AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 1, 1999
REGISTRATION NO. 333-____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LUND INTERNATIONAL HOLDINGS, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation or Organization)
41-1568618
(I.R.S. Employer Identification No.)
911 LUND BOULEVARD, ANOKA, MINNESOTA 55303
(Address of Principal Executive Offices) (Zip Code)
LUND INTERNATIONAL HOLDINGS, INC.
1998 STOCK OPTION INCENTIVE PLAN
LUND INTERNATIONAL HOLDINGS, INC.
1999 STOCK OPTION INCENTIVE PLAN
(Full Title of the Plans)
DENNIS W. VOLLMERSHAUSEN, CHIEF EXECUTIVE OFFICER AND PRESIDENT,
LUND INTERNATIONAL HOLDINGS, INC.
911 LUND BOULEVARD, ANOKA, MINNESOTA 55303
(Name and Address of Agent for Service)
(612) 576-4200
Telephone Number, Including Area Code, of Agent For Service
Copies to:
MARK S. WEITZ, ESQ.
JEFFREY L. COTTER, ESQ.
LEONARD, STREET AND DEINARD PROFESSIONAL ASSOCIATION
150 SOUTH FIFTH STREET
SUITE 2300
MINNEAPOLIS, MINNESOTA 55402
(612) 335-1500
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
To Be Price Per Offering Registration
Title of Securities To Be Registered Registered Share(1) Price(1) Fee(1)
- --------------------------------------------------------------- ------------ ----------- ------------ ==============
<S> <C> <C> <C> <C>
Common Stock, $.10 par value per share, issuable under the Lund
International Holdings, Inc. 1998 Stock Option Incentive Plan 500,000 $6.50 $3,250,000 $903.50
- --------------------------------------------------------------- ------------ ----------- ------------ ==============
Common Stock, $.10 par value per share, issuable under the Lund
International Holdings, Inc. 1999 Stock Option Incentive Plan 500,000 $6.50 $3,250,000 $903.50
=============================================================== ============ =========== ============ ==============
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and based upon the last reported sale for
such stock on September 29, 1999, as reported by the Nasdaq National
Market System.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are incorporated herein by reference. All
documents subsequently filed by Lund International Holdings, Inc. (the
"Registrant") pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
shares of the Registrant's common stock, $.10 par value per share ("Common
Stock"), offered pursuant to this Registration Statement have been sold or which
deregisters all shares of Common Stock then remaining unsold, shall be deemed to
be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing such documents:
(a) The Registrant's Definitive Schedule 14A (Proxy
Statement) filed with the Securities and Exchange
Commission (the "Commission") on April 1,
1999(Commission File No. 0-16319), relating to the
Registrant's Annual Meeting of Shareholders held on
April 27, 1999;
(b) The Registrant's Preliminary Schedule 14A (Proxy
Statement), relating to the Registrant's Annual Meeting
of Shareholders held on April 27, 1999;
(c) The Registrant's Annual Report to Shareholders, relating
to the Registrant's Annual Meeting of Shareholders held
on April 27, 1999;
(d) The Registrant's Annual Report on Form 10-K for the year
ended December 31, 1998;
(e) The Registrant's Reports on Form 10-Q for the fiscal
quarters ended March 31 and June 30, 1999;
(f) The Registrant's Report on Form 10-Q/A for the fiscal
quarter ended June 30, 1999;
(g) The Registrant's Current Reports on Form 8-K filed with
the Commission on January 6, January 8, and February 12,
1999;
(h) The Registrant's Current Reports on Form 8-K/A filed
with the Commission on March 8 and April 13, 1999; and
(i) The description of the Common Stock contained in the
Registrant's Registration Statement filed on Form S-4
(Registration No. 33-16685), dated August 21, 1987, and
as amended by Amendment Nos. 1 and 2, dated September
25, 1987, and October 7, 1987, respectively.
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
(the "Delaware GCL") grants each corporation organized under the laws of the
State of Delaware the power to indemnify its officers and directors under
certain circumstances. Article V of the Registrant's Amended and Restated Bylaws
provides for indemnification to the fullest extent permitted by Section 145.
As authorized by Section 102 of the Delaware GCL, the Registrant has
included in its Certificate of Incorporation a provision eliminating the
liability of a director to the Registrant or its stockholders for monetary
damages for certain breaches of a director's fiduciary duties to the Registrant.
Liability may not be and has not been limited for breaches of the duty of
loyalty, intentional misconduct, distributions made in contravention of Section
174 of the Delaware GCL or for any transaction in which a director derives an
improper personal benefit.
The Registrant has a directors and officers liability insurance
policy which, under certain circumstances, insures its directors and officers
against the cost of defense, settlement or payments of judgment.
The rights of indemnification described above are not exclusive of
any other rights of indemnification to which the person indemnified may be
entitled under any agreement, vote of stockholders or directors, or otherwise.
For information regarding the Registrant's undertaking to submit to
adjudication the issue of indemnification for violation of the securities laws,
see Item 9 hereof.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.1 Certificate of Incorporation of the Registrant, as
amended to date
2
<PAGE>
4.2 Bylaws of the Registrant (incorporated by reference to
Exhibit 3.2 of the Registrant's Registration Statement
on Form S-4 (Registration No. 33-16685))
5.1 Opinion of Leonard, Street and Deinard Professional
Association regarding the legality of the Common Stock
being registered
15.1 Awareness Letter of PricewaterhouseCoopers LLP
(regarding interim financial information)
23.1 Consent of Leonard, Street and Deinard Professional
Association (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney (included on the signature page of
this Registration Statement)
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant 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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this 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 Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement
3
<PAGE>
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.
(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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to 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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant 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 Registrant 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 Act and will
be governed by the final adjudication of such issue.
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 Anoka, State of Minnesota on this 30th day of
September, 1999.
LUND INTERNATIONAL HOLDINGS, INC.
By /s/ Dennis W. Vollmershausen
Dennis W. Vollmershausen
Chief Executive Officer and
President (Principal Executive Officer)
4
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Dennis W. Vollmershausen his true and
lawful attorney-in-fact and agent, with full powers of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this 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-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ------------------------------ ------------------------------------------ --------------------
<S> <C> <C>
/s/ Dennis W. Vollmershausen
- ------------------------------
Dennis W. Vollmershausen Chief Executive Officer, President and September 30, 1999
Director (Principal Executive Officer)
/s/ Edmund J. Schwartz
- ------------------------------
Edmund J. Schwartz Chief Financial Officer, Treasurer and September 30, 1999
Assistant Secretary (Principal Financial
and Accounting Officer)
/s/ David E. Dovenberg
- ------------------------------
David E. Dovenberg Director September 30, 1999
/s/ Ira D. Kleinman
- ------------------------------
Ira D. Kleinman Director September 30, 1999
/s/ Robert R. Schoeberl
- ------------------------------
Robert R. Schoeberl Director September 30, 1999
/s/ Harvey J. Wertheim
- ------------------------------
Harvey J. Wertheim Director September 30, 1999
/s/ Lawrence C. Day
- ------------------------------
Lawrence C. Day Director September 30, 1999
</TABLE>
5
<PAGE>
EXHIBIT INDEX TO FORM S-8
Exhibit Description
- ------- -----------
Number
- ------
4.1 Certificate of Incorporation of the Registrant, as
amended to date
4.2 Bylaws of the Registrant (incorporated by reference
to Exhibit 3.2 of the Registrant's Registration
Statement on Form S-4 (Registration No. 33-16685))
5.1 Opinion of Leonard, Street and Deinard Professional
Association regarding the legality of the Common
Stock being registered
15.1 Awareness Letter of PricewaterhouseCoopers LLP
(regarding interim financial information)
23.1 Consent of Leonard, Street and Deinard Professional
Association (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney (included on the signature page of
this Registration Statement)
EXHIBIT 4.1
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF SERIES B PREFERRED STOCK
LUND INTERNATIONAL HOLDINGS, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
The undersigned, Dennis W. Vollmershausen, hereby certifies that:
A. He is the duly elected and acting Chief Executive Officer of LUND
INTERNATIONAL HOLDINGS, INC., a Delaware corporation (the "Corporation").
B. Pursuant to authority given by the Corporation's Certificate of
Incorporation, as amended through the date hereof (the "Certificate of
Incorporation"), the Board of Directors of the Corporation duly adopted the
following resolutions on December 18, 1998, creating a new series of 362,709
shares of Preferred Stock designated as "Series B Preferred Stock."
C. The resolutions contained herein have not been modified, altered
or amended and are presently in full force and effect.
RESOLVED, that pursuant to the authority expressly vested in the
Board of Directors of the Corporation by Article Fourth of the Certificate of
Incorporation, the Board of Directors hereby fixes and determines the powers,
preferences, rights and limitations of a series of Preferred Stock, which shall
consist of 362,709 shares and shall be designated as Series B Preferred Stock
(the "Series B Preferred Stock"), as follows:
4D Series B Preferred Stock.
(i) Designation: Stated Value. There shall be a series of Preferred
Stock designated as "Series B Preferred Stock." The number of shares initially
constituting such series shall be 362,709. The Series B Preferred Stock shall
have a stated value of $70.00 per share (the "Stated Value").
