EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
AEROSOL SERVICES HOLDING CORPORATION
A STOCK CORPORATION
I, the undersigned, for the purpose of incorporating and organizing
a corporation under the General Corporation Law of the State of Delaware, do
hereby certify as follows:
FIRST: The name of the corporation (the "Corporation") is Aerosol
Services Holding Corporation.
SECOND: The address of the Corporation's registered office in the
State of Delaware is 1013 Centre Road, City of Wilmington, County of New
Castle, Delaware 19805. The name of the Corporation's registered agent at
such address is Corporation Service Corporation.
THIRD: The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: The total number of shares which the Corporation shall
have authority to issue is 1,000 shares of Common Stock, par value of $.001
per share.
FIFTH: Elections of directors need not be by written ballot except
and to the extent provided in the by-laws of the Corporation.
SIXTH: To the full extent permitted by the General Corporation Law
of the State of Delaware or any other applicable laws presently or hereafter
in effect, no director of the Corporation shall be personally liable to the
Corporation or its stockholders for or with respect to any acts or omissions
in the performance of his or her duties as a director of the Corporation.
Any repeal or modification of this Article Sixth shall not adversely affect
any right or protection of a director of the Corporation existing immediately
prior to such repeal or modification.
SEVENTH: Each person who is or was or had agreed to become a
director or officer of the corporation, or each such person who is or was
serving or who had agreed to serve at the request of the Board of Directors
or an officer of the Corporation as an employee or agent of the Corporation
or as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise (including the heirs,
executors, administrators or estate of such person), shall be indemnified by
the Corporation to the full extent permitted by the General Corporation Law
of the State of Delaware or any other applicable laws as presently or
hereafter in effect. Without limiting the generality or the effect of the
foregoing, the Corporation may enter into one or more agreements with any
person which provide for indemnification greater or different than that
provided in this Article.
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Any repeal or modification of this Article Seventh shall not adversely affect
any right or protection existing hereunder immediately prior to such repeal
or modification.
EIGHTH: In furtherance and not in limitation of the rights,
powers, privileges, and discretionary authority granted or conferred by the
General Corporation Law of the State of Delaware or other statutes or laws of
the State of Delaware, the Board of Directors is expressly authorized to
make, alter, amend or repeal the by-laws of the Corporation, without any
action on the part of the stockholders, but the stockholders may make
additional by-laws and may alter, amend or repeal any by-law whether adopted
by them or otherwise. The Corporation may in its by-laws confer powers upon
its Board of Directors in addition to the foregoing and in addition to the
powers and authorities expressly conferred upon the Board of Directors by
applicable law.
NINTH: The Corporation reserves the right at any time and from
time to time to amend, alter, change or repeal any provision contained in
this Certificate of Incorporation, and other provisions authorized by the
laws of the State of Delaware at the time in force may be added or inserted,
in the manner now or hereafter prescribed herein or by applicable law; and
all rights, preferences and privileges of whatsoever nature conferred upon
stockholders, directors or any other
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persons whomsoever by and pursuant to this Certificate of Incorporation in
its present form or as hereafter amended are granted subject to this
reservation.
TENTH: The name and mailing address of the incorporator is
Catherine A. Treinen, 2603 Main Street, Suite 900, Irvine, California 92714.
ELEVENTH: The names and mailing addresses of the persons who are
to serve as directors of the Corporation until the first annual meeting of
stockholders or until their successors are elected and qualified are as
follows:
NAME MAILING ADDRESS
---- ---------------
John H. Morris 620 Newport Center Drive
Suite 1400
Newport Beach, California 92660
Michael S. Gordon 620 Newport Center Drive
Suite 1400
Newport Beach, California 92660
IN WITNESS WHEREOF, I the undersigned, being the incorporator
hereinabove named, do hereby execute this Certificate of Incorporation this
9th day of November, 1993.
/s/ Catherine A. Treinen
-------------------------------
Catherine A. Treinen
4
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
AEROSOL SERVICES HOLDING CORPORATION
Aerosol Services Holding Corporation, a Delaware corporation,
pursuant to Section 241 of the General Corporation Law of Delaware, hereby
certifies on February 14, 1994, that:
FIRST: The Corporation has not received any payment for any of its
stock.
SECOND: The elected directors of the Corporation have adopted the
following resolution amending the Corporation's Certificate of Incorporation:
FOURTH: The corporation is authorized to issue 1,000,000 shares of
common stock, par value of $.001 per share ("Common Stock") and 30,000 shares
of preferred stock, par value of $.001 per share ("Preferred Stock").
The rights, preferences, privileges and restrictions granted to and
imposed upon Preferred Stock are set forth below in this Article Fourth.
Section 1. DIVIDENDS.
