EXHIBIT 3.7
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
NELSON STUD WELDING, INC.
NELSON STUD WELDING, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the "Company"),
DOES HEREBY CERTIFY:
FIRST: That by written consent of the majority of the directors, a
resolution was duly adopted setting forth a proposed Amended and
Restated Certificate of Incorporation of the Company (the
"Certificate"). The resolution setting forth the amendment is as
follows:
RESOLVED, that Article 4 of the Certificate of Incorporation
of the Company filed with the Secretary of State of the State of
Delaware on February 2, 2000 is amended and that such amendment
has been incorporated into the Amended and Restated Certificate
of Incorporation ("the "Certificate"), substantially in the form
of Exhibit A attached hereto; and further
RESOLVED, that Article 10 is added to the Certificate of
Incorporation of the Company filed with the Secretary of State of
the State of Delaware on February 2, 2000 and that such amendment
has been incorporated into the Amended and Restated Certificate
of Incorporation ("the "Certificate"), substantially in the form
of Exhibit A attached hereto; and further
RESOLVED, that the Certificate is hereby approved and
adopted without the consent of shareholders of the Company in
accordance with the provisions of Sections 241 and 245 of the
General Corporation Law of the State of Delaware and shall become
effective upon being filed with the Secretary of State of the
State of Delaware; and further
RESOLVED, that the officers of the Company, including the
Chairman, are hereby authorized and empowered to take any and all
action and to execute and deliver any and all documents, as any
such officer deems necessary or advisable to effect the
above-mentioned amendment and restatement, without further
authority or approval by the board of directors of the Company.
SECOND: That the Company has not received any payment for any of its
stock.
THIRD: That said Certificate restates and integrates and further
amends in its entirety the Certificate of Incorporation of this
Company. The Certificate was duly adopted in accordance with the
provisions of Sections 241 and 245 of the General Corporation Law of
the State of Delaware.
FOURTH: This Certificate shall become effective immediately upon its
filing with the Secretary of State of the State of Delaware and upon
the filing of this Certificate, the Certificate of Incorporation of
the Company shall be amended and restated in its entirety to read as
set forth in Exhibit A attached hereto.
IN WITNESS WHEREOF, the Company has caused this Certificate to be
executed by , its , this day of March, 2000.
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NELSON STUD WELDING, INC.
By:
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Name:
Title:
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Exhibit A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
NELSON STUD WELDING, INC.
1. Name. The name of the Corporation is Nelson Stud Welding, Inc.
2. Registered Office and Agent. The address of the Corporation's
registered office in the State of Delaware is 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of the Corporation's registered agent
at such address is The Corporation Trust Company.
3. Purpose. The purposes for which the Corporation is formed are to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware and to possess and exercise all of
the powers and privileges granted by such law and any other law of Delaware.
4. Authorized Capital. The aggregate number of shares of stock which
the Corporation shall have authority to issue is 3,045,000 shares, divided into
three (3) classes consisting of 1,045,000 shares of Preferred Stock, par value
$.01 per share ("Preferred Stock"), 1,000,000 shares of Class A Common Stock,
par value $.01 per share ("Class A Common Stock"), and 1,000,000 shares of Class
B Common Stock, par value $.01 per share ("Class B Common Stock"). Class A
Common Stock and Class B Common Stock are hereinafter sometimes collectively
referred to as "Common Stock."
The following is a statement of the designations, preferences,
qualifications, limitations, restrictions and the special or relative rights
granted to or imposed upon the shares of each such class.
A. PREFERRED STOCK
1. Issue in Series. Preferred Stock may be issued from time
to time in one or more series, each such series to have the terms
stated herein or in the resolution of the Board of Directors of
the Corporation providing for its issue. All shares of any one
series of Preferred Stock will be identical, but shares of
different series of Preferred Stock need not be identical or rank
equally except insofar as provided by law or herein.
2. Creation of Series. In addition to the Series A 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
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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;
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;
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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, as and if declared by the Board of Directors,
out of funds legally available for the payment thereof, dividends
at the rates fixed herein for the Series A 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 the Series A 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 this
Certificate for the Series A 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
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voting rights and shall not be entitled to any notice of meeting
of stockholders.
