EXHIBIT 3.17
CERTIFICATE OF AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
THE FERRY CAP & SET SCREW COMPANY
Charter No. 22380
Jack A. Rollin, President of the Ferry Cap & Set Screw Company (the
"Corporation"), does hereby certify that, in a writing approved and signed by
all the Shareholders of the Corporation as permitted by Section 1701.54 of the
Ohio Revised Code, the following resolutions to adopt Amended and Restated
Articles of Incorporation of the Corporation were adopted effective June 11/th/,
1998:
RESOLVED, that the Amended and Restated Articles of Incorporation of
the Company be amended and restated in the form attached hereto as
Exhibit B.
RESOLVED FURTHER, that any officer of the Company be and they are
hereby authorized and directed to execute and file in the office of
the Secretary of State of Ohio an appropriate Certificate of Amended
and Restated Articles of Incorporation in order to carry out the
intent and purpose of the preceding resolution and render effective
said Amended and Restated Articles of Incorporation.
IN WITNESS WHEREOF, said Jack A. Rollin, President of The Ferry Cap &
Sect Screw Company, acting for and on behalf of said Corporation has hereunto
subscribed his name this 11/th/ day of June, 1998.
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Jack A. Rollin, President
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
THE FERRY CAP & SET SCREW COMPANY
The undersigned, desiring to form a corporation for profit under the
General Corporation Law of Ohio, does hereby certify as follows:
ARTICLE I. Name. The name of the Corporation is The Ferry Cap & Set
Screw Company.
ARTICLE II. Principal Office. The address of the Corporation's
principal office in the State of Ohio is 2151 Scranton Road, City of Cleveland,
County of Cuyahoga, State of Ohio.
ARTICLE III. Purpose. The purposes for which the Corporation is
formed are to engage in any lawful act or activity within the purposes for which
corporation may be formed under Ohio General Corporation Law (the "General
Corporation Law") and to possess and exercise all of the powers and privileges
granted by such law and any other law of Ohio.
ARTICLE IV. Authorized Capital. The aggregate number of shares of
stock which the Corporation shall have authority to issue is 1,250,000 shares,
divided into two (2) classes consisting of 250,000 preferred shares, par value
$.01 per share ("Preferred Shares") and 1,000,000 common shares, par value $.01
per share ("Common Shares"). Each common share, without par value, of the
Corporation outstanding immediately prior to the date hereof (collectively, the
"Current Shares") is hereby automatically reclassified and converted into
19.00331532 Common Shares and 1.321108864 Preferred Shares. Upon receipt of a
share certificate representing any Current Shares, the Secretary of the
Corporation shall cancel such certificate and issue to the shareholder in whose
name such certificate appears a certificate representing Common Shares and
Preferred Shares calculated in accordance with the foregoing conversion ratios.
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 CLASSES.
1. Issue in Series. Preferred Shares 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
issuance. All shares of any one series of
Preferred Shares will be identical, but shares of different series of Preferred
Shares need not be identical or rank equally except insofar as provided by law
or herein.
2. Creation of Series. In addition to the Junior Preferred Shares
provided for herein, the Board of Directors will have authority to adopt
amendments to these Articles to cause to be created one or more series of
Preferred Shares, and, subject to any limitations under the General Corporation
Law, 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 or distribution rate and the times of payment of
dividends or distributions on the shares of the series, whether dividends or
distributions 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 o 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;
g. Whether or not the shares of the series will be entitled to
the benefit of limitations restricting the issuance of shares of any other
series or class; and
h. Any other preferences, qualifications, privileges, options and
other relative or special rights and limitations of that series.
3. Dividends. Holders of Preferred Shares 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
Junior Preferred Shares and at the rates fixed 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 Shares 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 Shares will be entitled to receive the amount fixed
for such series plus, in the case of Junior Preferred Shares 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
Shares. If the assets of the Corporation are not sufficient to pay such amounts
in full, holders of all Preferred Shares will participate in the distribution of
asset 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 issuance of the series of Preferred Shares.
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 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
Shares on the terms and conditions fixed in these Articles for the Junior
Preferred Shares and by the Board of Directors through and amendment to these
Articles for any other series.
6. Voting Rights. Except as otherwise required by law or as
otherwise provided herein, the holders of Preferred Shares shall have no voting
rights and shall not be entitled to any notice of meeting of shareholders.
B. JUNIOR PREFERRED SHARES
1. Designation: Number of Shares. The first series of Preferred
Shares shall be designates as the 12% Series A Junior Preferred Shares ("Junior
Preferred Shares"), and the number of shares which shall constitute such series
shall be 250,000. The par value of the Junior Preferred Shares shall be $.01 per
share.
