurred in connection with the formation and management of TTI
Securities Acquisition, LLC and Albion/TTI Securities Acquisition, LLC; and
(8) The payment of a monitoring fee to Trimaran Fund II, L.L.C. and Albion
Alliance Mezzanine Fund, L.P. (or their Affiliates) in an annual aggregate
amount not to exceed $300,000 which monitoring fee will be paid in full on or
about December 19, 2003 for fiscal year 2003 and will be permitted to be paid in
equal quarterly installments for subsequent fiscal years, provided that such
quarterly installments may be accrued, but not paid in cash, if a Voting Rights
Triggering Event has occurred and is continuing."
B. That the phrase ", but amounts expended pursuant to clauses (2), (3),
(6), (7) and (8) shall not be included in such calculation" be added at the end
of the first sentence of subparagraph (k)(ii)(C) of the Certificate of
Designation.
FOURTH: That the definition, "Disqualified Capital Stock", in paragraph (l)
of the Certificate of Designation is hereby amended by adding the following at
the end of such definition:
"and (iii) the Series C Preferred Stock, Series D Preferred Stock and
Series E Preferred Stock shall be deemed not to be Disqualified Capital Stock."
FIFTH: That the following definitions be added to paragraph (l) of the
Certificate of Designation:
"2003 Subordinated Debt/Preferred Stock Transactions" shall mean (i) the
filing of certificates of designation by the Corporation to create the Series C
Preferred Stock, the Series D Preferred Stock and Series E Preferred Stock, (ii)
the exchange by certain management shareholders of 80,223 shares of Common Stock
to be transferred to certain holders of Preferred Stock for 14,000 shares of
Series C Preferred Stock to be issued by the Corporation, (iii) the issuance of
42,000 shares of Series D Preferred Stock to the holders of the Common Stock
(other than certain management shareholders) for a purchase price of $4,200,
(iv) the issuance of up to 40,575 shares of Series E Preferred Stock in exchange
for $40,000,000 in principal amount of subordinated debt and up to $575,000 in
accrued PIK interest thereon, (v) the issuance of up to 1,000 shares of Series E
Preferred Stock for a purchase price of $1,000,000, the proceeds of
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which shall prepay up to $1,000,000 in accrued and unpaid cash interest on the
subordinated debt and the remainder, if any, shall pay a portion of the fees and
expenses incurred in connection with the transactions described in clauses (i),
(ii), (iii) and (iv) above and this clause (v) (the "2003 SD/PS Transaction
Costs") and (vi) the payment of up to $2,250,000 in cash in respect of the
portion of the 2003 SD/PS Transaction Costs not paid with the proceeds of the
Series E Preferred Stock described in clause (v) above; provided, however, that
the Company shall have the option to issue additional shares of Series E
Preferred Stock in connection with the other transactions described in clauses
(i) through (vi) above resulting in additional proceeds not to exceed
$4,000,000.
"Series C Preferred Stock" means the Series C Preferred Stock of the
Corporation.
"Series D Preferred Stock" means the Series D Preferred Stock of the
Corporation.
"Series E Preferred Stock" means the Series E Preferred Stock of the
Corporation.
IN WITNESS WHEREOF, the undersigned has made and signed this Certificate of
Amendment this 19th day of December, 2003 and affirms the statements contained
herein as true under penalties of perjury.
TRANSPORTATION TECHNOLOGIES INDUSTRIES, INC.
By: /s/ Donald C. Mueller
---------------------------------------
Name: Donald C. Mueller
Title: Chief Financial Officer
-3-
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF DESIGNATION OF THE POWERS, PREFERENCES AND
RELATIVE, PARTICIPATING, OPTIONAL AND OTHER SPECIAL RIGHTS OF
14 1/2% SENIOR REDEEMABLE PREFERRED STOCK, SERIES A, AND
QUALIFICATIONS, LIMITATIONS AND RESTRICTIONS THEREOF
Transportation Technologies Industries, Inc. (the "Corporation"), a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware (the "DGCL"), for the purpose of
amending the Corporation's Certificate of Designation of the Powers, Preferences
and Relative, Participating, Optional and Other Special Rights of 14 1/2% Senior
Redeemable Preferred Stock, Series A, and Qualifications, Limitations and
Restrictions Thereof (the "Certificate of Designation") filed pursuant to
Section 151 of the DGCL, hereby certifies, pursuant to Sections 242 and 103 of
the DGCL, as follows:
FIRST: The amendments effected hereby have been duly adopted in accordance
with the provisions of Section 242 of the DGCL.
