<PAGE> 1
Exhibit (a)
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MCCO CORP.
The undersigned, a Vice President of MCCO Corp. (the "Corporation"), a
corporation organized and existing under the provisions of the Business
Corporation Act of the State of New Jersey (the "Business Corporation Act"),
does hereby certify that:
The Corporation was originally incorporated under the name MCCO Corp.,
and the original Certificate of Incorporation of the Corporation was filed with
the Secretary of State of New Jersey on June 22, 1989;
This Amended and Restated Certificate of Incorporation has been duly
adopted by the shareholders of the Corporation by unanimous written consent on
August , 2000;
This Amended and Restated Certificate of Incorporation has been duly
adopted in accordance with the provisions of Sections 14A:9-5 of the Business
Corporation Act; and
The text of the Certificate of Incorporation of the Corporation is
hereby amended and restated to read in full as follows:
ARTICLE I
Name
The name of the Corporation is Readington Holdings, Inc.
ARTICLE II
Registered Office and Agent
The address of the registered office of the Corporation in the State of
New Jersey is 800 Scudders Mill Road, Plainsboro, New Jersey 08536. The name of
the Corporation's registered agent at such address is Terry K. Glenn.
<PAGE> 2
ARTICLE III
Purpose and Powers
The purpose or purposes for which the Corporation is formed is to act
as a closed-end, management investment company under the federal Investment
Company Act of 1940, as amended and in effect from time to time (the "Investment
Company Act"), and to exercise and enjoy all powers, rights and privileges
granted to, or conferred upon, corporations by the Business Corporation Act as
the same exists or may hereafter be amended. The Corporation shall elect to be
treated as a regulated investment company (a "RIC"), as defined in Section 851
of the Internal Revenue Code of 1986, as amended (the "Code"), for U. S. federal
income tax purposes and its fiscal year shall end on November 30.
ARTICLE IV
Capital Stock
(a) Authorized Capital. The total number of shares of all classes of
capital stock which the Corporation shall have authority to issue is 624,626
shares, of which (i) 5,000 shares shall be shares of Class A Senior Stock, each
such share having a par value of $1,000 (the aggregate par value of the Class A
Senior Stock being $5 million), and (ii) 619,626 shall be shares of Class B
Junior Stock, each such share having a par value of $1,000 (the aggregate par
value of the Class B Junior Stock being $619,626,000.
The Board of Directors may not change the designations, rights, preferences,
limitations, description, terms and number of shares in any class or series for
which shares have theretofore been issued.
(b) Class A Senior Stock. The designations and the powers, preferences
and rights, and the qualifications, limitations or restrictions thereof, of the
Class A Senior Stock shall be governed by the following provisions:
(i) Dividends. The holders of the Class A Senior Stock shall be
entitled to receive, when and as declared by the Board of Directors out of
funds legally available therefor, cash dividends on the Class A Senior
Stock, at the rate of 6.596 percent of the par amount per annum on the
basis of a year of 360 days (the "Base Rate"), payable monthly, plus such
additional amount, being the excess, if any, of Income Available for Class
A Dividends (as hereinafter defined) for such fiscal year over the amount
required to pay dividends for such year at the Base Rate on the Class A
Senior Stock, payable annually, and the holders of the Class A Senior
Stock shall be entitled to no further dividends.
Dividends on the Class A Senior Stock at the Base Rate shall be
cumulative from the date of issue of such shares and shall be payable
monthly. In addition, the Board of
-2-
<PAGE> 3
Directors shall, if it determines during any fiscal year that there will be
Income Available for Class A Dividends for such fiscal year in excess of the
amount required to pay dividends on the Class A Senior Stock at the Base Rate,
declare and pay such amount effective at the end of such year. None of the
foregoing provisions with respect to the declaration and payment of excess
Income Available for Class A Dividends over the Base Rate shall be construed to
increase the Base Rate (which shall be the amount stated in the preceding
paragraph). The excess dividend portion of the Class A Senior Stock dividend
will be deemed to have been paid to the holders of the Class A Senior Stock to
the extent of any consent dividend, within the meaning of Section 565 of the
Code, declared by the Board of Directors in favor of the holders of the Class A
Senior Stock.
The term "Income Available for Class A Dividends" shall mean an amount
equal to the investment company taxable income of the Corporation
determined in accordance with Section 852(a)(1) of the Code or any similar
successor provision for the fiscal year, as determined by or at the
direction of the Board of Directors, in excess of $41,507,000.
The holders of the Class B Junior Stock shall not be entitled to
receive any dividends until after (a) all accumulated dividends on the
Class A Senior Stock shall have been fully paid or set apart for payment,
whether or not earned or declared, (b) all Base Rate dividends on the
Class A Senior Stock for the current and all preceding dividend periods
shall have been paid or set apart for payment, and (c) all other
previously declared dividends on the Class A Senior Stock for the current
and all preceding dividend periods of the current fiscal year shall have
been paid or set apart for payment.
