<PAGE> 1
As filed with the Securities and Exchange Commission on September 15, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
ASSOCIATED MATERIALS INCORPORATED
(Exact name of registrant as specified in its charter)
2200 ROSS AVENUE, SUITE 4100 EAST
DALLAS, TEXAS 75201
(214) 220-4600
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
DELAWARE 75-1872487
(State of incorporation) (I.R.S. Employer Identification Number)
ASSOCIATED MATERIALS INCORPORATED
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
ROBERT L. WINSPEAR
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
ASSOCIATED MATERIALS INCORPORATED
2200 ROSS AVENUE, SUITE 4100 EAST
DALLAS, TX 75201
(214) 220-4600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
WITH A COPY TO:
JAMES E. O'BANNON, ESQ.
JONES, DAY, REAVIS & POGUE
2300 TRAMMELL CROW CENTER
2001 ROSS AVENUE
DALLAS, TEXAS 75201
(214) 220-3939
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================================
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
to be Price per Offering Registration
Title of Securities to be Registered Registered (1) Share Price Fee (2)
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.0025 per share . . . . . 250,000 $7.50 $1,875,000 $554
==============================================================================================================================
</TABLE>
(1) Represents shares issuable under the Associated Materials Incorporated
Employee Stock Purchase Plan (the "Plan"). Pursuant to Rule 416, there are
also registered hereunder such indeterminate number of additional shares
as may become issuable under the Plan as a result of the antidilution
provisions contained therein.
(2) The registration fee has been computed in accordance with Rule 457(h).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
EXPLANATORY NOTE
The information called for by Part I of this Registration Statement on
Form S-8 (the "Registration Statement") is included in the description of the
Associated Materials Incorporated Employee Stock Purchase Plan ("Plan") to be
delivered to persons eligible to participate in the Plan. Pursuant to the Note
to Part I of Form S-8, this information is not being filed with or included in
this Registration Statement.
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<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Associated Materials Incorporated
(the "Company") with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), are incorporated by reference in this Registration Statement: (i) the
Company's Annual Report on Form 10-K for the year ended December 31, 1997; (ii)
the Company's Quarterly Report on Form 10-Q for the quarter ended March 31,
1998; (iii) the Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1998; and (iv) the description of the Common Stock contained in the
Company's Registration Statement on Form 8-A/A, filed by the Company with the
Commission.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the termination of the
offering made hereby, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part of this Registration Statement from the
date of the filing of such reports.
Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable (securities to be offered are registered under Section
12 of the Exchange Act).
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Restated Certificate of Incorporation (the "Certificate") of the
Company provides that to the full extent permitted by the General Corporation
Law of the State of Delaware ("DGCL") or any other applicable laws as presently
or hereafter in effect, no director of the Company shall be personally liable
to the Company or its stockholders for or with respect to any acts or omissions
in the performance of his or her duties as a director of the Company. The DGCL
would not permit limitation of liability of any such director (i) for breach of
such director's duty of loyalty to the Company or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) in respect of certain unlawful dividend
payments or stock redemptions or repurchases or (iv) for any transaction for
which such person derived an improper personal benefit. The Certificate and
the Company's Restated Bylaws ("Bylaws") provide that each person who is or was
a director or officer of the Company, or each such person who is or was serving
at the request of the Board of Directors or an officer of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise (including the heirs, executors and
administrators of such person), shall be indemnified by the Company to the full
extent permitted by the DGCL or any other applicable laws as presently or
hereafter in effect.
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<PAGE> 4
The Company has entered into certain agreements (the "Indemnification
Agreements") with each of its directors and executive officers (each an
"Indemnitee") designed to give effect to the foregoing provisions of the
Certificate and Bylaws. The Indemnification Agreements are intended to provide
certain additional assurances against the possibility of uninsured liability
primarily because the Indemnification Agreements (i) specify the extent to
which the Indemnitees shall be entitled to receive benefits not expressly set
forth in the DGCL and (ii) include a number of procedural provisions designed
to provide certainty in administration of the rights to indemnity. Pursuant to
the Indemnification Agreements, among other things, an Indemnitee will be
entitled to indemnification as provided by the DGCL and, in general, subject to
limitations (if any) imposed by applicable law, to indemnification for any
amount which the Indemnitee is or becomes legally obligated to pay relating to
failure to act or neglect or breach of duty, including any actual or alleged
error, misstatement or misleading statement, which such person commits,
suffers, permits or acquiesces in while acting in the Indemnitee's position
with the Company. The right to receive payments in excess of those expressly
provided for in the DGCL is not required under the Indemnification Agreements
in connection with any claim against the Indemnitee (i) for which payment is
actually made to the Indemnitee under a valid and collectible insurance policy,
(ii) which results in a final, nonappealable order for the Indemnitee to pay a
fine or similar governmental imposition which the Company is prohibited by
applicable law from paying, or (iii) based upon or attributable to the
Indemnitee gaining in fact a personal profit to which he was not legally
entitled, including without limitation profits made from the purchase and sale
by the Indemnitee of equity securities of the Company which are not recoverable
by the Company pursuant to Section 16(b) of the Exchange Act and profits
arising from transactions in publicly traded securities of the Company which
were effected by the Indemnitee in violation of Section 10(b) of the Exchange
Act or Rule 10b-5 promulgated thereunder.
