EXHIBIT 3.3
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NUMBER SHARES
**4** **100**
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TOTAL CONTAINMENT, INC.
SERIES A FLOATING RATE PREFERRED STOCK
THE SHARES PRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
PURPOSES ONLY AND MAY NOT BE TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") SHALL HAVE BECOME
EFFECTIVE WITH RESPECT THERETO OR (ii) RECEIPT BY THE ISSUER OF AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE ISSUER TO THE EFFECT THAT REGISTRATION
UNDER THE ACT IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED TRANSFER IS NOT
IN VIOLATION OF ANY APPLICABLE STATE SECURITIES LAWS. THIS LEGEND SHALL BE
ENDORSED UPON ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE.
This Certifies that Finloc, Inc. is the
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registered holder of One Hundred - - - - - - - Shares of
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SERIES A FLOATING RATE PREFERRED STOCK HAVING THE PREFERENCE AND RIGHTS SET
FORTH IN THE STATEMENT WITH RESPECT TO SHARES AND EXHIBITS THERETO FILED WITH
THE SECRETARY OF STATE OF THE COMMONWEALTH OF PENNSYLVANIA ON MARCH , 1998,
A COPY OF WHICH IS ATTACHED HERETO.
transferable only on the books of the Corporation by the holder hereof in person
or by Attorney upon surrender of this Certificate properly endorsed.
In Witness Whereof, the said Corporation has caused this Certificate to be
signed by its duly authorized officers and its Corporate Seal to be hereunto
affixed this _____________________day of March A.D. 1998.
TOTAL CONTAINMENT, INC.
By /s/ Pierre Desjardins
----------------------------
Pierre Desjardins
Chairman, President and CEO
[CERTIFICATE SEAL APPEARS HERE]
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NUMBER SHARES
**2** **100**
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TOTAL CONTAINMENT, INC.
SERIES A FLOATING RATE PREFERRED STOCK
THE SHARES PRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
PURPOSES ONLY AND MAY NOT BE TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") SHALL HAVE BECOME
EFFECTIVE WITH RESPECT THERETO OR (ii) RECEIPT BY THE ISSUER OF AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE ISSUER TO THE EFFECT THAT REGISTRATION
UNDER THE ACT IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED TRANSFER IS NOT
IN VIOLATION OF ANY APPLICABLE STATE SECURITIES LAWS. THIS LEGEND SHALL BE
ENDORSED UPON ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE.
This Certifies that Finloc, Inc. is the
----------------------------------
registered holder of One Hundred - - - - - - - Shares of
----------------------------------
SERIES A FLOATING RATE PREFERRED STOCK HAVING THE PREFERENCE AND RIGHTS SET
FORTH IN THE STATEMENT WITH RESPECT TO SHARES AND EXHIBITS THERETO FILED WITH
THE SECRETARY OF STATE OF THE COMMONWEALTH OF PENNSYLVANIA ON MARCH , 1998,
A COPY OF WHICH IS ATTACHED HERETO.
transferable only on the books of the Corporation by the holder hereof in person
or by Attorney upon surrender of this Certificate properly endorsed.
In Witness Whereof, the said Corporation has caused this Certificate to be
signed by its duly authorized officers and its Corporate Seal to be hereunto
affixed this _____________________day of March A.D. 1998.
---------- ------
TOTAL CONTAINMENT, INC.
By /s/ Pierre Desjardins
----------------------------
Pierre Desjardins
Chairman, President and CEO
[CERTIFICATE SEAL APPEARS HERE]
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NUMBER SHARES
**3** **100**
-----------------------------------------------------------------
TOTAL CONTAINMENT, INC.
SERIES A FLOATING RATE PREFERRED STOCK
THE SHARES PRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
PURPOSES ONLY AND MAY NOT BE TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") SHALL HAVE BECOME
EFFECTIVE WITH RESPECT THERETO OR (ii) RECEIPT BY THE ISSUER OF AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE ISSUER TO THE EFFECT THAT REGISTRATION
UNDER THE ACT IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED TRANSFER IS NOT
IN VIOLATION OF ANY APPLICABLE STATE SECURITIES LAWS. THIS LEGEND SHALL BE
ENDORSED UPON ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE.
