Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration Statement 116 761K
2: EX-2.(C) Merger Agreement 5 17K
3: EX-2.(D) Certificate of Merger 3 11K
4: EX-3.(A) Restated Certificate of Incorporation of Fairfield 14 36K
Manufacturing Company, Inc.
5: EX-4.(C) Indenture 139 464K
6: EX-4.(D) Certificate of Designation of the Powers 50 155K
7: EX-4.(E) Form of Certificate of Designation of the Powers 47 148K
8: EX-10.(EE) Fifth Amendment to Loan Agreement 15 58K
9: EX-10.(GG) Consent and Amendment Letter 5 16K
10: EX-10.(HH) Securities Purchase Agreement 40 136K
11: EX-10.(II) Share Registration Rights Agreement 51 158K
12: EX-12 Ratio of Earnings to Fixed Charges 1 8K
13: EX-23.(B) Consent of Independent Accountants 1 8K
14: EX-25 Statement of Eligibility 5 22K
15: EX-99.1 Form of Letter of Transmittal 16 62K
16: EX-99.2 Form of Notice of Guaranteed Delivery 4 17K
17: EX-99.3 Form of Exchange Agent Agreement 10 39K
EX-3.(A) — Restated Certificate of Incorporation of Fairfield Manufacturing Company, Inc.
Exhibit Table of Contents
Exhibit 3(a)
RESTATED CERTIFICATE OF INCORPORATION
OF
FAIRFIELD MANUFACTURING COMPANY, INC.
Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware
FAIRFIELD MANUFACTURING COMPANY, INC. (formerly known as
CENTRAL ALABAMA GRAIN COMPANY, INC.), a corporation organized under the
General Corporation Law of the State of Delaware (the "Corporation") hereby
certifies as follows:
1. The date of filing of the Corporation's original
Certificate of Incorporation with the Secretary of State was August 15, 1989.
2. This Restated Certificate of Incorporation restates,
integrates and further amends the provisions of the Certificate of
Incorporation of the Corporation to read in its entirety as follows:
FIRST: The name of the Corporation is FAIRFIELD
MANUFACTURING COMPANY, INC.
SECOND: The Corporation's registered office in the State of
Delaware is at Corporation Trust Company, 1209 Orange Street in the
City of Wilmington, County of New Castle. The name of its registered
agent at such address is Corporation Trust Company.
THIRD: The nature of the business of the Corporation and
its purpose is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of
the State of Delaware.
FOURTH: The total number of shares of all classes of
capital stock which the Corporation shall have authority to issue is
10,150,000, of which 10,000,000 shall be Common Stock, par value
$0.01 per share (the "Common Stock"), and 150,000 shall be Series A
Preferred Stock, with a liquidation value of $100 per share (the
"Series A Preferred Stock").
Series A Preferred Stock
The Series A Preferred Stock shall have the following powers,
preferences, rights, qualifications, limitations and restrictions:
1. Dividends. (a)(i) The holders of Series A Preferred
Stock shall be entitled to receive, as and when declared by the Board
of Directors out of funds legally available therefor, dividends at a
rate of 15.25% per annum of the Series A Liquidation Value, and no
more, which shall be cumulative, calculated from the date of issuance
of the Series A Preferred Stock, and payable in arrears in equal
semi-annual payments on the last business day of each of January and
July (each of such dates being referred to as a "Dividend Payment Date"
and each such six-month period being referred to as a "Dividend
Payment Period"), commencing with the first such Dividend Payment
Date following the issuance of the Series A Preferred Stock and
payable, in the sole discretion of the Corporation, either in cash or
by issuing additional fully paid and nonassessable shares of Series A
Preferred Stock at the rate of one one-hundredth (1/100th) of a share
for each $1.00 of such dividend not paid in cash, and the issuance of
such additional shares shall constitute full payment of such dividend.
All shares of Series A Preferred Stock which may be issued as a
dividend with respect to the Series A Preferred Stock will thereupon
be duly authorized, validly issued, fully paid and nonassessable.