The Company has purchased and maintains insurance on behalf of any
person who is or was a director or officer against any loss arising from any
claim asserted against him and incurred by him in any such capacity, subject to
certain exclusions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 Restated Certificate of Incorporation, as amended, of
Associated Materials Incorporated (the "Company")
4.2 Restated Bylaws of the Company (incorporated by referenced to
Exhibit 3.2 to the Company's Registration Statement on
Form S-1, Commission File No. 33-84110)
5.1 Opinion of Jones, Day, Reavis & Pogue
23.1 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Powers of Attorney
II-2
<PAGE> 5
ITEM 9. UNDERTAKINGS
A. The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities Act"),
unless the information required to be included in such
post-effective amendment is contained in periodic reports filed by
the Company pursuant to Section 13 or 15(d) of the Exchange Act and
incorporated herein by reference.
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information
set forth in the Registration Statement, unless the information
required to be included in such post-effective amendment is
contained in periodic reports filed by the Company pursuant to
Section 13 or 15(d) of the Exchange Act and incorporated herein by
reference. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and
any deviation from the low or high and of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Company pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
B. The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
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<PAGE> 6
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer, or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer, or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Dallas, State of Texas, on September 15, 1998.
ASSOCIATED MATERIALS INCORPORATED
By: /s/ ROBERT L. WINSPEAR
-------------------------------
Robert L. Winspear
Vice President and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on September 15, 1998.
<TABLE>
<CAPTION>
Signatures Title
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<S> <C>
WILLIAM W. WINSPEAR* Chairman of the Board, President and Chief
--------------------------------- Executive Officer
William W. Winspear (Principal Executive Officer)
/s/ ROBERT L. WINSPEAR Vice President, Chief Financial Officer,
--------------------------------- Treasurer and Secretary
Robert L. Winspear (Principal Financial and Accounting Officer)
RICHARD I. GALLAND* Director
---------------------------------
Richard I. Galland
JOHN T. GRAY* Director
---------------------------------
John T. Gray
DONALD L. KAUFMAN* Director
---------------------------------
Donald L. Kaufman
JAMES F. LEARY* Director
---------------------------------
James F. Leary
ALAN B. LERNER* Director
---------------------------------
Alan B. Lerner
A.A. MEITZ* Director
---------------------------------
A.A. Meitz
</TABLE>
* Robert L. Winspear, by signing his name hereto, does sign and execute this
Registration Statement pursuant to the Powers of Attorney executed on
behalf of the above-named officers and directors and filed herewith.
/s/ ROBERT L. WINSPEAR
---------------------------------------------
Robert L. Winspear
Attorney-in-Fact
II-5
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<S> <C>
Exhibit No. Exhibit
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4.1 Restated Certificate of Incorporation, as amended, of the Company
4.2 Restated Bylaws of the Company (incorporated by referenced to Exhibit 3.2 to the Company's
Registration Statement on Form S-1, Commission File No. 33-84110)
5.1 Opinion of Jones, Day, Reavis & Pogue
23.1 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Powers of Attorney
</TABLE>
<PAGE> 1
Exhibit 4.1
RESTATED CERTIFICATE OF INCORPORATION OF
ASSOCIATED MATERIALS INCORPORATED
Associated Materials Incorporated, a corporation organized and
existing under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the Corporation is Associated Materials Incorporated.
2. The original Certificate of Incorporation was filed with the
Secretary of State of the State of Delaware on April 4, 1983.
3. This Restated Certificate of Incorporation amends, restates and
integrates the provisions of the Certificate of Incorporation,
and all previously filed amendments and restatements thereto, and
has been duly adopted pursuant to Sections 228, 242 and 245 of
the General Corporation Law of the State of Delaware.
