STATE OF DELAWARE PAGE 1
OFFICE OF THE SECRETARY OF STATE
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I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED
CERTIFICATE OF "FRENCH HOLDINGS, INC.", FILED IN THIS OFFICE ON THE FIRST DAY OF
APRIL, A.D. 1996, AT 2 O'CLOCK P.M.
/s/ Edward Freel
EDWARD FREEL, SECRETARY OF STATE
2604567 8100 AUTHENTICATION: 9765816
991208559 DATE: 05-25-99
exh3-3-frholdinc.wpd
RESTATED CERTIFICATE OF INCORPORATION
BEFORE PAYMENT OF CAPITAL
OF
FRENCH HOLDINGS, INC.
a Delaware corporation
French Holdings, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware, does
hereby certify:
1. The name of the Corporation is French Holdings, Inc. ("the
Corporation"). The original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of the State of Delaware on March 26, 1996.
2. The Corporation has not received any payment for any of its
stock.
3. The Restated Certificate of Incorporation was duly adopted in
accordance with the provisions of Section 241 of the General Corporation Law of
the State of Delaware ("Delaware Law").
4. The restatement herein set forth has been duly adopted pursuant
to Section 245 of the Delaware Law. This Restated Certificate of Incorporation
restates and integrates and further amends the provisions of the Corporation's
Certificate of Incorporation as heretofore restated and amended.
5. The test of the Certificate of Incorporation is hereby restated
and amended to read in its entirety as follows:
FIRST: CORPORATE NAME. The name of the Corporation is French
Holdings, Inc. (The "CORPORATION").
SECOND: REGISTERED OFFICE AND AGENT. The address of the
Corporation's registered office in the State of Delaware is Corporation Trust
Center, 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name of the Corporation's registered agent at such address is The
Corporation Trust Company.
THIRD: CORPORATE PURPOSE. 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 (the "DECL.").
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FOURTH:
A. AUTHORIZED SHARES. The total number of shares which the
Corporation is authorized to issue is One Hundred Three Thousand (103,000)
shares. One Hundred Thousand (100,000) shares shall be designated Common Stock,
par value $.0001 per share (the "Common Stock"), of which Ninety-Four Thousand
Five Hundred (94,500) shares shall be designated Class A Common Stock (the
"Class A Common Stock"), Five Thousand (5,000) shares shall be designated Class
B Common Stock (the "Class B Common Stock"), Five Hundred (500) shares shall be
designated Class C Common Stock (the "Class C Common Stock"). Three Thousand
(3,000) shares shall be designated Preferred Stock (the "Preferred Stock"), of
which One Thousand Five Hundred (1,500) shares shall be designated Series A
Convertible Preferred Stock, par value $.0001 per share (the "SERIES A PREFERRED
STOCK"), and One Thousand Five Hundred (1,500) shares shall be designated Series
B Redeemable Preferred Stock, par value $.0001 per share (the "Series B
Preferred Stock").
B. SERIES A PREFERRED STOCK. The powers, preferences and rights of
the Series A Preferred Stock, and the qualifications, limitations or
restrictions thereof, are as follows:
1. RANK. The Series A Preferred Stock shall, with respect to
dividend rights and rights of liquidation, winding up and dissolution, rank (i)
on a parity with the Series B Preferred Stock and (ii) senior to all other
equity securities of the Corporation, including all classes of the Corporation's
Common Stock and all subsequently issued preferred stock of the Corporation (all
of such equity securities of the Corporation to which the Series A Preferred
Stock and the Series B Preferred Stock rank senior, including, without
limitation, the Common Stock, are collectively referred to herein as the "JUNIOR
SECURITIES").
2. DIVIDENDS.
(a) The holders of shares of Series A Preferred Stock will be
entitled to receive, when, as and if declared by the Board of Directors out of
funds of the Corporation legally available therefor, cumulative cash dividends
at the per share rate of $700.00 per annum, or $175.00 per quarter for each of
the quarterly periods ending on the last day of March, June, September and
December of each year, and no more, payable in arrears on each succeeding April
1, July 1, October 1 and January 1, respectively, commencing on the later of
January 1, 1997 and the first dividend payment date after the date of original
issue; PROVIDED that: (i) if any such payment date is not a Business Day then
such dividend shall be payable on the next Business Day, and (ii) accumulated
and unpaid dividends for any prior quarterly period may be paid at any time. The
term "BUSINESS DAY" whenever used herein with reference to the Preferred Stock
means a day other than a Saturday, Sunday or day on which banking institutions
in New York or Wisconsin are authorized or required to remain closed. Such
dividends shall accrue and be cumulative from the date of original issue of each
share of Series A Preferred Stock, whether or not there are funds legally
available for the payment of dividends on any payment date. Each such dividend
shall be paid to the holders of record of the shares of Series A Preferred Stock
as they appear on the share register of the Corporation on such record date, not
more than 60 days nor less than 10 days preceding the dividend payment date, as
shall be fixed by the Board of Directors or a duly authorized committee thereof.
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(b) If dividends are not paid in full, or declared in full and
sums set apart for the payment thereof, upon the shares of Series A Preferred
Stock and Series B Preferred Stock, all dividends declared upon shares of Series
A Preferred Stock and shares of Series B Preferred Stock shall be paid or
declared pro rata so that in all cases the amount of dividends paid or declared
per share on the Series A Preferred Stock and the Series B Preferred Stock shall
bear to each other the same ratio that unpaid accumulated dividends per share,
including dividends accrued or in arrears, if any, on the shares of Series A
Preferred Stock and the shares of Series B Preferred Stock bear to each other.
Unless and until full cumulative dividends on the shares of Series A Preferred
Stock in respect of all past quarterly dividend periods have been paid, and the
full amount of dividends on the shares of Series A Preferred Stock in respect of
the then current quarterly dividend period shall have been or are
contemporaneously declared in full and sums set aside for the payment thereof,
(i) no dividends shall be paid or declared and set aside for payment or other
distribution made upon any of the Junior Securities, other than in shares of, or
warrants or rights to acquire, Junior Securities; and (ii) no shares of Junior
Securities or Series B Preferred Stock shall be redeemed, retired, purchased or
otherwise acquired for any consideration (or any payment made to or available
for a sinking fund for the redemption of any such shares) by the Corporation or
any subsidiary of the Corporation (except by conversion into or exchange for
shares of Junior Securities or pursuant to a Management Repurchase Note
delivered in accordance with the provisions of the Stockholders Agreement or an
Employee Stockholder Agreement). Holders of shares of Series A Preferred Stock
shall not be entitled to any dividends, whether payable in cash, property or
shares of capital stock, in excess of full accrued and cumulative dividends as
herein provided. No interest or sum of money in lieu of interest shall be
payable in respect of any dividend payment or payments on the shares of Series A
Preferred Stock that may be in arrears.
The terms "accrued dividends," "dividends accrued" and
"dividends in arrears," whenever used herein with reference to shares of
Preferred Stock shall be deemed to mean an amount which shall be equal to
dividends thereon at the annual dividend rates per share for the respective
series from the date or dates on which such dividends commence to accrue to the
end of the then current quarterly dividend period for such Preferred Stock (or,
in the case of redemption, to the date of redemption), whether or not earned or
declared and whether or not assets for the Corporation are legally available
therefor, less the amount of all such dividends paid, or declared in full and
sums set aside for the payment thereof, upon such shares of Preferred Stock.
(c) Dividends payable on the shares of Series A Preferred
Stock for any period less than a full quarterly dividend period shall be
computed on the basis of a 360-day year of twelve 30-day months and the actual
number of days elapsed in the period for which payable.
3. OPTIONAL REDEMPTION AND MANDATORY REDEMPTION.
(a) The shares of Series A Preferred Stock are redeemable in
cash at the option of the Corporation by resolution of its Board of Directors,
in whole or from time to time in part:
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(i) at any time upon giving notice as provided in
SECTION B.3(e) of this ARTICLE FOURTH, provided that the
holders of a majority of the outstanding shares of Series A
Preferred Stock consent to such redemption, at a redemption
price equal to the sum of (A) $10,000 for each share of Series
A Preferred Stock called for redemption plus (B) all dividends
accrued and unpaid on the shares of Series A Preferred Stock
up to the date fixed for redemption, (such price, plus such
dividends accrued and unpaid, shall be hereinafter referred to
as the "SERIES A PREFERRED REDEMPTION PRICE"); or
(ii) at any time on or after April 2, 2001 at the
Series A Preferred Redemption Price, upon giving notice as
provided in SECTION B.3(e) of this ARTICLE FOURTH.
(b) To the extent any shares of Series A Preferred Stock have
not been redeemed pursuant to SECTION B.3(a) of this ARTICLE FOURTH by April 2,
2006 (the "SERIES A PREFERRED MANDATORY REDEMPTION DATE"), the Corporation
shall, on the Series A Preferred Mandatory Redemption Date, redeem all shares of
Series A Preferred Stock then outstanding at the Series A Preferred Redemption
Price. The Series A Preferred Redemption Price shall be payable in cash.
(c) If, for any reason, the Corporation shall fail to
discharge its mandatory redemption obligations pursuant to Section B.3(b) of
this Article Fourth, such purchase obligations shall be discharged as soon as
the Corporation is able to discharge such obligations. If and so long as any
mandatory redemption obligations with respect to the shares of the Series A
Preferred Stock shall not be fully discharged, the Corporation shall not,
directly or indirectly:
(i) declare or pay any dividend on any Junior
Securities or make any payment on account of, or set apart
money for, a sinking or other analogous fund for the purchase,
redemption or other retirement of, or purchase, redeem or
retire, any Junior Securities, make any distribution in
respect of Junior Securities, either directly or indirectly
and whether in cash or property or in obligations or shares of
the Corporation (other than in Junior Securities); or
(ii) purchase or redeem (except in either case for
consideration payable in Junior Securities) any Junior
Securities then outstanding.