(ii) All such dividends, whether payable in cash or
securities, shall be cumulative and shall accrue whether or not
declared from the applicable Dividend Payment Date. Dividends paid
on the shares of Series A Preferred Stock in an amount less than the
total amount of such dividends at the time accrued and payable on
such shares shall be allocated pro rata on a share-by-
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share basis among all such shares outstanding at such time.
(iii) Notwithstanding anything contained herein to the
contrary, no cash dividends on shares of Series A Preferred Stock
shall be declared by the Board of Directors or paid or set apart for
payment by the Corporation at such time as the terms and provisions of
any financing or working capital agreement of the Corporation
specifically prohibit such declaration, payment or setting apart for
payment or if such declaration, payment or setting apart for payment
would constitute a breach thereof or a default thereunder or if such
declaration, payment or setting apart for payment would, upon the
giving of notice or passage of time or both, constitute such breach
or default, provided, that subject to applicable law, if any cash
dividends are so prohibited in whole or in part the Corporation may,
to the extent payment in cash of such dividends is not made, pay such
dividends in shares of Series A Preferred Stock in accordance with
Section 1(a)(i) of this Article Fourth, and provided, further,
that nothing herein contained shall in any way or under any
circumstances be construed or deemed to require the Board of
Directors to declare or the Corporation to pay or set apart for
payment any dividends on shares of the Series A Preferred Stock at
any time, whether or not permitted by any of such agreements.
(b) Restrictions on Distributions and Stock Issuances.
Unless the prior consent of the holders of not less than fifty-one
percent (51%) of the shares of Series A Preferred Stock then
outstanding, voting separately as a single class, in person or by
proxy, either in writing without a meeting or at a special or annual
meeting of stockholders shall have been obtained, the Corporation
shall not:
(i) declare, pay or set apart for payment any cash dividend
on or make any payment on account of or set apart for payment money
for a sinking fund or other similar fund for the purchase, redemption
or other retirement of (x) any class or series of capital stock of
the Corporation on a parity with the Series A Preferred Stock as to
dividends or upon Liquidation (as such term is defined in section 2 of
this Article Fourth) (the "Parity Stock") or (y) on any class or
series of capital stock of the Corporation junior to
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the Series A Preferred Stock as to dividends or upon Liquidation,
including the Common Stock, par value $.01 per share (the "Junior
Stock"), unless the Corporation has paid or set apart for payment all
accrued but unpaid dividends, on the Series A Preferred Stock, Parity
Stock and on any class or series of capital stock of the Corporation
that is senior to the Series A Preferred Stock as to dividends for
two consecutive Dividend Payment Periods; provided, however, that
notwithstanding the foregoing, the Corporation may declare, pay or
set apart for payment on any class or series of capital stock of the
Corporation any dividends payable solely in shares of Junior Stock.
The Board of Directors may fix a record date for the determination of
holders of Series A Preferred Stock entitled to receive payment of a
dividend declared thereon, which record date shall be not less than 10
days nor more than 60 days prior to the date fixed for the payment
thereof; or
(ii) create or issue any other class or series of preferred
stock having any preference or priority, or amend the existing terms
of any outstanding preferred stock so as to have any preference or
priority, superior to or on a parity with the Series A Preferred Stock
as to dividends or Liquidation or which is (x) scheduled by its terms
to be redeemed by the Corporation or (y) redeemable at the option of
the Corporation prior to the Series A Preferred Stock, without the
prior consent of the holders of fifty-one percent (51%) of the
outstanding shares of Series A Preferred Stock.
Notwithstanding the foregoing, the corporation may purchase
any shares of preferred stock issued to any employee of the
Corporation pursuant to the terms of such employee's employment
agreement with the Corporation without complying with the
requirements of this paragraph (b).
