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Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
ABM INDUSTRIES INCORPORATED
A DELAWARE CORPORATION
ABM Industries Incorporated, a corporation organized and existing
under the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: The name of the Corporation is ABM Industries Incorporated
and the name under which the Corporation was originally incorporated was
American Building Maintenance Industries, Inc. The Corporation's original
Certificate of Incorporation was filed with the Secretary of State of Delaware
on March 19, 1985.
SECOND: The Restated Certificate of Incorporation of ABM
Industries Incorporated in the form attached hereto as Exhibit A restates and
integrates but does not further amend the Certificate of Incorporation of ABM
Industries Incorporated. and there is no discrepancy between the provisions of
the Corporation's Certificate of Incorporation as heretofore amended or
supplemented and the provisions of the Restated Certificate of Incorporation
attached hereto, which has been duly adopted in accordance with the provisions
of Sections 245 of the General Corporation Law of the State of Delaware by the
affirmative vote of a majority of the directors of the Corporation at a meeting
of the Board of Directors duly noticed and held on March 20, 2000, at which a
quorum was present.
THIRD: The Restated Certificate of Incorporation so adopted reads
in full as set forth in Exhibit A attached hereto and incorporated herein by
this reference.
IN WITNESS WHEREOF, we have hereunto set our hands as President
and Secretary, respectively, of ABM Industries Incorporated and hereby affirm
under penalties of perjury that the foregoing is our act and deed and the facts
herein stated are true, and accordingly have hereunto set forth our hands this
22nd day of March, 2000.
/s/ William W. Steele
----------------------------------------
William W. Steele, President
ATTEST: /s/ Harry H. Kahn
--------------------------------
Harry H. Kahn, Secretary
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Exhibit A
RESTATED CERTIFICATE OF INCORPORATION
OF
ABM INDUSTRIES INCORPORATED
FIRST: The name of this corporation is: ABM Industries Incorporated.
SECOND: The address of the registered office of the corporation in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City
of Wilmington, County of New Castle, and the name of its registered agent at
that address is The Corporation Trust Company.
THIRD: (omitted)
FOURTH: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FIFTH: (a) The corporation is authorized to issue two classes of shares
to be designated, respectively, "Preferred Stock" and "Common Stock." The number
of shares of Preferred Stock authorized to be issued is Five Hundred Thousand
(500,000) and the number of shares of Common Stock authorized to be issued is
One Hundred Million (100,000,000). The stock, whether Preferred Stock or Common
Stock, shall have a par value of $0.01 per share.
(b) The shares of Preferred Stock may be issued from time to time in one
or more series. The Board of Directors is authorized, by filing a certificate
pursuant to the applicable law of the State of Delaware, to establish from time
to time the number of shares to be included in each such series, and to fix the
designation, powers, preferences and rights of the shares of each such series
and the qualifications, limitations or restrictions thereof, including but not
limited to the fixing or alteration of the dividend rights, dividend rate,
conversion rights, voting rights, rights and terms of redemption (including
sinking fund provisions), the redemption price or prices, and the liquidation
preferences of any wholly unissued series of shares of Preferred Stock; and to
increase or decrease the number of shares of any series subsequent to the issue
of shares of that series, but not below the number of shares of such series then
outstanding. In case the number of shares of any series shall be so decreased,
the shares constituting such decrease shall resume the status which they had
prior to the adoption of the resolution originally fixing the number of shares
of such series.
Certificates of Designation heretofore adopted are attached as Attachment
1 and Attachment 2.
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, repeal, alter,
amend and rescind from time to time any or all of the by-laws of the
corporation; including by-law amendments increasing or reducing the authorized
number of directors. In addition, new by-laws may be adopted or the by-laws may
be amended or repealed by a vote of not less than seventy percent (70%) of the
outstanding stock of the corporation entitled to vote thereon.
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SEVENTH: (a) The number of directors which shall constitute the whole
Board of Directors of this corporation shall be as specified in the by-laws of
this corporation, subject to the provisions of Article SIXTH hereof and this
Article SEVENTH.
(b) The Board of Directors shall be and is divided into three classes:
Class I, Class II and Class III, which shall be as nearly equal in number as
possible. Each director shall serve for a term ending on the date of the third
annual meeting of stockholders following the annual meeting at which the
director was elected; provided, however, that each initial director in Class I
shall hold office until the annual meeting of stockholders in 1986; each initial
director in Class II shall hold office until the annual meeting of stockholders
in 1987; and each initial director in Class III shall hold office until the
annual meeting of stockholders in 1988. Notwithstanding the foregoing provisions
of this Article, each director shall serve until his successor is duly elected
and qualified or until his death, resignation or removal.
(c) In the event of any increase or decrease in the authorized number of
directors, (1) each director then serving as such shall nevertheless continue as
a director of the class of which he is a member until the expiration of his
current term, or his earlier resignation, removal from office or death, and (2)
the newly created or eliminated directorship resulting from such increase or
decrease shall be apportioned by the Board of Directors among the three classes
of directors so as to maintain such classes as nearly equal as possible.
EIGHTH: No action shall be taken by the stockholders except at an annual
or special meeting of stockholders. No action shall be taken by stockholders by
written consent.
NINTH: Special meetings of the stockholders of this corporation for any
purpose or purposes may be called at any time by the Board of Directors, or by a
committee of the Board of Directors which has been duly designated by the Board
of Directors and whose powers and authority, as provided in a resolution of the
Board of Directors or in the by-laws of this corporation, include the power to
call such meetings, but such special meetings may not be called by any other
person or persons.
