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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
AMENDMENT TO APPLICATION OR REPORT
Filed pursuant to Section 13 or 15 (d) of
THE SECURITIES EXCHANGE ACT OF 1934
FEDDERS CORPORATION
(Exact name of Registrant as specified in charter)
AMENDMENT NO. 1
The undersigned registrant hereby amends Form 10-K for year
ending August 31, 1997 filed December 1, 1997 as set forth in
pages attached.
Exhibit 3 Articles of Incorporation
Pursuant to the requirements of the Securities Exchange Act of
1934, registrant has duly caused this amendment to be signed on
its behalf by the undersigned, thereunto duly authorized.
FEDDERS CORPORATION
(Registrant)
/S/
Robert L. Laurent, Jr.
Executive Vice President,
Finance & Administration
and Chief Financial Officer
Date: December 2, 1997
CERTIFICATE OF INCORPORATION
of
FEDDERS CORPORATION
FIRST: The name of the corporation shall be FEDDERS CORPORATION.
SECOND: The purposes for which the Corporation is formed are as follows:
(a) To design, manufacture, buy, sell, distribute, at wholesale or retail,
import and export, rent and lease, repair and maintain, dispose of, and
generally deal in all kinds of air-conditioning apparatus,
equipment and appliances; refrigeration apparatus, equipment and appliances;
heating apparatus, equipment and appliances; gas and electric stoves and
ranges; automatic clothes-washing machines and
clothes-drying machines of all kinds and for all purposes; automobile
radiators and other components of all kinds; sheetmetal specialties; and all
other devices of any kind or nature used in conjunction
therewith, or incidental or accessory thereto.
(b) To design, create, manufacture, produce, export, import, purchase,
acquire, sell, dispose of, and generally deal in and with materials, articles,
machinery, apparatus, equipment, appliances, supplies,
goods and other personal property of every kind and description, tangible or
intangible, and to engage in any mercantile, commercial manufacturing or trading
business of any character.
(c) To acquire, by purchase or otherwise, own, hold, lease, mortgage, sell,
or otherwise dispose of, and generally deal in and with rights and interests in
real and personal property of every kind and description.
(d) To acquire, sell or otherwise dispose of, deal in and with, and grant and
obtain licenses for all kinds of intangible property, including patent
rights, improvements thereon, inventions, discoveries,
formulas and processes, copyrights, trademarks, trade names and designs.
(e) To the extent permitted by law, to promote, finance, underwrite and assist,
financially or otherwise, and to assume and guarantee the obligations of any
individual, corporation or other entity,
and to purchase or otherwise acquire, hold, own, sell or otherwise dispose of
securities and obligations of every nature and kind of any issuer, whether or
not incorporated.
(f) To do all and everything necessary, suitable or proper for the
accomplishment of any of the purposes or the attainment of any of the objectives
hereinbefore set forth, either alone or in association with other
corporations, firms or individuals, and to do every other act or acts, thing or
things, incidental or appurtenant to or arising out of or connected with the
aforesaid businesses or any part or parts thereof.
(g) To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
THIRD: The aggregate number of shares of stock of all classes which the
Corporation shall have authority to issue is 162,500,000, consisting of
80,000,000 shares of Common Stock having a par value of $1.00 per share,
60,000,000 shares of Class A Stock having a par value of $1.00 per share,
7,500,000 shares of Class B Stock having a par value of $1.00 per share and
15,000,000 shares of Preferred Stock having a par value of $1.00 per share.
The powers, preferences and the relative, participating, optional and other
rights and the qualifications, limitations and restrictions thereof, of each
class of stock, and the express grant of authority to the Board of Directors
to fix by resolution the designations and the powers, preferences and rights
of each share of Preferred Stock and the qualifications, limitations and
restrictions thereof which are not fixed by this Certificate of
Incorporation, are as follows:
