Exhibit 3.4
CERTIFICATE OF INCORPORATION
OF
PAPER CAL STEEL CO.
ARTICLE I
This corporation is being organized and will exist under Delaware law.
ARTICLE II
The name of the corporation is Paper Cal Steel Co.
ARTICLE III
The address of the corporation's registered office in the State of
Delaware is Corporation Trust Center, 1200 Orange Street, City of Wilmington,
County of New Castle 19801. The name of its registered agent at such address is
Corporation Trust Company.
ARTICLE IV
The nature of the business of the corporation and the purposes for
which it is organized are
To engage in any business and in any lawful act or activity for
which corporations may be organized under the General Corporation
Law of Delaware and to possess and employ all powers and
privileges now or hereafter granted or available under the laws
of the State of Delaware to such corporations.
ARTICLE V
5.1 The total number of shares that the corporation shall have
authority to issue is 10,000 shares of common stock, each with a par value of
$.001.
5.2 Each stockholder shall have no preemptive rights to acquire
unissued or treasury shares of the corporation, securities convertible into
shares or carry a right to subscribe to or acquire shares or stock options.
5.3 Cumulative voting shall not be permitted in the election of
directors.
-1-
ARTICLE VI
The name and mailing address of the incorporator are:
Linda M. Vumbaco
Suite 4700
370 Seventeenth Street
P. 0. Box 185
Denver, Colorado 80201
ARTICLE VII
7.1 The number of directors of the corporation shall be fixed from
time to time in the manner provided in the bylaws and may be increased or
decreased from time to time in the manner provided in the bylaws.
7.2 Election of directors need not be by written ballot except and to
the extent provided in the bylaws of the corporation.
7.3 At all elections of directors of the corporation, each holder of
stock or of any class or classes or of any series thereof shall be entitled to
as many votes as shall equal the number of votes which (except for this
provision as to cumulative voting) he would be entitled to cast for the
election of directors with respect to his shares of stock multiplied by the
number of directors to be elected by him, and he may cast all of such votes for
a single director or may distribute them among the number to be voted for, or
for any two or more of them, as he may see fit.
7.4 A quorum of the board of directors for the transaction of business
shall not consist of less than a majority of the total number of directors,
except as may be provided in the bylaws with respect to filling vacancies.
ARTICLE VIII
The board of directors of the corporation is expressly authorized to
make, alter, or repeal the bylaws of the corporation, but such authorization
shall not divest the stockholders of the power, nor limit their power, to adopt,
amend, or repeal bylaws.
ARTICLE IX
The corporation shall, to the fullest extent permitted by Delaware law
as in effect from time to time, indemnify any person against all liability and
expense (including attorneys' fees) incurred by reason of the fact that he is or
was a director or officer of the corporation or, while serving as a director or
officer of the corporation, he is or was serving at the request of the
corporation as a director, officer, partner or trustee of, or in any similar
managerial or fiduciary position of, or as an employee or agent of, another
corporation, partnership, joint venture, trust, association, or other entity.
Expenses (including attorneys' fees) incurred in defending an action, suit, or
proceeding
-2-
may be paid by the corporation in advance of the final disposition of such
action, suit, or proceeding to the full extent and under the circumstances
permitted by Delaware law. The corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee, fiduciary,
or agent of the corporation against any liability asserted against and
incurred by such person in any such capacity or arising out of such person's
position, whether or not the corporation would have the power to indemnify
against such liability under the provisions of this Article X. The
indemnification provided by this Article X shall not be deemed exclusive of any
other rights to which those indemnified may be entitled under this certificate
of incorporation, any bylaw, agreement, vote of stockholders or disinterested
directors, statute, or otherwise, and shall inure to the benefit of their heirs,
executors, and administrators. The provisions of this Article X shall
not be deemed to preclude the corporation from indemnifying other persons from
similar or other expenses and liabilities as the board of directors or the
stockholders may determine in a specific instance or by resolution of general
application.
ARTICLE X
The corporation shall have authority, to the fullest extent now or
hereafter permitted by the General Corporation Law of the State of Delaware, or
by any other applicable law, to enter into any contract or transaction with one
or more of its directors or officers, or with any corporation, partnership,
joint venture, trust, association, or other entity in which one or more of its
directors or officers are directors or officers, or have a financial interest,
notwithstanding such relationships and notwithstanding the fact that the
director or officer is present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the contract or transaction.
ARTICLE XI
The personal liability of each director of the corporation to the
corporation or its stockholders for breach of fiduciary duty as a director is
hereby eliminated and limited to the fullest extent permitted by paragraph (7)
of subsection (b) of Section 102 of the Delaware General Corporation Law, as the
same may hereafter be amended and supplemented from time to time.