4. The text of the Certificate of Incorporation, and all previously
filed amendments and restatements thereto, is hereby amended and
restated to read as follows:
ARTICLE I
NAME
The name of the Corporation is:
Associated Materials Incorporated
ARTICLE II
DELAWARE OFFICE AND REGISTERED AGENT
The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street in the City of Wilmington, County of New Castle
19801. The name of its registered agent at such address is The Corporation
Trust Company.
ARTICLE III
PURPOSE
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 the State of Delaware (the "DGCL").
<PAGE> 2
ARTICLE IV
CAPITALIZATION
4.1. Number of Shares. The total number of shares of all classes of
stock which the Corporation shall have authority to issue is 17,800,000
consisting of (i) 100,000 shares of Preferred Stock, $.01 par value per share
issuable in series ("Preferred Stock"), (ii) 15,000,000 shares of Common Stock,
$.0025 par value per share ("Common Stock"), and (iii) 2,700,000 shares of
Class B Common Stock, $.0025 par value per share ("Class B Common Stock").
4.2. Designations. The following are the powers, designations,
preferences and rights, and the qualifications, limitations or restrictions
thereof of each class of stock of the Corporation:
A. Preferred Stock:
The Preferred Stock may be issued in one or more series. The
Board of Directors is hereby authorized to issue the shares of Preferred Stock
in such series and to fix from time to time before issuance the number of
shares to be included in any series and the designation, relative powers,
preferences and rights and qualifications, limitations or restrictions of all
shares of such series. The authority of the Board of Directors with respect to
each series shall include, without limiting the generality of the foregoing,
the determination of any or all of the following:
1. the number of shares of any series and the designation to
distinguish the shares of such series from the shares of all other
series;
2. the voting powers, if any, and whether such voting powers
are full or limited, in such series;
3. the redemption provisions, if any, applicable to such
series, including the redemption price or prices to be paid;
4. whether dividends, if any, shall be cumulative or
noncumulative, the dividend rate of such series, and the dates and
preferences of dividends on such series;
5. the rights of such series upon the voluntary or
involuntary dissolution of, or upon any distribution of the assets of,
the Corporation;
6. the provisions, if any, pursuant to which the shares of
such series are convertible into, or exchangeable for, shares of any
other class or classes or of any other series of the same or any other
class or classes of stock, or any other security, of the Corporation
or any other corporation, and price or prices or the rates of exchange
applicable thereto;
7. the right, if any, to subscribe for or to purchase any
securities of the Corporation or any other corporation;
8. the provisions, if any, of a sinking fund applicable to
such series; and
9. any other relative, participating, optional or other
special powers, preferences, rights, qualifications, limitations or
restrictions thereof;
all as shall be determined from time to time by the Board of Directors and
shall be stated in a resolution or resolutions providing for the issuance of
such Preferred Stock (a "Preferred Stock Designation").
Holders of Preferred Stock shall not be entitled to receive
notice of any meeting of stockholders at which they are not entitled to vote.
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B. Common Stock and Class B Common Stock:
1. Subject to Preferred Stock. The Common Stock and Class B
Common Stock shall be subject to the express terms of the Preferred Stock and
any series thereof.
2. Identical Rights of Common Stock and Class B Common Stock.
Except as otherwise expressly provided in this Restated Certificate of
Incorporation, all shares of Common Stock and Class B Common Stock shall be
identical and shall entitle the holders thereof to the same rights and
privileges.
3. Dividends. When and as dividends are declared, whether
payable in cash, in property or in securities of the Corporation, the holders
of the Common Stock and Class B Common Stock shall be entitled to share
equally, share for share, in such dividends. However, if dividends are
declared which are payable in shares of Common Stock or Class B Common Stock,
dividends shall be declared which are payable at the same rate on both classes
of stock and such dividends shall be payable only in shares of Common Stock to
holders of the Common Stock and shall be payable only in shares of Class B
Common Stock to holders of the Class B Common Stock.
4. Liquidation. Upon any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, after the payment in
full of all amounts to which holders of Preferred Stock shall be entitled, the
remaining assets of the Corporation to be distributed to the holders of the
capital stock of the Corporation shall be distributed ratably among the holders
of the shares of Common Stock and Class B Common Stock.
5. Subdivision and Combination. If the Corporation shall in
any manner subdivide (by stock split, stock dividend or otherwise) or combine
(by reverse stock split or otherwise) the outstanding shares of either the
Common Stock or the Class B Common Stock, the outstanding shares of the other
shall be proportionately subdivided or combined.