2. Accrual and Payment of Dividends.
a. The holders of Junior Preferred Shares 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 per share per annum.
Dividends on the Junior Preferred Shares shall be payable in
annual installments in arrears commencing June 1, 1999 and thereafter on the
first day of June (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 June 1,
1999 shall be calculated from the date of original issuance through June 1,
1999. Each such dividend on Junior Preferred Shares 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 ate 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
Shares shall accrue (whether or not earned or declared) form the date of
issuance of such shares.
b. Dividends on the Junior Preferred Shares shall be cumulative,
whether or not earned or declared, so that if at any time full cumulative
dividends at the rate aforesaid on all Junior Preferred Shares 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 Junior Shares (as such term is defined in Article
IV.B(9)) (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 Shares (other than a dividend payable in
Junior Shares); provided, however, that the foregoing shall not prohibit the
Corporation from repurchasing Junior Shares 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 the 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 Shares 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
Shares and any other stock ranking on a parity as to dividends with the Junior
Preferred Shares, all dividends paid upon Junior Preferred Shares and any other
shares ranking on a parity as to dividends with the Junior Preferred Shares
shall be paid pro rata so that in all cases the amount of dividends paid per
Junior Preferred Share and such other shares shall bear the same ratio that
accrued dividends per share on the Junior Preferred Shares and such other shares
bear to each other. Except as provided in the preceding sentence, unless full
cumulative dividends on the Junior Preferred Shares have been paid, no dividends
shall be declared or paid or set aside for payment upon any other shares of the
Corporation ranking on a parity with the Junior Preferred Shares as to
dividends.
d. An annual dividend period shall commence on the day following
a Dividend Accrual Date and shall end o the next succeeding Dividend Accrual
Date.
3. Preference on Liquidation.
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 Junior
Preferred Shares shall be entitled to receive, out of the assets of the
Corporation legally available for distribution to its shareholders, whether from
capital, surplus or earnings, before any amount shall be paid to the holders of
any Junior Shares, 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. 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 Junior Preferred Shares and of any shares ranking
on a parity with the Junior Preferred Shares 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 Shares and of any
shares of stock ranking on a parity with the Junior Preferred Shares. Holders of
Junior Preferred Shares shall not be entitled, upon the liquidation, dissolution
or winding up of the Corporation, to receive any amounts with respect to such
shares other than the amounts referred to in this Article IV.B(3)(a).
b. Neither the purchase nor redemption by the Corporation of any
shares of any class in any manner permitted by these Articles or any amendment
hereof, 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 Shares of the Corporation receive as
consideration, whether in whole or in part, for such Common Shares (1) cash, (2)
notes, debentures or other evidences or 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 shares received by holders of the Junior Preferred Shares with respect
to liquidation or dividends or (B) the holders of the Junior Preferred Shares do
not receive preferred shares 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 Junior Preferred Shares.
4. Redemption.
a. All outstanding Junior Preferred Shares shall be redeemed from
funds legally available therefor on June 1, 2018 (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.
b. The Junior Preferred Shares 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) to the date of redemption.
c. The aggregate amount of the redemption price pursuant to
Article IV.B(4)(a) or (b) is hereinafter referred to as the "Junior Redemption
Price" with respect to such redemption. The Mandatory Redemption Date and the
date of any redemption pursuant to Article IV.B.(4)(b) are each hereinafter
referred to individually as a "Redemption Date."
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 Junior Preferred Shares 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 Junior Preferred Shares 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 Junior
Preferred Shares 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 Shares 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 hereinafter in this Article IV.B(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 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 Shares
so called for redemption shall cease to accrue and, notwithstanding that any
certificate for Junior Preferred Shares is not surrendered for cancellation, the
shares represented thereby shall no longer be deemed outstanding and all rights
of the holders thereof as shareholders 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
Shares 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 Shares at 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 Shares as part of a separate class or series
pursuant to Article IV.B(7) hereunder or any other provisions of these Articles,
no holder of Junior Preferred Shares, as such holders, shall be entitled to vote
on any matter submitted to a vote of shareholders. On any matters on which the
holders of the Junior Preferred Shares shall be entitled to vote, they shall be
entitled to one vote for each share held. Except as otherwise required by law or
as otherwise provided herein, the holders of Junior Preferred Shares shall not
be entitled to notice of any meeting of shareholders.
