EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
FABRI-STEEL HOLDINGS INCORPORATED
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FABRI-STEEL HOLDINGS INCORPORATED, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Company"), DOES HEREBY CERTIFY:
FIRST: That by written consent of the majority of the directors, a
resolution was duly adopted setting forth a proposed Amended and Restated
Certificate of Incorporation of the Company (the "Certificate"). The
resolution setting forth the amendment is as follows:
RESOLVED, that Articles 1 and 4 of the Certificate of
Incorporation of the Company filed with the Secretary of State of the
State of Delaware on February 2, 2000 are amended and that such
amendments have been incorporated into the Amended and Restated
Certificate of Incorporation ("the "Certificate"), substantially in
the form of Exhibit A attached hereto; and further
RESOLVED, that Article 10 is added to the Certificate of Incorporation
of the Company filed with the Secretary of State of the State of
Delaware on February 2, 2000 and that such amendment has been
incorporated into the Amended and Restated Certificate of
Incorporation ("the "Certificate"), substantially in the form of
Exhibit A attached hereto; and further
RESOLVED, that the Certificate is hereby approved and adopted
without the consent of shareholders of the Company in accordance with
the provisions of Sections 241 and 245 of the General Corporation Law
of the State of Delaware and shall become effective upon being filed
with the Secretary of State of the State of Delaware; and further
RESOLVED, that the officers of the Company are hereby authorized
and empowered to take any and all action and to execute and deliver
any and all documents, as any such officer deems necessary or
advisable to effect the above-mentioned amendment and restatement,
without further authority or approval by the board of directors of the
Company.
SECOND: That the Company has not received any payment for any of its stock.
THIRD: That said Certificate restates and integrates and further amends in
its entirety the Certificate of Incorporation of this Company. The
Certificate was duly adopted in accordance with the provisions of Sections
241 and 245 of the General Corporation Law of the State of Delaware.
FOURTH: This Certificate shall become effective immediately upon its filing
with the Secretary of State of the State of Delaware and upon the filing of
this Certificate, the Certificate of Incorporation of the Company shall be
amended and restated in its entirety to read as set forth in Exhibit A
attached hereto.
IN WITNESS WHEREOF, the Company has caused this Certificate to be executed
by Rex A. Ogg, its President, this 16th day of March, 2000.
FABRI-STEEL HOLDINGS INCORPORATED
By: /s/ Rex A. Ogg
-----------------------------
Name: Rex A. Ogg
Title: President
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EXHIBIT A
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
FABRISTEEL HOLDINGS, INC.
1. Name. The name of the Corporation is FabriSteel Holdings, Inc.
2. Registered Office and Agent. The address of the Corporation's registered
office in the State of Delaware is 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.
3. Purpose. The purposes for which the Corporation is formed are to engage
in any lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware and to possess and exercise all of the
powers and privileges granted by such law and any other law of Delaware.
4. Authorized Capital. The aggregate number of shares of stock which the
Corporation shall have authority to issue is ten million (10,000,000) shares,
divided into three (3) classes consisting of five million (5,000,000) shares of
Preferred Stock, par value $.01 per share ("Preferred Stock"); two million five
hundred thousand (2,500,000) shares of Class A Common Stock, par value $.01 per
share ("Class A Common Stock"); and two million five hundred thousand
(2,500,000) shares of Class B Common Stock, par value $.01 per share ("Class B
Common Stock"). Class A Common Stock and Class B Common Stock are hereinafter
sometimes collectively referred to as "Common Stock."
The following is a statement of the designations, preferences,
qualifications, limitations, restrictions and the special or relative rights
granted to or imposed upon the shares of each such class.
A. PREFERRED STOCK
1. Issue in Series. Preferred Stock may be issued from time to time in
one or more series, each such series to have the terms stated herein
or in the resolution of the Board of Directors of the Corporation
providing for its issue. All shares of any one series of Preferred
Stock will be identical, but shares of different series of Preferred
Stock need not be identical or rank equally except insofar as provided
by law or herein.
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2. Creation of Series. In addition to the Senior Preferred Stock and
Junior Preferred Stock provided for herein, the Board of Directors
will have authority by resolution to cause to be created one or more
series of Preferred Stock, and to determine and fix with respect to
each series prior to the issuance of any shares of the series to which
such resolution relates:
a. The distinctive designation of the series and the number of
shares which will constitute the series, which number may be
increased or decreased (but not below the number of shares then
outstanding) from time to time by action of the Board of
Directors;
b. The dividend rate and the times of payment of dividends on the
shares of the series, whether dividends will be cumulative, and
if so, from what date or dates;
c. The price or prices at which, and the terms and conditions on
which, the shares of the series may be redeemed at the option of
the Corporation;
d. Whether or not the shares of the series will be entitled to
the benefit of a retirement or sinking fund to be applied to the
purchase or redemption of such shares and, if so entitled, the
amount of such fund and the terms and provisions relative to the
operation thereof;
e. Whether or not the shares of the series will be convertible
into, or exchangeable for, any other shares of stock of the
Corporation or other securities, and if so convertible or
exchangeable, the conversion price or prices, or the rates of
exchange, and any adjustments thereof, at which such conversion
or exchange may be made, and any other terms and conditions of
such conversion or exchange;
f. The rights of the shares of the series in the event of
voluntary or involuntary liquidation, dissolution or winding up
of the Corporation, provided, however, that no such series shall
be senior to the Senior Preferred Stock with respect to dividends
or distributions or upon the liquidation, distribution of assets,
dissolution or winding-up of the Corporation;
g. Whether or not the shares of the series will have priority
over or be on a parity with or be junior to the shares of any
other series or class in any respect or will be entitled to the
benefit of
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limitations restricting the issuance of shares of any other
series or class having priority over or being on a parity with
the shares of such series in any respect, or restricting the
payment of dividends on or the making of other distributions in
respect of shares of any other series or class ranking junior to
the shares of the series as to dividends or assets, or
restricting the purchase or redemption of the shares of any such
junior series or class, and the terms of any such restriction,
provided, however, that no such series shall be senior to the
Senior Preferred Stock with respect to dividends or distributions
or upon the liquidation, distribution of assets, dissolution or
winding-up of the Corporation;
h. Whether the series will have voting rights, in addition to any
voting rights provided by law, and, if so, the terms of such
voting rights; and
i. Any other preferences, qualifications, privileges, options and
other relative or special rights and limitations of that series.
3. Dividends. Holders of Preferred Stock shall be entitled to receive,
when and as declared by the Board of Directors, out of funds legally
available for the payment thereof, dividends at the rates fixed herein
for the Senior Preferred Stock and the Junior Preferred Stock and by
the Board of Directors for any other series, and no more, before any
dividends shall be declared and paid, or set apart for payment, on
Common Stock with respect to the same dividend period.
4. Preference on Liquidation. In the event of the voluntary or
involuntary liquidation, dissolution or winding up of the Corporation,
holders of each series of Preferred Stock will be entitled to receive
the amount fixed for such series plus, in the case of Senior Preferred
Stock, Junior Preferred Stock or any other series on which dividends
will have been determined by the Board of Directors to be cumulative,
an amount equal to all dividends accumulated and unpaid thereon to the
date of final distribution whether or not earned or declared before
any distribution shall be paid, or set aside for payment, to holders
of Common Stock. If the assets of the Corporation are not sufficient
to pay such amounts in full, holders of all shares of Preferred Stock
will participate in the distribution of assets ratably in proportion
to the full amounts to which they are entitled or in such order or
priority, if any, as will have been fixed in the resolution or
resolutions providing for the issue of the series of Preferred Stock.
Neither the merger nor consolidation of the Corporation into or with
any other corporation or entity, nor a sale, transfer or lease of all
or
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part of its assets, will be deemed a liquidation, dissolution or
winding up of the Corporation within the meaning of this paragraph
except to the extent specifically provided for herein.
5. Redemption. The Corporation, at the option of the Board of
Directors, may redeem all or part of the shares of any series of
Preferred Stock on the terms and conditions fixed in this Certificate
for the Senior Preferred Stock and the Junior Preferred Stock and by
the Board of Directors for any other series.
6. Voting Rights. Except as otherwise required by law, as otherwise
provided herein or as otherwise determined by the Board of Directors
as to the shares of any series of Preferred Stock prior to the
issuance of any such shares, the holders of Preferred Stock shall have
no voting rights and shall not be entitled to any notice of meeting of
stockholders.
B. SENIOR PREFERRED STOCK
1. Designation, Number of Shares. The first series of Preferred Stock
shall be designated as the 8% Series A Cumulative Senior Preferred
Stock ("Senior Preferred Stock"), and the number of shares which shall
constitute such series shall be 910,000. The par value of the Senior
Preferred Stock shall be $.01 per share.
2. Accrual and Payment of Dividends
a. The holders of Senior Preferred Stock shall 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 rate of $0.80 plus the "Spread"
then in effect (as defined herein) per share per annum. The
Spread shall initially be zero (0). In the event that an Initial
Public Offering (as hereinafter defined) occurs and the Company
does not offer to repurchase 100% of the issued and outstanding
Senior Preferred Stock prior to or within ten (10) days after the
Initial Public Offering (with the closing date set forth in such
offer to repurchase within thirty (30) days of the Initial Public
Offering) at a cash price equal to $10 per share, plus accrued
and unpaid dividends to the date of repurchase, and then purchase
all shares tendered in accordance with the terms of such offer
(an "IPO Event"), the Spread shall equal $0.025 per annum per
share on the first day of the Quarterly Period (as hereinafter
defined) after such IPO Event
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occurs and the Spread shall thereafter increase by an additional
$0.025 per annum per share on the first day of each subsequent
Quarterly Period; and (ii) in the event that a High Yield
Offering (as hereinafter defined) occurs and the Company does not
offer to repurchase at least 50% of the issued and outstanding
Senior Preferred Stock prior to or within ten (10) days after the
High Yield Offering (with the closing date set forth in such
offer to repurchase within thirty (30) days of the High Yield
Offering) at a cash price equal to $10 per share, plus accrued
and unpaid dividends to the date of repurchase, and then purchase
all shares tendered in accordance with the terms of such offer (a
"High Yield Event"), the Spread shall equal $0.025 per annum per
share on the first day of the Quarterly Period after such High
Yield Event occurs and thereafter the Spread shall increase by an
additional $0.025 per share per annum on the first day of each
subsequent Quarterly Period; provided, however, that in no event
shall the Spread increase by more than $0.025 per share per annum
in any single Quarterly Period; provided, further, that the
dividend rate shall not at any time exceed $1.20 per share per
annum. Subject to compliance with applicable law and subject to
compliance with any agreement between the Company and any
unaffiliated third party which limits the Company's payment of
dividends, the Company shall pay cash dividends (including
Additional Dividends (as that term is defined in Article
IV.B(2)(b) hereof) which shall be paid in cash) to the holders of
Senior Preferred Stock beginning March 1, 2001.
Such dividends shall be payable in annual installments in
arrears commencing March 1, 2001 and thereafter on the first day
of March (unless such day is not a business day in which event on
the last preceding business day) in each such year (hereinafter
referred to as a "Dividend Accrual Date"), except that the
dividend payment payable on March 1, 2001 shall be calculated
from March 25, 1998 as if issued on such date, with Dividend
Accrual Dates of March 1, 1999 and March 1, 2000, through March
1, 2001. Each such dividend on Senior Preferred Stock when paid
shall be payable to holders of record as they appear on the stock
books of the Corporation on the date established by the Board of
Directors of the Corporation as the record date for the payment
of such dividend (which record date shall not precede the date
upon which the resolution fixing such record date is adopted and
which record date shall be not more than sixty days prior to such
action). If no
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record date is fixed, the record date for determining holders for
such purpose shall be at the close of business on the date on
which the Board of Directors adopts the resolution relating to
such dividend payment. Dividends with respect to any shares of
Senior Preferred Stock shall accrue (whether or not earned or
declared) from the date of issue of such shares.
b. Such dividends on the Senior Preferred Stock shall be
cumulative, whether or not earned or declared, so that if at any
time full cumulative dividends at the rate aforesaid on all
shares of Senior Preferred Stock then outstanding to the end of
the annual dividend period next preceding such time shall not
have been paid, the amount of the deficiency shall be paid before
any sum shall be set aside for or applied by the Corporation to
the purchase, redemption or other acquisition for value of any
shares of Junior Stock (either pursuant to any applicable sinking
fund requirement or otherwise) or any dividend or other
distribution shall be paid or declared and set apart for payment
on any Junior Stock (other than a dividend payable in Junior
Stock) provided, however, that the foregoing shall not prohibit
the Corporation from repurchasing shares of Junior Stock from a
former employee of the Corporation (or a subsidiary of the
Corporation) where such repurchase arises from the Corporation's
option to repurchase such shares upon termination of such
employee's employment with the Corporation (or a subsidiary)
pursuant to a written agreement between the Corporation and such
employee. Accrued dividends on the Senior Preferred Stock if not
paid on the first or any subsequent Dividend Accrual Date
following accrual shall thereafter accrue additional dividends in
respect thereof (the "Additional Dividends"), compounded
annually, at the then applicable dividend rate.
c. When dividends are not paid in full upon the Senior Preferred
Stock, all dividends paid upon shares of Senior Preferred Stock
shall be paid pro rata so that in all cases the amount of
dividends paid per share on the Senior Preferred Stock shall bear
the same ratio that accrued dividends per share on the shares of
Senior Preferred Stock bear to each other.
d. An annual dividend period shall commence on the day following
a Dividend Accrual Date and shall end on the next succeeding
Dividend Accrual Date.
3. Preference on Liquidation
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a. In the event that the Corporation shall be liquidated,
dissolved or wound up, whether voluntarily or involuntarily,
after all creditors of the Corporation shall have been paid in
full, the holders of the Senior Preferred Stock shall be entitled
to receive, out of the assets of the Corporation legally
available for distribution to its stockholders, whether from
capital, surplus or earnings, before any amount shall be paid to
the holders of any shares of Junior Stock, an amount equal to $10
in cash per share plus an amount equal to full cumulative
dividends (whether or not earned or declared) accrued and unpaid
thereon (including Additional Dividends) to the date of final
distribution, and no more. If upon any liquidation, dissolution
or winding up of the Corporation, the net assets of the
Corporation shall be insufficient to pay the holders of all
outstanding shares of Senior Preferred Stock the full amounts to
which they respectively shall be entitled, such assets, or the
proceeds thereof, shall be distributed ratably among the holders
of the Senior Preferred Stock. Holders of Senior Preferred Stock
shall not be entitled, upon the liquidation, dissolution or
winding up of the Corporation, to receive any amounts with
respect to such stock other than the amounts referred to in this
Article IV.B(3)(a).
b. Neither the purchase nor redemption by the Corporation of
shares of any class of stock in any manner permitted by the
Certificate of Incorporation or any amendment thereof, nor the
merger or consolidation of the Corporation with or into any other
corporation or corporations, nor a sale, transfer or lease of all
or substantially all of the Corporation's assets shall be deemed
to be a liquidation, dissolution or winding up of the Corporation
for the purposes of this Article IV.B(3) provided, however, that
any consolidation or merger of the Corporation, in which the
Corporation is not the surviving entity shall be deemed to be a
liquidation, dissolution or winding up of the affairs of the
Corporation within the meaning of this Article IV.B(3) if, (A) in
connection therewith, the holders of Common Stock of the
Corporation receive as consideration, whether in whole or in
part, for such Common Stock (1) cash, (2) notes, debentures or
other evidences of indebtedness or obligations to pay cash or (3)
preferred stock of the surviving entity (whether or not the
surviving entity is the Corporation) which ranks on a parity with
or senior to the preferred stock received by holders of the
Senior Preferred Stock with respect to liquidation or dividends
or (B) the
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holders of the Senior Preferred Stock do not receive preferred
stock of the surviving entity with rights, powers and preferences
equal to (or more favorable to the holders than) the rights,
powers and preferences of the Senior Preferred Stock.
