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EXHIBIT 3.05
FIREARMS TRAINING SYSTEMS INC.
CERTIFICATE OF DESIGNATION OF SERIES B PREFERRED STOCK SETTING FORTH
THE POWERS, PREFERENCES, RIGHTS, QUALIFICATIONS, LIMITATIONS AND
RESTRICTIONS OF SUCH SERIES OF PREFERRED STOCK
Pursuant to Section 151 of the General Corporation Law of the State of
Delaware
FIREARMS TRAINING SYSTEMS, INC. (hereinafter referred to as
the "Corporation"), a corporation organized and existing under the General
Corporation Law of the State of Delaware, in accordance with the provisions of
Section 151 of the General Corporation Law of the State of Delaware, as amended
(the "Delaware Code"), DOES HEREBY CERTIFY THAT, pursuant to authority conferred
by Article Fourth of the Restated Certificate of Incorporation of the
Corporation, the Board of Directors of the Corporation has adopted a resolution
providing for the issuance of a series of preferred stock of the Corporation
consisting of 50,000 shares designated "Series B Preferred Stock," which
resolution is as follows:
RESOLVED, that pursuant to the authority vested in
the Board of Directors of Firearms Training Systems,
Inc., a Delaware corporation (the "Corporation"), by
Article Fourth of the Restated Certificate of
Incorporation of the Corporation, the Board does
hereby create, provide for and approve a series of
preferred stock, par value $.10 per share, of the
Corporation (the "Preferred Stock") to be designated
"Series B Preferred Stock" (such series being herein
called the "Series B Preferred Stock"), consisting
of 50,000 shares of the presently authorized but
unissued shares of Preferred Stock, and does hereby
fix and herein state and express the designations,
powers, preferences and relative, participating,
optional and other special rights, and the
qualifications, limitations and restrictions of the
Series B Preferred Stock as follows:
Section 1. Dividends.
(a) The holders of shares of Series B Preferred Stock
shall be entitled to receive cumulative dividends on the shares of Series B
Preferred Stock from their date of issue at the rate of 10% of the liquidation
preference per share per year (subject to increase during the continuance of a
Restriction Event as provided in Section 3 hereof), payable quarterly on the
last day of each of March, June, September and December (each, a "Quarterly
Dividend Payment Date"), commencing September 30, 2000 (except that if any such
date is a Saturday, Sunday or legal holiday, then such dividend shall be payable
on the next day that is not a Saturday, Sunday or legal holiday), in each year
with respect to the quarterly dividend period (or portion thereof) ending on
such Quarterly Dividend Payment Date. Such dividends shall be payable in
additional shares of Series B Preferred Stock (or fractions thereof) (except
that the Corporation may pay cash in lieu of any fractional shares) valued at
the liquidation preference per share. The amount of dividends payable for the
initial dividend period and any period shorter than a full quarterly
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dividend period shall be computed on a pro rata basis, based on the number of
days elapsed on the basis of a 360-day year comprised of twelve 30-day months;
provided, that, unless and until otherwise requested by any holder on reasonable
notice, certificates for such dividended shares need not be delivered but the
Corporation shall record the issuance thereof in the stock ledger and shall for
all purposes treat such dividended shares as outstanding.
(b) On each Quarterly Dividend Payment Date, all
dividends which shall have accrued on each share of Series B Preferred Stock
outstanding on (and on each share of Series B Preferred Stock issuable in
respect of accrued and unpaid dividends that should, pursuant to the provisions
of this Certificate of Designations, have been declared and paid prior to) such
date shall accumulate and shall be deemed to have become due. From and after
the-date of payment, the shares issued shall accrue cumulative dividends at the
rate of 10% of the liquidation preference per share per year (subject to
increase as provided in Section 3 hereof), in each case, payable quarterly in
additional shares of Series B Preferred Stock as hereinabove set forth.
(c) No dividends or other distributions, other than
dividends payable solely in shares of common stock or other capital stock of the
Corporation ranking (upon liquidation and winding-up, as to dividends and as to
any other distribution of assets other than by way of dividends) junior to the
Series B Preferred Stock, shall be paid, or declared and set apart for payment
by the Corporation in respect of any shares of capital stock of the Corporation
ranking (upon liquidation and winding-up, as to dividends or as to any other
distribution of assets) junior to or on a parity with the Series B Preferred
Stock, and no purchase, redemption or other acquisition shall be made by the
Corporation or any of its subsidiaries of any shares of such junior or parity
stock, unless and until all accrued and unpaid dividends on the Series B
Preferred Stock, including the full dividend for the then current dividend
period, shall have been declared and paid.