(ii) Rank. The Series B Preferred Stock shall, with respect to
dividend and other distribution rights, and rights on liquidation, dissolution
and winding up, rank (a) prior to the Trigger Date (as defined in Part (vi)(a)
below), (i) PARI PASSU with any class of capital stock or series of Preferred
Stock hereafter created which expressly provides that it ranks PARI PASSU with
the Series B Preferred Stock as to dividends, other distributions, liquidation
preference and/or otherwise (collectively, the "Parity Securities"), and (ii)
senior to (x) the Common Stock, the
4.1-1
<PAGE>
Class B Common Stock and all other securities of any class or classes (however
designated) of the Corporation (other than the Series B Preferred Stock) the
holders of which have the right, without limitation as to amount, after payment
on any securities entitled to a preference on dividends or other distributions
upon any dissolution, liquidation or winding up, either to all or to a share of
the balance of payments upon such dissolution, liquidation or winding up
(collectively, the "Common Stock Instruments") and (y) any other class or series
of Preferred Stock hereafter created which does not expressly provide that it
ranks PARI PASSU with the Series B Preferred Stock as to dividends, other
distributions, liquidation preference and/or otherwise (collectively, the
"Junior Securities"), and (b) from and after the Trigger Date, (i) PARI PASSU
with the Parity Securities, and senior to the Common Stock Instruments and the
Junior Securities, but only in the case of dividends accrued pursuant to Part
(iii) hereof, and (ii) in all other cases, PARI PASSU with the Common Stock
Instruments, provided that, for purposes of this clause (b)(ii), each share of
Series B Preferred Stock shall be deemed to constitute the equivalent of the
number of shares of Common Stock which the holder of such share would receive if
such share were converted into shares of Common Stock at the Series B Conversion
Ratio as then in effect. The terms "Parity Securities" and "Junior Securities"
as used herein with respect to any class or series of capital stock shall only
be deemed to refer to such class or series to the extent that it ranks (i) PARI
PASSU with or (ii) not PARI PASSU with, as applicable, the Series B Preferred
Stock with respect to dividends, other distributions, liquidation preference or
otherwise. Prior to the Trigger Date, the Corporation shall not issue any
capital stock or other equity securities ranking senior to the Parity Securities
with respect to dividends, distributions, liquidation preference or otherwise.
(iii) Dividends.
(a) Subject to Part (vi)(a) hereof:
(x) The holders of shares of Series B
Preferred Stock shall be entitled to receive, when, as
and if declared by the Board of Directors, to the extent
funds are legally available therefor in accordance with
the Delaware General Corporation Law, a dividend for
each such share, payable quarterly, as provided below,
on the last day of each January, April, July and
October, commencing on July 31, 1999 (each such date
hereinafter referred to as a "Dividend Payment Date"),
except hat if such date is not a Business Day, then such
dividend shall be payable on the next succeeding
Business Day, to the holders of record as they appear on
the register of the Corporation for the Series B
Preferred Stock of the Corporation five Business Days
prior to such Dividend Payment Date (the "Dividend
Record Date").
(y) Dividends on the Series B Preferred
Stock shall accrue and be paid at a rate per annum equal
to 15% percent of the Stated Value of each share of
Series B Preferred Stock outstanding on the Dividend
Record Date with respect to a Dividend Payment Date.
4.1-2
<PAGE>
(b) Dividends on the Series B Preferred Stock shall be
cumulative and shall accrue from (and including) April 30, 1999, to
but excluding the Trigger Date, whether or not such dividends have
been declared. Accrued but unpaid dividends, whether or not
declared, shall compound quarterly at a rate per annum equal to 15%
of the aggregate amount thereof' from the Dividend Payment Date on
which such dividend was payable as herein provided until payment of
such dividend. Notwithstanding anything to the contrary contained
herein, dividends shall cease to accrue on the Trigger Date, and the
Corporation shall have no obligation to pay any dividends subsequent
to the Trigger Date, except as provided for herein with respect to
dividends which accrued prior to the Trigger Date.
(c) For so long as any shares of Series B Preferred
Stock shall be outstanding, no dividend or distribution, whether in
cash, stock or other property, shall be paid, declared and set apart
for payment or made on any date on or in respect of any Common Stock
Instruments or Junior Securities and no payment on account of the
redemption, purchase or other acquisition or retirement for value by
the Corporation of any Common Stock Instruments or Junior Securities
shall be made on any date unless, in each case, the full amount of
unpaid dividends accrued on all outstanding shares of Series B
Preferred Stock shall have been paid or contemporaneously are
declared and paid; provided, however, that the foregoing provisions
of this sentence shall not prohibit (i) a dividend payable solely in
Common Stock Instruments or Junior Securities, or (ii) the
acquisition of any Common Stock Instruments or Junior Securities
upon conversion or exchange thereof into or for any shares or units
of any other class of Common Stock Instruments or Junior Securities.
In the event that the dividend to be paid to any holder of shares of
Series B Preferred Stock shall be a fractional interest in a share of Series B
Preferred Stock then a fractional share of Series B Preferred Stock shall be
issued to such holder of shares of Series B Preferred Stock.
(iv) Redemption. Subject to Part (vi)(a) hereof:
(a) Redemption by Corporation. To the extent funds are
legally available therefor, the Corporation may, at any time on or
after December 29, 2007 redeem for the Redemption Price each share
of Series B Preferred Stock then outstanding; provided, however,
that the Corporation may not redeem any shares of Series B Preferred
Stock as to which the holder thereof, prior to the expiration of the
relevant 30-day notice period, has advised the Corporation that the
conversion of such shares into shares of Common Stock would result
in such holder or any of its Affiliates being subject to a
Regulatory Problem. To the extent funds are legally available
therefor, the Corporation shall, at the request of a majority of the
holders of shares of Series B Preferred Stock then outstanding given
at any time on and after the Put Date, redeem for the Series
Redemption Price each share of Series B Preferred Stock then
outstanding. The date on which shares are redeemed pursuant to this
Part iv(a) of Section 4D is referred to herein
4.1-3
<PAGE>
as the "Series Redemption Date." If on the Series Redemption Date
there shall be insufficient funds of the Corporation legally
available for such redemption, such amount of funds as is legally
available shall be used to discharge the redemption requirement.
Such redemption requirement shall be cumulative so that if such
requirement shall not be fully discharged for any reason, funds
legally available therefor shall immediately be applied thereto upon
receipt by the Corporation until such requirement is discharged in
full. The redemption price (the "Series Redemption Price") for each
outstanding share of Series B Preferred Stock to be redeemed
pursuant to this Part (iv)(a) of Section 4D shall be the sum
(payable in cash) of (x) the Stated Value plus (y) an amount equal
to all accrued and unpaid dividends thereon to the Series Redemption
Date.
(b) Payment of Series Redemption Price. On the Series
Redemption Date, the Corporation shall pay to the holder of each
share of Series B Preferred Stock being redeemed, upon surrender by
such holder at the Corporation's principal executive office of the
certificate representing such share, duly endorsed in blank or
accompanied by an appropriate form of assignment, the Series
Redemption Price.
(c) Redeemed or Otherwise Acquired Shares Not to be
Reissued. All shares of Series B Preferred Stock redeemed pursuant
to this Part (iv) of Section 4D or otherwise acquired by the
Corporation shall be retired and shall not thereafter be reissued.
(d) Determination of Number of Each Holder's Shares to
be Redeemed. If, for any reason, less than all of the outstanding
shares of Series B Preferred Stock are to be redeemed pursuant to
Part (iv)(a) of this Section 4D, the Corporation shall determine the
shares held by each holder of Series B Preferred Stock to be
redeemed as hereinafter provided. The number of shares to be
redeemed from each holder thereof shall be the number of shares
determined by multiplying the total number of shares to be redeemed
times a fraction, the numerator of which shall be the total number
of shares of Series B Preferred Stock then held by such holder and
the denominator of which shall be the total number of shares of
Series B Preferred Stock then outstanding.
(e) Notice of Redemption. Notice of any redemption of
Series B Preferred Stock pursuant to Part (iv)(a) of this Section
4D, specifying the time and place of redemption and the Series
Redemption Price, shall be mailed by certified or registered mail,
return receipt requested, to each holder of record of shares to be
redeemed, at the address for such holder shown on the Corporation's
records, not less than 30 days prior to the date on which such
redemption is to be made; provided, that neither failure to give
such notice nor any defect therein shall affect the validity of the
proceeding for the redemption of any shares of Series B Preferred
Stock to be redeemed. Such notice shall also specify the number of
shares of each holder thereof and the certificate numbers thereof
which are to be redeemed. In case less than all the shares
represented by any certificate are redeemed, a new certificate
representing the unredeemed shares shall be issued to the holder
thereof without cost to such holder.
4.1-4
<PAGE>
(f) Dividends After Redemption Date. Unless the Series
Redemption Price in respect of a share of Series B Preferred Stock
is not paid in full to the holder thereof, from and after the Series
Redemption Date, such share of Series B Preferred Stock shall not be
entitled to any dividends accruing after such date, all rights of
the holder of such share, as a stockholder of the Corporation by
reason of the ownership of such share, shall cease, except the right
to receive the Series Redemption Price of such share upon the
presentation and surrender of the certificate representing such
share, and such share shall not after such date be deemed to be
outstanding for any purpose.
(v) Liquidation Rights.
