EXHIBIT 3.5
RESTATED
ARTICLES OF INCORPORATION
OF
FABRI-STEEL PRODUCTS INCORPORATED
Pursuant to the provisions of Section 642 of Act 284, Public Acts of
1972, as amended (the "Act"), the undersigned corporation executes the following
Restated Articles of Incorporation:
1. The present name of the Corporation is: Fabri-Steel Products
Incorporated.
2. The identification number assigned by the Michigan Department of
Consumer and Industry Services, Corporation, Securities and Land Development
Bureau is 172-136.
3. All former names of the Corporation are: None.
4. The date of filing of the original Articles of Incorporation was:
June 10, 1954.
The following Restated Articles of Incorporation supersede the
Articles of Incorporation as amended and shall be the Articles of Incorporation
for the corporation:
ARTICLE I. Name. The name of the Corporation is Fabri-Steel Products
Incorporated.
ARTICLE II. Registered Office and Agent. The street and mailing
address of the Corporation's registered office in the State of Michigan is 22900
West Eight Mile Road, in the City of Southfield, County of Oakland 48034-4395.
The name of the Corporation's resident agent at such address is Rex A. Ogg.
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
corporations may be formed under the Act and to possess and exercise all of the
powers and privileges granted by such law and any other law of Michigan.
ARTICLE IV. Authorized Capital. The aggregate number of shares of
stock which the Corporation shall have authority to issue is 10,000,000 shares,
divided into three (3) classes consisting of 5,000,000 shares of Preferred
Stock, par value $.01 per share ("Preferred Stock"); 2,500,000 shares of Class A
Common Stock, par value $.01 per share ("Class A Common Stock"); and 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." Each share of common stock, par
value $10 per share, of the Corporation outstanding immediately prior to the
date hereof (collectively, the "Existing Common Stock") is hereby automatically
reclassified and converted into one share of Class A Common Stock. Upon receipt
of a share certificate representing any shares of Existing Common Stock, the
secretary of the Corporation shall cancel such certificate and issue to the
stockholder in whose name such certificate appears a certificate representing
the same number of shares of Class A 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.
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; provided, further, that until
March , 1999, the Board of Directors of the Corporation
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shall have the authority by resolution to cause to be
created additional series of Preferred Stock that are senior
to the Senior Preferred Stock with respect to the
liquidation, distribution of assets, dissolution or
winding-up of the Corporation so long as such additional
series of Preferred Stock is not senior to the Senior
Preferred Stock after March , 1999;
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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 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; provided, further, that until March , 1999,
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the Board of Directors of the Corporation shall have the
authority by resolution to cause to be created additional
series of Preferred Stock that are senior to the Senior
Preferred Stock with respect to the liquidation,
distribution of assets, dissolution or winding-up of the
Corporation so long as such additional series of Preferred
Stock is not senior to the Senior Preferred Stock after
March , 1999;
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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
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 these
Articles 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 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, 1999 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, 1999
shall be calculated from the date of original issuance
through March 1, 1999. 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 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
a. In the event that the Corporation shall be liquidated,
dissolved or wound up, whether voluntarily or involuntarily,
after March , 1999, after all creditors of the Corporation
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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).
Notwithstanding anything contained herein to the
contrary, in the event that the Corporation shall be
liquidated, dissolved or wound up, whether voluntarily or
involuntarily, before March , 1999, after all creditors of
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the Corporation shall have been paid in full, the assets of
the Corporation legally available for distribution to its
stockholders, whether from capital, surplus or earnings,
shall be distributed to the holders of Senior Preferred
Stock, Junior
Preferred Stock and Common Stock, without preference or
priority, and to each such holder based on the number of
shares of Senior Preferred Stock, Junior Preferred Stock and
Common Stock owned of record by such holder on the record
date for such distribution.
b. Neither the purchase nor redemption by the Corporation of
shares of any class of stock in any manner permitted by the
Articles 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 after March 1, 1999, 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
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 May 1, 2018 (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").
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.
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 Articles 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. 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
Articles 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. 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.
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).
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 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.
Such dividends shall be payable in annual installments
in arrears commencing March 1, 1999 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, 1999
shall be calculated from the date of original issuance
through March 1, 1999. 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 (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 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
Articles 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 (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 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 Corporation's Articles 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. 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 Articles 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. 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.
