SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended July 1, 1995
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission File Number 1-24868
E&B MARINE INC.
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(Exact name of registrant as specified in its charter)
Delaware 22-2430891
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
201 Meadow Road
Edison, New Jersey 08818
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (908) 819-7400
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Indicate by a check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period as the registrant was required to file such
reports), and (2) has been subject to such filing requirements for
the past 90 days.
Yes X No
------- -------
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Class 3,743,545
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Common Stock, $.001 par value Shares outstanding at
July 24, 1995
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E & B MARINE INC. AND SUBSIDIARIES
INDEX
Page No.
Part I - Financial Information ---------
Consolidated Balance Sheets -
July 1, 1995 and December 31, 1994 3
Consolidated Statements of Operations -
Six Months and Three Months ended
July 1, 1995 and June 25, 1994 4
Consolidated Statements of Cash-Flows -
Six Months ended July 1, 1995
and June 25, 1994 5
Notes to Consolidated Financial Statements 6
Management's Discussion and Analysis of
Financial Condition and Results
of Operations 7-8
Part II - Other Information
Item 4. Submission of Matters to a Vote of 9
Security Holders
Item 6. Exhibits and Reports on Form 8-K 10
Signatures 11
<PAGE>
E&B MARINE INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
JULY 1, DECEMBER 31,
1995 1994
Dollars in Thousands UNAUDITED
=================================================================
ASSETS
Currents Assets:
Cash and cash equivalents $ 1,388 $ 719
Accounts receivable 1,537 501
Inventory 28,051 19,987
Prepaid expenses 1,012 802
Other current assets 2,744 2,690
------- -------
Total current assets 34,732 24,699
Property, plant and equipment, net 4,995 4,569
Excess of cost over fair value of
assets acquired, net of
amortization 2,077 2,112
Other assets 1,292 2,613
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TOTAL ASSETS $43,096 $33,993
======= =======
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Revolving line of credit
Current maturities of long-term debt $ 1,290 $ 1,282
Accounts payable 14,816 6,370
Accrued expenses 4,756 4,000
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Total current liabilities 20,862 11,652
Revolving line of credit 7,979 9,427
Long-term debt, less current
maturities 1,889 2,536
Shareholders' Equity:
Common Stock 4 4
Additional paid-in capital 21,120 21,002
Accumulated deficit (6,674) (8,500)
Less:
Treasury stock-at cost (2,084) (2,084)
Value assigned to unearned
compensation (44)
------- -------
Total Shareholders' Equity 12,366 10,378
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LIABILITIES AND SHAREHOLDERS' EQUITY $43,096 $33,993
======= =======
See accompanying notes to consolidated financial statements.
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E&B MARINE INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
PERIODS ENDED JULY 1, 1995 AND JUNE 25, 1994
UNAUDITED
SIX MONTHS THREE MONTHS
Dollars in Thousands,
except per share amounts
1995 1994 1995 1994
------- ------- ------- -------
Net sales $61,911 $55,993 $42,780 $39,845
Cost of goods sold excluding
amortization and depreciation 44,661 40,364 29,726 27,716
------- ------- ------- -------
Gross profit 17,250 15,629 13,054 12,129
Selling, general and
administrative expenses 12,867 11,289 7,477 6,620
Depreciation and amortization 570 596 285 305
------- ------- ------- -------
Income from operations before
interest and income taxes 3,813 3,744 5,292 5,204
Interest expense 766 619 366 289
------- ------- ------- -------
Income before income taxes 3,047 3,125 4,926 4,915
Income taxes 1,221 1,972
------- ------- ------- -------
Net Income $1,826 $3,125 $2,954 $4,915
======= ======= ======= =======
Per share amounts:
Net Income $0.44 $0.73 $0.67 $1.11
Weighted average number of shares
outstanding 3,722,000 3,690,000 3,736,000 3,691,000
========= ========= ========= =========
See accompanying notes to consolidated financial statements.
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E&B MARINE INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
SIX MONTHS ENDED JULY 1, 1995 AND JUNE 25, 1994
UNAUDITED
Dollars in Thousands 1995 1994
------- ------
Cash flows from operating activities:
Net Income $ 1,826 $3,125
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization 570 596
Earned compensation related to ESOP 44 44
Change in assets and liabilities net of
non-cash transactions:
(Increase) in accounts receivable (1,036) (698)
(Increase) in inventory (8,064) (5,083)
(Increase) in other current assets (54) (49)
(Increase) in prepaid expense (210) (468)
Decrease in other assets 1,305 198
Increase in accounts payable 8,446 9,007
Increase (decrease) in accrued expenses 756 (940)
------- -------
Net cash provided by operating activities 3,583 5,732
------- -------
Cash flows from investing activities:
Purchase of property, plant and equipment (945) (1,124)
------- -------
Net cash used in investing activities (945) (1,124)
------- -------
Cash flows from financing activities:
Borrowings under debt agreements 3,957 27,288
Payments of debt (6,044) (30,821)
Proceeds from issuance of stock (net) 118 17
------- -------
Net cash used in financing activities (1,969) (3,516)
------- -------
Net change in cash 669 1,092
Cash and cash equivalents at beginning of year 719 395
------- -------
Cash and cash equivalents at end of quarter $ 1,388 $ 1,487
======= =======
See accompanying notes to consolidated financial statements.
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E & B MARINE INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in thousands, except per share data)
1: Basis of Presentation
The financial information included herein is unaudited; however,
such information reflects all adjustments (consisting solely of
normal recurring adjustments) which are, in the opinion of
management, necessary for a fair statement of results for the
interim periods.
The results of operations for the six-month period ended July 1,
1995 are not necessarily indicative of the results to be expected
for the full year.
2: Inventories
Inventory has been calculated using the cost complement obtained
from the inventory tracking system which is applied on an
individual store basis. Additionally, gross profit margin is
reduced by an estimated percentage of sales for shrinkage.
3: Income per Common Share
The Company has computed Income per Common Share on the basis of
the weighted average number of Common Shares and common equivalent
shares outstanding during the period, in accordance with the
modified treasury stock method. This method assumes that common
stock equivalents (options and warrants) are exercised and treasury
shares are assumed to be purchased (not to exceed 20% of the
weighted average number of Common Shares outstanding) from the
proceeds using the average market price for the period. Any excess
proceeds not utilized for the purchase of treasury shares are
assumed to reduce outstanding debt with an appropriate reduction of
interest expense. Proceeds which exceed outstanding debt are
assumed to be invested in government securities. Under such
assumptions, for the six-months ended July 1, 1995 and June 25,
1994 and for the three-months ended July 1, 1995 and June 25, 1994,
808,000, 810,000, 804,000 and 812,000 incremental Common Shares,
respectively, have been added to the weighted average number of
shares outstanding and net interest has been adjusted by
approximately $174,000, $179,000, $93,000 and $80,000,
respectively. The 1995 interest amounts have been tax effected at
40%.
No fully diluted per share amounts are shown in 1995 and 1994 since
the closing market price is less than the average market price for
the period.
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<PAGE>
E & B MARINE INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
(Dollars in thousands, except per share data)
RESULTS OF OPERATIONS
Consolidated net sales for the three-month period ended July 1,
1995 were $42,780, an increase of $2,935 or 7.4 percent from sales
of $39,845 for the three-month period ended June 25, 1994. Sales
of $61,911 for the six-month period ended July 1, 1995 increased
$5,918 or 10.6 percent from the comparable prior period.
Retail store net sales were $36,636 for the three-month period
ended July 1, 1995, an increase of 12.4 percent from net sales of
$32,597 in 1994. Sales in stores opened during the comparable
three-month periods in 1995 and 1994 increased $708 or 2.2
percent. Retail store net sales were $52,560 for the six-month
period ended July 1, 1995, an increase of 14.7 percent from the
prior year.
The increase in retail store sales was principally attributable to
the opening of superstores and relocations or renovations of
several key outlets, a later ending of the second fiscal quarter of
1995 due to the Company's 52-53 week fiscal year, offset by a late
summer season with colder temperatures in the northeast during
April and May. Comparable retail store sales for the second
quarter of 1995 would have decreased 0.9 percent from the second
quarter of 1994 had fiscal 1994 been a 52 week year.
Mail-order net sales were $6,145 for the three-month period ended
July 1, 1995, a decrease of 15.2 percent from net sales of $7,248
for the three-month period ended June 25, 1994. Sales for the six-
month period ended July 1, 1995 were $9,351, a decrease of 8.0
percent from the comparable period in 1994.
The decrease in mail-order sales was primarily attributable to
increased competition due to the opening of new retail outlets.
Gross profit as a percentage of net sales was 30.5 percent for the
three-month period ended July 1, 1995 compared to 30.4 percent for
1994. For the six-months ended July 1, 1995, the gross profit
margin was 27.9 percent, flat with the same period in 1994.
Selling, general and administrative ("SG&A") expenses for the
three-month period ended July 1, 1995 increased $857 or 12.9
percent from the comparable 1994 period. As a percentage of net
sales, SG&A increased from 16.6 percent in the 1994 second quarter
to 17.5 percent in the 1995 second quarter. For the six-months
ended July 1, 1995, SG&A increased $1,578 from the previous year.
As a percentage of net sales, SG&A increased from 20.2 percent in
1994 to 20.8 percent in 1995. The increase in SG&A was principally
associated with the opening of new stores.
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<PAGE>
E & B MARINE INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
(Dollars in thousands, except per share data)
Net interest expense of $366 for the three-month period ended July
1, 1995 increased $77 from $289 in 1994. Year to date, net
interest expense has increased by $147 over 1994. The increase in
interest expense is principally attributable to the increase in
interest rates as well as additional borrowings needed to support
the Company's expansion program. During the first six months of
1995, the Company has opened new retail stores and has relocated or
remodeled retail stores.
Net income for the three-months ended July 1, 1995 of $2,954 was
$1,961 less than the net income of $4,915 for the comparable 1994
period. Year to date, net income decreased $1,299 from $3,125 in
1994 to $1,826 in 1995. The net income reported for the second
quarter of 1995 and the six months ended July 1, 1995 included tax
provisions of $1,972 and $1,221, respectively, whereas there was no
provision for taxes in 1994, due to the reversal of tax valuation
reserves.