(a) Upon the dissolution, liquidation or winding up of
the Corporation, whether voluntary or involuntary, the holders of
outstanding shares of Series B Preferred Stock shall be entitled to
receive for each such share, out of the assets of the Corporation
available for distribution to stockholders, before any payment or
distribution to stockholders and before any payment or distribution
shall be made to the holders of Common Stock Instruments or any
Junior Securities upon liquidation, an amount in cash equal to the
sum of (x) in the event that such liquidation, dissolution or
winding up occurs on or prior to the Trigger Date, the Stated Value,
plus (y) all accrued and unpaid dividends in respect of such share
to the date of final distribution (the "Liquidation Preference"). If
the holders are not entitled to receive the Stated Value on a
preferential basis because the liquidation, dissolution or winding
up of the Corporation occurs on or after the Trigger Date, then such
holders shall continue to have a right and claim to the remaining
assets of the Corporation on a PARI PASSU basis with the holders of
the Common Stock Instruments, as contemplated by clause (b)(ii) of
Part (ii) above.
(b) Subject to paragraph (a) above, after the payment to
the holders of the Series B Preferred Stock of the full preferential
amounts provided for in this Part (v) of Section 4D, the holders of
the Series B Preferred Stock as such shall have no right or claim to
any of the remaining assets of the Corporation.
(c) If, upon any such liquidation, dissolution or other
winding up of the affairs of the Corporation, the assets of the
Corporation are insufficient to permit the payment in full of the
Liquidation Preference for each share of Series B Preferred Stock
then outstanding, then the assets of the Corporation remaining 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.
(d) Neither the voluntary sale, conveyance, exchange or
transfer (for cash, shares of stock, securities or other
consideration) of all or substantially all the property or assets of
the Corporation nor the consolidation, merger or other business
combination of the Corporation with or into one or more corporations
4.1-5
<PAGE>
shall be deemed to be a liquidation, dissolution or winding-up,
voluntary or involuntary, of the Corporation.
(vi) Conversion.
(a) At any time after the Stockholder Approval has been
obtained, each share of Series B Preferred Stock shall be
convertible into 10 shares of Common Stock (as adjusted from time to
time pursuant to paragraph (g) below, the "Series B Conversion
Ratio"), in each case at the option of the holder thereof, so long
as none of it or its Affiliates will be subject to a Regulatory
Problem as a result of such conversion; provided, however, that in
the event that Stockholder Approval occurs after April 30, 1999,
upon the conversion of any shares of Series B Preferred Stock
pursuant to this Part (vi)(a), in addition to the shares of Common
Stock to be received by the holder of such shares of Series B
Preferred Stock, such holder shall receive a cash payment of all
accrued and unpaid dividends on the shares of Series B Preferred
Stock then being converted by it; and provided, further, that from
and after the earlier of (x) the date on which Stockholder Approval
is received, and (y) the date on which a stockholders' meeting is
held but Stockholder Approval is not received due to the fact that
any of LIH Holdings, LLC, LIH Holdings II, LLC, LIH Holdings III,
LLC, or their respective Associates, cast votes in opposition to or
abstain from voting on the conversion of the Series B Preferred
Stock (such earlier date, the "Trigger Date"), (i) the provisions of
Article Four, Section 4D, Part (iv) shall be null and void and of no
further force and effect and (ii) dividends on the Series B
Preferred Stock shall cease to accrue pursuant to Part (iii)(a)(y)
above, it being understood that the holders of shares of Series B
Preferred Stock shall continue to be entitled to receive accrued but
unpaid dividends as contemplated by Part (iii)(b) above. Except for
its right to receive such accrued but unpaid dividends, from and
after the Trigger Date, each holder of shares of Series B Preferred
Stock shall, with respect to dividends and liquidation, be treated
as if such holder held the number of shares of Common Stock into
which such shares of Series B Preferred Stock are then convertible.
(b) Each conversion of shares of Series B Preferred
Stock into shares of Common Stock will be effected by the surrender
of the certificate or certificates representing the shares to be
converted at the principal office of the Corporation (or such other
office or agency of the Corporation as the Corporation may designate
in writing to the holders of the Series B Preferred Stock) at any
time during normal business hours. Each conversion will be deemed to
have been effected as of the close of business on the date on which
such certificate or certificates were surrendered. At such time, the
rights of the holder of the converted Series B Preferred Stock (in
its capacity as such) will 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 will be deemed to have
4.1-6
<PAGE>
become the holder or holders of record of the shares of Common Stock
represented thereby.
(c) Following each surrender of certificates pursuant to
paragraph (b) above, the Corporation will issue and deliver, in
accordance with the surrendering holder's instructions, (x) the
certificate or certificates for the Common Stock issuable upon such
conversion, and (y) any cash payment required to be made pursuant to
Part (vi)(a) of Section 4D.
(d) The issuance of certificates representing shares of
Common Stock upon conversion of any shares of Series B Preferred
Stock will be made without charge to the holders of such converted
or newly issued shares for any issuance tax in respect thereof or
other cost incurred by the Corporation in connection with such
conversion and the related issuance of shares of Common Stock.
(e) The Corporation will at all times reserve and keep
available out of its authorized but unissued shares of Common Stock
the number of such shares sufficient for issuance upon the
conversion hereunder, at the Series B Conversion Ratio as then in
effect, of all the shares of Series B Preferred Stock then
outstanding.
(f) The Corporation will not close its books against the
transfer of Common Stock in any manner which would interfere with
the timely conversion of any shares of Series B Preferred Stock.
(g) If the Corporation at any time or from time to time
after the Issue Date declares any dividend payable in shares of
Common Stock or effects a subdivision of the outstanding Common
Stock or combines the outstanding shares of the Common Stock, then,
in each such case, the Series B Conversion Ratio in effect
immediately prior to such event shall be adjusted so that each
holder of shares of Series B Preferred Stock shall have the right to
convert its shares of Series B Preferred Stock into the number of
shares of the Common Stock which it would have owned after the event
had such shares of Series B Preferred Stock been converted
immediately before the happening of such event. Any adjustment under
this Part (vi)(g) of Section 4D shall become effective as of the
date and time the subdivision or combination becomes effective.
(h) In connection with any merger, consolidation,
recapitalization, reorganization or similar transaction in which
holders of Common Stock generally receive, or are given the
opportunity to receive, consideration for their shares, then, in all
such circumstances, unless otherwise approved by a majority of the
holders of the then outstanding shares of Series B Preferred Stock
voting as a separate class, all holders of Series B Preferred Stock
shall be given the opportunity to receive (x) the same consideration
per share for their shares (calculated as if such shares of Series B
Preferred Stock had been converted into
4.1-7
<PAGE>
shares of Common Stock at the Series B Conversion Ratio then in
effect ) as is received by the holders of Common Stock, including,
but not limited to, form, amount and timing of payment, plus (y) if
such event occurs after April 30, 1999, all accrued and unpaid
dividends with respect to such shares of Series B Preferred Stock.
(i) Notwithstanding the provisions of Part (vi)(a)
hereof, but provided that the Stockholder Approval has been
received, none of LIH Holdings III, LLC, nor any Associate thereof,
or their respective transferees may convert shares of Series B
Preferred Stock into shares of Common Stock until the earliest to
occur of (a) September 9, 2000; (b) the first date as of which any
person or group (as such term is defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended) other than LIH
Holdings, LLC, LIH Holdings II, LLC, LIH Holdings III, LLC or any of
their respective Associates owns, beneficially and of record,
securities representing at least 50% of the Common Stock on a
Fully-Diluted Basis, excluding any securities acquired by such
person or group from LIH Holdings, LLC, LIH Holdings II, LLC, LIH
Holdings III, LLC, or any of their respective Associates; (c) the
date on which, by the affirmative vote of a majority of the
Independent Directors, such conversion is approved; (d) the date of
any transfer of shares of Series B Preferred Stock by LIH Holdings
III, LLC or any of its Associates (but the conversion right provided
by this clause (d) shall apply only with respect to the shares
transferred) other than any such transfer (A) by LIH Holdings III,
LLC or any of its Associates to any person if, immediately after
giving effect to such transfer and conversion, the transferee and
such transferee's Associates would hold more than 49% of the
outstanding Common Stock, or (B) to LIH Holdings, LLC, LIH Holdings
II, LLC, LIH Holdings III, LLC or any of their respective
Associates; and (e) the first date as of which LIH Holdings, LLC,
LIH Holdings II, LLC, LIH Holdings III, LLC and their respective
Associates own (beneficially and of record), in the aggregate, more
than 50% of the outstanding shares of Common Stock in a transaction
that is permitted by, or is effected in accordance with the terms
of, the Second Amended and Restated Governance Agreement; provided,
however, that LIH Holdings III, LLC and its Associates may, at any
time after the Stockholder Approval has been obtained, convert
shares of Series B Preferred Stock into Common Stock, at their
option, in order to attain or maintain a percentage of outstanding
shares of Common Stock held in the aggregate by LIH Holdings, LLC,
LIH Holdings II, LLC, LIH Holdings III, LLC and their respective
Associates that does not exceed 49.9%.
(vii) Voting Rights. Except as expressly provided herein or as
required under the Delaware General Corporation Law, on all matters to be voted
on by the Corporation's stockholders, holders of shares of Series B Preferred
Stock will be entitled to no voting rights.