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 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 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 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.
ARTICLE V. 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.
ARTICLE VI. Elections of Directors. Elections of directors need not be
by written ballot unless the bylaws of the Corporation shall so provide.
ARTICLE VII. Right to Amend. The Corporation reserves the right to
amend any provision contained in these Articles of Incorporation 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.
ARTICLE VIII. Limitation on Liability. A director of the Corporation
shall not be personally liable to the Corporation or its shareholders for
monetary damages for any action taken or failure to take any action as a
director, except liability for any of the following:
a. the amount of a financial benefit received by a director to
which he or she is not entitled;
b. intentional infliction of harm on the Corporation or its
shareholders;
c. a violation of Section 551 of the Act; or
d. an intentional criminal act.
Any repeal, amendment or other modification of this Article shall not
increase the liability or alleged liability of any director of the corporation
then existing with respect to any state of facts then or theretofore existing or
any action, suit or proceeding theretofore or thereafter brought or threatened
based in whole or in part upon any such state of facts. If the Act is
subsequently amended to authorize corporate action further eliminating or
limiting personal liability of directors, then the liability of directors shall
be eliminated or limited to the fullest extent permitted by the Act as so
amended.
ARTICLE IX. Actions by Written Consent of Shareholders. Any action
required or permitted to be taken at an annual or special meeting of the
shareholders of the Company may be taken without a meeting, without prior
notice, and without a vote, if consents in writing, setting forth the action so
taken, are signed by the holders of outstanding shares of the Company having not
less than the minimum number of votes that would be necessary to authorize or
take the action at a meeting at which all shares entitled to vote on the action
were present and voted.
ARTICLE X. Preemptive Rights. No holder of any shares of any class or
series of capital stock of the Corporation shall have preemptive rights, except
that holders of Common Stock may have preemptive rights as provided in a written
agreement between the Corporation and such holder.
These Restated Articles of Incorporation were duly adopted by the
Shareholders of the Corporation on the day of March 1998, in accordance
----
with the provisions of Section 642 of the Act.
----------------------------------------
John H. Steward, II
President
CERTIFICATE OF DESIGNATION
OF 12% SERIES C JUNIOR PREFERRED STOCK
OF
FABRI-STEEL PRODUCTS INCORPORATED
Fabri-Steel Products Incorporated, a Michigan corporation (hereinafter
called the "Corporation"), pursuant to the provisions of Section 450.1302 of the
Business Corporation Act of the State of Michigan, 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 Restated Articles of Incorporation
of the Corporation, dated March 25, 1998 (the "Articles of Incorporation"), the
Board of Directors has duly adopted the following resolutions:
RESOLVED, that, pursuant to Article IV of the Articles of
Incorporation (which authorizes 5,000,000 shares of Preferred Stock, $.01 par
value per share, of which 1,810,000 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 JUNIOR PREFERRED STOCK
- -----------------------------------
RESOLVED, that each share of the 12% Series C 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
- 1 -
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 Paynrnt 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, 1999 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, 1999
shall be calculated from the date of original issuance
through March 1, 1999. 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
- 2 -
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
- 3 -
paid in full in accordance with Article IV.B(2) of the
Articles 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.
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
- 4 -
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 Articles 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,
- 5 -
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 Articles 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 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,
- 6 -
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 Articles 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
- 7 -
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 March 1, 2018 (the "Mandatory
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 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
- 8 -
Articles 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
Articles 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".
- 9 -
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 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
- 10 -
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
- 11 -
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. 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 Articles 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. 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.
- 12 -
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 Articles 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. Each bolder 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.
- 13 -
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 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 $.0l 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 Articles of
incorporation).
- 14 -
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.
- 15 -
IN WITNESS WHEREOF, Fabri-Steel Products Incorporated has caused this
Certificate of Designation to be signed by its President, and attested by its
Secretary, this ______ day of June, 1998.