A. COMMON STOCK, CLASS A STOCK AND CLASS B STOCK.
I. Dividends, etc.
Subject to the rights of the holders of Preferred Stock, and subject to any
other provisions of this Certificate of Incorporation, as amended from time
to time, holders of Common Stock, Class A Stock and Class B Stock shall be
entitled to receive such dividends and other distributions in cash, stock or
property of the Corporation as may be declared thereon by the Board of
Directors from time to time out of assets or funds of the Corporation legally
available therefor; provided, that in the case of cash dividends, if at any
time a cash dividend is paid on the Common Stock, a cash dividend of equal
amount shall be paid on the Class A Stock and a cash dividend will also be
paid on the Class B Stock in an amount per share of Class B Stock equal to
90% of the amount of the cash dividend paid on each share of the Common Stock
(rounded down, if necessary, to the nearest one-hundredth of a cent); and
provided, further, that in the case of dividends or other distributions
payable in stock of the Corporation other than Preferred Stock, including
distributions pursuant to stock splits or divisions of stock of the
Corporation other than Preferred Stock, which occur after the initial
issuance of shares of Class A Stock and Class B Stock by the Corporation,
unless the dividend or distribution is solely of shares of Class A Stock, in
which case a dividend or distribution payable solely in shares of Class A
Stock may be made with respect to shares of Common Stock, Class A Stock and
Class B Stock, only shares of Common Stock shall be distributed with respect
to Common Stock, only shares of Class A Stock shall be distributed with
respect to Class A Stock and only shares of Class B Stock shall be
distributed with respect to Class B Stock, in each case, in an amount per
share equal to the amount per share paid with respect to the Common Stock,
and that, in the case of any combination, reclassification or subdivision of
the Common Stock, the shares of Class A Stock and Class B Stock shall also be
combined, reclassified or subdivided so that the number of shares of Class A
Stock and Class B Stock outstanding immediately following such combination,
reclassification or subdivision shall bear the same relationship to the
number of shares outstanding immediately prior to such combination,
reclassification or subdivision as the number of shares of Common Stock
outstanding immediately following such combination, reclassification or
subdivision bears to the number of shares of Common Stock outstanding
immediately prior to such combination, reclassification or subdivision.
II. Voting.
(a) At every meeting of the stockholders, every holder of Common Stock shall
be entitled to one (1) vote in person or by proxy for each share of Common
Stock standing in his name on the transfer books of the Corporation and every
holder of Class B Stock shall be entitled to one (1) vote in person or by
proxy for each share of Class B Stock standing in his name on the transfer
books of the Corporation, except that each holder of Class B Stock shall be
entitled to ten (10) votes per share on the election of any directors at any
stockholders' meeting (i) if more than 15% of the shares of Common Stock
outstanding on the record date for such meeting are beneficially owned by a
person or group of persons acting in concert (unless such person or group is
also the beneficial owner of a majority of the shares of Class B Stock on
such record date), or (ii) if a nomination for the Board of Directors is made
by a person or group of persons acting in concert (other than the Board of
Directors), provided that such nomination is not made by one or more holders
of Class B Stock, acting in concert with each other, who beneficially own
more than 15% of the shares of Class B Stock outstanding on such record date.
The holders of Class A Stock shall not be entitled to vote at any meeting of
the stockholders or otherwise, except as may be specifically required by
applicable law.
(b) The provisions of this Certificate of Incorporation shall not be
modified, revised, altered or amended, repealed or rescinded in whole or in
part, without (i) the affirmative vote of the holders of a majority of the
shares of the Common Stock and of a majority of the shares of the Class B
Stock, each voting separately as a class, and (ii) additionally with respect
to Article Eighth, the vote required by Article Eighth.
(c) The Corporation may not effect or consummate:
(1) any merger or consolidation of the Corporation with or into any other
corporation;
(2) any sale, lease, exchange or other disposition of all or substantially
all of the assets of the Corporation to or with any other person; or
(3) any dissolution of the Corporation;
unless and until such transaction is authorized by the vote, if any, required
by Article Eighth of this Certificate of Incorporation and by Delaware law;
and unless and until such transaction is authorized by a majority of the
votes entitled to be cast by the shares of Common Stock and of Class B Stock
entitled to vote, each voting separately as a class, but the foregoing shall
not apply to any merger or other transaction described in the preceding
subparagraphs (1) and (2) if the other party to the merger or other
transaction is a Subsidiary of the Corporation.