6. Conversion.
(a) General. Subject to and upon compliance with the
provisions of this Section 4.2(B)(6), each holder of record of the Class B
Common Stock shall be entitled at any time and from time to time to convert any
or all of the shares of Class B Common Stock held by such holder into the same
number of shares of Common Stock; provided, however, that no holder of the
Class B Common Stock shall be entitled to convert any share or shares of Class
B Common Stock unless such holder represents in writing to the Corporation
that, as a result of such conversion, such holder and its affiliates, directly
or indirectly, would not own, control or have power to vote a greater quantity
of securities of any kind issued by the Corporation than such holder and its
affiliates are permitted to own, control or have power to vote under any law or
under any regulation, rule or other requirement of any governmental authority
at the time applicable to such holder and its affiliates.
(b) Conversion Procedures. Each conversion of shares of
Class B Common Stock into shares of Common Stock shall be effected by (and the
Corporation shall be obligated to issue such shares of Common Stock upon) the
surrender of the certificate or certificates representing such shares of Class
B Common Stock to be converted at the principal office of the Corporation (or
at such other office or agency of the Corporation as the Corporation may
designate by notice in writing to the holders of the Class B Common Stock or,
if such conversion shall be in connection with an underwritten public offering
of shares of Common Stock, at the location at which the Corporation shall agree
to deliver the shares of Common Stock subject to such offering) at any time
during its usual business hours, together with written notice by the holder of
such Class B Common Stock (i) stating that such holder desires to convert the
shares, or a stated number of the shares, of Class B Common Stock represented
by such certificate or certificates into shares of Common Stock and (ii)
representing that upon such conversion, such holder and its affiliates shall
not, directly or indirectly, own, control or have power to vote a greater
quantity of securities of any kind issued by the Corporation than such holder
and its affiliates are permitted to own, control or have power to vote under
any applicable law, regulation, rule or other governmental requirement. Such
notice shall also state the name or names (with addresses) and denominations in
which the certificate or certificates for shares of Common Stock are to be
issued and shall include instructions for delivery
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<PAGE> 4
thereof. In case such notice shall specify that the new certificates to be
issued are to be issued in a name or names other than that of the holder of
Class B Common Stock, such notice shall be accompanied by payment of all
transfer taxes, if any. Promptly after such surrender and the receipt of such
written notice and payment of transfer taxes, if applicable, the Corporation
shall issue and deliver in accordance with such instructions the certificate or
certificates for the Common Stock issuable upon such conversion, and the
Corporation shall deliver to the converting holder a certificate representing
any shares of Class B Common Stock which were represented by the certificate or
certificates surrendered to the Corporation in connection with such conversion
but which were not converted. Such conversion to the extent permitted by law
shall be deemed to have been effected as of the close of business on the date
on which such certificate or certificates have been surrendered, such notice
has been received and such transfer taxes paid, if applicable, and at such time
the rights of the holder of such Class B Common Stock (or specified portion
thereof) as such holder shall cease and the person or persons in whose name or
names the certificate or certificates for shares of Common Stock are to be
issued upon such conversion shall be deemed to have become the holder or
holders of record of the shares of Common Stock represented thereby.
(c) Reservation of Shares, Validity, Etc. The
Corporation shall at all times reserve and keep available out of its authorized
but unissued shares of Common Stock or its treasury shares, for the purpose of
issuance upon the conversion of the Class B Common Stock as provided in this
Section 4.2(B)(6) such number of shares of Common Stock as are then issuable
upon the conversion of all outstanding shares of Class B Common Stock (assuming
that all such shares of Class B Common Stock are held by persons entitled to
convert such shares fully into shares of Common Stock). The Corporation
covenants that all shares of Common Stock which are issuable upon conversion
shall, when issued, be duly and validly issued, fully paid and nonassessable
and free from all taxes, liens and charges. The Corporation shall take all
such action as may be necessary to assure that all such shares of Common Stock
may be so issued without violation of any law or any regulation, rule or other
requirement of any governmental authority applicable to the Corporation or any
requirement of any domestic securities exchange upon which shares of Common
Stock may be listed; provided, however, that the Corporation shall be entitled
to rely on the representations of the holders of the Class B Common Stock
required under subsections (a) or (b) of this Section 4.2(B)(6). The
Corporation shall not take any action which would affect the number of shares
of Common Stock outstanding or issuable for any purposes unless immediately
following such action the Corporation would have authorized but unissued shares
of Common Stock or treasury shares, not then reserved or required to be
reserved for any purpose other than the purpose of issue upon conversion of the
Class B Common Stock, sufficient to meet the reservation requirements of the
first sentence of this subsection (c).