This Certifies that Finloc, Inc. is the
----------------------------------
registered holder of One Hundred - - - - - - - Shares of
----------------------------------
SERIES A FLOATING RATE PREFERRED STOCK HAVING THE PREFERENCE AND RIGHTS SET
FORTH IN THE STATEMENT WITH RESPECT TO SHARES AND EXHIBITS THERETO FILED WITH
THE SECRETARY OF STATE OF THE COMMONWEALTH OF PENNSYLVANIA ON MARCH , 1998,
A COPY OF WHICH IS ATTACHED HERETO.
transferable only on the books of the Corporation by the holder hereof in person
or by Attorney upon surrender of this Certificate properly endorsed.
In Witness Whereof, the said Corporation has caused this Certificate to be
signed by its duly authorized officers and its Corporate Seal to be hereunto
affixed this _____________________day of _________________ A.D._______.
TOTAL CONTAINMENT, INC.
By /s/ Pierre Desjardins
----------------------------
Pierre Desjardins
Chairman, President and CEO
[CERTIFICATE SEAL APPEARS HERE]
================================================================================
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NUMBER SHARES
**4** **100**
-----------------------------------------------------------------
TOTAL CONTAINMENT, INC.
SERIES A FLOATING RATE PREFERRED STOCK
THE SHARES PRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
PURPOSES ONLY AND MAY NOT BE TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") SHALL HAVE BECOME
EFFECTIVE WITH RESPECT THERETO OR (ii) RECEIPT BY THE ISSUER OF AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE ISSUER TO THE EFFECT THAT REGISTRATION
UNDER THE ACT IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED TRANSFER IS NOT
IN VIOLATION OF ANY APPLICABLE STATE SECURITIES LAWS. THIS LEGEND SHALL BE
ENDORSED UPON ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE.
This Certifies that Finloc, Inc. is the
----------------------------------
registered holder of One Hundred - - - - - - - Shares of
----------------------------------
SERIES A FLOATING RATE PREFERRED STOCK HAVING THE PREFERENCE AND RIGHTS SET
FORTH IN THE STATEMENT WITH RESPECT TO SHARES AND EXHIBITS THERETO FILED WITH
THE SECRETARY OF STATE OF THE COMMONWEALTH OF PENNSYLVANIA ON MARCH , 1998,
A COPY OF WHICH IS ATTACHED HERETO.
transferable only on the books of the Corporation by the holder hereof in person
or by Attorney upon surrender of this Certificate properly endorsed.
In Witness Whereof, the said Corporation has caused this Certificate to be
signed by its duly authorized officers and its Corporate Seal to be hereunto
affixed this _____________________day of _________________ A.D._______.
TOTAL CONTAINMENT, INC.
By /s/ Pierre Desjardins
----------------------------
Pierre Desjardins
Chairman, President and CEO
[CERTIFICATE SEAL APPEARS HERE]
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STATEMENT WITH RESPECT TO SHARES-DOMESTIC BUSINESS CORPORATION
DSCB: 15-1522
In compliance with the requirements of 54 Pa. C.S. 1522(b) (relating to
statement with respect to shares), the undersigned corporation, desiring to
state the designation and voting rights, preferences, limitations, and special
rights, if any, of a class or series of its shares, hereby states that:
1. The name of the corporation is: TOTAL CONTAINMENT, INC.
2. The resolution amending the Articles under 15 Pa. C.S. 1522(b) is set forth
in full in Attachment A appended hereto and made a part hereof.
3. The aggregate number of shares of such class or series established and
designated by (a) such resolution, (b) all prior statements, if any, filed
under 15 Pa. C.S. 1522 with respect thereto, and (c) any other provision
of the Articles is 400 shares.
4. The resolution was adopted by the Board of Directors or an authorized
committee thereof on February 20, 1998.
5. The resolution shall be effective upon the filing of this statement with
respect to shares in the Department of State.
IN TESTIMONY WHEREOF, the undersigned corporation has caused this
statement to be signed by a duly authorized officer thereof this 5th day of
March, 1998.
TOTAL CONTAINMENT, INC.
By: /s/ Pierre Desjardins
-------------------------------
Pierre Desjardins
Chairman, President & CEO
Attachment A
TOTAL CONTAINMENT, INC.
Resolutions with Respect to
Series A Floating Rate Preferred Stock
of Total Containment, Inc.
RESOLVED, that pursuant to authority vested in the Board of Directors by
Article SIXTH of the Articles of Incorporation, this Board of Directors hereby
authorizes the issuance of a series of Preferred Stock of Total Containment,
Inc. (the "Company") and hereby fixes the designation and the terms and
conditions and relative rights and preferences thereof, in addition to those set
forth in the Articles of Incorporation, as follows:
1. Designation of Series. The distinctive designation of this series of
---------------------
Preferred Stock shall be as follows: "Series A Floating Rate Preferred Stock."