Dividends shall continue to accrue on a cumulative basis with respect to any
shares of Series A Preferred Stock subject to a mandatory redemption obligation
that has not been discharged by the Corporation pursuant to SECTION B.3(b) of
this ARTICLE FOURTH.
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(d) If less than all of the outstanding shares of Series A
Preferred Stock are to be redeemed, the number of shares to be redeemed shall be
determined by the Board of Directors, and the shares to be redeemed shall be
determined pro rata or by lot or in such other manner and subject to such
regulations as the Board of Directors in its sole discretion shall prescribe.
(e) At least 10 days but not more than 60 days prior to the
date fixed for any optional redemption of shares of Series A Preferred Stock
pursuant to SECTION B.3(a) of this ARTICLE FOURTH or the Series A Preferred
Mandatory Redemption Date (such date for optional redemption together with the
Series A Preferred Mandatory Redemption Date shall be hereinafter referred to as
the "SERIES A PREFERRED REDEMPTION DATE"), a written notice shall be mailed to
each holder of record of shares of Series A Preferred Stock to be redeemed in a
Postage prepaid envelope addressed to such holder at such holder's post office
address as shown on the records of the Corporation, notifying such holder of the
Series A Preferred Mandatory Redemption Date or the election of the Corporation
to redeem such shares, stating the date fixed for redemption thereof, specifying
the Series A Preferred Redemption Price and the then effective conversion rate,
and calling upon such holder to surrender to the Corporation on the Series A
Preferred Redemption Date at the place designated in such notice and the
certificate or certificates representing the number of shares specified in such
notice of redemption. On or after the Series A Preferred Redemption Date, each
holder of shares of Series A Preferred Stock to be redeemed shall surrender the
certificate or certificates for such shares to the Corporation at the place
designated in such notice, and against such surrender the Series A Preferred
Redemption Price of such shares shall be paid to or on the order of the person
whose name appears on such certificate or certificates as the owner thereof, and
each surrendered certificate shall be canceled. In case less than all the shares
represented by any such certificate are redeemed, a new certificate shall be
issued representing the unredeemed shares.
(f) If a notice of redemption has been given pursuant to
SECTION B.3 (e) of this ARTICLE FOURTH and any holder of shares of Series A
Preferred Stock shall, prior to the close of business on the last Business Day
preceding the Series A Preferred Redemption Date, give written notice to the
Corporation pursuant to SECTION B.6 of this ARTICLE FOURTH of the conversion of
any or all of the shares to be redeemed held by such holder (accompanied by a
certificate or certificates for such shares, a duly executed notice of election
to convert and instruments of transfer and such taxes, stamps, funds or other
evidence of payment, as required by SECTION B.6 of this ARTICLE FOURTH), then
such redemption shall not become effective as to such shares to be converted,
such conversion shall become effective as provided in SECTION B.6 of this
ARTICLE FOURTH and any monies deposited or set aside by the Corporation for the
redemption of such shares of converted Series A Preferred Stock shall revert to
the general funds of the Corporation.
(g) From and after the Series A Preferred Redemption Date
(unless default shall be made by the Corporation in payment in full of the
Series A Preferred Redemption Price), all dividends on the shares of Series A
Preferred Stock designated for redemption in such notice shall cease to accrue,
and all rights of the holders thereof as stockholders of the Corporation, except
the right to receive the Series A Preferred Redemption Price of such shares
(including all accrued and unpaid dividends up to the Series A Preferred
Redemption Date) upon the surrender of certificates representing the same, shall
cease and terminate and such shares shall not
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thereafter be transferred (except with the consent of the Corporation) on the
books of the Corporation and shall not be deemed to be outstanding for any
purpose whatsoever.
(h) Shares of Series A Preferred Stock redeemed, repurchased
or retired pursuant to the provisions of this SECTION B.3 or surrendered to the
Corporation upon conversion shall thereupon be retired and may not be reissued.
4. VOTING RIGHTS. Except as otherwise provided in SECTION B.7
of this ARTICLE FOURTH or as required under the DECL., the holders of shares of
Series A Preferred Stock shall not be entitled to vote on any matter submitted
to a vote of stockholders of the Corporation. Any vote expressly required by
SECTION B.7 of this ARTICLE FOURTH or by the DECL. may be given in person or by
proxy, either in writing without a meeting or by vote at any meeting called for
such purpose.
5. LIQUIDATION RIGHTS.
(a) In the event of any liquidation, dissolution or winding up
of the affairs of the Corporation, whether voluntary or otherwise, the holders
of shares of Series A Preferred Stock shall be entitled to receive, out of the
assets of the Corporation available for distribution to its stockholders, in
cash, the amount of $10,000 for each share of Series A Preferred. Stock, plus an
amount equal to all dividends accrued and unpaid on each such share up to the
date fixed for distribution, before any distribution shall be made to the
holders of shares of Junior Securities. If upon any liquidation, dissolution or
winding up of the Corporation, the assets distributable among the holders of
shares of Series A Preferred Stock and the shares of Series B Preferred Stock
are insufficient to permit the payment in full to the holders of all such shares
of all preferential amounts payable to such holders, then the entire assets of
the Corporation so distributable shall be distributed ratably among the holders
of the shares of Series A Preferred Stock and the shares of Series B Preferred
Stock in proportion to the respective amounts that would be payable per share if
such assets were sufficient to permit payment in full.
(b) The holder of any shares of Series A Preferred Stock shall
not be entitled to receive any payment owed for such shares under this SECTION
B.5 until such holder shall cause to be delivered to the Corporation (i) the
certificate(s) representing such shares and (ii) transfer instrument(s)
satisfactory to the Corporation and sufficient to surrender such shares to the
Corporation free of any adverse interest.
(c) After the payment of the full preferential amounts
provided for herein to the holders of shares of Series A Preferred Stock, such
holders shall not be entitled to any other or further participation in the
distribution of the assets of the Corporation.
6. CONVERSION.
(a) OPTIONAL CONVERSION. Each share of Series A Preferred
Stock shall be convertible, at the option of the holder thereof, at any time
after the date of issuance of such share into (i) 2.26372 fully paid and
nonassessable shares of Class A Common Stock (the "Common Stock Conversion
Shares") and (ii) one fully paid and nonassessable shares of Series B Preferred
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Stock (the "Series B Conversion Shares"). However, the Common Stock Conversion
Shares and the Series B Conversion Shares shall be subject to adjustment from
time to time in accordance with SECTION B.6(d) of this ARTICLE FOURTH.
(b) AUTOMATIC CONVERSION. Each share of Series A Preferred
Stock shall automatically convert into shares of fully paid and nonassesable
Class A Common Stock and Series B Preferred Stock, without any further action
required on the part of the holder thereof, either:
(i) immediately prior to the closing of the
Corporation's initial underwritten public offering pursuant to
a Registration Statement filed with and declared effective by
the Securities Exchange Commission under the Securities Act of
1933, as amended, which is an IPO Event; or
(ii) any consolidation or merger to which the
Corporation is a party other than a merger in which the
Corporation is the continuing corporation and which does not
result in any reclassification of, or change (other than a
change in name, or par value, or from par value to no par
value, or from no par value to par value, or as a result of a
subdivision or combination) in, outstanding shares of Common
Stock or Series A Preferred Stock; or
(iii) any sale or conveyance of all or substantially
all of the property or business of the Corporation as an
entirety (including, in the case of any of the foregoing
events, any statutory exchange of securities with another
corporation).
The number of shares of Class A Common Stock issuable upon such automatic
conversion of a share of Class A Preferred Stock shall be equal to the Common
Stock Conversion Shares as in effect at such time and the number of shares of
Series B Preferred Stock shall be equal to the Series B Conversion Shares as in
effect at such time.
(c) MECHANICS OF CONVERSION. Before any holder of Series A
Preferred Stock shall be entitled to convert the same into shares of Class A
Common Stock and Series B Preferred Stock, such holder shall surrender the
certificate or certificates therefor, duly endorsed, at the office of the
Corporation or of any transfer agent for Series A Preferred Stock and shall give
written notice by mail, postage prepaid, to the Corporation at its principal
corporate office of the election to convert the same and shall state therein the
name or names in which the certificate or certificates for shares of Class A
Common Stock and Series B Preferred Stock are to be issued. The Corporation
shall, as soon as practicable thereafter, issue and deliver at such office to
such holder of Series A Preferred Stock, or to the nominee or nominees of such
holder, a certificate or certificates for the number of shares of Class A Common
Stock and Series B Preferred Stock to which such holder shall be entitled as
aforesaid. Such conversion shall be deemed to have been made immediately prior
to the close of business on the date of such
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surrender of the shares of Series A Preferred Stock to be converted, and the
person or persons entitled to receive the shares of Class A Common Stock and
Series B Preferred Stock issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such shares of Class A Common Stock
and Series B Preferred Stock as of such date. If the conversion is in connection
with an underwritten offering of securities registered pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), the conversion may,
at the option of any holder tendering Series A Preferred Stock for conversion,
be conditioned upon the closing with the underwriter of the sale of securities
pursuant to such offering, in which event the person converting such Series A
Preferred Stock shall not be deemed to have converted such Series A Preferred
Stock until immediately prior to the closing of such sale of securities and the
person(s) entitled to receive the Class A Common Stock and Series B Preferred
Stock issuable upon such conversion of Series A Preferred Stock shall not be
deemed to be record holders of such Class A Common Stock and Series B Preferred
Stock until immediately prior to the closing of such sale of securities. No
payment or adjustment shall be made on conversion for any dividends payable on
the Class A Common Stock delivered on conversion. Effective as of any
conversion, the Corporation shall be excused from paying any dividends on the
shares converted, except for any dividends accrued and unpaid through the day of
conversion.