(d) Registration and Listing. If any shares of Common
Stock required to be reserved for purposes of conversion hereunder require,
before such shares may be issued upon conversion, registration with or approval
of any governmental authority under any federal or state law (other than any
registration under the Securities Act of 1933, as then in effect, or any
similar federal statute then in force, or any state securities law, required by
reason of any transfer involved in such conversion), or listing on any domestic
securities exchange, the Corporation shall, at its expense and as expeditiously
as possible, use its best efforts to cause such shares to be duly registered or
approved or listed, as the case may be.
(e) Charges. The issuance of certificates for shares of
Common Stock upon conversion of shares of Class B Common Stock shall be made
without charge to the holders of such shares of Class B Common Stock for any
issue tax in respect thereof or other cost incurred by the Corporation in
connection with such conversion and the related issue of shares of Common
Stock; provided, however, that the Corporation shall not be required to pay any
tax which may be payable in respect of any transfer involved in the issue and
delivery of any certificate in a name other than that of the holder of the
Class B Common Stock converted.
(f) Converted or Otherwise Acquired Shares To Be Retired.
Any shares of Class B Common Stock which are converted into shares of Common
Stock pursuant to this Section 4.2(B)(6) or otherwise acquired by the Company
in any manner whatsoever shall be permanently retired promptly on the
acquisition thereof and shall not under any circumstances be reissued, and the
Corporation shall from time to time take such appropriate action as may be
necessary to reduce the authorized number of shares of Class B Common Stock
accordingly.
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<PAGE> 5
7. Voting Rights.
(a) General. Except as otherwise provided by law or this
Article IV, the holders of the Common Stock shall be entitled to vote as a
class for the election or removal of all Directors of the Corporation and on
all other matters to be voted on by the stockholders of the Corporation and the
holders of the Class B Common Stock shall have no right to vote on matters to
be voted on by the stockholders of the Corporation, and the Class B Common
Stock shall not be included in determining the number of shares voting or
entitled to vote on such matters.
(b) Special Voting Rights. The holders of the Class B
Common Stock shall be entitled to vote on, and shall be included in determining
the number of shares of Common Stock and Class B Common Stock voting or
entitled to vote on, the following matters: (i) any amendment to this Restated
Certificate of Incorporation, (ii) any sale, lease, transfer or other
disposition of all or substantially all of the property and assets of the
Corporation on which the holders of the Common Stock have the right to vote,
(iii) any merger or consolidation of the Corporation with or into any other
corporation on which the holders of the Common Stock have the right to vote,
and (iv) any liquidation, dissolution or winding up of the Corporation on which
the holders of the Common Stock have the right to vote.
(c) Meeting Procedures. At every meeting of the holders
of the Common Stock, such holders shall vote together as a class. At every
meeting of the holders of the Common Stock and Class B Common Stock, at which
the holders of the Class B Common Stock are entitled to vote on any matter, the
holders of the Class B Common Stock and the holders of the Common Stock shall
vote thereon together as a single class; provided, however, that the holders of
the Class B Common Stock shall be entitled to vote separately as a class on any
amendment to the provisions pertaining to Class B Common Stock set forth in
this Article IV.B.
(d) One Vote Per Share. On all matters to be voted on by
the holders of Common Stock or the Class B Common Stock, the holders of such
class shall be entitled to one vote for each share thereof held of record.
ARTICLE V
POWERS OF BOARD OF DIRECTORS
5.1. Expanded Powers of the Board. In furtherance of, and not in
limitation of, the powers conferred by law, the Board of Directors is expressly
authorized and empowered:
A. to adopt, amend or repeal the Bylaws of the Corporation;
provided, however, that the Bylaws adopted by the Board of Directors
under the powers hereby conferred may be amended or repealed by the
Board of Directors or by the stockholders entitled to vote with
respect thereto; and
B. from time to time to determine whether and to what extent,
and at what times and places, and under what conditions and
regulations, the accounts and books of the Corporation, or any of
them, shall be open to inspection of stockholders; and, except as so
determined or as so provided in any Preferred Stock Designation, no
stockholder shall have any right to inspect any account, book or
document of the Corporation other than such rights as may be conferred
by applicable law.