TENTH: 1. The affirmative vote of the holders of not less than seventy
percent (70%) of the outstanding shares of "Voting Stock" (as hereinafter
defined) shall be required for the approval or authorization of any "Business
Combination" (as hereinafter defined) of this corporation or any subsidiary of
this corporation with any "Related Person" (as hereinafter defined),
notwithstanding the fact that no vote may be required or that a lesser
percentage may be specified by law, in any agreement with any national
securities exchange or otherwise; provided, however, that the seventy percent
(70%) voting requirement shall not be applicable and such Business Combination
shall require only such affirmative vote as is required by law, any agreement
with any national securities exchange or otherwise if:
(a) The "Continuing Directors" (as hereinafter defined) of this
corporation by at least a majority vote have expressly approved such Business
Combination either in advance of or subsequent to such Related Person becoming a
Related Person; or
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(b) All of the following conditions are met:
(i) The cash or "Fair Market Value" (as hereinafter defined) as of
the date of the consummation of the Business Combination (the
"Combination Date") of the property, securities or other consideration to
be received per share by holders of a particular class or series of
capital stock, as the case may be, of this corporation in the Business
Combination is not less than the highest of:
(A) the highest per share price (including brokerage
commissions, transfer taxes and soliciting dealers' fees) paid by
or on behalf of the Related Person in acquiring beneficial
ownership of any of its holdings of such class or series of
capital stock of this corporation (i) within the two-year period
immediately prior to the Combination Date or (ii) in the
transaction or series of transactions in which the Related Person
became a Related Person, whichever is higher; or
(B) the Fair Market Value per share of the shares of
capital stock being acquired in the Business Combination (i) as
the Combination Date or (ii) the date on which the Related Person
became a Related Person, whichever is higher; or
(C) in the case of Common Stock, the per share book value
of the Common Stock as reported at the end of the fiscal quarter
immediately prior to the Combination Date, and in the case of
Preferred Stock, the highest preferential amount per share to
which the holders of shares of such class or series of Preferred
Stock would be entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs
of the Corporation, regardless of whether the Business Combination
to be consummated constitutes such an event.
The provision of this paragraph 1(b)(i) shall be required to be
met with respect to every class or series of outstanding capital stock,
whether or not the Related Person has previously acquired any shares of a
particular class or series of capital stock. In all of the above
instances, appropriate adjustments shall be made for recapitalizations
and for stock dividends, stock splits and like distributions; and
(ii) The consideration to be received by holders of a particular
class or series of capital stock shall be in cash or in the same form as
previously has been paid by or on behalf of the Related Person in
connection with its direct or indirect acquisition of beneficial
ownership of shares of such class or series of stock. If the
consideration so paid for any such share varied as to form, the form of
consideration for such shares shall be either cash or the form used to
acquire beneficial ownership of the largest number of shares of such
class or series of capital stock previously acquired by the Related
Person; and
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(iii) After such Related Person has become a Related Person and
prior to the consummation of such Business Combination: (a) except as
approved by a majority of the Continuing Directors, there shall have been
no failure to declare and pay at the regular date therefor any full
quarterly dividends (whether or not cumulative) on the outstanding
Preferred Stock; (b) there shall have been (1) no reduction in the annual
rate of dividends paid on the Common Stock (except as necessary to
reflect any subdivision of the Common Stock), except as approved by a
majority of the Continuing Directors, and (2) an increase in such annual
rate of dividends as necessary to reflect any reclassification (including
any reverse stock split), recapitalization, reorganization or any similar
transaction which has the effect of reducing the number of outstanding
shares of the Common Stock, unless the failure so to increase such annual
rate is approved by a majority of the Continuing Directors; and (c) such
Related Person shall have not become the beneficial owner of any
additional shares of Voting Stock except as part of the transaction which
results in such Related Person becoming a Related Person; and
(iv) After such Related Person has become a Related Person, such
Related Person shall not have received the benefit, directly or
indirectly (except as 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
(v) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations thereunder
(or any subsequent provisions replacing such Act, rules or regulations)
shall be mailed to public stockholders of the corporation at least 30
days prior to the consummation of such Business Combination (whether or
not such proxy or information statement is required to be mailed pursuant
to such Act or subsequent provisions).
2. For purposes of this Article Tenth:
(a) The term "Business Combination" shall mean any (i) merger or
consolidation of this corporation or a Subsidiary (as hereinafter defined) of
this corporation with a Related Person or any other corporation which is or
after such merger or consolidation would be an "Affiliate" or "Associate" (as
hereafter defined) of a Related Person, (ii) sale, lease, exchange, mortgage,
pledge, transfer or other disposition (in one transaction or a series of
transactions) with any Related Person or any Affiliate or Associate of any
Related Person, of all or any "Substantial Part" (as hereinafter defined) of the
assets of this corporation or of a Subsidiary of this corporation to a Related
Person or any Affiliate or Associate of any Related Person, (iii) adoption of
any plan or proposal for the liquidation or dissolution of this corporation
proposed by or on behalf of a Related Person or any Affiliate or Associate of
any Related Person, (iv) sale, lease, exchange or other disposition, including
without limitation a mortgage or other security device, of all or any
Substantial Part of the assets of a Related Person or any Affiliate or Associate
of any Related Person to this corporation or a Subsidiary of this corporation,
(v) issuance or pledge of securities of this corporation or a Subsidiary of this
corporation to or with a Related Person or
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any Affiliate or Associate of any Related Person, (vi) reclassification of
securities (including any reverse stock split) or recapitalization of this
corporation or any other transaction that would have the effect, either directly
or indirectly, of increasing the proportionate share of any class of equity or
convertible securities of this corporation or any subsidiary of this corporation
which is directly or indirectly beneficially owned by any Related Person or any
Affiliate or Associate of any Related Person, and (vii) agreement, contract or
other arrangement providing for any of the transactions described in this
definition of Business Combination.
(b) The term "person" shall mean any individual, firm, corporation or
other entity and shall include any group comprised of any person and any other
person with whom such person or any Affiliate or Associate of such person has
any agreement, arrangement or understanding, directly or indirectly, for the
purpose of acquiring, holding, voting or disposing of Voting Stock of this
corporation.
(c) The term "Related Person" shall mean any person (other than this
corporation, or any Subsidiary and other than any profit-sharing, employee stock
ownership or other employee benefit plan of this corporation or any Subsidiary
or any trustee of or fiduciary with respect to any such plan when acting in such
capacity) who or which:
(i) is the beneficial owner (as hereinafter defined) of ten
percent (10%) or more of the Voting Stock;
(ii) is an Affiliate or Associate of this corporation and at any
time within the two-year period immediately prior to the date in question
was the beneficial owner of ten percent (10%) or more of the Voting
Stock; or
(iii) is an assignee of or has otherwise succeeded to the
beneficial ownership of any shares of Voting Stock which were at any time
within the two-year period immediately prior to such time beneficially
owned by any Related Person, if such assignment or succession shall have
occurred in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act of
1933.