ARTICLE XII
Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing
-3-
three-fourths in value of the creditors or class of creditors, and of the
stockholders or class of stockholders of this corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this corporation, as the case may be, and also on this
corporation.
Executed this 18th day of August, 1988
/s/ Linda M. Vumbaco
-----------------------------------
Linda M. Vumbaco, Incorporator
-4-
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION OF
PAPER CAL STEEL CO.
The undersigned, being the duly elected and authorized President of
Paper Cal Steel Co., a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware (the "Corporation"), does
hereby certify as follows:
FIRST: That the Corporation filed its original Certificate of
Incorporation with the Secretary of State of Delaware on August 19, 1988.
SECOND: That the Board of Directors of the Corporation, in accordance
with Sections 141(f) and 242 of the General Corporation Law of the State of
Delaware, duly adopted resolutions by unanimous written consent authorizing the
Corporation to amend the Certificate of Incorporation of the Corporation by
deleting Article V in its entirety and replacing it with the following:
ARTICLE V
5.1 The total number of shares that the corporation shall have
authority to issue is 10,000 shares of common stock, each with a par value
of $.001 (the "Common Stock") and 800,000 shares of preferred stock, each
with a par value of $1,000 (the "Preferred Stock").
5.2 The Board of Directors of the Corporation is authorized, subject
to limitations prescribed by law and the provisions of this Article Five,
to provide for the issuance of shares of the Preferred Stock in series, and
by filing a certificate pursuant to the General Corporation Law of the
State of Delaware, to establish from time to time the number of shares to
be included in each such series and to fix the designations, powers,
preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions thereof.
5.3 The Preferred Stock may be issued from time to time in one or more
series, the shares of each series to have such powers, designations,
preferences and relative, participating, optional or other special rights,
and qualifications, limitations or restrictions thereof, as are stated and
expressed herein or in a resolution or resolutions providing for the
issuance of such series, adopted by the Board of Directors as hereinafter
provided.
5.4 Authority is hereby expressly granted to the Board of Directors to
authorize the issuance of one or more series of Preferred Stock, and with
respect to each such series to fix by resolution or resolutions providing
for the issuance of such series:
a. the maximum number of shares to constitute such series and the
distinctive designation thereof;
b. whether the shares of such series shall have voting rights, in
addition to any voting rights provided by law, and, if so, the terms of
such voting rights;
c. the dividend rate, if any, on the shares of such series, the
conditions and dates upon which such dividends shall be payable, the
preference or relation which such dividends shall bear to the dividends
payable on any other class or classes or on any other series of capital
stock, and whether such dividends shall be cumulative or noncumulative;
d. whether the shares of such series shall be subject to redemption
by the Corporation and, if made subject to redemption, the times, prices
and other terms and conditions of such redemption;
e. the rights of the holders of shares of such series upon the
liquidation, dissolution or winding up of the Corporation;
f. whether or not the shares of such series shall be subject to the
operation of a retirement or sinking fund and, if so, the extent to and
manner in which any such retirement or sinking fund shall be applied to the
purchase or redemption of the shares of such series for retirement or to
other corporate purposes and the terms and provisions relative to the
operation thereof;
g. whether or not the shares of such series shall be convertible into,
or exchangeable for, shares of stock of any other class or classes, or of
any other series of the same class, and if so convertible or exchangeable,
the price or prices or the rate or rates of conversion or exchange and the
method, if any, of adjusting the same;
h. the limitations and restrictions, if any, to be effective while any
shares of such series are outstanding upon the payment of dividends or
making of other distributions on, and upon the purchase, redemption or
other acquisition by the Corporation of, Common Stock or any other class or
classes of stock of the Corporation ranking junior to the shares of such
series either as to dividends or upon liquidation;
i. the conditions or restrictions, if any, upon the creation of
indebtedness of the Corporation or upon the issue of any additional stock
(including additional shares of such series or of any other series or of
any other class) ranking on a parity with or prior to the shares of such
series as to dividends or distribution of assets on liquidation,
dissolution or winding up; and
j. any other preference and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions thereof as
shall not be inconsistent with this Article Five.
-2-
5.5 Series Identical: Rank. All shares of any one series of Preferred
Stock shall be identical with each other in all respects, except that
shares of any one series issued at different times may differ as to the
dates from which dividends, if any, thereon shall be cumulative; and all
series shall rank equally and be identical in all respects; and all shares
of Preferred Stock shall rank senior to the Common Stock both as to
dividends and upon liquidation.