4. Redemption.
a. Mandatory Redemption. All outstanding shares of the Senior
Preferred Stock shall be redeemed from funds legally available
therefor on April 1, 2020 (the "Redemption Date"), at a price per
share equal to $10 plus an amount per share equal to full
cumulative dividends (whether or not earned or declared) accrued
and unpaid thereon (including Additional Dividends) to the
Redemption Date. The holders of the Senior Preferred Stock shall
be paid in full in accordance with this Article IV.B(4) prior to
any payment made to the holders of the Junior Preferred Stock
pursuant to Article IV.C(4) hereof.
b. The aggregate amount of the redemption pursuant to Article
IV.B(4)(a) is hereinafter referred to as the "Senior Redemption
Price."
5. Redemption Procedure
a. A redemption pursuant to Article IV.B(4) shall be accomplished
in the manner and with the effect as set forth in this Article
IV.B(5)
b. Notice of the redemption of Senior Preferred Stock pursuant to
Article IV.B(4) shall be given by mail not less than ten (10)
days prior to the Redemption Date. If less than all the
outstanding Senior Preferred Stock is to be redeemed, the
selection of shares for redemption shall be made pro rata and the
notice of redemption to a holder shall state the number of shares
of Senior Preferred Stock of such holder to be redeemed. The
amount of the Senior Redemption Price shall be deposited on or
before the Redemption Date in trust for the account of the
holders of Senior Preferred Stock entitled thereto with a bank or
trust company in good standing doing business in the State of New
York and having capital and surplus of at least $100,000,000 (the
date of such deposit being hereinafter in this Article IV.B(5)
referred to as the "date of deposit").
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c. Notice of the date on which, and the name and address of the
bank or trust company with which, the deposit has been or will be
made shall be included in the notice of redemption. On and after
the Redemption Date (unless default shall be made by the
Corporation in providing money for the payment of the Senior
Redemption Price pursuant to the notice of redemption), or if the
Corporation shall make such deposit on or before the date
specified therefor in the notice of redemption, then on and after
the date of deposit (provided notice of redemption has been duly
given), all dividends on the Senior Preferred Stock so called for
redemption shall cease to accrue and, notwithstanding that any
certificate for shares of Senior Preferred Stock is not
surrendered for cancellation, the shares represented thereby
shall no longer be deemed outstanding and all rights of the
holders thereof as stockholders of the Corporation with respect
to such shares shall cease and terminate, except the right to
receive the Senior Redemption Price as hereinafter provided.
d. At any time on or after the Redemption Date, or if the
Corporation shall deposit the money for such redemption prior to
the Redemption Date, then at any time on or after the date of
deposit, which time shall be specified by the Corporation in the
notice of redemption and which shall not be later than the
Redemption Date, the holders of record of the Senior Preferred
Stock to be redeemed shall be entitled to receive the Senior
Redemption Price upon actual delivery to the bank or trust
company with which such deposit shall be made of certificates for
the shares to be redeemed, such certificates, if required, to be
duly endorsed in blank or accompanied by proper instruments of
assignment and transfer duly endorsed in blank. The making of
such deposit with any such bank or trust company shall not
relieve the Corporation of liability for payment of the Senior
Redemption Price.
e. Any money so deposited which shall remain unclaimed by the
holders of such Senior Preferred Stock at the end of two (2)
years after the Redemption Date shall be paid by such bank or
trust company to the Corporation, which shall thereafter, to the
extent of the money so repaid, be liable for the payment of the
Senior Redemption Price. Any interest accrued on money so
deposited shall be paid to the Corporation from time to time.
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6. Voting. Except as required by law and except for any voting by the
holders of the Senior Preferred Stock as part of a separate class or
series pursuant to Article IV.B(7) hereunder or any other provision of
the Corporation's Certificate of Incorporation, no holder of Senior
Preferred Stock, as such holder, shall be entitled to vote on any
matter submitted to a vote of stockholders. Notwithstanding the
foregoing, prior to an Initial Public Offering (as defined herein)
holders of the Series A Senior Preferred Stock, Series B Junior
Preferred Stock, Series C Junior Preferred Stock and Series D Senior
Preferred Stock voting as a single class, shall be entitled by
separate class vote to elect, with each share having one vote, one
member of the Corporation's board of directors at an annual meeting of
the stockholders called for such purpose. On any matters on which the
holders of the Senior Preferred Stock shall be entitled to vote, they
shall be entitled to one vote for each share held.
7. Other Rights. Without the written consent of the holders of a
majority of the outstanding shares of Senior Preferred Stock or the
vote of the holders of a majority of the outstanding shares of Senior
Preferred Stock at a meeting of the holders of Senior Preferred Stock
called for such purpose, the Corporation shall not amend, alter or
repeal any provision of the Corporation's Certificate of Incorporation
so as to adversely affect the rights and preferences of the Senior
Preferred Stock; provided, however, that any such amendment that
changes the dividend payable on the Senior Preferred Stock shall
require the affirmative vote of the holder of each share of Senior
Preferred Stock at a meeting of such holders called for such purpose
or the written consent of the holder of each share of Senior Preferred
Stock; provided, further, that in no event will issuance of any series
of Preferred Stock that is on a parity with or junior to the Senior
Preferred Stock or has a redemption date earlier than the Senior
Preferred Stock be deemed to adversely affect the rights and
preferences of the Senior Preferred Stock.
8. Acknowledgement. The terms of the Preferred Stockholders Agreement
dated as of March 17, 2000 (the "Preferred Stockholders Agreement") by
and among Citicorp Venture Capital Ltd. and the other parties listed
as signatories thereto shall be binding on each holder of the Senior
Preferred Stock, as if such holder were an "Investor" thereunder. Each
holder of Senior Preferred Stock, by acceptance thereof, acknowledges
and agrees that payments of dividends, interest, premium and principal
on, and redemption and repurchase of, such securities by the
Corporation are subject to restrictions contained in certain credit
and financing agreements of the Corporation and its subsidiaries.
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9. Definitions
The following terms, when used in this Article IV.B, shall have
the meanings set forth below:
a. As used herein, the amount of dividends "accrued" on any share
of Senior Preferred Stock as at any date shall be calculated as
the amount of any unpaid dividends accumulated thereon to and
including the last preceding Dividend Accrual Date with respect
to which dividends have not been paid, whether or not earned or
declared.
b. "corporation" shall mean a corporation, partnership, business
trust, unincorporated organization, association, limited
liability company or joint stock company.
c. "High Yield Offering" shall mean an issuance by the Company of
$75,000,000 in unsecured debt securities with a weighted average
maturity of at least five (5) years pursuant to (i) a completed
firm commitment public offering pursuant to an effective
registration statement under the Securities Act of 1933, as
amended, or (ii) a completed placement under Rule 144A
promulgated under the Securities Act of 1933, as amended.
d. "Initial Public Offering" shall mean a completed firm
commitment underwritten initial public offering pursuant to an
effective registration statement under the Securities Act of
1933, as amended (other than (i) a Special Registration Statement
or (ii) a registration statement relating to a Unit Offering) in
respect of the offer and sale of shares of Common Stock for the
account of the Corporation resulting in aggregate net proceeds to
the Corporation of not less than $20,000,000.
e. "Junior Stock" shall mean any series or class of the capital
stock of the Corporation now or hereafter authorized or issued by
the Corporation, including any series or class of preferred
stock, ranking junior to the Senior Preferred Stock with respect
to dividends or distributions or upon the liquidation,
distribution of assets, dissolution or winding-up of the
Corporation, including without limitation the Junior Preferred
Stock, the Class A Common Stock and the Class B Common Stock
(except as otherwise provided in Article IV.B(3) hereof).
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f. "Quarterly Period" shall mean the three (3) month period
commencing on the first day of the first month following the
Company's failure to unconditionally offer to repurchase 100% of
the issued and outstanding Senior Preferred Stock, in the case of
an IPO Event, or 50% of the issued and outstanding Senior
Preferred Stock, in the case of a High Yield Event, and each
subsequent three (3) month period thereafter.
g. "person" shall mean an individual, a corporation, partnership,
trust, organization, association, government or any department or
agency thereof, or any other individual or entity.
h. "Special Registration Statement" means (i) a registration
statement on Forms S-8 or S-4 or any similar or successor form or
any other registration statement relating to an exchange offer or
an offering of securities solely to the Corporation's or any of
its subsidiaries' employees or security holders or (ii) a
registration statement registering a Unit Offering; and
i. "Unit Offering" shall mean a completed firm commitment
underwritten public offering pursuant to an effective
registration statement under the Securities Act of 1933, as
amended, of a combination of debt and equity securities of the
Corporation in which (i) not more than 10% of the gross proceeds
received from the sale of such securities is attributed to such
equity securities, and (ii) after giving effect to such offering,
the Corporation does not have a class of equity securities
required to be registered under the Securities Exchange Act of
1934, as amended.
C. JUNIOR PREFERRED STOCK
1. Designation, Number of Shares. The second series of Preferred Stock
shall be designated as the 12% Series B Cumulative Stock ("Junior
Preferred Stock"), and the number of shares which shall constitute
such series shall be 900,000. The par value of the Junior Preferred
Stock shall be $.01 per share.
2. Accrual and Payment of Dividends
a. The holders of Junior Preferred Stock shall 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 rate of $1.20 per share per
annum.
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Such dividends shall be payable in annual installments in
arrears commencing March 1, 2001 and thereafter on the first day
of March (unless such day is not a business day in which event on
the last preceding business day) in each such year (hereinafter
referred to as a "Dividend Accrual Date"), except that the
dividend payment payable on March 1, 2001 shall be calculated
from March 25, 1998 as if issued on such date, with Dividend
Accrual Dates of March 1, 1999 and March 2, 2000, through March
1, 2001. Each such dividend on Junior Preferred Stock when paid
shall be payable to holders of record as they appear on the stock
books of the Corporation on the date established by the Board of
Directors of the Corporation as the record date for the payment
of such dividend (which record date shall not precede the date
upon which the resolution fixing such record date is adopted and
which record date shall be not more than sixty days prior to such
action). If no record date is fixed, the record date for
determining holders for such purpose shall be at the close of
business on the date on which the Board of Directors adopts the
resolution relating to such dividend payment. Dividends with
respect to any shares of Junior Preferred Stock shall accrue
(whether or not earned or declared) from the date of issue of
such shares.
b. Such dividends on the Junior Preferred Stock shall be
cumulative, whether or not earned or declared, so that if at any
time full cumulative dividends at the rate aforesaid on all
shares of Junior Preferred Stock then outstanding to the end of
the annual dividend period next preceding such time shall not
have been paid, the amount of the deficiency shall be paid before
any sum shall be set aside for or applied by the Corporation to
the purchase, redemption or other acquisition for value of any
shares of Junior Stock (either pursuant to any applicable sinking
fund requirement or otherwise) or any dividend or other
distribution shall be paid or declared and set apart for payment
on any Junior Stock (other than a dividend payable in Junior
Stock); provided, however, that the holders of the Junior
Preferred Stock shall not be entitled to any amount pursuant to
this Article IV.C(2)(b) unless the holders of Senior Preferred
Stock shall have been paid in full in accordance with Article
IV.B(2) hereof and any other series senior to the Junior
Preferred Stock with respect to dividends shall have been paid in
full in accordance with its terms; provided, further, that the
foregoing shall not prohibit the Corporation from repurchasing
shares of Junior Stock from a former employee of the Corporation
-15-
(or a subsidiary of the Corporation) where such repurchase arises
from the Corporation's option to repurchase such shares upon
termination of such employee's employment with the Corporation
(or a subsidiary) pursuant to a written agreement between the
Corporation and such employee. Accrued dividends on the Junior
Preferred Stock if not paid on the first or any subsequent
Dividend Accrual Date following accrual shall thereafter accrue
additional dividends in respect thereof (the "Additional
Dividends"), compounded annually, at the rate of 12% per annum.
c. When dividends are not paid in full upon the Junior Preferred
Stock and any other stock ranking on a parity as to dividends
with the Junior Preferred Stock, all dividends paid upon shares
of Junior Preferred Stock and any other stock ranking on a parity
as to dividends with the Junior Preferred Stock shall be paid pro
rata so that in all cases the amount of dividends paid per share
on the Junior Preferred Stock and such other stock shall bear the
same ratio that accrued dividends per share on the shares of
Junior Preferred Stock and such other stock bear to each other.
Except as provided in the preceding sentence, unless full
cumulative dividends on the Junior Preferred Stock have been
paid, no dividends shall be declared or paid or set aside for
payment upon any other stock of the Corporation ranking on a
parity with the Junior Preferred Stock as to dividends.
d. An annual dividend period shall commence on the day following
a Dividend Accrual Date and shall end on the next succeeding
Dividend Accrual Date.