LIQUIDITY AND CAPITAL RESOURCES
The Company's working capital at July 1, 1995 and December 31, 1994
was $13,870 and $13,047, respectively. The increase in working
capital was mainly attributable to the classification of borrowings
as long-term under the terms of the Company's facility. The
Company increased its inventory for its peak selling season, to
increase its product assortment and to accommodate new retail store
openings. The increased inventory was financed through cash flow
from operations and various payment terms which the Company has
established with its vendors.
The Company believes that its working capital and its credit
facility will be adequate to meet identifiable working capital
requirements in the foreseeable future. Total weighted average
borrowings for the second quarter of 1995 was $14,563 compared to
$11,843 for 1994. For the six-months ended July 1, 1995, average
borrowings were $15,479, an increase over the $13,103 in the prior
year. The weighted average interest rate for the second quarter
was 9.99% in 1995 and 7.01% in 1994. For the six month period, the
weighted average interest rate was 9.90% for 1995 and 7.78% for
1994.
Cash flow from operations, combined with its available line of
credit of $15,000 is expected to provide the necessary funds for
planned capital expenditures during 1995 and 1996. These
expenditures are estimated to total approximately $3,000 in the
remainder of 1995 and primarily constitute expenditures for store
expansion, relocations and remodelings.
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<PAGE>
E&B MARINE INC. AND SUBSIDIARIES
Part II - Other Information
Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
(a) The Annual Meeting of Stockholders (the "Meeting")
of the Company was held on June 20, 1995.
(b) Not applicable because:
(i) proxies for the Meeting were solicited pursuant
to Regulation 14 under the Securities Exchange Act of 1934; (ii)
there was no solicitation in opposition to management's nominee as
listed in the Company's proxy statement dated May 24, 1995; and
(iii) all such nominees were elected.
(c) The matters voted upon at the Meeting were as
follows:
(i) The election of one Class A director of the Company.
William V. Roberti
FOR 2,687,988
WITHHOLD AUTHORITY 168,067
(ii) The approval of the amendment to the Company's
Amended and Restated 1983 Stock Option Plan
(the "Plan").
FOR 2,639,505
AGAINST 210,909
ABSTENTIONS AND BROKER NON-VOTES 5,641
(iii) The approval of an amendment to the
Company's Restated Certificate of Incorporation to decrease the
authorized Common Stock of the Company from 30,000,000 shares to
10,000,000 shares.
FOR 2,834,266
AGAINST 14,904
ABSTENTIONS AND BROKER NON-VOTE 6,885
(iv) A proposal to ratify the Board of Directors'
selection of KPMG Peat Marwick to serve as the Company's
independent auditors for the Company's fiscal year ending December
30, 1995.
FOR 2,844,247
AGAINST 6,389
ABSTENTIONS AND BROKER NON-VOTES 5,419
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<PAGE>
E&B MARINE INC. AND SUBSIDIARIES
Part II - Other Information
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
Page
No.
------
(a) Exhibits
The following exhibits are filed with this Form 10-Q:
3 Restated Certificate of Incorporation of the Company, 12
as amended.
27 Financial Data Schedule. 65
(b) Reports on Form 8-K
No reports on Form 8-K have been filed during the quarter
ended July 1, 1995.
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<PAGE>
E&B MARINE INC. AND SUBSIDIARIES
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
July 26, 1995 E&B MARINE INC.
By /s/ Kenneth G. Peskin
----------------------
Kenneth G. Peskin
Chairman and
Chief Executive Officer
By /s/ Walfrido A. Martinez
-------------------------
Walfrido A. Martinez
Senior Vice President,
Chief Financial Officer
and Controller
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<PAGE>
RESTATED CERTIFICATE
OF INCORPORATION
OF
E&B MARINE INC.
Pursuant to Sections 242 and 245 of
the Delaware General Corporation Law
E&B Marine Inc., a corporation under the laws of the
State of Delaware (the "Corporation"), does hereby certify as
follows:
(a) the name of the Corporation is E&B Marine Inc.
(b) the Certificate of Incorporation of the Corporation
was filed with the Secretary of State, Dover, Delaware, on the 29th
day of October, 1982.
(c) this Restated Certificate of Incorporation has been
duly adopted in accordance with the provisions of Sections 242 and
245 of the General Corporation Law of the State of Delaware (the
"GCL"), the Board of Directors of the Corporation having duly
adopted resolutions setting forth such amendment and restatement
and declaring its advisability at a meeting of the Board of
Directors of the Corporation duly called and held in conformity
with the By-laws of the Corporation and (b) the stockholders of the
Corporation having duly adopted such amendment by vote of the
holders of a majority of the outstanding stock entitled to vote
thereon at the annual meeting of stockholders called and held upon
notice in accordance with Section 222 of the GCL, there being only
one class of stock of the Corporation outstanding.
(d) the capital of the Corporation will not be reduced
under or by reason of the amendments to the Certificate of
Incorporation of the Corporation effected by this Restated
Certificate of Incorporation of the Corporation.
(e) the Certificate of Incorporation of the Corporation,
as amended, is hereby amended and restated to read in full as
follows:
RESTATED
CERTIFICATE OF INCORPORATION
OF
E&B MARINE INC.
FIRST: The name of the corporation is E&B Marine Inc.
(the "Corporation").
SECOND: The address of the Corporation's registered
office in the State of Delaware is 306 South State Street, in the
City of Dover, in the County of Kent, and the name of the
Corporation's registered agent at such address is the United States
Corporation Company.
THIRD: The purpose for which the Corporation is
organized is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of
the State of Delaware.
FOURTH: The total number of shares of capital stock
which the Corporation shall have authority to issue is 1,000,000
shares of Preferred Stock, $1.00 par value ("Preferred Stock"), and
5,000,000 shares of Common Stock, $.01 par value ("Common Stock").
The powers, designations, preferences and relative, participating,
optional or other special rights, qualifications, limitations or
restrictions of the Preferred Stock shall be as follows:
1. (a) The Preferred Stock may be issued from time to
time as shares of one or more series of Preferred Stock, and in the
resolutions or resolutions providing for the issue of shares of
each particular series, before issuance, the Board of Directors of
the Corporation is expressly authorized to fix:
(i) the distinctive designation of such series and
the number of shares which shall constitute such series,
which number may be increased (except where otherwise
provided by the Board of Directors in creating such
series) or decreased (but not below the number of shares
thereof then outstanding) from time to time by like
action of the Board of Directors;
(ii) the rate of dividends payable on such series,
whether or not dividends shall be cumulative, the date or
dates from which dividends shall accrue and, if
cumulative, shall be cumulative and the relationship
which such dividends shall bear to dividends payable on
any other series;
(iii) whether or not the shares of such series
shall be subject to the redemption by the Corporation
and, if so, the times, prices and other terms and
conditions of such redemption;
(iv) whether or not the shares of such series shall
be subject to the operation of a sinking fund or a fund
of a similar nature and, if so, the terms thereof;
(v) the rights of the shares of each series in
case of liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, or upon
any distribution of its assets;
(vi) whether or not the shares of such series shall be
convertible into or exchangeable for shares of any other
series or class of stock of the Corporation and, if so, the
terms of conversion or exchange;
(vii) whether or not the shares of such series shall
have voting rights in addition to the voting rights provided
by law and in paragraph 5 below and, if so, the nature and
extent thereof; and
(viii) the consideration to be received by the
Corporation for the shares of such series.
(b) The shares of the Preferred Stock of any one series
shall be identical with each other in all respects except as to the
dates from which dividends thereon shall accrue or be cumulative.
(c) In case the stated dividends and the amounts, if
any, payable on liquidation, dissolution or winding up of the
Corporation are not paid in full, the shares of each series of the
Preferred Stock, after the payment in full of such dividends and
amounts to all series of the Preferred Stock ranking senior to such
series and before any payment to any series ranking junior thereto,
shall share ratably in the payment of dividends, including
accumulations, if any, in accordance with the sums which would be
payable on said shares if all dividends were declared and paid in
full, and in any distribution of assets other than by way of
dividends, in accordance with the sums which would be payable on
such distribution if all sums payable were discharged in full.
(d) Upon the issuance of any series of Preferred Stock,
a certificate setting forth the resolution or resolutions
(including the designation, description and terms of such series)
adopted by the Board of Directors with respect to such series shall
be made and filed in accordance with the then applicable
requirements, if any, of the laws of the State of Delaware, or, if
no certificate is then so required, such certificate shall be
signed and acknowledged on behalf of the corporation by its
President or a Vice President, and its corporate seal shall be
affixed thereto and attested by its Secretary or an Assistant
Secretary, and such certificate shall be filed and kept on file at
the principal office of the Corporation in the Sate of Delaware or
at such other place or places as the Board of Directors shall
designate.
2. The holders of each series of the Preferred Stock
shall be entitled to receive, when and as declared by the Board of
Directors, but only out of funds of the dividends, dividends in
cash at the annual rate for such series provided by the Board of
Directors in the certificate made pursuant to subparagraph (d) of
paragraph 1 with respect to such series, before any dividends shall
be declared and paid upon or set apart for the holders of any
series as to dividends or of any junior stock, payable in respect
of each calendar quarter on a date, which shall be provided by the
Board of Directors in such certificate with respect to such series,
within fifty (50) days following the end of such quarter. Such
dividends on the Preferred Stock shall be payable to holders of
such series of record on the date, not exceeding fifty (50) days
preceding the dividend payment date, fixed for such purpose by the
Board of Directors with respect to such series in advance of the
payment of each particular dividend.
3. If so provided by the Board of Directors in the
certificate made pursuant to subparagraph (d) of paragraph 1, the
Corporation, at the option of the Board of Directors (or in
accordance with the requirements of any sinking fund for any one or
more series of Preferred Stock established by the Board of
Directors, may redeem the whole or any part of the Preferred Stock
at any time outstanding, or the whole or any part of any series
thereof, at such time or times and from time to time and at such
redemption price or prices as may be provided by the Board of
Directors in such certificate together in each case with all
dividends accrued and accumulated but unpaid (other than non-
cumulative dividends from past dividend periods), but computed
without interest, and otherwise upon the terms and conditions fixed
by the Board of Directors for any such redemptions.