5.6 Liquidation. In the event of any liquidation, dissolution or
winding up of the Corporation, before any payment or distribution of the
assets of the Corporation (whether capital or surplus) shall be made to or
set apart for the holders of any class or classes of stock of the
Corporation ranking junior to the Preferred Stock upon liquidation, the
holders of the shares of the Preferred Stock shall be entitled to receive
payment at the rate fixed herein or in the resolution or resolutions
adopted by the Board of Directors providing for the issue of such series,
plus (if dividends on shares of such series of Preferred Stock shall be
cumulative) an amount equal to all dividends (whether or not earned or
declared) accumulated to the date of final distribution to such holders;
but they shall be entitled to no further payment. If, upon any liquidation,
dissolution or winding up of the Corporation, the assets of the Corporation
or proceeds thereof, distributable among the holders of the shares of the
Preferred Stock shall be insufficient to pay in full the preferential
amount aforesaid, then such assets, or the proceeds thereof, shall be
distributed among such holders ratably in accordance with the respective
amounts which would be payable on such shares if all amounts payable
thereon were paid in full.
5.7 Voting Rights. Except as shall be otherwise stated and expressed
herein or in the resolution or resolutions of the Board of Directors
providing for the issue of any series and except as otherwise required by
the laws of the State of Delaware, the holders of shares of Preferred Stock
shall have, with respect to such shares, no right or power to vote on any
question or in any proceeding or to be represented at, or to receive notice
of, any meeting of stockholders.
5.8 Reacquired Shares. Shares of any Preferred Stock which shall be
issued and thereafter acquired by the Corporation through purchase,
redemption, exchange, conversion or otherwise shall return to the status of
authorized but unissued Preferred Stock unless otherwise provided in the
resolution or resolutions of the Board of Directors.
5.9 Increase/Decrease in Authorized Shares of a Series. Unless
otherwise provided in the resolution or resolutions of the Board of
Directors providing for the issuance thereof, the number of authorized
shares of stock of any such series may be increased or decreased (but not
below the number of shares thereof outstanding) by resolution or
resolutions of the Board of Directors. In case the number of shares of any
such series of Preferred Stock shall be decreased, the shares representing
such decrease shall, unless otherwise provided in the resolution or
resolutions of the Board of Directors providing for the issuance thereof,
resume the status of authorized but unissued Preferred Stock, undesignated
as to series.
-3-
5.10 Except as otherwise provided in the resolution or resolutions of
the Board of Directors providing for the issue of any series of Preferred
Stock, no stockholder shall have preemptive rights to acquire unissued or
treasury shares of the Corporation, securities convertible into shares or
carrying a right to subscribe for or acquire shares or stock options.
5.11 Cumulative voting shall not be permitted in the election of
directors.
THIRD: That the sole stockholder of the Corporation approved and
adopted the Amendments to the Certificate of the Corporation in accordance with
Sections 228 and 242 of the General Corporation Law of the State of Delaware, by
unanimous written consent.
IN WITNESS WHEREOF, the undersigned officer of the Corporation, for
the purpose of amending the Certificate of Incorporation of the Corporation
pursuant to the General Corporation Law of the State of Delaware, under
penalties of perjury does hereby declare and certify that this is the act and
deed of the Corporation and the facts stated herein are true, and accordingly
have hereunto signed this Certificate of Restated Certificate of Incorporation
this 6th day of November, 1997.
PAPER CAL STEEL CO.
By: /s/ David Sutherland
------------------------------------
President
-4-
CERTIFICATE OF
DESIGNATION OF SERIES A REDEEMABLE PREFERRED STOCK
Paper Cal Steel Co., a Delaware corporation (the "Corporation")
certifies that pursuant to Article V of its Certificate of Incorporation and in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, its Board of Directors adopted the following resolution
on November 7, 1997 creating a series of its preferred shares.
RESOLVED, that a series of authorized redeemable preferred shares of
the Corporation is hereby created, having the designation, par value, voting,
participation and other rights and restriction set out below.
Section 1. Designation and Number. The shares of such class shall be
designated "Series A Redeemable Preferred Stock." The number of shares initially
constituting the Series A Redeemable Preferred Stock, par value $1,000 shall be
800,000 which number may be neither decreased nor increased by the Board of
Directors without a vote of stockholders; provided that such number may not be
decreased below the number of then outstanding shares of Series A Redeemable
Preferred Stock.
Section 2. Dividends.