For purposes of this paragraph (c) a "Subsidiary" is any corporation more
than 50% of the voting securities of which are owned directly or indirectly
by the Corporation; and a "person" is any individual, partnership,
corporation or entity.
(d) Following the initial issuance of shares of Class B Stock, the
Corporation may not effect the issuance of any additional shares of Class B
Stock (except in connection with stock splits and stock dividends) unless and
until such issuance is authorized by the holders of a majority of the voting
power of the shares of Common Stock and of Class B Stock entitled to vote,
each voting separately as a class.
(e) Every reference in this Certificate of Incorporation to a majority or
other proportion of shares of stock shall refer to such majority or other
proportion of the votes entitled to be cast by such shares.
(f) Except as may be otherwise required by law or by this Article Third, the
holders of Common Stock and Class B Stock shall vote together as a single
class, subject to any voting rights which may be granted to holders of
Preferred Stock.
III. Transfer.
(a) No person holding shares of Class B Stock of record (hereinafter called
a "Class B Holder") may transfer, and the Corporation shall not register the
transfer of, such shares of Class B Stock, as Class B Stock, whether by sale,
assignment, gift, bequest, appointment or otherwise, except to a Permitted
Transferee and any purported transfer of shares not permitted hereunder shall
result in the conversion of such shares into Common Stock as provided by
subsection (d) of this Section III. A Permitted Transferee shall mean, with
respect to each person from time to time shown as the record holder of shares
of Class B Stock:
(i) In the case of a Class B Holder who is a natural person:
(A) The spouse of such Class B Holder, any lineal descendant of a
parent of such Class B Holder, and any spouse of such lineal descendant
(which lineal descendants, their spouses, the Class B Holder, and his or her
spouse are herein collectively referred to as "Class B Holder's Family
Members");
(B) The trustee of a trust (including a voting trust) principally
for the benefit of such Class B Holder and/or one or more of his or her
Permitted Transferees described in each subclause of this clause (i) other
than this subclause (B), provided that such trust may also grant a general or
special power of appointment to one or more of such Class B Holder's Family
Members and may permit trust assets to be used to pay taxes, legacies and
other obligations of the trust or of the estates of one or more of such Class
B Holder's Family Members payable by reason of the death of any of such Class B
Holder's Family Members;
(C) Any organization contributions to which are deductible for federal
income, estate or gift tax purposes or any split-interest trust described in
Section 4947 of the Internal Revenue Code, as it may from time to time be
amended (hereinafter called a "Charitable Organization");
(D) A corporation, if a majority of the beneficial ownership of outstanding
capital stock of such corporation which is entitled to vote for the election
of directors is owned by, or a partnership if a majority of the beneficial
ownership of the partnership is held by, the Class B Holder or his or her
Permitted Transferees determined under this clause (i), provided that if by
reason of any change in the ownership of such stock or partnership interests,
such corporation or partnership would no longer qualify as a Permitted
Transferee, all shares of Class B Stock then held by such corporation or
partnership shall, upon the election of the Corporation given by written
notice to such corporation or partnership, without further act on anyone's
part, be converted into shares of Common Stock effective upon the date of the
giving of such notice, and stock certificates formerly representing such
shares of Class B Stock shall thereupon and thereafter be deemed to represent
the like number of shares of Common Stock; and
(E) The estate of such Class B Holder.
(ii) In the case of a Class B Holder holding the shares of Class B Stock in
question as trustee pursuant to a trust (other than a Charitable
Organization or any trust described in clause (iii) below), "Permitted
Transferee" means (A) any person transferring Class B Stock to such trust and
(B) any Permitted Transferee of any such transferor determined pursuant to
clause (i) above.
(iii)In the case of a Class B Holder holding the shares of Class B Stock
in question as trustee pursuant to a trust (other than a Charitable
Organization) which was irrevocable on the date of initial issuance to such
Class B Holder (hereinafter in this Section III called the "Record Date"),
"Permitted Transferee" means (A) any person to whom or for whose benefit
principal may be distributed either during or at the end of the term of such
trust whether by power of appointment or otherwise and (B) any Permitted
Transferee of any such person determined pursuant to clause (i) above.
