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Exhibit 4.1
CERTIFICATE OF AMENDMENT
OF
UNIFRAX CORPORATION
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UNDER SECTION 242 OF THE DELAWARE
GENERAL CORPORATION LAW
UNIFRAX CORPORATION, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"CORPORATION") DOES HEREBY CERTIFY:
1. The name of the corporation is Unifrax Corporation and the date of
filing the original Certificate of Incorporation of this corporation with the
Secretary of State of the State of Delaware was December 17, 1986. Certificates
of Amendment of the Certificate of Incorporation were filed with the Secretary
of State of the State of Delaware on April 12, 1988; February 29, 1996; and
August 7, 1997.
2. The Certificate of Incorporation of the Corporation shall be
amended to create a series of preferred stock (the "SERIES A PREFERRED STOCK")
having rights and preferences superior to the rights and preferences of the
currently outstanding preferred stock (the "SERIES B PREFERRED STOCK" and
together with the Series A Preferred Stock, the "PREFERRED STOCK") and common
stock (the "COMMON STOCK"). To effect such amendment, Article FOURTH of the
Certificate of Incorporation shall be deleted in its entirety and the following
inserted in lieu thereof:
FOURTH: The total number of shares of capital stock that the
Corporation is authorized to issue is 80,000 shares as follows:
40,000 shares of Common Stock, par value $0.01 per share; 30,000
shares of Series A Preferred Stock, par value $0.01 per share;
and 10,000 shares of Series B Preferred Stock, par value $0.01
per share. The relative rights, preferences and limitations of
the shares of each class are as follows:
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(A) SERIES A PREFERRED STOCK.
(1) VOTING RIGHTS.
(a) Except as otherwise provided by law or otherwise
set forth herein, holders of Series A Preferred Stock
shall have no right or power to vote on any question or
in any proceeding or to be represented at, to receive
notice of or to give their consent for, any meeting of
the Corporation's stockholders. On any matters on which
the holders of the Series A Preferred Stock shall be
entitled to vote, they shall be entitled to one vote
for each share held.
(b) If, on January 20 of any year (beginning with
January 20, 2001), any dividends on the Series A
Preferred Stock in respect of the immediately preceding
calendar year shall be in arrears, then during the
period (herein called the "SERIES A PREFERRED STOCK
VOTING PERIOD") commencing with such time and ending
with the time when all such arrears in dividends on the
Series A Preferred Stock shall have been paid, at any
meeting of the stockholders of the Corporation held for
the election of directors during the Series A Preferred
Stock Voting Period, the holders of a majority of the
outstanding shares of Series A Preferred Stock
represented in person or by proxy at said meeting
shall be entitled, as a class, to the exclusion of the
holders of all other classes or series of stock of the
Corporation, to elect one director of the Corporation.
During any Series A Preferred Stock Voting Period, the
Board of Directors of the Corporation shall be expanded
by one director. The remaining directors shall be
elected by the other classes or series of stock
entitled to vote therefor, at each meeting of
stockholders held for the purpose of electing
directors.
(c) At any time when such voting right shall have
vested in the holders of Series A Preferred Stock and
if such right shall not already have been initially
exercised, a proper officer of the Corporation shall,
upon the written request of any holder of record of
Series A Preferred Stock then outstanding, addressed to
the Secretary of the Corporation, call a special
meeting of holders of Series A Preferred Stock. Such
meeting shall be held at the earliest practicable date
upon the notice required for annual meetings of
stockholders at
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the place for holding annual meetings of stockholders of the
Corporation or, if none, at a place designated by the
Secretary of the Corporation. If such meeting shall not be
called by the proper officers of the Corporation within 30
days after the personal service of such written request upon
the Secretary of the Corporation, or within 30 days after
mailing the same within the United States, by registered
mail, addressed to the Secretary of the Corporation at its
principal office (such mailing to be evidenced by the
registry receipt issued by the postal authorities), then the
holders of record of 10% of Series A Preferred Stock then
outstanding may designate in writing a holder of Series A
Preferred Stock to call such meeting at the expense of the
Corporation, and such meeting may be called by such person
so designated upon the notice required for annual meetings
of stockholders and shall be held at the same place as is
elsewhere provided in this Section (A)(1)(c). Any holder of
Series A Preferred Stock that would be entitled to vote at
such meeting shall have access to the stock books of the
Corporation for the purpose of causing a meeting of
stockholders to be called pursuant to the provisions of this
Section (A)(1)(c). Notwithstanding the other provisions of
this Section (A)(1)(c), however, no such special meeting
shall be called during a period within 90 days immediately
preceding the date fixed for the next annual meeting of
stockholders.