(d) ANTIDILUTION PROVISIONS. The Common Stock Conversion
Shares and the Series B Conversion Shares shall be subject to adjustment from
time to time as follows:
(i) STOCK DIVIDENDS; STOCK SPLITS; REVERSE STOCK
SPLITS; RECLASSIFICATIONS. In case the Corporation shall (A)
pay a dividend or make any other distribution with respect to
its Class A Common Stock in shares of its capital stock, (B)
subdivide its outstanding Class A Common Stock, (C) combine
its outstanding Class A Common Stock into a smaller number of
shares, or (D) issue any shares of its capital stock in a
reclassification of the Class A Common Stock (including any
such reclassification in connection with a merger,
consolidation or other business combination in which the
Corporation is the continuing corporation) then the Common
Stock Conversion Shares issuable upon conversion of a share of
Series A Preferred Stock immediately prior to the record date
for such dividend or distribution or the effective date of
such subdivision or combination shall be adjusted so that the
holder of a share of Series A Preferred Stock shall thereafter
be entitled to receive the kind and number of shares of Class
A Common Stock or other securities of the Corporation that
such holder would have owned or have been entitled to receive
after the happening of any of the events described above, had
such share of Series A Preferred Stock been converted
immediately prior to the happening of such event or any record
date with respect thereto. An adjustment made pursuant to this
SECTION B.6(d) (i) shall become effective immediately after
the effective date of such event retroactive to the record
date, if any, for such event.
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(ii) RIGHTS; OPTIONS; WARRANTS.
(A) In case the Corporation shall issue rights,
options, warrants or convertible or exchangeable securities
(other than a convertible or exchangeable security subject to
SECTION B.6(d)(i) of this ARTICLE FOURTH) to all holders of
its Common Stock, entitling them to subscribe for or purchase
shares of Common Stock at a price per share of Common Stock
that is lower (at the close of business on the Business Day
immediately prior to the record date for such issuance) than
the Current Market Value per share of Class A Common Stock,
then the Common Stock Conversion Shares thereafter issuable
upon the conversion of a share of Series A Preferred Stock
shall be determined by multiplying the Common Stock Conversion
Shares theretofore issuable upon the conversion of a share of
Series A Preferred Stock by a fraction, of which the numerator
shall be the number of shares of Common Stock Outstanding on a
Fully Diluted Basis on the date of issuance of such rights,
options, warrants or convertible or exchangeable securities,
plus the number of additional shares of Common Stock to be
issued upon exercise, conversion or exchange of such rights,
options, warrants or convertible or exchangeable securities
and of which the denominator shall be the number of shares of
Common Stock Outstanding on a Fully Diluted Basis on the date
of issuance of such rights, options, warrants or convertible
or exchangeable securities, plus the number of shares of
Common Stock which the aggregate consideration to be received
by the Corporation in connection with such issuance would
purchase at the then Current Market Value per share of Class A
Common Stock.
(B) For purposes of this SECTION B.6(d) (ii), the
consideration received by the Corporation in connection with
the issuance of rights, options, warrants or convertible or
exchangeable securities shall be deemed to be the
consideration received by the Corporation for such rights,
options, warrants or convertible or exchangeable securities,
plus the consideration or premiums stated in such rights,
options, warrants or convertible or exchangeable securities to
be paid for the shares of Common Stock covered thereby.
(C) Any adjustment pursuant to this SECTION B.6(d) (ii)
shall be made whenever any such rights, options, warrants
or convertible or exchangeable securities are issued, but
shall also become effective retroactively in respect of
conversions made between the record dates for the
determination of stockholders entitled to receive such rights,
options, warrants or convertible or
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exchangeable securities and the date such rights, options,
warrants or convertible or exchangeable securities are issued.
(D) For purposes of adjustments under this SECTION
B.6(d)(ii), if the Corporation shall issue rights, options,
warrants or convertible or exchangeable securities containing
the right to subscribe for or purchase shares of Common Stock
for a consideration consisting, in whole or in part, of
property other than cash or its equivalent, then in
determining the "price per share of Class A Common Stock" and
the "consideration" receivable by or payable to the
Corporation for purposes of the first sentence of this SECTION
B.6(d)(ii), the Board of Directors of the Corporation shall
determine, in good faith, the fair value of such property. In
case the Corporation shall issue rights, options, warrants or
convertible or exchangeable securities containing the right to
subscribe for or purchase shares of Common Stock, together
with one or more other securities as part of a unit at a price
per unit, then in determining the "price per share of Class A
Common Stock" and the "consideration" receivable by or payable
to the Corporation for purposes of the first sentence of this
SECTION B.6(d)(ii), the Board of Directors of the Corporation
shall determine, in good faith, the fair value of the rights,
options, warrants or convertible or exchangeable securities
then being sold as part of such unit.
(iii) ISSUANCE OF COMMON STOCK AT LOWER VALUES.
(A) In case the Corporation shall, in a transaction
in which SECTION 13.6(d)(ii) of this ARTICLE FOURTH is
inapplicable, issue or sell shares of Common Stock, or rights,
options (other than options issued pursuant to the French
Holdings, Inc. 1996 Performance Stock Option Plan), warrants
or convertible or exchangeable securities containing the right
to subscribe for or purchase shares of Common Stock, at a
price per share of Common Stock that is lower than the then
Current Market Value per share of the Class A Common Stock in
effect immediately prior to such sale or issuance, then the
Common Stock Conversion Shares thereafter issuable upon the
conversion of a share of Series A Preferred Stock shall be
determined by multiplying the Common Stock Conversion Shares
theretofore issuable upon the conversion of a share of Series
A Preferred Stock by a fraction, of which the numerator shall
be the number of shares of Common Stock Outstanding on a Fully
Diluted Basis on the date of issuance of such shares of Common
Stock or rights, options, warrants or convertible or
exchangeable securities, plus the number of additional shares
of Common Stock offered for subscription or purchase or to be
issued upon exercise, conversion or exchange of such rights,
options, warrants or
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convertible or exchangeable securities and of which the
denominator shall be the number of shares of Common Stock
Outstanding on a Fully Diluted Basis on the date of issuance
of such shares of Common Stock or rights, options, warrants or
convertible or exchangeable securities, plus the number of
shares of Common Stock which the aggregate consideration to be
received by the Corporation in connection with such issuance
would purchase at the then Current Market Value per share of
Class A Common Stock.
(B) For purposes of such adjustments under this
SECTION B.6(d)(iii), the shares of Common Stock which the
holder of any such rights, options, warrants or convertible or
exchangeable securities shall be entitled to subscribe for or
purchase shall be deemed to be issued and outstanding as of
the date of the sale and issuance of the rights, warrants or
convertible or exchangeable securities and the consideration
received by the Corporation therefor shall be deemed to be the
consideration received by the Corporation for such rights,
options, warrants or convertible or exchangeable securities,
plus the consideration or premiums stated in such rights,
options, warrants or convertible or exchangeable securities to
be paid for the shares of Common Stock covered thereby.
(C) In case the Corporation shall issue and sell
shares of Common Stock or rights, options, warrants or
convertible or exchangeable securities containing the right to
subscribe for or purchase shares of Common Stock for a
consideration consisting, in whole or in part, of property
other than cash or its equivalent, then in determining the
"price per share of Class A Common Stock" and the
"consideration" receivable by or payable to the Corporation
for purposes of the first sentence of this SECTION B.6(d)
(iii), the Board of Directors of the Corporation shall
determine, in good faith, the fair value of such property. In
case the Corporation shall issue and sell rights, options,
warrants or convertible or exchangeable securities containing
the right to subscribe for or purchase shares of Common Stock,
together with one or more other securities as part of a unit
at a price per unit, then in determining the "price per share
of Class A Common Stock" and the "consideration" receivable by
or payable to the Corporation for purposes of the first
sentence of this SECTION B.6(d)(iii), the Board of Directors
of the Corporation shall determine, in good faith, the fair
value of the rights, options, warrants or convertible or
exchangeable securities then being sold as part of such unit.
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(iv) DISTRIBUTIONS OF CASH, DEBT, ASSETS. SUBSCRIPTION
RIGHTS OR CONVERTIBLE SECURITIES.
(A) In case the Corporation shall fix a record date
for the making of a distribution to all holders of shares of
its Common Stock of cash, evidences of indebtedness of the
Corporation, assets or securities (excluding those referred to
in Section B.6(d)(ii) of this ARTICLE FOURTH and excluding
cash dividends which are not Extraordinary Dividends) (any
such cash, evidences of indebtedness, assets or securities,
the "Assets or Securities"), then, at the election of the
Corporation, either (I) the Common Stock Conversion Shares
theretofore issuable after such record date upon conversion of
a share of Series A Preferred Stock shall be adjusted by
multiplying the Common Stock Conversion Shares theretofore
issuable upon the conversion of a share of Series A Preferred
Stock immediately prior to such record date by a fraction, the
numerator of which shall be the then Current Market Value per
share of Class A Common Stock at the close of business on the
Business Day immediately prior to the record date for such
distribution and the denominator of which shall be the then
Current Market Value per share of Class A Common Stock at the
close of business on the Business Day immediately prior to the
record date for such distribution less an amount equal to the
then fair value (as determined by the Board of Directors of
the Corporation acting in good faith) of the Assets or
Securities applicable to one share of Class A Common Stock, or
(II) adequate provision shall be made so that in the event of
a conversion of a share of Series A Preferred Stock the Holder
of the Series A Preferred Stock shall have the right to
receive, in addition to Common Stock Conversion Shares, at the
election of the Corporation, either (A) the Assets or
Securities to which such holder would have been entitled as a
holder of Class A Common Stock if such holder had converted
such holder's share of Series A Preferred Stock immediately
prior to the record date for such distribution or (B) the cash
equivalent of such Assets or Securities.
