-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QpAIqk9U3u6JUlTz3K3EkXnYw6x0NifjRscOsUUpQPHV52NUb+huiubXLxmtv+m0 hu1nDvIx9NdowgmUwmkqsg== 0000950134-98-007597.txt : 19980916 0000950134-98-007597.hdr.sgml : 19980916 ACCESSION NUMBER: 0000950134-98-007597 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19980915 EFFECTIVENESS DATE: 19980915 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: ASSOCIATED MATERIALS INC CENTRAL INDEX KEY: 0000802967 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] IRS NUMBER: 751872487 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-63435 FILM NUMBER: 98709874 BUSINESS ADDRESS: STREET 1: 2200 ROSS AVE STE 4100 E CITY: DALLAS STATE: TX ZIP: 75201 BUSINESS PHONE: 2147547188 MAIL ADDRESS: STREET 1: 2200 ROSS AVENUE STREET 2: SUITE 4100 EAST CITY: DALLAS STATE: TX ZIP: 75201 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on September 15, 1998 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------- ASSOCIATED MATERIALS INCORPORATED (Exact name of registrant as specified in its charter) 2200 ROSS AVENUE, SUITE 4100 EAST DALLAS, TEXAS 75201 (214) 220-4600 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) DELAWARE 75-1872487 (State of incorporation) (I.R.S. Employer Identification Number) ASSOCIATED MATERIALS INCORPORATED EMPLOYEE STOCK PURCHASE PLAN (Full title of the plan) ROBERT L. WINSPEAR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER ASSOCIATED MATERIALS INCORPORATED 2200 ROSS AVENUE, SUITE 4100 EAST DALLAS, TX 75201 (214) 220-4600 (Name, address, including zip code, and telephone number, including area code, of agent for service) WITH A COPY TO: JAMES E. O'BANNON, ESQ. JONES, DAY, REAVIS & POGUE 2300 TRAMMELL CROW CENTER 2001 ROSS AVENUE DALLAS, TEXAS 75201 (214) 220-3939 -------------------- CALCULATION OF REGISTRATION FEE
============================================================================================================================== Proposed Proposed Maximum Maximum Amount Offering Aggregate Amount of to be Price per Offering Registration Title of Securities to be Registered Registered (1) Share Price Fee (2) - ------------------------------------------------------------------------------------------------------------------------------ Common Stock, par value $.0025 per share . . . . . 250,000 $7.50 $1,875,000 $554 ==============================================================================================================================
(1) Represents shares issuable under the Associated Materials Incorporated Employee Stock Purchase Plan (the "Plan"). Pursuant to Rule 416, there are also registered hereunder such indeterminate number of additional shares as may become issuable under the Plan as a result of the antidilution provisions contained therein. (2) The registration fee has been computed in accordance with Rule 457(h). ================================================================================ 2 PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS EXPLANATORY NOTE The information called for by Part I of this Registration Statement on Form S-8 (the "Registration Statement") is included in the description of the Associated Materials Incorporated Employee Stock Purchase Plan ("Plan") to be delivered to persons eligible to participate in the Plan. Pursuant to the Note to Part I of Form S-8, this information is not being filed with or included in this Registration Statement. I-1 3 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed by Associated Materials Incorporated (the "Company") with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated by reference in this Registration Statement: (i) the Company's Annual Report on Form 10-K for the year ended December 31, 1997; (ii) the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1998; (iii) the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1998; and (iv) the description of the Common Stock contained in the Company's Registration Statement on Form 8-A/A, filed by the Company with the Commission. All documents subsequently filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the termination of the offering made hereby, shall be deemed to be incorporated by reference in this Registration Statement and to be a part of this Registration Statement from the date of the filing of such reports. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES Not applicable (securities to be offered are registered under Section 12 of the Exchange Act). ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Restated Certificate of Incorporation (the "Certificate") of the Company provides that to the full extent permitted by the General Corporation Law of the State of Delaware ("DGCL") or any other applicable laws as presently or hereafter in effect, no director of the Company shall be personally liable to the Company or its stockholders for or with respect to any acts or omissions in the performance of his or her duties as a director of the Company. The DGCL would not permit limitation of liability of any such director (i) for breach of such director's duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) in respect of certain unlawful dividend payments or stock redemptions or repurchases or (iv) for any transaction for which such person derived an improper personal benefit. The Certificate and the Company's Restated Bylaws ("Bylaws") provide that each person who is or was a director or officer of the Company, or each such person who is or was serving at the request of the Board of Directors or an officer of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including the heirs, executors and administrators of such person), shall be indemnified by the Company to the full extent permitted by the DGCL or any other applicable laws as presently or hereafter in effect. II-1 4 The Company has entered into certain agreements (the "Indemnification Agreements") with each of its directors and executive officers (each an "Indemnitee") designed to give effect to the foregoing provisions of the Certificate and Bylaws. The Indemnification Agreements are intended to provide certain additional assurances against the possibility of uninsured liability primarily because the Indemnification Agreements (i) specify the extent to which the Indemnitees shall be entitled to receive benefits not expressly set forth in the DGCL and (ii) include a number of procedural provisions designed to provide certainty in administration of the rights to indemnity. Pursuant to the Indemnification Agreements, among other things, an Indemnitee will be entitled to indemnification as provided by the DGCL and, in general, subject to limitations (if any) imposed by applicable law, to indemnification for any amount which the Indemnitee is or becomes legally obligated to pay relating to failure to act or neglect or breach of duty, including any actual or alleged error, misstatement or misleading statement, which such person commits, suffers, permits or acquiesces in while acting in the Indemnitee's position with the Company. The right to receive payments in excess of those expressly provided for in the DGCL is not required under the Indemnification Agreements in connection with any claim against the Indemnitee (i) for which payment is actually made to the Indemnitee under a valid and collectible insurance policy, (ii) which results in a final, nonappealable order for the Indemnitee to pay a fine or similar governmental imposition which the Company is prohibited by applicable law from paying, or (iii) based upon or attributable to the Indemnitee gaining in fact a personal profit to which he was not legally entitled, including without limitation profits made from the purchase and sale by the Indemnitee of equity securities of the Company which are not recoverable by the Company pursuant to Section 16(b) of the Exchange Act and profits arising from transactions in publicly traded securities of the Company which were effected by the Indemnitee in violation of Section 10(b) of the Exchange Act or Rule 10b-5 promulgated thereunder. The Company has purchased and maintains insurance on behalf of any person who is or was a director or officer against any loss arising from any claim asserted against him and incurred by him in any such capacity, subject to certain exclusions. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. ITEM 8. EXHIBITS 4.1 Restated Certificate of Incorporation, as amended, of Associated Materials Incorporated (the "Company") 4.2 Restated Bylaws of the Company (incorporated by referenced to Exhibit 3.2 to the Company's Registration Statement on Form S-1, Commission File No. 33-84110) 5.1 Opinion of Jones, Day, Reavis & Pogue 23.1 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1) 23.2 Consent of Ernst & Young LLP 24.1 Powers of Attorney II-2 5 ITEM 9. UNDERTAKINGS A. The Company hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the "Securities Act"), unless the information required to be included in such post-effective amendment is contained in periodic reports filed by the Company pursuant to Section 13 or 15(d) of the Exchange Act and incorporated herein by reference. (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement, unless the information required to be included in such post-effective amendment is contained in periodic reports filed by the Company pursuant to Section 13 or 15(d) of the Exchange Act and incorporated herein by reference. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement; (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. B. The Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-3 6 C. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer, or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer, or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-4 7 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on September 15, 1998. ASSOCIATED MATERIALS INCORPORATED By: /s/ ROBERT L. WINSPEAR ------------------------------- Robert L. Winspear Vice President and Chief Financial Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on September 15, 1998.