(viii) Certain Defined Terms. As used in Section 4D, the following
capitalized terms shall have the following meanings:
4.1-8
<PAGE>
"Affiliate" means, applied to any person, (i) any other
person, (i) any other person directly or indirectly
controlling, controlled by or under common control with
that person, (ii) any other person that owns or controls
5% or more of any class of equity securities (including
any equity securities issuable upon the exercise of any
right to acquire securities) of that person or any of
its Affiliates, or (iii) any member, director, partner,
officer, agent, employee or relative of that person. For
the purposes of this definition, "control" (including
with correlative meanings, the terms" controlling,"
"controlled by," and "under common control with"), as
applied to any person, means the possession, directly or
indirectly, of the power to direct or cause the
direction of the management and policies of that person,
whether through ownership of voting securities or by
contract or otherwise.
"Associate" means an affiliate or associate of a person,
as such terms are defined in Section 203 of the Delaware
General Corporation Law.
"Business Day" means a day other than Saturday, Sunday
or any day on which banks located in the State of New
York or the State of Minnesota are authorized or
obligated to close.
"Equity Equivalents" means (a) the Class B-l Common
Stock, (b) the Series B Preferred Stock and (c) any
other securities which, by their terms, are or may be
exercisable, convertible or exchangeable for or into
Common Stock at the election of the holder thereof.
"Fully-Diluted Basis" means, with respect to the
calculation of the number of shares of Common Stock, (i)
all shares of Common Stock outstanding at the time of
determination and (ii) all shares of Common Stock
issuable upon the exercise, conversion or exchange of
any Equity Equivalents outstanding at the time of
determination.
"Independent Director" means any person who is a
director of the Corporation who is independent of and
otherwise unaffiliated with LIH Holdings, LLC, LIH
Holdings II, LLC, LIH Holdings III, LLC, the Corporation
or any of their respective Associates (other than as a
director, or holder of beneficial ownership of less than
5% of the voting securities of the Corporation), and
shall not be an officer or an employee, agent,
consultant or advisor (financial, legal or other) of LIH
Holdings, LLC, LIH Holdings II, LLC, LIH Holdings III,
LLC, or their respective Associates, or any person who
shall have served in any such capacity within the
three-year period immediately preceding the date such
determination is made.
"Issue Date" means, as to any share of Series B
Preferred Stock, the date of original issuance thereof
by the Corporation.
4.1-9
<PAGE>
"Person" or "person" means any individual, corporation,
joint stock corporation, limited liability company or
partnership, general partnership, limited partnership,
proprietorship, joint venture, other business
organization, trust, union, association, governmental
authority or other entity of any kind.
"Put Date" means the earlier of (a) December 29, 2007,
(b) the first date as of which any person or group (as
such term is defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended) other than LIH
Holdings, LLC, LIH Holdings II, LLC, LIH Holdings III,
LLC or any of their respective Associates owns,
beneficially and of record, securities representing at
least 50% of the Common Stock, excluding any securities
acquired by such person or group from LIH Holdings, LLC,
LIH Holdings II, LLC, LIH Holdings III, LLC, or any of
their respective Associates, and (c) the first date as
of which (and immediately prior to) the occurrence of
any of the events described in Part (vi)(h) of Section
4D.
"Regulatory Problem" means, with respect to any holder
of shares of Series B Preferred Stock, any set of facts
or circumstances wherein such holder has made a good
faith determination that such holder or such holder's
Affiliates own, control or have power over a quantity of
securities of limitation to which it is (or they are)
subject, or which is otherwise not permitted, under any
law, rule or regulation of any governmental authority
(including any position to that effect taken by such
governmental authority).
"Second Amended and Restated Governance Agreement" means
the Second Amended and Restated Governance Agreement,
dated as of December 22, 1998, among LIH Holdings, LLC,
LIH Holdings II, LLC, LIH Holdings III, LLC, and the
Corporation, as amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"Stockholder Approval" means the approval of at least a
majority of the holders of the then outstanding shares
of Common Stock present at a meeting called to approve
the conversion of shares of Series B Preferred Stock
into shares of Common Stock as provided herein.
RESOLVED, that the Board of Directors hereby authorizes and directs
the officers of the Corporation, in the name of and on behalf of the
Corporation, and to the extent required under its corporate seal, to execute and
deliver any and all other instruments, certificates and other documents, and to
do any and all other acts and things, including the expenditure of corporate
funds, that said officers shall deem necessary or appropriate in order to fully
carry out the intent and accomplish the purposes of the resolutions adopted
hereby.
4.1-10
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to
be hereunto affixed and this Certificate to be signed by Dennis W.
Vollmershausen, its Chief Executive Officer, and attested by Ron Fox, its
Assistant Secretary, this 22nd day of December, 1998.
LUND INTERNATIONAL HOLDINGS, INC.
By: /s/ Dennis W. Vollmershausen
----------------------------------
Name: Dennis W. Vollmershausen
Title: Chief Executive Officer
Attest:
/s/ Ron Fox
- -------------------
Name: Ron Fox
Title: Assistant Secretary
4.1-11
<PAGE>
AMENDMENT NO. 1
TO
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF SERIES B PREFERRED STOCK
LUND INTERNATIONAL HOLDINGS, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
The undersigned, Dennis W. Vollmershausen, hereby certifies that:
A. He is the duly elected and acting Chief Executive Officer of LUND
INTERNATIONAL HOLDINGS, INC., a Delaware corporation (the "Corporation").
B. Pursuant to authority given by the Corporation's Certificate of
Incorporation, as amended through the date hereof (the "Certificate of
Incorporation"), the Board of Directors of the Corporation duly adopted
resolutions on December 18, 1998, creating a new series of 362,709 shares of
Preferred Stock designated as "Series B Preferred Stock" and authorizing the
filing of a Certificate of Designation, Preferences and Rights of Series B
Preferred Stock.
C. Pursuant to authority given by the Corporation's Certificate of
Incorporation, the Board of Directors of the Corporation duly adopted
resolutions on January 26, 1999 to amend the Certificate of Designation,
Preferences and Rights of Series B Preferred Stock to increase the number of
shares of the Series B Preferred Stock to 394,315 (the "Amending Resolutions").
D. The Amending Resolutions contained herein have not been modified,
altered or amended and are presently in full force and effect.
RESOLVED, that pursuant to the authority expressly vested in the
Board of Directors of the Corporation by Article Fourth of the Certificate of
Incorporation, the Board of Directors hereby amends in its entirety Section
4D(i) of the Certificate of Designation, Preferences and Rights of Series B
Preferred Stock, to read in its entirety as follows:
4D. Series B Preferred Stock.
(i) Designation: Stated Value. There shall be a series
of Preferred Stock designated as "Series B Preferred Stock." The
number of shares constituting such series shall be 394,315. The
Series B Preferred Stock shall have a stated value of $70.00 per
share (the "Stated Value").
FURTHER RESOLVED, This Amendment is effective as of the date hereof,
and is limited to matters expressly set forth herein and that in all other
respects the Certificate of
4.1-12
<PAGE>
Designation, Preferences and Rights of Series B Preferred Stock shall remain
unchanged and all terms thereof shall remain in full force and effect.
FURTHER RESOLVED, that the Board of Directors hereby authorizes and
directs the officers of the Corporation, in the name of and on behalf of the
Corporation, and to the extent required under its corporate seal, to execute and
deliver any and all other instruments, certificates and other documents, and to
do any and all other acts and things, including the expenditure of corporate
funds, that said officers shall deem necessary or appropriate in order to fully
carry out the intent and accomplish the purposes of the resolutions adopted
hereby.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to
be hereunto affixed and this Certificate to be signed by Dennis W.
Vollmershausen, its Chief Executive Officer, and attested by Ron Fox, its
Assistant Secretary, this 26th day of January, 1999.
LUND INTERNATIONAL HOLDINGS, INC.
By:/s/ Dennis W. Vollmershausen
------------------------------
Name: Dennis W. Vollmershausen
Title: Chief Executive Officer
Attest:
/s/ Ron Fox
- --------------
Name: Ron Fox
Title: Assistant Secretary
4.1-13
<PAGE>
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF CLASS B-1 COMMON STOCK
LUND INTERNATIONAL HOLDINGS, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
The undersigned, William J. McMahon, hereby certifies that:
A. He is the duly elected and acting Chief Executive Officer of LUND
INTERNATIONAL HOLDINGS, INC., a Delaware corporation (the "Corporation").
B. Pursuant to authority given by the Corporation's Certificate of
Incorporation, as amended through the date hereof (the "Certificate of
Incorporation"), the Board of Directors of the Corporation duly adopted the
following resolutions on November 25, 1997, creating a new series of 1,493,398
shares of Class B Common Stock designated as "Class B-1 Common Stock".
C. The resolutions contained herein have not been modified, altered
or amended and are presently in full force and effect.
RESOLVED, that pursuant to the authority expressly vested in the
Board of Directors of the Corporation by Article Fourth of the Certificate of
Incorporation, the Board of Directors hereby fixes and determines the powers,
preferences, rights and limitations of a series of the Class B Common Stock,
which shall consist of 1,493,398 shares and shall be designated as Class B-1
Common Stock (the "Class B-1 Common Stock"), as follows:
4C. Class B-1 Common Stock.
(i) Designation. There shall be a series of Class B
Common Stock designated as the Class B-1 Common Stock (the "Class
B-1 Common Stock"). The number of shares initially constituting the
Class B-1 Common Stock shall be 1,493,398.