(d) At any meeting held for the purpose of electing
directors at which the holders of Series A Preferred Stock
shall have the right to elect directors as provided herein,
shares of Series A Preferred Stock shall be required and be
sufficient to constitute a quorum of such series for the
election of directors by such series. At any such meeting or
adjournment thereof (i) the absence of a quorum of the
holders of Series A Preferred Stock shall not prevent the
election of directors other than those to be elected by the
holders of stock of such series and the absence of a quorum
or quorums of the holders of capital stock entitled to elect
such other directors shall not prevent the election of
directors to be elected by the holders of Series A Preferred
Stock and (ii) in the absence of a quorum of the holders of
any class of stock entitled to vote for the election of
directors, a majority of the holders present in person or by
proxy of such class shall have the power to
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adjourn the meeting for the election of directors that the
holders of such class are entitled to elect, from time to
time without notice (except as required by law) other than
announcement at the meeting, until a quorum shall be
present.
(e) Any directors who have been elected by holders of
Series A Preferred Stock may be removed at any time during a
Series A Preferred Stock Voting Period, either with or
without cause, by, and only by, the affirmative votes of the
holders of record of a majority of the outstanding shares of
Series A Preferred Stock given at a special meeting of such
stockholders called for that purpose, and any vacancy
thereby created may be filled during such Series A Preferred
Stock Voting Period by the holders of Series A Preferred
Stock, present in person or represented by proxy at such
meeting. Any director elected by holders of Series A
Preferred Stock who dies, resigns, or otherwise ceases to be
a director shall be replaced by the affirmative vote of the
holders of record of a majority of the outstanding shares of
Series A Preferred Stock at a special meeting of
stockholders called for that purpose.
(f) At the end of the Series A Preferred Stock Voting
Period, the holders of Series A Preferred Stock shall be
automatically divested of all voting power vested in them
under Section (A)(1)(b) of this Article FOURTH, but subject
always to the subsequent vesting hereunder of voting power
in the holders of Series A Preferred Stock in the event of
any similar cumulated arrearage in payment for dividends
occurring thereafter. The terms of all directors elected
pursuant to the provisions of Section (A)(1)(b) of this
Article FOURTH shall in all events expire at the end of the
Series A Preferred Stock Voting Period and upon such
expiration the number of directors constituting the Board of
Directors shall, without further action, be reduced by one,
subject always to the increase of the number of directors
pursuant to Section (A)(1)(b) of this Article FOURTH in case
of the future right of the holders of Series A Preferred
Stock to elect a director as provided therein.
(2) DIVIDENDS.
(a) Prior and in preference to the holders of the
Series B Preferred Stock and the Common Stock and of any
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other junior stock, the holders of shares of Series A
Preferred Stock shall be entitled to receive, when, as and
if declared by the Board of Directors out of funds legally
available for the purpose, after taking into account any
permitted revaluation of the assets of the Corporation (i)
the payment of a quarterly cumulative dividend (the "SERIES
A PREFERRED DIVIDENDS") at an annual rate as follows (such
dividend computation to be based on the Series A Preferred
Stock Liquidation Preference for each share of the Series A
Preferred Stock held by such holder): (A) 7% for the period
commencing on the date of issuance of the Series A Preferred
Stock and ending on December 31, 2001, (B) 8.5% for the
period commencing on January 1, 2002 and ending on December
31, 2002, and (C) 10% for the period commencing January 1,
2003 and continuing until all shares of Series A Preferred
Stock are redeemed in accordance with Section (A)(3) of this
Article FOURTH. The Series A Preferred Dividends, to the
extent so declared by the Board of Directors, shall be
payable in cash on March 31, June 30, September 30 and
December 31 of each year with respect to the three-month
period ending on each such date (each such date being
referred to herein as a "QUARTERLY DIVIDEND PAYMENT DATE")
commencing on December 31, 2000; PROVIDED, HOWEVER, that the
dividend otherwise due on the December 31 Quarterly Dividend
Payment Date and any other dividends not declared or paid on
any Quarterly Dividend Payment Date in that year may be
declared and paid on any day in December of that year or
January of the following year up to but no later than
January 20th.