3. Preference on Liquidation
a. Except as otherwise provided in Article IV.B(3)(a) hereof, in
the event that the Corporation shall be liquidated, dissolved or
wound up, whether voluntarily or involuntarily, after all
creditors of the Corporation shall have been paid in full, the
holders of the Junior Preferred Stock shall be entitled to
receive, out of the assets of the Corporation legally available
for distribution to its stockholders, whether from capital,
surplus or earnings, before any amount shall be paid to the
holders of any shares of Junior Stock, an amount equal to $10 in
cash per share plus an amount equal to full cumulative dividends
(whether or not earned or declared) accrued and unpaid thereon
(including Additional Dividends) to the date of final
distribution, and no more; provided, however, that
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the holders of the Junior Preferred Stock shall not be entitled
to any amount pursuant to this Article IV.C(3) unless the holders
of Senior Preferred Stock shall have been paid in full in
accordance with Article IV.B(3) hereof and any other series
senior to the Junior Preferred Stock upon the liquidation,
distribution of assets, dissolution or winding-up of the
Corporation shall have been paid in full in accordance with its
terms. If upon any liquidation, dissolution or winding up of the
Corporation, the net assets of the Corporation shall be
insufficient to pay the holders of all outstanding shares of
Junior Preferred Stock and of any shares of stock ranking on a
parity with the Junior Preferred Stock the full amounts to which
they respectively shall be entitled, such assets, or the proceeds
thereof, shall be distributed ratably among the holders of the
Junior Preferred Stock and of any shares of stock ranking on a
parity with the Junior Preferred Stock. Holders of Junior
Preferred Stock shall not be entitled, upon the liquidation,
dissolution or winding up of the Corporation, to receive any
amounts with respect to such stock other than the amounts
referred to in this Article IV.C(3)(a).
b. Neither the purchase nor redemption by the Corporation of
shares of any class of stock in any manner permitted by the
Certificate of Incorporation or any amendment thereof, nor the
merger or consolidation of the Corporation with or into any other
corporation or corporations, nor a sale, transfer or lease of all
or substantially all of the Corporation's assets shall be deemed
to be a liquidation, dissolution or winding up of the Corporation
for the purposes of this Article IV.C(3); provided, however, that
any consolidation or merger of the Corporation in which the
Corporation is not the surviving entity shall be deemed to be a
liquidation, dissolution or winding up of the affairs of the
Corporation within the meaning of this Article IV.C(3) if, (A) in
connection therewith, the holders of Common Stock of the
Corporation receive as consideration, whether in whole or in
part, for such Common Stock (1) cash, (2) notes, debentures or
other evidences of indebtedness or obligations to pay cash or (3)
preferred stock of the surviving entity (whether or not the
surviving entity is the Corporation) which ranks on a parity with
or senior to the preferred stock received by holders of the
Junior Preferred Stock with respect to liquidation or dividends
or (B) the holders of the Junior Preferred Stock do not receive
preferred stock of the surviving entity with rights, powers and
preferences equal to
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(or more favorable to the holders than) the rights, powers and
preferences of the Junior Preferred Stock.
4. Redemption.
a. Mandatory Redemption. All outstanding shares of the Junior
Preferred Stock shall be redeemed from funds legally available
therefor on the Redemption Date, at a price per share equal to
$10 plus an amount per share equal to full cumulative dividends
(whether or not earned or declared) accrued and unpaid thereon
(including Additional Dividends) to the Redemption Date;
provided, however, that the holders of the Junior Preferred Stock
shall not be entitled to any amount pursuant to this Article
IV.C(4) unless the holders of the Senior Preferred Stock shall
have been paid in full in accordance with Article IV.B(4) hereof.
b. The aggregate amount of the redemption pursuant to Article
IV.C(4)(a) is hereinafter referred to as the "Junior Redemption
Price" with respect to such redemption.
5. Redemption Procedure
a. A redemption pursuant to Article IV.C(4) shall be accomplished
in the manner and with the effect as set forth in this Article
IV.C(5).
b. Notice of the redemption of Junior Preferred Stock pursuant to
Article IV.C(4) shall be given by mail not less than ten (10)
days prior to the Redemption Date. If less than all the
outstanding Junior Preferred Stock is to be redeemed, the
selection of shares for redemption shall be made pro rata and the
notice of redemption to a holder shall state the number of shares
of Junior Preferred Stock of such holder to be redeemed. The
amount of the Junior Redemption Price shall be deposited on or
before the Redemption Date in trust for the account of the
holders of Junior Preferred Stock entitled thereto with a bank or
trust company in good standing doing business in the State of New
York and having capital and surplus of at least $100,000,000 (the
date of such deposit being hereinafter in this Article IV.C(5)
referred to as the "date of deposit").
c. Notice of the date on which, and the name and address of the
bank or trust company with which, the deposit has been or will
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be made shall be included in the notice of redemption. On and
after the Redemption Date (unless default shall be made by the
Corporation in providing money for the payment of the Junior
Redemption Price pursuant to the notice of redemption), or if the
Corporation shall make such deposit on or before the date
specified therefor in the notice of redemption, then on and after
the date of deposit (provided notice of redemption has been duly
given), all dividends on the Junior Preferred Stock so called for
redemption shall cease to accrue and, notwithstanding that any
certificate for shares of Junior Preferred Stock is not
surrendered for cancellation, the shares represented thereby
shall no longer be deemed outstanding and all rights of the
holders thereof as stockholders of the Corporation with respect
to such shares shall cease and terminate, except the right to
receive the Junior Redemption Price as hereinafter provided.
d. At any time on or after the Redemption Date, or if the
Corporation shall deposit the money for such redemption prior to
the Redemption Date, then at any time on or after the date of
deposit, which time shall be specified by the Corporation in the
notice of redemption and which shall not be later than the
Redemption Date, the holders of record of the Junior Preferred
Stock to be redeemed shall be entitled to receive the Junior
Redemption Price upon actual delivery to the bank or trust
company with which such deposit shall be made of certificates for
the shares to be redeemed, such certificates, if required, to be
duly endorsed in blank or accompanied by proper instruments of
assignment and transfer duly endorsed in blank. The making of
such deposit with any such bank or trust company shall not
relieve the Corporation of liability for payment of the Junior
Redemption Price.
e. Any money so deposited which shall remain unclaimed by the
holders of such Junior Preferred Stock at the end of two (2)
years after the Redemption Date shall be paid by such bank or
trust company to the Corporation, which shall thereafter, to the
extent of the money so repaid, be liable for the payment of the
Junior Redemption Price. Any interest accrued on money so
deposited shall be paid to the Corporation from time to time.
6. Voting. Except as required by law and except for any voting by the
holders of the Junior Preferred Stock as part of a separate class or
series pursuant to Article IV.C(7) hereunder or any other provision of
the
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Corporation's Certificate of Incorporation, no holder of Junior
Preferred Stock, as such holder, shall be entitled to vote on any
matter submitted to a vote of stockholders. Notwithstanding the
foregoing, prior to an Initial Public Offering holders of the Series A
Senior Preferred Stock, Series B Junior Preferred Stock, Series C
Junior Preferred Stock and Series D Senior Preferred Stock voting as a
single class, shall be entitled by separate class vote to elect, with
each share having one vote, one member of the Corporation's board of
directors at an annual meeting of the stockholders called for such
purpose. On any matters on which the holders of the Junior Preferred
Stock shall be entitled to vote, they shall be entitled to one vote
for each share held.
7. Other Rights. Without the written consent of the holders of all of
the outstanding shares of Junior Preferred Stock or the vote of the
holders of all of the outstanding shares of Junior Preferred Stock at
a meeting of the holders of Junior Preferred Stock called for such
purpose, the Corporation shall not amend, alter or repeal any
provision of the Corporation's Certificate of Incorporation so as to
adversely affect the rights and preferences of the Junior Preferred
Stock including any change to the dividend payable on the Junior
Preferred Stock; provided, further, that in no event will the issuance
of any series of Preferred Stock that is senior to, on a parity with
or junior to the Junior Preferred Stock or has a redemption date
earlier than the Junior Preferred Stock be deemed to adversely affect
the rights and preferences of the Junior Preferred Stock.
8. Acknowledgement. The terms of the Preferred Stockholders Agreement
shall be binding on each holder of the Junior Preferred Stock, as if
such holder were an "Investor" thereunder. Each holder of Junior
Preferred Stock, by acceptance thereof, acknowledges and agrees that
payments of dividends, interest, premium and principal on, and
redemption and repurchase of, such securities by the Corporation are
subject to restrictions contained in certain credit and financing
agreements of the Corporation and its subsidiaries.
9. Definitions
The following terms, when used in this Article IV.C, shall have
the meanings set forth below:
a. As used herein, the amount of dividends "accrued" on any share
of Junior Preferred Stock as at any date shall be calculated as
the amount of any unpaid dividends accumulated thereon to and
including the last preceding Dividend Accrual Date with respect
to
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which dividends have not been paid, whether or not earned or
declared.
b. "corporation" shall mean a corporation, partnership, business
trust, unincorporated organization, association, limited
liability company or joint stock company.
c. "Junior Stock" shall mean any series or class of the capital
stock of the Corporation now or hereafter authorized or issued by
the Corporation, including any series or class of preferred
stock, ranking junior to the Junior Preferred Stock with respect
to dividends or distributions or upon the liquidation,
distribution of assets, dissolution or winding-up of the
Corporation, including without limitation the Class A Common
Stock and the Class B Common Stock (except as otherwise provided
in Article IV.B(3) hereof).
d. "person" shall mean an individual, a corporation, partnership,
trust, organization, association, government or any department or
agency thereof, or any other individual or entity.
D. CLASS A AND CLASS B COMMON STOCK
Except as otherwise provided herein, all shares of Class A Common Stock and
Class B Common Stock shall be identical and shall entitle the holders
thereof to the same rights and privileges.
1. Dividends. Holders of Common Stock shall be entitled to receive
ratably such dividends as may be declared by the Board of Directors;
provided that if dividends are declared which are payable in shares of
Class A Common Stock or Class B Common Stock, dividends shall be
declared which are payable at the same rate on each class of Common
Stock and the dividends payable in shares of Class A Common Stock
shall be payable to holders of Class A Common Stock and the dividends
payable in shares of Class B Common Stock shall be payable to holders
of Class B Common Stock.
2. Conversion. Each record holder of Class A Common Stock shall be
entitled to convert any or all of such holder's Class A Common Stock
into the same number of shares of Class B Common Stock and each record
holder of Class B Common Stock shall be entitled to convert any or all
of the shares of such holder's Class B Common Stock into the same
number
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of shares of Class A Common Stock; provided, however, that at the time
of conversion of shares of Class B Common Stock into shares of Class A
Common Stock such holder would be permitted, pursuant to applicable
law, to hold the total number of shares of Class A Common Stock which
he would hold after giving effect to such conversion; and provided,
further, that the determination of a holder of Common Stock that it is
permitted under applicable law to convert shares of Class B Common
Stock into shares of Class A Common Stock pursuant to this Article IV
4.D(2) shall be final and binding upon the Company.
Each conversion of shares of one class of Common Stock into
shares of another class of Common Stock shall be effected by the
surrender of the certificate or certificates representing the shares
to be converted at the principal office of the Corporation at any time
during normal business hours, together with a written notice by the
holder of such shares stating the number of shares that any such
holder desires to convert into the other class of Common Stock. Such
conversion shall be deemed to have been effected as of the close of
business on the date on which such certificate or certificates have
been surrendered and such notice has been received by the Corporation,
and at such time the rights of any such holder with respect to the
converted class of Common Stock shall cease and the person or persons
in whose name or names the certificate or certificates for shares of
the other class of Common Stock are to be issued upon such conversion
shall be deemed to have become the holder or holders of record of the
shares of such other class of Common Stock represented thereby.
Promptly after such surrender and the receipt by the Corporation
of the written notice from the holder hereinbefore referred to, the
Corporation shall issue and deliver in accordance with the
surrendering holder's instructions the certificate or certificates for
the other class of Common Stock issuable upon such conversion and a
certificate representing any shares of Common Stock which were
represented by the certificate or certificates delivered to the
Corporation in connection with such conversion but which were not
converted. The issuance of certificates for the other class of Common
Stock upon conversion shall be made without charge to the holder or
holders of such shares for any issuance tax (except stock transfer
taxes) in respect thereof or other cost incurred by the Corporation in
connection with such conversion.
3. Transfers. The Corporation shall not close its books against the
transfer of any share of Common Stock, or of any share of Common Stock
issued or issuable upon conversion of shares of the other class of
Common
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Stock, in any manner that would interfere with the timely conversion
of such shares of Common Stock.
4. Subdivision and Combinations of Shares. If the Corporation in any
manner subdivides or combines the outstanding shares of any class of
Common Stock, the outstanding shares of the other class of Common
Stock shall be proportionately subdivided or combined.
5. Reservation of Shares for Conversion. So long as any shares of any
class of Common Stock are outstanding, the Corporation shall at all
times reserve and keep available out of its authorized but unissued
shares of Class A Common Stock and Class B Common Stock, the number of
shares sufficient for issuance upon conversion.
6. Distribution of Assets. Except as otherwise provided in Article
IV.B(3)(a) hereof, in the event of the voluntary or involuntary
liquidation, dissolution or winding up of the Corporation (a
"Distribution Event"), holders of Common Stock shall be entitled to
receive all of the remaining assets of the Corporation available for
distribution to its stockholders after all amounts to which the
holders of Preferred Stock are entitled have been paid or set aside in
cash for payment.
7. Voting Rights. The holders of Class A Common Stock shall have the
general right to vote for all purposes, including the election of
directors, as provided by law. Each holder of Class A Common Stock
shall be entitled to one vote for each share thereof held. Except as
otherwise required by law, the holders of Class B Common Stock shall
have no voting rights.
8. Merger, etc. In connection with any merger, consolidation, or
recapitalization in which holders of Class A Common Stock generally
receive, or are given the opportunity to receive, consideration for
their shares (a) all holders of Class B Common Stock shall be given
the opportunity to receive the same form of consideration for their
shares as is received by holders of Class A Common Stock and (b)
holders of Class B Common Stock shall be entitled to receive the same
amount of consideration per share as received by holders of Class A
Common Stock.
9. Acknowledgement. The terms of the Securities Purchase and Holders
Agreement dated as of March 17, 2000 by and among the Corporation,
Citicorp Venture Capital Ltd. and the other parties listed as
signatories thereto shall be binding on each holder of the Class A
-23-
Common Stock and Class B Common Stock as if such holder were an
"Investor" thereunder.
5. Incorporator. The name and mailing address of the incorporator are
Mishael Azam, 4000 Bell Atlantic Tower, 1717 Arch Street, Philadelphia,
Pennsylvania 19103-2793.
6. Bylaws. The board of directors of the Corporation is authorized to
adopt, amend or repeal the bylaws of the Corporation, except as otherwise
specifically provided therein.
7. Elections of Directors. Elections of directors need not be by written
ballot unless the bylaws of the Corporation shall so provide.
8. Right to Amend. The Corporation reserves the right to amend any
provision contained in this Certificate as the same may from time to time be in
effect in the manner now or hereafter prescribed by law, and all rights
conferred on stockholders or others hereunder are subject to such reservation.
9. Limitation on Liability. The directors of the Corporation shall be
entitled to the benefits of all limitations on the liability of directors
generally that are now or hereafter become available under the General
Corporation Law of Delaware. Without limiting the generality of the foregoing,
no director of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit. Any repeal or
modification of this Section 9 shall be prospective only, and shall not affect,
to the detriment of any director, any limitation on the personal liability of a
director of the Corporation existing at the time of such repeal or modification.