B. SERIES A JUNIOR PREFERRED STOCK
1. Designation, Number of Shares. The first series of
Preferred Stock shall be designated as the 12% Series A Junior
Preferred Stock ("Series A Junior Preferred Stock"), and the
number of shares which shall constitute such series shall be
45,000. The par value of the Series A Junior Preferred Stock
shall be $.01 per share.
2. Accrual and Payment of Dividends
a. The holders of Series A 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 per share per annum.
Such dividends shall be payable in annual installments
in arrears commencing April 1, 2001 and thereafter on the
first day of April (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 April 1, 2001
shall be calculated from the date of original issuance
through April 1, 2001. Each such dividend on Series A 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 A
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 A 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 A 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
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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 A 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 Series
A Junior Preferred Stock and any other stock ranking on a
parity as to dividends with the Series A Junior Preferred
Stock, all dividends paid upon shares of Series A Junior
Preferred Stock and any other stock ranking on a parity as
to dividends with the Series A Junior Preferred Stock shall
be paid pro rata so that in all cases the amount of
dividends paid per share on the Series A Junior Preferred
Stock and such other stock shall bear the same ratio that
accrued dividends per share on the shares of Series A 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 A 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 A 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. 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 A 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
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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. 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 A Junior Preferred Stock
and of any shares of stock ranking on a parity with the
Series A 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 A Junior Preferred Stock and of any
shares of stock ranking on a parity with the Series A Junior
Preferred Stock. Holders of Series A 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.B(3)(a).
b. Neither the purchase nor redemption by the
Corporation of shares of any class of stock in any manner
permitted by the Certificate of Incorporation or any
amendment thereof, nor the merger or consolidation of the
Corporation with or into any other corporation or
corporations, nor a sale, transfer or lease of all or
substantially all of the Corporation's assets shall be
deemed to be a liquidation, dissolution or winding up of the
Corporation for the purposes of this Article IV.B(3);
provided, however, that any consolidation or merger of the
Corporation in which the Corporation is not the surviving
entity shall be deemed to be a liquidation, dissolution or
winding up of the affairs of the Corporation within the
meaning of this Article IV.B(3) if, (A) in connection
therewith, the holders of Common Stock of the Corporation
receive as consideration, whether in whole or in part, for
such Common Stock (1) cash, (2) notes, debentures or other
evidences of indebtedness or obligations to pay cash or (3)
preferred stock of the surviving entity (whether or not the
surviving entity is the Corporation) which ranks on a parity
with or senior to the preferred stock received by holders of
the Series A Junior Preferred Stock with respect to
liquidation or dividends or (B) the holders of the Series A
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 A Junior Preferred
Stock.
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4. Redemption.
a. Mandatory Redemption. All outstanding shares of
Series A Junior Preferred Stock shall be redeemed from funds
legally available therefor on April 1, 2020 (the "Series A
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
Series A Mandatory Redemption Date.
b. Optional Redemption. The Series A 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) to the date
of redemption.
c. The aggregate amount of the redemption pursuant to
Article IV.B(4)(a) or (b) is hereinafter referred to as the
"Series A Junior Redemption Price" with respect to such
redemption. The Series A Mandatory Redemption Date and the
date of any redemption pursuant to Article IV.B(4)(b) are
each hereinafter referred to individually as a "Series A
Redemption Date."
5. Redemption Procedure
a. A redemption pursuant to Article IV.B(4) shall be
accomplished in the manner and with the effect as set forth
in this Article IV.B(5).
b. Notice of the redemption of Series A Junior
Preferred Stock pursuant to Article IV.B(4) shall be given
by mail not less than ten (10) days prior to the Series A
Redemption Date. If less than all the outstanding shares of
Series A 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 A Junior Preferred Stock of such
holder to be redeemed. The amount of the Series A Junior
Redemption Price shall be deposited on or before the Series
A Redemption Date in trust for the account of the holders of
shares of Series A 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
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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 Series A Redemption Date
(unless default shall be made by the Corporation in
providing money for the payment of the Series A 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 A Junior
Preferred Stock so called for redemption shall cease to
accrue and, notwithstanding that any certificate for shares
of Series A 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 A Junior Redemption Price as hereinafter
provided.