2. Liquidation Rights. Upon any liquidation, dissolution
or winding up of the affairs of the Corporation, whether voluntary or
involuntary (collectively, a "Liquidation"), no distribution shall be
made to the holders of Junior Stock unless, prior to the first such
distribution, the holders of the Series A Preferred Stock shall have
received in cash out of the net assets of the Corporation available for
distribution to its stockholders an amount equal to
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$100 per share of Series A Preferred Stock (the "Series A Liquidation
Value") plus an amount in cash out of the net assets of the
Corporation available for distribution to its stockholders equal to
all accrued but unpaid dividends, if any, on the Series A Preferred
Stock. In the event of any Liquidation of the Corporation, after
payment in cash shall have been made to the holders of shares of
Series A Preferred Stock of the full amount to which they shall be
entitled as aforesaid, the holders of any class of Junior Stock shall
be entitled, to the exclusion of the holders of shares of Series A
Preferred Stock, to share according to their respective rights and
preferences in all remaining assets of the Corporation available for
distribution to its stockholders.
If the assets distributable in any such event to the holders
of the Series A Preferred Stock or any class or series of stock on a
parity with the Series A Preferred Stock as to Liquidation (the
"Liquidation Parity Stock") are insufficient to permit the payment to
such holders of the full preferential amounts to which they may be
entitled, such assets shall be distributed ratably among the holders
of the Series A Preferred Stock and such Liquidation Parity Stock in
proportion to the full preferential amount each such holder would
otherwise be entitled to receive. Neither a merger or consolidation
of the Corporation with or into any other corporation nor a sale,
conveyance, exchange or transfer of all or any part of the assets of
or property of the Corporation shall be deemed to be a Liquidation
within the meaning of this section 2.
3. Redemption. (a) Optional Redemption. The Corporation
may, at its option (an "Optional Redemption Date"), redeem at any
time, or from time to time, all or in aggregate amounts of not less
than $5,000,000, any outstanding shares of Series A Preferred Stock
at a cash redemption price per share equal to the Series A Liquidation
Value plus an amount in cash equal to all accrued but unpaid
dividends , if any, on any accumulated dividends as aforesaid on the
shares so redeemed.
(b) Mandatory Redemption. The Corporation shall redeem any
outstanding shares of Series A Preferred Stock at a cash redemption
price equal to the Series A Liquidation Value plus an amount in cash
equal to all accrued but unpaid dividends, if any, upon the earliest
5
to occur of the following (each date being referred to as a
"Mandatory Redemption Date", together with an Optional Redemption
Date, being referred to as a "Redemption Date"):
(i) August 1, 2000; or
(ii) upon a Liquidation of the Corporation.
(c) Payment of Redemption Price on Any Redemption Date. If
the Corporation shall be prohibited by applicable law or by the terms
and provisions of any financing or working capital agreement of the
Corporation from making payment in full on any Redemption Date of the
applicable redemption price for any outstanding shares of Series A
Preferred Stock required to be redeemed as provided herein, then: (i)
the Corporation shall not redeem any shares of Series A Preferred
Stock, (ii) the Corporation shall pay pro rata to the holders of any
outstanding shares of Series A Preferred Stock required to be
redeemed on the applicable Redemption Date an amount in cash equal to
the maximum amount which the Corporation is not so prohibited from
paying at such time for each such share, (iii) the applicable
redemption price shall be reduced by an amount per share equal to the
amount paid by the Corporation first from accrued but unpaid dividends
and then from the Series A Liquidation Value and (iv) the Corporation
shall redeem all outstanding shares of Series A Preferred Stock
required to be redeemed as soon as practicable after the date on which
the Corporation is no longer so prohibited from paying the applicable
redemption price for such shares.
(d) Status of Series A Preferred Stock. Shares of Series A
Preferred Stock which have been issued and reacquired in any manner,
including shares purchased or redeemed or exchanged shall (upon
compliance with any applicable provisions of the laws of the State of
Delaware) have the status of authorized and unissued shares of the
class of preferred stock undesignated as to series and may be
redesignated and reissued as part of any series of preferred stock,
provided, that no such issued and reacquired shares of Series A
Preferred Stock shall be reissued or sold as Series A Preferred Stock
unless reissued as a dividend on shares of Series A Preferred Stock.
6
4. Procedures for Redemption. (a) In the event that fewer
than all the outstanding shares of Series A Preferred Stock are to be
redeemed, the number of shares to be redeemed shall be determined by
the Board of Directors and the shares to be redeemed shall be
selected by lot or pro rata as may be determined by the Board of
Directors, except that in any redemption permitted by this section 4
of fewer than all the outstanding shares of Series A Preferred Stock,
the Corporation may redeem all shares held by any holders of a number
of shares not to exceed 100 as may be specified by the Corporation.