10. Miscellaneous. The Corporation elects not to be governed by Section 203
of the Delaware General Corporation Law.
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CERTIFICATE OF DESIGNATION
OF 8% SERIES D SENIOR PREFERRED STOCK
OF
FABRISTEEL HOLDINGS, INC.
FabriSteel Holdings, Inc., a Delaware corporation (hereinafter called the
"Corporation"), pursuant to the provisions of Section 151 of the General
Corporation Law of the State of Delaware, does hereby make this Certificate of
Designation under the corporate seal of the Corporation and does hereby state
and certify that pursuant to the authority expressly vested in the Board of
Directors of the Corporation by the Amended and Restated Certificate of
Incorporation of the Corporation, dated March 16, 2000 (the "Certificate of
Incorporation"), the Board of Directors has duly adopted the following
resolutions:
RESOLVED, that, pursuant to Article IV of the Certificate of Incorporation
(which authorizes 5,000,000 shares of Preferred Stock, $.01 par value per share,
of which no shares are presently issued and outstanding), the Board of Directors
hereby fixes the designations and preferences and relative, participating,
optional and other special rights and qualifications, limitations and
restrictions of a series of Preferred Stock consisting of 850,000 shares to be
designated 8% Series D Cumulative Senior Preferred Stock.
8% SERIES D CUMULATIVE SENIOR PREFERRED STOCK
RESOLVED, that each share of the 8% Series D Cumulative Senior Preferred
Stock shall rank equally in all respects and shall be subject to the following
provisions:
1. Designation, Number of Shares. The fourth series of Preferred Stock
shall be designated as the 8% Series D Cumulative Senior Preferred
Stock ("Series D Senior Preferred Stock"), and the number of shares
which shall constitute such series shall be 850,000. The par value of
the Series D Senior Preferred Stock shall be $.01 per share.
2. Accrual and Payment of Dividends
a. The holders of Series D Senior Preferred Stock shall 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 rate of $8.00 per
share per annum; provided, that such holders shall not be
entitled to receive, and the Series D Senior Preferred Stock
shall not accrue, dividends until after April 1, 2001.
Such dividends shall be payable in annual installments in
arrears commencing March 1, 2002 and thereafter on the first day
of March (unless such day is not a business day in which event on
the last preceding business day) in each such year (hereinafter
referred to as a "Dividend Accrual Date"), except that the
dividend
payment payable on March 1, 2002 shall be calculated from April
1, 2001 through March 1, 2002. Each such dividend on Series D
Senior Preferred Stock when paid shall be payable to holders of
record as they appear on the stock books of the Corporation on
the date established by the Board of Directors of the Corporation
as the record date for the payment of such dividend (which record
date shall not precede the date upon which the resolution fixing
such record date is adopted and which record date shall be not
more than sixty days prior to such action). If no record date is
fixed, the record date for determining holders for such purpose
shall be at the close of business on the date on which the Board
of Directors adopts the resolution relating to such dividend
payment. Dividends with respect to any shares of Series D Senior
Preferred Stock shall accrue (whether or not earned or declared)
from April 1, 2001.
b. Such dividends on the Series D Senior Preferred Stock shall be
cumulative, whether or not earned or declared, so that if at any
time full cumulative dividends at the rate aforesaid on all
shares of Series D Senior Preferred Stock then outstanding to the
end of the annual dividend period next preceding such time shall
not have been paid, the amount of the deficiency shall be paid
before any sum shall be set aside for or applied by the
Corporation to the purchase, redemption or other acquisition for
value of any shares of Junior Stock (either pursuant to any
applicable sinking fund requirement or otherwise) or any dividend
or other distribution shall be paid or declared and set apart for
payment on any Junior Stock (other than a dividend payable in
Junior Stock); provided, however, that the foregoing shall not
prohibit the Corporation from repurchasing shares of Junior Stock
from a former employee of the Corporation (or a subsidiary of the
Corporation) where such repurchase arises from the Corporation's
option to repurchase such shares upon termination of such
employee's employment with the Corporation (or a subsidiary)
pursuant to a written agreement between the Corporation and such
employee. Accrued dividends on the Series D Senior Preferred
Stock if not paid on the first or any subsequent Dividend Accrual
Date following accrual shall thereafter accrue additional
dividends in respect thereof (the "Additional Dividends"),
compounded annually, at the rate of 8% per annum.
c. The right to receive dividends on the Series D Senior
Preferred Stock shall rank on parity with that of the
Corporation's 8% Series A Cumulative Senior Preferred Stock
("Series A Senior Preferred Stock"). When dividends are not paid
in full upon the Series D Senior Preferred Stock and any other
stock ranking on a parity as to dividends with the Series D
Senior Preferred Stock, all
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dividends paid upon shares of Series D Senior Preferred Stock and
any other stock ranking on a parity as to dividends with the
Series D Senior Preferred Stock shall be paid pro rata so that in
all cases the amount of dividends paid per share on the Series D
Senior Preferred Stock and such other stock shall bear the same
ratio that accrued dividends per share on the shares of Series D
Senior Preferred Stock and such other stock bear to each other.
Except as provided in the preceding sentence, unless full
cumulative dividends on the Series D Senior Preferred Stock have
been paid, no dividends shall be declared or paid or set aside
for payment upon any other stock of the Corporation ranking on a
parity with the Series D Senior Preferred Stock as to dividends.
d. An annual dividend period shall commence on the day following
a Dividend Accrual Date and shall end on the next succeeding
Dividend Accrual Date.
3. Preference on Liquidation
a. Except as otherwise provided in Article IV.B(3)(a) of the
Certificate of Incorporation, in the event that the Corporation
shall be liquidated, dissolved or wound up, whether voluntarily
or involuntarily, after all creditors of the Corporation shall
have been paid in full, the holders of the Series D Senior
Preferred Stock shall be entitled to receive, out of the assets
of the Corporation legally available for distribution to its
stockholders, whether from capital, surplus or earnings, before
any amount shall be paid to the holders of any shares of Junior
Stock, an amount equal to $100 in cash per share plus an amount
equal to full cumulative dividends (whether or not earned or
declared) accrued and unpaid thereon (including Additional
Dividends) to the date of final distribution, and no more. Series
D Senior Preferred Stock shall rank on parity with the Series A
Senior Preferred Stock with respect to receiving any amount as a
result of a liquidation, distribution of assets, dissolution or
winding up of the Corporation. If upon any liquidation,
dissolution or winding up of the Corporation, the net assets of
the Corporation shall be insufficient to pay the holders of all
outstanding shares of Series D Senior Preferred Stock and of any
shares of stock ranking on a parity with the Series D Senior
Preferred Stock the full amounts to which they respectively shall
be entitled, such assets, or the proceeds thereof, shall be
distributed ratably among the holders of the Series D Senior
Preferred Stock and of any shares of stock ranking on a parity
with the Series D Senior Preferred Stock. Holders of Series D
Senior Preferred Stock shall not be entitled, upon the
liquidation, dissolution or winding up of the Corporation, to
receive any amounts with
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respect to such stock other than the amounts referred to in this
Section (3)(a).
b. Neither the purchase nor redemption by the Corporation of
shares of any class of stock in any manner permitted by the
Certificate of Incorporation or any amendment thereof, nor the
merger or consolidation of the Corporation with or into any other
corporation or corporations, nor a sale, transfer or lease of all
or substantially all of the Corporation's assets shall be deemed
to be a liquidation, dissolution or winding up of the Corporation
for the purposes of this Section (3); provided, however, that any
consolidation or merger of the Corporation in which the
Corporation is not the surviving entity shall be deemed to be a
liquidation, dissolution or winding up of the affairs of the
Corporation within the meaning of this Section (3) if, (A) in
connection therewith, the holders of Common Stock of the
Corporation receive as consideration, whether in whole or in
part, for such Common Stock (1) cash, (2) notes, debentures or
other evidences of indebtedness or obligations to pay cash or (3)
preferred stock of the surviving entity (whether or not the
surviving entity is the Corporation) which ranks on a parity with
or senior to the preferred stock received by holders of the
Series D Senior Preferred Stock with respect to liquidation or
dividends or (B) the holders of the Series D Senior Preferred
Stock do not receive preferred stock of the surviving entity with
rights, powers and preferences equal to (or more favorable to the
holders than) the rights, powers and preferences of the Series D
Senior Preferred Stock.
4. Redemption.
a. Mandatory Redemption. All outstanding shares of the Series D
Senior Preferred Stock shall be redeemed from funds legally
available therefor on April 1, 2020 (the "Mandatory Redemption
Date"), at a price per share equal to $100 plus an amount per
share equal to full cumulative dividends (whether or not earned
or declared) accrued and unpaid thereon (including Additional
Dividends) to the Mandatory Redemption Date. The holders of the
Series D Senior Preferred Stock shall be paid in full in
accordance with this Section 4(a) prior to any payment made to
the holders of any outstanding shares of (w) the Corporation's
12% Series E Cumulative Junior Preferred Stock, par value $.01
per share (the "Series E Junior Preferred Stock"), (x) the
Corporation's 12% Series B Cumulative Junior Preferred Stock, par
value $.01 per share (the "Series B Junior Preferred Stock"), (y)
the Corporation's 12% Series C Cumulative Junior Preferred Stock,
par value $.01 per share (the "Series C Junior Preferred Stock")
-4-
and (z) any other of the Corporation's Junior Stock, pursuant to
the respective mandatory redemption terms (if any) of such stock.
b. Optional Redemption. The Series D Senior Preferred Stock may
be redeemed from funds legally available therefor, in whole or in
part, at the election of the Corporation, expressed by resolution
of the Board of Directors, at any time and from time to time at a
price per share equal to $100 plus an amount per share equal to
full cumulative dividends (whether or not earned or declared)
accrued and unpaid thereon (including Additional Dividends as
defined in the Certificate of Incorporation) to the date of
redemption (the "Optional Redemption Date).
c. The aggregate amount of the redemption pursuant to Section
(4)(a) for a Mandatory Redemption or Section (4)(b) for an
Optional Redemption is hereinafter referred to as the "Redemption
Price" with respect to such redemption. As used herein,
"Mandatory Redemption Date" and "Optional Redemption Date" shall
hereinafter sometimes be referred to as the "Redemption Date".
5. Redemption Procedure
a. A redemption pursuant to Section (4) shall be accomplished in
the manner and with the effect as set forth in this Section (5).
b. Notice of the redemption of Series D Senior Preferred Stock
pursuant to Section (4) shall be given by mail not less than ten
(10) days prior to the applicable Redemption Date. If less than
all the outstanding Series D Senior Preferred Stock is to be
redeemed, the selection of shares for redemption shall be made
pro rata and the notice of redemption to a holder shall state the
number of shares of Series D Senior Preferred Stock of such
holder to be redeemed. The amount of the Redemption Price shall
be deposited on or before the Redemption Date in trust for the
account of the holders of Series D Senior Preferred Stock
entitled thereto with a bank or trust company in good standing
doing business in the State of New York and having capital and
surplus of at least $100,000,000 (the date of such deposit being
hereinafter in this Section (5) referred to as the "date of
deposit").
c. Notice of the date on which, and the name and address of the
bank or trust company with which, the deposit has been or will be
made shall be included in the notice of redemption. On and after
the applicable Redemption Date (unless default shall be made by
the Corporation in providing money for the payment of the
Redemption Price pursuant to the notice of redemption), or if the
-5-
Corporation shall make such deposit on or before the date
specified therefor in the notice of redemption, then on and after
the date of deposit (provided notice of redemption has been duly
given), all dividends on the Series D Senior Preferred Stock so
called for redemption shall cease to accrue and, notwithstanding
that any certificate for shares of Series D Senior Preferred
Stock is not surrendered for cancellation, the shares represented
thereby shall no longer be deemed outstanding and all rights of
the holders thereof as stockholders of the Corporation with
respect to such shares shall cease and terminate, except the
right to receive the Redemption Price as hereinafter provided.
d. At any time on or after the applicable Redemption Date, or if
the Corporation shall deposit the money for such redemption prior
to the applicable Redemption Date, then at any time on or after
the date of deposit, which time shall be specified by the
Corporation in the notice of redemption and which shall not be
later than the applicable Redemption Date, the holders of record
of the Series D Senior Preferred Stock to be redeemed shall be
entitled to receive the Redemption Price upon actual delivery to
the bank or trust company with which such deposit shall be made
of certificates for the shares to be redeemed, such certificates,
if required, to be duly endorsed in blank or accompanied by
proper instruments of assignment and transfer duly endorsed in
blank. The making of such deposit with any such bank or trust
company shall not relieve the Corporation of liability for
payment of the Redemption Price.
e. Any money so deposited which shall remain unclaimed by the
holders of such Series D Senior Preferred Stock at the end of two
(2) years after the applicable Redemption Date shall be paid by
such bank or trust company to the Corporation, which shall
thereafter, to the extent of the money so repaid, be liable for
the payment of the Redemption Price. Any interest accrued on
money so deposited shall be paid to the Corporation from time to
time.
6. Voting. Except as required by law and except for any voting by the
holders of the Series D Senior Preferred Stock as part of a separate
class or series pursuant to Section (7) hereunder or any other
provision of the Corporation's Certificate of Incorporation, no holder
of Series D Senior Preferred Stock, as such holder, shall be entitled
to vote on any matter submitted to a vote of stockholders.
Notwithstanding the foregoing, prior to an "Initial Public Offering"
(as defined in the Securities Purchase and Holders Agreement dated as
of March 17, 2000 by and among Corporation, Citicorp Venture Capital
Ltd. and the other parties listed as signatories thereto) holders of
the Series A Senior Preferred Stock, Series B Junior Preferred Stock,
Series C Junior Preferred Stock
-6-
and Series D Senior Preferred Stock voting as a single class, shall be
entitled by separate class vote to elect, with each share having one
vote, one member of the Corporation's board of directors at an annual
meeting of the stockholders called for such purpose. On any matters on
which the holders of the Series D Senior Preferred Stock shall be
entitled to vote, they shall be entitled to one vote for each share
held.
7. Other Rights. Without the written consent of the holders of all of
the outstanding shares of Series D Senior Preferred Stock or the vote
of the holders of all of the outstanding shares of Series D Senior
Preferred Stock at a meeting of the holders of Series D Senior
Preferred Stock called for such purpose, the Corporation shall not
amend, alter or repeal any provision of the Corporation's Certificate
of Incorporation so as to adversely affect the rights and preferences
of the Series D Senior Preferred Stock including any change to the
dividend payable on the Series D Senior Preferred Stock; provided,
further, that in no event will the issuance of any series of Preferred
Stock that is on a parity with or junior to the Series D Senior
Preferred Stock or has a redemption date earlier than the Series D
Senior Preferred Stock be deemed to adversely affect the rights and
preferences of the Series D Senior Preferred Stock.