(d) A person shall be a "beneficial owner" of any Voting Stock:
(i) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly;
(ii) which such person or any of its Affiliates or Associates has,
directly or indirectly, (a) the right to acquire (whether such right is
exercisable immediately or only after the passage of time), pursuant to
any agreement arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise, or
(b) the right to vote pursuant to any agreement, arrangement or
understanding; or
(iii) which are beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement
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or understanding for the purpose of acquiring, holding, voting or
disposing of any shares of Voting Stock.
(e) For the purposes of determining whether a person is a Related Person
pursuant to sub-paragraph (c) of this paragraph 2, the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed owned through
application of sub-paragraph (d) of this paragraph 2 but shall not include any
other shares of Voting Stock which may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights, warrants or
option, or otherwise.
(f) The terms "Affiliate" or "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on January
1, 1985.
(g) The term "Subsidiary" means any corporation of which a majority of
any class of equity securities is owned, directly or indirectly, by this
corporation; provided, however, that for the purposes of the definition of
Related Person set forth in sub-paragraph (c) of this paragraph 2, the term
"Subsidiary" shall mean only a corporation of which a majority of each class of
equity securities is owned, directly or indirectly, by this corporation.
(h) The term "Continuing Director" means any member of the Board of
Directors, while such person is a member of the Board of Directors, who is not
an Affiliate, Associate or a representative of the Related Person involved in a
proposed Business Combination and was a member of the Board of Directors prior
to the time that the Related Person became a Related Person, and any successor
of a Continuing Director, while such successor is a member of the Board of
Directors, who is not an Affiliate, Associate or a representative of the Related
Person and is recommended or elected to succeed a Continuing Director by a
majority of Continuing Directors. Each initial director of this corporation
elected by the incorporator of this corporation shall be a Continuing Director
for purposes of this Article Tenth.
(i) The term "Substantial Part" shall mean more than twenty percent (20%)
of the Fair Market Value, as determined by a majority of the Continuing
Directors, of the total consolidated assets of this corporation and its
Subsidiaries taken as a whole as of the end of its most recent fiscal year ended
prior to the time the determination is being made.
(j) For the purposes of paragraph 1(b) (i) of this Article Tenth, the
term "other consideration to be received" shall include, without limitation,
capital stock retained by the shareholders.
(k) The term "Voting Stock" shall mean all of the outstanding shares of
Common Stock and the outstanding shares of Preferred Stock entitled to vote on
each matter on which the holders of record of Common Stock shall be entitled to
vote, and each reference to a proportion of shares of Voting Stock shall refer
to such proportion of the votes entitled to be cast by such shares voting as one
class.
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(l) The term "Fair Market Value" means: (i) in case of capital stock, the
highest closing sale price during the 30-day period immediately preceding the
date in question of a share of such stock on the Composite Tape for the New York
Stock Exchange Listed Stocks, or, if such stock is not quoted on the Composite
Tape, on the New York Stock Exchange, or if such stock is not listed on such
Exchange, on the principal United States securities exchange registered under
the Securities Exchange Act of 1934 on which such stock is listed, or, if such
stock is not listed on any such stock exchange, the highest closing bid
quotation with respect to a share of such stock during the 30-day period
preceding the date in question on the National Association of Securities
Dealers, Inc. Automated Quotations System or any successor system then in use,
or if no such quotations are available, the fair market value on the date in
question of a share of such stock as determined in good faith by a majority of
the Continuing Directors; and (ii) in the case of property other than cash or
stock, the fair market value of such property on the date in question as
determined in good faith by a majority of the Continuing Directors.
(m) A Related Person shall be deemed to have acquired a share of the
Voting Stock of this corporation at the time when such Related Person became the
beneficial owner thereof. If a majority of the Continuing Directors is not able
to determine the price at which a Related Person has acquired a share of Voting
Stock of this corporation, such price shall be deemed to be the Fair Market
Value of the shares in question at the time when the Related Person becomes the
beneficial owner thereof. With respect to shares owned by Affiliates, Associates
or other persons whose ownership is attributed to a Related Person under the
foregoing definition of Related Person, the price deemed to be paid therefor by
such Related Person shall be the price paid upon the acquisition thereof by such
Affiliate, Associate or other person, or, if such price is not determinable by a
majority of the Continuing Directors, the Fair Market Value of the shares in
question at the time when the Affiliate, Associate, or other such person became
the beneficial owner thereof.
3. The fact that any Business Combination complies with the provisions of
paragraph 1(b) of this Article Tenth shall not be construed to impose any
fiduciary duty, obligation or responsibility on the Board of Directors, or any
member thereof, to approve such Business Combination or recommend its adoption
or approval to the shareholders of this corporation, nor shall such compliance
limit, prohibit or otherwise restrict in any manner the Board of Directors, or
any member thereof, with respect to evaluations of or actions and responses
taken with respect to such Business Combination.
4. A majority of the Continuing Directors of the corporation shall have
the power and duty to determine for the purposes of this Article Tenth, on the
basis of information known to them after reasonable inquiry, (A) whether a
person is a Related Party, (B) the number of shares of Voting Stock beneficially
owned by any person, and (C) whether a person is an Affiliate or Associate of
another. A majority of the Continuing Directors of the corporation shall have
the further power to interpret all of the terms and provisions of this Article
Tenth.
ELEVENTH: Advance notice of stockholder nominations for the election of
directors shall be given in the manner provided in the by-laws of this
corporation.
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TWELFTH: (a) Newly created directorships resulting from any increase in
the number of directors and any vacancies on the Board of Directors resulting
from death, resignation, disqualification, removal or other cause shall be
filled by the affirmative vote of a majority of the remaining directors then in
office (and not by Stockholders), even though less than a quorum of the Board of
Directors. Any Director elected in accordance with the preceding sentence shall
hold office until the next election of directors by the stockholders and until
such director's successor shall have been elected and qualified. No decrease in
the number of Directors constituting the Board of Directors shall shorten the
term of any incumbent director.