5.2. Powers Specified in Bylaws. The Corporation may in its Bylaws
confer powers upon the Board of Directors in addition to the foregoing and in
addition to the powers and authorities expressly conferred upon the Board of
Directors by applicable law.
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ARTICLE VI
NO STOCKHOLDER ACTION BY WRITTEN CONSENT
Subject to the rights of the holders of any series of Preferred Stock
as set forth in a Preferred Stock Designation to elect additional Directors
under specific circumstances, upon the closing of the Corporation's first
public offering of Common Stock under a registration statement filed with the
Securities and Exchange Commission, any action required or permitted to be
taken by the stockholders of the Corporation must be effected at a duly called
annual or special meeting of stockholders of the Corporation and may not be
effected by any consent in writing of such stockholders.
ARTICLE VII
ELECTION OF DIRECTORS
7.1. Number, Election and Terms of Directors. Subject to the rights
of the holders of Preferred Stock to elect additional Directors under specific
circumstances, the number of the Directors of the Corporation shall be fixed
from time to time by or pursuant to the Bylaws of the Corporation. The
Directors, other than those who may be elected by the holders of Preferred
Stock, shall be classified with respect to the time for which they severally
hold office into three classes, as nearly their equal in number as possible, as
shall be provided in the manner specified in the Bylaws of the Corporation. At
each annual meeting of the stockholders of the Corporation, the successors of
the class of Directors whose term expires at that meeting shall be elected by
plurality vote of all votes cast at such meeting to hold office for a term
expiring at the annual meeting of stockholders held in the third year following
the year of their election.
7.2. Removal of Directors. Until such time as The Prudential
Insurance Company of America ("Prudential") and its Affiliates (as defined) are
the record holders of shares of Common Stock and/or Class B Common Stock
representing less than 5% of the then issued and outstanding Common Stock, on a
Fully-Diluted Basis (as defined) that, when acquired by Prudential and/or its
Affiliates, had not been registered pursuant to the Securities Act of 1933, as
amended, any Director or the entire Board of Directors may be removed, with or
without cause, by the holders of a majority of the shares then entitled to vote
at an election of Directors and the holders of 25% or more of the outstanding
Common Stock shall have the right to call a special meeting of stockholders
solely for the purpose of removing any Director and filling any vacancy created
thereby. Notwithstanding Article VI hereof, the removal of a director pursuant
to this Section 7.2 may be effected by the written consent of stockholders.
7.3. Stockholder Nomination of Director Candidates and Introduction of
Business. Advance notice of stockholder nominations for the election of
Directors and advance notice of business to be brought by stockholders before
an annual meeting shall be given in the manner provided in the Bylaws of the
Corporation.
7.4. Newly Created Directorships and Vacancies. Except as otherwise
provided for or fixed by or pursuant to the provisions of Article IV of this
Restated Certificate of Incorporation relating to the rights of the holders of
Preferred Stock to elect Directors under specified circumstances, 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 only by the
affirmative vote of a majority of the remaining Directors then in office, even
though less than a quorum of the Board of Directors. Any Director elected in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the class of Directors in which the new directorship was
created or the vacancy occurred and until such Director's successor shall have
been elected and qualified. Notwithstanding the foregoing provisions of this
Section 7.4, until such time as Prudential and its Affiliates are the record
holders of shares of Common Stock and/or Class B Common Stock representing less
than 5% of the then issued and outstanding shares of Common Stock, on a
Fully-Diluted Basis that, when acquired by Prudential and/or its Affiliates,
had not been registered pursuant to the Securities Act of 1933, as amended, at
any meeting of stockholders at which action is taken resulting in the removal
of a Director, the vacancy on the Board of Directors resulting from such
removal may be filled by the holders of a majority of the
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<PAGE> 7
shares then entitled to vote at an election of Directors and, if so filled,
such Director shall hold office for the remainder of the full term of the class
of Directors in which the vacancy occurred and until such Director's successor
shall have been elected and qualified. Notwithstanding Article VI hereof, any
action permitted to be taken at a meeting pursuant to the preceding sentence of
this Section 7.4 may be effected by the written consent of stockholders.
7.5. Decrease in Number of Directors. No decrease in the number of
Directors constituting the Board of Directors shall shorten the term of an
incumbent Director.
7.6. No Requirement of Written Ballot. The election of the Directors
may be conducted in any form adopted by the Board of Directors, and need not be
by written ballot. In the event, however, that a majority of the stockholders
vote to require written ballots, written ballots shall be used.