ATTEST: FABRI-STEEL PRODUCTS
INCORPORATED
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Secretary Senior Vice President and
Chief Financial Officer
- 16 -
DOMESTIC CORPORATION INFORMATION UPDATE
(formerly Annual Report)
1998
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1. Corporate Name 2. IDENTIFICATION NUMBER
FABRI-STEEL PRODUCTS, INCORPORATED 172136
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3. Resident Agent
LESLIE A. GARVIE
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4a. Registered Office Address in Michigan - No.,
Street, City, Zip
22900 W. EIGHT MILE RD.
SOUTHFIELD, MI 48034
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4b. Mailing address of registered office if
different than item 4a.
22900 W. EIGHT MILE RD.
SOUTHFIELD, MI 48034
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5. Describe the general nature and kind of
business in which the corporation is engaged:
MANUFACTURER OF FASTENERS
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6. NAME BUSINESS OR RESIDENCE ADDRESS
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If President REX A. OGG
different 22900 WEST EIGHT MILE ROAD, SOUTHFIELD,
than MICHIGAN 48034
President ---------------------------------------------------------------
Vice President MARK J. MACGUIDWIN
22900 WEST EIGHT MILE ROAD, SOUTHFIELD,
MICHIGAN 48034
---------------------------------------------------------------
Secretary LESLIE A. GARVIE
22900 WEST EIGHT MILE ROAD, SOUTHFIELD,
MICHIGAN 48034
---------------------------------------------------------------
Treasurer
---------------------------------------------------------------
Director CHARLES E. CORPENING
22900 WEST EIGHT MILE ROAD, SOUTHFIELD,
MICHIGAN 48034
---------------------------------------------------------------
Director MICHAEL DELANEY
22900 WEST EIGHT MILE ROAD, SOUTHFIELD,
MICHIGAN 48034
If ---------------------------------------------------------------
different Director RICHARD PURICELLI
than 22900 WEST EIGHT MILE ROAD, SOUTHFIELD,
Officers MICHIGAN 48034
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The corporation states that the address of its registered office and the address
of the business office of its resident agent are identical. Any changes were
authorized by resolution duly adopted by its board of directors.
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If space is insufficient, you may include additional pages. PLEASE DO NOT STAPLE
ADDITIONAL PAGES TO THIS REPORT. Enclosed $15.00 made payable to the State of
Michigan. This report must be filed on or before May 15
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7. Signature of an authorized officer Title Date
or agent of the corporation Vice President & CEO 05/15/98
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Required by Section 911, Act 284, Public Acts of 1972, as amended. Failure to
file this report may result in the dissolution of the corporation.
THE OFFICE IS LOCATED AT: MAIL TO:
6546 Mercantile Way Michigan Department of Consumer and Industry
Lansing, MI 48910 Services Corporation, Securities and
(517) 334-6300 Land Development Bureau
P.O. Box 30057
Lansing, MI 48909-7557
- 17 -
1998 INFORMATION UPDATE - LIST OF ADDITIONAL DIRECTORS
NAME OF CORPORATION
-------------------------------------------------------------
CID# 172136
- --------------------------------------------------------------- -----------
NAME AND ADDRESS:
SALLIE F. SNYDER
22900 WEST EIGHT MILE ROAD, SOUTHFIELD, MICHIGAN 48034
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MICHIGAN DEPARTMENT OF COMMERCE - CORPORATION AND SECURITIES BUREAU
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Date Received
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Name
Ann J. Williams, Sr. Customer Specialist
Address CT Corporation System
1635 Market Street
City Philadelphia, PA 19103
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Document will be returned to the name and address you enter above
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CERTIFICATE OF MERGER
For use by Parent and Subsidiary Profit Corporations
(Please read information and instructions on the last page)
Pursuant to the provisions of Act 284, Public Acts of 1972, the undersigned
corporation executes the following Certificate:
- --------------------------------------------------------------------------------
1. a. The name of each constituent corporation and its identification
number is:
__________________________________________________________
__________________________________________________________
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b. The name of the surviving corporation and its identification
number is:
__________________________________________________________
__________________________________________________________
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c. For each subsidiary corporation, state:
Number of outstanding Number of shares owned by
Name of corporation shares in each class the parent corporation in
each class
Kean Acquisition Corporation 100 - Common Stock 100 - Common Stock
____________________________ _____________________ _________________________
____________________________ _____________________ _________________________
____________________________ _____________________ _________________________
____________________________ _____________________ _________________________
____________________________ _____________________ _________________________
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- 19 -
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d. The manner and basis of converting the shares of each constituent
corporation is as follows:
At the Effective Time, each then issued and outstanding share,
and each share held in the treasury, of the capital stock of Kean
Acquisition Corporation shall be canceled. No shares or other
securities or other obligations of Fabri-Steel Products
Incorporated or any other corporation shall be issued in
consideration for the cancellation of the shares of Kean
Acquisition Corporation.