(b) Any director may be removed from office by the affirmative vote of
the holders of 70% of the outstanding stock of the corporation entitled to vote
generally in the election of directors, provided that such removal is for cause.
THIRTEENTH: 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 on
stockholders herein are granted subject to this reservation. Notwithstanding the
foregoing, the provisions set forth in Articles SIXTH, SEVENTH, EIGHTH, NINTH,
TENTH, ELEVENTH, TWELFTH and this Article THIRTEENTH may not be repealed or
amended in any respect unless such repeal or amendment is approved by the
affirmative vote of not less than seventy percent (70%) of the total voting
power of all outstanding shares of stock in this corporation entitled to vote
thereon.
FOURTEENTH: No director of the corporation shall be personally liable to
the corporation or any stockholder for monetary damages for breach of fiduciary
duty as a director, except for any matter in respect of which such director
shall be liable under Section 174 of the General Corporation Law of the State of
Delaware or any amendment thereto or shall be liable by reason that, in addition
to any and all other requirements for such liability, such director (i) shall
have breached the duty of loyalty to the corporation or its stockholders, (ii)
shall not have acted in good faith, or, in failing to act, shall not have acted
in good faith, (iii) shall have acted in a manner involving intentional
misconduct or a knowing violation of law or, in failing to act, shall have acted
in a manner involving intentional misconduct or a knowing violation of law or
(iv) shall have derived an improper personal benefit. Neither the amendment nor
repeal of this Article Fourteenth, nor the adoption of any provision of this
certificate of incorporation inconsistent with this Article Fourteenth, shall
eliminate or reduce the effect of this Article Fourteenth in respect of any
matter occurring, or any cause of action, suit or claim that, but for this
Article Fourteenth would accrue or arise, prior to such amendment repeal or
adoption of an inconsistent provision.
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Attachment 1
CERTIFICATE OF DESIGNATIONS, PREFERENCES,
RELATIVE RIGHTS, QUALIFICATIONS, LIMITATIONS
AND RESTRICTIONS
OF
SERIES B 8% SENIOR REDEEMABLE CUMULATIVE
PREFERRED STOCK
OF
AMERICAN BUILDING MAINTENANCE INDUSTRIES, INC.
-------------------------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
-------------------------
American Building Maintenance Industries, Inc., a Delaware corporation
(the "Corporation"), certifies that pursuant to the authority contained in
Article Fifth of its Certificate of Incorporation, as amended (the "Certificate
of Incorporation"), and in accordance with the provisions of Section 151 of the
General Corporation Law of the State of Delaware, the Board of Directors of the
Corporation at a meeting duly called and held on June 23, 1993 adopted the
following resolution which resolution remains in full force and effect on the
date hereof:
RESOLVED, that there is hereby established a series of authorized
preferred stock having a par value of $0.01 per share, which series shall be
designated as "Series B 8% Senior Cumulative Redeemable Preferred Stock" (the
"Series B Preferred Stock"), shall consist of 6,400 shares and shall have the
following voting powers, preferences and relative rights, qualifications,
limitations and restrictions as follows:
1. Certain Definitions.
Unless the context otherwise requires, the terms defined in this
paragraph 1 shall have, for all purposes of this resolution, the meanings herein
specified (with terms defined in the singular having comparable meanings when
used in the plural).
Business Day. The term "Business Day" shall mean a day other than a
Saturday or Sunday or any federal holiday.
Common Stock. The term "Common Stock" shall mean the common stock, par
value $0.01 per share, of the Corporation.
Common Stocks. The term "Common Stocks" shall mean all shares now or
hereafter authorized of any class of common stock of the Corporation, including
the Common Stock, and any other stock of the Corporation, howsoever designated,
authorized after the Initial Issue Date,
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which has the right (subject always to prior rights of any class or series of
preferred stock) to participate in the distribution of the assets and earnings
of the Corporation without limit as to per share amount.
Dividend Payment Date. The term "Dividend Payment Date" shall have the
meaning set forth in subparagraph 2(b) below.
Dividend Period. The term "Dividend Period" shall mean the period from,
and including, the Initial Issue Date to, but not including, the first Dividend
Payment Date and thereafter, each quarterly period from, and including, the
Dividend Payment Date to, but not including the next Dividend Payment Date.
Initial Issue Date. The term "Initial Issue Date" shall mean the date
that shares of Series B Preferred Stock are first issued by the Corporation.
Junior Stocks. The term "Junior Stocks" shall mean the Common Stocks, the
authorized Series A Junior Participating Preferred Stock, $0.01 par value, of
the Corporation and any other series of preferred stock established by the Board
of Directors of the Corporation.
Liquidation Preference. The term "Liquidation Preference" shall mean
$1,000 per share.
Person. The term "Person" shall mean any corporation, association,
partnership, joint venture, organization, individual, trust, estate or other
entity.
Record Date. The term "Record Date" shall mean the date designated by the
Board of Directors of the Corporation at the time a dividend is declared on the
Series B Preferred Stock; provided, however, that such Record Date shall not be
more than thirty (30) days nor less than ten (10) days prior to the respective
Dividend Payment Date or such other date designated by the Board of Directors
for the payment of dividends on the Series B Preferred Stock.
Redemption Date. The term "Redemption Date" shall have the meaning set
forth in subparagraph 4(a) below.
Redemption Notice. The term "Redemption Notice" shall have the meaning
set forth in paragraph 4(b) below.
Redemption Price. The term "Redemption Price" shall mean a price per
share equal to the Liquidation Preference, together with accrued and unpaid
dividends thereon to the Redemption Date.
2. Dividends.
(a) The record holders of Series B Preferred Stock shall be entitled to
receive dividends, when and as declared by the Board of Directors of the
Corporation, out of funds legally available
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for the payment of dividends. Such dividends shall be payable by the Corporation
in cash at the rate of eight percent (8%) per annum of the Liquidation
Preference.