(iv) In the case of a Class B Holder which is a Charitable Organization
holding record and beneficial ownership of the shares of Class B Stock in
question, "Permitted Transferee" means any Class B Holder.
(v) In the case of a Class B Holder which is a corporation or partnership
(other than a Charitable Organization) acquiring record and beneficial
ownership of the shares of Class B Stock in question upon its initial
issuance by the Corporation, "Permitted Transferee" means (A) any partner of
such partnership, or stockholder of such corporation, on the Record Date, (B)
any person transferring such shares of Class B Stock to such corporation or
partnership, and (C) any Permitted Transferee of any such person, partner, or
stockholder referred to in subclauses (A) and (B) of this clause (v),
determined under clause (i) above.
(vi) In the case of a Class B Holder which is a corporation or partnership
(other than a Charitable Organization or a corporation or partnership
described in clause (v) above) holding record and beneficial ownership of the
shares of Class B Stock in question, "Permitted Transferee" means (A) any
person transferring such shares of Class B Stock to such corporation or
partnership and (B) any Permitted Transferee of any such transferor
determined under clause (i) above.
(vii)In the case of a Class B Holder which is the estate of a deceased Class
B Holder, or which is the estate of a bankrupt or insolvent Class B Holder,
which holds record and beneficial ownership of the shares of Class B Stock in
question, "Permitted Transferee" means a Permitted Transferee of such
deceased, bankrupt or insolvent Class B Holder as determined pursuant to
clause (i), (ii), (iii), (iv), (v) or (vi) above, as the case may be.
(b) Notwithstanding anything to the contrary set forth herein, any
Class B Holder may pledge such Class B Holder's shares of Class B Stock to a
pledgee pursuant to a bona fide pledge of such shares as collateral security
for indebtedness due to the pledgee, provided that such shares shall not be
transferred to or registered in the name of the pledgee and shall remain
subject to the provisions of this Section III. In the event of foreclosure
or other similar action by the pledgee, such pledged shares of Class B Stock
may only be transferred to a Permitted Transferee of the pledgor or converted
into shares of Common Stock, as the pledgee may elect.
(c) For purposes of this Section III:
(i) The relationship of any person that is derived by or through legal
adoption shall be considered a natural one.
(ii) Each joint owner of shares of Class B Stock shall be considered a
"Class B Holder" of such shares.
(iii) A minor for whom shares of Class B Stock are held pursuant to a Uniform
Gifts to Minors Act or similar law shall be considered a Class B Holder of
such shares.
(iv) Unless otherwise specified, the term "person" means both natural
persons and legal entities.
(v) Without derogating from the election conferred upon the Corporation
pursuant to subclause (D) of clause (i) above, each reference to a
corporation shall include any successor corporation resulting from merger or
consolidation and each reference to a partnership shall include any successor
partnership resulting from the death or withdrawal of a partner.
(d) Any transfer of shares of Class B Stock not permitted hereunder shall
result in the conversion of the transferee's shares of Class B Stock into
shares of Common Stock, effective the date on which certificates representing
such shares are presented for transfer on the books of the Corporation. The
Corporation may, in connection with preparing a list of stockholders entitled
to vote at any meeting of stockholders, or as a condition to the transfer or
the registration of shares of Class B Stock on the Corporation's books,
require the furnishing of such affidavits or other proof as it deems
necessary to establish that any person is the beneficial owner of shares of
Class B Stock or is a Permitted Transferee.
(e) At any time when the number of outstanding shares of Class B Stock as
reflected on the stock transfer books of the Corporation falls below 5% of
the aggregate number of the issued and outstanding shares of the Common Stock
and Class B Stock of the Corporation, or the Board of Directors and the
holders of a majority of the outstanding shares of Class B Stock approve the
conversion of all of the Class B Stock into Common Stock, then, immediately
upon the occurrence of either such event, the outstanding shares of Class B
Stock shall be converted into shares of Common Stock. In the event of such a
conversion, certificates formerly representing outstanding shares of Class
B Stock shall thereupon and thereafter be deemed to represent the like number
of shares of Common Stock.