(ii) Liquidation. On any voluntary or involuntary liquidation or
dissolution of the Corporation, before any distribution may be made to the
holders of shares of any other class of stock, and after the payment of
all debts, the holders of the Class A Senior Stock shall be entitled to
receive $10,000,000 plus an amount equal to all unpaid accumulated
dividends on the Class A Senior Stock (the "Priority Distribution"),
whether or not earned or declared, before anything shall be paid to or on
account of the Class B Junior Stock. All remaining cash or assets in
excess of the Priority Distribution will be distributed to the holders of
the Class B Junior Stock without limitation.
(iii) Conversion. The holders of shares of Class A Senior Stock shall
not have any rights to convert such shares into shares of any other class
or series of capital stock of the Corporation.
(iv) Redemption. Holders of Class A Senior Stock shall have no
redemption or preemptive rights and are not liable for calls or
assessments.
(v) Asset Coverage. Immediately after the issuance of the Class A
Senior Stock, such Class A Senior Stock must have an asset coverage (as
defined in Section 18(h) of the Investment Company Act) of at least 200
percent and no declaration of any
-3-
<PAGE> 4
dividend, or of any other distribution, on the Class B Junior Stock or
any purchase or redemption of Class B Junior Stock will be permitted,
unless in every such case the Class A Senior Stock has at the time of
the declaration of any dividend or distribution or at the time of such
purchase an asset coverage of at least 200 per cent after deducting the
amount of such dividend, distribution or purchase or redemption price
as the case may be.
(c) Class B Junior Stock. The designations and the powers, preferences
and rights, and the qualifications, limitations or restrictions thereof, of the
Class B Junior Stock shall be governed by the following provisions:
(i) Dividends. After (a) all accumulated dividends on the Class A
Senior Stock shall have been fully paid or set apart for payment, whether
or not earned or declared, (b) all Base Rate dividends on the Class A
Senior Stock for the current and all preceding dividend periods shall have
been paid or set apart for payment, and (c) all other previously declared
dividends on the Class A Senior Stock for the current and all preceding
dividend periods of the current fiscal year shall have been paid or set
apart for payment, the holders of the Class B Junior Stock shall be
entitled to receive dividends, if, as and when such dividends shall be
declared by the Board of Directors, out of any funds of the Corporation
legally available for the payment of such dividends.
(ii) Liquidation. On any voluntary or involuntary liquidation or
dissolution of the Corporation, the holders of the Class B Junior Stock
shall not be entitled to any payment or distribution until the amount to
which the holders of the Class A Senior Stock are entitled on such event
has been paid or set apart for them. Thereafter, the holders of the Class
B Junior Stock shall be entitled to receive all of the remaining assets of
the Corporation available for distribution to its shareholders without
limitation.
(iii) Conversion. The holders of shares of Class B Junior Stock shall
not have any rights to convert such shares into shares of any other class
or series of capital stock of the Corporation.
(iv) Redemption. Holders of Class B Junior Stock shall have no
redemption or preemptive rights and are not liable for calls or
assessments.
(d) Voting Rights
(i) Number of Votes. Each share of Class A Senior Stock and each share
of Class B Junior Stock will have one vote. The Class A Senior Stock and
the Class B Junior Stock will vote together as a single class on all
matters except as provided in paragraph (ii) below and in Article V.
(ii) Special Class A Senior Stock Voting Rights. In addition to any
separate voting rights provided by the Business Corporation Act, approval
of a majority vote of
-4-
<PAGE> 5
the outstanding shares of Class A Senior Stock, each share having one
vote, voting as a class, is required of (A) any plan of reorganization
adversely affecting the Class A Senior Stock or (B) any action
requiring a vote of security holders as specified in Section 13(a) of
the Investment Company Act.
(e) Subdivision of Shares
The Corporation shall not in any manner subdivide (by any stock split,
stock dividend, reclassification, recapitalization or otherwise) or combine (by
reverse stock split, reclassification, recapitalization or otherwise) the
outstanding shares of Class A Senior Stock unless the outstanding shares of
Class B Junior Stock shall be proportionately subdivided or combined.
The Corporation shall not in any manner subdivide (by any stock split,
stock dividend, reclassification, recapitalization or otherwise) or combine (by
reverse stock split, reclassification, recapitalization or otherwise) the
outstanding shares of Class B Junior Stock unless the outstanding shares of
Class A Senior Stock shall be proportionately subdivided or combined.
ARTICLE V
Directors
(a) Elections of directors of the Corporation need not be by written
ballot, except to the extent provided in the By-laws of the Corporation.