(a) DIVIDENDS. The holders of Preferred Stock shall be entitled to
receive, out of any assets at the time legally available therefor and when
and as declared by the Board of Directors, noncumulative dividends ("Current
Dividends") in cash equal to Two Dollars and Fifty Cents ($2.50) per share
per quarter, and no more, accruing from the date of issuance and payable
quarterly commencing on March 30, 1994 and thereafter on the 30th day of each
June, September, December and March (each a "Dividend Payment Date"). If
Current Dividends are not declared and paid with respect to any Dividend
Payment Date on or before the tenth
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day following such Dividend Payment Date, then in lieu of Current Dividends
with respect to such Dividend Payment Date, the holders of Preferred Stock
shall be entitled to receive, out of any assets at the time legally available
therefor and when and as declared by the Board of Directors, cumulative
dividends ("Deferred Dividends") in cash equal to Three Dollars and
Twenty-Five Cents ($3.25) per share, and no more, for the quarter preceding
such Dividend Payment Date, which Deferred Dividends until paid shall be
increased on each subsequent Dividend Payment Data by (i) Two and One-Half
Percent (2.5%) if Current Dividends and all Deferred Dividends are paid with
respect to such subsequent Dividend Payment Date or (ii) Three and
One-Quarter percent (3.25%) if Current Dividends and all Deferred Dividends
are not paid with respect to such subsequent Dividend Payment Date. If any
partial payment is made with respect to Current Dividends and Deferred
Dividends, such payment shall first be applied to Deferred Dividends. If the
Preferred Stock is not outstanding on each day during any quarter, then
dividends accrued or payable for such quarter shall be reduced
proportionately based on the number of days during such quarter in which the
Preferred Stock is outstanding. All Current Dividends and Deferred Dividends
are prior and in preference to any declaration or payment or any distribution
(as defined in Section 1(b) below) on Common Stock. Current Dividends shall
accrue on each share of Preferred Stock from day to day only until the next
Dividend Payment Date. Deferred Dividends shall accrue on each share of
Preferred Stock from day to day from the applicable Dividend Payment Date
until paid. Until all accrued dividends on Preferred Stock have been paid,
or declared and set apart, no distribution shall be paid on, or declared and
set apart for, any Common Stock.
(b) DISTRIBUTION. The term "distribution" as used in this Section 1
means the transfer of cash or property without consideration, whether by way
of dividend or otherwise, payable other than in common Stock, or the purchase
or redemption of shares of the corporation (other than redemptions set forth
in Section 3 below or repurchases of Common Stock held by employees of the
corporation or any of its subsidiaries upon termination of their employment
pursuant to agreements providing for such repurchase) for cash or property.
Section 2. LIQUIDATION RIGHTS.
(a) PREFERRED STOCK PREFERENCE. In the event of any liquidation,
dissolution or winding up of the corporation, whether voluntary or
involuntary, the holders of Preferred Stock shall be entitled to be paid out
of the assets of the corporation available for distribution to its
stockholders, whether such assets are capital, surplus
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or earnings, before any payment or declaration and setting apart for payment
of any amount shall be made in respect of Common Stock, an amount equal to
One Hundred Dollars ($100.00) per share, plus an amount equal to all accrued
and unpaid dividends thereon. If upon any liquidation, dissolution, or
winding up of the corporation, whether voluntary or involuntary, the assets
to be distributed to the holders of Preferred Stock shall be insufficient to
permit the payment to such stockholders of the full preferential amounts
stated above, then all of the assets of the corporation to be distributed
shall be distributed among the holders of Preferred Stock in proportion to
the number of shares of Preferred Stock then held by them.
(b) COMMON STOCK PAYMENT OR DISTRIBUTION. After the payment or
distribution to the holders of Preferred Stock of the full preferential
amounts required by subsection 3(a) and if any assets remain in the
corporation, the holders of Common Stock then outstanding shall be entitled
to a payment or distribution of the remaining assets of the corporation.
(c) MERGER. CONSOLIDATION OR SALE OF ASSETS. The merger or
consolidation of the corporation into or with another corporation in which
the corporation shall not survive and the stockholders of the corporation
immediately prior to such transaction shall own less than fifty percent of
the voting stock of the surviving corporation, and the sale, transfer or
lease (but not including a transfer or lease by pledge or mortgage to a bona
fide lender or a transfer by or in connection with a foreclosure by a bona
fide lender) of all or substantially all of the assets of the corporation,
shall be deemed to be a liquidation, dissolution or winding up of the
corporation as those terms as used in this Section 2.
Section 3. REDEMPTION OF PREFERRED STOCK.
(a) OPTIONAL REDEMPTION. At any time after February 14, 1999
[five years after the issuance date] and upon not less than five days prior
notice to holders of Preferred Stock, the corporation may, at the option of
the Board of Directors, redeem all or part of the outstanding shares of
Preferred Stock at a redemption price equal to One Hundred Dollars ($100.00)
per share, together with all accrued and unpaid dividends to and including
the redemption date (the "Redemption Price"). Such notice to a holder of
Preferred Stock (the "Redemption Notice") shall specify the date of
redemption, the Redemption Price and the number of shares of Preferred Stock
of such holder to be redeemed, and shall call upon such holder to surrender
such holder's redeemed stock to the corporation on the redemption date at the
place designated in the Redemption Notice. If less than all of the
outstanding shares of
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Preferred Stock are to be redeemed, then the corporation shall redeem a pro
rata portion from each holder of Preferred Stock according to the respective
number of shares of Preferred Stock held by such holder.
(b) MANDATORY REDEMPTION. The corporation shall redeem all outstanding
shares of Preferred Stock at the Redemption Price on the earlier of (i)
February 14, 2005 [eleven years after the issuance date], or (ii) the
refinancing of the corporation's Senior Subordinated Notes (the "Notes") at a
lower interest rate than 12%; PROVIDED that the terms of such refinancing
shall not reduce the average maturity of the Notes outstanding on the
effective date of such refinancing or require amortization of principal to
commence prior to December 31, 2001. The corporation shall give a Redemption
Notice to each holder of Preferred Stock at least five days prior thereto.