(B) If the Corporation elects to adjust the number of
Common Stock Conversion Shares issuable upon the conversion of
a share of Series A Preferred Stock pursuant to SECTION
B.6(d)(iv)(A)(I) of this ARTICLE FOURTH, such adjustment shall
be made whenever any such distribution is made, and shall
become effective on the date of distribution retroactive to
the record date for the determination of stockholders entitled
to receive such distribution; PROVIDED that the Corporation
shall deliver to any holder that converts a share of Series A
Preferred Stock after any such record date, but prior to the
related distribution, a due bill or other
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appropriate instrument evidencing such holder's right to
receive such distribution upon its occurrence.
(C) Notwithstanding the foregoing, the Corporation
shall not elect the adjustment provided for in SECTION
B.6(d)(iv)(A)(I) of this ARTICLE FOURTH if the then fair value
(as determined by the Board of Directors of the Corporation
acting in good faith) of the Assets or Securities applicable
to one share of Common Stock is equal to or greater than the
then Current Market Value per share of Class A Common Stock at
the close of business on the Business Day immediately prior to
the record date for such distribution.
(v) EXPIRATION OF RIGHTS, OPTIONS AND CONVERSION
PRIVILEGES. Upon the expiration of any rights, options,
warrants or conversion or exchange privileges that have
previously resulted in an adjustment hereunder, if any thereof
shall not have been exercised, the Common Stock Conversion
Shares issuable upon the conversion of a share of Series A
Preferred Stock shall, upon such expiration, be readjusted and
shall thereafter, upon any future conversion, be such as they
would have been had they been originally adjusted (or had the
original adjustment not been required, as the case may be) as
if (A) the only shares of Common Stock so issued were the
shares of Common Stock, if any, actually issued or sold upon
the exercise of such rights, options, warrants or conversion
or exchange rights and (B) such shares of Common Stock, if
any, were issued or sold for the consideration actually
received by the Corporation upon such exercise plus the
consideration, if any, actually received by the Corporation
for issuance, sale or grant of all such rights, options,
warrants or conversion or exchange rights whether or not
exercised; PROVIDE that no such readjustment shall have the
effect of decreasing the Common Stock Conversion Shares by a
number, in excess of the number of the adjustment initially
made in respect to the issuance, sale or grant of such rights,
options, warrants or conversion or exchange rights.
(vi) NO ADJUSTMENT FOR ORDINARY DIVIDENDS. Except as
otherwise provided in this SECTION B.6(d), no adjustment in
respect of any ordinary dividends declared and paid on Common
Stock, or on any other capital stock of the Corporation, shall
be made to the Common Stock Conversion Shares.
(vii) DE MINIMIS ADJUSTMENTS. Except as provided in
SECTION B.6(d)(iii) of this ARTICLE FOURTH with reference to
adjustments required by such SECTION B.6(d)(iii) of this
ARTICLE
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FOURTH, no adjustment in the shares of Common Stock Conversion
Shares issuable hereunder shall be required unless cumulative
adjustments would require an increase or decrease of at least
one percent (1%) in the number of shares of Class A Common
Stock issuable upon the conversion of a share of Series A
Preferred Stock; PROVIDED that any adjustments which by reason
of this SECTION B.6(d)(vii) are not required to be made shall
be carried forward and taken into account in any subsequent
adjustment. All calculations shall be made and rounded to the
nearest one-thousandth of a share (with calculations of five
ten-thousandth and above rounded up, and calculations less
than five ten-thousandths rounded down).
(viii) OTHER ADJUSTMENTS. In the event that at any
time, as a result of an adjustment made pursuant to this
SECTION B.6(d), the registered holders of the Series A
Preferred Stock shall become entitled to receive any
securities of the Corporation other than shares of Class A
Common Stock, thereafter the number of such other securities
so receivable upon the conversion of a share of Series A
Preferred Stock shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the shares of
Class A Common Stock contained in this SECTION B.6(d).
(ix) OTHER DILUTIVE EVENTS. In case any event shall
occur as to which the other provisions of this SECTION B.6(d)
are not strictly applicable but the failure to make any
adjustment would not fairly protect the conversion rights of
the Series A Preferred Stock in accordance with the essential
intent and principles of this SECTION B.6(d), then, in each
such case, the Corporation shall appoint a firm of independent
certified public accountants of recognized national standing
(which may be the regular auditors of the Corporation), which
shall give their opinion upon the adjustment, if any, on a
basis consistent with the essential intent and principles
established in this SECTION B.6(d), necessary to preserve,
without dilution, the conversion rights of this SECTION
B.6(d). Upon receipt of such opinion, the Corporation will
promptly mail a copy thereof to each record holder of Series A
Preferred Stock and shall make the adjustments described
therein.
(e) NO IMPAIRMENT. The Corporation will not, by amendment of
its Certificate of Incorporation or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities 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 but
will at all times in good faith assist in the carrying out of all the provisions
of
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this SECTION B.6 and in the taking of all such action as may be necessary or
appropriate in order to protect the Conversion Rights of the holders of Series A
Preferred Stock against impairment.
(f) FRACTIONAL SHARES; CERTIFICATE AS TO ADJUSTMENTS. Prior to
an IPO Event, fractional shares of Class A Common Stock and Series B Preferred
Stock may be issued upon conversion of shares of Series A Preferred Stock. After
an IPO Event, no fractional shares shall be issued upon conversion of shares of
Series A Preferred Stock. After an IPO Event, if one or more shares of Series A
Preferred Stock shall be presented for conversion at the same time by the same
stockholder, the number of full shares of Class A Common Stock and Series B
Preferred Stock which shall be issuable upon the conversion thereof shall be
computed on the basis of the aggregate number of shares of Class A Common Stock
and Series B Preferred Stock to be issued upon conversion of the Series A
Preferred Stock so presented. If any fraction of shares of Class A Common Stock
or Series B Preferred Stock would, except for the provisions of this SECTION
D.6(f), be issuable on the conversion of shares of Series A Preferred Stock, the
Corporation shall pay an amount in cash equal to the Current Market Value of one
share of the Class A Common Stock or one share of Series B Preferred Stock, as
the case may be, on the Business Day immediately preceding the date the share of
Series A Preferred Stock is presented for conversion multiplied by such
fraction. Upon the occurrence of each adjustment or readjustment of the Common
Stock Conversion Shares pursuant to this SECTION B.6, the Corporation at its
expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to each holder of shares of Series A Preferred
Stock a certificate setting forth such adjustment or readjustment and showing in
detail the facts upon which such adjustment or readjustment is based. The
Corporation shall, upon the written request at any time of any holder of Series
A Preferred Stock, furnish or cause to be furnished to such holder a like
certificate setting forth (i) such adjustments and readjustments, (ii) the
Common Stock Conversion Shares and Preferred Stock Conversion Shares at the time
in effect, and (iii) the number of shares of Class A Common Stock and Series B
Preferred Stock and the amount, if any, of other property which at the time
would be received upon the conversion of shares of Series A Preferred Stock.
(g) NOTICES OF RECORD DATE. In the event that the Corporation
shall propose at any time:
(i) to declare any dividend or distribution upon its
Common Stock, whether or not a regular cash dividend and
whether or not out of earnings or earned surplus;
(ii) to offer for subscription pro rata to the
holders of any class or series of its stock any additional
shares of stock of any class or series or other rights;
(iii) to effect any reclassification or
recapitalization of its Common Stock outstanding involving a
change in the Common Stock;
(iv) to merge or consolidate with or into any other
corporation or other entity or person, or sell, lease or
convey all or
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substantially all its property or business, or to liquidate,
dissolve or wind up; or
(v) any firm commitment underwritten public offering
pursuant to an effective registration statement under the
Securities Act covering the offer and sale of Class A Common
Stock for the account of the Corporation;
then, in connection with each such event, the Corporation shall send to the
holder of Series A Preferred Stock:
(1) at least twenty days' prior written
notice of the date on which a record shall be taken
for such dividend, distribution or subscription
rights (and specifying the date on which the holders
of Common Stock shall be entitled thereto) or for
determining rights to vote in respect of the matters
referred to in (iii) and (iv) above; and
(2) in the case of the matters referred to
in (iii), (iv) and (v) above, at least twenty days'
prior written notice of the date when the same shall
take place (and specifying the date on which the
holders of Common Stock shall be entitled to exchange
their shares of Common Stock for securities or other
property deliverable upon the occurrence of such
event).
Each written notice shall be delivered personally or given
by United States mail, return receipt requested, postage prepaid, addressed to
the holders of Series A Preferred Stock at the address for each such holder as
shown on the books of the Corporation.
(h) TRANSFER TAXES. If a holder converts shares of Series A
Preferred Stock, the Corporation shall pay any documentary, stamp or similar
issue or transfer tax due on the issue of Class A Common Stock and Series B
Preferred Stock upon the conversion. The holder, however, shall pay to the
Corporation the amount of any tax which is due (or shall establish to the
satisfaction of the Corporation the payment thereof or that no such payment is
due) if the shares are to be issued in a name other than the name of such
holder.