(f) Shares of Class B Stock shall be registered in the names of the
beneficial owners thereof and not in "street" or "nominee" name. For this
purpose, a "beneficial owner" of any shares of Class B Stock shall mean a
person who, or an entity which, possesses the power, either singly or
jointly, to direct the voting or disposition of such shares. The Corporation
shall note on the certificates for shares of Class B Stock the restrictions
on transfer and registration of transfer imposed by this Section III.
IV. Conversion Rights.
(a) Subject to the terms and conditions of this Section IV, all outstanding
shares of Class A Stock shall be converted into fully paid and nonassessable
shares of Common Stock, immediately and without any action on the part of
the holder of such stock, in the event the Class B Stock is converted into
Common Stock in accordance with the provisions of subsection (e) of Section III
of this Article Third. Upon conversion, the shares of Common Stock issued
shall be subject to the same dividends or distributions theretofore declared
but not paid or issued on the Class A Stock immediately prior to conversion
but the Corporation shall not make any payment or adjustment on account of
any dividends or distributions declared but not paid or issued on the Common
Stock on such conversion. In the event of such conversion, certificates
formerly representing shares of Class A Stock shall thereupon and thereafter
be deemed to represent the like number of shares of Common Stock.
(b) Subject to the terms and conditions of this Section IV, each share of
Class B Stock shall be convertible at any time or from time to time, at the
option of the respective holder thereof, at the office of any transfer agent
for Class B Stock, and at such other place or places, if any, as the Board of
Directors may designate, or, if the Board of Directors shall fail so to
designate, at the principal office of the Corporation (attention of the
Secretary of the Corporation), into one (1) fully paid and nonassessable
share of Common Stock. Upon conversion, the Corporation shall make no
payment or adjustment on account of dividends accrued or in arrears on Class B
Stock surrendered for conversion or on account of any dividends on the Common
Stock issuable on such conversion. Before any holder of Class B Stock shall
be entitled to convert the same into Common Stock, he shall surrender the
certificate or certificates for such Class B Stock at the office of said
transfer agent (or other place as provided above), which certificate or
certificates, if the Corporation shall so request, shall be duly endorsed to
the Corporation or in blank or accompanied by proper instruments of transfer
to the Corporation or in blank (such endorsements or instruments of transfer
to be in form satisfactory to the Corporation), and shall give written notice
to the Corporation at said office that he elects so to convert said Class B
Stock in accordance with the terms of this Section IV, and shall state in
writing therein the name or names in which he wishes the certificate or
certificates for Common Stock to be issued. Every such notice of election to
convert shall constitute a contract between the holder of such Class B Stock
and the Corporation, whereby the holder of such Class B Stock shall be deemed
to subscribe for the amount of Common Stock which he shall be entitled to
receive upon such conversion, and, in satisfaction of such subscription, to
deposit the Class B Stock to be converted and to release the Corporation from
all liability thereunder, and thereby the Corporation shall be deemed to
agree that the surrender of the certificate or certificates therefor and the
extinguishment of liability thereon shall constitute full payment of such
subscription for Common Stock to be issued upon such conversion. The
Corporation will as soon as practicable after such deposit of a certificate
or certificates for Class B Stock, accompanied by the written notice and the
statement above prescribed, issue and deliver at the office of said transfer
agent (or other place as provided above) to the person for whose account
such Class B Stock was so surrendered, or to his nominee or nominees, a
certificate or certificates for the number of full shares of Common Stock to
which he shall be entitled as aforesaid. Subject to the provisions of
subsection (d) of this Section IV, such conversion shall be deemed to have
been made as of the date of such surrender of the Class B Stock to be
converted; and the person or persons entitled to receive the Common Stock
issuable upon conversion of such Class B Stock shall be treated for all
purposes as the record holder or holders of such Common Stock on such date.
(c) The issuance of certificates for shares of Common Stock upon conversion
of shares of Class A Stock and Class B Stock shall be made without charge for
any stamp or other similar tax in respect of such issuance. However, if any
such certificate is to be issued in a name other than that of the holder
of the share or shares of Class A Stock or Class B Stock converted, the
person or persons requesting the issuance thereof shall pay to the
Corporation the amount of any tax which may be payable in respect of any
transfer involved in such issuance or shall establish to the satisfaction of the
Corporation that such tax has been paid.