(b) Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series A Preferred
Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares
shall be allocated pro rata on a share-by-share basis among
all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of
holders of shares of Series A Preferred Stock entitled to
receive payment of a dividend or distribution declared
thereon, which record date shall not be more than 60 days
prior to the date fixed for the payment thereof.
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(c) Subject to Section (C)(2) of this Article FOURTH,
the Corporation shall incur no liability to any holder of
the Series A Preferred Stock in connection with the failure
of the Corporation to declare or pay any Series A Preferred
Dividends.
(3) REDEMPTION.
(a) The Corporation may at any time redeem shares of
Series A Preferred Stock then outstanding by resolution of
its Board of Directors by giving notice as provided in
Section (A)(3)(b) below, at a price per share equal to the
Series A Liquidation Preference plus accrued and unpaid
dividends up to the Redemption Date (the "SERIES A
REDEMPTION PRICE").
(b) The Corporation shall deliver written notice of
each redemption of Series A Preferred Stock pursuant to
Section (A)(3)(a) to each record holder as soon as
reasonably practicable prior to the date on which such
redemption is to be made. Such written notice shall be
mailed to each holder of record of shares of Series A
Preferred Stock to be redeemed in a postage-prepaid envelope
addressed to such holders at its post office address as
shown on the records of the Corporation, notifying such
holder of the election of the Corporation to redeem such
shares, stating the date fixed for redemption thereof
(herein referred to as the "REDEMPTION DATE"), and calling
upon such holders to surrender to the Corporation on the
Redemption Date at the place designated in such notice its
certificate or certificates representing the number of
shares specified in such notice of redemption. On or after
the Redemption Date, each holder of shares of Series A
Preferred Stock to be redeemed shall present and surrender
its certificate or certificates for such shares to the
Corporation at the place designated in such notice and
thereupon the Series A Redemption Price shall be paid to or
on the order of the person whose name appears on such
certificate or certificates as the owner thereof and each
surrendered certificate shall be canceled.
(c) In case less than all the shares represented by
such certificate are redeemed, a new certificate shall be
issued representing the unredeemed shares.
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(d) From and after the Redemption Date (unless default
shall be made by the Corporation in payment of the Series A
Redemption Price) all dividends on the shares of Series A
Preferred Stock designated for redemption in such notice
shall cease to accrue, and all rights of the holders thereof
as stockholders of the Corporation, except the right to
receive the Series A Redemption Price upon the surrender of
certificates representing the same, shall cease and
terminate and such shares shall not thereafter be
transferred (except with the consent of the Corporation) on
the books of the Corporation, and such shares shall not be
deemed to be outstanding for any purpose whatsoever.
(4) REACQUIRED SHARES. Any shares of Series A Preferred
Stock purchased or otherwise acquired by the Corporation
in any manner whatsoever shall be retired an canceled
promptly after the acquisition thereof and may not be
reissued.
(5) CERTAIN RESTRICTIONS. If, on January 20 of any year
(beginning with January 20, 2001), whenever any
dividends payable on the Series A Preferred Stock in
respect of the immediately preceding calendar year are
in arrears, thereafter and until all such accrued and
unpaid dividends on shares of Series A Preferred
Stock shall have been paid in full, the Corporation
shall not:
(a) declare or pay dividends on, make any other
distributions on, any shares of stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred
Stock; or
(b) redeem, purchase or otherwise acquire for
consideration shares of any stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred
Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares for any
such junior stock in exchange for shares of any stock
of the Corporation ranking junior (either as to
dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock.