The Series A Floating Rate Preferred Stock does not have par value. Each share
of the Series A Floating Rate Preferred Stock shall be identical in all respects
with the other shares of Series A Floating Rate Preferred Stock.
2. Number of Shares. The number of authorized shares of Series A
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Floating Rate Preferred Stock shall initially be four hundred (400). Shares of
the Series A Floating Rate Preferred Stock that are redeemed, purchased or
otherwise acquired by the Corporation may be reissued and the foregoing number
of authorized shares shall not be reduced by the number of shares of the Series
A Floating Rate Preferred Stock which are redeemed, purchased or otherwise
acquired by the Corporation.
3. Stated Value. Each share of Series A Floating Rate Preferred Stock
------------
shall have a "Stated Value" of Ten Thousand Dollars ($10,000) per share.
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4. Dividends.
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(a) The holders of shares of Series A Floating Rate Preferred Stock
shall be entitled to receive, as and if declared by the Board of Directors of
the Company, out of any funds legally available for the purpose, dividends which
accrue under this Paragraph 4, which shall be paid quarterly in arrears, on the
fifteenth day of each April, July, October, and January, with respect to the
preceding calendar quarter.
(b) The shares of Series A Floating Rate Preferred Stock shall accrue
dividends upon the Stated Value of such shares at a rate equal to the "Reference
Rate" (as hereinafter defined) as in effect on the first day of the second month
of each calendar quarter. However, if from time to time any accrued dividends
have not been timely paid in accordance with this Paragraph 4 and are in
arrears, then the shares of Series A Floating Rate Preferred Stock shall accrue
dividends upon the Stated Value of such shares at the "Arrearage Rate" (as
hereinafter defined) as in effect on the first day of each calendar quarter,
provided, that the Arrearage Rate shall apply from the date from which dividends
become in arrears until all dividends then due and owing have been paid. Accrued
dividends shall be calculated and paid upon the basis of a 360 day year and
equal calendar quarters of 90 days each.
(c) Unpaid dividends shall cumulate. No interest, or sum of money in
lieu of interest, shall be payable in respect of any dividend payment or
payments which may be in arrears.
(d) No cash dividend or other cash distribution shall be declared or
paid on shares of common stock or on other stock of the Corporation ranking
junior to the Series A Floating Rate Preferred Stock in the payment of dividends
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unless and until all accrued and unpaid Series A Floating Rate Preferred Stock
dividends have been concurrently declared and concurrently paid.
5. Reference Rate, etc. The "Reference Rate" shall be the rate of
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interest per annum which the Company does pay (or, if no amounts are
outstanding, would pay) on the Company's line of credit borrowings from its
commercial bank (CoreStates Bank, N.A. on the date hereof) determined from time
to time on the relevant dates specified in Paragraph 4, above. The "Arrearage
Rate" shall be equal to the Reference Rate as in effect on the relevant date
plus one-half of one percent (0.5%). The full text of the Company's credit
agreement with CoreStates Bank, N.A. is on file (and the full text of any future
relevant credit agreement shall be on file) at the principal place of business
of the Company at A130 North Drive, Oaks, Pennsylvania, 19456, and relevant
portions thereof will be provided, on request and without cost, to any
shareholder.
6. Liquidation Rights.
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(a) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company, the holders of the Series A Floating
Rate Preferred Stock shall be entitled to receive, before any payment in regard
to or distribution of the assets of the Company shall be made to or set apart
for any class or classes of common stock or other stock of the Company ranking
junior to the Series A Floating Rate Preferred Stock in the distribution of
liquidation proceeds, an amount equal to the Stated Value per share, plus an
amount equal to all dividends accrued and unpaid thereon to the date of final
distribution to such holders; but such holders shall be entitled to no further
payments whatsoever.
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(b) None of the following shall be considered a liquidation,
dissolution or winding up of the Company within the meaning of this Paragraph 6:
(i) a consolidation or merger of the Company with or into any
other corporation;
(ii) a merger of any other corporation into the Company;
(iii) a reorganization of the Company;
(iv) the purchase or redemption of all or part of the
outstanding shares of any class or series of the Company;
(v) a sale or transfer of all or any part of the assets of the
Company;
(vi) a share exchange to which the Company is a party; or
(vii) a division of the Company.
7. No Conversion. The holders of Series A Floating Rate Preferred Stock
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shall not have the right to convert such stock into any other shares, whether
common stock or other stock ranking senior or junior to the Series A Floating
Rate Preferred Stock.