(d) The Corporation covenants that it will at all times
reserve and keep available, free from preemptive rights, out of the aggregate of
its authorized but unissued shares of Series B Preferred Stock for the purpose
of paying dividends on the Series B Preferred Stock, the full number of shares
of Series B Preferred Stock issuable as if all dividends from the date hereof
through and including March 31, 2004 were paid at the rate that would apply if a
Restriction Event had occurred and was continuing, which number as of the date
hereof is 10,950 shares of Series B Preferred Stock.
(e) The Corporation shall pay any and all documentary
stamp or similar issue or transfer taxes payable in respect of the issue or
delivery of shares in respect of dividends on the Series B Preferred Stock
pursuant hereto.
Section 2. Voting Rights.
In addition to any voting rights provided by law, the holders
of shares of Series B Preferred Stock shall have the following voting rights:
(a) So long as any shares of Series B Preferred Stock are
outstanding, subject to the provisions of Section 275(c) of the Delaware Code,
the Corporation shall not, without consent of the holders of at least a majority
of the number of shares of Series B Preferred Stock
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at the time outstanding, given in person or by proxy, either in writing or by
vote at a special meeting called for the purpose, enter into any plan of
liquidation or dissolution or otherwise effect the voluntary liquidation,
dissolution or winding up of the Corporation unless (i) the Corporation gives
the holders of the Series B Preferred Stock not less than 30 days prior written
notice of such plan and (ii) as a result of such liquidation, dissolution or
winding-up, the liquidation preference on the Series B Preferred Stock is
satisfied in full pursuant to Section 4 herein.
(b) Except as otherwise required by applicable law, the
consent of a majority of the number of shares of Series B Preferred Stock at the
time outstanding, given in person or by proxy, either in writing or by vote, at
a special or annual meeting, shall be necessary to (i) authorize or issue, or
obligate the Corporation to issue, any other capital stock or security or right
convertible or exchangeable for capital stock of the Corporation that is senior
to or on a parity with the Series B Preferred Stock as to rights upon
liquidation and winding-up, as to dividends or as to any other distribution of
assets; (ii) increase the authorized number of shares of Series B Preferred
Stock; (iii) enter any agreement, contract or understanding or otherwise incur
any obligation which by its terms would violate or be in conflict with the
rights of the holders of Series B Preferred Stock hereunder; (iv) amend or waive
any provision of this Certificate of Designation; or (v) amend any other
provision of the certificate of incorporation of the Corporation as in effect on
the date hereof, if such amendment would adversely affect the rights of the
holders of the Series B Preferred Stock in any material respect.
(c) Whenever, at any time or times, the Corporation shall
default in its obligation to redeem the Series B Preferred Stock pursuant to and
in accordance with the provisions contained in Section 5 of this Certificate of
Designations ("Redemption Defaults"), the holders of Series B Preferred Stock
shall have the exclusive right, voting separately as a class, to elect one
director of the Corporation at the Corporation's next annual meeting of
stockholders and at each subsequent annual meeting of stockholders; provided,
however, that if such voting rights shall become vested more than 90 days or
less than 20 days before the date prescribed for such meeting of stockholders,
thereupon the holders of the shares of Series B Preferred Stock shall be
entitled to exercise their voting rights at a special meeting of the holders of
Series B Preferred Stock as hereinafter set forth. At such meeting, each holder
of Series B Preferred Stock shall be entitled to one vote for each share of
Series B Preferred Stock held. Upon the vesting of such right of the holders of
Series B Preferred Stock, the maximum authorized number of members of the Board
of Directors of the Corporation shall automatically be increased by one, and the
vacancy so created shall be filled by vote of the holders of outstanding Series
B Preferred Stock as hereinabove set forth. The right of holders of Series B
Preferred Stock, voting separately as a class, to elect members of the Board of
Directors as aforesaid shall continue until such time as all Redemption Defaults
shall have been cured, at which time such right shall terminate, except as
herein or by law expressly provided, subject to reversing in the event of each
and every subsequent Redemption Default. Whenever such voting right shall have
vested, such right may be exercised initially either as provided above, at a
special meeting of the holders of Series B Preferred Stock called as hereinafter
provided, or at any annual meeting of stockholders, and thereafter at such
meetings or by the written consent of such holders pursuant to Section 228 of
the Delaware Code.