(c) CHANCE OF CONTROL REDEMPTION.
(l) A "Change of Control" shall be deemed to have occurred on the
date on which the stockholders of the corporation on the date of initial
issuance of Preferred Stock (the "Initial Stockholders") and their affiliates
cease to directly or indirectly beneficially own 50% or more of the
outstanding voting power of the corporation; PROVIDED that capital stock of
the corporation issued to, or held by an employee stock ownership plan of the
corporation or any of its subsidiaries, shall be disregarded for purposes of
this definition, and PROVIDED, FURTHER, that capital stock of the corporation
sold or otherwise transferred by an Initial Stockholder or any of its
affiliates to such employee stock ownership plan shall be deemed held by an
Initial Stockholder. The corporation shall give written notice of a Change
of Control to the holders of Preferred Stock within ten days thereafter.
(2) At the option of the holders of a majority of Preferred Stock
exercised by written notice (the "Election Notice") given to the corporation
within thirty days after the Change of Control, the corporation shall redeem
all outstanding shares of Preferred Stock at the Redemption Price on the
redemption date specified in the Election Notice (which Redemption Date shall
be not less than sixty nor more than ninety days after the Change of
Control). Upon receipt of the Election Notice, the corporation shall give a
Redemption Notice to each holder of Preferred Stock.
(d) RIGHTS OF HOLDERS AFTER REDEMPTION DATE. On or after the
redemption date, each holder of shares of Preferred Stock called for
redemption shall surrender the certificate evidencing such shares to the
corporation at the place
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designated in the Redemption Notice and shall thereupon be entitled to
receive payment of the Redemption Price. From and after the redemption date
(unless the corporation fails to pay the Redemption Price in which case all
the rights of the holders of Preferred Stock shall continue), the holders of
the shares of Preferred Stock called for redemption shall cease to have any
rights as holders of Preferred Stock of the corporation except the right to
receive, without interest, the Redemption Price thereof upon surrender of
certificates representing such shares, and such shares shall not thereafter
be transferred (except with the consent of the corporation) on the books of
the corporation and shall not be deemed outstanding for any purpose
whatsoever. Any money deposited for the redemption of shares of Preferred
Stock which is unclaimed by a holder of Preferred Stock for two years after
the redemption date thereof shall be returned to the corporation.
(e) RESTRICTIONS ON REDEMPTION. The corporation shall not redeem any
Preferred Stock where such action would be in violation of applicable law.
Section 4. VOTING RIGHTS. Except as otherwise required by law, the
holders of Preferred Stock shall not be entitled to vote on any matter.
Except as otherwise required by law, in all cases where the holders of
Preferred Stock have the right to vote, the holders of Preferred Stock and
the holders of Common Stock shall vote together and not as separate classes
and the holders of Preferred Stock shall be entitled to one vote for each
share of Preferred Stock held by them.
Section 5. NO REISSUANCE OF PREFERRED STOCK. Shares of Preferred
Stock acquired by the corporation by reason of redemption, purchase,
conversion or otherwise shall not be reissued, and all such shares shall be
cancelled, retired and eliminated from the shares which the corporation shall
be authorized to issue.
THIRD: The foregoing amendment to the Certificate of Incorporation
of the Corporation has been duly adopted in accordance with the provisions of
Section 241 of the General Corporation Law of Delaware.
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IN WITNESS WHEREOF, Aerosol Services Holding Corporation, by its
directors, has caused its name to be hereunto subscribed as of the date first
above written.
/s/ Drew Adams
----------------------------
Drew Adams, Director
/s/ Michael S. Gordon
----------------------------
Michael S. Gordon, Director
/s/ John H. Morris
----------------------------
John H. Morris, Director
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CERTIFICATE OF MERGER
OF
AEROSOL COMPANIES HOLDING CORPORATION,
a Delaware corporation
INTO
AEROSOL SERVICES HOLDING CORPORATION,
a Delaware corporation
(UNDER SECTION 251 OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE)
Aerosol Services Holding Corporation, a Delaware corporation,
hereby certifies that:
1. The name and state of incorporation of each of the constituent
corporations are:
(a) Aerosol Services Holding Corporation, a Delaware
corporation ("ASHC"); and
(b) Aerosol Companies Holding Corporation, a Delaware
corporation ("ACHC").
2. An Agreement and Plan of Merger has been approved, adopted,
certified, executed and acknowledged by ASHC and by ACHC in accordance with
the provisions of subsection (c) of Section 251 of the General Corporation
Law of the State of Delaware.
3. The surviving corporation is ASHC.
4. The certificate of incorporation of ASHC shall be the
certificate of incorporation of the surviving corporation, except that:
(a) Article First of ASHC's certificate of incorporation shall be
amended to read as follows:
"FIRST: The name of the corporation is Outsourcing Services Group,
Inc. (hereinafter called the "Corporation")."
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(b) Article Fourth of ASHC's certificate of incorporation shall be
amended to read as follows:
"FOURTH: The corporation is authorized to issue two classes of
shares designated respectively "Common Stock" and "Preferred
Stock." The Common Stock shall consist of 2,000,000 authorized
shares, par value of $.001 per share. The Preferred Stock shall
consist of 30,000 authorized shares and shall be issued in series.