d. At any time on or after the Series A Redemption
Date, or if the Corporation shall deposit the money for such
redemption prior to the Series A 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 Series A Redemption
Date, the holders of record of shares of Series A Junior
Preferred Stock to be redeemed shall be entitled to receive
the Series A Junior Redemption Price upon actual delivery to
the bank or trust company with which such deposit shall be
made of certificates for the shares to be redeemed, such
certificates, if required, to be duly endorsed in blank or
accompanied by proper instruments of assignment and transfer
duly endorsed in blank. The making of such deposit with any
such bank or trust company shall not relieve the Corporation
of liability for payment of the Series A Junior Redemption
Price.
e. Any money so deposited which shall remain unclaimed
by the holders of such shares of Series A Junior Preferred
Stock at the end of two (2) years after the Series A
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
A Junior Redemption Price. Any interest accrued on money so
deposited shall be paid to the Corporation from time to
time.
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6. Voting. Except as required by law and except for any
voting by the holders of the Series A Junior Preferred Stock as
part of a separate class or series pursuant to Article IV.B(7)
hereunder or any other provision of the Corporation's Certificate
of Incorporation, no holder of Series A 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 A Junior Preferred Stock shall be entitled to vote,
they shall be entitled to one vote for each share held. Except as
otherwise provided by law or as otherwise provided herein, the
holders of shares of Series A Junior Preferred Stock shall not be
entitled to notice of any meeting of stockholders.
7. Other Rights. Without the written consent of the holders
of all of the outstanding shares of Series A Junior Preferred
Stock or the vote of the holders of all of the outstanding shares
of Series A Junior Preferred Stock at a meeting of the holders of
Series A Junior Preferred Stock called for such purpose, the
Corporation shall not amend, alter or repeal any provision of the
Corporation's Certificate of Incorporation so as to adversely
affect the rights and preferences of the Series A Junior
Preferred Stock including any change to the dividend payable on
the Series A 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 A Junior
Preferred Stock or has a redemption date earlier than the Series
A Junior Preferred Stock be deemed to adversely affect the rights
and preferences of the Series A Junior Preferred Stock.
8. Acknowledgement. Each holder of Series A 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.B,
shall have the meanings set forth below:
a. As used herein, the amount of dividends "accrued" on
any share of Series A 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.
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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 A 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 Common Stock.
d. "person" shall mean an individual, a corporation,
partnership, trust, organization, association, government or
any department or agency thereof, or any other individual or
entity.
C. CLASS A AND CLASS B COMMON STOCK
Except as otherwise provided herein, all shares of Class A and
Class B Common Stock shall be identical and shall entitle the holders
thereof to the same rights and privileges.
1. Dividends. Holders of Class A and Class B 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. Upon the adoption of a resolution by the
Board of Directors of Fabri-Steel Holdings Incorporated, a
Delaware corporation ("Fabri-Steel"), authorizing Fabri-Steel or
its Affiliates (as defined below) to conduct a High Yield
Offering (as defined below), the Corporation, expressed by
resolution of the Board of Directors, at any time and from time
to time shall be entitled to convert any or all of any Class A
Common Stock held by any party other than Fabri-Steel or its
Affiliates into the same number of shares of Class B Common
Stock. The Corporation, expressed by resolution of the Board of
Directors, at any time and from time to time shall be entitled to
convert any or all of any record holder's Class B Common Stock
into the same number of shares of Class A Common Stock.
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Each conversion of shares of one class of Common Stock into
shares of another class of Common Stock shall be effected
immediately upon adoption of a resolution of the Board of
Directors to that effect. Upon such conversion, the applicable
record holder shall surrender the certificate or certificates
representing the shares to be converted at the principal office
of the Corporation. Such conversion shall be deemed to have been
effected as of the close of business on the date on which the
applicable resolution is adopted, whether or not the certificate
or certificates have been surrendered, 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.
As used in this section IV.C(2), "Affiliate" means with
respect to any person or entity, (i) a person or entity that is a
member of the consolidated group of such person or entity for
federal income tax purposes or (ii) a person or entity in which
such person or entity owns, directly or indirectly through one or
more intermediaries, more than fifty percent (50%) of the
outstanding capital stock or equity of such person or entity.