7.7 Certain Defined Terms. As used in this Article VII, (i) the term
"Affiliate" shall mean a person that directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such person; (ii) the term "control" shall mean the power to cause the election
of a majority of the members of the board of directors or other governing body
of any entity; and (iii) the term "Fully-Diluted Basis" shall mean after giving
effect to the exercise, conversion and exchange of all securities or other
rights then exercisable or convertible into or exchangeable for Common Stock
(including, without limitation, any subscriptions, options, warrants,
conversions or other rights pursuant to any agreements, arrangements or
commitments of any kind obligating the Corporation to issue or sell any shares
of Common Stock or any securities exercisable or convertible into or
exchangeable for Common Stock).
ARTICLE VIII
INDEMNIFICATION
Each person who is or was a Director or officer of the Corporation, or
each such person who is or was serving at the request of the Board of Directors
or an officer of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
(including the heirs, executors, administrators or estate of such person),
shall be indemnified by the Corporation to the full extent permitted from time
to time by the DGCL as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment) or any other applicable
laws as presently or hereafter in effect. Without limiting the generality or
the effect of the foregoing, the Corporation may enter into one or more
agreements with any person which provide for indemnification greater or
different than that provided in this Article VIII. Any amendment or repeal of
this Article VIII shall not adversely affect any right or protection existing
hereunder immediately prior to such amendment or repeal.
ARTICLE IX
NO MONETARY LIABILITY OF DIRECTORS TO STOCKHOLDERS
To the full extent permitted by the DGCL or any other applicable laws
presently or hereafter in effect, no Director of the Corporation shall be
personally liable to the Corporation or its stockholders for or with respect to
any acts or omissions in the performance of his or her duties as a Director of
the Corporation. Any repeal or modification of this Article Ninth shall not
adversely affect any right or protection of a Director of the Corporation
existing immediately prior to such repeal or modification.
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<PAGE> 8
ARTICLE X
AMENDMENT
The Corporation reserves the right at any time and from time to time
to amend, alter, change or repeal any provision contained in this Restated
Certificate of Incorporation or a Preferred Stock Designation, and any other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted, in the manner now or hereafter prescribed herein or
by applicable law, and all rights, preferences and privileges of whatsoever
nature conferred upon stockholders, Directors or any other persons whomsoever
by and pursuant to this Restated Certificate of Incorporation in its present
form or as hereafter amended are granted subject to the right reserved in this
Article X; provided, however, that any amendment or repeal of Article VIII or
Article IX of this Restated Certificate of Incorporation shall not adversely
affect any right or protection existing hereunder immediately prior to such
amendment or repeal, and provided further that no Preferred Stock Designation
shall be amended after the issuance of any shares of the series of Preferred
Stock created thereby, except in accordance with the terms of such Preferred
Stock Designation and the requirements of applicable law.
5. In lieu of a vote of the stockholders, written consents to this
Restated Certificate of Incorporation have been signed by the
holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon
were present and voted, in accordance with the provisions of
Sections 228, 242 and 245 of the DGCL.
IN WITNESS WHEREOF, the said ASSOCIATED MATERIALS INCORPORATED
has caused this certificate to be signed by William W. Winspear, its President,
under its corporate seal attested by Robert L. Winspear, its Secretary, this
12th day of October, 1994.
ASSOCIATED MATERIALS INCORPORATED
/s/ William W. Winspear
----------------------------------
William W. Winspear, President
/s/ Robert L. Winspear
- ---------------------------------
Robert L. Winspear, Secretary
-8-
<PAGE> 9
CERTIFICATE OF RETIREMENT OF STOCK
OF
ASSOCIATED MATERIALS INCORPORATED
Associated Materials Incorporated, a corporation organized and
existing under the General Corporation Law of the State of Delaware (the
"Corporation"), DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation duly adopted a
resolution which identified shares of the capital stock of the Corporation,
which to the extent hereinafter set forth, had the status of retired shares,
and which retired shares had capital applied in connection with their
conversion.
SECOND: The shares of capital stock of the Corporation which are
retired are identified as being 1,150,000 shares of Class B Common Stock, par
value of $.0025 per share ("Class B Common Stock").
THIRD: That the Restated Certificate of Incorporation of the
corporation prohibits the reissuance of the shares of Class B Common Stock when
so retired and, pursuant to the provisions of Section 243 of the General
Corporation Law of the State of Delaware, upon the effective date of the filing
of this Certificate, the Restated Certificate of Incorporation of the
Corporation shall be amended so as to effect a reduction in the authorized
number of shares of the Class B Common Stock to the extent of 1,150,000 shares,
being the total number of shares of Class B Common Stock retired.