The first such series shall be designated "Series A Preferred
Stock" and shall consist of 3,750 shares, par value of $.001 per
share. The second series shall be designated "Series B Preferred
Stock" and shall consist of 26,250 shares, par value of $.001 per
share.
The rights, preferences, privileges and restrictions granted to and
imposed upon Preferred Stock are set forth below in this Article
Fourth.
Section 1. DIVIDENDS.
(a) DIVIDENDS -- SERIES A PREFERRED STOCK. The holders of
Series A Preferred Stock shall be entitled to receive, out of any
assets at the time legally available therefor and when and as
declared by the Board of Directors, noncumulative dividends
("Series A Current Dividends") in cash equal to Two Dollars and
Fifty Cents ($2.50) per share per quarter, and no more, accruing
from February 14, 1994 and payable quarterly commencing on March
30, 1994 and thereafter on the 30th day of each June, September,
December and March (each a "Series A Dividend Payment Date"). If
Series A Current Dividends are not declared and paid with respect
to any Series A Dividend Payment Date on or before the tenth day
following such Series A Dividend Payment Date, then in lieu of
Series A Current Dividends with respect to such Series A Dividend
Payment Date, the holders of Series A Preferred Stock shall be
entitled to receive, out of any assets at the time legally
available therefor and when and as declared by the Board of
Directors, cumulative dividends ("Series A Deferred Dividends") in
cash equal to Three Dollars and Twenty-Five Cents ($3.25) per
share, and no more, for the quarter preceding such Series A
Dividend Payment Date, which Series A Deferred Dividends until paid
shall be increased on each subsequent Series A Dividend Payment
Date by (i) Two and One-Half Percent (2.5%) if Series A Current
Dividends and all Series A Deferred Dividends are paid with respect
to such subsequent Series A Dividend Payment Date or (ii) Three and
One-Quarter percent (3.25%) if Series A Current Dividends and all
Series A Deferred Dividends are not paid with respect to such
subsequent Series A Dividend Payment Date. If any partial payment
is made with respect to Series
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A Current Dividends and Series A Deferred Dividends, such payment
shall first be applied to Series A Deferred Dividends. If the
Series A Preferred Stock is not outstanding on each day during any
quarter, then dividends accrued or payable for such quarter shall
be reduced proportionately based on the number of days during such
quarter in which the Series A Preferred Stock is outstanding. All
Series A Current Dividends and Series A Deferred Dividends are
prior and in preference to any declaration or payment of any
distribution (as defined in Section 1(c) below) on Common Stock.
Series A Current Dividends shall accrue on each share of Series A
Preferred Stock from day to day only until the next Series A
Dividend Payment Date. Series A Deferred Dividends shall accrue on
each share of Series A Preferred Stock from day to day from the
applicable Series A Dividend Payment Date until paid. Until all
accrued dividends on Series A Preferred Stock have been paid, or
declared and set apart, no distribution shall be paid on, or
declared and set apart for, any Common Stock.
(b) DIVIDENDS -- SERIES B PREFERRED STOCK. The holders of
Series B Preferred Stock shall be entitled to receive, out of any
assets at the time legally available therefor and when and as
declared by the Board of Directors, cumulative dividends ("Series B
Dividends"), in cash equal to Two Dollars ($2.00) per share per
quarter, and no more, accruing from June 30, 1997 and payable
quarterly commencing on September 30, 1997 and thereafter on the
30th day of each December, March, June and September until
redemption of the Series B Preferred Stock. If the Series B
Preferred Stock is not outstanding on each day of any quarter, then
dividends accrued or payable for such quarter shall be reduced
proportionately based on the number of days during such quarter in
which the Series B Preferred Stock is outstanding. The Series B
Dividends shall accrue and be cumulative whether or not they have
been declared and whether or not there are profits, surplus or
other funds of the Corporation legally available therefore. All
Series B Dividends are prior and in preference to any declaration
or payment of any distribution (as defined in Section 1(c) below)
on Common Stock. Until all accrued dividends on Series B Preferred
Stock have been paid, or declared and set apart, no distribution
shall be paid on, or declared and set apart for, any Common Stock.
Notwithstanding anything to the contrary contained herein, the
Board of Directors shall not be required to declare and pay
dividends on the Series B Preferred Stock solely because it has
declared and paid dividends on the Series A Preferred Stock. The
Board of Directors shall timely declare and pay dividends on Series
B Preferred Stock as described in this Section 1(b) from assets
legally available therefore unless prevented by restrictions or
limitations imposed from time to time by lenders to the Corporation.
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(c) DISTRIBUTION. The term "distribution" as used in this
Section 1 means the transfer of cash or property without
consideration, whether by way of dividend or otherwise, payable
other than in Common Stock or the purchase or redemption of shares
of the Corporation (other than redemptions set forth in Section 3
below or repurchases of Common Stock held by employees of the
Corporation or any of its subsidiaries upon termination of their
employment pursuant to agreements providing for such repurchase)
for cash or property.
Section 2. LIQUIDATION RIGHTS.