4. In the event of any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary,
the holders of each series of the Preferred Stock then outstanding
shall be entitled to receive, after the payment in full of all
amounts to which the holders of all series of the Preferred Stock
ranking senior thereto are entitled, out of the assets of the
Corporation, before any distribution or payment shall be made to
the holders of any series of the Preferred Stock ranking junior to
such series upon liquidation, dissolution or winding up of the
corporation or of any junior stock, the amount, if any, for each
share provided by the Board of Directors in the certificate made
pursuant to subparagraph (d) of paragraph 1, plus, in respect of
each such share, all dividends accrued and accumulated but unpaid
(other than non-cumulative dividends from past dividend periods),
but made in full to the holders of each series of the Preferred
Stock, the remaining assets of the Corporation shall be distributed
among the holders of the junior stock, according to their
respective rights and preferences and pro rata in accordance with
their respective holdings.
5. On all matters with respect to which holders of the
Preferred Stock or of certain series thereof are entitled to vote
as a single class, each holder of Preferred Stock afforded such
class voting right shall be entitled to one vote for each share
held.
6. For purposes of this Article FOURTH, the term
"junior stock" shall mean the Common Stock and any other class of
stock of the Corporation hereafter authorized which shall rank
junior to all series of the Preferred Stock as to all dividends or
preference on dissolution, liquidation or winding up of the
Corporation.
FIFTH: The number of directors of the Corporation shall
be fixed as provided in the by-laws of the Corporation (the "By-
laws"). The directors shall be divided into three classes, each
class to contain as near as possible to one-third (1/3) of the
total number of directors of the Board of Directors so fixed in the
By-laws, and, except as otherwise provided by statute, in the case
of any increase in the number of directors fixed in the By-laws,
such increase shall be apportioned among the classes of directors
so as to maintain each class as near as possible to one-third of
the total number of directors as so increased. The initial term of
office for members of the first class shall expire at the 1986
Annual Meeting of Stockholders; the initial term for members of the
second class shall expire at the 1987 Annual Meeting of
Stockholders; and the initial term for members of the third class
shall expire at the 1988 Annual Meeting of Stockholders. At the
expiration of the initial term, and of each succeeding term of each
class, the directors of each class shall be elected to serve for a
term of three years. The By-laws may contain any provision
regarding classification not inconsistent with the terms hereof.
SIXTH: The Corporation shall indemnify and hold harmless
any director, officer, employee or agent of the Corporation from
and against any and all expenses and liabilities that may be
imposed upon or incurred by him in connection with, or as a result
of, any proceeding in which he may become involved, as a party or
otherwise, by reason of the fact that he is or was such a director,
officer, employee or agent of the Corporation, whether or not he
continues to be such at the time such expenses and liabilities
shall have been imposed or incurred, to the extent permitted by the
laws of the State of Delaware, as they may be amended from time to
time.
SEVENTH: In furtherance and not in limitation of the
general powers conferred by the laws of the State of Delaware, the
Board of Directors is expressly authorized to make, alter or repeal
the By-laws of the Corporation, except as specifically stated
therein.
EIGHTH: Whenever a compromise or arrangement is proposed
between this Corporation and its creditors or any class of them
and/or between this Corporation and its stockholders of any class
of them, any court of equitable jurisdiction within the State of
Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this
Corporation under the provisions of Paragraph 291 of Title 8 of the Delaware
Code or on the application of trustees in dissolution or of any
receiver or receivers appointed for this Corporation under the
provisions of Paragraph 279 of Title 8 of the Delaware Code, order a meeting
of the creditors or class of creditors, and/or of the stockholders
or class of stockholders
4
of this Corporation, as the case may be,
to be summoned in such manner as the said Court directs. If a
majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or
class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of
this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the Court to which the said
application has been made, be binding on all the creditors or class
of creditors, and/or on all the stockholders or class of
stockholders of this Corporation, as the case may be, and also on
this Corporation.
NINTH: Except as otherwise required by the laws of the
State of Delaware, the stockholders and directors shall have the
power to hold their meetings and to keep the books,documents and
papers of the Corporation outside of the State of Delaware, and the
Corporation shall have the power to have one or more offices within
or without the State of Delaware, at such places as may be from
time to time designated by the By-laws or by resolution of the
stockholders or directors. Elections of directors need not be by
ballot unless the By-laws of the Corporation shall so provide.
TENTH: Subject to the terms of Article FOURTEENTH
hereof, the Corporation reserves the right to amend, alter, change
or repeal any provision contained in this 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.
ELEVENTH: The affirmative vote of not less than eighty
percent (80%) of the outstanding shares of "Voting Stock" (as
hereinafter defined) of the Corporation shall be required for the
approval or authorization of any "Business Combination" (as
hereinafter defined); provided, however, that the eighty percent
(80%) voting requirement referred to above shall not be applicable
if:
(1) The Board of Directors of the Corporation by a vote
of not less than a majority of the directors then holding
office (a) expressly approve in advance the acquisition of
outstanding shares of Voting Stock of the Corporation that
resulted in any "Related Person" (as hereinafter defined)
becoming a Related Person or (b) expressly approved the
Business Combination prior to the Related Person involved in
the Business Combination having become a Related Person;
(2) The Business Combination is solely between the
Corporation and another corporation, one hundred percent
(100%) of the Voting Stock of which is owned directly or
indirectly by the Corporation; or
(3) All of the following conditions have been met or
have been waived by a vote of not less than a majority of the
"Continuing Directors" (as hereinafter defined): (a) the
Business Combination is a merger or consolidation proposed to
be consummated within one year after the date of the
transaction pursuant to which such Related Person became a
Related Person, and the cash or fair market value of the
property, securities or other consideration to be received per
share by holders of Common Stock in the Business Combination
is not less than the highest per share price (with appropriate
adjustments for recapitalizations, reclassifications, stock
splits, reverse stock splits and stock dividends) paid by the
Related Person in acquiring any of its holdings of Common
Stock; (b) the consideration to be received by such holders is
either cash or, if the Related Person acquired the majority of
its holdings of Common Stock for a form of consideration other
than cash, in the same form of consideration; (c) after such
Related Person has become a Related Person and prior to
consummation of such Business Combination: (i) there shall
have been no failure to declare and pay at the regular date
therefor any full quarterly dividends (whether or not
cumulative) on any outstanding shares of Preferred Stock, (ii)
there shall have been no reduction in the dividends paid per
share on the Common Stock (adjusted as appropriate for
recapitalizations, reclassifications, stock splits, reverse
stock splits and stock dividends), (iii) such Related Person
shall not have become the "Beneficial Owner" (as hereinafter
defined) of any additional shares of Voting Stock of the
Corporation except as part of the transaction that results in
such Related Person becoming a Related Person, and (iv) such
Related Person shall not have received any benefit directly or
indirectly (except proportionately as a stockholder) of any
loans, advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantages provided
by the Corporation, whether in anticipation of or in
connection with such Business Combination or otherwise; and
(d) a proxy statement in compliance with the requirements of
the Exchange Act (as hereinafter defined) and the rules and
regulations promulgated thereunder (or any subsequent
provisions replacing the Exchange Act, rules or regulations)
shall be mailed to public stockholders of the Corporation at
least forty (40) days prior to the consummation of the
Business Combination for the purpose of soliciting stockholder
approval of the Business Combination, and shall contain at the
front thereof in a prominent place any recommendations as to
the advisability or inadvisability of the Business Combination
that the Continuing Directors or any of them may choose to
state and an opinion of a reputable investment banking firm as
to the fairness (or otherwise) of the terms of such Business
Combination from the point of view of the remaining public
stockholders of the Corporation (such investment banking firm
to be selected by a majority of the Continuing Directors and
to be paid a reasonable fee for its services by the
Corporation).
For the purposes of this Article and ARTICLE TWELFTH:
(i) The term "Business Combination" shall mean: (a)
any merger or consolidation of the Corporation or a subsidiary
of the Corporation with or into a Related Person, (b) any
sale, lease, exchange, mortgage, pledge, transfer or other
disposition of all or any "Substantial Part" (as hereinafter
defined) of the assets either of the Corporation (including,
without limitation, any voting securities of a subsidiary) or
of a subsidiary, to or with a Related Person, (c) any sale,
lease, exchange, transfer or other disposition of assets
having a fair market value of $2,000,000 or more of a Related
Person to the Corporation or a subsidiary of the Corporation,
(d) the issuance or transfer by the Corporation or a
subsidiary (other than by way of a pro rata distribution to
all stockholders) of any securities of the Corporation or a
subsidiary of the Corporation to a Related Person, (e) any
reclassification of securities (including any reverse stock
split) or recapitalization by the Corporation, the effect of
which would be to increase the voting power (whether or not
then exercisable) of a Related Person, (f) the adoption of any
plan or proposal for the liquidation or dissolution of the
Corporation proposed by or on behalf of a Related Person, (g)
any series or combination of transactions directly or
indirectly having the same effect as any of the foregoing and
(h) any agreement, contract or other arrangement providing
directly or indirectly for any of the foregoing.
(ii) The term "Continuing Director" shall mean any
member of the Board of Directors and who is not affiliated
with a Related Person and who was a member of the Board of
Directors immediately prior to the time that the Related
Person became a Related Person, and any successor to a
Continuing Director who is not affiliated with the Related
Person and is recommended to succeed a Continuing Director by
a majority of Continuing Directors who are then members of the
Board of Directors.
(iii) The term "Related Person" shall mean and include
any individual, corporation, partnership or other "person" or
"group" of persons or entities (as such terms are used on
January 1, 1985 in Rule 13d under the Securities Exchange Act
of 1934 (the "Exchange Act")), and the "Affiliates" and
"Associates" (as such terms are defined on January 1, 1985 in
rule 12b-2 under the Exchange Act) of any such individual,
corporation, partnership or other person or group of persons,
other than the Corporation or any employee benefit plan or
plans sponsored by the Corporation, that individually or
together constitute the "Beneficial Owner" (as such term is
defined on January 1, 1985 in Rule 13d-3 and Rule 14d-1(b)(4)
under the Exchange Act) of an aggregate of twenty percent
(20%) or more of the outstanding Voting Stock of the
Corporation.
