<PAGE>
Exhibit 3.2.1
--------------------------------------
CERTIFICATE OF DESIGNATION
OF
R.A.B. HOLDINGS, INC.
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
----------------------------------------
SERIES A PREFERRED STOCK
R.A.B. Holdings, Inc., a Delaware corporation (the "Corporation"),
hereby certifies that the following resolution has been duly adopted by the
Board of Directors of the Corporation:
RESOLVED, that pursuant to the authority expressly granted to and
vested in the Board of Directors of the Corporation (the "Board of Directors")
by the provisions of the Certificate of Incorporation of the Corporation (as
from time to time amended, the "Certificate of Incorporation"), there hereby is
created, out of the 100,000 shares of preferred stock, without par value, of the
Corporation authorized by the FOURTH Article of the Certificate of Incorporation
of the Corporation (the "Preferred Stock"), a series of the Preferred Stock of
the Corporation consisting of 25,000 shares, which series shall have the
following powers, designations, preferences and relative, participating,
optional and other special rights, and the following qualifications, limitations
and restrictions:
1. Designation. This series of preferred stock shall be designated
"Series A Preferred Stock."
2. Dividends. (a) The holders of shares of Series A Preferred Stock
shall be entitled to receive, when and as declared by the Board of Directors,
out of any funds legally available for that purpose, cumulative preferential
dividends in cash at the rate of $50 a year per share, and no more, payable
quarterly on [the last day of each March, June, July and December] in each year
(each such date being called a "Dividend Payment Date"), beginning with the
first such date following the issuance of any shares of Series A Preferred
Stock. Dividends on the shares of Series A Preferred Stock shall be cumulative
from the date of issue whether or not declared and whether or not in any
dividend period or periods there shall be net profits or net assets of the
Corporation legally available for the payment of those dividends. Accumulated
and unpaid dividends on the Series A Preferred Stock shall not bear interest.
The term "accumulated and unpaid dividends" with respect to Series A Preferred
Stock shall mean the amount of unpaid dividends on all outstanding shares of
Series A Preferred Stock from the respective dates from
<PAGE>
which those dividends shall accrue to the Dividend Payment Dates as of which
accumulated and unpaid dividends are being determined.
(a) Unless all dividends shall be declared and paid or set apart
for payment in full on all outstanding shares of Series A Preferred Stock for
all previous quarterly dividend periods and for the then current quarterly
dividend period, (i) no dividends shall be declared or paid on, and no assets
shall be distributed or set apart for, shares of the Corporation's common stock
or any other class of stock ranking junior to the shares of Series A Preferred
Stock as to dividends (other than dividends payable solely in stock ranking
junior to the shares of Series A Preferred Stock as to dividends), and (ii) no
sum or sums shall be set aside for or applied to the purchase, redemption or
other acquisition of fewer than all shares of Series A Preferred Stock then
outstanding or of any shares of the Corporation's common stock or any other
class of stock ranking on a parity with or junior to the Series A Preferred
Stock as to dividends or as to the distribution of assets upon liquidation
(except that the Corporation may purchase shares of its common stock from any
employee of the Corporation or any subsidiary of the Corporation pursuant to an
agreement between the Corporation and any such employee relating to the
employee's ownership of common stock of the Corporation).
(b) Whenever dividends are not paid in full on the shares of Series
A Preferred Stock or on any other series of preferred stock ranking on a parity
with the Series A Preferred Stock as to dividends, all dividends declared or
paid on the shares of Series A Preferred Stock and any such other series of
preferred stock shall be declared or paid pro rata, so that the ratio of the
amount of dividends per share declared or paid on the Series A Preferred Stock
to the amount of dividends per share declared or paid on such other series of
preferred stock shall be the same as the ratio of the amount of accumulated and
unpaid dividends per share on the shares of Series A Preferred Stock to the
amount of accumulated and unpaid dividends per share on such other series of
preferred stock.