(ii) Voting Rights.
(a) Except as expressly provided herein or
as required under the Delaware General Corporation Law,
on all matters to be voted on by the Corporation's
stockholders, holders of shares of Class B-1 Common
Stock will be entitled to no voting rights.
(b) Except as expressly provided herein or
as expressly required under the Delaware General
Corporation Law, on any matter on which holders of Class
B-1 Common Stock shall be entitled to vote, they shall
be entitled to one vote per
4.1-14
<PAGE>
share and shall vote together as a single class with the
holders of the Common Stock.
(iii) Dividends. In the event that the Corporation shall
at any time or from time to time declare, order, pay or make a
dividend or other distribution (whether in cash, securities or other
property) on its Common Stock, the holders of shares of the Class
B-1 Common Stock shall be entitled to receive from the Corporation,
with respect to each share of Class B-1 Common Stock held, a
dividend or distribution that is the same dividend or distribution
that would be received by a holder of the number of shares of Common
Stock into which such share of Class B-1 Common Stock is convertible
pursuant to the provisions of Section 4C(vi) hereof on the record
date for such dividend or distribution, provided that (a) if a
dividend or distribution is declared in shares of Common Stock, such
dividend will be declared and paid on the Class B-1 Common Stock in
shares of Class B-1 Common Stock at the same rate per share as the
Common Stock, and (b) if a dividend or distribution consists of
voting securities of the Corporation other than the Common Stock,
the Corporation will make available to each holder of Class B-1
Common Stock, a dividend or distribution consisting of non-voting
securities of the Corporation which are otherwise identical to such
voting securities and which are convertible into or exchangeable for
such voting securities on the same terms as the Class B-1 Common
Stock is convertible into the Common Stock. Any such dividend or
distribution shall be declared, ordered, paid or made on the Class
B-1 Common Stock at the same time such dividend or distribution is
declared, ordered, paid or made on the Common Stock.
(iv) Stock Splits Combinations. If the Corporation, in
any manner, subdivides or combines the outstanding shares of Common
Stock, the outstanding shares of Class B-1 Common Stock will be
proportionately subdivided or combined.
(v) Liquidation, etc. The holders of the Class B-1
Common Stock will be entitled to share ratably with the holders of
Common Stock, based upon the aggregate number of outstanding shares
of Common Stock and Class B-1 Common Stock and upon the number of
shares of Class B-1 Common Stock then held by each holder of Class
B-1 Common Stock, in all distributions to the holders of the Common
Stock in any liquidation, dissolution or winding up of the
Corporation.
(vi) Conversion of Class B-1 Common Stock. On the
Conversion Date, each share of Class B-1 Common Stock shall
automatically convert into one share of Common Stock, and such
conversion shall be effective without any further action on the part
of the Corporation, such holder of Class B-1 Common Stock or any
other person or entity. In addition, each holder of Class B-1 Common
Stock is entitled to convert all or any of such holder's shares into
an equivalent number of shares of Common Stock (x) with the
affirmative vote of a majority of the Independent Directors, (y)
upon any transfer of such holder's shares of Class B-1 Common Stock,
other than any such transfer (A) by LIH Holdings, LLC, LIH Holdings
II, LLC or any of their respective Affiliates or Associates to any
person or entity if, immediately after giving effect to such
transfer and conversion,
4.1-15
<PAGE>
the transferee and its Affiliates and Associates would hold more
than 49% of the outstanding Common Stock, or (B) to LIH Holdings,
LLC, LIH Holdings II, LLC or any of their respective Affiliates or
Associates, or (z) at any time on or after the first date as of
which LIH Holdings, LLC, LIH Holdings II, LLC and their respective
Affiliates and Associates own (beneficially and of record), in the
aggregate, more than 50% of the outstanding shares of Common Stock
in a transaction that is permitted by, or is effected in accordance
with the terms of, the Amended and Restated Governance Agreement.
As used in this Section 4C(vi), the following
capitalized terms shall have the following meanings:
"Affiliate" or "Associate" means an affiliate or
associate of a person or entity, as such terms are
defined in Section 203 of the Delaware General
Corporation Law.
"Amended and Restated Governance Agreement" means the
Amended and Restated Governance Agreement, dated
November 25, 1997, among LIH Holdings, LLC, LIH Holdings
II, LLC, Harvest Partners III, L.P. and the Corporation,
as amended, supplemented or otherwise modified from time
to time in accordance with its terms.
"Conversion Date" means the earlier of (a) September 9,
2000 and (b) the first date as of which any person or
entity or group (as such term is defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended)
other than LIH Holdings, LLC, LIH Holdings II, LLC, or
any of their respective Affiliates or Associates owns,
beneficially and of record, securities representing at
least 50% of the Common Stock on a Fully-Diluted Basis,
excluding any securities acquired by such person,
entity, or group from LIH Holdings, LLC, LIH Holdings
II, LLC, or any of their respective Affiliates or
Associates.
"Equity Equivalents" means (a) the Class B-1 Common
Stock and (b) any other securities which, by their
terms, are or may be exercisable, convertible or
exchangeable for or into Common Stock at the election of
the holder thereof.
"Fully-Diluted Basis" means, with respect to the
calculation of the number of shares of Common Stock, (i)
all shares of Common Stock outstanding at the time of
determination and (ii) all shares of Common Stock
issuable upon the exercise, conversion or exchange of
any Equity Equivalents outstanding at the time of
determination.
"Independent Director" means any person who is a
director of the Corporation who is independent of and
otherwise unaffiliated with LIH Holdings, LLC, LIH
Holdings II, LLC, the Corporation or any of their
respective Affiliates or Associates (other than as a
director, or holder of beneficial ownership of less than
5% of the voting securities of the Corporation), and
shall not be an officer or an employee, agent,
consultant or advisor (financial, legal or other) of LIH
Holdings, LLC, LIH Holdings II, LLC, or their respective
Affiliates or Associates, or any
4.1-16
<PAGE>
person who shall have served in any such capacity within
the three-year period immediately preceding the date
such determination is made.
(vii) Conversion Procedure.
(a) Each conversion of shares of Class B-1
Common Stock into shares of Common Stock will be
effected by the surrender of the certificate or
certificates representing the shares to be converted at
the principal office of the Corporation (or such other
office or agency of the Corporation as the Corporation
may designate in writing to the holders of the Common
Stock and the Class B-1 Common Stock) at any time during
normal business hours. Each conversion will be deemed to
have been effected as of the close of business on the
date on which such certificate or certificates were
surrendered. At such time, the rights of the holder of
the converted Class B-1 Common Stock (in its capacity as
such) will cease and the person or persons or entity or
entities in whose name or names the certificate or
certificates for shares of Common Stock are to be issued
upon such conversion will be deemed to have become the
holder or holders of record of the shares of Common
Stock represented thereby.
(b) Following each surrender of certificates
pursuant to paragraph (a) above, the Corporation will
issue and deliver, in accordance with the surrendering
holder's instructions, (x) the certificate or
certificates for the Common Stock issuable upon such
conversion and (y) a certificate representing any shares
of Class B-1 Common Stock which were represented by the
certificate or certificates delivered to the Corporation
in connection with such conversion but which were not
converted.
(c) The issuance of certificates
representing shares of Common Stock upon conversion of
any shares of Class B-1 Common Stock will be made
without charge to the holders of such converted or newly
issued shares for any issuance tax in respect thereof or
other cost incurred by the Corporation in connection
with such conversion and the related issuance of shares
of Common Stock.
(d) The Corporation will at all times
reserve and keep available out of its authorized but
unissued shares of Common Stock the number of such
shares sufficient for issuance upon conversions of the
Class B-1 Common Stock hereunder.
(e) The Corporation will not close its books
against the transfer of Common Stock in any manner which
would interfere with the timely conversion of Class B-1
Common Stock.
(viii) Merger, Etc.. In connection with any merger,
consolidation, recapitalization reorganization or similar
transaction in which holders of Common Stock generally receive, or
are given the opportunity to receive, consideration for their
shares, then, in all such circumstances, unless otherwise approved
by the holders of a majority of
4.1-17
<PAGE>
the then outstanding shares of Class B-1 Common Stock voting as a
separate class, all holders of Class B-1 Common Stock shall be given
the opportunity to receive the same consideration per share for
their shares as is received by holders of Common Stock, including,
but not limited to, form, amount and timing of payment.
RESOLVED, that the Board of Directors hereby authorizes and directs
the officers of the Corporation, in the name and of behalf of the Corporation,
and to the extent required under its corporate seal, to execute and deliver any
and all other instruments, certificates and other documents, and to do any and
all other acts and things, including the expenditure of corporate funds, that
said officers shall deem necessary or appropriate in order to fully carry out
the intent and accomplish the purposes of the resolutions adopted hereby.
IN WITNESS WHEREOF, the Corporation, has caused its corporate seal
to be hereunto affixed and this Certificate to be signed by William J. McMahon,
its Chief Executive Officer, and attested by Kathy R. Smith, its Secretary, this
22nd day of December, 1997.
LUND INTERNATIONAL HOLDINGS, INC.