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e. The amendments to the Articles of Incorporation of the surviving
corporation to be effected by the merger are as follows:
None
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f. Other provisions with respect to the merger are as follows:
At the Effective Time, the Articles of Incorporation of the
surviving corporation shall be the Articles of Incorporation of
Fabri-Steel Products Incorporated until thereafter amended as
provided therein and by applicable law.
At the Effective Time, the directors and officers of the
surviving corporation shall be the directors and officers of
Fabri-Steel Products Incorporated.
At the Effective Time, the Bylaws of the surviving corporation
shall be the bylaws of Fabri-Steel Products Incorporated until
thereafter amended as provided therein and by law.
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- 20 -
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2. (Complete for any foreign corporation only)
This merger is permitted by the laws of the State of Delaware ,the
-------------------
jurisdiction under which Kean Acquisition Corporation
---------------------------------------------------
(name of foreign corporation)
is formed and the plan of merger was adopted and approved by such
corporation pursuant to and in accordance with the laws of that
jurisdiction.
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5. (Complete only if an effective date is desired other than the date of
filing)
The merger shall be effective on the ________ day of______________________,
19__________.
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Signed this 30/th/day of September, 1998
Fabri-Steel Products Incorporated
------------------------------------------------------------
(Name of parent corporation)
By__________________________________________________________
(??? of President, Vice-President, Chairperson,
or Vice-Chairperson)
Rex A. Ogg, PresidentU
------------------------------------------------------------
(Type or Print Name and Title)
- 21 -
CERTIFICATE OF DESIGNATION
OF 8% SERIES D SENIOR PREFERRED STOCK
OF
FABRI-STEEL PRODUCTS INCORPORATED
Fabri-Steel Products Incorporated, a Michigan corporation (hereinafter
called the "Corporation"), pursuant to the provisions of Section 450.1302 of the
Business Corporation Act of the State of Michigan, 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 Restated Articles of Incorporation
of the Corporation, dated March 25, 1998 (the "Articles of Incorporation"), the
Board of Directors has duly adopted the following resolutions:
RESOLVED, that, pursuant to Article IV of the Articles of
Incorporation (which authorizes 5,000,000 shares of Preferred Stock, $.01 par
value per share, of which 2,369,897 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
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 Articles 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
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 Articles 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 May 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. 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")
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 Articles 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
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 Articles 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. 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
Articles 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.
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, 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 Articles 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.
IN WITNESS WHEREOF, Fabri-Steel Products Incorporated has caused this
Certificate of Designation to be signed by its President, and attested by its
Secretary, this ___ day of March, 1999.
ATTEST: FABRI-STEEL PRODUCTS INCORPORATED
- ----------------------------------- ----------------------------------------
Secretary Senior Vice President and
Chief Financial Officer
CERTIFICATE OF DESIGNATION
OF 12% SERIES E JUNIOR PREFERRED STOCK
OF
FABRI-STEEL PRODUCTS INCORPORATED
Fabri-Steel Products Incorporated, a Michigan corporation (hereinafter
called the "Corporation"), pursuant to the provisions of Section 450.1302 of the
Business Corporation Act of the State of Michigan, 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 Restated Articles of Incorporation
of the Corporation, dated March 25, 1998 (the "Articles of Incorporation"), the
Board of Directors has duly adopted the following resolutions:
RESOLVED, that, pursuant to Article IV of the Articles of
Incorporation (which authorizes 5,000,000 shares of Preferred Stock, $.01 par
value per share, of which 2,369,897 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 March 1, 1999 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, 1999 shall be calculated from
the date of original issuance through March 1, 1999. 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 Articles 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 ___, 1999 (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 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 Articles 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 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 Articles 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 Articles 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 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 May 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; 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 Articles 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 Dividends as defined in
the Articles 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 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 Articles 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 Articles 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 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.
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 Articles 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.