3. Redemption. (a) Subject to the provisions of section 2(b) hereof,
the Corporation may, at its option, redeem all or any part of the Series A
Preferred Stock at any time and from time to time. The redemption price per
share of the Series A Preferred Stock (the "Redemption Price") shall be an
amount equal to the sum of $500 plus an amount equal to all accumulated and
unpaid dividends per share (including a prorated quarterly dividend from the
last preceding Dividend Payment Date to the Redemption Date (as defined in
section 3(b) hereof). If fewer than all the outstanding shares of Series A
Preferred Stock are to be redeemed, the redemption shall be pro rata among the
holders of Series A Preferred Stock and subject to such other provisions as may
be determined by the Board of Directors.
(a) Written notice of any redemption of shares of Series A
Preferred Stock, specifying the time and place of redemption, shall be mailed by
certified mail, return receipt requested, at least ten (10), and not more than
ninety (90), days prior to the date specified for redemption (the "Redemption
Date"), to each registered holder of the shares at such holder's last address as
it appears on the Corporation's books. If fewer than all the shares owned by any
stockholder are to be redeemed, the notice shall also specify the number of
shares that are to be redeemed and the numbers of the certificates representing
those shares. On or after the Redemption Date, each holder of shares of Series A
Preferred Stock called for redemption shall
-2-
<PAGE>
surrender to the Corporation such holder's certificates for the shares of Series
A Preferred Stock at the place specified in the notice and shall then be paid
the Redemption Price.
(b) Unless the Corporation defaults in the payment in full of the
Redemption Price, dividends on the shares of Series A Preferred Stock called for
redemption shall cease to accumulate on the Redemption Date, and all rights of
the holders of the shares by reason of their ownership of the shares shall cease
on the Redemption Date, except the right to receive the Redemption Price for the
shares on surrender to the Corporation of the certificates representing the
shares. After the Redemption Date, the shares of Series A Preferred Stock shall
not be deemed to be outstanding and shall not be transferable on the books of
the Corporation, except to the Corporation.
(c) The Corporation may, at its option, at any time after the
mailing of the notice of redemption pursuant to section 3(b), deposit the
aggregate Redemption Price payable on redemption of the shares of Series A
Preferred Stock called for redemption with a bank or trust company (the
"Depositary") having its principal office in New York, New York and having a
combined capital and surplus (as shown by its then most recent published
financial statement) of at least $50,000,000, designated by the Board of
Directors, to be held in trust by the Depositary for payment to the holders of
the shares to be redeemed. The Corporation shall then be released and discharged
from any obligation to pay the redemption price of the shares to be redeemed and
all rights of the holders of the shares by reason of their ownership of the
shares shall cease on the date of the deposit with the Depositary (the "Deposit
Date"), except the right to receive from the Depositary only, and not from the
Corporation, the amount payable upon redemption of the shares on surrender to
the Depositary of the certificates representing the shares. After the Deposit
Date, the shares shall not be transferable on the books of the Corporation,
except to the Corporation. Any money so deposited with the Depositary that is
not claimed after five (5) years from the Redemption Date shall be repaid to the
Corporation by the Depositary on demand, and the holder of any of the shares
shall thereafter look only to the Corporation for any payment to which the
holder may be entitled. Any interest accrued on money deposited with the
Depositary shall belong to the Corporation and shall be paid to the Corporation
from time to time by the Depositary on demand.
(d) Any shares of Series A Preferred Stock redeemed or purchased by
the Corporation shall be canceled and shall have the status of authorized and
unissued shares of preferred stock, without designation as to series.