(b) Dividends on shares of Series B Preferred Stock shall accrue and be
cumulative from the date of issuance of such shares. Dividends when and as
declared by the Board of Directors of the Corporation shall be payable quarterly
in arrears on November 1, February 1, May 1 and August 1 of each year (a
"Dividend Payment Date"), commencing on November 1, 1993. If any Dividend
Payment Date occurs on a day that is not a Business Day, any accrued dividends
otherwise payable on such Dividend Payment Date shall be paid on the next
succeeding Business Day. The amount of dividends payable on Series B Preferred
Stock for each full Dividend Period shall be computed by dividing by four (4)
the annual rate per share set forth in subparagraph 2(a) above. Dividends shall
be paid to the holders of record of the Series B Preferred Stock as their names
shall appear on the share register of the Corporation on the Record Date for
such dividend. Dividends payable in any Dividend Period which is less than a
full Dividend Period in length will be computed on the basis of a ninety (90)
day quarterly period and actual days elapsed in such Dividend Period. Dividends
on account of arrears for any past Dividend Periods may be declared and paid at
any time to holders of record on the Record Date therefor. For any Dividend
Period in which dividends are not paid in full on the Dividend Payment Date
first succeeding the end of such Dividend Period, then on such Dividend Payment
Date such accrued and unpaid dividends shall be added (solely for the purpose of
calculating dividends payable on the Series B Preferred Stock) to the
Liquidation Preference of the Series B Preferred Stock effective at the
beginning of the Dividend Period succeeding the Dividend Period as to which such
dividends were not paid and shall thereafter accrue additional dividends in
respect thereof at the rate set forth in this subparagraph 2(b) until such
accrued and unpaid dividends have been paid in full.
(c) So long as any shares of Series B Preferred Stock shall be
outstanding, the Corporation shall not declare, pay or set apart for payment on
any Junior Stocks any dividends whatsoever, whether in cash, property or
otherwise (other than dividends payable in shares of the class or series upon
which such dividends are declared or paid, or payable in shares of Common Stock
with respect to Junior Stocks other than Common Stock, together with cash in
lieu of fractional shares), nor shall the Corporation make any distribution on
any Junior Stocks, nor shall any Junior Stocks be purchased, redeemed or
otherwise acquired by the Corporation or any of its subsidiaries of which it
owns not less than a majority of the outstanding voting power (other than
repurchases in the ordinary course of business pursuant to repurchase provisions
of an employee benefit plan of the corporation provided that all such
repurchases, in the aggregate, do not materially adversely affect the
Corporation's ability to pay dividends in arrears or redeem the Series B
Preferred Stock pursuant to subparagraph 4(b)), nor shall any monies be paid or
made available for a sinking fund for the purchase or redemption of any Junior
Stocks, unless (i) all dividends to which the holders of Series B Preferred
Stock shall have been entitled for all previous Dividend Periods shall have been
paid or declared and a sum of money sufficient for the payment thereof has been
set apart and (ii) all payments to which any holder of Series B Preferred Stock
shall have been entitled pursuant to a redemption of any such shares pursuant to
paragraph 4 hereof shall have been made.
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(d) Subject to the provisions hereof and applicable law, the Board of
Directors (i) may declare and the Corporation may pay or set apart for payment
dividends on any Junior Stocks, (ii) may make any payment on account of or set
apart payment for a sinking fund or other similar fund or agreement for the
purchase or other acquisition, redemption, retirement or other requirement of,
or with respect to, any Junior Stocks or any warrants, rights, calls or options
exercisable or exchangeable for or convertible into any Junior Stocks, (iii) may
make any distribution in respect to any Junior Stocks or any warrants, rights,
calls or options exercisable or exchangeable for or convertible into any Junior
Stocks, whether directly or indirectly, and whether in cash, obligations or
securities of the Corporation or other property and (iv) may purchase or
otherwise acquire, redeem or retire any Junior Stocks or any warrants, rights,
calls or options exercisable or exchangeable for or convertible into any Junior
Stocks, and the holders of the shares of the Series B Preferred shall not be
entitled to share therein.
(e) In the event that full dividends are not paid or made available to
the holders of all outstanding shares of Series B Preferred Stock and funds
available for payment of dividends shall be insufficient to permit payment in
full to holders of all such stock of the full preferential amounts to which they
are then entitled, then the entire amount available for payment of dividends
shall be distributed ratably among all such holders of Series B Preferred Stock
in proportion to the full amount to which they would otherwise be respectively
entitled.
3. Distributions Upon Liquidation, Dissolution or Winding Up.
(a) In the event of any voluntary or involuntary liquidation, dissolution
or other winding up of the affairs of the Corporation, before any payment or
distribution shall be made to the holders of any Junior Stocks, the holders of
Series B Preferred Stock shall be entitled to be paid out of the assets of the
Corporation in cash the Liquidation Preference per share plus an amount equal to
all dividends accrued and unpaid thereon to the date of such liquidation or
dissolution or such other winding up. Except as provided in this paragraph,
holders of Series B Preferred Stock shall not be entitled to any other
distribution in the event of liquidation, dissolution or winding up of the
affairs of the Corporation.
(b) If upon any such liquidation, dissolution or other winding up of the
affairs of the Corporation the assets of the Corporation shall be insufficient
to permit the payment in full of the Liquidation Preference per share plus an
amount equal to all dividends accrued and unpaid on the Series B Preferred
Stock, then the assets of the Corporation shall be ratably distributed among the
holders of Series B Preferred Stock in proportion to the full amounts to which
they would otherwise be respectively entitled if all amounts thereon were paid
in full.
(c) Neither the consolidation or merger of the Corporation into or with
another corporation or corporations, nor the sale, lease, transfer or conveyance
of all or substantially all of the assets of the Corporation to another
corporation or any other entity shall be deemed a liquidation, dissolution or
winding up of the affairs of the Corporation within the meaning of this
paragraph 3.
4. Redemption by the Corporation.
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<PAGE> 14
(a) The Series B Preferred Stock may be redeemed, in whole or from time
to time in part, at any time after eight years following the Initial Issue Date
at the option of the Corporation at the Redemption Price. Each date fixed for
redemption pursuant to this subparagraph 4(a) or subparagraph 4(b) below is
called a "Redemption Date."