(b) No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that the foregoing shall not eliminate or limit
liability of a director (i) for any breach of such director's duty of loyalty to
the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct, gross negligence or reckless
disregard of the duties involved in the conduct of such director's office, (iii)
for a knowing violation of law, or (iv) for any transaction from which such
director derived an improper personal benefit.
(c) The Corporation's board of directors will consist of five
directors. Two of the directors will be elected by a majority vote of the
outstanding shares of the Class A Senior Stock, each share having one vote,
voting as a separate class. The remaining three directors will, except as
provided below, be elected by a majority vote of the outstanding shares of the
Class A Senior Stock and the Class B Junior Stock voting together as a single
class. If at any time the dividends on the Class A Senior Stock shall be unpaid
in an amount equal to two full years' dividends on such Class A Senior Stock,
the holders of the Class A Senior Stock shall have the right, voting as a class,
to elect three of the directors, until such time as all dividends in arrears
shall have been paid or otherwise provided for. At such time as all dividends
accrued on
-5-
<PAGE> 6
the outstanding Class A Senior Stock have been paid or declared and set apart
for payment, the rights of the holders of Class A Senior Stock to elect a
majority of the directors shall cease, subject to renewal from time to time upon
the same terms and conditions.
(d) The names of the directors are as follows:
Terry K. Glenn
Kevin McKenna
Caroline Dorsa
Jon Filderman
Robert E. Underwood
The address for each of the directors is, c/o Readington Holdings,
Inc., 800 Scudders Mill Rd., Plainsboro, New Jersey, 08536.
ARTICLE VI
Indemnification of Directors, Officers and Others
(a) The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil or criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership,
limited liability company, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgements, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, provided that such person did not (i) breach
any duty of loyalty to the Corporation or its stockholders, (ii) act with
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his office, (iii) commit a knowing violation
of law or (iv) derive an improper personal benefit from any transaction that is
the subject of such action, suit or proceeding . The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a presumption
that the person seeking indemnification (i) breached any duty of loyalty to the
Corporation or its stockholders, (ii) acted with willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct of
his office, (iii) committed a knowing violation of law or (iv) derived an
improper personal benefit from any transaction that is the subject of such
action, suit or proceeding.
(b) The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the Corporation to procure a judgement in its
favor by reason of the fact that such person was a director, officer, employee
or agent of the Corporation, or is or was serving at the request
-6-
<PAGE> 7
of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgements, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
the defense or settlement of such action or suit, provided that such person did
not (i) breach any duty of loyalty to the Corporation or its stockholders, (ii)
act with willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his office, (iii) commit a knowing
violation of law or (iv) derive an improper personal benefit from any
transaction that is the subject of such action, suit or proceeding, and provided
further that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Superior Court of the State
of New Jersey or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Superior Court or such other
court shall deem proper.
(c) Any indemnification under Sections (a) and (b) of this Article VI
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because such person
has met the applicable standard of conduct set forth in Sections (a) and (b).
Such determinations shall be made by (1) the Board of Directors of the
Corporation by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (2) if such quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion.
(d) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation as authorized in this Article VI. Such expenses
(including attorneys' fees) incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the Board of Directors of the
Corporation deems appropriate.
(e) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other sections of this Article VI shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any law, by-law, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office.
(f) The Corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership,
limited liability company, joint venture, trust or other enterprise against
-7-
<PAGE> 8
any liability asserted against such person and incurred by such person in any
such capacity, or arising out of such person's status as such, whether or not
the Corporation would have the power to indemnify such person against such
liability under the provisions of Section 14A:3-5 of the Business Corporation
Act.
(g) For purposes of this Article VI, references to "the Corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees or
agents so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of the such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust or
other enterprise, shall stand in the same position under the provisions of this
Article VI with respect to the resulting or surviving corporation as such person
would have with respect to such constituent corporation if its separate
existence had continued.
(h) For purposes of this Article VI, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or other agent of the Corporation which
imposes duties on, or involves service by, such director, officer, employee or
agent with respect to any employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this Article
VI.
(i) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VI shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
ARTICLE VII
By-laws
The directors of the Corporation shall have the power to adopt, amend
or repeal by-laws.
ARTICLE VIII
-8-
<PAGE> 9
Amendments
Subject to Section (d)(ii) of Article IV, the Corporation reserves the
right to amend, alter, change or repeal any provision contained in this Amended
and Restated Certificate of Incorporation, in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
-9-
<PAGE> 10
The undersigned hereby executed this Amended and Restated Certificate
of Incorporation this 10th day of August, 2000.
By: /s/ Pat Maldari
--------------------------------------
Name: Pat Maldari
Title: Vice President