2A General Obligation. When and as declared by the Corporation's Board
of Directors and to the extent permitted by law, the Corporation shall pay
preferential dividends in cash to the holders of the Series A Redeemable
Preferred Stock, par value $1,000 (the "Series A Preferred Stock") as provided
in this Section 2. Dividends on each share of the Series A Preferred Stock (a
"Share") shall accrue on a daily basis at the rate of 8.75% per annum of the sum
of the Liquidation Value thereof plus all accumulated and unpaid dividends
thereon from and including the date of issuance of such Share to and including
the first to occur of (i) the date on which the Liquidation Value of such Share
(plus all accrued and unpaid dividends thereon) is paid to the holder thereof in
connection with the liquidation of the Corporation or the redemption price
provided for in Section 5A is paid in connection with the redemption of such
Share by the Corporation or (ii) the date on which such share is otherwise
acquired by the Corporation. Such dividends shall accrue whether or not they
have been declared and whether or not there are profits, surplus or other funds
of the Corporation legally available for the payment of dividends, and such
dividends shall be cumulative such that all accrued and unpaid dividends shall
be fully paid or declared with funds irrevocably set apart for payment before
any dividends, distributions, redemptions or other payments may be made with
respect to any Junior Securities. The date on which the Corporation initially
issues any Share shall be deemed to be its "date of issuance" regardless of the
number of times transfer of such Share is made on the stock records maintained
by or for the Corporation and regardless of the number of certificates which may
be issued to evidence such Share.
2B Dividend Reference Dates. To the extent not paid, on the last day
of April and October of each year, beginning April 30,1998 (the "Dividend
Reference Dates"), all dividends which have accrued on each Share outstanding
during the quarterly period (or other period in the case of the initial Dividend
Reference Date) ending upon each such Dividend Reference Date shall be
accumulated and shall remain accumulated dividends with respect to such Share
until paid to the holder thereof.
2C Distribution of Partial Dividend Payments. Except as otherwise
provided herein, if at any time the Corporation pays less than the total amount
of dividends then accrued with respect to the Series A Preferred Stock, such
payment shall be distributed pro rata among the holders thereof based upon the
aggregate accrued but unpaid dividends on the Shares held by each such holder.
Section 3. Liquidation.
3A Liquidation Payments. Upon any liquidation, dissolution or winding
up of the Corporation (whether voluntary or involuntary), each holder of Series
A Preferred Stock shall be entitled to be paid, before any distribution or
payment is made upon any Junior Securities, an amount in cash equal to the
aggregate Liquidation Value of all Shares held by such holder (plus all accrued
and unpaid dividends thereon), and the holders of Series A Preferred Stock shall
not be entitled to any further payment. If upon any such liquidation,
dissolution or winding up of the Corporation the Corporation's assets to be
distributed among the holders of the Series A Preferred Stock are insufficient
to permit payment to such holders of the aggregate amount which they are
entitled to be paid under this Section 3, then the entire assets available to be
distributed to the holders of the Series A Preferred Stock shall be distributed
pro rata among such holders based upon the aggregate Liquidation Value (plus all
accrued and unpaid dividends) of the Series A Preferred Stock held by each such
holder. Prior to the liquidation, dissolution or winding up of the Corporation,
the Corporation shall declare for payment all accrued and unpaid dividends with
respect to the Series A Preferred Stock, but only to the extent of funds of the
Corporation legally available for the payment of dividends. Not less than 10
days prior to the payment date stated therein, the Corporation shall mail
written notice of any such liquidation, dissolution or winding up to each record
holder of Series A Preferred Stock, setting forth in reasonable detail the
amount of proceeds to be paid with respect to each Share, each share of Common
Stock and each other equity security of the Corporation in connection with such
liquidation, dissolution or winding up.
3B Distribution Other Than Cash. Whenever the distribution provided
for in this Section 3 shall be payable in property other than cash, the value of
such distribution shall be the fair market value of such property as determined
in good faith by the Board of Directors; provided, however, that if the holders
of a majority of the then outstanding share of Series A Preferred Stock (the
"Contesting Holders") notify the Board of Directors within five business days
after receiving written notification of such determination of fair market value
that they disagree with such determination, then the Board of Directors and the
Contesting Holders shall have 30 days to agree upon a fair market value of the
relevant property. If, by the end of such 30-day period, they are unable to
agree on a fair market value, the fair market value shall be determined by an
appraisal, the cost of which shall be shared equally by the Corporation, on one
hand, and the Contesting Holders, on the other hand. All appraisals shall be
undertaken by two appraisers, one selected by the Corporation and one selected
by the Contesting Holders, which selections must be made within 10 days after
the expiration of the 30-day period described above. If one selecting party
fails to timely select its appraiser, the other selecting party shall select
both appraisers. The fair market value shall be the fair market value arrived at
by those appraisers within 60 days following the appointment of the last
appraiser to be appointed. In the event that the two appraisers cannot agree on
such fair market value within such a period of time, (a) if the appraisers'
valuations are within 10% of each
2
other, the fair market value shall be the average of the two valuations, and (b)
if the differences in the valuations are greater, the appraisers shall elect a
third appraiser who will calculate fair market value independently, and, except
as provided in the next sentence, the fair market value of the property shall in
each case be the average of the two fair market values arrived at by the
appraisers who are closest in amount. If one appraiser's valuation is the
average of the other two valuations, the average valuation shall be the fair
market value. In the event that the two original appraisers cannot agree upon a
third appraiser within 30 days following the end of the 60-day period referred
to above, the third appraiser shall be appointed by the American Arbitration
Association.