4. Conversion Rights. (a) Each holder of shares of Series A Preferred
Stock shall have the right at any time, at such holder's option (except that, in
respect of any shares of Series A Preferred Stock called for redemption, such
right shall terminate at the close of business on the Redemption Date fixed for
such redemption unless the Corporation defaults in the payment of the Redemption
Price due upon the redemption), to convert any or all of such holder's shares of
Series A Preferred Stock into a number of shares of the Corporation's common
stock determined by multiplying the Formula Number (as defined in section 4(c))
by the number of shares of Series A Preferred Stock to be converted. Upon
conversion, the Corporation shall make no payment or adjustment on account of
accumulated and unpaid dividends on the converted shares except as provided in
the calculation of the Formula Number pursuant to section 4(c).
-3-
<PAGE>
(a) In order to convert shares of Series A Preferred Stock into
common stock, the holder (the "Converting Holder") of Series A Preferred Stock
shall give written notice to the Corporation at 444 Madison Avenue, Suite 601
New York, New York 10036, Attention: Senior Vice President Legal Affairs,
accompanied by the certificate or certificates for the shares to be converted.
The conversion of the shares shall become effective immediately prior to the
close of business on the date such certificate or certificates have been
received by the Corporation if such date is a business day, or if such date is
not a business day, immediately prior to the close of business on the next day
which is a business day. The person or persons entitled to receive common stock
upon conversion of shares of Series A Preferred Stock shall be treated for all
purposes as the record holder or holders of the common stock on the date on
which the conversion occurs.
(b) The term "Formula Number" means an amount determined by
dividing $500 by a conversion price (the "Conversion Price") equal to 120% of
the price to the public (without reduction for underwriting discounts or
commissions or any other expenses) of one share of common stock as set forth on
the cover page of the prospectus or prospectus supplement required to be filed
with the Securities and Exchange Commission under Rule 424(b) (as amended from
time to time) under the Securities Act of 1933, as amended, in connection with
the initial underwritten offering (the "Initial Public Offering") of shares of
the Corporation's common stock.
(c) The Conversion Price shall be subject to adjustment from time
to time after the Initial Public Offering as follows:
(1) In case the Corporation shall (i) pay a dividend or make a
distribution in shares of its capital stock (whether shares of common stock or
of capital stock of any other class) to all holders of its common stock, (ii)
subdivide its outstanding shares of common stock, (iii) combine its outstanding
shares of common stock into a smaller number of shares, or (iv) issue by
reclassification of its shares of common stock (including any such
reclassification in connection with a consolidation or merger in which the
Corporation is the continuing corporation) any shares of capital stock of the
Corporation, the Conversion Price in effect immediately prior to such action
shall be adjusted so that holders of any Series A Preferred Stock thereafter
surrendered for conversion shall be entitled to receive the number of shares of
capital stock of the Corporation which such holder would have owned immediately
following such action had such Series A Preferred stock been converted
immediately prior to the effectiveness of any adjustment on account of such
action. An adjustment made pursuant to this subsection 4(d)(1) shall become
effective immediately after the record date in the case of a dividend or
distribution and shall become effective immediately after the effective date in
the case of a subdivision, combination or reclassification. If, as a result of
an adjustment made pursuant to this subsection 4(d)(1), the holder of any Series
A Preferred Stock thereafter surrendered for conversion shall become entitled to
receive shares of two or more classes of capital stock of the Corporation, the
Board of Directors (whose determination shall be conclusive and binding) shall
determine the allocation of the adjusted price between or among shares of such
classes of capital stock.
(2) In case the Corporation shall issue rights, warrants or
options to all holders of common stock entitling them (for a period not
exceeding forty-five (45)
-4-
<PAGE>
days from the date of such issuance) to subscribe for or purchase shares of
common stock at a price per share less than the then current market price per
share (as determined pursuant to section 4(f) below) on the record date
mentioned below, the Conversion Price shall be adjusted so that the same shall
equal the price determined by multiplying the Conversion Price in effect
immediately prior to the date of issuance of such rights, warrants or options by
a fraction of which the numerator shall be the number of shares of common stock
outstanding on the date of issuance of such rights, warrants or options plus the
number of shares which the aggregate offering price of the total number of
shares so offered for subscription or purchase would purchase at such current
market price, and of which the denominator shall be the number of shares of
common stock outstanding on the date of issuance of such rights, warrants or
options plus the number of additional shares of common stock which are so
offered for subscription or purchase. Such adjustment shall become effective
immediately after the record date for the determination of stockholders entitled
to receive such rights, warrant or options.