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At any time when such voting right shall have vested in the
holders of Series B Preferred Stock entitled to vote thereon, and if such right
shall not already have been initially exercised, an officer of the Corporation
shall, upon the written request of holders of record of 10%, in the aggregate,
of the shares of Series B Preferred Stock then outstanding, addressed to the
Chief Financial Officer of the Corporation, call a special meeting of holders of
shares of Series B Preferred Stock. Such meeting shall be held at the earliest
practicable date upon the notice required for annual meetings of stockholders at
the place for holding annual meetings of stockholders of the Corporation or, if
none, at a place designated by the Chief Financial Officer 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 Chief
Financial Officer of the Corporation, or within 30 days after mailing the same
within the United States, by registered mail, addressed to the Chief Financial
Officer 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 the shares of Series B Preferred Stock then outstanding may
designate in writing any person 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 paragraph. Any holder of shares of
Series B Preferred Stock then outstanding that would be entitled to vote at such
meeting shall have access to the stock record books of the Corporation for the
purpose of causing a meeting of stockholders to be called pursuant to the
provisions of this paragraph. Notwithstanding the provisions of this paragraph,
however, no such special meeting shall be called or held during a period within
45 days immediately preceding the date fixed for the next annual meeting of
stockholders.
The directors elected pursuant to this Section 2(c) shall
serve until the next annual meeting or until their respective successors shall
be elected and shall qualify. Any director elected by the holders of Series B
Preferred Stock may be removed by, and shall not be removed otherwise than by,
the vote of the holders of a majority of the outstanding shares of Series B
Preferred Stock who were entitled to participate in such election of directors,
voting as a separate class, at a meeting called for such purpose or by written
consent as permitted by law and the certificate of incorporation and by-laws of
the Corporation. If the office of the director elected by the holders of Series
B Preferred Stock, voting as a class, becomes vacant by reason of death,
resignation, retirement, disqualification or removal from office or otherwise,
such vacancy shall only be filled by the holders of Series B Preferred Stock
voting as a class as herein provided. Upon any termination of the right of the
holders of Series B Preferred Stock to elect directors as herein provided, the
term of office of the director then in office elected by the holders of Series B
Preferred Stock, voting as a class, shall terminate immediately. Whenever the
term of office of the director elected by the holders of Series B Preferred
Stock, voting as a class, shall so terminate and the special voting powers
vested in the holders of Series B Preferred Stock shall have expired, the number
of directors shall automatically be reduced to such number as may be provided
for pursuant to the by-laws of the Corporation irrespective of any increase made
pursuant to the provisions of this Section 2(c).
Section 3. Certain Restrictions.
In case of the happening of any of the following events (each
a "Restriction Event"):
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(a) the Corporation shall not have redeemed all shares of
the Series B Preferred Stock when required pursuant to this Certificate of
Designation, or the Corporation shall breach in any material respect any of its
other obligations under this Certificate of Designations and such breach shall
have continued for ten (10) days after notice thereof by any holder of Series B
Preferred Stock;
(b) a default or breach shall occur and be continuing
under any other agreement, bond, guaranty, document or instrument to which the
Corporation or any of its subsidiaries is a party relating to indebtedness for
borrowed money incurred by it which is not cured within any applicable grace
period, and such default or breach (I) involves the failure to make any payment
of principal, premium or interest when due in respect of such indebtedness or
(II) results in the acceleration of such indebtedness prior to its express
maturity and, in each case the principal amount of such indebtedness, together
with the principal amount of any other indebtedness as to which there has been
such a payment default or the maturity of which has been accelerated, aggregates
$2,000,000 or more; or
(c) a case or proceeding shall have been commenced
against the Corporation seeking a decree or order in respect of the Corporation
(I) under Title 11 of the United States Code, as now constituted or hereafter
amended or any other applicable federal, state or foreign bankruptcy, insolvency
or other similar law for the relief or reorganization of debtors, (II)
appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator
(or similar official) for the Corporation or of any substantial part of the
Corporation's assets or (III) ordering the winding-up or liquidation of the
affairs of the Corporation, and such case or proceeding shall remain undismissed
or unstayed for sixty (60) days or more or such court shall enter a decree or
order granting the relief sought in such case or proceeding;
then, until the termination of such Restriction Event: (A) in the case of any
Restriction Event described in Section 5(a), the dividend rate set forth in
Section 1 shall be increased to 12% per annum, payable quarterly; and (B) in the
case of any other Restriction Event, the Corporation shall not declare or pay
dividends on, or make any other distributions of cash, properties or securities
of the Corporation on or with respect to any shares of, or redeem or purchase or
otherwise acquire for consideration (or make any sinking fund, purchase fund or
other similar payments in respect of) any shares of capital stock of the
Corporation ranking (upon liquidation and winding-up, as to dividends or as to
any other distribution of assets other than by way of dividends) junior to or on
a parity with the Series B Preferred Stock, provided that the Corporation may at
any time redeem, purchase or otherwise acquire shares of capital stock ranking
on parity with the Series B Preferred Stock in exchange for shares ranking
junior to the Series B Preferred Stock. The Corporation shall not permit any
subsidiary of the Corporation to make any payment in respect of, or otherwise
acquire for consideration, any shares of capital stock of the Corporation unless
the Corporation could, pursuant to this Section 3, make such payment or
acquisition at such time and in such manner.