(d) The Corporation shall not be required to convert Class B Stock, and no
surrender of Class B Stock shall be effective for that purpose, while the
stock transfer books of the Corporation are closed for any purpose; but the
surrender of Class B Stock for conversion during any period while such books
are so closed shall become effective for conversion immediately upon the
reopening of such books, as if the conversion had been made on the date such
Class B Stock was surrendered.
(e) The Corporation covenants that it will at all times reserve and keep
available, solely for the purpose of issue upon conversion of the outstanding
shares of Class A Stock and Class B Stock, such number of shares of Common
Stock as shall be issuable upon the conversion of all such outstanding
shares, provided that nothing contained herein shall be construed to preclude
the Corporation from satisfying its obligations in respect of the conversion
of the outstanding shares of Class A Stock and Class B Stock by delivery of
shares of Common Stock which are held in the treasury of the Corporation.
The Corporation covenants that if any shares of Common Stock required to be
reserved for purposes of conversion hereunder require registration with or
approval of any governmental authority under any federal or state law before
such shares of Common Stock may be issued upon conversion, the Corporation
will use its best efforts to cause such shares to be duly registered or
approved, as the case may be. The Corporation will endeavor to list the
shares of Common Stock required to be delivered upon conversion prior to such
delivery upon each national securities exchange, if any, upon which the
outstanding Common Stock is listed at the time of such delivery. The
Corporation covenants that all shares of Common Stock which shall be issued
upon conversion of the shares of Class A Stock and Class B Stock, will, upon
issue, be fully paid and nonassessable and not entitled to any pre-emptive
rights.
V. Liquidation Rights.
In the event of any dissolution, liquidation or winding up of the affairs of
the Corporation, whether voluntary or involuntary, after payment or provision
for payment of the debts and other liabilities of the Corporation, the holders
of each series of Preferred Stock shall be entitled to receive, out of the
net assets of the Corporation, an amount for each share equal to the amount
fixed and determined by the Board of Directors in any resolution or
resolutions providing for the issuance of any particular series of Preferred
Stock, plus an amount equal to all dividends accrued and unpaid on shares of
such series to the date fixed for distribution, and no more, before any of the
assets of the Corporation shall be distributed or paid over to the holders of
Common Stock or Class A Stock. After payment in full of said amounts to the
holders of Preferred Stock of all series, the remaining assets and funds of the
Corporation shall be divided among and paid ratably to the holders of Common
Stock and Class A Stock (including those persons who shall become holders of
Common Stock by reason of converting their shares of Class B Stock). If, upon
such dissolution, liquidation or winding up, the assets of the Corporation
distributable as aforesaid among the holders of Preferred Stock of all series
shall be insufficient to permit full payment to them of said preferential
amounts, then such assets shall be distributed among such holders, first in
the order of their respective preferences, and second, as to such holders who
are next entitled to such assets and who rank equally with regard to such
assets, ratably in proportion to the respective total amounts which they
shall be entitled to receive as provided in this Section V. A merger or
consolidation of the Corporation with or into any other corporation or a sale
or conveyance of all or any part of the assets of the Corporation (which
shall not in fact result in the liquidation of the Corporation and the
distribution of assets to stockholders) shall not be deemed to be a voluntary
or involuntary liquidation or dissolution or winding up of the Corporation
within the meaning of this Section V.
VI. Change of Control.
In the event of a merger or consolidation of the Corporation with or into
another entity (whether or not the Corporation is the surviving entity), the
holders of Class A Stock shall be entitled to receive the same per share
consideration in such merger or consolidation as is received by the holders of
Common Stock, if any.