FOURTH: This Certificate of Retirement of Stock shall be effective
upon filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by William W. Winspear, its Chairman of the Board, President and Chief
Executive Officer and attested by Robert L. Winspear, its Vice President,
Treasurer and Secretary, this 31st day of March, 1998.
ASSOCIATED MATERIALS INCORPORATED
By: /s/ William W. Winspear
----------------------------------
William W. Winspear
Chairman of the Board, President and
Chief Executive Officer
ATTEST:
By: /s/ Robert L. Winspear
--------------------------------------
Robert L. Winspear
Secretary
<PAGE> 1
Exhibit 5.1
[Letterhead of Jones, Day, Reavis & Pogue]
September 15, 1998
Associated Materials Incorporated
2200 Ross Avenue, Suite 4100 East
Dallas, Texas 75201
Re: Registration Statement on Form S-8 relating to 250,000 shares
of Common Stock, par value $.0025 per share, of Associated
Materials Incorporated
Ladies and Gentlemen:
We are acting as counsel to Associated Materials Incorporated, a
Delaware corporation (the "Company"), in connection with the registration of
250,000 shares (the "Shares") of common stock, par value $.0025 per share, of
the Company ("Common Stock") under the Securities Act of 1933, as amended,
pursuant to the Company's Registration Statement on Form S-8 (the "Registration
Statement").
We have examined such documents, records, and matters of law as we
have deemed necessary for purposes of this opinion. Based on such examination
and on the assumptions set forth below, we are of the opinion that, when issued
and delivered in accordance with the provisions of the Associated Materials
Incorporated Employee Stock Purchase Plan (the "Plan") against payment of the
consideration therefor as provided in the Plan and having a value not less than
the par value thereof, the Shares will be duly authorized, validly issued,
fully paid and nonassessable.
In rendering the foregoing opinion, we have relied as to certain
factual matters upon certificates of officers of the Company and public
officials, and we have not independently checked or verified the accuracy of
the statements contained therein. In addition, our examination of matters of
law has been limited to the General Corporation Law of the State of Delaware
and the federal laws of the United States of America, in each case as in effect
on the date hereof.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement with respect to the Common Stock.
Very truly yours,
/s/ Jones, Day, Reavis & Pogue
Jones, Day, Reavis & Pogue
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Associated Materials Incorporated Employee Stock
Purchase Plan of our report dated January 29, 1998, with respect to the
consolidated financial statements of Associated Materials Incorporated included
in its Annual Report (Form 10-K) for the year ended December 31, 1997, filed
with the Securities and Exchange Commission.
<TABLE>
<S> <C> <C>
/s/ ERNST & YOUNG LLP
Dallas, Texas
September 14, 1998
</TABLE>
<PAGE> 1
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints William W. Winspear, Robert L. Winspear and James E. O'Bannon
the true and lawful attorney-in-fact, with full power of substitution and
resubstitution, for him and in his name, place and stead, to sign on his
behalf, as a director or officer, or both, as the case may be, of Associated
Materials Incorporated, a Delaware corporation (the "Corporation"), one or more
Registration Statements on Form S-8 or any other appropriate form (the
"Registration Statement"), under the Securities Act of 1933, as amended,
with respect to the shares of Common Stock, par value $.0025 per share, of the
Corporation issuable pursuant to the Associated Materials Incorporated Employee
Stock Purchase Plan and to sign any or all amendments and any or all
post-effective amendments to the Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney or
attorneys-in-fact, each of them with or without the others, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorney or attorneys-in-fact or any of them or their
substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Dated: August 26, 1998
<TABLE>
<S> <C>
/s/ WILLIAM W. WINSPEAR /s/ JAMES F. LEARY
------------------------------ ---------------------------------------------------
William W. Winspear James F. Leary
/s/ ALAN B. LERNER /s/ RICHARD I. GALLAND
------------------------------ ---------------------------------------------------
Alan B. Lerner Richard I. Galland
/s/ JOHN T. GRAY /s/ A.A. MEITZ
------------------------------ ---------------------------------------------------
John T. Gray A. A. Meitz
/s/ DONALD L. KAUFMAN /s/ ROBERT L. WINSPEAR
------------------------------ ---------------------------------------------------
Donald L. Kaufman Robert L. Winspear
</TABLE>