(iv) The term "Substantial Part" shall mean more than
five percent (5%) of the book value of the total assets of the
subject entity as of the end of the fiscal year ending prior
to the time of the determination or, in the case of Voting
Stock of a subsidiary of the Corporation, twenty percent (20%)
or more of the outstanding shares of such subsidiary's Voting
Stock.
(v) Any person or group that has the right to acquire
any shares of Voting Stock of the Corporation pursuant to any
agreement, or upon the exercise of conversion rights, warrants
or options, or otherwise, shall be deemed a Beneficial Owner
for purposes of determining whether such person or group,
individually or together with its Affiliates and Associates,
is a Related Person.
(vi) For purposes of subparagraph (3) of this Article
ELEVENTH, the expression "other consideration to be received"
shall include, without limitation, Common Stock retained by
the Corporation's existing public stockholders in the event of
a Business Combination in which the Corporation is the
surviving corporation.
(vii) The term "Voting Stock" shall mean all
outstanding shares of capital stock of the Corporation or
other corporation entitled to vote generally in the election
of directors, and each reference to a proportion of shares of
Voting Stock shall refer to shares having such proportion of
the number of shares entitled to be cast.
TWELFTH: Except as approved by a vote of not less than
a majority of the directors of the Corporation then holding office
(or, in the event that the Corporation at the time has a Related
Person, then by a vote of not less than a majority of the
Continuing Directors), no action shall be taken by the stockholders
of the Corporation except at an annual or special meeting with
prior notice and a vote; provided, however, that holders of the
Preferred Stock may act by written consent to the extent provided
in the resolution or resolutions referred to in Article FOURTH
hereof. Except as provided hereinabove, no action shall be taken
by the stockholders by written consent.
THIRTEENTH: The stockholders shall not make, repeal,
alter, amend or rescind the By-Laws except by the vote of the
holders of not less than eighty percent (80%) of the total voting
power of all shares of stock of the Corporation entitled to vote in
the election of directors, considered for purposes of this Article
THIRTEENTH as one class.
FOURTEENTH: Articles, FIFTH, SIXTH, ELEVENTH, TWELFTH,
THIRTEENTH hereof and this Article FOURTEENTH may not be amended,
altered, changed, repealed or rescinded in any respect unless such
action is approved by the affirmative vote of the holders of not
less than eighty percent (80%) of the outstanding shares of stock
of the Corporation entitled to vote in the election of directors,
considered for purposes of this Article FOURTEENTH as one class.
The voting requirements contained in this Article FOURTEENTH and in
Articles ELEVENTH and THIRTEENTH hereof shall be in addition to
voting requirements imposed by law or other provisions of this
Certificate of Incorporation or any designation of preferences in
favor of certain classes or series of classes of shares of capital
stock of the Corporation.<PAGE>
IN WITNESS WHEREOF, the Corporation has caused its
corporate seal to be hereunto affixed and this Restated Certificate
of Incorporation to be signed by Gerald Bench, its President, and
attested by Robert G. Defonte, its Secretary, this 29th day of
July, 1985.
E&B MARINE INC.
By /s/ Gerald Bench
----------------
Gerald Bench
President
(Corporate Seal)
ATTEST:
/s/ Robert G. Defonte
---------------------
Robert G. Defonte
Secretary
CERTIFICATE OF RESTORATION AND REVIVAL OF
CERTIFICATE OF INCORPORATION
OF
E&B MARINE INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the
("Corporation") is E&B Marine Inc.
2. The corporation was organized under the provisions
of the General Corporation Law of the State of Delaware.
3. The address, including the street, city, and county,
of the registered office of the corporation in the State of
Delaware and the name of the registered agent at such address are
as follows:
The Prentice-Hall Corporation System, Inc.
229 South State Street
Dover, Delaware 19901
4. The corporation hereby procures a restoration and
revival of its certificate of incorporation, which became
inoperative by law on March 1, 1987 for failure to file annual
reports and non-payment of taxes payable to the State of Delaware.
5. The certificate of incorporation of the corporation,
which provides for and will continue to provide for, perpetual
duration, shall, upon the filing of this Certificate of Restoration
and Revival of the Certificate of Incorporation in the Department
of State of the State of Delaware, be restored and revived and
shall become fully operative on February 28, 1987.
6. This Certificate of Restoration and Revival of the
Certificate of Incorporation is filed by authority of<PAGE>
the duly elected
directors as prescribed by Section 312 of the General Corporation Law
of the State of Delaware.
Signed and attested to on August 12, 1987.
/s/Frederick H. Bond, Jr.
---------------------------
Executive Vice-President
Attest:
/s/ Thomas M. Haythe
--------------------
Assistant Secretary
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
BE IT REMEMBERED that, on August 12, 1987, before me, a
Notary Public duly authorized by law the take acknowledgment of
deeds, personally came Frederick H. Bond, Jr., Executive Vice-
President of E&B Marine Inc., who duly signed the foregoing
instrument before me and acknowledged that such signing is his act
and deed, that such instrument as executed is the act and deed of
said corporation, and that the facts stated therein are true.
GIVEN under my hand on August 12, 1987.
/s/ Mary Patrice Murphy
Notary Public
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
E&B MARINE INC.
Under Section 242
of the Delaware General Corporation Law
---------------------------------------
The undersigned, being the Chairman of the Board of E&B
Marine Inc. (the "Corporation") hereby certifies that:
FIRST: The name of the Corporation is E&B Marine Inc.
SECOND: The Certificate of Incorporation of the
Corporation is hereby amended by the addition thereto of Article
FIFTEENTH as follows:
FIFTEENTH: A director of the Corporation shall not be
personally liable to the Corporation or to its stockholders for
monetary damages for breach of fiduciary duty as a director, except
for liability (i) for any breach of the director's duty of loyalty
to the Corporation or to its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) for the unlawful payment of
dividends or unlawful stock purchases under Section 174 of the
General Corporation Law of Delaware, or (iv) for any transaction
from which the director derived any improper personal benefit. If
the General Corporation Law of Delaware is amended to authorize a
further elimination or limitation of the personal liability of
directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by
the General Corporation Law of Delaware as so amended. This
Article FIFTEENTH may not be amended, altered, changed, repealed or
rescinded in any respect unless such action is approved by the
affirmative vote of the holders of not less than eighty percent
(80%) of the outstanding shares of capital stock of the Corporation
entitled to vote in the election of directors, considered for
purposes of this Article FIFTEENTH as one class. The voting
requirements contained in this Article FIFTEENTH shall be in
addition to voting requirements imposed by law or other provisions
of this Certificate of Incorporation or any designation of
preferences in favor of certain classes or series of classes of
shares of capital stock of the Corporation.
THIRD: The amendment to the Certificate of
Incorporation to Article FIFTEENTH thereto was adopted by the
shareholders of the Corporation on July 14, 1987.
FOURTH: The number of shares entitled to vote on the
amendment to the Certificate of Incorporation to add Article
FIFTEENTH was 1,628,372.
FIFTH: The number of shares that approved the
amendment to the Certificate of Incorporation to add Article
FIFTEENTH was 1,575,749. The number of shares that voted against
the amendment was 40,924.
IN WITNESS WHEREOF, the Corporation has caused the
Corporate seal to be hereunto affixed and this Certificate of
Amendment to the Certificate of Incorporation to be signed by
Gerald Bench, its Chairman of the Board, and attested by Robert G.
Defonte, its Secretary, this 24th day of August, 1987.
E&B MARINE INC.
By:/s/ Gerald Bench
-----------------------
Gerald Bench
Chairman of the Board
[Corporate Seal]
ATTEST:
/s/ Robert G. Defonte
- ------------------------
Robert G. Defonte
Secretary
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
E&B MARINE INC.
E&B MARINE INC., a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"),
pursuant to the provisions of the General Corporation Law of the
State of Delaware (the "GCL"), DOES HEREBY CERTIFY as follows:
FIRST: Article FOURTH of the Certificate of
Incorporation of the Corporation, which sets forth the authorized
capital stock of the Corporation, is hereby amended by deleting the
first sentence of Article FOURTH in its present form and
substituting therefor a new first sentence of Article FOURTH to
read as follows:
"The total number of shares of capital stock which
the Corporation shall have authority to issue is
1,000,000 shares of Preferred Stock, $1.00 par value
("Preferred Stock"), and 10,000,000 shares of Common
Stock, $.01 par value ("Common Stock")."
SECOND: The amendment to the Certificate of
Incorporation of the Corporation set forth in this Certificate of
Amendment has been duly adopted in accordance with the applicable
provisions of Section 242 of the GCL, (a) the Board of Directors
having duly adopted a resolution setting forth such amendment and
declaring its advisability at a meeting of the Board of Directors
of the Corporation duly called and held in conformity with the By-
laws of the Corporation and directing that the amendment proposed
be considered at the Annual Meeting of Stockholders, and (b) the
stockholders of the Corporation having duly adopted such amendment
by a vote of the holders of a majority of the shares of outstanding
capital stock entitled to vote thereon at the Annual Meeting of
Stockholders called and held upon notice in accordance with Section
222 of the GCL, there being only one class of capital stock of the
Corporation outstanding.
THIRD: The capital of the Corporation will not be
reduced under or by reason of the amendment to its Certificate of
Incorporation set forth in this Certificate of Amendment.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused its
corporate seal to be hereunto affixed and this Certificate of
Amendment of its Certificate of Incorporation to be signed by
Frederick H. Bond, Jr., its Executive Vice President, and attested
by Thomas M. Haythe, its Assistant Secretary, as of the 12th day of
September, 1988.
E&B MARINE INC.
By /s/ Frederick H. Bond, Jr.
---------------------------
Frederick H. Bond, Jr.
Executive Vice President
[Corporate Seal]
Attest:
By /s/ Thomas M. Haythe
-----------------------
Thomas M. Haythe
Assistant Secretary
CERTIFICATE OF DESIGNATION OF
SERIES A PREFERRED STOCK AND SERIES B PREFERRED STOCK
OF
E&B MARINE INC.