Signatures Title ---------- ----- WILLIAM W. WINSPEAR* Chairman of the Board, President and Chief --------------------------------- Executive Officer William W. Winspear (Principal Executive Officer) /s/ ROBERT L. WINSPEAR Vice President, Chief Financial Officer, --------------------------------- Treasurer and Secretary Robert L. Winspear (Principal Financial and Accounting Officer) RICHARD I. GALLAND* Director --------------------------------- Richard I. Galland JOHN T. GRAY* Director --------------------------------- John T. Gray DONALD L. KAUFMAN* Director --------------------------------- Donald L. Kaufman JAMES F. LEARY* Director --------------------------------- James F. Leary ALAN B. LERNER* Director --------------------------------- Alan B. Lerner A.A. MEITZ* Director --------------------------------- A.A. Meitz
* Robert L. Winspear, by signing his name hereto, does sign and execute this Registration Statement pursuant to the Powers of Attorney executed on behalf of the above-named officers and directors and filed herewith. /s/ ROBERT L. WINSPEAR --------------------------------------------- Robert L. Winspear Attorney-in-Fact II-5 8 INDEX TO EXHIBITS Exhibit No. Exhibit - ----------- ------- 4.1 Restated Certificate of Incorporation, as amended, of the Company 4.2 Restated Bylaws of the Company (incorporated by referenced to Exhibit 3.2 to the Company's Registration Statement on Form S-1, Commission File No. 33-84110) 5.1 Opinion of Jones, Day, Reavis & Pogue 23.1 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1) 23.2 Consent of Ernst & Young LLP 24.1 Powers of Attorney
EX-4.1 2 RESTATED CERTIFICATE OF INCORPORATION 1 Exhibit 4.1 RESTATED CERTIFICATE OF INCORPORATION OF ASSOCIATED MATERIALS INCORPORATED Associated Materials Incorporated, a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows: 1. The name of the Corporation is Associated Materials Incorporated. 2. The original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on April 4, 1983. 3. This Restated Certificate of Incorporation amends, restates and integrates the provisions of the Certificate of Incorporation, and all previously filed amendments and restatements thereto, and has been duly adopted pursuant to Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware. 4. The text of the Certificate of Incorporation, and all previously filed amendments and restatements thereto, is hereby amended and restated to read as follows: ARTICLE I NAME The name of the Corporation is: Associated Materials Incorporated ARTICLE II DELAWARE OFFICE AND REGISTERED AGENT The address of the Corporation's registered office in the State of Delaware is 1209 Orange Street in the City of Wilmington, County of New Castle 19801. The name of its registered agent at such address is The Corporation Trust Company. ARTICLE III PURPOSE The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the "DGCL"). 2 ARTICLE IV CAPITALIZATION 4.1. Number of Shares. The total number of shares of all classes of stock which the Corporation shall have authority to issue is 17,800,000 consisting of (i) 100,000 shares of Preferred Stock, $.01 par value per share issuable in series ("Preferred Stock"), (ii) 15,000,000 shares of Common Stock, $.0025 par value per share ("Common Stock"), and (iii) 2,700,000 shares of Class B Common Stock, $.0025 par value per share ("Class B Common Stock"). 4.2. Designations. The following are the powers, designations, preferences and rights, and the qualifications, limitations or restrictions thereof of each class of stock of the Corporation: A. Preferred Stock: The Preferred Stock may be issued in one or more series. The Board of Directors is hereby authorized to issue the shares of Preferred Stock in such series and to fix from time to time before issuance the number of shares to be included in any series and the designation, relative powers, preferences and rights and qualifications, limitations or restrictions of all shares of such series. The authority of the Board of Directors with respect to each series shall include, without limiting the generality of the foregoing, the determination of any or all of the following: 1. the number of shares of any series and the designation to distinguish the shares of such series from the shares of all other series; 2. the voting powers, if any, and whether such voting powers are full or limited, in such series; 3. the redemption provisions, if any, applicable to such series, including the redemption price or prices to be paid; 4. whether dividends, if any, shall be cumulative or noncumulative, the dividend rate of such series, and the dates and preferences of dividends on such series; 5. the rights