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EXHIBIT 3.10
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
WPC BRANDS, INC.
The undersigned certifies that he is and that at all times here mentioned
has been the duly appointed and acting President of WPC Brands, Inc., formerly
known as Wisconsin Pharmacal Company, Inc. (the "Corporation"), and further
certifies that:
1. The name of the Corporation is WPC Brands, Inc.
2. The Second Amended and Restated Articles of Incorporation set forth
below supersede and take the place of the heretofore existing Amended
and Restated Articles of Incorporation and any amendments thereto
EFFECTIVE APRIL 1, 2000.
3. The Second Amended and Restated Articles of Incorporation of the
Corporation are as follows:
ARTICLE I
NAME
The name of the corporation is WPC Brands, Inc.
ARTICLE II
PURPOSES: EXISTENCE
The purposes for which the corporation is organized are to engage in
any lawful activity within the purposes for which a corporation may be organized
under the Wisconsin Business Corporation Law. The period of existence for the
corporation shall be perpetual.
ARTICLE III
CAPITAL STOCK
3.1 GENERAL. The aggregate number of shares which the corporation
shall have authority to issue, which may be whole or fractional shares, is Five
Million Five Hundred Fifty-Six Thousand Nine Hundred Fifty-Six (5,556,956)
shares, divided into classes and series as follows:
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3.1.1 A class of Five Million Five Hundred Fifty-Five Thousand
Seven Hundred Fifty-Six (5,555,756) shares of Common Stock (the "Common Stock"),
consisting of:
3.1.1.1 Two Million Five Hundred Fifty Thousand One
Hundred (2,550,100) shares of Class A Common Stock, one cent ($.01) par value
per share (the "Class A Common Stock");
3.1.1.2 Two Million Four Hundred Fifty Thousand One
Hundred (2,450,100) shares of Class B Common Stock, one one-thousandth of a cent
($.00001) par value per share (the "Class B Common Stock"); and
3.1.1.3 Five Hundred Fifty-Five Thousand Five Hundred
Fifty-Six (555,556) shares of Class C Common Stock, one cent ($.01) par value
per share (the "Class C Common Stock");
3.1.2 A class of One Thousand Two Hundred (1,200) shares of
Preferred Stock (the "Preferred Stock"), consisting of:
3.1.2.1 Six Hundred Seventy-Two and 55/100 (672.55) shares
of Series A Preferred Stock, one cent ($.01) par value per share (the "Series A
Preferred Stock"); and
3.1.2.2 Five Hundred Twenty-Seven and 45/100 (527.45)
shares of Series B Preferred Stock, one cent ($.01) par value per share (the
"Series B Preferred Stock").
3.2 TERMS OF THE COMMON STOCK. The powers, preferences, rights,
qualifications, limitations and restrictions of the Class A Common Stock, the
Class B Common Stock and the Class C Common Stock shall be identical except as
follows:
3.2.1 LIQUIDATION.
3.2.1.1 LIQUIDATION PREFERENCE OF THE CLASS A COMMON
STOCK. In the case of any Liquidation (as defined below) and subject to the
rights of the holders of the Preferred Stock, the holders of the Class A Common
Stock shall be entitled to receive out of the assets of the corporation in money
or money's worth all declared but unpaid dividends on the Class A Common Stock
(whether in the form of cash or stock) together with the sum of 2745/10,000
Dollars ($0.2745) per share before any of such assets shall be paid or
distributed to holders of the Class B Common Stock or the Class C Common Stock,
and if the assets of the corporation shall be insufficient to pay the holders of
all of the shares of Class A Common Stock then outstanding the entire amounts to
which they may be entitled pursuant hereto, the holders of each outstanding
share of the Class A Common Stock shall share ratably in such assets in
proportion to the amounts which would be payable with respect to the Class A
Common Stock if all amounts payable thereon were paid in full.
3.2.1.2 REMAINING LIQUIDATION PROCEEDS. Upon payment in
full of the amounts described in Section 3.2.1.1, the holders of the Class A
Common Stock, the holders of
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the Class B Common Stock and the holders of the Class C Common Stock shall
share, on a pro rata basis, in any remaining Liquidation proceeds.