By:/s/ William J. McMahon
-----------------------------
Name: William J. McMahon
Title: Chief Executive Officer
Attest:
/s/ Kathy R. Smith
- ----------------------------
Name: Kathy R. Smith
Title: Secretary
4.1-18
<PAGE>
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF SERIES A PREFERRED STOCK
LUND INTERNATIONAL HOLDINGS, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
The undersigned, William J. McMahon, hereby certifies that:
A. He is the duly elected and acting Chief Executive Officer of LUND
INTERNATIONAL HOLDINGS, INC., a Delaware corporation (the "Corporation").
B. Pursuant to authority given by the Corporation's Certificate of
Incorporation, as amended through the date hereof (the "Certificate of
Incorporation"), the Board of Directors of the Corporation duly adopted the
following resolutions on November 25, 1997, creating a new series of 1,493,398
shares of Preferred Stock designated as "Series A Preferred Stock".
C. The resolutions contained herein have not been modified, altered
or amended and are presently in full force and effect.
RESOLVED, that pursuant to the authority expressly vested in the
Board of Directors of the Corporation by Article Fourth of the Certificate of
Incorporation, the Board of Directors hereby fixes and determines the powers,
preferences, rights and limitations of a series of Preferred Stock, which shall
consist of 1,493,398 shares and shall be designated as Series A Preferred Stock
(the "Series A Preferred Stock"), as follows:
4B. Series A Preferred Stock.
(i) Designation: Stated Value. There shall be a series of Preferred
Stock designated as "Series A Preferred Stock." The number of shares initially
constituting such series shall be 1,493,398. The Series A Preferred Stock shall
have a stated value of $12.67 per share (the "Series A Stated Value").
(ii) Rank. The Series A Preferred Stock shall, with respect to
dividend and other distribution rights, and rights on liquidation, dissolution
and winding up, rank (i) PARI PASSU with any class of capital stock or series of
Preferred Stock hereafter created which expressly provides that it ranks PARI
PASSU with the Series A Preferred Stock as to dividends, other distributions,
liquidation preference and/or otherwise (collectively, the "Parity Securities"),
and (ii) senior to (x) the Common Stock, the Class B Common Stock and all other
securities of any class or classes (however designated) of the Corporation
(other than the Series A Preferred Stock) the holders of which have the right,
without limitation as to amount, after payment on any securities entitled to a
preference on dividends or other distributions upon any dissolution,
4.1-19
<PAGE>
liquidation or winding up, either to all or to a share of the balance of
payments upon such dissolution, liquidation or winding up (collectively, the
"Common Stock Instruments") and (y) any other class of capital stock or series
of Preferred Stock hereafter created which does not expressly provide that it
ranks PARI PASSU with the Series A Preferred Stock as to dividends, other
distributions, liquidation preference and/or otherwise (collectively, "Junior
Securities"). The terms "Parity Securities" and "Junior Securities" as used
herein with respect to any class or series of capital stock shall only be deemed
to refer to such class or series to the extent it ranks (i) PARI PASSU with or
(ii) not PARI PASSU with, as applicable, the Series A Preferred Stock with
respect to dividends, other distributions, liquidation preference or otherwise.
The Corporation shall not issue any securities ranking senior to the Parity
Securities with respect to dividends, distributions, liquidation preference or
otherwise.
(iii) Dividends.
(a) The holders of shares of Series A Preferred Stock
shall be entitled to receive, when, as and if declared by the Board
of Directors, to the extent funds are legally available therefor in
accordance with the Delaware General Corporation Law, a dividend for
each such share, payable quarterly, as provided below, on the last
day of each January, April, July and October, commencing on July 31,
1998 (each such date hereinafter referred to as a "Series A Dividend
Payment Date"), except that if such date is not a Business Day, then
such dividend shall be payable on the next succeeding Business Day,
to the holders of record as they appear on the register of the
Corporation for the Series A Preferred Stock of the Corporation five
Business Days prior to such Dividend Payment Date (the "Series A
Dividend Record Date").
Dividends on the Series A Preferred Stock shall accrue
and be paid at a rate per annum equal to 15.0 percent of the Stated
Value of each share of Series A Preferred Stock outstanding on the
Series A Dividend Record Date with respect to a Series A Dividend
Payment Date.
(b) Dividends on the Series A Preferred Stock shall be
cumulative and shall accrue from April 30, 1998 whether or not such
dividends have been declared. Unpaid dividends, whether or not
declared shall compound quarterly at a rate per annum equal to 15.0%
of the aggregate amount thereof from the Series A Dividend Payment
Date on which such dividend was payable as herein provided until
payment of such dividend.
(c) For so long as any shares of Series A Preferred
Stock shall be outstanding, no dividend or distribution, whether in
cash, stock or other property, shall be paid, declared and set apart
for payment or made on any date on or in respect to any Junior
Securities and no payment on account of the redemption, purchase or
other acquisition or retirement for value by the Corporation shall
be made on any date of shares of Junior Securities unless, in each
case, the full amount of unpaid dividends accrued on all outstanding
shares of Series A Preferred Stock shall have been paid or
contemporaneously are declared and paid; provided, however, that the
foregoing provisions of this sentence shall not prohibit (i) a
dividend payable solely in shares of Common Stock Instruments or any
other Junior Securities, or (ii) the acquisition of any
4.1-20
<PAGE>
shares of any Common Stock Instruments or any other Junior
Securities upon conversion or exchange thereof into or for any
shares of any other class of Common Stock Instruments or Junior
Securities.
In the event that the dividend to be paid to any holder of shares of
Series A Preferred Stock shall be a fractional interest in a share of Series A
Preferred Stock, then a fractional share of Series A Preferred Stock shall be
issued to such holder of shares of Series A Preferred Stock.
(iv) Redemption.
(a) Redemption by Corporation. To the extent funds are
legally available therefor, the Company may, at any time on or after
December 29, 2004 redeem for the Series A Redemption Price each
share of Series A Preferred Stock then outstanding. To the extent
funds are legally available therefor, the Company shall, at the
request of a majority of the holders of shares of Series A Preferred
Stock then outstanding given at any time on and after the Put Date,
redeem for the Series A Redemption Price each share of Series A
Preferred Stock then outstanding. The date on which shares are
redeemed pursuant to this Part iv(a) of Section 4B is referred to
herein as the "Series A Redemption Date." If on the Series A
Redemption Date there shall be insufficient funds of the Corporation
legally available for such redemption, such amount of the funds as
is legally available shall be used for the redemption requirement.
Such redemption requirement shall be cumulative so that if such
requirement shall not be fully discharged for any reason, funds
legally available therefor shall immediately be applied thereto upon
receipt by the Corporation until such requirement is discharged. The
redemption price (the "Series A Redemption Price") for each
outstanding share of Series A Preferred Stock to be redeemed
pursuant to this Part (iv)(a) of Section 4B shall be the sum
(payable in cash) of (x) the Series A Stated Value plus (y) an
amount equal to all accrued and unpaid dividends thereon to the
Series A Redemption Date.
(b) Payment of Series A Redemption Price. On the Series
A Redemption Date, the Corporation shall pay to the holder of each
share of Series A Preferred Stock being redeemed, upon surrender by
such holder at the Corporation's principal executive office of the
certificate representing such share, duly endorsed in blank or
accompanied by an appropriate form of assignment, the Series A
Redemption Price.
(c) Redeemed or Otherwise Acquired Shares Not to be
Reissued. All shares of Series A Preferred Stock redeemed pursuant
to this Part (iv) of Section 4B or otherwise acquired by the
Corporation shall be retired and shall not thereafter be reissued.
(d) Determination of Number of Each Holder's Shares to
be Redeemed. If, for any reason, less than all of the outstanding
shares of Series A Preferred Stock are to be redeemed pursuant to
Part (iv)(a) of this Section 4B, the Corporation shall determine the
shares held by each holder of Series A Preferred Stock to be
redeemed as hereinafter provided. The number of shares to be
redeemed from each holder thereof shall be the number of shares
determined by multiplying the total number of shares to be redeemed
times a fraction, the numerator of which shall be the total number
of shares of Series A
4.1-21
<PAGE>
Preferred Stock then held by such holder and the denominator of
which shall be the total number of shares of Series A Preferred
Stock then outstanding.
(e) Notice of Redemption. Notice of any redemption of
Series A Preferred Stock pursuant to Part (iv)(a) of this Section
4B, specifying the time and place of redemption and the Series A
Redemption Price, shall be mailed by certified or registered mail,
return receipt requested, to each holder of record of shares to be
redeemed, at the address for such holder shown on the Corporation's
records, not less than 15 days prior to the date on which such
redemption is to be made; provided, that neither failure to give
such notice nor any defect therein shall affect the validity of the
proceeding for the redemption of any shares of Series A Preferred
Stock to be redeemed. Such notice shall also specify the number of
shares of each holder thereof and the certificate numbers thereof
which are to be redeemed. In case less than all the shares
represented by any certificate are redeemed, a new certificate
representing the unredeemed shares shall be issued to the holder
thereof without cost to such holder.
(f) Dividends After Redemption Date. Unless the Series A
Redemption Price in respect of a share of Series A Preferred Stock
is not made available in full to the holder thereof, from and after
the Series A Redemption Date, such share of Series A Preferred Stock
shall not be entitled to any dividends accruing after such date, all
rights of the holder of such share, as a stockholder of the
Corporation by reason of the ownership of such share, shall cease,
except the right to receive the Series A Redemption Price of such
share upon the presentation and surrender of the certificate
representing such share, and such share shall not after such date be
deemed to be outstanding for any purpose.