(a) PREFERRED STOCK PREFERENCE. In the event of any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, the holders of Preferred Stock shall be
entitled to be paid out of the assets of the Corporation available
for distribution to its stockholders, whether such assets are
capital, surplus or earnings, before any payment or declaration and
setting apart for payment of any amount shall be made in respect of
Common Stock, with respect to holders of (1) the Series A Preferred
Stock, an amount equal to One Hundred Dollars ($100.00) per share,
plus an amount equal to all accrued and unpaid dividends thereon
through the date of redemption (the "Series A Redemption Price"),
and (2) the Series B Preferred Stock, an amount equal to One
Hundred Forty-Five and 97/100 Dollars ($145.97) per share, plus an
amount equal to all accrued and unpaid dividends thereon through
the date of redemption (the "Series B Redemption Price"; the Series
A Redemption Price and the Series B Redemption Price are each a
"Redemption Price"). If upon any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary,
the assets to be distributed to the holders of Preferred Stock
shall be insufficient to permit the payment to such stockholders of
the full preferential amounts stated above, then all of the assets
of the Corporation to be distributed shall be distributed among the
holders of Preferred Stock in proportion to the amounts due to such
holders hereunder.
(b) COMMON STOCK PAYMENT OR DISTRIBUTION. After the payment
or distribution to the holders of Preferred Stock of the full
preferential amounts required by Section 2(a) and if any assets
remain in the Corporation, the holders of Common Stock then
outstanding shall be entitled to a payment or distribution of the
remaining assets of the Corporation.
(c) MERGER, CONSOLIDATION OR SALE OF ASSETS. The merger or
consolidation of the Corporation into or with another corporation
in which the
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Corporation shall not survive and the stockholders of the
Corporation immediately prior to such transaction shall own less
than fifty percent of the voting stock of the surviving
Corporation, and the sale, transfer or lease (but not including a
transfer or lease by pledge or mortgage to a bona fide lender or a
transfer by or in connection with a foreclosure by a bona fide
lender) of all or substantially all of the assets of the
Corporation, shall be deemed to be a liquidation, dissolution or
winding up of the Corporation as those terms are used in this
Section 2 and Section 3.
Section 3. REDEMPTION OF PREFERRED STOCK.
(a) OPTIONAL REDEMPTION. At any time after the completion of
an offering by the Corporation of its shares of Common Stock
pursuant to an effective registration statement filed with the
Securities and Exchange Commission or at any time after June 30,
2000, and upon not less than five days prior notice to holders of
Preferred Stock of a Series thereof, the Corporation may, at the
option of the Board of Directors, redeem all or part of the
outstanding shares of Preferred Stock or a Series thereof at the
applicable Redemption Price. Such notice to a holder of Preferred
Stock (the "Redemption Notice") shall specify the date of
redemption, the applicable Redemption Price and the number of
shares of Preferred Stock of such holder to be redeemed, and shall
call upon such holder to surrender such holder's redeemed stock to
the Corporation on the Redemption Date at the place designated in
the Redemption Notice. If less than all of the outstanding shares
of Preferred Stock or a Series thereof are to be redeemed, then the
Corporation shall redeem a pro rata portion from each holder of
Preferred Stock or Series thereof according to the respective
number of shares of Preferred Stock or Series thereof held by such
holder.
(b) MANDATORY REDEMPTION. The Corporation shall redeem all
outstanding shares of Preferred Stock at the applicable Redemption
Price on the earlier to occur of (i) a liquidation, dissolution or
winding up of the Corporation, (ii) an initial public offering of
the Corporation's common stock pursuant to an effective
registration statement registered under the Securities Exchange Act
of 1933, which results in net proceeds to the Corporation of not
less than 20,000,000 and (iii) June 30, 2006. The Corporation
shall give a Redemption Notice to each holder of Preferred Stock at
least five days prior thereto.
(c) CHANGE OF CONTROL REDEMPTION.
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(1) A "Change of Control" shall be deemed to have
occurred on the date on which the stockholders of the Corporation
on the day immediately preceding the event that gives rise to the
Change of Control (the "Prior Stockholders") and their affiliates
cease to directly or indirectly beneficially own 50% or more of the
outstanding voting power of the Corporation; PROVIDED that capital
stock of the Corporation issued to, or held by an employee stock
ownership plan of the Corporation or any of its subsidiaries, shall
be disregarded for purposes of this definition, and PROVIDED,
FURTHER, that capital stock of the Corporation sold or otherwise
transferred by a Prior Stockholder or any of its affiliates to such
employee stock ownership plan shall be deemed held by a Prior
Stockholder. The Corporation shall give written notice of a Change
of Control to the holders of Preferred Stock within ten days
thereafter.
(2) At the option of the holders of a majority of the
Preferred Stock exercised by written notice (the "Election Notice")
given to the Corporation within thirty days after the Change of
Control, the Corporation shall redeem (a "Change of Control
Redemption") all outstanding shares of Preferred Stock at the
applicable Redemption Price on the Redemption Date specified in the
Election Notice (which Redemption Date shall be not less than sixty
nor more than ninety days after the Change of Control). Upon
receipt of the Election Notice, the Corporation shall give a
Redemption Notice to each holder of Preferred Stock.