As used in this section IV.C(2), "High Yield Offering" shall
mean an issuance by Fabri-Steel of at least $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.
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
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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. 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. The
aggregate number of shares of stock which the Corporation shall
have authority to issue is one thousand (1,000) shares, all of
which are of one class and are designated as Common Stock and
each of which has a par value of one cent ($.01).
5. Incorporator. The name and mailing address of the incorporator are
Mishael M. Azam, 4000 Bell Atlantic Tower, 1717 Arch Street, Philadelphia,
Pennsylvania 19103-2793.
6. Bylaws. The board of directors of the Corporation is authorized to
adopt, amend or repeal the bylaws of the Corporation, except as otherwise
specifically provided therein.
7. Elections of Directors. Elections of directors need not be by
written ballot unless the bylaws of the Corporation shall so provide.
8. Right to Amend. The Corporation reserves the right to amend any
provision contained in this Certificate as the same may from time to time be in
effect in the manner now or hereafter prescribed by law, and all rights
conferred on stockholders or others hereunder are subject to such reservation.
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9. Limitation on Liability. The directors of the Corporation shall be
entitled to the benefits of all limitations on the liability of directors
generally that are now or hereafter become available under the General
Corporation Law of Delaware. Without limiting the generality of the foregoing,
no director of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit. Any repeal or
modification of this Section 9 shall be prospective only, and shall not affect,
to the detriment of any director, any limitation on the personal liability of a
director of the Corporation existing at the time of such repeal or modification.
10. Miscellaneous. The Corporation elects not to be governed by
Section 203 of the Delaware General Corporation Law.
Dated: March , 2000
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Rex A. Ogg
Chairman, Vice President and Assistant
Secretary
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CERTIFICATE OF DESIGNATION
OF 18% SERIES B SENIOR PREFERRED STOCK
OF
NELSON STUD WELDING, INC.
Nelson Stud Welding, Inc., a Delaware corporation (hereinafter called
the "Corporation"), pursuant to the provisions of Section 151 of the General
Corporation Law of the State of Delaware, does hereby make this Certificate of
Designation under the corporate seal of the Corporation and does hereby state
and certify that pursuant to the authority expressly vested in the Board of
Directors of the Corporation by the Certificate of Incorporation of the
Corporation (the "Certificate of Incorporation"), the Board of Directors has
duly adopted the following resolutions:
RESOLVED, that, pursuant to Article IV of the Certificate of
Incorporation (which authorizes 1,045,000 shares of Preferred Stock, $.01 par
value per share, of which none is 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 150,000 shares to
be designated 18% Series B Cumulative Senior Preferred Stock.
18% SERIES B CUMULATIVE SENIOR PREFERRED STOCK
RESOLVED, that each share of the 18% Series B Cumulative Senior
Preferred Stock shall rank equally in all respects and shall be subject to the
following provisions:
1. Designation, Number of Shares. The second series of Preferred
Stock shall be designated as the 18% Series B Cumulative Senior
Preferred Stock ("Series B Senior Preferred Stock"), and the
number of shares which shall constitute such series shall be
150,000. The par value of the Series B Senior Preferred Stock
shall be $.01 per share.
2. Accrual and Payment of Dividends
a. The holders of Series B Senior Preferred Stock shall be
entitled to receive, when, as and if declared by the Board
of Directors, cumulative dividends at the rate of $18 per
share per annum.
Such dividends shall be payable in annual installments
in arrears commencing March 17, 2001 and thereafter on March
17 (unless such day is not a business day in which event on
the last preceding business day) in each such year
(hereinafter referred to as a "Dividend Accrual Date").
Each such dividend on Series B 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 B Senior
Preferred Stock shall accrue (whether or not earned or
declared) from March 17, 2000.
b. Such dividends on the Series B 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 B 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 B 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
18% per annum.
c. The right to receive dividends on the Series B Senior
Preferred Stock shall rank on parity with that of any stock
ranking on a parity as to dividends with the Series B Senior
Preferred Stock, all dividends paid upon shares of Series B
Senior Preferred Stock and any other stock ranking on a
parity as to dividends with the Series B Senior Preferred
Stock shall be paid pro rata so that in all cases the amount
of dividends paid per share on the Series B Senior Preferred
Stock and such other stock shall bear the same
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ratio that accrued dividends per share on the shares of
Series B 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 B 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
B 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. 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 B 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 B Senior Preferred Stock
shall rank on parity with any other shares of stock on
parity with the Series B 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 B Senior Preferred Stock and of any shares
of stock ranking on a parity with the Series B 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
B Senior Preferred Stock and of any shares of stock ranking
on a parity with the Series B Senior Preferred Stock.