8. Redemption.
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(a) Right to Redeem. Subject to the limitations set forth in this
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Paragraph 8(a), the Company may in its sole and absolute discretion at any time
and from time to time redeem some or all outstanding shares of Series A Floating
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Rate Preferred Stock at a redemption price equal to the Stated Value per share
plus any accrued and unpaid dividends thereon to the redemption date. Redemption
shall be made following notice given as hereinafter specified. The redemption
price shall be payable in cash. The Company may effect a redemption of some or
all outstanding shares of Series A Floating Rate Preferred Stock only if:
(i) after giving effect to the redemption, the Company's net
tangible assets (which for purposes hereof shall mean the Company's total assets
minus its total liabilities and goodwill) is equal to or greater than Four
Million Five Hundred Thousand Dollars ($4,500,000) at the end of any fiscal
quarter; or
(ii) such redemption shall have been approved by the
affirmative vote of at least a majority of the members of the audit committee of
the Company's Board of Directors who (i) are not employees or officers of the
Company, (ii) are independent of the holders of Series A Floating Rate Preferred
Stock and, (iii) who have no financial or beneficial interest in the Series A
Floating Rate Preferred Stock or in the redemption thereof; and
(iii) Such redemption shall have been evidenced by a
resolution, certified as true and correct by the appropriate officer of the
Company.
(b) Notice. Notice of every redemption of shares of Series A
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Floating Rate Preferred Stock shall be mailed by first class mail, postage
prepaid, addressed to the holders of record of the shares to be redeemed at
their respective last addresses as they shall appear on the books of the
Corporation. Such mailing shall be at least 5 days prior to the redemption date;
but failure to mail such notice or any defect therein or in the mailing thereof
shall not affect the
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validity of the proceeding for the redemption of any shares to be redeemed. The
notice of redemption shall state: (i) the redemption date ("Redemption Date")
determined by the Board of Directors of the Company in compliance with
subparagraph (a); (ii) the amount of accrued and unpaid dividends on each share
and the amount of the redemption price; (iii) that on the Redemption Date the
redemption price plus the amount of accrued but unpaid dividends will become due
and payable upon each share as of the close of business on the business day
prior to such Redemption Date; and (iv) the place or places where certificates
representing the shares to be redeemed are to be surrendered for payment of the
redemption price.
(c) Deposit of Funds. If notice of redemption shall have been duly
----------------
given, and if on or before the Redemption Date specified therein the Company
shall have deposited the funds necessary for such redemption with a Qualified
Institution (as defined below) in trust for the pro rata benefit of the holders
of the shares called for redemption, then, notwithstanding that any certificates
for shares so called for redemption shall not have been surrendered for
cancellation, and after the Redemption Date, all shares so called for redemption
shall no longer be deemed to be outstanding and all other rights with respect to
such shares shall forthwith cease and terminate, except only the right of the
holders thereof to receive from such Qualified Institution at any time after the
Redemption Date the funds so deposited. Any interest accrued on such funds and
not necessary to pay for shares redeemed shall be paid to the Corporation from
time to time. Any funds so set aside or deposited, as the case may be, and
unclaimed at the end of two years from the applicable Redemption Date shall, to
the extent permitted by law, shall be released or repaid to the Company, after
which repayment the holders of the shares so called for redemption shall look
only to the Company for payment thereof. "Qualified Institution" means a bank or
trust company organized and in
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good standing under the laws of the United States of America or of the State of
Pennsylvania, shall be doing business in Pennsylvania, shall have capital,
surplus and undivided profits aggregating at least $25,000,000 according to its
last published statement of condition, and shall be identified in the notice of
redemption.
(d) Certain Amendments Prohibited. The provisions of Paragraph 8(a)
-----------------------------
hereof shall not be amended or superseded, unless such amendment shall have been
approved by the affirmative vote of at least a majority of the members of the
audit committee of the Company's Board of Directors who (i) are not employees or
officers of the Company, (ii) are independent of the holders of Series A
Floating Rate Preferred Stock, and (iii) have no financial or beneficial
interest in the Series A Floating Rate Preferred Stock or in the redemption
thereof. The provisions of Paragraph 8(d) hereof, which specify the manner in
which Paragraph 8(a) hereof shall be amended, constitute a covenant between the
Company, the holders of the Company's common stock, and the holders of the
Series A Floating Rate Preferred Stock.
9. Voting. The shares of Series A Floating Rate Preferred Stock shall have
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no voting rights whatsoever.
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