(i) RESERVATION OF SHARES. The Corporation shall reserve and
shall at all times have reserved out of its authorized but unissued shares of
Class A Common Stock and Series B Preferred Stock, solely for the purpose of
effecting the conversion of Series A Preferred Stock, enough shares of Class A
Common Stock and Series B Preferred Stock to permit the conversion of the then
outstanding shares of Series A Preferred Stock. All shares of Class A Common
Stock and Series B Preferred Stock which may be issued upon conversion of shares
of Series A Preferred Stock shall be validly issued, fully paid and
nonassessable. The Corporation shall from time to time, in accordance with the
laws of the State of Delaware, increase the authorized number of shares of Class
A Common Stock or Series B Preferred Stock if at any time the
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number of shares of Class A Common Stock or Series B Preferred Stock, as the
case may be, authorized but not outstanding shall not be sufficient to permit
conversion of all then-outstanding shares of Series A Preferred Stock. In order
that the Corporation may issue shares of Class A Common Stock and Series B
Preferred Stock upon conversion of shares of Series A Preferred Stock, the
Corporation shall use its reasonable best effort to assure that all such shares
of Class A Common Stock and Series B Preferred Stock may be so issued without
violation of any applicable law or governmental regulations or any requirements
of any domestic securities exchange upon which shares of Common Stock or
Preferred Stock of the relevant series may be listed (except for official notice
of issuance which shall be immediately transmitted by the Corporation upon
issuance).
(j) In the event that, as a result of an adjustment made
pursuant to SECTION B.6(c) (viii) of this ARTICLE FOURTH, the holder of any
shares of Series A Preferred Stock thereafter surrendered for conversion shall
become entitled to receive any shares of capital stock of the Corporation other
than shares of Class A Common Stock, thereafter the number of such other shares
so receivable upon conversion of any shares of Series A Preferred Stock shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Class A Common
Stock contained in this SECTION B.6.
(k) In the event that there are any stock dividends, stock
splits, reverse stock splits, reclassifications or similar transactions to the
Series B Preferred Stock, the Series B Conversion Shares shall be appropriately
adjusted to reflect such stock dividend, stock split, reverse stock split,
reclassification or similar transaction.
7. LIMITATIONS. In addition to any other rights provided by
applicable law, so long as any shares of Series A Preferred Stock are
outstanding, the Corporation shall not, without the affirmative vote, or the
written consent as provided by law, of the holders of at least two-thirds of the
outstanding shares of Series A Preferred Stock, voting separately as a class,
(a) create, authorize or issue any class or series of
Preferred Stock or any other class of capital stock ranking either as to payment
of dividends or distribution of assets upon liquidation, dissolution or winding
up of the affairs of the Corporation on a parity with, or having preference or
priority over, the Series A Preferred Stock (other than the Series B Preferred
Stock); or
(b) change the powers, preferences or rights with respect to
the Series A Preferred Stock so as to affect the Series A Preferred Stock
adversely;
PROVIDED, HOWEVER, any vote which would adversely affect the amount or timing of
the payment of dividends on the Series A Preferred Stock, the amount or timing
of the payment of the Series A Redemption Price, any amounts paid pursuant to
SECTION B.5 of this ARTICLE FOURTH, the computation of the Series A Conversion
Shares or the computation of the Series B Conversion Shares would require the
affirmative vote of the holders of all of the outstanding shares of Series A
Preferred Stock; and PROVIDED, FURTHER, (except as otherwise required by
applicable law) nothing herein contained shall require such a vote or consent in
connection with (i) any increase in the total number of authorized shares of
Common Stock, or (ii) the authorization or increase of
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any class or series of shares ranking, as to dividends and in liquidation,
dissolution or winding up of the affairs of the Corporation, junior to the
Series A Preferred Stock; PROVIDED that no such vote or written consent of the
holders of the shares of Series A Preferred Stock shall be required if, at or
prior to the time when the issuance of any such shares ranking on a parity with,
or having preference or priority over, the Series A Preferred Stock is to be
made or any such change is to take effect, as the case may be, provision is made
for the redemption of all the then outstanding shares of Series A Preferred
Stock.
8. DIVIDEND RECEIVED DEDUCTION. For federal income tax
purposes, the Corporation shall report distributions on the Series A Preferred
Stock as dividends, to the extent of the Corporation's current and accumulated
earnings and profits (as determined for federal income tax purposes). In
addition, the Corporation covenants not to take any action voluntarily which
could reasonably be expected to cause dividends on the Series A Preferred Stock
to fail to be eligible for the dividend received deduction pursuant to Section
243 of the Internal Revenue Code of 1986, as amended from time to time.
9. CERTAIN DEFINITIONS. The following terms shall have the
meanings ascribed to them below:
"BUSINESS DAY" means any day other than a Saturday or a Sunday
or a day on which commercial banking institutions in the City of New York are
authorized by law to be closed. Any reference to "days" (unless Business Days
are specified) shall mean calendar days.
"CURRENT MARKET VALUE" means on any date specified herein, the
amount per share of the Class A Common Stock, equal to (a) the last sale price
of such Class A Common Stock, regular way, on such date or, if no such sale
takes place on such date, the average of the closing bid and asked prices
thereof on such date, in each case as officially reported on the principal
national securities exchange on which such Class A Common Stock is then listed
or admitted to trading or (b) if such Class A Common Stock is not then listed or
admitted to trading on any national securities exchange but is designated as a
national market system security by the NASD, the last trading price of the
Common Stock on such date, or (c) if there shall have been no trading on such
date or if the Class A Common Stock is not so designated, the average of the
closing bid and asked price of the Class A Common Stock on such date as shown by
the NASD automated quotation system, or (d) if such Class A Common Stock is not
then listed or admitted to trading on any national exchange or quoted in the
over-the-counter market, the Fair Market Value (as defined in the Stockholders
Agreement). Any determination made in good faith by the Corporation's Board of
Directors as to the Current Market Value of the Class A Common Stock shall be
binding on the Corporation and all Holders.
"EMPLOYEE STOCKHOLDER AGREEMENT" has the meaning specified in
the Stockholders Agreement.
"EXTRAORDINARY DIVIDEND" means any dividend or other
distribution of cash or other property (other than Common Stock) made with
respect to Common Stock which the Board of Directors declare generally to be
other than an ordinary dividend.
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"IPO EVENT" has the meaning specified in the Stockholders
Agreement.
"MANAGEMENT REPURCHASE NOTE" has the meaning specified in the
Stockholders Agreement.
"NASD" means The National Association of Securities Dealers.
OUTSTANDING ON A FULLY DILUTED BASIS: An amount equal to the
total outstanding number of shares of Common Stock assuming the conversion or
exchange of all outstanding shares of securities convertible or exchangeable
into Common Stock of the Corporation and the exercise of all warrants, options
and other rights (including, without limitation, employee stock options (other
than options issued pursuant to the French Holdings, Inc. 1996 Performance Stock
Option Plan)) to purchase shares of Common Stock of the Corporation.
"STOCKHOLDERS AGREEMENT" means the Stockholders Agreement
dated as of April 1996, by and among the Corporation, the Stockholders (as
defined therein) and the Note Purchasers (as defined therein), as such agreement
may be amended, supplemented or otherwise modified from time to time after the
date hereof.
"WINDWARD GROUP" has the meaning specified in the Stockholders
Agreement.
C. SERIES B PREFERRED STOCK. No shares of Series B Preferred
Stock shall be issued except pursuant to the conversion of the Series A
Preferred Stock. The powers, preferences and rights of the Series B Preferred
Stock, and the qualifications, limitations or restrictions thereof, are as
follows:
1. RANK. The Series B Preferred Stock shall, with respect to
dividend rights and rights of liquidation, winding up and dissolution, rank (i)
on a parity with the Series A Preferred Stock and (ii) senior to any of the
Junior Securities.
2. DIVIDENDS.
(a) The holders of shares of Series B Preferred Stock will be
entitled to receive, when, as and if declared by the Board of Directors out of
funds of the Corporation legally available therefor, cumulative cash dividends
at the per share rate of $700 per annum, or $175 per quarter for each of the
quarterly periods ending on the last day of March, June, September and December
of each year, and no more, payable in arrears on each succeeding April 1, July
1, October 1 and January 1, respectively, commencing on the later of January 1,
1997 and the first dividend payment date after the date of original issue;
PROVIDED that: (i) if any such payment date is not a Business Day then such
dividend shall be payable on the next Business Day, and (ii) accumulated and
unpaid dividends for any prior quarterly period may be paid at any time. Such
dividends shall accrue and be cumulative from the date of original issue of each
share of Series B Preferred Stock, whether or not there are funds legally
available for the payment of dividends on any payment date. Each such dividend
shall be paid to the holders of record of the shares of Series B Preferred Stock
as they appear on the share register of the Corporation on such
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record date, not more than 60 days nor less than 10 days preceding the dividend
payment date, as shall be fixed by the Board of Directors or a duly authorized
committee thereof.
(b) If dividends are not paid in full, or declared in full and
sums set apart for the payment thereof, upon the shares of Series B Preferred
Stock and Series A Preferred Stock, all dividends declared upon shares of Series
B Preferred Stock and shares of Series A Preferred Stock shall be paid or
declared pro rata so that in all cases the amount of dividends paid or declared
per share on the Series B Preferred Stock and the Series A Preferred Stock shall
bear to each other the same ratio that unpaid accumulated dividends per share,
including dividends accrued or in arrears, if any, on the shares of Series B
Preferred Stock and the shares of Series A Preferred Stock bear to each other.
Unless and until full cumulative dividends on the shares of Series B Preferred
Stock in respect of all past quarterly dividend periods have been paid, and the
full amount of dividends on the shares of Series B Preferred Stock in respect of
the then current quarterly dividend period shall have been or are
contemporaneously declared in full and sums set aside for the payment thereof,
(i) no dividends shall be paid or declared and set aside for payment or other
distribution made upon any of the Junior Securities, other than in shares of, or
warrants or rights to acquire, Junior Securities; and (ii) no shares of Junior
Securities or shares of Series A Preferred Stock shall be redeemed, retired,
purchased or otherwise acquired for any consideration (or any payment made to or
available for a sinking fund for the redemption of any such shares) by the
Corporation or any subsidiary of the Corporation (except by conversion into or
exchange for shares of Junior Securities or pursuant to a Management Repurchase
Note delivered in accordance with the provisions of the Stockholders Agreement
or an Employee Stockholder Agreement). Holders of shares of Series B Preferred
Stock shall not be entitled to any dividends, whether payable in cash, property
or shares of capital stock, in excess of full accrued and cumulative dividends
as herein provided. No interest or sum of money in lieu of interest shall be
payable in respect of any dividend payment or payments on the shares of Series B
Preferred Stock that may be in arrears.