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(6) LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) Upon any liquidation, dissolution or winding up of
the Corporation, no distribution shall be made to the
holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock including, without
limitation, the Common Stock and Series B Preferred
Stock, unless, prior thereto, the holders of shares of
Series A Preferred Stock shall have received $1,000
(the "SERIES A LIQUIDATION PREFERENCE") for each share
plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to
the date of such payment.
(b) For the purpose of Section (A)(6)(a) hereof,
neither the voluntary sale, lease, conveyance, exchange
or transfer (for cash, shares of stock, securities or
other consideration) of all or substantially all the
property or assets of the Corporation, nor the merger
or consolidation of the Corporation with one or more
other corporations, shall be deemed to be a
liquidation, dissolution or winding up, voluntary or
involuntary, unless such voluntary sale, lease,
conveyance, exchange or transfer shall be in
connection with a plan of liquidation, dissolution or
winding up of the Corporation; PROVIDED, HOWEVER, that
the sale, lease, conveyance, exchange or transfer of
all or substantially all of the Corporation's assets or
the merger or consolidation of the Corporation that
results in the holders of Common Stock of the
Corporation receiving in exchange for such Common Stock
either cash or notes, debentures or other evidences of
indebtedness or obligations to pay cash or 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 Series A Preferred Stock
with respect to liquidation or dividends shall at the
election of the holder of Series A Preferred Stock be
deemed to be a voluntary liquidation, dissolution
or winding up of the affairs of the Corporation within
the meaning of Section (A)(6)(a). In the cases of
merger of consolidation of the Corporation where
holders of Common Stock receive, in exchange for such
Common Stock, common stock or preferred stock which is
junior to the Series A Preferred Stock with respect to
liquidation or dividends in the surviving entity
(whether or not the surviving
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entity is the Corporation) or preferred stock of another
entity, the Series A Preferred stock shall be deemed to be
preferred stock of such surviving entity or other entity, as
the case may be, with the same annual dividend rate and
equivalent rights to the rights set forth herein and the
merger or consolidation agreement shall expressly so
provide.
(7) ADJUSTMENT TO SERIES A LIQUIDATION PREFERENCE. If (a)
the Corporation actually pays any amount pursuant to one or
more guaranty agreements issued by the Corporation in favor
of Societe Europeenne de Produits Refractaires ("SEPR") on
account of the indebtedness outstanding under that certain
Limited Recourse Promissory Note, dated October 4, 2000,
issued by Unifrax Holding Co. in favor of SEPR in the
initial principal amount of TWENTY MILLION TWO HUNDRED
THOUSAND U.S. DOLLARS ($20,200,000) (the amount so paid
being hereinafter referred to as the "GUARANTY PAYMENT"), or
(b) the aggregate principal amount of that certain
Subordinated Promissory Note, dated October 4, 2000, issued
by the Corporation in favor of SEPR in the initial principal
amount of EIGHT MILLION U.S. DOLLARS ($8,000,000) is
increased to an amount in excess of EIGHT MILLION U.S.
DOLLARS ($8,000,000) pursuant to the provisions of the first
paragraph thereof (the "NOTE PAYMENT"), the Series A
Liquidation Preference in respect of each share of Series A
Preferred Stock shall, without further act or deed, be
immediately and permanently reduced by a pro rata portion of
the Guaranty Payment or the Note Payment, as the case
may be.
(8) CONVERSION RIGHTS. The Series A Preferred Stock shall
not be convertible.
(9) RANK. With regard to the rights to receive dividends and
distributions upon liquidation, dissolution or winding up of
the Corporation, the Series A Preferred Stock shall rank
prior to the Common Stock and the Series B Preferred Stock.
(10) AMENDMENT. The Certificate of Incorporation of the
Corporation shall not be amended in any manner that would
materially alter or change the powers, preferences or
special rights of the Series A Preferred
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Stock so as to affect them adversely without the affirmative vote
of the holders of at least a majority of the outstanding shares
of Series A Preferred Stock, voting together as a single class.