Section 4. Priority of Series A Preferred Stock on Dividends and
Redemptions.
So long as any Series A Preferred Stock remains outstanding, without
the prior written consent of the holders of a majority of the outstanding shares
of Series A Preferred Stock, the Corporation shall not, nor shall it permit any
Subsidiary to, redeem, purchase or otherwise acquire directly or indirectly any
Junior Securities, nor shall the Corporation directly or indirectly pay or
declare any dividend or make any distribution upon any Junior Securities.
Section 5. Redemptions.
5A Mandatory and Optional Redemption. On October 31, 2008, the
Corporation shall redeem each share of Series A Preferred Stock then outstanding
(the "Mandatory Redemption"). In addition, the Corporation may, at its option,
at any time and from time to time, redeem all or any portion of the Shares of
Series A Preferred Stock then outstanding (an "Optional Redemption"). Upon the
Mandatory Redemption or an Optional Redemption, the Corporation shall pay a
price per Share equal to the Liquidation Value thereof (plus all accrued and
unpaid dividends thereon).
5B Redemption Payments. For each Share which is to be redeemed
hereunder, the Corporation shall be obligated on the Redemption Date to pay to
the holder thereof (upon surrender by such holder at the Corporation's principal
office of the certificate representing such Share) an amount in immediately
available funds equal to the redemption price described in Section 5A. If the
funds of the Corporation legally available for redemption of Shares on any
Redemption Date are insufficient to redeem the total number of Shares to be
redeemed on such date, those funds which are legally available shall be used to
redeem the maximum possible number of Shares pro rata among the holders of the
Shares to be redeemed based upon the aggregate redemption price pursuant to
Section 5A of such Shares held by each such holder. At any time thereafter when
additional funds of the Corporation arc legally available for the redemption of
Shares, such funds shall immediately be used to redeem the balance of the Shares
which the Corporation has become obligated to redeem on any Redemption Date but
which it has not redeemed.
5C Notice of Redemption. Except as otherwise provided herein, the
Corporation shall mail written notice of each redemption of any Series A
Preferred Stock to each record holder thereof not more than 60 nor less than 10
days prior to the date on which such redemption is to be made. In case fewer
than the total number of Shares represented by any certificate are redeemed, a
new certificate representing the number of unredeemed Shares shall be issued to
the holder thereof
3
without cost to such holder within five business days after surrender of the
certificate representing the redeemed Shares.
5D Determination of the Number of Each Holder's Shares to be Redeemed.
The number of Shares of Series A Preferred Stock to be redeemed from each holder
thereof in any Optional Redemption hereunder shall be the number of Shares
determined by multiplying the total number of Shares to be redeemed by a
fraction, the numerator of which shall be the total number of Shares then held
by such holder and the denominator of which shall be the total number of Shares
then outstanding.
5E Dividends After Redemption Date. No Share shall be entitled to any
dividends accruing after the date on which the redemption price of such Share
pursuant to Section 5A is paid to the holder of such Share. On such date, all
rights of the holder of such Share shall cease, and such Share shall no longer
be deemed to be issued and outstanding.
Section 6. Voting and Other Rights.
6A Voting. Except as otherwise provided herein and as otherwise
required by applicable law, the Series A Preferred Stock shall have no voting
rights. The number of shares of Series A Preferred Stock entitled to vote on any
matter shall be determined as of the record date for the determination of
shareholders entitled to vote on such matter or, if no such record date is
established, at the date such vote is taken or any written consent of
shareholders is solicited. Except as otherwise expressly provided for herein or
as required by law, the holders of Series A Preferred Stock shall vote together
as a single class on all matters.