(3) In case the Corporation shall distribute to all holders of
common stock assets (other than any cash dividend payable out of earned surplus
or retained earnings) or rights, warrants or options to subscribe (other than
those referred to in subsection 4(d)(2) above) or evidences of indebtedness,
then in each such case the Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion Price in effect
immediately prior to the date of such distribution by a fraction of which the
numerator shall be the current market price per share (determined as provided in
section 4(f) below) of the common stock on the record date mentioned below less
the then fair market value (as determined in good faith in a resolution of the
Board of Directors, which determination shall be conclusive evidence of such
fair market value) of the portion of the assets or evidences of indebtedness so
distributed or of such subscription rights, options or warrants applicable to
one share of common stock, and the denominator shall be such current market
price per share of the common stock. Such adjustment shall become effective
immediately after the record date for the determination of stockholders entitled
to receive such distribution.
(4) In case of any consolidation of the Corporation with, or
merger of the Corporation into, any other corporation (other than a
consolidation or merger in which the Corporation is the continuing corporation),
or in case of any conveyance or transfer of the property and assets of the
Corporation substantially as an entirety, each share of Series A Preferred Stock
shall be convertible into the number and kind of shares of stock and other
securities and property receivable upon such consolidation, merger, conveyance
or transfer by a holder of the number and kind of shares of the Corporation into
which such shares of Series A Preferred Stock might have been converted
immediately prior to such consolidation, merger, conveyance or transfer. The
above provisions of this subsection 4(d)(4) shall similarly apply to successive
consolidations, mergers, conveyances or transfers.
(d) No fractions of shares of common stock or scrip representing
fractions of shares shall be issued upon conversion of Series A Preferred Stock.
If any fraction of a share of common stock would, except for the provisions of
this section 4(e), be issuable on the conversion of any Series A Preferred
Stock, the Corporation shall make payment in lieu thereof of an amount in cash
equal to the current market value of such fraction (determined as provided in
section 4(f) below).
-5-
<PAGE>
(e) For the purpose of any computation under sections 4(d) and 4(e)
above, the current market price per share of common stock on any date shall be
deemed to be the average of the daily closing prices for 30 consecutive trading
days commencing 45 trading days before the date in question. The closing price
for each day shall be the last reported sale price regular way or, in case no
such reported sale takes place on such day, the average of the reported closing
bid and asked prices regular way or, in case no such reported sale takes place
on such day, the average of the reported closing bid and asked prices regular
way, in either case on the consolidated tape of the principal national
securities exchange on which the common stock is listed or admitted to trading
or, if not listed or admitted to trading on any national securities exchange the
average of the highest reported bid and lowest reported asked prices as reported
by the National Association of Securities Dealers Automatic Quotation System or,
if no so reported then as furnished by the National Quotation Bureau
Incorporation, or if not so available, the fair market price as determined by
the Board of Directors (whose good faith determination shall be conclusive and
binding).
(f) The Corporation shall pay all transfer, documentary, stamp or
other transactional taxes attributable the issuance or delivery of shares of
common stock upon conversion of any shares of Series A Preferred Stock but the
Corporation shall not be required to pay any taxes that may be payable in
respect of any transfer involved in the issuance or delivery of any shares of
common stock in a name other than that of the registered holder of shares of
Series A Preferred Stock.
(g) The Corporation shall reserve and keep available, out of its
treasury stock or authorized an unissued stock, or both, solely for the purpose
of effecting the conversion of shares of Series A Preferred Stock, a number of
shares of common stock the Corporation's Board of Directors determines to be
sufficient to effect the conversion of all shares of Series A Preferred Stock
from time to time outstanding.