(B) SERIES B PREFERRED STOCK.
(1) VOTING RIGHTS. Except as otherwise provided by
applicable law, and subject to Section (A)(1) of this Article
FOURTH, the voting power for the election of directors and for
all other purposes shall be vested in the holders of the Series B
Preferred Stock together with the holders of the Common Stock.
The holders of the Series B Preferred Stock shall each have one
vote per share. There shall be no cumulative voting.
(2) DIVIDENDS.
(a) After the payment to each holder of the Series A
Preferred Stock of the Series A Preferred Dividends, each
holder of the Series B Preferred Stock shall be entitled to
receive, when and as declared by the Board of Directors and
from the assets of the Corporation available for the payment
of dividends under applicable law, a semi-annual cumulative
dividend (the "SERIES B PREFERRED DIVIDENDS") at the rate of
6% per annum on the amount of $1,500 (the "SERIES B
PREFERRED LIQUIDATION VALUE") for each share of the Series B
Preferred Stock held by such holder. The Series B Preferred
Dividends, to the extent so declared by the Board of
Directors, shall be payable in cash on June 30 of each year
with respect to the six-month period ending on June 30 of
such year and on December 31 of each year with respect to
the six-month period ending on December 31 of such year
(individually a "SIX-MONTH PERIOD" and collectively
"SIX-MONTH PERIODS") to holders of record of the shares of
the Series B Preferred Stock on the first day of June and
December, respectively. The Series B Preferred Dividends
shall accrue on each share of the Series B Preferred Stock
from and including the date of the original issuance of such
share (without regard to any transfer of such share on the
stock records of the Corporation) to and including the date
on which (i) such share is redeemed by the Corporation,
whether pursuant to Section (B)(3) of this Article FOURTH or
otherwise, (ii) such share is converted to Common Stock
pursuant to Section (B)(5)
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of this Article FOURTH, or (iii) a distribution is made with
respect to such share pursuant to Section (B)(4) of this
Article FOURTH.
(b) Subject to Section (C)(2) of this Article FOURTH,
the Corporation shall incur no liability to any holder of
the Series B Preferred Stock in connection with the failure
of the Corporation to declare or pay any Series B Preferred
Dividends.
(3) REDEMPTION.
(a) Subject to Section (A)(5) of this Article FOURTH,
the Corporation may redeem all, but not less than all, of
the outstanding shares of Series B Preferred Stock. Notice
of any redemption by the Corporation of Series B Preferred
Stock specifying the time and place of redemption, the
Series B Redemption Price and any conditions to be satisfied
prior to such redemption shall be mailed by certified mail,
return receipt requested, to each holder of record of shares
of the Series B Preferred Stock, at the address for such
holder shown on the Corporation's records, not more than
sixty, and not less than seven, days prior to the date on
which such redemption is to be effective. Upon mailing any
such notice of redemption, the Corporation shall, subject to
the satisfaction of all conditions set forth in such notice,
become obligated to redeem at the time of redemption
specified in such notice all outstanding shares of Series B
Preferred Stock.
(b) The redemption price for each share of Series B
Preferred Stock to be redeemed pursuant to this Article
FOURTH shall be equal to the Series B Preferred Liquidation
Value of such share, plus an amount equal to all Series B
Preferred Dividends that are unpaid on such share with
respect to any prior Six-Month Period (the "SERIES B
REDEMPTION PRICE").
(c) On or before the date set for the redemption of the
Series B Preferred Stock pursuant to this Article FOURTH,
each holder of shares of the Series B Preferred Stock shall
surrender all certificates for such shares to the
Corporation at the then principal place of business of the
Corporation and, upon doing so, shall be entitled to receive
payment of the Series B Redemption Price. All certificates
surrendered for redemption shall
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be duly endorsed, or shall be accompanied by separate stock
transfer powers duly endorsed, for transfer to the
Corporation.