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
We, Frederick H. Bond, Jr., Chief Executive Officer and
Thomas M. Haythe, Assistant Secretary, of E&B Marine Inc., a
corporation organized and existing under the General Corporation
Law of the State of Delaware (the "Corporation"), in accordance
with the provisions of Section 103 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board
of Directors by Article Fourth of the Certificate of Incorporation
of the Corporation, and in accordance with the provisions of
Section 151 of the General Corporation Law of the State of
Delaware, on February 21, 1989, the Board of Directors of the
Corporation adopted the following resolution creating a series of
its Preferred Stock, $1.00 par value, designated as Series A
Preferred Stock and a series of its Preferred Stock, $1.00 par
value, designated as Series B Preferred Stock:
RESOLVED, that pursuant to the authority vested in the
Board of Directors of this Corporation in accordance with the
provisions of Article Fourth of its Certificate of Incorporation
(the "Certificate of Incorporation"), two series of Preferred
Stock, $1.00 par value, of the Corporation, be and they hereby are
created, and that the respective designations and amounts thereof
and the respective voting powers, preferences and relative,
participating, optional and other special rights of the shares of
each such series, and the respective qualifications, limitations or
restrictions thereof are as follows:
(1) Designation and Amount. An aggregate of
-----------------------
946,167 shares of Preferred Stock, $1.00 par value, of
the Corporation are hereby constituted as a series
designated as "Series A Preferred Stock" (the "Series A
Preferred Stock"). An aggregate of 52.282 shares of
Preferred Stock, $1.00 par value, of the Corporation are
hereby constituted as a series designated as "Series B
Preferred Stock" (the "Series B Preferred Stock" and
together with the Series A Preferred Stock, the
"Preferred Stock"). Such number of shares of each such
series may be increased or decreased by resolution of the
Board of Directors; provided, that no decrease shall
--------
reduce the number of shares of either such series to a
number less than the number of shares of such series then
outstanding plus the number of shares of such series reserved for
issuance upon the exercise of outstanding options, rights or warrants
or upon the conversion of any outstanding securities issued
by the Corporation convertible into shares of such
series.
(2) Dividends. In the event that any dividends are
----------
declared in respect of the common stock, $.01 par value
(the "Common Stock"), of the Corporation (in cash, assets
of the Corporation, evidences of its indebtedness, or
securities of the Corporation (other than Common Stock,
rights or options contemplated in Section 4(c)(A) or
Convertible Securities (as hereinafter defined)), the
holders of the then outstanding Series A Preferred Stock
shall be entitled to receive dividends in an amount and
kind per share of Series A Preferred Stock equal to the
amount and kind of dividends paid on each share of the
Common Stock multiplied by the number of shares of Common
Stock into which each share of the Series A Preferred
Stock could then be converted and the holders of the then
outstanding Series B Preferred Stock shall be entitled to
receive dividends in an amount and kind per share of
Series B Preferred Stock equal to the amount and kind of
dividends paid on each share of the Common Stock
multiplied by the number of shares of Common Stock into
which each share of the Series B Preferred Stock could
then be converted, in each case payable at the time such
dividends are payable with respect to the Common Stock.
In the event that any dividends in Common Stock, rights
or options contemplated in Section 4(c)(A) or Convertible
Securities are declared in respect of the Common Stock,
the holders of the then outstanding Series A Preferred
Stock shall be entitled to receive dividends in an amount
and kind per share of Series A Preferred Stock equal to
the amount and kind of dividends paid on each share of
Common Stock multiplied by the number of shares of
Common Stock into which each share of the Series A
Preferred Stock could then be converted, payable at the
time such dividends are payable with respect to the
Common Stock.
(3) Liquidation, Dissolution or Winding Up. In the
---------------------------------------
event of the liquidation, dissolution or winding up of
the Corporation, if assets and funds remain in the
Corporation, the holders of the Series A Preferred Stock
shall be entitled to receive the amount per share of
$2.778 (which amount shall be the stated value of each
share of Series A Preferred Stock; hereinafter referred
to as the "Series A Issue Price") for each outstanding
share of Series A Preferred Stock held by them and the
holders of the Series B Preferred Stock shall be entitled
to receive the amount per share of $175 (which amount
shall be the stated value of each share of Series B
Preferred Stock; hereinafter referred to as the "Series B
Issue Price") for each share of Series B Preferred Stock
held by them before any amount shall be paid on account
of any other series of Preferred Stock or the Common
Stock. If the assets and funds of the Corporation shall
be insufficient to permit the payment in full to holders
of Series A and Series B Preferred Stock of the aforesaid
amounts, then the remaining assets and funds of the
Corporation shall be distributed ratably among the
holders of the then outstanding shares of Series A and
Series B Preferred Stock in the same proportion as the
full preferential amount each such holder would otherwise
be entitled to receive bears to the total of the full
preferential amounts that would otherwise be payable to
all holders of the Series A and Series B Preferred Stock.
A consolidation or merger of the Corporation with or into
any other corporation or corporations, or a sale,
conveyance or disposition of all or substantially all of
the assets of the Corporation shall be deemed to be a
liquidation within the meaning of this Section 3.
(4) Conversion. The Series A and Series B Preferred
-----------
Stock shall be subject to conversion as follows:
(a) Conversion Prices. On the Effective Date
------------------
(as hereinafter defined), each share of Series A
Preferred Stock automatically shall be converted into
such number of fully paid and nonassessable shares of
Common Stock as is determined by dividing the Series A
Issue Price by the Series A Conversion Price at the time
in effect for such share. On the Effective Date, each
share of Series B Preferred Stock automatically shall be
converted into such number of fully paid and
nonassessable shares of Common Stock as is determined by
dividing the Series B Issue Price by the Series B
Conversion Price at the time in effect for such share.
The initial Series A conversion Price per share shall be
the amount determined by dividing the Series A Issue
Price by three and the initial Series B Conversion Price
per share shall be the amount determined by dividing the
Series B Issue Price by 50; provided, however, that the
Series A Conversion Price shall be subject to adjustment
as set forth in Section 4(d) and the Series B Conversion
Price shall be subject to adjustment as set forth in
Sections 4(c) and 4(d). For purposes hereof, the term
"Effective Date" shall mean the effective date of an
amendment to the Certificate of Incorporation increasing
the number of shares of Common Stock authorized for
issuance to at least 20,000,000 shares.
(b) Mechanics of Conversion. Upon the terms and
------------------------
conditions set forth in this Certificate of Designation,
holders of Series A and Series B Preferred Stock shall
convert such shares into shares of Common Stock and the
Corporation shall exchange the certificates representing
the Series A and Series B Preferred Stock for
certificates representing Common Stock. Such conversion
shall be deemed to have been made immediately prior to
the close of business on the Effective Date and such
exchange of certificates shall take place within the
30-day period following the Effective Date at a date
mutually agreed upon by the holders of a majority of the
outstanding shares of Preferred Stock and the
Corporation. The person or persons entitled to receive
the shares of Common Stock issuable upon such conversion
shall be treated for all purposes as the record holder or
holders of such shares of Common Stock as of such date.
No fractional share of Common Stock, or scrip for any
such fractional share, shall be issued upon the
conversion of the Series A and Series B Preferred Stock,
but in lieu thereof the Corporation shall pay to each
older thereof who would otherwise have been entitled to
any such fractional share, out of funds legally available
therefor, a cash adjustment in respect of such fractional
share in an amount equal to the same fraction of the
Market Price (as hereinafter defined).
(c) Adjustment of Series B Conversion Price.
----------------------------------------
The Series B Conversion Price shall be subject to
adjustment from time to time as follows:
If and whenever after the Date of Original Issuance
(as hereinafter defined) the Corporation shall issue or
sell any shares of Common Stock for a consideration per
share of less than the Series B Conversion Price then in
effect, other than upon an issuance of Excluded Stock (as
hereinafter defined), forthwith upon such issue or sale
(and without regard to whether or not any shares of
Series B Preferred Stock theretofore shall have been
issued), the Series B Conversion Price shall be reduced
(but not increased, except as otherwise specifically
provided in subsection 4(c)(C)) to the price (calculated
to the nearest cent) determined by dividing (x) an amount
equal to the sum of (A) the aggregate number os shares of
Common Stock outstanding immediately prior to such issue
or sale multiplied by the then existing Series B
Conversion Price, and (B) the consideration, if any,
received by the Corporation upon such issue or sale, by
(y) the aggregate number of shares of Common Stock
outstanding immediately after such issue or sale. No
adjustment of the Series B Conversion Price, however,
shall be made in a amount less than $.01 per share, but
any such lesser adjustment shall be carried forward and
shall be made at the time of and together with the next
subsequent adjustment, provided, such adjustments result
in an adjustment in the Series B Conversion Price
exceeding $.01 per share in the aggregate.
For purposes of this Section 4(c), the following
subparagraphs A to (I), inclusive, shall be applicable:
(A) Issuance of Rights or Options. In case at any
------------------------------
time after the Date of Original Issuance the Corporation shall in
any manner grant (whether directly or by assumption in a merger or
otherwise) any rights to subscribe for or to purchase, or any
options for the purchase of shares of Common Stock or any stock or
securities convertible into or exchangeable for shares of Common
Stock (such convertible or exchangeable stock or securities being
herein called "Convertible Securities"), whether or not such rights
or options or the right to convert or exchange any such Convertible
Securities are immediately exercisable, and the price per share for
which shares of Common Stock are issuable upon the exercise of such
rights or options or upon conversion or exchange of such
Convertible Securities (determined by dividing (i) the total
amount, if any, received or receivable by the Corporation as
consideration for the granting of such rights or options, plus the
minimum aggregate amount of additional consideration, if any,
payable to the Corporation upon the exercise of such rights or
options, or plus, in the case of such rights or options which
relate to Convertible Securities, the minimum aggregate amount of
additional consideration, if any, payable upon the issue or sale of
such Convertible Securities and upon the conversion or exchange
thereof, by (ii) the total maximum number of shares of Common
Stock issuable upon the exercise of such rights or options or upon
the conversion or exchange of all such Convertible Securities
issuable upon the exercise of such rights or options) shall be less
than the Series B Conversion Price determined as of the date of the
granting o such rights or options, then the total maximum number of
shares of Common Stock issuable upon the exercise of such rights or
options or upon conversion or exchange of all such Convertible
Securities issuable upon the exercise of such rights or options
shall be deemed to be outstanding as of the date of the granting of
such rights or options and to have been issued for such price per
share, with the effect on the Series B Conversion Price specified
in Section 4(c). Except as provided in subparagraph (C), no
further adjustment of the Series B Conversion Price shall be made
upon the actual issue of such shares of Common Stock or of such
Convertible Securities upon exercise of such rights or options or
upon the actual issue of such shares of Common stock upon
conversion or exchange of such Convertible Securities.