IN WITNESS WHEREOF, Fabri-Steel Products Incorporated has caused this
Certificate of Designation to be signed by its President, and attested by its
Secretary, this ___ day of March ___, 1999.
ATTEST: FABRI-STEEL PRODUCTS INCORPORATED
- ----------------------------------- -----------------------------------
Secretary Senior Vice President and
Chief Financial Officer
CORPORATION INFORMATION UPDATE
1999
[ ] To certify there are no changes from your previous filing check this box and
sign the form at the bottom.
================================================================================
FOR BUREAU USE ONLY
================================================================================
RETURN TO:
MICHIGAN DEPARTMENT OF CONSUMER AND
172136 INDUSTRY SERVICES CORPORATION, SECURITIES
AND LAND DEVELOPMENT BUREAU
IDENTIFICATION NUMBER P.O. BOX 30702
LANSING MI 48909-8202
- --------------------------------------------------------------------------------
Corporate Name and Mailing Address
FABRI-STEEL PRODUCTS INCORPORATED
22900 WEST EIGHT MILE
SOUTHFIELD MI 48034
- --------------------------------------------------------------------------------
Registered Office Address in Michigan -
NO., STREET, CITY, ZIP Resident Agent
22900 WEST EIGHT MILE LESLIE A GARVIE
SOUTHFIELD 48034
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
If there are changes from your previous filing, you must complete Items 1
through 5.
- --------------------------------------------------------------------------------
1. Mailing address of registered office if 2. Resident Agent if
different than preprinted information above different than above
22100 Trolley Industrial Drive David Sickels
Taylor, Michigan 48180
- --------------------------------------------------------------------------------
3. Address of registered office if different than preprinted information above
- NO., STREET, CITY, ZIP
22100 Trolley Industrial Drive
Taylor, Michigan 48180
- --------------------------------------------------------------------------------
4. Describe the general nature and kind of business in which the corporation is
engaged:
Manufacturer of Specialty Fastener Systems and Supporting Services.
- --------------------------------------------------------------------------------
5. NAME BUSINESS OF RESIDENCE ADDRESS
- --------------------------------------------------------------------------------
President (Required) 22100 Trolley Industrial Drive
Taylor, Michigan 48190
Rex Ogg
- --------------------------------------------------------------------------------
Vice President
Mark MacGuidwin (SAME)
If ---------------------------------------------------------------------
different Secretary (Required)
than David Sickels (SAME)
President ---------------------------------------------------------------------
Treasurer (Required)
Mark MacGuidwin
- --------------------------------------------------------------------------------
If Director
different ---------------------------------------------------------------------
than Director
Offices ---------------------------------------------------------------------
Director
- --------------------------------------------------------------------------------
The corporation states that the address of its Enclose $15.00 made payable
registered agent are identical. Any changes were to the State of Michigan.
authorized by resolution duly adopted by its board This report must be filed
of directors. on or before May 15
- --------------------------------------------------------------------------------
Signature of an authorized officer or Title Date
agent of the corporation
- --------------------------------------------------------------------------------
Required by Section 911, Act 284, Public Acts of 1972, as amended. Failure to
file this report may result in the dissolution of the corporation.