B. Preferred Stock.
The Board of Directors is authorized, subject to limitations prescribed by law
and the provisions of this Article Third, to provide for the issuance of the
preferred shares in series, and by filing a certificate pursuant to the
General Corporation Law of Delaware, to establish the number of shares to be
included in each such series, and to fix the designations, relative rights,
preferences and limitations of the shares of each such series. The authority
of the Board with respect to each series shall include, but not be limited to,
determination of the following:
(a) The number of shares constituting that series and the distinctive
designations of that series;
(b) The dividend rate on the shares of that series, whether dividends shall
be cumulative and, if so, from which date or dates, and the relative rights
of priority, if any, of payment of dividends of shares of that series;
(c) Whether that series shall have voting rights, in addition to the voting
rights provided by law and, if so, the terms of such voting rights;
(d) Whether that series shall have conversion privileges and, if so, the
terms and conditions of such conversion, including provision for adjustment
of the conversion rate in such events as the Board of
Directors shall determine;
(e) Whether or not the shares of that series shall be redeemable and, if so,
the terms and conditions of such redemption, including the date or dates upon
or after which they shall be redeemable, and the amount per share payable in
case of redemption, which amount may vary under different conditions and at
different redemption dates;
(f) Whether that series shall have a sinking fund for the redemption or
purchase of shares of that series and, if so, the terms and amount of such
sinking fund;
(g) The rights of the shares of that series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, and
the relative rights of priority, if any, of payment of shares of that series;
(h) Any other relative rights, preferences and limitations of that series.
Dividends on outstanding preferred shares shall be declared and paid, or set
apart for payment, before any dividends shall be declared and paid, or set
apart for payment, on the common shares with respect to the dividend period.
Any and all such shares issued, and for which the full consideration has been
paid or delivered shall be deemed fully paid stock and the holder of such
shares shall not be liable for any further call or assessment or any other
payment thereon.
FOURTH: The duration of such Corporation shall be perpetual.
FIFTH: The name and mailing address of the Corporation's Registered Agent
and Office in the State of Delaware are: The Prentice-Hall Corporation
System, Inc., 229 South State Street in the City of Dover, County of Kent,
Delaware 19901.
SIXTH: Each director shall be elected by the stockholders at each annual
meeting and shall hold office until the next annual meeting of stockholders
and until such director's successor shall have been elected and qualified.
The term of office of each director in office at the time this Article SIXTH
becomes effective shall expire at the annual meeting of stockholders next
held after the effectiveness of this Article SIXTH.
SEVENTH: No holder of shares of the Corporation of any class, now or
hereafter authorized, shall have any preferential or preemptive right to
subscribe for, purchase or receive any shares of the Corporation of any class,
now or hereafter authorized, or any options or warrants for such shares, or
any rights to subscribe for or purchase such shares, or any securities
convertible into or exchangeable for such shares, which may at any time be
issued, sold or offered for sale by the Corporation.
EIGHTH: [Repealed]
NINTH: [Repealed]
TENTH: A director of the Corporation shall not personally be liable to the
Corporation or 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 its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation law, or (iv) for any transaction from which the director derived
an improper personal benefit.
ELEVENTH: The Board of Directors of the Corporation shall have the power to
amend the By-Laws of the Corporation.
IN WITNESS WHEREOF, this restated certificate of incorporation, which only
restated and integrates and does not further amend the provisions of the
certificate of incorporation of Fedders Corporation as heretofore amended or
supplemented and which does not contain any discrepancies between those
provisions and the provisions of this restated certificate of incorporation,
having been duly adopted by the Board of Directors of Fedders Corporation in
accordance with section and 245 of the General Corporation Law of Delaware,
we have signed and attested this certificate this 18th day of November, 1997.
Fedders Corporation
By /s/Robert L. Laurent, Jr.
Robert L. Laurent, Jr.
Executive Vice President, Finance
and Administration
ATTEST:
Robert N. Edwards
Asst. Secretary
<PAGE>
STATE OF NEW JERSEY)
)ss.:
COUNTY OF SOMERSET )
BE IT REMEMBERED that, on November 18, 1997, before me, a Notary Public duly
authorized by law to take acknowledgment of deeds, personally came Robert L.
Laurent, Jr., of FEDDERS CORPORATION, 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 November 18, 1997.
/s/Anna Kostak
Notary Public
Anna Kostak
Notary Public of New Jersey
My Commission Expires April 18, 1999