(b) In the event the Corporation shall redeem shares of
Series A Preferred Stock, notice of such redemption shall be given by
first class mail, postage prepaid or by personal delivery, mailed or
delivered not less than 90 days prior to the applicable redemption
date, to each holder of record of the shares to be redeemed at such
holder's address as the same appears on the stock register of the
Corporation; provided, however, that neither the failure to give such
notice nor any defect therein shall affect the validity of the
proceeding for the redemption of any share of Series A Preferred
Stock to be redeemed and such notice requirement may be waived or
modified by the holders of the Series A Preferred Stock in writing.
Each such notice shall state: (i) the Redemption Date; (ii) the
number of shares of Series A Preferred Stock to be redeemed and, if
less than all the shares held by such holder are to be redeemed from
such holder, the number of shares to be redeemed from such holder;
(iii) the applicable redemption price; and (iv) that dividends on the
shares to be redeemed will cease to accrue on such Redemption Date.
(c) Notice having been mailed as aforesaid, from and after
the applicable Redemption Date (provided that on or prior to the
applicable Redemption Date the Corporation shall have irrevocably
deposited funds for such redemption in trust for the holders of
Series A Preferred Stock), dividends on the shares of Series A
Preferred Stock so called for redemption shall cease to accrue, and
such shares shall no longer be deemed to be outstanding and shall
have the status of authorized but unissued shares of Preferred Stock,
unclassified as to series, and shall not be reissued as shares of
Series A Preferred Stock unless reissued as a dividend on shares
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of Series A Preferred Stock, and all rights of the holders thereof as
stockholders of the Corporation (except the redemption price) shall
cease. Upon surrender in accordance with said notice of the
certificates for any shares so redeemed (properly endorsed or
assigned for transfer, if the Board of Directors of the Corporation
shall so require and the notice shall so state), such shares shall be
redeemed by the Corporation at the applicable redemption price
aforesaid. In case fewer than all the shares represented by any such
certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares without cost to the holder thereof.
5. Voting Rights. Except as otherwise provided by law or
this Certificate of Designation, the holders of Series A Preferred
Stock shall not be entitled to vote on any matters submitted for a
vote of the holders of shares of Common Stock of the Corporation.
In the event the Corporation fails to pay dividends as set forth in
section 1 of this Article Fourth above for an aggregate of ten
consecutive Dividend Payment Periods, then each share of Series A
Preferred Stock then outstanding shall be entitled to 1/10th of one
vote and shall vote with the holders of Common Stock as a single
class on all matters. Such right shall only continue until such time
as an amount equal to all accrued but unpaid dividends has been paid
or declared and set apart for the payment thereof by the Corporation.
None of (i) the creation, authorization or issuance of any
shares of any Junior Stock, or the creation, authorization or
issuance of any obligation or security convertible into or evidencing
the right to purchase any Junior Stock, (ii) the creation of any
indebtedness of any kind of the Corporation, or (iii) the increase or
decrease in the amount of authorized capital stock of any class
(including preferred stock, but excluding the Series A Preferred
Stock) or any increase, decrease or change in the par value of any
such class other than the Series A Preferred Stock, shall require the
consent of the holders of Series A Preferred Stock and any such
action shall not be deemed to affect adversely the rights,
preferences, privileges and voting rights of shares of Series A
Preferred Stock.
8
FIFTH: The following provisions are inserted for the
management of the business and for the conduct of the affairs of the
Corporation and for the purpose of creating, defining, limiting and
regulating the powers of the Corporation and its directors and
stockholders:
(a) The number of directors of the Corporation shall be
fixed and may be altered from time to time in the manner provided in
the By-Laws, and vacancies in the Board of Directors and newly
created directorships resulting from any increase in the authorized
number of directors may be filled, and directors may be removed, as
provided in the By-Laws.
(b) The election of directors may be conducted in any
manner approved by the stockholders at the time when the election is
held and need not be by ballot.