Section 4. Liquidation Preference.
In the event of a liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, the holders of Series B
Preferred Stock shall be entitled to receive out of the assets of the
Corporation, whether such assets are stated capital or surplus of
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any nature, an amount equal to $1,000 per share, plus the amount of any accrued
and unpaid dividends or distributions payable pursuant to Section 1 hereinabove.
Such payments shall be made before any payment shall be made or any assets
distributed to the holders of any class or series of the common stock of the
Corporation or any other class or series of the Corporation's capital stock
ranking junior as to liquidation rights to the Series B Preferred Stock. Neither
a consolidation, merger or other business combination of the Corporations assets
for cash, securities or other property shall be considered a liquidation,
dissolution or winding up of the Corporation for purposes of this Section 4
(unless in connection therewith the liquidation of the Corporation is
specifically approved by the holders of the Series B Preferred Stock).
Section 5. Redemption.
(a) The Series B Preferred Stock shall not be subject to
optional redemption by the Corporation or the operation of any sinking fund.
(b) On March 31, 2003 or if either (i) the maturity date
of the bank senior secured notes issued pursuant to the Second Amended and
Restated Credit Agreement and Partial Exchange Agreement dated as of April 1,
2000 among Firearms Training Systems, Inc., FATS, Inc. and Bank of America, N.A.
(the "Bank Senior Secured Notes"), shall have been extended, or (ii) the
maturity date of the Centre Senior Secured Notes issued pursuant to the Credit
Agreement dated as of April 1, 2000 among the Company and the Lenders named
therein (the "Centre Senior Secured Notes" and together with the Bank Senior
Secured Notes, the "Senior Secured Debt") shall have been extended, on the
latest maturity date that any of the Senior Secured Debt shall become due and
payable (the "Redemption Date"), the Corporation shall redeem all shares of
Series B Preferred Stock that are then outstanding and all shares of Series B
Preferred Stock issuable in respect of accrued but unpaid dividends, in each
case, at a redemption price per share equal to the liquidation preference
thereof, payable in cash. Not more than sixty (60) nor less than thirty (30)
days prior to the Redemption Date, notice by first class mail, postage prepaid,
shall be given to each holder of record of the Series B Preferred Stock, at such
holder's address as it shall appear upon the stock transfer books of the
Corporation. Each such notice of redemption shall be irrevocable and shall
specify the date that is the Redemption Date, the redemption price, the
identification of the shares to be redeemed, the place or places of payment and
that payment will be made upon presentation and surrender of the certificate(s)
evidencing the shares of Series B Preferred Stock to be redeemed. On or after
the Redemption Date, each holder of shares of Series B Preferred Stock shall
surrender the certificate(s) evidencing such shares to the Corporation at the
place designated in such notice and shall thereupon be entitled to receive
payment of the redemption price in the manner set forth in the notice. If, on
the Redemption Date, funds in cash in an amount sufficient to pay the aggregate
redemption price for all outstanding shares of Series B Preferred Stock shall be
available therefor and shall have been irrevocably set aside and deposited with
a bank or trust company in trust for purposes of payment of such redemption
price, then, notwithstanding that the certificates evidencing any shares so
called for redemption shall not have been surrendered, the shares shall no
longer be deemed outstanding, the holders thereof shall cease to be
stockholders, and all rights whatsoever with respect to the shares so called for
redemption (except the right of the holders to receive the redemption price upon
surrender of their certificates therefor) shall terminate. If at the Redemption
Date, the Corporation does not have sufficient funds legally available to redeem
all of the outstanding shares of Series B Preferred Stock, the Corporation
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shall take all measures permitted under the Delaware Code to increase the amount
of its capital and surplus legally available, and the Corporation shall purchase
as many shares of Series B Preferred Stock as it may legally redeem, ratably
from the holders thereof in proportion to the number of shares held by them, and
shall thereafter, whenever it shall have funds available therefor, redeem as
many shares of Series B Preferred Stock as it legally may until it has redeemed
all of the outstanding shares of Series B Preferred Stock.
Section 6. Ranking.
All shares of Series B Preferred Stock shall rank, as to
distribution of assets upon liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, prior to all classes and series
of the Corporation's now or hereafter issued Preferred Stock or common stock.
Section 7. Notice.
All notices hereunder shall be in writing.
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IN WITNESS WHEREOF, this Certificate of Designations has been
signed by the undersigned as of the 24th day of August, 2000.
FIREARMS TRAINING SYSTEMS, INC.
By: /s/ Robert F. Mecredy
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Name: Robert F. Mecredy
Title: CEO and President
Attest:
/s/ John A. Morelli
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Name: John A. Morelli
Title: Secretary
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