3.2.2 VOTING.
3.2.2.1 CLASS A COMMON STOCK AND CLASS B COMMON STOCK. The
holder of each share of Class A Common Stock and the holder of each share of
Class B Common Stock shall be entitled to one (1) vote per share on each matter
on which the shareholders of the corporation vote and shall vote together with
the holders of the Series A Preferred Stock as a single class and voting group,
except as may be required by law.
3.2.2.2 CLASS C COMMON STOCK. The holders of Class C
Common Stock shall not be entitled to any vote on any matter except as may be
required by law.
3.3 TERMS OF THE PREFERRED STOCK. The powers, preferences, rights,
qualifications, limitations and restrictions of the Preferred Stock shall be as
follows:
3.3.1 DIVIDENDS.
3.3.1.1 SERIES A PREFERRED STOCK. Before any dividends
shall be paid or set apart for payment upon the Common Stock, the holders of the
Series A Preferred Stock shall be entitled to receive cumulative dividends at a
per share annual rate equal to the greater of: (A) the aggregate dividend rate
for dividends declared or paid on the Common Stock during any year; or (B) Two
Hundred Forty-Nine and 80/100 Dollars ($249.80). All such dividends shall accrue
on each share of the Series A Preferred Stock from the date of issuance, and
shall be paid quarterly on the last days of March, June, September and December,
commencing on March 31, 1996. All dividends on the Series A Preferred Stock
shall be cumulative so that if the corporation shall not pay any dividend, or
any part thereof, on the shares of Series A Preferred Stock then issued and
outstanding, such deficiency shall thereafter be fully paid before any dividend
shall be paid or set apart for payment on the Common Stock. If the corporation
shall not pay any dividend, or any part thereof, on the Series A Preferred Stock
when due, the unpaid portion of such dividend shall accrue interest at a rate of
six percent (6%) per annum, which shall be due and payable when the unpaid
portion of such dividend is paid. Any interest payment due under the preceding
sentence shall be deemed an accrued but unpaid dividend for purposes hereof.
The corporation may pay all quarterly dividends that accrue on the Series A
Preferred Stock by the issuance of shares of the Series B Preferred Stock. If
the corporation elects to pay any quarterly dividend on the Series A Preferred
Stock by the issuance of shares of Series B Preferred Stock, the corporation
shall, on the first business day after each such dividend payment date, mail to
the holders of the Series A Preferred Stock an appropriate stock certificate
representing that number of shares of the Series B Preferred Stock which is
equal to: (A) the relevant dividend; divided by (B) Four Thousand One Hundred
Sixty-Three and 26/100 Dollars ($4,163.26). The corporation may pay each
quarterly dividend on the Series A Preferred Stock all in cash or all in shares
of the Series B Preferred Stock, but may not pay any quarterly dividend on the
Series A Preferred Stock partly in cash and partly in shares of the Series B
Preferred Stock.
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3.3.1.2 SERIES B PREFERRED STOCK. Before any dividends
shall be paid or set apart for payment upon the Common Stock, the holders of the
Series B Preferred Stock shall be entitled to receive cumulative dividends at a
per share annual rate equal to the greater of: (A) the aggregate dividend rate
for dividends declared or paid on the Common Stock during any year; or (B) Two
Hundred Forty-Nine and 80/100 Dollars ($249.80). All dividends shall accrue on
each share of the Series B Preferred Stock from the date of issuance, and shall
be paid quarterly on the last days of March, June, September and December in
each year, commencing on the quarterly payment date immediately following the
first issuance of any shares of Series B Preferred Stock. All dividends on the
Series B Preferred Stock shall be cumulative so that if the corporation shall
not pay any dividend, or any part thereof, on the shares of Series B Preferred
Stock then issued and outstanding, such deficiency shall thereafter be fully
paid before any dividend shall be paid or set apart for payment on the Common
Stock. If the corporation shall not pay any dividend, or part thereof, on the
Series B Preferred Stock when due, the unpaid portion of such dividend shall
accrue interest at a rate of six percent (6%) per annum, which shall be due and
payable when the unpaid portion of such dividend is paid. Any interest payment
due under the preceding sentence shall be deemed an accrued but unpaid dividend
for purposes hereof.