(c) All corporate powers and authority of the Corporation
(except as at the time otherwise provided by law, by this Certificate
of Incorporation or by the By-Laws) shall be vested in and exercised
by the Board of Directors.
(d) The Board of Directors shall have the power without the
assent or vote of the stockholders to adopt, amend, alter or repeal
the By-Laws of the Corporation, except to the extent that the By-Laws
or this Certificate of Incorporation otherwise provide.
(e) No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of his
or her fiduciary duty as a director, provided that nothing contained in
this Article shall eliminate or limit the liability of a director
(i) for any breach of the director's duty of loyalty to the Corporation
or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of the
law, (iii) under Section 174 of the General Corporation Law of the
State of Delaware or (iv) for any transaction from which the director
derived an improper personal benefit.
SIXTH: The Corporation reserves the right to amend or
repeal any provision contained in this Certificate of Incorporation in
the manner now or hereafter prescribed by the laws of the State of
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Delaware, and all rights herein conferred upon stockholders or
directors are granted subject to this reservation.
3. This Restated Certificate of Incorporation was duly
adopted by the Board of Directors in accordance with the provisions of Sections
242 and 245 of the General Corporation Law of the State of Delaware.
10
IN WITNESS WHEREOF, FAIRFIELD MANUFACTURING COMPANY, INC.
has caused this Restated Certificate of Incorporation to be signed by its Vice
President and attested by its Secretary this 20th day of March 1995.
FAIRFIELD MANUFACTURING COMPANY, INC.
/s/ PAUL S. LEVY
-------------------------
Name: Paul S. Levy
Title: Vice President
ATTEST:
/s/ PETER A. JOSEPH
-----------------------
Name: Peter A. Joseph
Title: Secretary
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CERTIFICATE OF AMENDMENT
TO
THE RESTATED CERTIFICATE OF INCORPORATION
OF
FAIRFIELD MANUFACTURING COMPANY, INC.
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
FAIRFIELD MANUFACTURING COMPANY, INC., a corporation
organized under the General Corporation Law of the State of Delaware (the
"Corporation") hereby certifies as follows:
FIRST: That Article FOURTH of the Restated Certificate of
Incorporation of the Corporation is hereby amended by deleting
Article FOURTH in its entirety and inserting in lieu thereof the
following new Article FOURTH:
"FOURTH: The total number of shares of all classes of
capital stock which the Corporation shall have the authority to issue
is 10,250,000, of which 10,000,000 shall be Common Stock, par value
$0.01 per share (the "Common Stock") and 250,000 shall be Preferred
Stock, par value $.01 per share (the "Preferred Stock").
12
The Preferred Stock may be issued, from time to time, in one
or more series as authorized by the Board of Directors of the
Corporation. Prior to issuance of a series, the Board of Directors of
the Corporation by resolution shall designate that series to
distinguish it from other series and classes of stock of the
Corporation, shall specify the number of shares to be included in the
series, and shall fix the terms, rights, restrictions and
qualifications of the shares of the series, including any preferences,
voting powers, dividend rights and redemption, sinking fund and
conversion rights. Subject to the express terms of any other series of
Preferred Stock outstanding at the time, the Board of Directors of the
Corporation may increase or decrease the number of shares or alter the
designation or classify or reclassify any unissued shares of a
particular series of Preferred Stock by fixing or altering in any one
or more respects from time to time before issuing the shares any terms,
rights, restrictions and qualifications of the shares."
SECOND: That this Amendment to the Restated Certificate of
Incorporation was duly adopted in accordance with Section 242 of the
General Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, this Certificate of Amendment to the
Restated Certificate of Incorporation has been signed on behalf of FAIRFIELD
MANUFACTURING, INC. by Kenneth A. Burns, its President, and attested by Peter A.
Joseph, its Secretary, this 7th day of March, 1997.
/s/ KENNETH A. BURNS
--------------------------
Name: Kenneth A. Burns
Title: President
Attest:
/s/ PETER A. JOSEPH
-------------------------
Name: Peter A. Joseph
Title: Secretary
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Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-4’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 8/1/00 | | 6 | | | | | None on these Dates |
| Filed on: | | 4/9/97 |
| List all Filings |
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