(d) RIGHTS OF HOLDERS AFTER REDEMPTION DATE. On or after
the Redemption Date, each holder of shares of Preferred Stock
called for redemption shall surrender the certificate evidencing
such shares to the Corporation at the place designated in the
Redemption Notice and shall thereupon be entitled to receive
payment of the applicable Redemption Price. From and after the
Redemption Date (unless the Corporation fails to pay the applicable
Redemption Price in which case all the rights of the holders of
Preferred Stock shall continue), the holders of the shares of
Preferred Stock called for redemption shall cease to have any
rights as holders of Preferred Stock of the Corporation except the
right to receive, without interest, the applicable Redemption Price
thereof upon surrender of certificates representing such shares,
and such shares shall not thereafter be transferred (except with
the consent of the Corporation) on the books of the Corporation and
shall not be deemed outstanding for any purposes whatsoever. Any
money deposited for the redemption of shares of Preferred Stock
which is unclaimed by a holder of Preferred Stock for two years
after the Redemption Date thereof shall be returned to the
Corporation.
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(e) RESTRICTIONS ON REDEMPTION. The Corporation shall not
redeem any Preferred Stock where such action would be in violation
of applicable law.
Section 4. VOTING RIGHTS. Except as otherwise required by
law, the holders of Preferred Stock shall not be entitled to vote
on any matter. Except as otherwise required by law, in all cases
where the holders of Preferred Stock have the right to vote, the
holders of Preferred Stock and the holders of Common Stock shall
vote together and not as separate classes and the holders of
Preferred Stock shall be entitled to one vote for each share of
Preferred Stock held by them.
Section 5. NO REISSUANCE OF PREFERRED STOCK. Shares of
Preferred Stock acquired by the Corporation by reason of
redemption, purchase, conversion or otherwise shall not be
reissued, and all such shares shall be cancelled, retired and
eliminated from the shares which the Corporation shall be
authorized to issue."
5. The executed Agreement and Plan of Merger is on file at the
principal place of business of ASHC at 425 Ninth Avenue, City of Industry,
California 91746.
6. A copy of the Agreement and Plan of Merger will be furnished
by ASHC, on request and without cost, to any stockholder of ASHC or ACHC.
IN WITNESS WHEREOF, ASHC has caused this Certificate to be signed
by Joseph W. Sortais, its Chief Financial Officer, and attested by Walter K.
Lim, its President, on the 27th day of June, 1997.
AEROSOL SERVICES HOLDING CORPORATION, a
Delaware corporation
By: /s/ Joseph W. Sortais
---------------------------------
Joseph W. Sortais
Chief Financial Officer
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ATTEST:
By: /s/ Walter K. Lim
----------------------------
Walter K. Lim
President
18
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
OUTSOURCING SERVICES GROUP, INC.
Outsourcing Services Group, Inc., a corporation organized and existing
under the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify as follows:
1. The Board of Directors of the Corporation and the stockholders of
the Corporation have duly adopted resolutions setting forth a proposed
amendment to Article FOURTH of the Certificate of Incorporation of the
Corporation. The resolution setting forth the proposed amendment is as
follows:
RESOLVED, that Article FOURTH of the Corporation's Certificate of
Incorporation is hereby amended to read in its entirety as follows:
"FOURTH: The corporation is authorized to issue two classes of shares
designated respectively "Common Stock" and "Preferred Stock." The
Common Stock shall consist of 6,000,000 authorized shares, par value
of $.001 per share. The Preferred Stock shall consist of 30,000
authorized shares and shall be issued in series. The first such
series shall be designated "Series A Preferred Stock" and shall
consist of 3,750 shares, par value of $.001 per share. The second
series shall be designated "Series B Preferred Stock" and shall
consist of 26,250 shares, par value of $.001 per share.
The rights, preferences, privileges and restrictions granted to
and imposed upon Preferred Stock are set forth below in this Article
Fourth.
Section 6. DIVIDENDS.
(a) DIVIDENDS -- SERIES A PREFERRED STOCK. The holders of
Series A Preferred Stock shall be entitled to receive, out of any
assets at the time legally available therefor and when and as declared
by the Board of Directors, noncumulative dividends ("Series A Current
Dividends") in cash equal to Two Dollars and Fifty Cents ($2.50) per
share per quarter, and no more, accruing from February 14, 1994 and
payable quarterly commencing on March 30, 1994 and thereafter on the
30th day of each June, September, December and March (each a "Series A
Dividend Payment Date"). If Series A Current Dividends are
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not declared and paid with respect to any Series A Dividend Payment Date
on or before the tenth day following such Series A Dividend Payment
Date, then in lieu of Series A Current Dividends with respect to such
Series A Dividend Payment Date, the holders of Series A Preferred
Stock shall be entitled to receive, out of any assets at the time
legally available therefor and when and as declared by the Board of
Directors, cumulative dividends ("Series A Deferred Dividends") in
cash equal to Three Dollars and Twenty-Five Cents ($3.25) per share,
and no more, for the quarter preceding such Series A Dividend Payment
Date, which Series A Deferred Dividends until paid shall be increased
on each subsequent Series A Dividend Payment Date by (i) Two and One-
Half Percent (2.5%) if Series A Current Dividends and all Series A
Deferred Dividends are paid with respect to such subsequent Series A
Dividend Payment Date or (ii) Three and One-Quarter percent (3.25%) if
Series A Current Dividends and all Series A Deferred Dividends are not
paid with respect to such subsequent Series A Dividend Payment Date.