(c) Dividends payable on the shares of Series B Preferred
Stock for any period less than a full quarterly dividend period shall be
computed on the basis of a 360-day year of twelve 30-day months and the actual
number of days elapsed in the period for which payable.
3. OPTIONAL REDEMPTION AND MANDATORY REDEMPTION.
(a) The shares of Series B Preferred Stock are redeemable at
the option of the Corporation by resolution of its Board of Directors, in whole
or from time to time in part, at any time upon giving notice as provided in
SECTION C.3(f) of this ARTICLE FOURTH at a redemption price in cash equal to the
sum of (A) $10,000 for each share of Series B Preferred Stock called for
redemption plus (B) all dividends accrued and unpaid thereon up to the date
fixed for redemption, (such price, plus such dividends accrued and unpaid, shall
be hereinafter referred to as the "SERIES B PREFERRED REDEMPTION PRICE").
(b) The shares of Series B Preferred Stock shall be redeemed
in cash at the Series B Preferred Redemption Price if any of the following
events shall occur (such events shall be hereinafter referred to as the
"MANDATORY EVENT REDEMPTION DATE"):
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(i) in the event of the closing of a firm commitment,
underwritten public offering pursuant to an effective
registration statement under the Securities Act covering the
offer and sale of shares of Common Stock for the account of
the Corporation which is an IPO Event; or
(ii) any consolidation or merger to which the
Corporation is a party other than a merger in which the
Corporation is the continuing corporation and which does not
result in any reclassification of, or change (other than a
change in name, or par value, or from par value to no par
value, or from no par value to par value, or as a result of a
subdivision or combination) in, outstanding shares of Common
Stock or Series B Preferred Stock; or
(iii) any sale or conveyance of all or substantially
all of the property or business of the Corporation as an
entirety (including, in the case of any of the foregoing
events, any statutory exchange of securities with another
corporation).
(c) If a redemption pursuant to this SECTION C.3(a) or (b) of
this ARTICLE FOURTH has not occurred by March 31, 2006 (the "SERIES B PREFERRED
MANDATORY REDEMPTION DATE"), the Corporation shall, on the Series B Preferred
Mandatory Redemption Date, redeem all shares of Series B Preferred Stock
outstanding at the Series B Preferred Redemption Price. The Series B Preferred
Redemption Price shall be payable in cash.
(d) If, for any reason, the Corporation shall fail to
discharge its mandatory redemption obligations pursuant to SECTION C.3(b) or (c)
of this ARTICLE FOURTH, such purchase obligations shall be discharged as soon as
the Corporation is able to discharge such obligations. If and so long as any
mandatory redemption obligations with respect to the shares of the Series B
Preferred Stock shall not be fully discharged, the Corporation shall not,
directly or indirectly:
(i) declare or pay any dividend on any Junior
Securities or make any payment on account of, or set apart
money for, a sinking or other analogous fund for the purchase,
redemption or other retirement of, or purchase, redeem or
retire, any Junior Securities, make any distribution in
respect of Junior Securities, either directly or indirectly
and whether in cash or property or in obligations or shares of
the Corporation (other than in Junior Securities); or
(ii) purchase or redeem (except in either case for
consideration payable in Junior Securities) any Junior
Securities then outstanding (other than pursuant to a
Management Repurchase Note delivered in accordance with the
provisions of the Stockholders Agreement or an Employee
Stockholder Agreement).
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Dividends shall continue to accrue on a cumulative basis with respect to any
shares of Series B Preferred Stock subject to a mandatory redemption obligation
that has not been discharged by the Corporation pursuant to SECTION C.3(b) or
(c) of this ARTICLE FOURTH.
(e) If less than all of the outstanding shares of Series B
Preferred Stock are to be redeemed, the number of shares to be redeemed shall be
determined by the Board of Directors, and the shares to be redeemed shall be
determined pro rata or by lot or in such other manner and subject to such
regulations as the Board of Directors in its sole discretion shall prescribe.
(f) At least 10 days but not more than 60 days prior to a
Mandatory Event Redemption Date, the Series B Preferred Mandatory Redemption
Date or the date fixed for any optional redemption of shares of Series B
Preferred Stock (such date for optional redemption together with the Mandatory
Event Redemption Date and the Series B Preferred Mandatory Redemption Date,
shall be hereinafter referred to as the "SERIES B PREFERRED REDEMPTION DATE"), a
written notice shall be mailed to each holder of record of shares of Series B
Preferred Stock to be redeemed and each holder of record of shares of Series A
Preferred Stock which such shares have automatically been converted into shares
of Series B Preferred Stock, but which such shares have not yet been issued, in
a postage prepaid envelope addressed to such holder at such holder's post office
address as shown on the records of the Corporation, notifying such holder of the
Mandatory Event Redemption Date, the Series B Preferred Mandatory Redemption
Date or the election of the Corporation to redeem such shares, stating the date
fixed for redemption thereof, specifying the Series B Preferred Redemption
Price, and calling upon such holder to surrender to the Corporation on the
Series B Preferred Redemption Date at the place designated in such notice and
the certificate or certificates representing the number of shares specified in
such notice of redemption. On or after the Series B Preferred Redemption Date,
each holder of shares of Series B Preferred Stock to be redeemed and each holder
of record of shares of Series A Preferred Stock which such shares have
automatically been converted into shares of Series B Preferred Stock, but which
such shares have not yet been issued, shall surrender the certificate or
certificates for such shares to the Corporation at the place designated in such
notice, and against such surrender the Series B Preferred Redemption Price of
such shares shall be paid to or on the order of the person whose name appears on
such certificate or certificates as the owner thereof, and each surrendered
certificate shall be canceled. In case less than all the shares represented by
any such certificate are redeemed, a new certificate shall he issued
representing the unredeemed shares.
(g) From and after the Series B Preferred Redemption Date
(unless default shall be made by the Corporation in payment in full of the
Series B Preferred Redemption Price), all dividends on the shares of Series B
Preferred Stock designated for redemption in such notice shall cease to accrue,
and all rights of the holders thereof as stockholders of the Corporation, except
the right to receive the Series B Preferred Redemption Price of such shares
(including all accrued and unpaid dividends up to the Series B Preferred
Redemption Date) upon the surrender of certificates representing the same, shall
cease and terminate 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 to be outstanding for any purpose whatsoever.
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(h) Shares of Series B Preferred Stock redeemed, repurchased
or retired pursuant to the provisions of this SECTION C-3 or surrendered to the
Corporation upon conversion shall thereupon be retired and may not be reissued.
4. VOTING RIGHTS. Except as otherwise provided in SECTION C.7
of this ARTICLE FOURTH or as required under the DGCL, the holders of shares of
Series B Preferred Stock shall not be entitled to vote on any matter submitted
to a vote of stockholders of the Corporation. Any vote expressly required by
SECTION C.7 of this ARTICLE FOURTH or by the DGCL may be given in person or by
proxy, either in writing without a meeting or by vote at any meeting called for
such purpose.
5. LIQUIDATION RIGHTS.
(a) In the event of any liquidation, dissolution or winding up
of the affairs of the Corporation, whether voluntary or otherwise, the holders
of shares of Series B Preferred Stock shall be entitled to receive, out of the
assets of the Corporation available for distribution to its stockholders, in
cash, the amount of $10,000 for each share of Series B Preferred Stock, plus an
amount equal to all dividends accrued and unpaid on each such share up to the
date fixed for distribution, before any distribution shall be made to the
holders of shares of Junior Securities. If upon any liquidation, dissolution or
winding up of the Corporation, the assets distributable among the holders of
shares of Series B Preferred Stock and shares of Series A Preferred Stock are
insufficient to permit the payment in full to the holders of all such shares of
all preferential amounts payable to such holders, then the entire assets of the
Corporation so distributable shall be distributed ratably among the holders of
the shares of Series B Preferred Stock and the shares of Series A Preferred
Stock in proportion to the respective amounts that would be payable per share if
such assets were sufficient to permit payment in full.
(b) The holder of any shares of Series B Preferred Stock shall
not be entitled to receive any payment for such shares under this Section C.5
until such holder shall cause to be delivered to the Corporation (i) the
certificate(s) representing such shares and (ii) transfer instrument(s)
satisfactory to the Corporation and sufficient to surrender such shares to the
Corporation free of any adverse interest.
(c) After the payment of the full preferential amounts
provided for herein to the holders of shares of Series B Preferred Stock, such
holders shall be entitled to no other or further participation in the
distribution of the assets of the Corporation.
6. CONVERSION RIGHTS. The holders of shares of Series B
Preferred Stock shall have no right to convert any such shares into shares of
Common Stock or any other securities of the Corporation.