(b) At any time on or after five years following the Initial Issue Date,
the Corporation shall, to the extent permitted by law and from funds legally
available therefor, redeem any or all of the outstanding shares of Series B
Preferred Stock for the Redemption Price from any holder thereof, not later than
thirty (30) days after receipt of written notice (a "Redemption Notice") from
such holder that such holder desires to redeem the number of shares of Series B
Preferred Stock set forth in such Redemption Notice. Each Redemption Notice
shall be accompanied by the certificate or certificates representing the shares
of Series B Preferred Stock to be redeemed pursuant to such Redemption Notice,
and thereupon the Redemption Price for such shares shall be payable to the order
of the person whose name appears on such certificate or certificates as the
owner thereof, and each surrendered certificate shall be canceled and retired.
All shares of the Series B Preferred Stock being redeemed will cease to accrue
dividends as of the Redemption Date. In the event less than all of the shares of
Series B Preferred Stock held by a holder are redeemed pursuant to the
provisions of this subparagraph 4(b), a new certificate or certificates shall be
issued representing the unredeemed shares provided that, such holder shall pay
any tax which may be payable with respect to the issuance or delivery of such
new certificate and no such issuance or delivery shall be made unless and until
the holder shall have paid to the Corporation the amount of any and all such
taxes or shall have established to the satisfaction of the Corporation that all
such taxes have been paid in full. After the Redemption Date, holders of Series
B Preferred Stock shall no longer be treated as stockholders of the Corporation
with respect to the shares of Series B Preferred Stock so redeemed. If on a
Redemption Date the funds of the Corporation legally available for such
redemption shall be insufficient to redeem all shares required to be redeemed
pursuant to this subparagraph (b) on such Redemption Date, funds to the maximum
extent legally available for such purposes shall be utilized to redeem the
maximum number of outstanding shares of Series B Preferred Stock delivered to
the Corporation with a Redemption Notice on such date, on a pro rata basis among
the holders who have given a Redemption Notice on such date, based on the number
of such shares of Series B Preferred Stock tendered pursuant to such Redemption
Notices. If, because sufficient funds are not legally available, the Corporation
shall fail to redeem all shares required to be redeemed on a Redemption Date,
then the Corporation shall redeem such shares tendered for redemption (on a pro
rata basis among all shares of Series B Preferred Stock tendered on such
Redemption Date, as described in the preceding sentence) as promptly as
practicable after funds are legally available therefor. No redemptions of any
shares of Series B Preferred Stock tendered on a Redemption Date shall be made
until all such shares tendered for redemption on an earlier Redemption Date
shall have been redeemed by the Corporation. All outstanding shares of Series B
Preferred Stock shall continue to accrue dividends as set forth in subparagraph
2(b) until redeemed by the Corporation.
(c) In case of a redemption pursuant to subparagraph 4(a) of less than
all shares of Series B Preferred Stock at the time outstanding, the shares to be
redeemed shall be selected pro rata, by
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<PAGE> 15
lot or by any other method as determined by the Board of Directors of the
Corporation to be equitable.
(d) Notice of any redemption pursuant to subparagraph 4(a) shall be sent
by or on behalf of the Corporation not more than sixty (60) days nor less than
thirty (30) days prior to the Redemption Date, by first class mail, postage
prepaid, to all holders of record of the Series B Preferred Stock at their
respective last addresses as they shall appear on the books of the Corporation;
provided, however, that no failure to give such notice or any defect therein or
in the mailing thereof shall affect the validity of the proceedings for the
redemption pursuant to subparagraph 4(a) of any shares of Series B Preferred
Stock, except as to the holder to whom the Corporation has failed to give notice
or except as to the holder to whom notice was defective. In addition to any
information required by law or by the applicable rules of any exchange upon
which Series B Preferred Stock may be listed or admitted to trading, such notice
shall state: (i) that such redemption is a mandatory redemption; (ii) the
Redemption Date; (iii) the Redemption Price; (iv) the number of shares of Series
B Preferred to be redeemed and, if less than all shares held by such holder are
to be redeemed, the number of such shares to be redeemed; (v) the place or
places where certificates for such shares are to be surrendered for payment of
the Redemption Price; and (vi) that dividends on the shares to be redeemed will
cease to accrue on the Redemption Date. Upon the mailing of any such notices of
redemption, the Corporation shall become obligated to redeem at the time of
redemption specified thereon all shares called for redemption.
(e) If notice of a redemption pursuant to subparagraph 4(a) has been
mailed in accordance with subparagraph 4(d) above and provided that on or before
the Redemption Date specified in such notice, all funds necessary for such
redemption shall have been set aside by the Corporation in accordance with
subparagraph 4(f) below, separate and apart from its other funds in trust for
the pro rata benefit of the holders of the shares so called for redemption, so
as to be, and to continue to be available therefor, then, from and after the
Redemption Date, dividends on the shares of the Series B Preferred Stock so
called for redemption shall cease to accrue, and said shares shall no longer be
deemed to be outstanding and shall not have the status of shares of Series B
Preferred Stock, and all rights of the holders thereof as stockholders of the
Corporation (except the right to receive from the Corporation the Redemption
Price) shall cease. Upon surrender, in accordance with said notice, of the
certificates for any shares so redeemed (properly endorsed or assigned for
transfer, if the Corporation shall so require and the notice shall so state),
such shares shall be redeemed by the Corporation at the Redemption Price without
additional interest. In case fewer than all the shares represented by any such
certificate are redeemed, a new certificate or certificates shall be issued
representing the unredeemed shares without cost to the holder thereof except for
any tax which may be payable in respect of any transfer involved in the issuance
or delivery of such new certificate in a name other than that which such shares
of Series B Preferred Stock were registered immediately prior to such
redemption, and no such issuance or delivery shall be made unless and until the
person requesting such issuance or delivery shall have paid to the Corporation
the amount of any and all such taxes or shall have established to the
satisfaction of the Corporation that all such taxes have been paid in full.