(B) Issuance of Convertible Securities. In case at
-----------------------------------
any time after the Date of Original Issuance the Corporation shall
in any manner issue (whether directly or by assumption in a merger
or otherwise) or sell any Convertible Securities, whether or not
the right to exchange or convert thereunder is immediately
exercisable, and the price per share for which shares of Common
Stock are issuable upon such conversion or exchange (determined by
dividing (i) the total amount, if any, received or receivable by
the Corporation as consideration for the
issue or sale of such Convertible Securities, plus the minimum aggregate
amount of additional consideration, if any, payable to the Corporation upon
the conversion or exchange thereof, by (ii)the total maximum number of shares
of Common Stock issuable upon the conversion or exchange of all such
Convertible Securities) shall be less than the Series B Conversion Price
determined as of the date of such issue or sale, then the total maximum
number of shares of common Stock issuable upon conversion or exchange of all
such Convertible Securities shall be deemed to be outstanding as of the date
of the issue or sale of such Convertible Securities shall be deemed to be
outstanding as of the date of the issue or sale of such Convertible
Securities and to have been issued for such price per share, with the effect
on the Series B Conversion Price specified in Section 4(c); provided,
however, that (a) except as otherwise provided in subparagraph (C), no
further adjustment of the Series B Conversion Price shall be made upon the
actual issue of such shares of Common Stock upon conversion or exchange of
such Convertible Securities, and (b) if any such issue or sale of such
Convertible Securities is made upon exercise of any rights to subscribe for
or to purchase or any option to purchase any such Convertible Securities for
which adjustments of the Series B Conversion Price have been or are to be
made pursuant to the provisions of subparagraph (a), no further adjustment of
such Conversion Price shall be made by reason of such issue or sale.
(C) Change in Option Price or Conversion Rate.
------------------------------------------
Upon the happening of any of the following events, namely, if the purchase
price provided for in any right or option referred to in subparagraph (A),
the additional consideration, if any, payable upon the conversion or exchange
of any Convertible Securities referred to in subparagraphs (A) or (B), or the
rate at which any Convertible Securities referred to in subparagraphs (A) or
(B) are convertible into or exchangeable for shares of Common Stock shall
change (other than under or by reason of provisions designed to protect
against dilution), the Series B Conversion Price shall forthwith be
readjusted (increased or decreased, as the case may be) to the Series B
Conversion Price which would have been in effect at such time had such
rights, options or Convertible Securities still outstanding provided for such
changed purchase price, additional consideration or conversion rate, as the
case may be, at the time initially granted, issued or sold. On the
expiration of any such option or right referred to in subparagraph (A), or
the termination of any such right to convert or exchange any such Convertible
Securities referred to in subparagraphs (A) or (B), the Series B Conversion
Price shall forthwith be readjusted (increased or decreased, as the case may
be) to the Series B Conversion Price which would have been in effect at the
time of such expiration or termination had such right, option or Convertible
Securities, to the extent outstanding immediately prior to such expiration or
termination, never been granted, issued or sold, and the shares of Common
Stock issuable thereunder shall no longer be deemed to be outstanding. If
the purchase price provided for in any such right or option referred to in
subparagraph (A) or the rate at which any Convertible Securities referred to
in subparagraphs (A) or (B) are convertible into or exchangeable for shares
of common Stock shall be reduced at any time under or by reason of provisions
with respect thereto designed to protect against dilution, then in case of
the delivery of shares of Common Stock upon the exercise of any such right or
option or upon conversion or exchange of any such Convertible Securities, the
Series B Conversion Price then in effect hereunder shall, if not already
adjusted, forthwith be adjusted to such amount as would have obtained had
such right, option or Convertible Securities never been issued as to such
shares of Common Stock and had adjustments been made upon the issuance of the
shares of Common Stock delivered as aforesaid, but only if as a result of
such adjustment such Conversion Price is thereby reduced.
(D) Stock Dividend. In case at any time on or after
---------------
the Date of Original Issuance the Corporation shall declare a dividend or
make any other distribution upon any class or series of stock of the
Corporation payable in shares of Common Stock or Convertible Securities, any
shares of Common Stock or Convertible Securities, as the case may be,
issuable in payment of such dividend or distribution shall be deemed to have
been issued or sold without consideration with the effect on the Series B
Conversion Price specified in Section 4(c).
(E) Consideration for Stock. In case at any time
------------------------
shares of Common Stock or Convertible Securities or any rights or options to
purchase any such shares of Common Stock or Convertible Securities shall be
issued or sold for cash, the consideration therefore shall be deemed to be
the amount received by the Corporation therefor, without deduction therefrom
of any expense incurred or any underwriting commissions or concessions paid
or allowed by the Corporation in connection therewith. In case at any time
any shares of Common Stock, Convertible Securities or any rights or options
to purchase any such shares of Common Stock or Convertible Securities shall
be issued or sold for consideration other than cash, the amount of the
consideration other than cash received by the Corporation shall be deemed to
be the fair value of such consideration, as determined reasonably and in good
faith by the Board of Directors of the Corporation, without deduction of any
expenses incurred or any underwriting commissions or concessions paid or
allowed by the Corporation in connection therewith. In case at any time any
shares of Common Stock, Convertible Securities or any rights or options to
purchase any shares of Common Stock or Convertible Securities shall be issued
in connection with any merger or consolidation in which the Corporation is
the surviving corporation, the amount of consideration received therefor
shall be deemed to be the fair value, as determined reasonably and in good
faith by the Board of Directors of the Corporation, of such portion of the
assets and business of the nonsurviving corporation as such Board of
Directors may determine to be attributable to such shares of Common Stock,
Convertible Securities, rights or options, as the case may be. In case at
any time any rights or options to purchase any shares of Common Stock or
Convertible Securities shall be issued in connection with the issue and sale
of other securities of the Corporation, together comprising one integral
transaction in which no consideration is allocated to such rights or options
by the parties thereto, such rights or options shall be deemed to have been
issued without consideration.
(F) Record Date. In case the Corporation shall take
------------
a record of the holders of its shares of Common Stock for the purpose of
entitling them (i) to receive a dividend or other distribution payable in
shares of Common Stock or Convertible Securities, or (ii) to subscribe for or
purchase shares of Common Stock or Convertible Securities, then such record
date shall be deemed to be the date of the issue or sale of the shares of
Common Stock or Convertible Securities deemed to have been issued or sold as
a result of the declaration of such dividend or the making of such other
distribution or the date of the granting of such right or subscription or
purchase, as the case may be.
(G) Treasury Shares. The number of shares of Common
----------------
Stock outstanding at any given time shall not include shares owned or held by
or for the account of the Corporation, and the disposition of any such shares
shall be considered an issue or sale of shares of Common Stock for the
purposes of Section 4(c).
(H) Definition of Market Price. The term "Market Price" shall
---------------------------
mean, for any day, the last sale price for the Common Stock on the
principal securities exchange (other than the Boston Stock Exchange) on
which the Common Stock is listed or admitted to trading, or, if not so
listed or admitted to trading on any securities exchange (other than the
Boston Stock Exchange), the last sale price for the Common Stock on the
National Association of Securities Dealers National Market System, of,
if the common Stock shall not be listed on such system, the closing bid
price in the over-the-counter market, in each such case, unless
otherwise provided herein, averaged over a period of 20 consecutive
business days prior to the day as of which Market Price is being
determined. If at any time the Common stock is not listed on any such
exchange or such system or quoted in the over-the-counter market, the
Market Price of the Common Stock shall be deemed to be the higher of (i)
the book value thereof, as determined in accordance with generally
accepted accounting principles consistent with those then being applied
by the Corporation, by any firm of independent certified public
accountants (which may be the regular auditors of the Corporation) of
recognized national standing selected by the Board of Directors of the
Corporation, as of the last day of the month ending within 31 days
preceding the date as of which the determination is to be made, and (ii)
the fair value thereof, as determined in good faith by an independent
investment banking firm, Standard & Poor's Corporation or Moody's
Investors Service, as selected by the Board of Directors of the
Corporation, as the date which is within 15 days preceding the date as
of which the determination is to be made. The Corporation shall pay all
costs and expenses in connection with the determination of the Market
Price of the Common Stock.
(I) Definition of Excluded Stock and Date of Original
-------------------------------------------------
Issuance. The term "Excluded Stock" shall mean shares of Common
- ---------
Stock issued (w) upon exercise of options granted under the Corporation's
1983 Stock Option Plan (the "Stock Option Plan") outstanding as of
February 22, 1989 (the "Date of Original Issuance") or options granted under
the Stock Option Plan subsequent to the Date of Original Issuance or (x)
pursuant to the Corporation's 1983 Employee Stock Purchase plan or (y) upon
conversion of the Series A Preferred Stock or (z) upon exercise of (i)
options to purchase an aggregate of 25,000 shares of Common Stock granted by
the Company in connection with the acquisition (the "Goldbergs'
Acquisition"), by the Corporation of the businesses of Goldbergs' Marine
Distributors, Inc. and Goldbergs' Marine Distributors of New York, Inc., (ii)
warrants to purchase an aggregate of 60,000 shares of Common Stock granted by
the Corporation in connection with the Goldbergs' Acquisition, (iii) warrants
to purchase an aggregate of 100,000 shares of Common Stock granted by the
Corporation to Alvarez & Marsal, Inc., and (iv) warrants to purchase an
aggregate of 278,000 shares of Common Stock granted by the Corporation to
certain of its present and former directors.
(d) Subdivision or Combination of Stock. In
------------------------------------
case the Corporation shall at any time on or after the Date or Original
issuance subdivide by stock split its outstanding Common Stock into a greater
number of shares, the Series A and Series B Conversion Prices in effect
immediately prior to such subdivision shall be proportionately reduced, and
conversely, in case the outstanding Common Stock of the Corporation shall be
combined on or after the Date of Original Issuance by reverse stock split
into a smaller number of shares, the Series A and Series B Conversion Prices
in effect immediately prior to such combination shall be proportionately
increased, in each case without regard to whether or not any shares of
Series B Preferred Stock theretofore shall have been issued.