If any partial payment is made with respect to Series A Current
Dividends and Series A Deferred Dividends, such payment shall first be
applied to Series A Deferred Dividends. If the Series A Preferred
Stock is not outstanding on each day during any quarter, then
dividends accrued or payable for such quarter shall be reduced
proportionately based on the number of days during such quarter in
which the Series A Preferred Stock is outstanding. All Series A
Current Dividends and Series A Deferred Dividends are prior and in
preference to any declaration or payment of any distribution (as
defined in Section 1(c) below) on Common Stock. Series A Current
Dividends shall accrue on each share of Series A Preferred Stock from
day to day only until the next Series A Dividend Payment Date. Series
A Deferred Dividends shall accrue on each share of Series A Preferred
Stock from day to day from the applicable Series A Dividend Payment
Date until paid. Until all accrued dividends on Series A Preferred
Stock have been paid, or declared and set apart, no distribution shall
be paid on, or declared and set apart for, any Common Stock.
(b) DIVIDENDS -- SERIES B PREFERRED STOCK. The holders of
Series B Preferred Stock shall be entitled to receive, out of any
assets at the time legally available therefor and when and as declared
by the Board of Directors, cumulative dividends ("Series B
Dividends"), in cash equal to Two Dollars ($2.00) per share per
quarter, and no more, accruing from June 30, 1997 and payable
quarterly commencing on September 30, 1997 and thereafter on the 30th
day of each December, March, June and September until redemption of
the Series B Preferred Stock. If the Series B Preferred Stock is not
outstanding on each day of any quarter, then dividends accrued or
payable for such quarter shall be reduced proportionately based on the
number of days during such quarter in which the Series B Preferred
Stock is outstanding. The Series B Dividends shall
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accrue and be cumulative whether or not they have been declared and
whether or not there are profits, surplus or other funds of the
Corporation legally available therefore. All Series B Dividends are
prior and in preference to any declaration or payment of any
distribution (as defined in Section 1(c) below) on Common Stock. Until
all accrued dividends on Series B Preferred Stock have been paid, or
declared and set apart, no distribution shall be paid on, or declared
and set apart for, any Common Stock. Notwithstanding anything to the
contrary contained herein, the Board of Directors shall not be required
to declare and pay dividends on the Series B Preferred Stock solely
because it has declared and paid dividends on the Series A Preferred
Stock. The Board of Directors shall timely declare and pay dividends on
Series B Preferred Stock as described in this Section 1(b) from assets
legally available therefore unless prevented by restrictions or
limitations imposed from time to time by lenders to the Corporation.
(c) DISTRIBUTION. The term "distribution" as used in this
Section 1 means the transfer of cash or property without
consideration, whether by way of dividend or otherwise, payable other
than in Common Stock or the purchase or redemption of shares of the
Corporation (other than redemptions set forth in Section 3 below or
repurchases of Common Stock held by employees of the Corporation or
any of its subsidiaries upon termination of their employment pursuant
to agreements providing for such repurchase) for cash or property.
Section 7. LIQUIDATION RIGHTS.
(a) PREFERRED STOCK PREFERENCE. In the event of any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, the holders of Preferred Stock shall be
entitled to be paid out of the assets of the Corporation available for
distribution to its stockholders, whether such assets are capital,
surplus or earnings, before any payment or declaration and setting
apart for payment of any amount shall be made in respect of Common
Stock, with respect to holders of (1) the Series A Preferred Stock, an
amount equal to One Hundred Dollars ($100.00) per share, plus an
amount equal to all accrued and unpaid dividends thereon through the
date of redemption (the "Series A Redemption Price"), and (2) the
Series B Preferred Stock, an amount equal to One Hundred Forty-Five
and 97/100 Dollars ($145.97) per share, plus an amount equal to all
accrued and unpaid dividends thereon through the date of redemption
(the "Series B Redemption Price"; the Series A Redemption Price and
the Series B Redemption Price are each a "Redemption Price"). If upon
any liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, the assets to be distributed to the holders
of Preferred Stock shall be insufficient
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to permit the payment to such stockholders of the full preferential
amounts stated above, then all of the assets of the Corporation to be
distributed shall be distributed among the holders of Preferred Stock in
proportion to the amounts due to such holders hereunder.
(b) COMMON STOCK PAYMENT OR DISTRIBUTION. After the payment or
distribution to the holders of Preferred Stock of the full
preferential amounts required by Section 2(a) and if any assets remain
in the Corporation, the holders of Common Stock then outstanding shall
be entitled to a payment or distribution of the remaining assets of
the Corporation.
(c) MERGER, CONSOLIDATION OR SALE OF ASSETS. The merger or
consolidation of the Corporation into or with another corporation in
which the Corporation shall not survive and the stockholders of the
Corporation immediately prior to such transaction shall own less than
fifty percent of the voting stock of the surviving Corporation, and
the sale, transfer or lease (but not including a transfer or lease by
pledge or mortgage to a bona fide lender or a transfer by or in
connection with a foreclosure by a bona fide lender) or all or
substantially all of the assets of the Corporation, shall be deemed to
be a liquidation, dissolution or winding up of the Corporation as
those terms are used in this Section 2 and Section 3.
Section 8. REDEMPTION OF PREFERRED STOCK.