7. Other Rights. Without the written consent of the holders of all
of the outstanding Junior Preferred Shares or the vote of the holders of all of
the outstanding Junior Preferred Shares at a meeting of the holders of Junior
Preferred Shares called for such purpose, the Corporation shall not amend, alter
or repeal any provision of these Articles so as to adversely affect the rights
and preferences of the Junior Preferred Shares including any change to the
dividend payable on the Junior Preferred Shares; provided, further, that in no
event will the issuance of any series of Preferred Shares that is senior to, on
a parity with or junior to the Junior Preferred Shares or has a redemption date
earlier than the Junior Preferred Shares be deemed to adversely affect the
rights and preferences of the Junior Preferred Shares.
8. Acknowledgement. Each holder of Junior Preferred Shares, by
acceptance hereof, 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 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 Junior Preferred Shares 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 Shares" 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 shares, ranking junior to the Junior Preferred Shares with
respect to dividends or distributions or upon the liquidation, distribution of
assets, dissolution or winding-up of the Corporation, including without
limitation the Common Shares.
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.
C. COMMON SHARES
1. Dividends. Holders of Common Shares shall be entitled to receive
ratably such dividend as may be declared by the Board of Directors.
2. Transfers. The Corporation shall not close its books against the
transfer of any Common Shares in any manner that would interfere with the timely
transfer of such Common Shares.
3. Distribution of Assets. In the event of the voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, holders
of Common Shares shall be entitled to receive all of the remaining assets of the
Corporation available for distribution to its shareholders after all amounts to
which the holders of Preferred Shares are entitled have been paid or set aside
in cash for payment.
4. Voting Rights. The holders of Common Shares shall have the
general right to vote for all purposes, including the election of directors, as
provided by law. Each holder of Common Shares shall be entitled to one vote for
each Common Share held.
ARTICLE V. Fractional Shares; Adjustments. No fractional shares of
the Corporation's Common Shares or Preferred Shares shall be issued. In lieu of
any such fractional shares, the shareholders, upon presentation of such
fractional interest represented by an appropriate certificate to the Secretary
of the Corporation pursuant to Article IV, shall be entitled receive a cash
payment based upon a per share price of $1 per Common Share and $100 per
Preferred Share. Such payment with respect to fractional shares is merely
intended to provide a mechanical rounding off of, and is not a separately
bargained for, consideration. Any payment owed with respect to fractional shares
shall be rounded upward to the nearest cent.
ARTICLE VI. Elections of Directors. Elections of directors need not
be by written ballot unless the Code of Regulations of the Corporation shall so
provide.
ARTICLE VII. Right to Amend. The Directors of the Corporation may
amend these Articles for any purpose and in any manner now or hereafter
permitted under the General Corporation Law.
ARTICLE VIII. Preemptive Rights. No holder of any shares of any class
or series of capital stock of the Corporation shall have statutory preemptive
rights.
ARTICLE IX. Control Share Acquisition. Section 1701.831 of the
General Corporation Law shall not apply to any control share acquisition (as
defined in Section 1701.01(Z)(1) of the General Corporation Law, as the same may
be amended from time to time, or in any successor thereto, however denominated)
of shares of any class of capital stock of the Corporation.
ARTICLE X. Transfers Involving Interested Shareholders. Chapter
1704 of the General Corporation Law shall not apply to the Corporation or to any
transaction between the Corporation and any holder of shares of any class of
capital stock of the Corporation.
ARTICLE XI. Majority Voting. Notwithstanding any provision of the
laws of the State of Ohio now or hereafter in force requiring, for any purpose,
the vote of the holders of greater than a majority but less than all of the
voting power of the Corporation or of any class or classes of shares thereof,
such action (unless otherwise expressly prohibited by statute) may be taken by
vote of the holders of shares entitling them to exercise a majority of the
voting power of the Corporation or of such class or classes.
ARTICLE XII. Share Repurchase by the Company. The Corporation may
purchase, from time to time, and to the extent permitted by the laws of the
State of Ohio, shares of any class of stock issued by it. Such purchases may be
made either in the open market or at private or public sale, and in such manner
and amounts, from such holder or holders of outstanding shares of the
Corporation and at such prices as the Board of Directors of the Corporation
shall from time to time determine, and the Board of Directors is hereby
empowered to authorize such purchases from time to time without any vote of the
holders of any class of shares now or hereafter authorized and outstanding at
the time of any such purchase.
ARTICLE XIII. Supersession of Prior Articles. These Amended and
Restated Articles of Incorporation shall supersede the existing Amended and
Restated Articles of Incorporation of the Corporation.
These Amended and Restated Articles of Incorporation were duly adopted
by the shareholders of the Corporation on the ____ day of June, 1998, in
accordance with the general corporation law of Ohio.
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Jack A. Rollin, President