Holders of Series B Senior Preferred Stock shall not be
entitled, upon the liquidation, dissolution or winding up of
the Corporation, to receive any amounts with respect to such
stock other than the amounts referred to in this Section
(3)(a).
b. Neither the purchase nor redemption by the Corporation of
shares of any class of stock in any manner permitted by the
Certificate of Incorporation or any amendment thereof, nor
the merger or consolidation of the Corporation with or into
any other
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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 B Senior Preferred Stock with respect to liquidation
or dividends or (B) the holders of the Series B 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 B Senior Preferred
Stock.
4. Redemption.
a. Mandatory Redemption. All outstanding shares of the
Series B Senior Preferred Stock shall be redeemed from funds
legally available therefor on the Mandatory Redemption Date,
at a price per share equal to $100 plus an amount per share
equal to full cumulative dividends (whether or not earned or
declared) accrued and unpaid thereon (including Additional
Dividends) to the Mandatory Redemption Date. The holders of
the Series B 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 the
Corporation's 12% Series A Cumulative Junior Preferred
Stock, par value $.01 per share (the "Series A Junior
Preferred Stock"),and 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 B 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 any Additional
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Dividends) 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 B 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 B 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 B 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 B 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 B Senior Preferred Stock
so called for redemption shall cease to accrue and,
notwithstanding that any certificate for shares of Series B
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
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shares shall cease and terminate, except the right to
receive the Redemption Price as hereinafter provided.
d. At any time on or after the applicable Redemption Date,
or if the Corporation shall deposit the money for such
redemption prior to the applicable Redemption Date, then at
any time on or after the date of deposit, which time shall
be specified by the Corporation in the notice of redemption
and which shall not be later than the applicable Redemption
Date, the holders of record of the Series B 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 B 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 B Senior Preferred Stock as part of a
separate class or series pursuant to Section (7) hereunder or any
other provision of the Certificate of Incorporation, no holder of
Series B 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 B
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 B Senior Preferred Stock
or the vote of the holders of all of the outstanding shares of
Series B Senior Preferred Stock at a meeting of the holders of
Series B Senior Preferred Stock called for such purpose, the
Corporation shall not amend, alter or repeal any provision of the
Certificate of Incorporation so as to adversely affect the rights
and preferences of the Series B Senior Preferred Stock including
any change to the dividend payable on the Series B 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 B Senior Preferred Stock or has a
redemption date earlier than the Series B Senior
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Preferred Stock be deemed to adversely affect the rights and
preferences of the Series B Senior Preferred Stock.
8. Acknowledgement. Each holder of Series B Senior Preferred
Stock, by acceptance thereof, acknowledges and agrees that
payments of dividends, interest, premium and principal on, and
redemption and repurchase of, such securities by the Corporation
are subject to restrictions contained in certain credit and
financing agreements of the Corporation.
9. Definitions
The following terms, when used herein, shall have the
meanings set forth below:
a. As used herein, the amount of dividends "accrued" on any
share of Series B Senior Preferred Stock at any date shall
be calculated as the amount of any unpaid dividends
accumulated thereon to and including the last preceding
Dividend Accrual Date with respect to which dividends have
not been paid, whether or not earned or declared.
b. "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 B 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 A 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.
d. "Mandatory Redemption Date" shall mean March 17, 2020.
e. "person" shall mean an individual, a corporation,
partnership, trust, organization, association, government or
any department or agency thereof, or any other individual or
entity.
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IN WITNESS WHEREOF, Nelson Stud Welding, Inc. has caused this
Certificate of Designation to be signed by its Vice President, and attested by
its Secretary, this day of March, 2000.
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ATTEST: NELSON STUD WELDING, INC.
- --------------------------- ----------------------------------------
Secretary Vice President
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