(a) OPTIONAL REDEMPTION. At any time after the completion of an
offering by the Corporation of its shares of Common Stock pursuant to
an effective registration statement filed with the Securities and
Exchange Commission or at any time after June 30, 2000, and upon not
less than five days prior notice to holders of Preferred Stock of a
Series thereof, the Corporation may, at the option of the Board of
Directors, redeem all or part of the outstanding shares of Preferred
Stock or a Series thereof at the applicable Redemption Price. Such
notice to a holder of Preferred Stock (the "Redemption Notice") shall
specify the date of redemption, the applicable Redemption Price and
the number of shares of Preferred Stock of such holder to be redeemed,
and shall call upon such holder to surrender such holder's redeemed
stock to the Corporation on the Redemption Date at the place
designated in the Redemption Notice. If less than all of the
outstanding shares of Preferred Stock or a Series thereof are to be
redeemed, then the Corporation shall redeem a pro rata portion from
each holder of Preferred Stock or Series thereof according to the
respective number of shares of Preferred Stock or Series thereof held
by such holder.
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(b) MANDATORY REDEMPTION. The Corporation shall redeem all
outstanding shares of Preferred Stock at the applicable Redemption
Price on the earlier to occur of (i) a liquidation, dissolution or
winding up of the Corporation, (ii) an initial public offering of the
Corporation's common stock pursuant to an effective registration
statement registered under the Securities Exchange Act of 1933, which
results in net proceeds to the Corporation of not less than
$20,000,000 and (iii) June 30, 2010. The Corporation shall give a
Redemption Notice to each holder of Preferred Stock at least five days
prior thereto.
(c) CHANGE OF CONTROL REDEMPTION.
(1) A "Change of Control" shall be deemed to have occurred
on the date on which the stockholders of the Corporation on the day
immediately preceding the event that gives rise to the Change of
Control (the "Prior Stockholders") and their affiliates cease to
directly or indirectly beneficially own 50% or more of the
outstanding voting power of the Corporation; PROVIDED that capital
stock of the Corporation issued to, or held by an employee stock
ownership plan of the Corporation or any of its subsidiaries, shall
be disregarded for purposes of this definition, and PROVIDED,
FURTHER, that capital stock of the Corporation sold or otherwise
transferred by a Prior Stockholder or any of its affiliates to such
employee stock ownership plan shall be deemed held by a Prior
Stockholder. The Corporation shall give written notice of a Change
of Control to the holders of Preferred Stock within ten days
thereafter.
(2) At the option of the holders of a majority of the
Preferred Stock exercised by written notice (the "Election Notice")
given to the Corporation within thirty days after the Change of
Control, the Corporation shall redeem (a "Change of Control
Redemption") all outstanding shares of Preferred Stock at the
applicable Redemption Price on the Redemption Date specified in the
Election Notice (which Redemption Date shall be not less than sixty
nor more than ninety days after the Change of Control). Upon
receipt of the Election Notice, the Corporation shall give a
Redemption Notice to each holder of Preferred Stock.
(d) RIGHTS OF HOLDERS AFTER REDEMPTION DATE. On or after the
Redemption Date, each holder of shares of Preferred Stock called for
redemption shall surrender the certificate evidencing such shares to
the Corporation at the
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place designated in the Redemption Notice and shall thereupon be
entitled to receive payment of the applicable Redemption Price. From
and after the Redemption Date (unless the Corporation fails to pa the
applicable Redemption Price in which call all the rights of the holders
of Preferred Stock shall continue), the holders of the shares of
Preferred Stock called for redemption shall cease to have any rights as
holders of Preferred Stock of the Corporation except the right to
receive, without interest, the applicable Redemption Price thereof upon
surrender of certificates representing such shares, and such shares
shall not thereafter be transferred (except with the consent of the
Corporation) on the books of the Corporation and shall not be deemed
outstanding for any purposes whatsoever. Any money deposited for the
redemption of shares of Preferred Stock which is unclaimed by a holder
of Preferred Stock for two years after the Redemption Date thereof shall
be returned to the Corporation.
(e) RESTRICTIONS ON REDEMPTION. The Corporation not redeem any
Preferred Stock where such action would be in violation of applicable
law.
Section 9. VOTING RIGHTS. Except as otherwise required by law,
the holders of Preferred Stock shall not be entitled to vote on any
matter. Except as otherwise required by law, in all cases where the
holders of Preferred Stock have the right to vote, the holders of
Preferred Stock and the holders of Common Stock shall vote together
and not as separate classes and the holders of Preferred Stock shall
be entitled to one vote for each share of Preferred Stock held by
them.
Section 10. NO REISSUANCE OF PREFERRED STOCK. Shares of
Preferred Stock acquired by the Corporation by reason of redemption,
purchase, conversion or otherwise shall not be reissued, and all such
shares shall be cancelled, retired and eliminated from the shares
which the Corporation shall be authorized to issue."
2. The necessary number of issued and outstanding shares required by
statute were voted in favor of the amendment.
3. Such amendment was duly adopted in accordance with the provisions of
Section 242 and 228 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, Outsourcing Services Group, Inc. has caused this
certificate to be signed by Joseph Sortais, its Chief Financial Officer, this
8th day of January, 1998.
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OUTSOURCING SERVICES GROUP, INC.
By: /s/ Joseph Sortais
---------------------------------------
Joseph Sortais, Chief Financial Officer
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