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<PAGE> 16
(f) Any funds deposited with a bank or trust company for the purpose of
redeeming Series B Preferred Stock shall be irrevocable except that:
(i) the Corporation shall be entitled to receive from such bank or
trust company the interest or other earnings, if any, earned on any funds
so deposited in trust, and the holders of any shares redeemed shall have
no claim to such interest or other earnings; and
(ii) any balance of funds so deposited by the Corporation and
unclaimed by the holders of the Series B Preferred Stock entitled thereto
at the expiration of two (2) years from the applicable Redemption Date
shall be repaid, together with any interest or other earnings earned
thereon, to the Corporation, and after any such repayment, the holders of
the shares entitled to the funds so repaid to the Corporation shall look
only to the Corporation for payment without interest or other earnings.
(g) No Series B Preferred Stock may be redeemed except with funds legally
available for the payment of the Redemption Price.
(h) Notwithstanding the foregoing provisions of this paragraph 4, unless
the full cumulative dividends on all outstanding shares of Series B Preferred
Stock shall have been paid or contemporaneously are declared and paid for all
past dividend periods, none of the shares of Series B Preferred Stock shall be
redeemed unless all outstanding shares of Series B Preferred Stock are redeemed
concurrently in accordance with paragraph 4.
(i) All shares of Series B Preferred Stock redeemed pursuant to this
paragraph 4 shall be retired and shall be restored to the status of authorized
and unissued shares of preferred stock, without designation as to series and may
thereafter be reissued as shares of any series of preferred stock; provided,
however, that so long as any shares of Series B Preferred Stock remain
outstanding, any such other preferred stock that is so reissued shall be Junior
Stocks.
5. Voting Rights.
The holders of record of Series B Preferred Stock shall have no right to
vote except (i) as provided by law and (ii) such holders shall be entitled to
vote with the Common Stock (and not as a separate class) on all matters upon
which holders of the Common Stock are entitled to vote and shall be entitled to
one vote per share of Series B Preferred Stock.
6. Prohibition on Creation of Certain Securities.
No preferred stock or other class of equity securities of the Corporation
ranking senior to or on parity with the Series B Preferred Stock, whether with
respect to dividends, or upon liquidation, dissolution or winding up or
otherwise, shall be created.
7. Exclusion of Other Rights.
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<PAGE> 17
Except as may otherwise be required by law, the shares of Series B
Preferred Stock shall not have any voting powers, preferences or other rights,
except as specifically set forth in this resolution (as such resolution may be
amended from time to time in accordance with its terms) and in the Certificate
of Incorporation. The shares of Series B Preferred Stock shall have no
preemptive rights, subscription rights or conversion rights.
8. Rules and Regulations.
The Board of Directors shall have the right and authority from time to
time to prescribe rules and regulations as it may determine to be necessary or
advisable, as the Board of Directors may determine in good faith, for the
administration of the Series B Preferred Stock in accordance with the provisions
hereof and applicable law.
9. Headings of Subdivisions.
The headings of the various subdivisions hereof are for convenience of
reference only and shall not affect the interpretation of any of the provisions
hereof.
10. Severability of Provisions.
If any voting powers, preferences or other rights of the Series B
Preferred Stock or any qualifications, limitations or restrictions thereon set
forth in this resolution (as such resolution may be amended from time to time in
accordance with its terms) is invalid, unlawful or incapable of being enforced
by reason of any rule of law or public policy, all other voting powers,
preferences and rights of Series B Preferred Stock and qualifications,
limitations and restrictions thereon set forth in this resolution (as so
amended) which can be given effect without the invalid, unlawful or
unenforceable voting powers, preferences or other rights of Series B Preferred
Stock and qualifications, limitations and restrictions thereon shall,
nevertheless, remain in full force and effect, and no voting powers, preferences
and other rights of Series B Preferred Stock and qualifications, limitations and
restrictions thereon herein set forth shall be deemed dependent upon any other
such voting powers, preferences and other rights of Series B Preferred Stock and
qualifications, limitations and restrictions thereon unless so expressed herein.
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<PAGE> 18
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
duly executed by Sydney J. Rosenberg, Chairman of the Board and Chief Executive
Officer and attested by Harry H. Kahn its Secretary, this day ____ of August,
1993.
AMERICAN BUILDING MAINTENANCE
INDUSTRIES, INC.
By: /s/ Sydney J. Rosenberg
-------------------------------------
Sydney J. Rosenberg
Chairman of the Board and
Chief Executive Officer
ATTEST:
By: /s/ Harry H. Kahn
------------------------------------
Harry H. Kahn, Secretary
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Attachment 2
CERTIFICATE OF DESIGNATION AND TERMS
OF PARTICIPATING PREFERRED STOCK
OF
ABM INDUSTRIES INCORPORATED
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
We, the undersigned, William W. Steele and Harry H. Kahn, the
President and Secretary, respectively, of ABM industries Incorporated, a
Delaware corporation (the "Corporation"), do Hereby certify as follows:
Pursuant to authority granted by Article Fifth of the Certificate
of Incorporation, as amended, of the Corporation and in accordance with the
provisions of Section 151 of the General Corporation Law of the State of
Delaware, the Board of Directors of the Corporation has adopted the following
resolutions fixing the designation and certain terms, powers, preferences and
other rights of a new series of the Corporation's Preferred Stock, par value
$.01 per share, and certain qualifications, limitations and restrictions
thereon:
RESOLVED, that there is hereby established a series of
Preferred Stock, par value $.01 per share, of the Corporation, and the
designation and certain terms, powers, preferences and other rights of
the shares of such series, and certain qualifications, limitations and
restrictions thereon, are hereby fixed as follows:
(i) The distinctive serial designation of this series shall
be "Participating Preferred Stock" (hereinafter called "this
Series"). Each share of this Series shall be identical in all
respects with the other shares of this Series except as to the
dates from and after which dividends thereon shall be cumulative.
(ii) The number of shares in this Series shall initially be
50,000, which number may from time to time be increased or
decreased (but not below the number then outstanding) by the Board
of Directors. Shares of this Series purchased by the Corporation
shall be cancelled and shall revert to authorized but unissued
shares of Preferred Stock undesignated as to series. Shares of
this Series may be issued in fractional shares, which fractional
shares shall entitle the holder, in proportion to such holder's
fractional share, to all rights of a holder of a whole share of
this Series.