8. Acknowledgement. Each holder of Series D Senior Preferred Stock, by
acceptance thereof, acknowledges and agrees that payments of
dividends, interest, premium and principal on, and redemption and
repurchase of, such securities by the Corporation are subject to
restrictions contained in certain credit and financing agreements of
the Corporation and its subsidiaries.
9. Definitions
The following terms, when used in this Section A, shall have the
meanings set forth below:
a. As used herein, the amount of dividends "accrued" on any share
of Series D Senior Preferred Stock as at any date shall be
calculated as the amount of any unpaid dividends accumulated
thereon to and including the last preceding Dividend Accrual Date
with respect to which dividends have not been paid, whether or
not earned or declared.
b. "corporation" shall mean a corporation, partnership, business
trust, unincorporated organization, association, limited
liability company or joint stock company.
c. "Junior Stock" shall mean any series or class of the capital
stock of the Corporation now or hereafter authorized or issued by
the Corporation, including any series or class of preferred
stock,
-7-
ranking junior to the Series D Senior Preferred Stock with
respect to dividends or distributions or upon the liquidation,
distribution of assets, dissolution or winding-up of the
Corporation, including without limitation the Series B Junior
Preferred Stock, the Series C Junior Preferred Stock of the
Corporation, the Series E Junior Preferred Stock, the Class A
Common Stock of the Corporation, par value $.01 per share and the
Class B Common Stock of the Corporation, par value $.01 per share
(except as otherwise provided in Article IV.B(3) of the
Certificate of Incorporation).
d. "person" shall mean an individual, a corporation, partnership,
trust, organization, association, government or any department or
agency thereof, or any other individual or entity.
-8-
IN WITNESS WHEREOF, FabriSteel Holdings, Inc. has caused this Certificate
of Designation to be signed by its President, and attested by its Secretary,
this 16th day of March, 2000.
ATTEST: FABRISTEEL HOLDINGS, INC.
/s/ Mark J. MacGuidwin /s/ Rex A. Ogg
- ------------------------- -----------------------------
Assistant Secretary President
Mark J. MacGuidwin Rex A. Ogg
-9-
CERTIFICATE OF DESIGNATION
OF 12% SERIES C JUNIOR PREFERRED STOCK
OF
FABRISTEEL HOLDINGS, INC.
FabriSteel Holdings, Inc., a Delaware corporation (hereinafter called the
"Corporation"), pursuant to the provisions of Section 151 of the General
Corporation Law of the State of Delaware, does hereby make this Certificate of
Designation under the corporate seal of the Corporation and does hereby state
and certify that pursuant to the authority expressly vested in the Board of
Directors of the Corporation by the Amended and Restated Certificate of
Incorporation of the Corporation, dated March 16, 2000 (the "Certificate of
Incorporation"), the Board of Directors has duly adopted the following
resolutions:
RESOLVED, that, pursuant to Article IV of the Certificate of Incorporation
(which authorizes 5,000,000 shares of Preferred Stock, $.01 par value per share,
of which no shares are presently issued and outstanding), the Board of Directors
hereby fixes the designations and preferences and relative, participating,
optional and other special rights and qualifications, limitations and
restrictions of a series of Preferred Stock consisting of 950,000 shares to be
designated 12% Series C Junior Preferred Stock.
12% SERIES C CUMULATIVE JUNIOR PREFERRED STOCK
RESOLVED, that each share of the 12% Series C Cumulative Junior Preferred
Stock shall rank equally in all respects and shall be subject to the following
provisions:
1. Designation, Number of Shares. The third series of Preferred Stock
shall be designated as the 12% Series C Cumulative Junior Preferred
Stock ("Series C Junior Preferred Stock"), and the number of shares
which shall constitute such series shall be 950,000. The par value of
the Series C Junior Preferred Stock shall be $.01 per share.
2. Accrual and Payment of Dividends
a. The holders of Series C Junior Preferred Stock shall 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 rate of $1.20 per
share per annum.
Such dividends shall be payable in annual installments in
arrears commencing March 1, 2001 and thereafter on the first day
of March (unless such day is not a business day in which event on
the last preceding business day) in each such year (hereinafter
referred to as a "Dividend Accrual Date"), except that the
dividend payment payable on March 1, 2001 shall be calculated
from June 11, 1998 as if issued on such date, with Dividend
Accrual Dates on
March 1, 1999 and March 1, 2000 through March 1, 2001. Each such
dividend on Series C Junior Preferred Stock when paid shall be
payable to holders of record as they appear on the stock books of
the Corporation on the date established by the Board of Directors
of the Corporation as the record date for the payment of such
dividend (which record date shall not precede the date upon which
the resolution fixing such record date is adopted and which
record date shall be not more than sixty days prior to such
action). If no record date is fixed, the record date for
determining holders for such purpose shall be at the close of
business on the date on which the Board of Directors adopts the
resolution relating to such dividend payment. Dividends with
respect to any shares of Series C Junior Preferred Stock shall
accrue (whether or not earned or declared) from the date of issue
of such shares.
b. Such dividends on the Series C Junior Preferred Stock shall be
cumulative, whether or not earned or declared, so that if at any
time full cumulative dividends at the rate aforesaid on all
shares of Series C Junior Preferred Stock then outstanding to the
end of the annual dividend period next preceding such time shall
not have been paid, the amount of the deficiency shall be paid
before any sum shall be set aside for or applied by the
Corporation to the purchase, redemption or other acquisition for
value of any shares of Junior Stock (either pursuant to any
applicable sinking fund requirement or otherwise) or any dividend
or other distribution shall be paid or declared and set apart for
payment on any Junior Stock (other than a dividend payable in
Junior Stock); provided, however, that the holders of the Series
C Junior Preferred Stock shall not be entitled to any amount
pursuant to this Section (2)(b) unless the holders of the
Corporation's 8% Series A Cumulative Senior Preferred Stock
("Senior Preferred Stock") shall have been paid in full in
accordance with Article IV.B(2) of the Certificate of
Incorporation and any other series senior to the Series C Junior
Preferred Stock with respect to dividends shall have been paid in
full in accordance with its terms; provided, further, that the
foregoing shall not prohibit the Corporation from repurchasing
shares of Junior Stock from a former employee of the Corporation
(or a subsidiary of the Corporation) where such repurchase arises
from the Corporation's option to repurchase such shares upon
termination of such employee's employment with the Corporation
(or a subsidiary) pursuant to a written agreement between the
Corporation and such employee. Accrued dividends on the Junior
Preferred Stock if not paid on the first or any subsequent
Dividend Accrual Date following accrual shall thereafter accrue
additional dividends in respect thereof (the "Additional
Dividends"), compounded annually, at the rate of 12% per annum.
-2-
c. The right to receive dividends on the Series C Junior
Preferred Stock shall rank on parity with that of the
Corporation's 12% Series B Cumulative Junior Preferred Stock
("Series B Junior Preferred Stock"). When dividends are not paid
in full upon the Series C Junior Preferred Stock and any other
stock ranking on a parity as to dividends with the Series C
Junior Preferred Stock, all dividends paid upon shares of Series
C Junior Preferred Stock and any other stock ranking on a parity
as to dividends with the Series C Junior Preferred Stock shall be
paid pro rata so that in all cases the amount of dividends paid
per share on the Series C Junior Preferred Stock and such other
stock shall bear the same ratio that accrued dividends per share
on the shares of Series C Junior Preferred Stock and such other
stock bear to each other. Except as provided in the preceding
sentence, unless full cumulative dividends on the Series C Junior
Preferred Stock have been paid, no dividends shall be declared or
paid or set aside for payment upon any other stock of the
Corporation ranking on a parity with the Series C Junior
Preferred Stock as to dividends.
d. An annual dividend period shall commence on the day following
a Dividend Accrual Date and shall end on the next succeeding
Dividend Accrual Date.
3. Preference on Liquidation
a. Except as otherwise provided in Article IV.B(3)(a) of the
Certificate of Incorporation, in the event that the Corporation
shall be liquidated, dissolved or wound up, whether voluntarily
or involuntarily, after all creditors of the Corporation shall
have been paid in full, the holders of the Series C Junior
Preferred Stock shall be entitled to receive, out of the assets
of the Corporation legally available for distribution to its
stockholders, whether from capital, surplus or earnings, before
any amount shall be paid to the holders of any shares of Junior
Stock, an amount equal to $10 in cash per share plus an amount
equal to full cumulative dividends (whether or not earned or
declared) accrued and unpaid thereon (including Additional
Dividends) to the date of final distribution, and no more;
provided, however, that the holders of the Series C Junior
Preferred Stock shall not be entitled to any amount pursuant to
this Section (3) unless the holders of Senior Preferred Stock
shall have been paid in full in accordance with Article IV.B(3)
of the Certificate of Incorporation and any other series senior
to the Series C Junior Preferred Stock upon the liquidation,
distribution of assets, dissolution or winding-up of the
Corporation shall have been paid in full in accordance with its
terms. Series C Junior Preferred Stock shall rank on parity with
the Series B Junior Preferred Stock with respect to receiving any
amount as a result of
-3-
a liquidation, distribution of assets, dissolution or winding up
of the Corporation. If upon any liquidation, dissolution or
winding up of the Corporation, the net assets of the Corporation
shall be insufficient to pay the holders of all outstanding
shares of Series C Junior Preferred Stock and of any shares of
stock ranking on a parity with the Series C Junior Preferred
Stock the full amounts to which they respectively shall be
entitled, such assets, or the proceeds thereof, shall be
distributed ratably among the holders of the Series C Junior
Preferred Stock and of any shares of stock ranking on a parity
with the Series C Junior Preferred Stock. Holders of Series C
Junior Preferred Stock shall not be entitled, upon the
liquidation, dissolution or winding up of the Corporation, to
receive any amounts with respect to such stock other than the
amounts referred to in this Section (3)(a).
b. Neither the purchase nor redemption by the Corporation of
shares of any class of stock in any manner permitted by the
Certificate of Incorporation or any amendment thereof, nor the
merger or consolidation of the Corporation with or into any other
corporation or corporations, nor a sale, transfer or lease of all
or substantially all of the Corporation's assets shall be deemed
to be a liquidation, dissolution or winding up of the Corporation
for the purposes of this Section (3); provided, however, that any
consolidation or merger of the Corporation in which the
Corporation is not the surviving entity shall be deemed to be a
liquidation, dissolution or winding up of the affairs of the
Corporation within the meaning of this Section (3) if, (A) in
connection therewith, the holders of Common Stock of the
Corporation receive as consideration, whether in whole or in
part, for such Common Stock (1) cash, (2) notes, debentures or
other evidences of indebtedness or obligations to pay cash or (3)
preferred stock of the surviving entity (whether or not the
surviving entity is the Corporation) which ranks on a parity with
or senior to the preferred stock received by holders of the
Series C Junior Preferred Stock with respect to liquidation or
dividends or (B) the holders of the Series C Junior Preferred
Stock do not receive preferred stock of the surviving entity with
rights, powers and preferences equal to (or more favorable to the
holders than) the rights, powers and preferences of the Series C
Junior Preferred Stock.
4. Redemption.
a. Mandatory Redemption. All outstanding shares of the Series C
Junior Preferred Stock shall be redeemed from funds legally
available therefor on April 1, 2020 (the "Mandatory Redemption
Date"), at a price per share equal to $10 plus an
-4-
amount per share equal to full cumulative dividends (whether or
not earned or declared) accrued and unpaid thereon (including
Additional Dividends) to the Mandatory Redemption Date; provided,
however, that the holders of the Series C Junior Preferred Stock
shall not be entitled to any amount pursuant to this Section
(4)(a) unless the holders of the Senior Preferred Stock shall
have been paid in full in accordance with Article IV.B(4) of the
Certificate of Incorporation; provided, further, that the rights
of the holders of the Series C Junior Preferred Stock to receive
amounts pursuant to this Section (4)(a) shall rank on parity with
that of the Series B Junior Preferred Stock.
b. Optional Redemption. The Series C Junior Preferred Stock may
be redeemed from funds legally available therefor, in whole or in
part, at the election of the Corporation, expressed by resolution
of the Board of Directors, at any time and from time to time at a
price per share equal to $10 plus an amount per share equal to
full cumulative dividends (whether or not earned or declared)
accrued and unpaid thereon (including Additional Dividends as
defined in the Certificate of Incorporation) to the date of
redemption (the "Optional Redemption Date).
c. The aggregate amount of the redemption pursuant to Section
(4)(a) for a Mandatory Redemption or Section (4)(b) for an
Optional Redemption is hereinafter referred to as the "Series C
Junior Redemption Price" with respect to such redemption. As used
herein, "Mandatory Redemption Date" and "Optional Redemption
Date" shall hereinafter sometimes be referred to as the
"Redemption Date".
5. Redemption Procedure
a. A redemption pursuant to Section (4) shall be accomplished in
the manner and with the effect as set forth in this Section (5).
b. Notice of the redemption of Series C Junior Preferred Stock
pursuant to Section (4) shall be given by mail not less than ten
(10) days prior to the applicable Redemption Date. If less than
all the outstanding Series C Junior Preferred Stock is to be
redeemed, the selection of shares for redemption shall be made
pro rata and the notice of redemption to a holder shall state the
number of shares of Series C Junior Preferred Stock of such
holder to be redeemed. The amount of the Series C Junior
Redemption Price shall be deposited on or before the Redemption
Date in trust for the account of the holders of Series C Junior
Preferred Stock entitled thereto with a bank or trust company in
good standing doing business in the State of New York and having
capital and surplus
-5-
of at least $100,000,000 (the date of such deposit being
hereinafter in this Section (5) referred to as the "date of
deposit").
c. Notice of the date on which, and the name and address of the
bank or trust company with which, the deposit has been or will be
made shall be included in the notice of redemption. On and after
the applicable Redemption Date (unless default shall be made by
the Corporation in providing money for the payment of the Series
C Junior Redemption Price pursuant to the notice of redemption),
or if the Corporation shall make such deposit on or before the
date specified therefor in the notice of redemption, then on and
after the date of deposit (provided notice of redemption has been
duly given), all dividends on the Series C Junior Preferred Stock
so called for redemption shall cease to accrue and,
notwithstanding that any certificate for shares of Series C
Junior Preferred Stock is not surrendered for cancellation, the
shares represented thereby shall no longer be deemed outstanding
and all rights of the holders thereof as stockholders of the
Corporation with respect to such shares shall cease and
terminate, except the right to receive the Series C Junior
Redemption Price as hereinafter provided.
d. At any time on or after the applicable Redemption Date, or if
the Corporation shall deposit the money for such redemption prior
to the applicable Redemption Date, then at any time on or after
the date of deposit, which time shall be specified by the
Corporation in the notice of redemption and which shall not be
later than the applicable Redemption Date, the holders of record
of the Series C Junior Preferred Stock to be redeemed shall be
entitled to receive the Series C Junior Redemption Price upon
actual delivery to the bank or trust company with which such
deposit shall be made of certificates for the shares to be
redeemed, such certificates, if required, to be duly endorsed in
blank or accompanied by proper instruments of assignment and
transfer duly endorsed in blank. The making of such deposit with
any such bank or trust company shall not relieve the Corporation
of liability for payment of the Series C Junior Redemption Price.
e. Any money so deposited which shall remain unclaimed by the
holders of such Series C Junior Preferred Stock at the end of two
(2) years after the applicable Redemption Date shall be paid by
such bank or trust company to the Corporation, which shall
thereafter, to the extent of the money so repaid, be liable for
the payment of the Series C Junior Redemption Price. Any interest
accrued on money so deposited shall be paid to the Corporation
from time to time.