(v) Liquidation Rights.
(a) Upon the dissolution, liquidation or winding up of
the Corporation, whether voluntary or involuntary, the holders of
outstanding shares of Series A Preferred Stock shall be entitled to
receive for each such share, out of the assets of the Corporation
available for distribution to stockholders, before any payment or
distribution to stockholders and before any payment or distribution
shall be made to the holders of Common Stock or any other Junior
Securities upon liquidation, an amount in cash equal to the sum of
(x) the Series A Stated Value, plus (y) all accrued and unpaid
dividends in respect of such share to the date of final distribution
(the "Series A Liquidation Value").
(b) After the payment to the holders of the Series A
Preferred Stock of the full preferential amounts provided for in
this Part (v) of Section 4B, the holders of the Series A Preferred
Stock as such shall have no right or claim to any of the remaining
assets of the Corporation.
(c) If, upon any such liquidation, dissolution or other
winding up of the affairs of the Corporation, the assets of the
Corporation are insufficient to permit the payment in full of the
Series A Liquidation Preference for each share of Series A Preferred
Stock then outstanding and the full liquidating payment on all
Parity Securities, then the assets of the Corporation remaining
shall be ratably distributed among the holders of Series A
4.1-22
<PAGE>
Preferred Stock and of any Parity Securities in proportion to the
full amounts to which they would otherwise be respectively entitled
if all amounts thereon were paid in full.
(d) Neither the voluntary sale, conveyance, exchange or
transfer (for cash, shares of stock, securities or other
consideration) of all or substantially all the property or assets of
the Corporation nor the consolidation, merger or other business
combination of the Corporation with or into one or more corporations
shall be deemed to be a liquidation, dissolution or winding-up
voluntary or involuntary of the Corporation.
(vi) Conversion.
(a) Immediately upon Stockholder Approval, each share of
Series A Preferred Stock shall automatically convert into one share
of Class B-1 Common Stock (the "Series A Conversion Ratio") and such
conversion shall be effective without any further action on the part
of the Corporation, such holder of Series A Preferred Stock or any
other person or entity; provided, however, that in the event that
Stockholder Approval occurs after April 30, 1998, in addition to the
shares of Class B-1 Common Stock to be received by the holders of
the Series A Preferred Stock, each holder of Series A Preferred
Stock shall receive a cash payment of all accrued and unpaid
dividends on the shares of Series A Preferred Stock then held by it.
(b) Each conversion of shares of Series A Preferred
Stock into shares of Class B-1 Common Stock will be effected by the
surrender of the certificate or certificates representing the shares
to be converted at the principal office of the Corporation (or such
other office or agency of the Corporation as the Corporation may
designate in writing to the holders of the Series A Preferred Stock)
at any time during normal business hours. Each conversion will be
deemed to have been effected as of the close of business on the date
on which such certificate or certificates were surrendered. At such
time, the rights of the holder of the converted Series A Preferred
Stock (in its capacity as such) will cease and the person or persons
or entity or entities in whose name or names the certificate of
certificates for shares of Class B-1 Common Stock are to be issued
upon such conversion will be deemed to have become the holder or
holders of record of the shares of Class B-1 Common Stock
represented thereby.
(c) Following each surrender of certificates pursuant to
paragraph (b) above, the Corporation will issue and deliver, in
accordance with the surrendering holder's instructions, (x) the
certificate or certificates for the Class B-1 Common Stock issuable
upon such conversion, and (y) any cash payment required to be made
pursuant to Part (vi)(a) of Section 4B.
(d) The issuance of certificates representing shares of
Class B-1 Common Stock upon conversion of any shares of Series A
Preferred Stock will be made without charge to the holders of such
converted or newly issued shares for any issuance tax in respect
thereof or other cost incurred by the Corporation in connection with
such conversion and the related issuance of shares of Class B-1
Common Stock.
4.1-23
<PAGE>
(e) The Corporation will at all times reserve and keep
available out of its authorized but unissued shares of Class B-1
Common Stock the number of such shares sufficient for issuance upon
conversions of the Series A Preferred Stock hereunder.
(f) The Corporation will not close its books against the
transfer of Class B-1 Common Stock in any manner which would
interfere with the timely conversion of Series A Preferred Stock.
(g) If the Corporation at any time or from time to time
after the Issue Date effects a subdivision of the outstanding Class
B-1 Common Stock or combines the outstanding shares of the Class B-1
Common Stock, then, in each such case, the Series A Conversion Ratio
in effect immediately prior to such event shall be adjusted so that
each holder of shares of Series A Preferred Stock shall have the
right to convert its shares of Series A Preferred Stock into the
number of shares of the Class B-1 Common Stock which it would have
owned after the event had such shares of Series A Preferred Stock
been converted immediately before the happening of such event. Any
adjustment under this Part (vi)(g) of Section 4B shall become
effective as of the date and time the subdivision or combination
becomes effective.
(h) In connection with any merger, consolidation,
recapitalization, reorganization or similar transactions in which
holders of Class B-1 Common Stock generally receive, or are given
the opportunity to receive, consideration for their shares, then, in
all such circumstances, unless otherwise approved by a majority of
the holders of the then outstanding shares of Series A Preferred
Stock voting as a separate class, all holders of Series A Preferred
Stock shall be given the opportunity to receive (x) the same
consideration per share for their shares (calculated as if such
shares of Series A Preferred Stock had been converted into shares of
Class B-1 Common Stock at the Series A Conversion Rate then in
effect) as is received by the holders of the Class B-1 Common Stock,
including, but not limited to, form, amount and timing of payment,
plus (y) if such event occurs after April 30, 1998, all accrued and
unpaid dividends with respect to such shares of Series A Preferred
Stock.
(vii) Voting Rights. Except as expressly provided herein or as
required under the Delaware General Corporation Law, on all matters to be voted
on by the Corporation's stockholders, holders of shares of Series A Preferred
Stock will be entitled to no voting rights.
As used in Part 4B, the following capitalized terms shall have the
following meanings:
"Affiliate" or "Associate" means an affiliate or
associate of a person or entity, as such terms are
defined in Section 203 of the Delaware General
Corporation Law.
"Equity Equivalents" means (a) the Class B-1 Common
Stock and (b) any other securities which, by their
terms, are or may be exercisable, convertible or
exchangeable for or into Common Stock at the election of
the holder thereof.
4.1-24
<PAGE>
"Fully-Diluted Basis" means, with respect to the
calculation of the number of shares of Common Stock, (i)
all shares of Common Stock outstanding at the time of
determination and (ii) all shares of Common Stock
issuable upon the exercise, conversion or exchange of
any Equity Equivalents outstanding at the time of
determination.
"Issue Date" means, as to any share of Series A
Preferred Stock, the date of original issuance thereof
by the Corporation.
"Put Date" means the earlier of (a) December 29, 2004,
(b) the first date as of which any person or entity or
group (as such term is defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended) other than
LIH Holdings, LLC, LIH Holdings II, LLC, or any of their
respective Affiliates or Associates owns, beneficially
and of record, securities representing at least 50% of
the Common Stock on a Fully-Diluted Basis, excluding any
securities acquired by such person, entity, or group
from LIH Holdings, LLC, LIH Holdings II, LLC, or any of
their respective Affiliates or Associates, and (c) the
first date as of which (and immediately prior to) the
occurrence of any of the events described in Part
(vi)(h) of Section 4B.
"Stockholder Approval" means the approval of at least a
majority of the holders of the then outstanding shares
of Common Stock present at a meeting called to approve
the terms of the Class B-1 Common Stock and the
conversion of the Series A Preferred Stock into shares
of Class B-1 Common Stock as provided herein.
RESOLVED, that the Board of Directors hereby authorizes and directs
the officers of the Corporation, in the name of and on behalf of the
Corporation, and to the extent required under its corporate seal, to execute and
deliver any and all other instruments, certificates and other documents, and to
do any and all other acts and things, including the expenditure of corporate
funds, that said officers shall deem necessary or appropriate in order to fully
carry out the intent and accomplish the purposes of the resolutions adopted
hereby.
4.1-25
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to
be hereunto affixed and this Certificate to be signed by William J. McMahon, its
Chief Executive Officer, and attested by Kathy R. Smith, its Secretary, this
22nd day of December, 1997.
LUND INTERNATIONAL HOLDINGS, INC.
By: /s/ William J. McMahon
---------------------------------
Name: William J. McMahon
Title: Chief Executive Officer
Attest:
/s/ Kathy R. Smith
- ----------------------------
Name: Kathy R. Smith
Title: Secretary
4.1-26
<PAGE>
CERTIFICATE OF AMENDMENT TO CERTIFICATE OF INCORPORATION
OF
LUND ENTERPRISES, INC.
Lund Enterprises, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware, DOES
HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation adopted a
resolution proposing and declaring advisable an amendment of Article 1 of the
Certificate of Incorporation of said corporation to read as follows:
"1. The name of the corporation is Lund International
Holdings, Inc."
SECOND: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Section 242 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, said Lund Enterprises, Inc. has caused this
Certificate to be signed by its President and attested by its Secretary this
10th day of October, 1989.
LUND ENTERPRISES, INC.
By: /s/ William J. McMahon
------------------------
Its President
Attest:
/s/ John T. Kubinski
- ----------------------
Its Secretary
4.1-27
<PAGE>
CERTIFICATE OF AMENDMENT TO CERTIFICATE OF INCORPORATION
OF
FLEX CORP.