(4) LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) After the payment to the holders of the Series A
Preferred Stock of the Series A Liquidation Preference for
each share plus an amount equal to all accrued and unpaid
dividends thereon to the date of such payment, the holders
of the Series B Preferred Stock shall be entitled, before
any payment or other distribution is made to the holders of
the Common Stock in connection with such liquidation,
dissolution or winding up, to be paid from the assets of the
Corporation legally available therefor, an amount in cash
equal to the Series B Preferred Liquidation Value for each
share of the Series B Preferred Stock, plus an amount equal
to all Series B Preferred Dividends that are unpaid on such
share with respect to any prior Six-Month Period as of the
date of such payment.
(b) To the extent the assets of the Corporation legally
available for distribution in the event of a liquidation,
dissolution or winding up of the Corporation are
insufficient to pay in full the Series B Preferred
Liquidation Value, plus an amount equal to all Series B
Preferred Dividends that are unpaid with respect to any
prior Six-Month Period as of the date of such payment, for
all shares of the Series B Preferred Stock, the Corporation
shall pay to the holders of the Series B Preferred Stock a
pro rata amount of the Series B Preferred Liquidation Value.
(c) Neither the sale or other transfer of all or
substantially all of the assets of the Corporation to, nor
the merger or consolidation of the Corporation into or with,
any other entity shall not be deemed a liquidation,
dissolution or winding up of the Corporation for the
purposes of this Section (B)(4).
(5) CONVERSION RIGHTS.
(a) Subject to Section (B)(5)(c) of this Article
FOURTH, shares of the Series B Preferred Stock shall be
convertible into fully paid and non-assessable shares of the
Common Stock for each share of the Series B
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Preferred Stock. A holder of any shares of the Series B
Preferred Stock may convert such shares to shares of the
Common Stock upon (i) giving notice in writing to the Board
of Directors of the election to so convert and (ii)
surrendering all certificates for such shares to the Board
of Directors duly endorsed, or accompanied by separate stock
powers duly endorsed, for transfer to the Corporation. If
the Corporation redeems any shares of the Series B Preferred
Stock, whether pursuant to this Article FOURTH or otherwise,
such right of conversion shall terminate, as to the shares
so redeemed, upon payment of the Series B Redemption Price.
In the event of the liquidation, dissolution or winding up
of the Corporation, such right of conversion shall terminate
at the close of business on the tenth business day prior to
the date set for the first distribution to the holders of
the Series B Preferred Stock.
(b) Upon any conversion of shares of the Series B
Preferred Stock into shares of Common Stock pursuant to this
Article FOURTH, a holder of the Series B Preferred Stock
shall continue to be entitled to receive, when and as
declared by the Board of Directors and from the assets of
the Corporation available therefor, dividends that are
unpaid as of the date of such conversion with respect to any
prior Six-Month Period on the shares of the Series B
Preferred Stock so converted; PROVIDED, HOWEVER, that no
other payment shall be made in connection with such
conversion.
(c) The number of shares of Common Stock into which
each share of the Series B Preferred Stock is convertible
pursuant to Section (B)(5)(a) of this Article FOURTH shall
be subject to adjustment from time to time as follows:
(i) If the Corporation shall (A) declare a
dividend on the Common Stock payable in shares of the
Common Stock, (B) subdivide the outstanding shares of
the Common Stock, (C) combine the outstanding shares of
the Common Stock into a smaller number of shares, or
(D) issue by reclassification of the Common Stock any
shares of the Corporation, each holder of the Series B
Preferred Stock shall thereafter be entitled upon a
conversion pursuant to this Section (B)(5) to receive
for each share of the
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Series B Preferred Stock the number of shares of the
Common Stock of the Corporation that he, she or it
would have owned or been entitled to receive after the
occurrence or any event described in clauses (A) (B),
(C) and (D) of this sentence had such share been
converted immediately prior to the occurrence of such
event. Such adjustment shall become effective
immediately after the close of business on the record
date for such dividend or the date upon which any
subdivision, combination or reclassification shall
become effective.