-6-
6. Voting. Except as required by law and except for any voting by the
holders of the Series C Junior Preferred Stock as part of a separate
class or series pursuant to Section (7) hereunder or any other
provision of the Corporation's Certificate of Incorporation, no holder
of Series C Junior Preferred Stock, as such holder, shall be entitled
to vote on any matter submitted to a vote of stockholders.
Notwithstanding the foregoing, prior to an "Initial Public Offering"
(as defined in the Securities Purchase and Holders Agreement dated as
of March 17, 2000 by and among the Corporation, Citicorp Venture
Capital Ltd. and the other parties listed as signatories thereto)
holders of the Series A Senior Preferred Stock, Series B Junior
Preferred Stock, Series C Junior Preferred Stock and Series D Senior
Preferred Stock voting as a single class, shall be entitled by
separate class vote to elect, with each share having one vote, one
member of the Corporation's board of directors at an annual meeting of
the stockholders called for such purpose. On any matters on which the
holders of the Series C Junior Preferred Stock shall be entitled to
vote, they shall be entitled to one vote for each share held.
7. Other Rights. Without the written consent of the holders of all of
the outstanding shares of Series C Junior Preferred Stock or the vote
of the holders of all of the outstanding shares of Series C Junior
Preferred Stock at a meeting of the holders of Series C Junior
Preferred Stock called for such purpose, the Corporation shall not
amend, alter or repeal any provision of the Corporation's Certificate
of Incorporation so as to adversely affect the rights and preferences
of the Series C Junior Preferred Stock including any change to the
dividend payable on the Series C Junior Preferred Stock; provided,
further, that in no event will the issuance of any series of Preferred
Stock that is senior to, on a parity with or junior to the Series C
Junior Preferred Stock or has a redemption date earlier than the
Series C Junior Preferred Stock be deemed to adversely affect the
rights and preferences of the Series C Junior Preferred Stock.
8. Acknowledgement. The terms of the Preferred Stockholders Agreement
dated as of March 17, 2000 by and among Citicorp Venture Capital Ltd.
and the other parties listed as signatories thereto shall be binding
on each holder of the Junior Preferred Stock, as if such holder were
an "Investor" thereunder. Each holder of Series C Junior Preferred
Stock, by acceptance thereof, acknowledges and agrees that payments of
dividends, interest, premium and principal on, and redemption and
repurchase of, such securities by the Corporation are subject to
restrictions contained in certain credit and financing agreements of
the Corporation and its subsidiaries.
9. Definitions
The following terms, when used in this Section A, shall have the
meanings set forth below:
-7-
a. As used herein, the amount of dividends "accrued" on any share
of Series C Junior Preferred Stock as at any date shall be
calculated as the amount of any unpaid dividends accumulated
thereon to and including the last preceding Dividend Accrual Date
with respect to which dividends have not been paid, whether or
not earned or declared.
b. "corporation" shall mean a corporation, partnership, business
trust, unincorporated organization, association, limited
liability company or joint stock company.
c. "Junior Stock" shall mean any series or class of the capital
stock of the Corporation now or hereafter authorized or issued by
the Corporation, including any series or class of preferred
stock, ranking junior to the Series C Junior Preferred Stock with
respect to dividends or distributions or upon the liquidation,
distribution of assets, dissolution or winding-up of the
Corporation, including without limitation the Class A Common
Stock of the Corporation, par value $.01 per share and the Class
B Common Stock of the Corporation, par value $.01 per share
(except as otherwise provided in Article IV.B(3) of the
Certificate of Incorporation).
d. "person" shall mean an individual, a corporation, partnership,
trust, organization, association, government or any department or
agency thereof, or any other individual or entity.
-8-
IN WITNESS WHEREOF, FabriSteel Holdings, Inc. has caused this Certificate
of Designation to be signed by its President, and attested by its Secretary,
this 16th day of March, 2000.
ATTEST: FABRISTEEL HOLDINGS, INC.
/s/ Mark J. MacGuidwin /s/ Rex A. Ogg
- ------------------------- -----------------------------
Assistant Secretary President
Mark J. MacGuidwin Rex A. Ogg
-9-
CERTIFICATE OF DESIGNATION
OF 12% SERIES E JUNIOR PREFERRED STOCK
OF
FABRISTEEL HOLDINGS, INC.
FabriSteel Holdings, Inc., a Delaware corporation (hereinafter called the
"Corporation"), pursuant to the provisions of Section 151 of the General
Corporation Law of the State of Delaware, does hereby make this Certificate of
Designation under the corporate seal of the Corporation and does hereby state
and certify that pursuant to the authority expressly vested in the Board of
Directors of the Corporation by the Amended and Restated Certificate of
Incorporation of the Corporation, dated March 16, 2000 (the "Certificate of
Incorporation"), the Board of Directors has duly adopted the following
resolutions:
RESOLVED, that, pursuant to Article IV of the Certificate of Incorporation
(which authorizes 5,000,000 shares of Preferred Stock, $.01 par value per share,
of which no shares are presently issued and outstanding), the Board of Directors
hereby fixes the designations and preferences and relative, participating,
optional and other special rights and qualifications, limitations and
restrictions of a series of Preferred Stock consisting of 65,000 shares to be
designated 12% Series E Cumulative Junior Preferred Stock.
12% SERIES E CUMULATIVE JUNIOR PREFERRED STOCK
RESOLVED, that each share of the 12% Series E Cumulative Junior Preferred
Stock shall rank equally in all respects and shall be subject to the following
provisions:
1. Designation, Number of Shares. The fifth series of Preferred Stock
shall be designated as the 12% Series E Cumulative Junior Preferred
Stock ("Series E Junior Preferred Stock"), and the number of shares
which shall constitute such series shall be 65,000. The par value of
the Series E Junior Preferred Stock shall be $.01 per share.
2. Accrual and Payment of Dividends
a. The holders of Series E Junior Preferred Stock shall 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 rate of $12.00 per
share per annum.
Such dividends shall be payable in annual installments in
arrears commencing from the later of the date of issuance or
March 1, 2001 and thereafter on the first day of March (unless
such day is not a business day in which event on the last
preceding business day) in each such year (hereinafter referred
to as a
"Dividend Accrual Date"), except that the dividend payment
payable on the first Dividend Accrual Date after issuance shall
be calculated from the date of original issuance through the
first Dividend Accrual Date. Each such dividend on Series E
Junior Preferred Stock when paid shall be payable to holders of
record as they appear on the stock books of the Corporation on
the date established by the Board of Directors of the Corporation
as the record date for the payment of such dividend (which record
date shall not precede the date upon which the resolution fixing
such record date is adopted and which record date shall be not
more than sixty days prior to such action). If no record date is
fixed, the record date for determining holders for such purpose
shall be at the close of business on the date on which the Board
of Directors adopts the resolution relating to such dividend
payment. Dividends with respect to any shares of Series E Junior
Preferred Stock shall accrue (whether or not earned or declared)
from the date of issue of such shares.
b. Such dividends on the Series E Junior Preferred Stock shall be
cumulative, whether or not earned or declared, so that if at any
time full cumulative dividends at the rate aforesaid on all
shares of Series E Junior Preferred Stock then outstanding to the
end of the annual dividend period next preceding such time shall
not have been paid, the amount of the deficiency shall be paid
before any sum shall be set aside for or applied by the
Corporation to the purchase, redemption or other acquisition for
value of any shares of Junior Stock (either pursuant to any
applicable sinking fund requirement or otherwise) or any dividend
or other distribution shall be paid or declared and set apart for
payment on any Junior Stock (other than a dividend payable in
Junior Stock); provided, however, that the holders of the Series
E Junior Preferred Stock shall not be entitled to any amount
pursuant to this Section (2)(b) unless the holders of (x) the
Corporation's 8% Series A Cumulative Senior Preferred Stock, par
value $.01 per share ("Series A Senior Preferred Stock"), shall
have been paid in full in accordance with Article IV.B(2) of the
Certificate of Incorporation, (y) the Corporation's 8% Series D
Cumulative Senior Preferred Stock, par value $.01 per share
("Series D Senior Preferred Stock"), shall have been paid in full
in accordance with Section 2 of the Certificate of Designation of
8% Series D Senior Preferred Stock of the Corporation dated March
17, 2000 (the "Certificate of Designation"), and (z) and any
other series senior to the Series E Junior Preferred Stock with
respect to dividends shall have been paid in full in accordance
with its terms; provided, further, that the foregoing shall not
prohibit the Corporation from repurchasing shares of Junior Stock
from a former employee of the Corporation (or a subsidiary of the
Corporation) where such repurchase arises
-2-
from the Corporation's option to repurchase such shares upon
termination of such employee's employment with the Corporation
(or a subsidiary) pursuant to a written agreement between the
Corporation and such employee. Accrued dividends on the Junior
Preferred Stock if not paid on the first or any subsequent
Dividend Accrual Date following accrual shall thereafter accrue
additional dividends in respect thereof (the "Additional
Dividends"), compounded annually, at the rate of 12% per annum.
c. The right to receive dividends on the Series E Junior
Preferred Stock shall rank on parity with that of the
Corporation's 12% Series B Cumulative Junior Preferred Stock, par
value $.01 per share ("Series B Junior Preferred Stock"), and the
Corporation's 12% Series C Cumulative Junior Preferred Stock, par
value $.01 per share ("Series C Junior Preferred Stock"). When
dividends are not paid in full upon the Series E Junior Preferred
Stock and any other stock ranking on a parity as to dividends
with the Series E Junior Preferred Stock, all dividends paid upon
shares of Series E Junior Preferred Stock and any other stock
ranking on a parity as to dividends with the Series E Junior
Preferred Stock shall be paid pro rata so that in all cases the
amount of dividends paid per share on the Series E Junior
Preferred Stock and such other stock shall bear the same ratio
that accrued dividends per share on the shares of Series E Junior
Preferred Stock and such other stock bear to each other. Except
as provided in the preceding sentence, unless full cumulative
dividends on the Series E Junior Preferred Stock have been paid,
no dividends shall be declared or paid or set aside for payment
upon any other stock of the Corporation ranking on a parity with
the Series E Junior Preferred Stock as to dividends.
d. An annual dividend period shall commence on the day following
a Dividend Accrual Date and shall end on the next succeeding
Dividend Accrual Date.
3. Preference on Liquidation
a. Except as otherwise provided in Article IV.B(3)(a) of the
Certificate of Incorporation, in the event that the Corporation
shall be liquidated, dissolved or wound up, whether voluntarily
or involuntarily, after all creditors of the Corporation shall
have been paid in full, the holders of the Series E Junior
Preferred Stock shall be entitled to receive, out of the assets
of the Corporation legally available for distribution to its
stockholders, whether from capital, surplus or earnings, before
any amount shall be paid to the holders of any shares of Junior
Stock, an amount equal to $100 in cash per share plus an amount
equal to full cumulative dividends (whether
-3-
or not earned or declared) accrued and unpaid thereon (including
Additional Dividends) to the date of final distribution, and no
more; provided, however, that the holders of the Series E Junior
Preferred Stock shall not be entitled to any amount pursuant to
this Section (3) unless the holders of Series A Senior Preferred
Stock shall have been paid in full in accordance with Article
IV.B(3) of the Certificate of Incorporation, the holders of
Series D Senior Preferred Stock shall have been paid in full in
accordance with Section 3(a) of the Series D Certificate of
Designation, and any other series senior to the Series E Junior
Preferred Stock upon the liquidation, distribution of assets,
dissolution or winding-up of the Corporation shall have been paid
in full in accordance with its terms. Series E Junior Preferred
Stock shall rank on parity with the Series B Junior Preferred
Stock and Series C Junior Preferred Stock with respect to
receiving any amount as a result of a liquidation, distribution
of assets, dissolution or winding up of the Corporation. If upon
any liquidation, dissolution or winding up of the Corporation,
the net assets of the Corporation shall be insufficient to pay
the holders of all outstanding shares of Series E Junior
Preferred Stock and of any shares of stock ranking on a parity
with the Series E Junior Preferred Stock the full amounts to
which they respectively shall be entitled, such assets, or the
proceeds thereof, shall be distributed ratably among the holders
of the Series E Junior Preferred Stock and of any shares of stock
ranking on a parity with the Series E Junior Preferred Stock.
Holders of Series E Junior Preferred Stock shall not be entitled,
upon the liquidation, dissolution or winding up of the
Corporation, to receive any amounts with respect to such stock
other than the amounts referred to in this Section (3)(a).
b. Neither the purchase nor redemption by the Corporation of
shares of any class of stock in any manner permitted by the
Certificate of Incorporation or any amendment thereof, nor the
merger or consolidation of the Corporation with or into any other
corporation or corporations, nor a sale, transfer or lease of all
or substantially all of the Corporation's assets shall be deemed
to be a liquidation, dissolution or winding up of the Corporation
for the purposes of this Section (3); provided, however, that any
consolidation or merger of the Corporation in which the
Corporation is not the surviving entity shall be deemed to be a
liquidation, dissolution or winding up of the affairs of the
Corporation within the meaning of this Section (3) if, (A) in
connection therewith, the holders of Common Stock of the
Corporation receive as consideration, whether in whole or in
part, for such Common Stock (1) cash, (2) notes, debentures or
other evidences of indebtedness or obligations to pay cash or (3)
preferred stock of the surviving entity (whether or not the
-4-
surviving entity is the Corporation) which ranks on a parity with
or senior to the preferred stock received by holders of the
Series E Junior Preferred Stock with respect to liquidation or
dividends or (B) the holders of the Series E Junior Preferred
Stock do not receive preferred stock of the surviving entity with
rights, powers and preferences equal to (or more favorable to the
holders than) the rights, powers and preferences of the Series E
Junior Preferred Stock.