5. Sinking Fund. The shares of Series A preferred Stock shall not be
entitled to the benefit of any sinking fund.
6. Voting Rights. Holders of shares of Series A Preferred Stock shall
not be entitled to vote on any matter, except as otherwise required by law or as
expressly provided in this Certificate of Designation. With respect to any
matter on which the holders of shares of Series A Preferred Stock shall be
entitled to vote, holders of shares of Series A Preferred Stock shall be
entitled to one vote for each share held.
7. Consents Required of Holders of Series A Preferred Stock. As long
as any shares of Series A Preferred Stock are outstanding, the Corporation shall
not, by amendment to the Corporation's Certificate of Incorporation, by
resolution of the Board of Directors, by consolidation of the Corporation with,
or merger of the Corporation into, another corporation, or in any other manner,
without the consent of the holders of a majority of the outstanding shares of
Series A Preferred Stock, either given by vote in person or by proxy at a
meeting called for that purpose or given in writing:
(i) authorize, or increase the authorized amount of, any class or
series of stock having preference or priority over the Series
-6-
<PAGE>
A Preferred Stock as to dividends or the distribution of assets upon
liquidation; or
(ii) materially and adversely alter any material provision of the
Series A Preferred Stock.
Notwithstanding anything to the contrary contained in this Certificate, the
Board of Directors of the Corporation from time to time without a vote of the
holders of the shares of Series A Preferred Stock, may decrease the number of
shares constituting the Series A Preferred Stock, but not below such number of
shares of Series A Preferred Stock as are actually outstanding at any such time.
8. Liquidation Rights. (a) Upon the voluntary or involuntary
dissolution, liquidation or winding-up of the Corporation, the holders of shares
of Series A Preferred Stock shall be entitled to receive out of the assets of
the Corporation, for each such share of Series A Preferred Stock, cash in an
amount equal to the sum of $500 plus an amount equal to all accumulated and
unpaid dividends per share (whether or not earned or declared) for all dividend
periods (including a prorated quarterly dividend from the last preceding
Dividend Payment Date to the date of final distribution on those shares of
Series A Preferred Stock) before any payment or distribution shall be made on
the common stock or any other class or series of stock ranking junior to the
Series A Preferred Stock upon liquidation.
(a) If the Corporation's assets available for distribution to the
holders of shares of Series A Preferred Stock upon any dissolution, liquidation
or winding-up of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full all amounts to which holders of Series A Preferred
Stock are entitled pursuant to this section 8, no such distribution shall be
made on account of any shares of any other class of stock or series of preferred
stock ranking on a parity with the shares of Series A Preferred Stock unless the
distribution is made pro rata, so that the ratio of the amount distributed per
share on the Series A Preferred Stock to the amount distributed per share on
such other class or series shall be the same as the ratio of the amount of the
liquidation preference per share of the Series A Preferred Stock to the amount
of the liquidation preference per share of such other class or series.
(b) For purposes of this section 8, the sale or other disposition
(for cash, shares of stock, securities or other consideration) of all or
substantially all the property and assets of the Corporation shall be deemed a
dissolution, liquidation or winding-up of the Corporation, but the merger or
consolidation of the Corporation into or with any other corporation into or with
the Corporation, shall not be deemed to be a dissolution, liquidation or
winding-up of the Corporation.
(c) After the payment in cash to the holders of shares of Series A
Preferred Stock of the full preferential amounts set forth above, the holders of
shares of Series A Preferred Stock as such shall have no right or claim to any
of the remaining assets of the Corporation.
-7-
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this
Certificate of Designation to be signed by its President and Chief Executive
Officer this 27th day of March, 1997.
R.A.B. HOLDINGS, INC.
By: /s/ Richard A. Bernstein
--------------------------------------
Richard A. Bernstein
President and Chief Executive Officer
-8-