SECOND: That paragraph (k)(ii)(B)(8) of the Certificate of Designation is
hereby amended to replace the reference to "$300,000" with a reference to
"$550,000."
THIRD: That paragraph (k)(iv)(A)(3)(a) of the Certificate of Designation is
hereby amended to replace the reference to "180 days" with a reference to "270
days."
FOURTH: That paragraph (k)(iv)(A)(3)(e) of the Certificate of Designation
is amended to replace the reference to "180th day" with a reference to "270th
day."
FIFTH: That clause (l) of the definition, "Permitted Indebtedness", in
paragraph (l) of the Certificate of Designation is hereby amended and restated
in its entirety as follows:
"(1) Indebtedness of the Company or any Subsidiary incurred pursuant to one
or more Term Loan Facilities not to exceed $250.0 million aggregate principal
amount at any time outstanding, less the amount of any repayments of principal
made since the Amendment Effective Date."
SIXTH: That the definition, "Senior Credit Facility", in paragraph (l) of
the Certificate of Designation is hereby amended and restated in its entirety as
follows:
"Senior Credit Facility" means prior to the Amendment Effective Date, the
Credit Agreement dated as of March 9, 2000, among TTII, TTII's Subsidiaries, the
lenders party thereto in their capacities as lenders thereunder and Canadian
Imperial Bank of Commerce, as syndication agent, First Union National Bank, as
administrative agent, and CIBC World Markets Corp. and First Union Securities,
Inc., as arrangers, together with the related documents thereto (in-
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cluding without limitation, any guarantee agreements and security documents,
including as provided by any Subsidiaries of TTII), and from and after the
Amendment Effective Date, the New Credit Facilities, in each case as such
agreements may be amended (including any amendment and restatement thereof),
supplemented or otherwise modified from time to time, including one or more
agreements extending the maturity of, refinancing, replacing or otherwise
restructuring (including increasing the amount of available borrowings
thereunder (provided that such increase in borrowings is permitted by paragraph
(k)(i)) or adding Subsidiaries of TTII as additional borrowers or guarantors
thereunder) all or any portion of the Indebtedness under such agreement or any
such successor or replacement agreement and whether by the same or any other
agents, lender or group of lenders.
SEVENTH: That the following definitions be added to paragraph (l) of the
Certificate of Designation:
"Amendment Effective Date" shall mean March 16, 2004.
"First Lien Credit Agreement" means the First Lien Secured Credit
Facility, dated as of March 16, 2004, by and among the Company, the lenders
party thereto from time to time and Lehman Brothers Inc., Lehman Commercial
Paper Inc., Wachovia Capital Markets, LLC and Credit Suisse First Boston,
as amended from time to time.
"New Credit Facilities" means the First Lien Credit Agreement together
with the Second Lien Credit Agreement.
"Second Lien Credit Agreement" means the Second Lien Secured Credit
Facility, dated as of March 16, 2004, by and among the Company, the lenders
party thereto from time to time and Lehman Brothers Inc., Lehman Commercial
Paper Inc., Wachovia Capital Markets, LLC and Credit Suisse First Boston,
as amended from time to time.
-2-
IN WITNESS WHEREOF, the undersigned has made and signed this Certificate of
Amendment this 16th day of March, 2004 and affirms the statements contained
herein as true under penalties of perjury.
TRANSPORTATION TECHNOLOGIES INDUSTRIES, INC.
By: /s/ Donald C. Mueller
------------------------------------------
Name: Donald C. Mueller
Title: Vice President and CFO
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