================================================================================
GOLD SEAL APPEARS ONLY ON ORIGINAL
- ----------------------------------------------------------------------------------------------------------
MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES
CORPORATION, SECURITIES AND DEVELOPMENT BUREAU
- ----------------------------------------------------------------------------------------------------------
Date Received (FOR BUREAU USE ONLY)
- --------------------------
- ---------------------------------------------------
- -------------------------------------------------
Name
Ann J. Williams, C T Corporation System
- ------------------------------------------------
Address
1635 Market Street, Suite 1120
- ------------------------------------------------
City State Zip Code
Philadelphia PA 19103 EFFECTIVE DATE:
- ------------------------------------------------ -------------------------------------------------------
'd' Document will be returned to the name and address you ender above 'd'
CERTIFICATE OF CHANGE OF REGISTERED OFFICE AND/OR CHANGE OF RESIDENT AGENT
For use by Domestic and Foreign Corporations and Limited Liability Companies
(Please read information and instructions on reverse side)
Pursuant to the provisions of Act 284, Public Acts of 1972 (profit corporations), or Act 162, Public Acts
of 1982 (nonprofit) corporations), or Act 23, Public Acts of 1993 (limited liability companies), the
undersigned corporation or limited liability company executes the following Certificate:
- ----------------------------------------------------------------------------------------------------------
1. The name of the corporation or limited liability company is:
Fabri-Steel Products Incorporation
------------------------------------------------------------------------------------------------------
2. The identification number assigned by the Bureau is: ---------------
172-136
---------------
3. a. The name of the resident agent on file with the Bureau is: David Sickels
----------------------------------
b. The location of the registered office on file with the Bureau is:
22100 Trolley Industrial Dr. Taylor Michigan 48180
-------------------------------------------, ----------------------
(Street Address) (City) (Zip Code)
c. The mailing address of the above registered office on file with the Bureau is:
Michigan
-------------------------------------------, ----------------------
(Street Address or P.O. Box) (City) (Zip Code)
- ----------------------------------------------------------------------------------------------------------
ENTER IN ITEM 4 THE INFORMATION AS IT SHOULD NOW APPEAR ON THE PUBLIC RECORD
- ----------------------------------------------------------------------------------------------------------
4. a. The name of the resident agent is: Rex. A. Ogg
-------------- ----------------------------
b. The address of the registered office is:
22100 Trolley Industrial Drive Taylor Michigan 48180
-------------------------------------------, ----------------------
(Street Addresa) (City) (Zip Code)
c. The mailing address of the registered office IF DIFFERENT THAN 4B is:
Michigan
-------------------------------------------, ----------------------
(Street Address or P.O. Box) (City) (Zip Code)
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
5. The above changes were authorized by resolution duly adopted by: 1. ALL CORPORATIONS: Its board of
directors; 2. PROFIT CORPORATIONS ONLY: the resident agent if only the address of the registered
office is changed, in which case a copy of this statement has been mailed to the corporation; 3.
LIMITED LIABILITY COMPANIES; an operating agreement, affirmative vote of a majority of the members
pursuant to section 502(1), managers pursuant to section 405, or othe resident agent if only the
address of the registered office is changed. The corporation or limited liability company further
states that the address of its registered office and the address of its resident agent, as changed,
are identical.
- ----------------------------------------------------------------------------------------------------------
Signature Type or Print Name and Title Date Signed
Rex A. Ogg/Resident Agent
- ----------------------------------------------------------------------------------------------------------
================================================================================
GOLD SEAL APPEARS ONLY ON ORIGINAL
- ----------------------------------------------------------------------------------------------------------
MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES
CORPORATION, SECURITIES AND DEVELOPMENT BUREAU
- ----------------------------------------------------------------------------------------------------------
Date Received (FOR BUREAU USE ONLY)
This document is effective on the date filed, unless a subsequent
effective date within 90 days after received date is stated in the
- ------------------------- document.
- ------------------------------------------------
- ---------------------------------------------
Steven Zimmer - CT Corporation System
Seven Penn Center
1635 Market Street
Philadelphia, PA 19103
- ------------------------------------------------- -------------------------------------------------------
'd' Document will be returned to the name and EFFECTIVE DATE:
address you enter above 'd' -------------------------------------------------------
If left blank document will be mailed to Expiration date for new assumed names the registered
office December 31
-------------------------------------------------------
Expiration date for transferred assumed names appear
in item 6
-------------------------------------------------------
CERTIFICATE OF MERGER
Cross Entity Merger for use by Profit Corporations, Limited Liability Companies
and Limited Partnerships
Pursuant to the provisions of Act 284, Public Acts of 1972 (profit corporations), Act 23, Public Acts
of 1993 (limited liability companies) and Act 213, Public Acts of 1982 (limited partnerships), the
undersigned entities execute the following Certificate of Merger.
- ----------------------------------------------------------------------------------------------------------
1. The Plan of Merger (Consolidation) is as follows: ---------------------
290-93A
---------------------
a. The name of each constituent entity and its
identification number is:
Fabri-Steel Acquisition Corp.