6B Other Rights. In addition to any rights provided by law, without
the written consent of the holders of a majority of shares of Series A Preferred
Stock then outstanding, the Corporation shall not:
(i) authorize, issue of sell, or obligate itself to authorize, issue
or sell, any equity securities that are senior to or pari passu with the Series
A Preferred Stock with respect to dividends, liquidation preferences or
redemption rights, other than additional shares of Series A Preferred Stock; or
(ii) reclassify any shares of Series A Preferred Stock.
Section 7. Events of Noncompliance
7A Definition. An Event of Noncompliance shall have occurred if:
(i) the Corporation fails to make any redemption payment with respect
to the Series A Preferred Stock which it is required to make hereunder, whether
or not such payment is legally permissible or is prohibited by any agreement to
which the Corporation is subject;
4
(ii) the Corporation breaches or otherwise fails to perform or observe
any other covenant or agreement set forth herein or in the Preferred Stock
Subscription Agreement;
(iii) any representation or warranty contained in the Preferred Stock
Subscription Agreement is false or misleading in any material respect on the
date made or furnished;
(iv) the Corporation or any Subsidiary makes an assignment for the
benefit of creditors or admits in writing its inability to pay its debts
generally as they become due; or an order, judgment or decree is entered
adjudicating the Corporation or any Subsidiary bankrupt or insolvent; or any
order for relief with respect to the Corporation or any Subsidiary is entered
under the Federal Bankruptcy Code; or the Corporation or any Subsidiary
petitions or applies to any tribunal for the appointment of a custodian,
trustee, receiver or liquidator of the Corporation or any Subsidiary or of any
substantial part of the assets of the Corporation or any Subsidiary, or
commences any proceeding (other than a proceeding for the voluntary liquidation
and dissolution of a Subsidiary) relating to the Corporation or any Subsidiary
under any bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution or liquidation law of any jurisdiction; or any such petition
or application is filed, or any such proceeding is commenced, against the
Corporation or any Subsidiary and either (a) the Corporation or any such
Subsidiary by any act indicates its approval thereof, consent thereto or
acquiescence therein or (b) such petition, application or proceeding is not
dismissed within 60 days;
(v) a judgment in excess of $500,000 is rendered against the
Corporation or any Subsidiary and, within 60 days after entry thereof, such
judgment is not discharged or execution thereof stayed pending appeal, or within
60 days after the expiration of any such stay, such judgment is not discharged;
or
(vi) the Corporation or any Subsidiary defaults in the performance of
any obligation or agreement if the effect of such default is to cause an amount
exceeding $500,000 to become due prior to its stated maturity or to permit the
holder or holders of any obligation to cause an amount exceeding $500,000 to
become due prior to its stated maturity.
7B Consequences of Events of Noncompliance.
(i) If an Event of Noncompliance has occurred and is continuing, the
dividend rate on the Series A Preferred Stock shall increase immediately by an
increment of 6 percentage point(s). Thereafter, until such time as no Event of
Noncompliance exists, the dividend rate shall increase automatically at the end
of each succeeding 90-day period by an additional increment of 2 percentage
point(s) (but in no event shall the dividend rate exceed 18%). Any increase of
the dividend rate resulting from the operation of this subparagraph shall
terminate as of the close of business on the date on which no Event of
Noncompliance exists, subject to subsequent increases pursuant to this
paragraph.
(ii) If an Event of Noncompliance, other than an Event of
Noncompliance of the type described in subparagraph 7A(iv), has occurred and is
continuing, the holder or holders of a majority of the Series A Preferred Stock
then outstanding may demand (by written notice delivered
5
to the Corporation) immediate redemption of all or any portion of the Series A
Preferred Stock owned by such holder or holders at a price per Share equal to
the Liquidation Value thereof (plus all accrued and unpaid dividends thereon).
The Corporation shall give prompt written notice of such election to the other
holders of Series A Preferred Stock (but in any event within five days after
receipt of the initial demand for redemption), and each such other holder may
demand immediate redemption of all or any portion of such holder's Series A
Preferred Stock by giving written notice thereof to the Corporation within seven
days after receipt of the Corporation's notice. The Corporation shall redeem all
Series A Preferred Stock as to which rights under this paragraph have been
exercised within 15 days after receipt of the initial demand for redemption.
(iii) If an Event of Noncompliance of the type described in
subparagraph 7A(iv) has occurred, all of the Series A Preferred Stock then
outstanding shall be subject to immediate redemption by the Corporation (without
any action on the part of the holders of the Series A Preferred Stock) at a
price per Share equal to the Liquidation Value thereof (plus all accrued and
unpaid dividends thereon). The Corporation shall immediately redeem all Series A
Preferred Stock upon the occurrence of such Event of Noncompliance.