(e) Reorganization, Reclassification,
---------------------------------
Consolidation, Merger. In case any capital reorganization,
- ----------------------
reclassification of the capital stock of the Corporation, consolidation or
merger of the Corporation with another corporation, or sale, transfer or
other disposition of all or substantially all of the Corporation's properties
to another corporation shall be effected, then, as a condition of such
reorganization, reclassification, consolidation, merger, sale, transfer or
other disposition, lawful and adequate provision shall be made whereby each
holder of Series A Preferred Stock and each holder of Series B Preferred
Stock shall thereafter have the right to purchase and receive upon the basis
and upon the terms and conditions herein specified and in lieu of the
securities immediately theretofore issuable upon conversion of each share of
such series of Preferred Stock, such shares of stock, securities or
properties as may be issuable to payable with respect to or in exchange for
a number of outstanding shares of Common Stock into which a share of such
series of Preferred Stock is then convertible had such reorganization,
reclassification, consolidation, merger, sale, transfer or other disposition
not taken place, and in any such case appropriate provision shall be made
with respect to the rights and interests of each holder of the Series A
Preferred Stock and each holder of Series B Preferred Stock and each holder
of Series B Preferred Stock to the end that the provisions hereof (including,
without limitation, provision for adjustment of the Series A and Series B
Conversion Prices) shall thereafter be applicable, as nearly equivalent as
may be practicable in relating to any shares of stock, securities or
properties thereafter deliverable upon the exercise thereof. The Corporation
shall not effect any such consolidation, merger, sale, transfer or other
disposition, unless prior to or simultaneously with the consummation thereof
the successor corporation, if other than the Corporation, resulting from such
consolidation or merger, or the corporation purchasing or otherwise acquiring
such properties shall assume, by written instrument executed and mailed or
delivered to the holders of the Series A and Series B Preferred Stock at the
last address of such holders appearing in the books of the Corporation, the
obligation to deliver to such holders such shares of stock, securities or
properties, in accordance with the foregoing provisions, as such holder may
be entitled to acquire. The above provisions of this Section 4(e) shall
similarly apply to successive reorganizations, reclassifications,
consolidations, mergers, sales, transfers, or other dispositions.
(f) Notice of Determination. Except as
------------------------
otherwise provided herein, upon any adjustment of the Series A Conversion
Price or Series B Conversion Price, then and in each such case the
Corporation shall promptly deliver to each holder of such series of Preferred
Stock a certificate of the Corporation's chief financial officer stating the
Conversion Price of such series resulting from such adjustment and the
increase or decrease, if any, in the number of shares of Common Stock into
which each share of such series of Preferred Stock is then convertible, and
setting forth in reasonable detail the method of calculation and the facts
upon which such calculation is based.
(g) Intent of Provisions. If any event occurs
---------------------
as to which, in the opinion of the Board of Directors of the Corporation, the
other provisions of this Section 4 are not strictly applicable or if strictly
applicable, would not fairly protect the rights of the holders of the
Series A Preferred Stock or the holders of the Series B Preferred Stock or
the holders of the Series B Preferred Stock in accordance with the essential
intent and principles of such provision, then such Board of Directors shall
appoint a firm of independent certified public accountants (which may be the
regular auditors of the Corporation) of recognized national standing, which
shall give their opinion, at the Corporation's expense, upon the adjustment,
if any, on a basis consistent with such essential intent and principles,
necessary to preserve, without dilution, the right of the holders of the
Series A Preferred Stock or the Series B Preferred Stock, as the case may be.
Upon receipt of such opinion by the Board of Directors of the Corporation,
the Corporation shall forthwith make the adjustments described therein;
provided, however, that no such adjustment pursuant to this Section 4(g)
shall have the effect of increasing the Conversion Price as otherwise
determined pursuant to the other provisions of this Section 4 except in the
event of a combination of shares of the type contemplated in Section 4(d) and
then in no event to an amount larger than the Series A or Series B Conversion
Price as adjusted pursuant to Section 4(d).
(h) The Corporation will take such corporate action as may,
in the opinion of its counsel, be necessary to increase its authorized
but unissued shares of Common Stock to such number of shares as shall be
sufficient for the purpose of effecting the conversion of all
outstanding shares of Series A and Series B Preferred Stock.
(5) Other Notices. If at any time:
--------------
(a) The Corporation shall declare any dividend on the Common
Stock payable in shares of capital stock of the Corporation, cash or
other property; or
(b) The Corporation shall authorize the issue of any
options, warrants or rights pro rata to all holders of Common Stock
entitling them to subscribe for or purchase any shares of stock of the
Corporation or to receive any other rights; or
(c) The Corporation shall authorize the distribution pro
rata to all holders of Common Stock of evidences of its indebtedness or
assets (excluding cash dividends or cash distributions paid out of
retained earnings or retained surplus); or
(d) There shall occur any reclassification of the Common
Stock, or any consolidation or merger of the Corporation with or into
another corporation or a sale, conveyance or other disposition to
another corporation of all or substantially all of the properties of the
Corporation; or
(e) There shall occur the voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation:
then, and in each of such cases, the Corporation shall deliver to each
holder of Series A Preferred Stock and each holder of Series B Preferred
Stock at its last address appearing on the books of the Corporation as
promptly as practicable but in any event at last 30 days prior to the
applicable record date (or determination date) mentioned below, a notice
stating, to the extent such information is available, (i) the date on
which a record is to be taken for the purpose of such dividend,
distribution or rights, or, if a record is not to be taken, the date as
of which the holders of Common Stock of record to be entitled to such
dividend, distribution or rights are to be determined, or (ii) the date
on which such reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution or winding up is expected to become effective
and the date as of which it is expected that holders of Common Stock of
record shall be entitled to exchange their common Stock for securities
or other property deliverable upon such reclassification, consolidation,
merger, sale, transfer, liquidation, dissolution or winding up.
(6) Voting Rights. The holders of shares of Series A
--------------
and Series B Preferred Stock shall have the following voting rights:
(a) Number of Votes. Each share of Series A and Series B
----------------
Preferred Stock shall entitle the holder thereof to one vote on all matters
submitted to a vote of the stockholders of the Corporation.
(b) Voting as a Single Class. Except as
-------------------------
otherwise provided herein, in the Certificate of Incorporation, in any other
Certificate of Designation creating a series of Preferred Stock or any
similar stock, or by law, the holders of shares of Series A Preferred Stock,
the holders of shares of Series B Preferred Stock and the holders of shares
of Common Stock and any other capital stock of the Corporation having general
voting rights shall vote together as one class on all matters submitted to
vote together as one class on all matters submitted to a vote of stockholders
of the Corporation.
(7) Reacquired Shares. Any shares of Series A or
------------------
Series B Preferred Stock purchased or otherwise acquired by the Corporation
in any manner whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and may be reissued as part
of a new series of Preferred Stock subject to the conditions and restrictions
on issuance set forth herein, in the Certificate of Incorporation or as
otherwise required by law.
(8) Redemption. The shares of Series A and Series B
-----------
Preferred Stock shall not be redeemable.
(9) Bank. The Series A and Series B Preferred Stock
-----
shall rank, with respect to the payment of dividends and the distribution of
assets, pari passu with respect to each other and
----------
senior to any other series of the Corporation's Preferred Stock and to all
other classes of the Corporation's capital stock.
(10) Amendment. The Certificate of Incorporation shall not be
----------
amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series A or Series B Preferred Stock so
as to affect them adversely without the affirmative vote of the holders of at
least two-thirds of the outstanding shares of Series A and Series B Preferred
Stock, voting together as a single series.
This Certificate of Designation was authorized by resolution duly
adopted by the Board of Directors of the Corporation at a meeting thereof
duly called and held on February 21, 1989, at which a quorum was present and
acting throughout.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal
to be hereunder affixed and this Certificate of Designation to be singed by
Frederick H. Bond, Jr., its Chief Executive Officer, and attested to by
Thomas M. Haythe, its Assistant Secretary on the 27th day of February, 1989.
E&B MARINE INC.
/s/ Frederick H. Bond, Jr.
--------------------------
Chief Executive Officer
[SEAL]
Attest:
/s/ Thomas M. Haythe
- -----------------------
Assistant Secretary
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
E&B MARINE INC.
E&B MARINE INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), DOES HEREBY CERTIFY as follows:
FIRST: The Certificate of Incorporation of the Corporation is
hereby amended by deleting Article FOURTH of the Certificate of Incorporation
in its present form and substituting therefor a new Article FOURTH in the
following form:
FOURTH: The total number of shares of capital stock which the
Corporation shall have authority to issue is 1,000,000 shares of preferred
stock, $1.00 par value ("Preferred Stock"), and 20,000,000 shares of common
stock, $.01 par value ("Common Stock").
SECOND: The amendment to the Certificate of Incorporation of the
Corporation set forth in this Certificate of Amendment has been duly adopted
in accordance with the applicable provisions of Section 242 of the General
Corporation Law of the State of Delaware, (a) the Board of Directors of the
Corporation having duly adopted a resolution setting forth such amendment and
declaring its advisability at a meeting of the Board of Directors of the
Corporation duly called and held in conformity with the Bylaws of the
Corporation and (b) in lieu of a meeting and vote of stockholders, the
holders of the capital stock of the Corporation having not less than the
minimum number of votes that would have been necessary to adopt such an
amendment at a meeting at which all members having a right to vote thereon
were present and voted having duly consented in writing to the adoption of
such amendment and written notice thereof in accordance with Section 228(d)
of the General Corporation Law of the Statement of Delaware having been given
to the holders who did not so consent.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal
to be hereunto affixed and this Certificate of Amendment of its Certificate
of Incorporation to be signed as of the 8th day of August, 1989.
E&B MARINE INC.
By /s/ Frederick H. Bond, Jr.
--------------------------
Title:
E.V.P. & C.E.O.
Frederick Bond
[Corporate Seal]
Attest:
/s/ Daniel Morris
- -----------------
Secretary
Assistant
Daniel Morris
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
E&B MARINE INC.