The corporation may pay all quarterly dividends that accrue on the Series B
Preferred Stock by the issuance of shares of the Series B Preferred Stock. If
the corporation elects to pay any quarterly dividend on the Series B Preferred
Stock by the issuance of shares of Series B Preferred Stock, the corporation
shall, on the first business day after each such dividend payment date, mail to
the holders of the Series B Preferred Stock an appropriate stock certificate
representing that number of shares of the Series B Preferred Stock which is
equal to: (A) the relevant dividend; divided by (B) Four Thousand One Hundred
Sixty-Three and 26/100 Dollars ($4,163.26). The corporation may pay each
quarterly dividend on the Series B Preferred Stock all in cash or all in shares
of Series B Preferred Stock, but may not pay any quarterly dividend on the
Series B Preferred Stock partly in cash and partly in shares of the Series B
Preferred Stock.
3.3.1.3 GENERAL. Any dividend paid upon any Preferred
Stock at a time when any accrued dividends for any prior period are delinquent
shall be expressly declared as a dividend in whole or partial payment of the
accrued dividend for the earliest period for which dividends are then
delinquent, and shall be so designated to each shareholder to whom payment is
made.
All shares of Preferred Stock shall rank equally and shall share ratably,
in proportion to the rate of dividend fixed hereunder in respect to each such
share, in all dividends paid or set aside for payment for any dividend period or
part thereof upon any such shares.
3.3.2 REDEMPTION. The redemption price for each share of the
Preferred Stock shall be Four Thousand One Hundred Sixty-Three and 26/100
Dollars ($4,163.26). Unless waived by the holder thereof, the corporation shall
redeem all of the issued and outstanding shares of the Preferred Stock upon: (i)
Liquidation; (ii) a Change in Control of more than twenty-five percent (25%) of
the Capital Stock (on a fully diluted basis); or (iii) an IPO. Upon any
redemption of shares of the Preferred Stock, the corporation shall pay in cash
all cumulative and unpaid dividends on the shares of the Preferred Stock which
are redeemed. As used herein, the following terms shall have the meanings
specified:
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3.3.2.1 "Capital Stock" shall mean any capital stock of
the corporation or any security or obligation of the corporation which is by its
terms convertible into capital stock of the corporation or any option, warrant,
subscription or other purchase right with respect to capital stock of the
corporation.
3.3.2.2 Except as may otherwise be provided with respect
to any holder in an agreement between the corporation and such holder, "Change
in Control" shall mean any transfer by the holder thereof of such holder's
beneficial ownership interest in Capital Stock.
3.3.2.3 "IPO" shall mean the first sale to the public or
an underwriter for cash of Capital Stock pursuant to a registration statement
filed by the corporation with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, which subjects the corporation to Section 12
of the Securities Exchange Act of 1934, as amended.
3.3.2.4 "Liquidation" shall mean and include: (A) any
voluntary or involuntary liquidation, dissolution of winding up of the
corporation; (B) any sale of all or substantially all of the Capital Stock or
the assets of the corporation; and (C) any merger or consolidation to which the
corporation is a party, whether or not the corporation is the surviving entity
in the transaction.
3.3.3 LIQUIDATION. In the case of any Liquidation (as defined
above), the holders of the Preferred Stock shall be entitled to receive out of
the assets of the corporation in money or money's worth all accrued but unpaid
dividends thereon (whether or not earned or declared and whether in the form of
cash or stock) together with the sum of Four Thousand One Hundred Sixty-Three
and 26/100 Dollars ($4,163.26) per share, before any of such assets shall be
paid or distributed to holders of the Common Stock, and if the assets of the
corporation shall be insufficient to pay the holders of all of the Preferred
Stock then outstanding the entire amounts to which they may be entitled, the
holders of each outstanding share of the Preferred Stock shall share ratably in
such assets in proportion to the amounts which would be payable with respect to
the Preferred Stock if all amounts payable thereon were paid in full.
3.3.4 SINKING FUND. The Preferred Stock shall not be subject or
entitled to the operation of a retirement or sinking fund.
3.3.5 CONVERSION. The Preferred Stock shall not be convertible
into shares of Common Stock or into shares of any other series or class of
Capital Stock.