(iv) If any Event of Noncompliance exists, such holder of Series A
Preferred Stock shall also have any other rights which such holder is entitled
to under any contract or agreement at any time and any other rights which such
holder may have pursuant to applicable law.
Section 8. Registration of Transfer.
The Corporation shall keep at its principal office a register for the
registration of Series A Preferred Stock. Upon the surrender of any certificate
representing Series A Preferred Stock at such place, the Corporation shall, at
the request of the record holder of such certificate, execute and deliver (at
the Corporation's expense) a new certificate or certificates in exchange
therefor representing in the aggregate the number of Shares represented by the
surrendered certificate. Each such new certificate shall be registered in such
name and shall represent such number of Shares as is requested by the holder of
the surrendered certificate and shall be substantially identical in form to the
surrendered certificate, and dividends shall accrue on the Series A Preferred
Stock represented by such new certificate from the date to which dividends have
been fully paid on such Series A Preferred Stock represented by the surrendered
certificate.
Section 9. Replacement.
Upon receipt of evidence reasonably satisfactory to the Corporation
(an affidavit of the registered holder shall be satisfactory) of the ownership
and the loss, theft, destruction or mutilation of any certificate evidencing
Shares of Series A Preferred Stock, and in the case of any such loss, theft or
destruction, upon receipt of indemnity reasonably satisfactory to the
Corporation (provided that if the holder is a financial institution or other
institutional investor its own agreement shall be satisfactory), or, in the case
of any such mutilation upon surrender of such certificate, the Corporation shall
at its expense) execute and deliver in lieu of such certificate a new
certificate of like kind representing the number of Shares of such class
represented by such lost, stolen, destroyed
6
or mutilated certificate and dated the date of such lost, stolen, destroyed or
mutilated certificate, and dividends shall accrue on the Series A Preferred
Stock represented by such new certificate from the date to which dividends have
been fully paid on such lost, stolen, destroyed or mutilated certificate.
Section 10. Definitions.
"Common Stock" means, collectively, the Corporation's Common Stock and
any capital stock of any class of the Corporation hereafter authorized which is
not limited to a fixed sum or percentage of par or stated value in respect to
the rights of the holders thereof to participate in dividends or in the
distribution of assets upon any liquidation, dissolution or winding up of the
Corporation.
"Junior Securities" means any capital stock or other equity securities
of the Corporation, except for the Series A Preferred Stock of the Corporation.
"Liquidation Value" or any Share as of any particular date shall be
equal to $1,000.
"Person" means an individual, a partnership, a corporation, a limited
liability company, a limited liability, an association, a joint stock company, a
trust, a joint venture, an unincorporated organization and a governmental entity
or any department, agency or political subdivision thereof.
"Preferred Stock Subscription Agreement" means the Preferred Stock
Subscription Agreement dated on or about November 7, 1997 among the Corporation
and IPSCO Enterprises Inc., a Delaware corporation.
"Redemption Date" as to any Share means the date specified in the
notice of any redemption at the Corporation's option or at the holder's option;
provided that no such date shall be a Redemption Date unless the redemption
price provided in Section 5A of such Share is actually paid in full on such
date, and if not so paid in full, the Redemption Date shall be the date on which
such amount is fully paid.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity, a majority
of the partnership or other similar ownership interest thereof is at the time
owned or controlled, directly or indirectly, by any Person or one or more
Subsidiaries of that person or a combination thereof. For purposes hereof, a
Person or Persons shall be deemed to have a majority ownership interest in a
limited liability company, partnership, association or other business entity if
such Person or Persons shall be allocated a majority of limited liability
company, partnership, association or other business entity gains or losses or
shall be or control the managing general partner of such limited liability
company, partnership, association or other business entity
7
Section 11. Certain Information.
11A Financial Statements and Other Information. The Corporation will
all times keep proper records and books of account in which complete and correct
entries will be made, and, after the end of each fiscal year of the Corporation
and with reasonable promptness after its preparation, will furnish or cause to
be furnished to each holder of Series A Preferred Stock copies of (i) the
Corporation's audited consolidated balance sheet, statement of income and
shareholder's equity, and statement of cash flows for such fiscal year, all in
reasonable detail, and (ii) all such other information which is reasonably
available to the Corporation respecting the business, assets, financial
condition, results of operations or prospects of the Corporation as each holder
of Series A Preferred Stock may from time to time reasonably request.