Pursuant to Section 242 of
the Delaware General Corporation Law
E&B MARINE INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), DOES HEREBY CERTIFY as follows:
FIRST: The Certificate of Incorporation of the Corporation is
hereby amended by deleting Article FOURTH of the Certificate of Incorporation
in its present form and substituting therefor a new Article FOURTH in the
following form:
FOURTH: The total number of shares of capital stock which the
Corporation shall have authority to issue is 1,000,000 shares of
preferred stock, $1.00 par value ("Preferred Stock"), and 30,000,000
shares of common stock, $.01 par value ("Common Stock").
SECOND: The amendment to the Certificate of Incorporation of the
Corporation set forth in this Certificate of Amendment has been duly adopted
in accordance with the applicable provisions of Section 242 of the General
Corporation Law of the State of Delaware, (a) the Board of Directors of the
Corporation having duly adopted a resolution setting forth such amendment
and declaring its advisability at a meeting of the Board of Directors of the
Corporation duly called and held in conformity with the By-laws of the
Corporation and (b) the stockholders of the Corporation having duly adopted
such amendment by a vote of the holders of a majority of the shares of
outstanding capital stock entitled to vote thereon at the Annual Meeting of
Stockholders called and held upon notice in accordance with Section 222 of
the General Corporation Law of the State of Delaware, there being only one
class of capital stock of the Corporation outstanding.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal
to be hereunto affixed and this Certificate of Amendment of its Certificate
of Incorporation to be signed as of the 20th day of June, 1991.
E&B MARINE INC.
By: /s/ Frank Fuino
-------------------------------
Title: Sr. Vice President and
Chief Financial Officer
Attest:
/s/ Robert Defonte
- -------------------
Title: Secretary
CERTIFICATE OF CORRECTION
TO
CERTIFICATE OF AMENDMENT
OF
RESTATED
CERTIFICATE OF INCORPORATION
OF
E&B MARINE INC.
After Receipt of Payment for Stock
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
The undersigned, Chairman of the Board of E&B MARINE INC., a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware (the "Corporation"), DOES HEREBY
CERTIFY as follows:
FIRST: The Restated Certificate of Incorporation of the Corporation was
amended by the filing of a Certificate of Amendment of Certificate of
Incorporation with the Secretary of State of Delaware on August 10, 1989 (the
"Amendment").
SECOND: The Amendment contained an inaccuracy as follows: clause FIRST
incorrectly excluded the words "the first sentence of" before the references
therein to "Article FOURTH".
THIRD: Clause FIRST of the Amendment, in its corrected form, should
read in its entirety as follows:
"FIRST: The Certificate of Incorporation of the Corporation is
hereby amended by deleting the first sentence of Article FOURTH of the
Certificate of Incorporation in its present form and substituting
therefor a new first sentence of Article FOURTH in the following form:
FOURTH: The total number of shares of capital stock which the
Corporation shall have the authority to issue is 1,000,000 shares
of preferred stock, $1.00 par value ("Preferred Stock"), and
20,000,000 shares of common stock, $.01 par value ("Common
Stock")."
* * *
IN WITNESS WHEREOF, the Corporation has caused its corporate seal
to be hereunto affixed and this Certificate of Correction to Certificates of
Amendment of its Restated Certificate of Incorporation to be signed as of the
18th day of October, 1993.
E&B MARINE INC.
By:/s/ Kenneth G. Peskin
----------------------------
Name: Kenneth G. Peskin
Title: Chairman of the Board
[Corporate Seal]
Attest:
By:/s/ Robert G. Defonte
------------------------
Name: Robert G. Defonte
Title: Secretary
CERTIFICATE OF CORRECTION
TO
CERTIFICATE OF AMENDMENT
OF
RESTATED
CERTIFICATE OF INCORPORATION
OF
E&B MARINE INC.
After Receipt of Payment for Stock
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
----------------------------------------
The undersigned, Chairman of the Board of E&B MARINE INC., a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware (the "Corporation"), DOES HEREBY
CERTIFY as follows:
FIRST: The Restated Certificate of Incorporation of the Corporation was
amended by the filing of a Certificate of Amendment of Certificate of
Incorporation with the Secretary of State of Delaware on June 26, 1991 (the
"Amendment").
SECOND: The Amendment contained an inaccuracy as follows: clause FIRST
incorrectly excluded the words "the first sentence of" before the references
therein to "Article FOURTH".
THIRD: Clause FIRST of the Amendment, in its corrected form, should
read in its entirety as follows:
"FIRST: The Certificate of Incorporation of the Corporation
is hereby amended by deleting the first sentence of Article FOURTH
of the Certificate of Incorporation in its present form and
substituting therefor a new first sentence of Article FOURTH in the
following form:
FOURTH: The total number of shares of capital stock
which the Corporation shall have the authority to issue
is 1,000,000 shares of preferred stock, $1.00 par value
("Preferred Stock"), and 30,000,000 shares of common
stock, $.01 par value ("Common Stock")."
* * *
IN WITNESS WHEREOF, the Corporation has caused its corporate seal
to be hereunto affixed and this Certificate of Correction to Certificates of
Amendment of its Restated Certificate of Incorporation to be signed as of the
18th day of October, 1993.
E&B MARINE INC.
By: /s/ Kenneth G. Peskin
--------------------------
Name: Kenneth G. Peskin
Title: Chairman of the Board
[Corporate Seal]
Attest:
By: /s/ Robert G. Defonte
-----------------------
Name: Robert G. Defonte
Title: Secretary
CERTIFICATE OF AMENDMENT
OF
RESTATED
CERTIFICATE OF INCORPORATION
OF
E&B MARINE INC.
After Receipt of Payment for Stock
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
The undersigned, President of E&B MARINE INC., a corporation
organized and existing under and by virtue of the General Corporation Law of
the State of Delaware (the "Corporation"), DOES HEREBY CERTIFY as follows:
FIRST: The Restated Certificate of Incorporation of the
Corporation is hereby amended as follows effective December 8, 1993 at 9:00
o'clock A.M.:
1. Article FOURTH of the Restated Certificate of
Incorporation shall be amended by deleting the first sentence of
Article FOURTH in its entirety and substituting in lieu thereof the
following:
FOURTH: The total number of shares of capital stock
which the Corporation shall have the authority to issue is
1,000,000 shares of preferred stock, $1.00 par value
("Preferred Stock"), and 30,000,000 shares of common stock,
$0.001 par value. On December 8, 1993 at 9:00 o'clock A.M.
(the "Effective Time"), this amendment shall become effective
and (i) each four shares of common stock, $0.01 par value (the
"Old Common Stock"), of the Company issued and outstanding or
held in treasury immediately prior to the Effective Time will
automatically be reclassified into one share of common stock,
$0.001 par value (the "Common Stock"). No fractional shares
will be issued and, in lieu thereof, each holder of shares of
Old Common Stock whose aggregate shares of Old Common Stock
held in one name or account immediately prior to the Effective
Time are fewer than four or not evenly divisible by four shall
be entitled to receive cash from the Company for the resulting
fractional share interest in an amount equal to the product of
(i) the average of the average of the bid and asked prices of
the Old Common Stock for the 20 trading days immediately
preceding the Effective Time multiplied by (ii) the number of
shares of Old Common Stock held by such holder immediately
prior to the Effective Time and which have not been
reclassified into shares of Common Stock.
SECOND: The amendments to the Restated Certificate of
Incorporation of the Corporation set forth in this Certificate of Amendment
have been duly adopted in accordance with the applicable provisions of
Section 242 of the General Corporation Law of the State of Delaware, (a) the
Board of Directors of the Corporation having duly adopted resolutions
setting forth such amendments and declaring their advisability and submitting
them to the stockholders of the Corporation for their approval in conformity
with the By-laws of the Corporation, and (b) the holders of a majority of the
outstanding capital stock of the Corporation entitled to vote thereon having
duly adopted resolutions setting forth such amendments by written consent in
lieu of a meeting in conformity with the By-laws of the Corporation.
* * *
IN WITNESS WHEREOF, the Corporation has caused its corporate seal
to be hereunto affixed and this Certificate of Amendment of its Restated
Certificate of Incorporation to be signed as of the 6th day December, 1993.
E&B MARINE INC.
By /s/ Kenneth G. Peskin
-----------------------
Name: Kenneth G. Peskin
Title: President
[Corporate Seal]
Attest:
/s/ Robert G. Defonte
- ------------------------
Name: Robert G. Defonte
Title: Secretary
CERTIFICATE OF AMENDMENT
OF
RESTATED
CERTIFICATE OF INCORPORATION
OF
E&B MARINE INC.
E&B MARINE INC., a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), pursuant to the provisions
of the General Corporation Law of the State of Delaware (the "GCL"), DOES
HEREBY CERTIFY as follows:
FIRST: The Restated Certificate of Incorporation of the
Corporation is hereby amended by deleting the first sentence of ARTICLE
FOURTH of the Restated Certificate of Incorporation in its present form and
substituting therefor a new first sentence of the first paragraph of ARTICLE
FOURTH in the following form:
FOURTH: The total number of shares of capital stock
which the Corporation shall have authority to issue is
1,000,000 shares of Preferred Stock, $1.00 par value (the
"Preferred Stock"), and 10,000,000 shares of Common
Stock, $.001 par value.
SECOND: The amendment to the Restated Certificate of Incorporation
of the Corporation set forth in this Certificate of Amendment has been duly
adopted in accordance with the applicable provisions of Section 242 of the
GCL (a) the Board of Directors of the Corporation having duly adopted a
resolution setting forth such amendment and declaring its advisability and
submitting it to the stockholders of the Corporation for their approval, and
(b) the stockholders of the Corporation having duly adopted such amendment by
vote of the holders of a majority of the outstanding stock entitled to vote
thereon at the annual meeting of stockholders called and held upon notice in
accordance with Section 222 of the GCL.
* * *
IN WITNESS WHEREOF, the Corporation has caused its corporate seal
to be hereunto affixed and this Certificate of Amendment to be signed by
Kenneth G. Peskin, its Chairman of the Board, and attested by Robert G.
Defonte, its Secretary, this 20th day of June, 1995.
E&B MARINE INC.
By:/s/ Kenneth G. Peskin
-----------------------
Kenneth G. Peskin
Chairman of the Board
[Corporate Seal]
ATTEST:
/s/ Robert G. Defonte
- ---------------------
Robert G. Defonte
Secretary
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