4. Redemption.
a. Mandatory Redemption. All outstanding shares of the Series E
Junior Preferred Stock shall be redeemed from funds legally
available therefor on April 1, 2020 (the "Mandatory Redemption
Date"), at a price per share equal to $100 plus an amount per
share equal to full cumulative dividends (whether or not earned
or declared) accrued and unpaid thereon (including Additional
Dividends) to the Mandatory Redemption Date; provided, however,
that the holders of the Series E Junior Preferred Stock shall not
be entitled to any amount pursuant to this Section (4)(a) unless
the holders of the outstanding shares of (x) the Series A Senior
Preferred Stock shall have been paid in full in accordance with
Article IV.C(4)(a) of the Certificate of Incorporation, (y) the
Series D Senior Preferred Stock shall have been paid in full in
accordance with Section 4(a) of the Series D Certificate of
Designation and (z) any other series senior to the Series E
Junior Preferred Stock as to dividends or distributions or upon
the liquidation, distribution of assets, dissolution or
winding-up of the Corporation shall have been paid in full in
accordance with the mandatory redemption terms (if any) governing
such stock; provided, further, that the rights of the holders of
the Series E Junior Preferred Stock to receive amounts pursuant
to this Section (4)(a) shall rank on parity with the respective
mandatory redemption rights (if any) of any outstanding shares of
Series B Junior Preferred Stock, Series C Junior Preferred Stock
or any other stock ranking on parity with the Series E Junior
Preferred Stock as to dividends or distributions or upon the
liquidation, distribution of assets, dissolution or winding-up of
the Corporation.
b. Optional Redemption. The Series E Junior Preferred Stock may
be redeemed from funds legally available therefor, in whole or in
part, at the election of the Corporation, expressed by resolution
of the Board of Directors, at any time and from time to time at a
price per share equal to $100 plus an amount per share equal to
full cumulative dividends (whether or not earned or declared)
accrued and unpaid thereon (including Additional
-5-
Dividends as defined in the Certificate of Incorporation) to the
date of redemption (the "Optional Redemption Date).
c. The aggregate amount of the redemption pursuant to Section
(4)(a) for a Mandatory Redemption or Section (4)(b) for an
Optional Redemption is hereinafter referred to as the "Redemption
Price" with respect to such redemption. As used herein,
"Mandatory Redemption Date" and "Optional Redemption Date" shall
hereinafter sometimes be referred to as the "Redemption Date."
5. Redemption Procedure
a. A redemption pursuant to Section (4) shall be accomplished in
the manner and with the effect as set forth in this Section (5).
b. Notice of the redemption of Series E Junior Preferred Stock
pursuant to Section (4) shall be given by mail not less than ten
(10) days prior to the applicable Redemption Date. If less than
all the outstanding Series E Junior Preferred Stock is to be
redeemed, the selection of shares for redemption shall be made
pro rata and the notice of redemption to a holder shall state the
number of shares of Series E Junior Preferred Stock of such
holder to be redeemed. The amount of the Redemption Price shall
be deposited on or before the Redemption Date in trust for the
account of the holders of Series E Junior Preferred Stock
entitled thereto with a bank or trust company in good standing
doing business in the State of New York and having capital and
surplus of at least $100,000,000 (the date of such deposit being
hereinafter in this Section (5) referred to as the "date of
deposit").
c. Notice of the date on which, and the name and address of the
bank or trust company with which, the deposit has been or will be
made shall be included in the notice of redemption. On and after
the applicable Redemption Date (unless default shall be made by
the Corporation in providing money for the payment of the
Redemption Price pursuant to the notice of redemption), or if the
Corporation shall make such deposit on or before the date
specified therefor in the notice of redemption, then on and after
the date of deposit (provided notice of redemption has been duly
given), all dividends on the Series E Junior Preferred Stock so
called for redemption shall cease to accrue and, notwithstanding
that any certificate for shares of Series E Junior Preferred
Stock is not surrendered for cancellation, the shares represented
thereby shall no longer be deemed outstanding and all rights of
the holders thereof as stockholders of the Corporation with
respect to such
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shares shall cease and terminate, except the right to receive the
Redemption Price as hereinafter provided.
d. At any time on or after the applicable Redemption Date, or if
the Corporation shall deposit the money for such redemption prior
to the applicable Redemption Date, then at any time on or after
the date of deposit, which time shall be specified by the
Corporation in the notice of redemption and which shall not be
later than the applicable Redemption Date, the holders of record
of the Series E Junior Preferred Stock to be redeemed shall be
entitled to receive the Redemption Price upon actual delivery to
the bank or trust company with which such deposit shall be made
of certificates for the shares to be redeemed, such certificates,
if required, to be duly endorsed in blank or accompanied by
proper instruments of assignment and transfer duly endorsed in
blank. The making of such deposit with any such bank or trust
company shall not relieve the Corporation of liability for
payment of the Redemption Price.
e. Any money so deposited which shall remain unclaimed by the
holders of such Series E Junior Preferred Stock at the end of two
(2) years after the applicable Redemption Date shall be paid by
such bank or trust company to the Corporation, which shall
thereafter, to the extent of the money so repaid, be liable for
the payment of the Redemption Price. Any interest accrued on
money so deposited shall be paid to the Corporation from time to
time.
6. Voting. Except as required by law and except for any voting by the
holders of the Series E Junior Preferred Stock as part of a separate
class or series pursuant to Section (7) hereunder or any other
provision of the Corporation's Certificate of Incorporation, no holder
of Series E Junior Preferred Stock, as such holder, shall be entitled
to vote on any matter submitted to a vote of stockholders. On any
matters on which the holders of the Series E Junior Preferred Stock
shall be entitled to vote, they shall be entitled to one vote for each
share held.
7. Other Rights. Without the written consent of the holders of all of
the outstanding shares of Series E Junior Preferred Stock or the vote
of the holders of all of the outstanding shares of Series E Junior
Preferred Stock at a meeting of the holders of Series E Junior
Preferred Stock called for such purpose, the Corporation shall not
amend, alter or repeal any provision of the Corporation's Certificate
of Incorporation so as to adversely affect the rights and preferences
of the Series E Junior Preferred Stock including any change to the
dividend payable on the Series E Junior Preferred Stock; provided,
further, that in no event will the issuance of any series of Preferred
Stock that is senior to, on a parity with or junior to the Series E
Junior Preferred Stock or has a redemption date earlier than the
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Series E Junior Preferred Stock be deemed to adversely affect the
rights and preferences of the Series E Junior Preferred Stock.
8. Acknowledgement. Each holder of Series E Junior Preferred Stock, by
acceptance thereof, acknowledges and agrees that payments of
dividends, interest, premium and principal on, and redemption and
repurchase of, such securities by the Corporation are subject to
restrictions contained in certain credit and financing agreements of
the Corporation and its subsidiaries.
9. Definitions
The following terms, when used in this Section A, shall have the
meanings set forth below:
a. As used herein, the amount of dividends "accrued" on any share
of Series E Junior Preferred Stock as at any date shall be
calculated as the amount of any unpaid dividends accumulated
thereon to and including the last preceding Dividend Accrual Date
with respect to which dividends have not been paid, whether or
not earned or declared.
b. "corporation" shall mean a corporation, partnership, business
trust, unincorporated organization, association, limited
liability company or joint stock company.
c. "Junior Stock" shall mean any series or class of the capital
stock of the Corporation now or hereafter authorized or issued by
the Corporation, including any series or class of preferred
stock, ranking junior to the Series E Junior Preferred Stock with
respect to dividends or distributions or upon the liquidation,
distribution of assets, dissolution or winding-up of the
Corporation, including without limitation the Class A Common
Stock of the Corporation, par value $.01 per share and the Class
B Common Stock of the Corporation, par value $.01 per share
(except as otherwise provided in Article IV.B(3) of the
Certificate of Incorporation).
d. "person" shall mean an individual, a corporation, partnership,
trust, organization, association, government or any department or
agency thereof, or any other individual or entity.
-8-
IN WITNESS WHEREOF, FabriSteel Holdings, Inc. has caused this Certificate
of Designation to be signed by its President, and attested by its Secretary,
this 16th day of March, 2000.
ATTEST: FABRISTEEL HOLDINGS, INC.
/s/ Mark J. MacGuidwin /s/ Rex A. Ogg
- ------------------------- -----------------------------
Assistant Secretary President
Mark J. MacGuidwin Rex A. Ogg
-9-
CERTIFICATE OF DESIGNATION
OF 10% SERIES F SENIOR PREFERRED STOCK
OF
FABRISTEEL HOLDINGS, INC.
FabriSteel Holdings, Inc., a Delaware corporation (hereinafter called the
"Corporation"), pursuant to the provisions of Section 151 of the Delaware
Corporation Law of the State of Delaware, does hereby make this Certificate of
Designation under the corporate seal of the Corporation and does hereby state
and certify that pursuant to the authority expressly vested in the Board of
Directors of the Corporation by the Amended and Restated Certificate of
Incorporation of the Corporation, dated March 16, 2000 (the "Certificate of
Incorporation"), the Board of Directors has duly adopted the following
resolutions:
RESOLVED, that, pursuant to Article IV of the Certificate of Incorporation
(which authorizes 5,000,000 shares of Preferred Stock, $.01 par value per share,
of which no shares are presently issued and outstanding), the Board of Directors
hereby fixes the designations and preferences and relative, participating,
optional and other special rights and qualifications, limitations and
restrictions of a series of Preferred Stock consisting of 35,000 shares to be
designated 10% Series F Cumulative Senior Preferred Stock.
10% SERIES F CUMULATIVE SENIOR PREFERRED STOCK
RESOLVED, that each share of the 10% Series F Cumulative Senior Preferred
Stock shall rank equally in all respects and shall be subject to the following
provisions:
1. Designation, Number of Shares. The sixth series of Preferred Stock
shall be designated as the 10% Series F Cumulative Senior Preferred
Stock ("Series F Senior Preferred Stock"), and the number of shares
which shall constitute such series shall be 35,000. The par value of
the Series F Senior Preferred Stock shall be $.01 per share.
2. Accrual and Payment of Dividends
a. The holders of Series F Senior Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of
Directors, cumulative dividends at the rate of $10 plus the
"Spread" then in effect (as defined herein) per share per annum.
The Spread shall initially be zero (0). In the event that a High
Yield Offering (as hereinafter defined) occurs and the Company
does not offer to repurchase at least 50% of the issued and
outstanding Series F Senior Preferred Stock prior to or within
ten (10) days after the High Yield Offering (with the closing
date set forth in such offer to repurchase within thirty (30)
days of the High Yield Offering) at a cash price equal to $100
per share, plus accrued and unpaid dividends to the date of
repurchase, and then purchase all shares tendered in accordance
with the terms of such offer (a "High Yield Event"), the Spread
shall equal
$0.25 per annum per share on the first day of the Quarterly
Period after such High Yield Event occurs and thereafter the
Spread shall increase by an additional $0.25 per share per annum
on the first day of each subsequent Quarterly Period; provided,
however, that the dividend rate shall not at any time exceed
$12.00 per share per annum. "High Yield Offering" shall mean an
issuance by the Company of $100,000,000 in unsecured debt
securities with a weighted average maturity of at least five (5)
years pursuant to (i) a completed firm commitment public offering
pursuant to an effective registration statement under the
Securities Act of 1933, as amended, or (ii) a completed placement
under Rule 144A promulgated under the Securities Act of 1933, as
amended. "Quarterly Period" shall mean the three (3) month period
commencing on the first day of the first month following the
Company's failure to unconditionally offer to repurchase 50% of
the issued and outstanding Series F Senior Preferred Stock after
a High Yield Event, and each subsequent three (3) month period
thereafter.
Such dividends shall be payable in annual installments in
arrears commencing March 17, 2001 and thereafter on March 17
(unless such day is not a business day in which event on the last
preceding business day) in each such year (hereinafter referred
to as a "Dividend Accrual Date"). Subject to compliance with
applicable law and subject to compliance with any agreement
between the Corporation and any unaffiliated third party which
limits the Corporation's payment of dividends, the Corporation
shall pay cash dividends (including dividends on Additional
Dividends (as that term is defined in Section 2(b) hereof) to the
holders of Series F Senior Preferred Stock with respect to
dividends accruing after March 17, 2005, which is the fifth
Dividend Accrual Date.
Each such dividend on Series F Senior Preferred Stock when
paid shall be payable to holders of record as they appear on the
stock books of the Corporation on the date established by the
Board of Directors of the Corporation as the record date for the
payment of such dividend (which record date shall not precede the
date upon which the resolution fixing such record date is adopted
and which record date shall be not more than sixty days prior to
such action). If no record date is fixed, the record date for
determining holders for such purpose shall be at the close of
business on the date on which the Board of Directors adopts the
resolution relating to such dividend payment. Dividends with
respect to any shares of Series F Senior Preferred Stock shall
accrue (whether or not earned or declared) from March 17, 2000.
b. Such dividends on the Series F Senior Preferred Stock shall be
cumulative, whether or not earned or declared, so that if at any
time full
2
cumulative dividends at the rate aforesaid on all shares of
Series F Senior Preferred Stock then outstanding to the end of
the annual dividend period next preceding such time shall not
have been paid, the amount of the deficiency shall be paid before
any sum shall be set aside for or applied by the Corporation to
the purchase, redemption or other acquisition for value of any
shares of Junior Stock (either pursuant to any applicable sinking
fund requirement or otherwise) or any dividend or other
distribution shall be paid or declared and set apart for payment
on any Junior Stock (other than a dividend payable in Junior
Stock); provided, however, that the foregoing shall not prohibit
the Corporation from repurchasing shares of Junior Stock from a
former employee of the Corporation (or a subsidiary of the
Corporation) where such repurchase arises from the Corporation's
option to repurchase such shares upon termination of such
employee's employment with the Corporation (or a subsidiary)
pursuant to a written agreement between the Corporation and such
employee. Accrued dividends on the Series F Senior Preferred
Stock if not paid on the first or any subsequent Dividend Accrual
Date following accrual shall thereafter accrue additional
dividends in respect thereof (the "Additional Dividends"),
compounded annually, at the rate of 10% per annum.
c. The right to receive dividends on the Series F Senior
Preferred Stock shall rank on parity with that of the
Corporation's 8% Series A Cumulative Senior Preferred Stock
("Series A Senior Preferred Stock") and the Corporation's 8%
Series D Cumulative Senior Preferred Stock ("Series D Senior
Preferred Stock"). When dividends are not paid in full upon the
Series F Senior Preferred Stock and any other stock ranking on a
parity as to dividends with the Series F Senior Preferred Stock,
all dividends paid upon shares of Series F Senior Preferred Stock
and any other stock ranking on a parity as to dividends with the
Series F Senior Preferred Stock shall be paid pro rata so that in
all cases the amount of dividends paid per share on the Series F
Senior Preferred Stock and such other stock shall bear the same
ratio that accrued dividends per share on the shares of Series F
Senior Preferred Stock and such other stock bear to each other.