(ii) If the Corporation shall (A) merge or
consolidate into or with another entity or (B) sell or
otherwise transfer all or substantially all of its
assets, each share of the Series B Preferred Stock then
outstanding shall thereafter be convertible pursuant to
this Section (B)(5) into the kind and amount of
securities, cash and other assets received by a holder
of the number of shares of Common Stock into which such
share could have been converted immediately prior to
the occurrence of any event described in clauses (A)
and (B) of this sentence, and shall have no other
conversion rights.
(iii) Whenever any adjustment is required in the
share of Common Stock into which each share of the
Series B Preferred Stock is convertible pursuant to
Sections (B)(5)(c)(i) and (B)(5)(c)(ii) of this Article
FOURTH, the Corporation shall maintain, at its
principal place of business, a statement describing in
reasonable detail such adjustment and the method of
calculation used in calculating such adjustment.
(iv) The Corporation shall at all times reserve
and keep available out of the authorized but unissued
shares of the Common Stock the full number of shares of
the Common Stock into which all shares of the Series B
Preferred Stock from time to time outstanding are
convertible pursuant to this Section (B)(5).
Notwithstanding the immediately preceding sentence,
shares of the Common Stock held in the treasury of the
Corporation may, in the
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discretion of the Corporation, be reissued in
connection with any such conversion of shares of the
Series B Preferred Stock pursuant to this Section (B
(5).
(v) Shares of the Series B Preferred Stock
converted into Common Stock shall have the status of
authorized but unissued sharers of Series B Preferred
Stock and such shares may be reissued by the
Corporation as shares of Series B Preferred Stock.
(C) COMMON STOCK.
(1) VOTING RIGHTS. Except as otherwise provided by
applicable law, the voting power for the election of directors
and for all other purposes shall be vested in the holders of the
Common Stock together with the Series B Preferred Stock. The
holders of the Common Stock shall have one vote per share. There
shall be no cumulative voting.
(2) DIVIDENDS. If the Series A Preferred Dividends and
Series B Preferred Dividends (collectively, the "PREFERRED
DIVIDENDS") are not in arrears, the Board of Directors may, but
shall not be required to, declare and pay dividends on the Common
Stock, such dividends to be payable in an equal amount per share
of Common Stock from the assets of the Corporation available for
the payment of dividends under applicable law; PROVIDED, HOWEVER,
that no such dividends shall be declared and paid on the Common
Stock of the Corporation unless all Preferred Dividends shall
have been paid on each share of the Preferred Stock.
(3) LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) After the payment to the holders of the Series A
Preferred Stock of the Series A Liquidation Preference for
each share plus an amount equal to all accrued and unpaid
dividends thereon to the date of such payment, and the
payment to the holders of Series B Preferred Stock of the
Series B Preferred Liquidation Value plus an amount equal to
all accrued and unpaid dividends thereon to the date of such
payment, the holders of the Common Stock shall be entitled,
to the exclusion of the holders of the Preferred Stock, to
receive, equally on a
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share-for-share basis, all of the remaining assets of the
Corporation available for distribution to its stockholders.
(b) Neither the sale or other transfer of all or
substantially all of the assets of the Corporation to, nor
the merger or consolidation of the Corporation into or with,
any other entity shall be deemed a liquidation, dissolution
or winding up of the Corporation for the purposes of this
Section (C)(3).
3. Pursuant to sec. 242(b)(1) of the Delaware General
Corporation Law, the Board of Directors of the Corporation duly
adopted a resolution setting forth the amendment to the
Certificate of Incorporation being adopted in this Certificate,
declaring its advisability and calling a special meeting of the
stockholders of the Corporation entitled to vote in respect
thereof for the consideration of such amendment. Such amendment
has been duly adopted by the unanimous written consent of the
stockholders of the Corporation in accordance with Sections 228
and 242(b) of the Delaware General Corporation Law.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by William P. Kelly, its President, and Mark D. Roos, its Secretary, on
the 4th day of October, 2000.
UNIFRAX CORPORATION
By: /s/ William P. Kelly
------------------------------------
Name: William P. Kelly
Title: President and CEO
Attest:
By: /s/ Mark D. Roos
------------------------------------
Name: Mark D. Roos
Title: Vice President, CFO and Secretary
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