-------------------------------------------------
Fabri-Steel Products Incorporated ---------------------
------------------------------------------------- 172-136
---------------------
---------------------
-------------------------------------------------
---------------------
b. The name of the surviving (new) entity and its
identification number is:
---------------------
Fabri-Steel Products Incorporated 172-136
------------------------------------------------- ---------------------
Corporations and Limited Liability Companies provide the street address of
the survivor's principal place of business:
22100 Trolley Industrial Drive, Taylor, MI
----------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
2. (Complete only if an effective date is desired other than the date of filing. The
date must be no more than 90 days after the receipt of this document in this office.)
The merger (consolidation) shall be effective on the 17/th/ day of March, 2000.
- ----------------------------------------------------------------------------------------------------------
================================================================================
GOLD SEAL APPEARS ONLY ON ORIGINAL
3. Complete for Profit Corporations only
- ----------------------------------------------------------------------------------------------------------
For each constituent stock corporation, state:
Designation and
number of outstanding Indicate class or Indicate class
shares in each class series of shares or series entitled
Name of corporation or series entitled to vote to vote as a calss
- ----------------------- --------------------- ------------------- ----------------------
SEE ATTACHED
- ----------------------- --------------------- ------------------- ----------------------
If the number of shares is subject to change prior to the effective date of the merger or
consolidation, the manner in which the change may occur is as as follows:
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
The manner and basis of converting shares are as follows:
Each of the issued and outstanding shares of Fabri-Steel Acquisition Corp., common stock shall be
converted into and become one duly authorized, validly issued, fully paid and nonassessable share of
Fabri-Steel Products Incorporated common tock (Class A).
No amendment or restatement of articles.
The Plan of Merger will be furnished by the surviving profit corporation, on request and without cost,
to any shareholder of any constituent profit corporation.
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
The merger is permitted by the state or country under whose law it is incorporated and each foreign
corporation has complied with that law in effecting the merger
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
(Complete either Section(a) or (b) for each corporation)
a) The Plan of Merger was approved by the majority consent of the incorporators of _________________
_____________________________________, a Michigan corporation which has not commenced business, has
not issued any shares, and has not elected a Board of Directors.
------------------------------------------------- -------------------------------------------------
(Signature of incorporator) (Type or Print Name) (Signature of incorporator) (Type or Print Name)
------------------------------------------------- -------------------------------------------------
(Signature of incorporator) (Type or Print Name) (Signature of incorporator) (Type or Print Name)
b) The plan of merger was approved by :
[X] the Board of Directors of FABRI-STEEL PRODUCTS INCORPORATED, the surviving Michigan corporation
without approval of the shareholders in accordance with Section 703a of the Act.
[X] the Board of Directors and the shareholders of the following Michigan corporation(s) in
accordance with Section 703a of the Act.
FABRI-STEEL ACQUISITION CORP.
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-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
By By
-------------------------------------------- -----------------------------------------------
(Signature of Authorized Officer or Agent) (Signature of Authorized Officer or Agent)
-------------------------------------------- ----------------------------------------------
(Type or print name) (Type or print name)
Fabri-Steel Acquisition Corp. Fabri-Steel Products Incorporated
-------------------------------------------- --------------------------------------------------
(Name of Corporation) (Name of Corporation)
- ----------------------------------------------------------------------------------------------------------
================================================================================
GOLD SEAL APPEARS ONLY ON ORIGINAL
ATTACHMENT TO CERTIFICATE OF MERGER
FOR
FABRI-STEEL ACQUISITION CORP., a Michigan corporation
and
FABRI-STEEL PRODUCTS INCORPORATED, a Michigan corporation
a. For each constituent stock corporation, state:
Name of corporation Designation and number of Indicate classes of Indicate each class,
outstanding shares of each shares entitled to vote if any, entitled to
class vote as a class
Fabri-Steel Acquisition Corp. 100 shares of Common Stock Class A Common Stock
Common Stock
Fabri-Steel Products 95,698 shares of Class A Class A Common Stock No
Incorporated Common Stock
110,018 shares of Class B Class B Common Stock No
Common Stock
910,000 shres of Series A Series A Senior No
Senior Preferred Stock Preferred Stock
900,000 shares of Series B Series B Junior No
Junior Preferred Stock Preferred Stock
559,897 shares of Series C Series C Junior No
Junior Preferred Stock Preferred Stock
85,000 shares of Series D Series D Senior No
FC Senior Preferred Stock Preferred Stock
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GOLD SEAL APPEARS ONLY ON ORIGINAL