3.3.6 VOTING.
3.3.6.1 SERIES A PREFERRED STOCK. The holder of each share
of the Series A Preferred Stock shall be entitled to Three Thousand Six Hundred
Forty-Three (3,643) votes per share on each matter on which any holders of
Common Stock vote and shall vote with such holders of Common Stock as a single
class and voting group, except as may be required by law.
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3.3.6.2 SERIES B PREFERRED STOCK. The holders of the
Series B Preferred Stock shall not be entitled to any vote on any matter except
as may be required by law.
ARTICLE IV
PREEMPTIVE RIGHTS
4.1 GENERAL. The holders of Class A Common Stock and the holders of
Preferred Stock shall have the full preemptive right to participate in any
issuance by the corporation of any Common Stock or any Preferred Stock in
connection with any Preemptive Event (as defined below). The corporation shall
notify the holders of Class A Common Stock and the holders of Preferred Stock of
such right at least thirty (30) calendar days prior to the occurrence of a
Preemptive Event (as defined below) and the holders of Class A Common Stock and
the holders of Preferred Stock shall then each have the right and option to
purchase all, but not less than all, of the Holder's Share of the Preemptive
Shares (each as defined below) by written notice to the corporation.
4.2 DEFINITIONS. As used herein, the following terms shall have the
meanings specified:
4.2.1 "Holder" shall mean either the holder of Class A Common
Stock or the holder of Preferred Stock for which a Holder's Percentage is being
calculated.
4.2.2 "Holder's Percentage" shall mean that percentage
calculated by dividing: (A) the number of shares of Common Stock (in the case of
an issuance of additional Common Stock) or Preferred Stock (in the case of an
issuance of additional Preferred Stock) held by the Holder, together with all
shares of Common Stock (in the case of an issuance of additional Common Stock)
or Preferred Stock (in the case of an issuance of additional Preferred Stock)
issuable to the Holder upon exercise or conversion of all options, warrants or
convertible securities owned by the Holder (excluding for purposes of this
calculation this option for Preemptive Shares) as if such options, warrants and
convertible securities had been exercised or converted; by (B) the number of all
shares of Common Stock (in the case of an issuance of additional Common Stock)
or Preferred Stock (in the case of an issuance of additional Preferred Stock)
then issued and outstanding together with all shares of Common Stock (in the
case of an issuance of additional Common Stock) or Preferred Stock (in the case
of an issuance of additional Preferred Stock) issuable upon exercise or
conversion of all options, warrants or convertible securities (excluding for
purposes of this calculation the Preemptive Shares) as if such options, warrants
and convertible securities had been exercised or converted.
4.2.3 "Holder's Share" shall mean that number of the Preemptive
Shares which is calculated by multiplying the Holder's Percentage by the number
of Preemptive Shares.
4.2.4 "Preemptive Event" shall mean the issuance of any Common
Stock or Preferred Stock by the corporation, except: (A) upon the closing of an
IPO (as defined above); (B) an issuance of Class C Common Stock; or (C) as
otherwise agreed to by the Holder.
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4.2.5 "Preemptive Shares" shall mean any shares of the Common
Stock or of the Preferred Stock of the corporation issued in a Preemptive Event.
ARTICLE V
REGISTERED OFFICE AND AGENT
The address of the registered office of the corporation is 411 EAST
WISCONSIN AVENUE, SUITE 2550, MILWAUKEE, WISCONSIN 53202-4497 and the name of
its registered agent at such address is LAWDOCK, INC.
ARTICLE VI
BOARD OF DIRECTORS
The number of directors constituting the Board of Directors shall be
fixed by, or in the manner provided in, the Bylaws of the corporation, but in no
case shall such number be less that one(1).
* * * * *
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4. These Second Amended and Restated Articles of Incorporation
contain certain amendments to the Corporation's existing Amended
and Restated Articles of Incorporation which require shareholder
approval for adoption. These Second Amended and Restated Articles
of Incorporation were adopted by written consent of all the
Corporation's shareholders in accordance with the requirements of
Sections 180.1003 and 180.1004 of Wisconsin Business Corporation
Law on March 29, 2000.
WPC BRANDS, INC.
By: /s/ James B. Burt
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James B. Burt, President
This document was drafted by:
Kathryn M. Buono
Quarles & Brady LLP
411 East Wisconsin Avenue
Milwaukee, Wisconsin 53202-4497
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