7. LIMITATIONS. In addition to any other rights provided by
applicable law, so long as any shares of Series B Preferred Stock are
outstanding, the Corporation shall not, without the affirmative vote, or the
written consent as provided by law, of the holders of at least two-thirds of the
outstanding shares of Series B Preferred Stock, voting separately as a class:
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(a) create, authorize or issue any class or series of
Preferred Stock or any other class of capital stock ranking either as to payment
of dividends or distribution of assets upon liquidation, dissolution or winding
up of the affairs of the Corporation on a parity with, or having preference or
priority over, the Series B Preferred Stock (other than the Series A Preferred
Stock); or
(b) change the powers, preferences or rights with respect to
the Series B Preferred Stock so as to affect the Series B Preferred Stock
adversely;
PROVIDED, HOWEVER, any vote which would adversely affect the amount or timing of
the payment of the dividends on the Series B Preferred Stock, the amount or
timing of the payment of the Series B Redemption Price or any amounts paid
pursuant to SECTION C.5 of this ARTICLE FOURTH would require the affirmative
vote of the holders of all of the outstanding shares of Series B Preferred
Stock; and PROVIDED, FURTHER, (except as otherwise required by applicable law)
nothing herein contained shall require such a vote or consent in connection with
(i) any increase in the total number of authorized shares of Common Stock, or
(ii) the authorization or increase of any class or series of shares ranking, as
to dividends and in liquidation, dissolution or winding up of the affairs of the
Corporation, junior to the Series B Preferred Stock; Provide that no such vote
or written consent of the holders of the shares of Series B Preferred Stock
shall be required if, at or prior to the time when the issuance of any such
shares ranking on a parity with, or having preference or priority over, the
Series B Preferred Stock is to be made or any such change is to take effect, as
the case may be, provision is made for the redemption of all the then
outstanding shares of Series B Preferred Stock.
8. DIVIDEND RECEIVED DEDUCTION. For federal income tax
purposes, the Corporation shall report distributions on the Series B Preferred
Stock as dividends, to the extent of the Corporation's current and accumulated
earnings and profits (as determined for federal income tax purposes). In
addition, the Corporation covenants not to take any action voluntarily which
could reasonably be expected to cause dividends on the Series B Preferred Stock
to fail to be eligible for the dividend received deduction pursuant to Section
243 of the Internal Revenue Code of 1986, as amended from time to time.
D. COMMON STOCK. The powers, preferences and rights of the
Class A Common Stock, the Class B Common Stock and the Class C Common Stock and
the qualifications, limitations or restrictions thereof are as follows:
1. VOTING.
(a) CLASS A COMMON STOCK. Each share of Class A Common Stock
shall entitle the holder thereof to one (1) vote.
(b) CLASS B COMMON STOCK. The shares of Class B Common Stock
shall be non-voting shares except to the extent that a class vote is required
under the DGCL and except that the consent of the holders of at least a majority
of the shares of Class B Common Stock then outstanding shall be necessary to
permit, effect or validate (x) the issuance of any series of capital stock of
the Corporation, other than the Class A Common Stock, the Class C Common Stock,
the
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Series A Preferred Stock or the Series B Preferred Stock, which is on a parity
with or senior as to liquidation to the Class B Common Stock; or (y) the repeal,
amendment or other change in this Certificate of Incorporation in a manner which
would increase or decrease the aggregate number of authorized shares of Class B
Common Stock, increase or decrease the par value per share of the Class B Common
Stock, or alter or change the powers, preferences or rights of the Class B
Common Stock in any material respect.
(c) CLASS C COMMON STOCK. Each share of Class C Common Stock
shall entitle the holder thereof to ten (10) votes.
2. CONVERSION OF SHARES.
(a) CONVERSION OF CLASS A COMMON STOCK.
(i) Except as provided in SECTION D.2(b) of this
ARTICLE FOURTH, upon the transfer of any shares of Class A
Common Stock to any holder who is subject to, or whose
Affiliates (as defined in Regulation Y of the Board of
Governors of the Federal Reserve System (12 C.F.R. 225) or any
successor to such regulation ("REGULATION Y")) are subject to,
the limitations of the Bank Holding Company Act of 1956, as
amended, or the International Banking Act of 1978, as amended
(such holder shall be hereinafter referred to as a "REGULATED
HOLDER"), such Regulated Holder of the Class A Common Stock so
transferred shall have the right, but not the obligation, to
convert such shares of Class A Common Stock to shares of Class
B Common Stock on a share-for-share basis by providing written
notice to the Corporation (the "CONVERSION TO NON-VOTING") and
each such conversion shall be deemed to have been effected as
of the close of business on the date on which such notice has
been received.
(ii) Upon the Conversion to Non-Voting of each share
of Class A Common Stock pursuant to SECTION D.2(a)(i) of this
ARTICLE FOURTH, one-ninth of a share of Class A Common Stock
held by persons other than Regulated Holders shall
automatically be converted to one-ninth of a share of Class C
Common Stock as described in the following sentences. The
holder of the shares subject to the Conversion to Non-Voting
shall specify in writing to the Corporation the names of the
holders of the Class A Common Stock which are to be converted
to Class C Common Stock pursuant to this clause (ii), which
specification shall be approved by each holder of Class A
Common Stock specified therein.
(b) Conversion of Class B Common Stock. In connection with the
occurrence (or the expected occurrence, as described herein) of any of the
following events (each such event shall be hereinafter referred to as a
"CONVERSION EVENT"):
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(i) any registered underwritten public offering of
common equity securities of the Corporation; or
(ii) any sale of Securities of the Corporation to a
person or group of related persons (such sale being within the
meaning of the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT")) if, after such sale, such person or
group of persons in the aggregate would own or control
securities of the Corporation (excluding any shares of 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; or
(iii) any sale of securities of the Corporation to a
person or group of persons (such sale being within the meaning
of the Exchange 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 (2k) of the
outstanding securities of any class of voting securities of
the Corporation; or
(iv) a merger, consolidation or similar transaction
involving the Corporation if, after such transaction, a person
or group of persons in the aggregate would own or control
securities of the Corporation which possess in the aggregate
the ordinary voting power to elect a majority of the
Corporation's directors (provided that the transaction has
been approved by the Board of Directors of the Corporation or
a committee thereof and by the holders of a majority of the
Common Stock then outstanding (excluding all shares of Class B
Common Stock));
each holder of shares of Class B Common Stock shall be entitled at any time and
from time to time to convert into an equal number of Shares of Class A Common
Stock any of such holder's Class B Common Stock which are being (or are expected
to be) distributed, disposed of or Bold in connection with such Conversion
Event. Each holder of shares of Class B Common Stock shall be entitled to
convert its shares of Class B Common Stock in connection with any Conversion
Event if such holder reasonably believes that such Conversion Event shall be
consummated. 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 shall occur shall be a conclusive determination thereof 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 shall not cancel the shares of Class B Common Stock so converted
before the tenth day following such Conversion Event and shall reserve such
shares until such tenth day for possible reissuance. If any shares of Class B
Common Stock are converted into shares of Class A Common Stock in connection
with a Conversion Event and such shares of Class A Common Stock are not actually
distributed, disposed of or sold pursuant to such
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Conversion Event, such shares of Class A Common Stock shall be promptly
converted back into the same number of shares of Class B Common Stock.
(c) CONVERSION OF CLASS C COMMON STOCK. One-ninth of an
outstanding share of Class C Common Stock shall automatically, without any
further act or deed on the part of the Corporation or any other person, be
converted into one-ninth of a share of Class A Common Stock, on a
share-for-share basis, immediately upon, and concurrently with, the conversion
of each share of Class B Common Stock into a share of Class A Common Stock
pursuant to SECTION D.2(b) of this ARTICLE FOURTH. If, however, any shares or
fraction of a share of Class A Common Stock are converted back into the same
number of shares or fraction of a share of Class B Common Stock because such
shares or fraction of a share of Class A Common Stock were not actually
distributed, disposed of or gold pursuant to a Conversion Event as provided in
SECTION D.2(b) of this ARTICLE FOURTH, then any shares or fraction of a share of
Class B Common Stock which converted into shares or fraction of a share of Class
A Common Stock pursuant to this SECTION D.2(c) shall be promptly converted back
into the same number of shares or fraction of a share of Class C Common Stock.
Unless otherwise specified in a writing delivered by the holder of the shares or
fraction of a share of Class B Common Stock being converted pursuant to SECTION
D.2(b) of this ARTICLE FOURTH, the number of shares or fraction of a share of
Class C Common Stock of each holder of Class C Common Stock which shall be
converted into a share or fraction of a share of Class A Common Stock shall he
determined by multiplying the total number of shares or fraction of a share to
be converted times a fraction, the numerator of which is the number of shares of
Class C Common Stock held by such holder, and the denominator of which is the
total number of shares of Class C Common Stock outstanding.
(d) CONVERSION PROCEDURE; ISSUANCE OF CERTIFICATES.
(i) Unless otherwise provided for in connection with
a Conversion Event, each conversion of shares of Class B
Common Stock into shares of Class A Common Stock pursuant to
SECTION D.2(b) of this ARTICLE FOURTH shall be effected by the
surrender of the certificates representing the shares of Class
B Common Stock to be converted at the principal office of the
Corporation (or such other office or agency of the Corporation
as the Corporation may designate by notice in writing to the
holders of the Class B Common Stock) at any time during normal
business hours, together with a written notice by the holder
Of such shares of Class B Common Stock stating that such
holder desires to convert such shares. Such notice shall also
state the name or names (with addresses) and denominations in
which the certificate or certificates for such shares of Class
A Common Stock are to be issued and shall include instructions
for reasonable delivery thereof. Unless otherwise provided for
in connection with a Conversion Event, each conversion of
Class B Common Stock to Class A Common Stock shall be deemed
to have been effected as of the close of business on the date
on which such certificates representing such Class B Common
Stock have been surrendered
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and such notice has been received. At such time, the rights of
the holder of the surrendered shares of Class B Common Stock
as such holder shall cease, and the person in whose name the
certificates for the shares of Class A Common Stock will he
issued upon such conversion shall be deemed to have become the
holder of record of the shares Of Class A Common Stock
represented thereby. Promptly after the surrender of the
certificates and the receipt of written notice, the
Corporation shall issue and deliver in accordance with the
surrendering holder's instructions, the certificates for the
shares of Class A Common Stock issuable upon such conversion,
and certificates representing any surrendered shares of Class
B Common Stock which were delivered to the Corporation in
connection with such conversion but which were not requested
to be converted and, therefore, were not converted.