11B Regulatory Filings. The Corporation will furnish to each holder of
Series A Preferred Stock promptly (i) each material registration, filing or
submission made by or on behalf of the Corporation, (ii) any annual filings made
by the Corporation with any regulatory authority, and (iii) each material
examination report or other similar report submitted to the Corporation by any
regulatory authority.
Section 12. Amendment and Waiver.
No amendment, modification or waiver shall be binding or effective
with respect to any provision hereof without the prior written consent of the
holders of a majority Of the Series A Preferred Stock outstanding at the time
such action is taken; provided that no such action shall change (a) the rate at
which or the manner in which dividends on the Series A Preferred Stock accrue or
the times at which such dividends become payable or the amount payable on
redemption of the Series A Preferred Stock or the times at which redemption of
Series A Preferred Stock is to occur or (b) the percentage required to approve
any change described in clause (a) above, without the prior written consent of
the holders of at least 70% of the Series A Preferred Stock then outstanding;
and provided further that no change in the terms hereof may be accomplished by
merger or consolidation of the Corporation with another corporation or entity
unless the Corporation has obtained the prior written consent of the holders of
the applicable percentage of the Series A Preferred Stock then outstanding.
Section 13. Notices.
Except as otherwise expressly provided hereunder, all notices referred
to herein shall be in writing and shall be delivered by registered or certified
mail, return receipt requested and postage prepaid, or by reputable overnight
courier service, charges prepaid, and shall be deemed to have been given when so
mailed or sent (i) to the Corporation, at its principal executive offices and
(ii) to any stockholder at such holder's address as it appears in the stock
records of the Corporation (unless otherwise indicated by any such holder).
Section 14. Adjustment.
8
All numbers and amounts set forth herein which refer to share prices
or amounts shall be appropriately adjusted to reflect stock splits, stock
dividends, combinations of shares and other recapitalizations affecting the
Series A Preferred Stock.
* * * *
9
IN WITNESS WHEREOF, the undersigned, under the penalties of perjury,
does hereby declare and certify that this is the act and deed of the Corporation
and the facts stated herein are true, and accordingly has hereunto signed this
Certificate of Designation as of this 7th day of November, 1997.
PAPER CAL STEEL CO.
By: /s/ David Sutherland
---------------------------------
Its: President
10
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION OF
PAPER CAL STEEL CO.
Paper Cal Steel Co., a Delaware corporation, hereby certifies as follows:
FIRST: That the Board of Directors of such corporation has, by unanimous
written consent filed with the minutes of the Board, as permitted by Section
141(f) of the General Corporation Law of the State of Delaware, adopted the
following resolution:
BE IT RESOLVED, that Article 5.1 of the Certificate of Incorporation of
Paper Cal Steel Co. (the "Corporation") be amended to read as follows:
"5.1: The total number of shares that the Corporation shall have
authority to issue is 20,000 shares of common stock, each with a par
value of $.001.
SECOND: That the sole stockholder of the Corporation, IPSCO Enterprises
Inc., by written consent in accordance with Section 228 of the General Corporate
Law of the State of Delaware, has approved such amendment.
THIRD: That the aforesaid amendment was fully adopted in accordance with
Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, Paper Cal Steel Co., has caused this certificate to be
signed by David Sutherland, its President, and attested to by John W. Comrie,
its Secretary as of September 27, 1999.
PAPER CAL STEEL CO.
By /s/ David Sutherland
-------------------------------------
David Sutherland, President
ATTEST:
By /s/ John W. Comrie
----------------------------------
John W. Comrie, Secretary
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:30 PM 09/28/1999
991408233 - 2170082
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
PAPER CAL STEEL CO.
Paper Cal Steel Co., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, by the unanimous
written consent of its members, filed with the minutes of the Board adopted a
resolution proposing and declaring advisable the following amendment to the
Certificate of Incorporation of said corporation:
RESOLVED, that the Certificate of Incorporation of Paper Cal Steel Co.
be amended by replacing Article I thereof in its entirety so that, as
amended, said Article shall be and read as follows:
ARTICLE I: Name
The name of the corporation is IPSCO Minnesota Inc.
SECOND: That in lieu of a meeting and vote of stockholders, the sole
stockholder has given its written consent to said amendment in accordance with
the provisions of Section 228 of the General Corporation Law of the State of
Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with the
applicable provisions of Sections 242 and 228 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, said Board of Directors of said Corporation has caused
this certificate to be signed by David Sutherland, its President and attested by
Anne Parker, its Assistant Secretary, this 30th day of November, 2000.
By /s/ David Sutherland
-------------------------------------
Its: President
ATTEST:
By: /s/ Anne Parker
--------------------------------
Its: Assistant Secretary