Except as provided in the preceding sentence, unless full
cumulative dividends on the Series F Senior Preferred Stock have
been paid, no dividends shall be declared or paid or set aside
for payment upon any other stock of the Corporation ranking on a
parity with the Series F Senior Preferred Stock as to dividends.
d. An annual dividend period shall commence on the day following
a Dividend Accrual Date and shall end on the next succeeding
Dividend Accrual Date.
3. Preference on Liquidation
3
a. Except as otherwise provided in Article IV.B(3)(a) of the
Certificate of Incorporation, in the event that the Corporation
shall be liquidated, dissolved or wound up, whether voluntarily
or involuntarily, after all creditors of the Corporation shall
have been paid in full, the holders of the Series F Senior
Preferred Stock shall be entitled to receive, out of the assets
of the Corporation legally available for distribution to its
stockholders, whether from capital, surplus or earnings, before
any amount shall be paid to the holders of any shares of Junior
Stock, an amount equal to $100 in cash per share plus an amount
equal to full cumulative dividends (whether or not earned or
declared) accrued and unpaid thereon (including Additional
Dividends) to the date of final distribution, and no more. Series
F Senior Preferred Stock shall rank on parity with the Series A
Senior Preferred Stock and the Series D Senior Preferred Stock
with respect to receiving any amount as a result of a
liquidation, distribution of assets, dissolution or winding up of
the Corporation. If upon any liquidation, dissolution or winding
up of the Corporation, the net assets of the Corporation shall be
insufficient to pay the holders of all outstanding shares of
Series F Senior Preferred Stock and of any shares of stock
ranking on a parity with the Series F Senior Preferred Stock the
full amounts to which they respectively shall be entitled, such
assets, or the proceeds thereof, shall be distributed ratably
among the holders of the Series F Senior Preferred Stock and of
any shares of stock ranking on a parity with the Series F Senior
Preferred Stock. Holders of Series F Senior Preferred Stock shall
not be entitled, upon the liquidation, dissolution or winding up
of the Corporation, to receive any amounts with respect to such
stock other than the amounts referred to in this Section (3)(a).
b. Neither the purchase nor redemption by the Corporation of
shares of any class of stock in any manner permitted by the
Certificate of Incorporation or any amendment thereof, nor the
merger or consolidation of the Corporation with or into any other
corporation or corporations, nor a sale, transfer or lease of all
or substantially all of the Corporation's assets shall be deemed
to be a liquidation, dissolution or winding up of the Corporation
for the purposes of this Section (3); provided, however, that any
consolidation or merger of the Corporation in which the
Corporation is not the surviving entity shall be deemed to be a
liquidation, dissolution or winding up of the affairs of the
Corporation within the meaning of this Section (3) if, (A) in
connection therewith, the holders of Common Stock of the
Corporation receive as consideration, whether in whole or in
part, for such Common Stock (1) cash, (2) notes, debentures or
other evidences of indebtedness or obligations to pay cash or (3)
preferred stock of the surviving entity (whether or not the
surviving entity is the Corporation) which ranks on a parity with
or senior to the preferred stock received by
4
holders of the Series F Senior Preferred Stock with respect to
liquidation or dividends or (B) the holders of the Series F
Senior Preferred Stock do not receive preferred stock of the
surviving entity with rights, powers and preferences equal to (or
more favorable to the holders than) the rights, powers and
preferences of the Series F Senior Preferred Stock.
4. Redemption
a. Mandatory Redemption. All outstanding shares of the Series F
Senior Preferred Stock shall be redeemed from funds legally
available therefor on the Mandatory Redemption Date, at a price
per share equal to $100 plus an amount per share equal to full
cumulative dividends (whether or not earned or declared) accrued
and unpaid thereon (including Additional Dividends) to the
Mandatory Redemption Date. The holders of the Series F Senior
Preferred Stock shall be paid in full in accordance with this
Section 4(a) prior to any payment made to the holders of any
outstanding shares of (v) the Corporation's 12% Series G
Cumulative Junior Preferred Stock, par value $.01 per share (the
"Series G Junior Preferred Stock"), (w) the Corporation's 12%
Series E Cumulative Junior Preferred Stock, par value $.01 per
share (the "Series E Junior Preferred Stock"), (x) the
Corporation's 12% Series B Cumulative Junior Preferred Stock, par
value $.01 per share (the "Series B Junior Preferred Stock"), (y)
the Corporation's 12% Series C Cumulative Junior Preferred Stock,
par value $.01 per share (the "Series C Junior Preferred Stock")
and (z) any other of the Corporation's Junior Stock, pursuant to
the respective mandatory redemption terms (if any) of such stock.
For purposes of calculating accrued dividends hereunder, a
Mandatory Redemption Date shall also be deemed a Dividend Accrual
Date.
b. Optional Redemption. The Series F Senior Preferred Stock may
be redeemed from funds legally available therefor, in whole or in
part, at the election of the Corporation, expressed by resolution
of the Board of Directors, at any time and from time to time at a
price per share equal to $100 plus an amount per share equal to
full cumulative dividends (whether or not earned or declared)
accrued and unpaid thereon (including Additional Dividends as
defined in the Certificate of Incorporation) to the date of
redemption (the "Optional Redemption Date).
c. The aggregate amount of the redemption pursuant to Section
(4)(a) for a Mandatory Redemption or Section (4)(b) for an
Optional Redemption is hereinafter referred to as the "Redemption
Price" with respect to such redemption. As used herein,
"Mandatory Redemption Date" and "Optional Redemption Date" shill
hereinafter sometimes be referred to as the "Redemption Date".
5
5. Redemption Procedure
a. A redemption pursuant to Section (4) shall be accomplished in
the manner and with the effect as set forth in this Section (5).
b. Notice of the redemption of Series F Senior Preferred Stock
pursuant to Section (4) shall be given by mail not less than ten
(10) days prior to the applicable Redemption Date. If less than
all the outstanding Series F Senior Preferred Stock is to be
redeemed, the selection of shares for redemption shall be made
pro rata and the notice of redemption to a holder shall state the
number of shares of Series F Senior Preferred Stock of such
holder to be redeemed. The amount of the Redemption Price shall
be deposited on or before the Redemption Date in trust for the
account of the holders of Series F Senior Preferred Stock
entitled thereto with a bank or trust company in good standing
doing business in the State of New York and having capital and
surplus of at least $100,000,000 (the date of such deposit being
hereinafter in this Section (5) referred to as the "date of
deposit").
c. Notice of the date on which, and the name and address of the
bank or trust company with which, the deposit has been or will be
made shall be included in the notice of redemption. On and after
the applicable Redemption Date (unless default shall be made by
the Corporation in providing money for the payment of the
Redemption Price pursuant to the notice of redemption), or if the
Corporation shall make such deposit on or before the date
specified therefor in the notice of redemption, then on and after
the date of deposit (provided notice of redemption has been duly
given), all dividends on the Series F Senior Preferred Stock so
called for redemption shall cease to accrue and, notwithstanding
that any certificate for shares of Series F Senior Preferred
Stock is not surrendered for cancellation, the shares represented
thereby shall no longer be deemed outstanding and all rights of
the holders thereof as stockholders of the Corporation with
respect to such shares shall cease and terminate, except the
right to receive the Redemption Price as hereinafter provided.
d. At any time on or after the applicable Redemption Date, or if
the Corporation shall deposit the money for such redemption prior
to the applicable Redemption Date, then at any time on or after
the date of deposit, which time shall be specified by the
Corporation in the notice of redemption and which shall not be
later than the applicable Redemption Date, the holders of record
of the Series F Senior Preferred Stock to be redeemed shall be
entitled to receive the Redemption Price upon actual delivery to
the bank or trust company with which such deposit shall be made
of certificates for the shares to be redeemed, such certificates,
if
6
required, to be duly endorsed in blank or accompanied by proper
instruments of assignment and transfer duly endorsed in blank.
The making of such deposit with any such bank or trust company
shall not relieve the Corporation of liability for payment of the
Redemption Price.
e. Any money so deposited which shall remain unclaimed by the
holders of such Series F Senior Preferred Stock at the end of two
(2) years after the applicable Redemption Date shall be paid by
such bank or trust company to the Corporation, which shall
thereafter, to the extent of the money so repaid, be liable for
the payment of the Redemption Price. Any interest accrued on
money so deposited shall be paid to the Corporation from time to
time.
6. Voting. Except as required by law and except for any voting by the
holders of the Series F Senior Preferred Stock as part of a separate
class or series pursuant to Section (7) hereunder or any other
provision of the Corporation's Certificate of Incorporation, no holder
of Series F Senior Preferred Stock, as such holder, shall be entitled
to vote on any matter submitted to a vote of stockholders. On any
matters on which the holders of the Series F Senior Preferred Stock
shall be entitled to vote, they shall be entitled to one vote for each
share held.
7. Other Rights. Without the written consent of the holders of all of
the outstanding shares of Series F Senior Preferred Stock or the vote
of the holders of all of the outstanding shares of Series F Senior
Preferred Stock at a meeting of the holders of Series F Senior
Preferred Stock called for such purpose, the Corporation shall not
amend, alter or repeal any provision of the Corporation's Certificate
of Incorporation so as to adversely affect the rights and preferences
of the Series F Senior Preferred Stock including any change to the
dividend payable on the Series F Senior Preferred Stock; provided,
further, that in no event will the issuance of any series of Preferred
Stock that is on a parity with or junior to the Series F Senior
Preferred Stock or has a redemption date earlier than the Series F
Senior Preferred Stock be deemed to adversely affect the rights and
preferences of the Series F Senior Preferred Stock.
8. Acknowledgement. Each holder of Series F Senior Preferred Stock, by
acceptance thereof, acknowledges and agrees that payments of
dividends, interest, premium and principal on, and redemption and
repurchase of, such securities by the Corporation are subject to
restrictions contained in certain credit and financing agreements of
the Corporation.
9. Definitions
The following terms, when used herein, shall have the meanings set
forth below:
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a. As used herein, the amount of dividends "accrued" on any share
of Series F Senior Preferred Stock at any date shall be
calculated as the amount of any unpaid dividends accumulated
thereon to and including the last preceding Dividend Accrual Date
with respect to which dividends have not been paid, whether or
not earned or declared.
b. "Change in Control" shall mean the occurrence of any of the
following: (i) the sale, lease, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in
one or a series of relaxed transactions, of all or substantially
all of the assets of the Corporation and its subsidiaries
(determined on a consolidated basis), in each case, to any
"person" (as such term is used in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"))
other than the Corporation or a subsidiary of the Corporation or
any Principal or a Related Party of a Principal or (ii) the
consummation of any transaction (including, without limitation,
any merger or consolidation) the result of which is that any
"person" (as defined above), other than one or more Principals or
their Related Parties, becomes the "beneficial owner" (as such
term is defined in Rule 13d-3 and 13d-5 under the Exchange Act,
except that a person shall be deemed to have "beneficial
ownership" of all securities that such person has the right to
acquire, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition),
directly or indirectly, of more than 50% of the capital stock of
the Corporation.
c. "corporation" shall mean a corporation, partnership, business
trust, unincorporated organization, association, limited
liability company or joint stock company.
d. "Initial Public Offering" shall mean a completed firm
commitment underwritten initial public offering pursuant to an
effective registration statement under the Securities Act of
1933, as amended (other than (i) a Special Registration Statement
(as hereinafter defined) or (ii) a registration statement
relating to a Unit Offering (as hereinafter defined)) in respect
of the offer and sale of shares of the Corporation's Common Stock
for the account of the Corporation resulting in aggregate net
proceeds to the Corporation of not less than $35,000,000.
e. "Junior Stock" shall mean any series or class of the capital
stock of the Corporation now or hereafter authorized or issued by
the Corporation, including any series or class of preferred stock
ranking junior to the Series F Senior Preferred Stock with
respect to dividends or distributions or upon the liquidation,
distribution of assets, dissolution or winding-up of the
Corporation, including without limitation the Series B Junior
Preferred
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Stock, the Series C Junior Preferred Stock of the Corporation.
the Series (pound) Junior Preferred Stock, the Series 0 Junior
Preferred Stock, the Class A Common Stock of the Corporation, par
value $.01 per share and the Class B Common Stock of the
Corporation, par value $.01 per share (except as otherwise
provided in Article IV.B(3) of the Certificate of Incorporation).
f. "Mandatory Redemption Date" shall mean the earlier of (i) the
consummation by the Corporation of an Initial Public Offering,
(ii) the occurrence of a Change in Control of the Corporation or
(iii) March 17, 2012.
g. "person" shall mean an individual, a corporation, partnership,
trust, organization, association, government or any department or
agency thereof, or any other individual or entity.
h. "Principals" shall mean (i) Citicorp Venture Capital, Ltd.
("CVC") and the Investors, as such term is defined in the
Securities Purchase and Holders Agreement dated March 25, 1998
among the CVC, FabriSteel Products Incorporated and the other
investors described therein, and (ii) any Related Party of a
person referred to in clause (i).
i. "Related Party" shall mean (a) with respect to CVC (i)
Citigroup, any direct or indirect wholly owned subsidiary of
Citigroup, and any officer, director or employee of CVC,
Citigroup or any wholly owned subsidiary of Citigroup, (ii) any
spouse or lineal descendant (including by adoption and
stepchildren) of the officers, directors and employees referred
to in clause (a)(i) above or (iii) any trust, corporation or
partnership 51%-in-interest of the
IN WITNESS WHEREOF, FabriSteel Holdings, Inc. has caused this Certificate
of Designation to be signed by its President, and attested by its Assistant
Secretary, this 16th day of March, 2000
ATTEST: FABRISTEEL HOLDINGS, INC.
/s/ Mark J. MacGuidwin /s/ Rex. A. Ogg
- ---------------------------- --------------------------------
Assistant Secretary President
Mark J. MacGuidwin Rex A. Ogg
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CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
FABRISTEEL HOLDINGS, INC.
FabriSteel Holdings, Inc., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Company, by the unanimous written
consent of its members, filed with the minutes of the Board, adopted a
resolution proposing and declaring advisable the following amendment be made to
the Amended and Restated Certificate of Incorporation of the Company:
"The name of the Company is FastenTech, Inc."
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given a majority written consent to said amendment in
accordance with the provisions of Section 228 of the General Corporation Law of
the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with the
applicable provisions of Sections 242 and 228 of the General Corporation Law of
the State of Delaware.
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IN WITNESS WHEREOF, said FabriSteel Holdings, Inc has caused this
certificate to be signed by Ronald B. Kalich, its President, this 26th day of
April, 2001.
FABRISTEEL HOLDINGS, INC.
By: /s/ Ronald B. Kalich
----------------------------
Name: Ronald B. Kalich
Title: President
2