(ii) Unless otherwise provided for in connection with
a Conversion Event, each conversion of shares of Class A
Common Stock into shares of Class B Common Stock pursuant to
SECTION D.2(a) of this ARTICLE FOURTH shall be effected by the
surrender of the certificates representing the shares of Class
A Common Stock to be converted at the principal office of the
Corporation (or such other office or agency of the Corporation
as the Corporation may designate by notice in writing to the
holders of the Class B Common Stock) at any time during normal
business hours, together with a written notice by the holder
of such shares of Class A Common Stock stating that such
holder desires to convert such shares; PROVIDED, that the
conversion of shares of Common Stock from one class to another
pursuant to SECTION D.2(a) of this ARTICLE FOURTH shall be
deemed effective as provided in SECTION D.2(a)(i) of this
ARTICLE FOURTH whether or not the certificates representing
such shares indicate the proper class designation.
(iii) Each holder of any shares Common Stock of any
class which are automatically converted into shares of Common
Stock of another class in accordance with SECTION D.2(c) of
this ARTICLE FOURTH shall tender certificates representing
such shares to the Corporation promptly for reissuance with
the post-conversion class designation; Provided, that the
conversion of Common Stock from one class to another pursuant
to SECTION D.2(c) of this ARTICLE FOURTH shall occur
automatically and be effective whether or not the certificates
representing such shares indicate the proper class
designation.
(iv) The issuance of certificates for any class of
Common Stock upon conversion from any other class of Common
Stock shall he made without charge to the holders of such
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Common Stock for any documentary, stamp or similar issue or
transfer tax due on the issue of Common Stock upon the
conversion. The holder, however, shall pay to the Corporation
the amount of any tax which is due (or shall establish to the
satisfaction of the Corporation the payment thereof or that no
such payment is due) if the shares are to be issued in a name
other than the name of such holder.
(v) The Corporation shall reserve and at all times
shall have reserved out of its authorized but unissued Class A
Common Stock, Class B Common Stock and Class C Common Stock,
solely for the purpose of issuance upon the conversion of any
shares of Common Stock in accordance with this SECTION D.2,
such number of shares of Class A Common Stock, Class B Common
Stock and Class C Common Stock, respectively, as may be
issuable upon such conversion. All shares of Common Stock
issuable upon any conversion pursuant to this SECTION D.2
shall, when issued, constitute duly and validly issued, fully
paid and nonassessable shares of Common Stock. The Corporation
shall from time to time, in accordance with the laws of the
State of Delaware, increase the authorized number of shares of
Class A Common Stock, Class B Common Stock or Class C Common
Stock, as the case may be, to permit issuance of Class A
Common Stock, Class B Common Stock or Class C Common Stock in
accordance with this SECTION D.2. The Corporation shall use
its reasonable best effort 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 of the relevant class may be listed (except for
official notice of issuance which shall be immediately
transmitted by the Corporation upon issuance).
(vi) The Corporation shall not close its books
against the transfer of Common Stock in any manner which would
interfere with the timely conversion of any Common Stock
pursuant to this SECTION D.2. The Corporation shall assist and
cooperate with any holder of shares of Common Stock required
to make any governmental filings or obtain any governmental
approval prior to or in connection with any conversion of
Common Stock hereunder (including, without limitation, making
any filings required to be made by the corporation).
3. DIVIDENDS. Subject to the rights of the holders of
Preferred Stock or any other class or series of stock having a preference as to
dividends over the Common Stock then outstanding, the holders of Common Stock
will be entitled to receive, to the extent permitted by law, and to share
equally and ratably, share for share, to the exclusion of the holders of any and
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all series of Preferred Stock, such dividends as may be declared from time to
time by the Board of Directors. No dividends shall be paid on the Class A Common
Stock, the Class B Common Stock or the Class C Common Stock, whether in cash,
property or shares of stock of the Corporation, unless the same dividend shall
be payable on each share of Class A Common Stock, Class B Common Stock and Class
C Common Stock; PROVIDED that if dividends so declared are payable in shares of
Common Stock, dividends will he declared which are payable at the same rate on
all series of Common Stock, and the dividends on the Class A Common Stock will
be paid in Class A Common Stock, the dividends on the Class B Common Stock will
be paid in Class B Common Stock and the dividends on the Class C Common Stock
will be paid in Class C Common Stock.
4. OTHER POWERS, PREFERENCES AND RIGHTS.
(a) The Class A Common Stock, the Class B Common Stock and the
Class C Common Stock are subject to all the powers, preferences and rights of
the Preferred Stock as may be stated in this Certificate of Incorporation of the
Corporation.
(b) Except as otherwise required by law or expressly provided
for in this Certificate of Incorporation, the powers, preferences and rights of
the Class A Common Stock, the Class B Common Stock and the Class C Common Stock,
and the qualifications, limitations or restrictions thereof, shall in all
respects be identical.
5. STOCK ADJUSTMENTS. The Corporation shall not be a party to
or effect any merger, consolidation, reorganization, reclassification or
recapitalization pursuant to which any Regulated Holder would be required to
receive, or which would result in such Regulated Holder owning or controlling,
(a) any voting securities which would cause such holder to hold more than 4.999k
(or 24.999% in the case of Windward/Merchant, L.P. either alone or in the
aggregate with Windward/Merban, L.P. and CS First Boston Merchant Investments
1995/96, L.P.) of the outstanding shares of any Class of voting securities, (b)
any securities convertible into voting securities which if such conversion took
place would cause such holder to hold more than 4.999k (or 24.999k in the case
of Windward/Merchant, L.P. either alone or in the aggregate with
Windward/Merban, L.P. and CS First Boston Merchant Investments 1995/96, L.P.) 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 or (c) with
Windward/Merchant, L.P., Windward/Merban, L.P. and CS First Boston Merchant
Investments 1995/96, L.P. in the aggregate more than 24.999k of the total
outstanding shares of Common Stock. The term "Class" shall have the meaning
determined by reference to Regulation Y and all authoritative interpretations of
Regulation Y. In the event of any merger, consolidation, reorganization,
reclassification or recapitalization, effective provision shall be made in the
certificate of incorporation of the resulting or surviving corporation or
otherwise for the protection of the conversion rights of the Class A Common
Stock, Class B Common Stock and Class C Common Stock that shall be applicable,
as nearly as reasonably may be, to any such other shares of stock and other
securities and property deliverable upon conversion of Class A Common Stock,
Class B Common Stock or Class C Common Stock, respectively. In case securities
or property other than Class A Common Stock, Class B Common Stock or Class C
Common Stock shall be issuable or deliverable upon conversion as aforesaid,
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then all references in this Section D.5 shall be deemed to apply, so far as
appropriate and as nearly as may be, to such other securities or property.
6. LIQUIDATION. In the event of any liquidation, dissolution
or winding up of the affairs of the Corporation, whether voluntary or otherwise,
after payment shall have been made to the holders of any Preferred Stock, the
holders of Class A Common Stock, Class B Common Stock and Class C Common Stock
shall be entitled, to the exclusion of the holders of Preferred Stock, to share
ratably according to the number of shares Of Class A Common Stock, Class B
Common Stock and Class Q Common Stock held by them in the remaining assets of
the Corporation available for distribution to its stockholders.
7. DESIGNATION OF ADDITIONAL SHARES OF CLASS A COMMON STOCK,
CLASS B COMMON STOCK AND CLASS C COMMON STOCK.
(a) The Board of Directors of the Corporation is expressly
authorized at any time, and from time to time, to provide for the issuance at
any time, and from time to time, of shares of Common Stock not previously
designated as to class as Class A Common Stock, Class B Common Stock or Class C
Common Stock as shall be stated and expressed in the resolution or resolutions
providing for the issue thereof adopted by the Board of Directors.
(b) Each share of Common Stock issued by the Corporation, if
reacquired by the Corporation (whether by repurchase or other means), shall upon
such reacquisition resume the status of authorized and unissued shares of Common
Stock, undesignated as to class and available for designation and issuance by
the Corporation in accordance with paragraph (a) of this SECTION D.7.
FIFTH: INCORPORATOR. The name and mailing address of the
incorporator is Sherry S. Treston, Sidley & Austin, One First National Plaza,
Chicago, Illinois 60603.
SIXTH: NUMBER AND ELECTION OF DIRECTORS. 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.
SEVENTH: LIABILITY OF DIRECTORS. A director of the Corporation
shall not be personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability W 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) under
Section 174 of the DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit. If the DGCL is amended to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the DGCL, as so
amended. Any repeal or modification of this Article Eighth 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.
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EIGHTH: INDEMNIFICATION OF DIRECTORS AND OFFICERS. Each
person who is or was a director or officer of the Corporation, and each person
who serves or served at the request of the Corporation as a director or officer
of another enterprise, shall be indemnified by the Corporation in accordance
with, and to the fullest extent authorized-by, the DGCL.
NINTH: AMENDMENT OF BY-LAWS. In furtherance and not in
limitation of the powers conferred by statute, the Board of Directors is
expressly authorized to make, alter or repeal the By-laws of the Corporation,
subject to any specific limitation on such power contained in any By-laws
adopted by the stockholders.
TENTH: AMENDMENT OF CERTIFICATE OF INCORPORATION. 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 the stockholders herein are
granted subject to this reservation.
ELEVENTH: MEETINGS OF STOCKHOLDERS: BOOKS OF THE CORPORATION.
Meetings of the stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the DGCL) 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.
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IN WITNESS WHEREOF, the undersigned, being the President of
this Corporation, does make this certificate, hereby declaring and certifying
that this is his act and deed and the facts herein stated are true, and
accordingly, has hereunto set his hand this 1st day of April, 1996.
French Holdings, Inc
By: /s/ Gary L. Swenson
-----------------------
Title: President
Attest:
/s/ Bela R. Schwartz
Title: Secretary
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