Flex Corp., a corporation organized and existing under and by virtue
of the Delaware General Corporation Law, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, by the
unanimous written consent of its members, adopted a resolution proposing and
declaring advisable amendments of Article 1 and Section (i) of Article 4 of the
Certificate of Incorporation of said corporation to read as follows:
"1. The name of the corporation is Lund Enterprises,
Inc.";
"(i) The aggregate number of shares which the
corporation is authorized to issue is 30,000,000 shares,
of which 25,000,000 shares of the par value of $0.10
shall be designated as `Common Stock', and 3,000,000 of
the par value of $0.01 shall be designated as `Class B
Common Stock' and 2,000,000 of the par value of $0.01
shall be designated as `Preferred Stock'."
SECOND: That the aforesaid amendments were duly adopted in
accordance with the applicable provisions of Section 242 of the Delaware General
Corporation Law.
IN WITNESS WHEREOF, said Flex Corp. has caused this Certificate to
be signed by its President and attested by its Secretary this 28th day of
October, 1987.
FLEX CORP.
By: /s/ John R. Stephens
----------------------
Its President
Attest:
/s/ Helen M. Larson
- ---------------------
Its Secretary
(No Corporate Seal)
4.1-28
<PAGE>
CERTIFICATE OF INCORPORATION
OF
FLEX CORP.
1. The name of the corporation is Flex Corp.
2. The address of its registered office in the State of Delaware is 229
South State Street, in the City of Dover, County of Kent. The name
of its registered agent at such address is The Prentice-Hall
Corporation System, Inc.
3. The nature of the business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware.
4. Stock Structure.
(i) The aggregate number of shares which the corporation is authorized
to issue is 20,000,000 shares, of which 15,000,000 shares of the par
value of $0.01 shall be designated as "Common Stock", 3,000,000 of
the par value of $0.01 shall be designated as "Class B Common Stock"
and 2,000,000 of the par value of $0.01 shall be designated as
"Preferred Stock".
(ii) The Board of Directors has the authority, without first obtaining
approval of the stockholders of the corporation, or any class
thereof:
(a) To grant rights or options to subscribe for or purchase,
and issue, shares of authorized and unissued stock of
the corporation of any class now or hereafter
authorized, to any persons, including officers and
directors of the corporation, upon such terms and
conditions as the Board may deem appropriate.
(b) To make distributions to its stockholders out of its
capital surplus, and to purchase its own shares out of
its unreserved and unrestricted capital surplus, upon
such terms as the Board may deem appropriate.
(c) To the extent permitted by the applicable laws of the
State of Delaware, to guarantee or assume liability for
the payment of the principal of, or dividends or
interest on, or sinking fund payments in respect to,
stocks, bonds, debentures, warrants, rights, scrip,
notes, evidences of indebtedness, or other securities or
obligations of any kind by whomsoever issued; and to the
extent permitted by law, to guarantee or assume
liability for the performance of any other contract or
obligation, made or issued by any domestic or foreign
corporation, partnership, association, trustee, group,
individual or entity.
4.1-29
<PAGE>
(iii) No holder of shares of the corporation of any class now or hereafter
authorized has any preferential or pre-emptive right to subscribe
for, purchase or receive any shares of the corporation of any class
now or hereafter authorized, or any options or warrants for such
shares, which may at any time be issued, sold or offered for sale by
the corporation.
(iv) No holder of shares of the corporation of any class now or hereafter
authorized shall be entitled to cumulative voting.
(v) The Board of Directors, by resolution adopted and filed in the
manner provided by law, has the authority to establish one or more
series of Class B Common Stock and to fix the powers, preferences,
rights and limitations of such class or series.
(vi) The Board of Directors, by resolution adopted and filed in the
manner provided by law, has the authority to establish one or more
series of Preferred Stock and to fix the powers, preferences, rights
and limitations of such class or series.
5A. The name and mailing address of the incorporator are as follows:
NAME MAILING ADDRESS
---- ---------------
Timothy M. Heaney 1100 International Centre
900 Second Avenue South
Minneapolis, MN 55402
5B. The name and mailing address of each person who is to serve as a
director until the first annual meeting of stockholders or until a
successor is elected and qualified, as follows:
NAME MAILING ADDRESS
---- ---------------
Marno M. McDermott, Jr. 3657 Briar Park, Suite 111
Houston, TX 77042
Peter R. Peterson 6005 Erin Terrace
Edina, MN 55435
John R. Stephens 2116 IDS Center
Minneapolis, MN 55401
The corporation shall indemnify any and all of its directors or
officers or former directors or officers or any person who may have
served at its request as a director or officer of another
corporation in which it owns shares of capital stock or of which it
is a creditor against expenses actually and necessarily incurred in
which they, or any of them, are made parties, or a party, by reason
of being or having been directors or officers or a director or
officer of the corporation, or of such other corporation, except in
relation to matters as to which any such director or officer or
former director of officer or person shall be adjudged in such
action, suit or proceeding to be liable for negligence or
4.1-30
<PAGE>
misconduct in the performance of duty. Such indemnification shall
not be deemed exclusive of any other rights to which those
indemnified may be entitled, under any bylaw, agreement, vote of
stockholders, or otherwise.
To the fullest extent permitted by the Delaware General Corporation
Law as the same exists or may hereafter be amended, a director of
this corporation shall not be liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director.
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make,
alter or repeal the Bylaws of the corporation.
8. Election of directors need not be by written ballot unless the
Bylaws of the corporation shall so provide.
Meetings of stockholders may be held at the corporation's principal
offices or as the Bylaws may otherwise provide. The books of the
corporation may be kept (subject to any provision contained in the
statutes) outside the State of Delaware at such place or places as
may be designated from time to time by the Board of Directors or in
the Bylaws of the corporation.
Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between
this corporation and its stockholders or any class of them, any
court of equitable jurisdiction within the State of Delaware may, on
the application in a summary way of this corporation or of any
creditor or stockholder thereof or on the application of any
receiver or receivers appointed for this corporation under the
provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or
receivers appointed for this corporation under the provisions of
Section 279 of Title 8 of the Delaware Code order a meeting of the
creditors or class of creditors, and/or of the stockholders or class
of stockholders of this corporation, as the case may be, to be
summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class
of creditors, and/or of the stockholders or class of stockholders of
this corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this corporation as
consequence of such compromise or arrangement, the said compromise
or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on
all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the
case may be, and also on this corporation.
9. The corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights
conferred upon stockholders herein are granted subject to this
reservation.
4.1-31
<PAGE>
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose
of forming a corporation pursuant to the General Corporation Law of the State of
Delaware, do make this certificate, hereby declaring and certifying that this is
my act and deed and the facts herein stated are true, and accordingly, have
hereunto set my hand this 6th day of November, 1986.
/s/ Timothy M. Heaney
--------------------------
Timothy M. Heaney
4.1-32
EXHIBIT 5.1
Leonard, Street and Deinard, Professional Association
150 South Fifth Street
Suite 2300
Minneapolis, Minnesota 55402
October 1, 1999 Mark S. Weitz
(612) 335-1517
[email protected]
Lund International Holdings, Inc.
911 Lund Boulevard
Anoka, Minnesota 55303
RE: REGISTRATION STATEMENT ON FORM S-8
1998 STOCK OPTION INCENTIVE PLAN
Gentlemen and Mesdames:
In connection with the proposed issuance of an aggregate of 1,000,000 shares of
common stock, $.10 par value per share (the "Shares"), of Lund International
Holdings, Inc. (the "Company") to be issued pursuant to the Company's 1999 and
1998 Stock Option Incentive Plans (the "Plans") to be registered under the
Securities Act of 1933, as amended, on Form S-8 (the "Registration Statement"),
we have examined such documents and have reviewed such questions of law as we
have considered necessary and appropriate for the purposes of this opinion and,
based thereon, we advise you that, in our opinion the Shares have been duly
authorized by the Company and when duly executed and authenticated, paid for and
delivered in accordance with the terms of the Plans, will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
LEONARD, STREET AND DEINARD
/s/ Mark S. Weitz
Mark S. Weitz
5.1-1
EXHIBIT 15.1
September 29, 1999
Securities and Exchange Commission
450 South Fifth Street, N.W.
Washington, D.C. 20549
Commissioners:
We are aware that our reports dated April 27, 1999 and August 3, 1999 on our
reviews of the interim consolidated financial information of Lund International
Holdings, Inc. (the "Company") for the three month periods ended March 31, 1999
and 1998, and for the three-month and six-month periods ended June 30, 1999 and
1998, and included in the Company's quarterly report on Form 10-Q for the
quarters ended March 31, 1999 and June 30, 1999, are incorporated by reference
in this Registration Statement on Form S-8 of the Company pertaining to the Lund
International Holdings, Inc. 1999 and 1998 Stock Option Incentive Plans.
Yours very truly,
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
15.1-1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 19, 1999 relating to the
consolidated financial statements, which is included in the Annual Report on
Form 10-K of Lund International Holdings, Inc. for the year ended December 31,
1998. We also consent to the incorporation by reference of our report dated
February 19, 1999 relating to the financial statement schedule, which appears in
such Annual Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Minneapolis, Minnesota
September 29, 1999
23.2-1