(iii) The holders of full or fractional shares of this
Series shall be entitled to receive, when and as declared by the
Board of Directors, but only out of funds legally available
therefor, dividends, (A) on each date that dividends or other
distributions (other than dividends or distributions payable in
Common
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<PAGE> 20
Stock of the Corporation) are payable on or in respect of Common
Stock comprising part of the Reference Package (as defined below),
in an amount per whole share of this Series equal to the aggregate
amount of dividends or other distributions (other than dividends
or distributions payable in Common Stock of the Corporation) that
would be payable on such date to a holder of the Reference Package
(as hereinafter defined) and (B) on the last day of March, June,
September and December in each year, in an amount per whole share
of this Series equal to the excess (if any) of $2.50 over the
aggregate dividends paid per whole share of this Series during the
three month period ending on such last day. Each such dividend
shall be paid to the holders of record of shares of this Series on
the date, not exceeding sixty days preceding such dividend or
distribution payment date, fixed for the purpose by the Board of
Directors in advance of payment of each particular dividend or
distribution. Dividends on each full and each fractional share of
this Series shall be cumulative from the date such full or
fractional share is originally issued; provided that any such full
or fractional share originally issued after a dividend record date
and on or prior to the dividend payment date to which such record
date relates shall not be entitled to receive the dividend payable
on such dividend payment date or any amount in respect of the
period from such original issuance to such dividend payment date.
The term "Reference Package" shall initially mean 1,000
shares of Common Stock, $.01 par value per share ("Common Stock"),
of the Corporation. In the event the Corporation shall at any time
after the close of business on April 22, 1998 (A) declare of pay a
dividend on any Common Stock payable in Common Stock, (B)
subdivide any Common Stock or (C) combine any Common Stock into a
smaller number of shares, then and in each such case the Reference
Package after such event shall be the Common Stock that a holder
of the Reference Package immediately prior to such event would
hold thereafter as a result thereof.
Holders of shares of this Series shall not be entitled to
any dividends, whether payable in cash, property or stock, in
excess of full cumulative dividends, as herein provided on this
Series.
So long as any shares of this series are outstanding, no
dividends (other than a dividend in Common Stock or in any other
stock ranking junior to this Series as to dividends and upon
liquidation) shall be declared or paid or set aside for payment or
other distribution declared or made upon the Common Stock or upon
any other stock ranking junior to this Series as to dividends or
upon liquidation, nor shall any Common Stock nor any other stock
of the Corporation ranking junior to or on a parity with this
Series as to dividends or upon liquidation be redeemed, purchased
or otherwise acquired for any consideration (or any moneys be paid
to or made available for a sinking fund for the redemption of any
shares of any such stock) by the Corporation (except by conversion
into or
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<PAGE> 21
exchange for stock of the Corporation ranking junior to this
Series as to dividends and upon liquidation), unless, in each
case, the full cumulative dividends (including the dividend to be
due upon payment of such dividend, distribution, redemption,
purchase or other acquisition) on all outstanding shares of this
Series shall have been, or shall contemporaneously be, paid.
(iv) In the event of any merger, consolidation,
reclassification or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case
the shares of this Series shall at the same time be similarly
exchanged or changed in an amount per whole share equal to the
aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, that a holder of
the Reference Package would be entitled to receive as a result of
such transaction.
(v) In the event of any liquidation, dissolution or winding
up of the affairs of the Corporation, whether voluntary or
involuntary, the holders of full and fractional shares of this
Series shall be entitled, before any distribution or payment is
made on any date to the holders of the Common Stock or any other
stock of the Corporation ranking junior to this Series upon
liquidation, to be paid in full an amount per whole share of this
Series equal to the greater of (A) $100 or (B) the aggregate
amount distributed or to be distributed prior to such date in
connection with such liquidation, dissolution or winding up to a
holder of the Reference Package (such greater amount being
hereinafter referred to as the "Liquidation Preference"), together
with accrued dividends to such distribution or payment date,
whether or not earned or declared. If such payment shall have been
made in full to all holders of shares of this Series, the holders
of shares of this Series as such shall have no right or claim to
any of the remaining assets of the Corporation.
In the event the assets of the Corporation available for
distribution to the holders of shares of this Series upon any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, shall be insufficient to pay in full all
amounts to which such holders are entitled pursuant to the first
paragraph of this Section (v), no such distribution shall be made
on account of any shares of any other class or series of Preferred
Stock ranking on a parity with the shares of this Series upon such
liquidation, dissolution or winding up unless proportionate
distributive amounts shall be paid on account of the shares of
this Series, ratably in proportion to the full distributable
amounts for which holders of all such parity shares are
respectively entitled upon such liquidation, dissolution or
winding up.
Upon the liquidation, dissolution or winding up of the
Corporation, the holders of shares of this Series then outstanding
shall be entitled to be paid out of assets of the Corporation
available for distribution to its Stockholders all amounts
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<PAGE> 22
to which such holders are entitled pursuant to the first paragraph
of this Section (v) before any payment shall be made to the
holders of Common Stock or any other stock of the Corporation
ranking junior upon liquidation to this Series.
For the purposes of this Section (v), the consolidation or
merger of, or binding share exchange by, the Corporation with any
other corporation shall not be deemed to constitute a liquidation,
dissolution or winding up of the Corporation.
(vi) The shares of this Series shall not be redeemable.
(vii) In addition to any other vote or consent of
Stockholders required by law or by the Restated Certificate of
Incorporation, as amended, of the Corporation, each whole share of
this Series shall, on any matter, vote as a class with any other
capital stock comprising part of the Reference Package and voting
on such matter and shall have the number of votes thereon that a
holder of the Reference Package would have.
IN WITNESS WHEREOF, the undersigned have signed and attested this
certificate on the 17th day of March, 1998.
/s/ William W. Steele
----------------------------------------
President
William W. Steele
Attest:
/s/ Harry H. Kahn
-------------------------------------
Secretary
Harry H. Kahn
13