of such series upon the voluntary or involuntary dissolution of, or upon any distribution of the assets of, the Corporation; 6. the provisions, if any, pursuant to which the shares of such series are convertible into, or exchangeable for, shares of any other class or classes or of any other series of the same or any other class or classes of stock, or any other security, of the Corporation or any other corporation, and price or prices or the rates of exchange applicable thereto; 7. the right, if any, to subscribe for or to purchase any securities of the Corporation or any other corporation; 8. the provisions, if any, of a sinking fund applicable to such series; and 9. any other relative, participating, optional or other special powers, preferences, rights, qualifications, limitations or restrictions thereof; all as shall be determined from time to time by the Board of Directors and shall be stated in a resolution or resolutions providing for the issuance of such Preferred Stock (a "Preferred Stock Designation"). Holders of Preferred Stock shall not be entitled to receive notice of any meeting of stockholders at which they are not entitled to vote. -2- 3 B. Common Stock and Class B Common Stock: 1. Subject to Preferred Stock. The Common Stock and Class B Common Stock shall be subject to the express terms of the Preferred Stock and any series thereof. 2. Identical Rights of Common Stock and Class B Common Stock. Except as otherwise expressly provided in this Restated Certificate of Incorporation, all shares of Common Stock and Class B Common Stock shall be identical and shall entitle the holders thereof to the same rights and privileges. 3. Dividends. When and as dividends are declared, whether payable in cash, in property or in securities of the Corporation, the holders of the Common Stock and Class B Common Stock shall be entitled to share equally, share for share, in such dividends. However, if dividends are declared which are payable in shares of Common Stock or Class B Common Stock, dividends shall be declared which are payable at the same rate on both classes of stock and such dividends shall be payable only in shares of Common Stock to holders of the Common Stock and shall be payable only in shares of Class B Common Stock to holders of the Class B Common Stock. 4. Liquidation. Upon any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, after the payment in full of all amounts to which holders of Preferred Stock shall be entitled, the remaining assets of the Corporation to be distributed to the holders of the capital stock of the Corporation shall be distributed ratably among the holders of the shares of Common Stock and Class B Common Stock. 5. Subdivision and Combination. If the Corporation shall in any manner subdivide (by stock split, stock dividend or otherwise) or combine (by reverse stock split or otherwise) the outstanding shares of either the Common Stock or the Class B Common Stock, the outstanding shares of the other shall be proportionately subdivided or combined. 6. Conversion. (a) General. Subject to and upon compliance with the provisions of this Section 4.2(B)(6), each holder of record of the Class B Common Stock shall be entitled at any time and from time to time to convert any or all of the shares of Class B Common Stock held by such holder into the same number of shares of Common Stock; provided, however, that no holder of the Class B Common Stock shall be entitled to convert any share or shares of Class B Common Stock unless such holder represents in writing to the Corporation that, as a result of such conversion, such holder and its affiliates, directly or indirectly, would not own, control or have power to vote a greater quantity of securities of any kind issued by the Corporation than such holder and its affiliates are permitted to own, control or have power to vote under any law or under any regulation, rule or other requirement of any governmental authority at the time applicable to such holder and its affiliates. (b) Conversion Procedures. Each conversion of shares of Class B Common Stock into shares of Common Stock shall be effected by (and the Corporation shall be obligated to issue such shares of Common Stock upon) the surrender of the certificate or certificates representing such shares of Class B Common Stock to be converted at the principal office of the Corporation (or at such other office or agency of the Corporation as the Corporation may designate by notice in writing to the holders of the Class B Common Stock or, if such conversion shall be in connection with an underwritten public offering of shares of Common Stock, at the location at which the Corporation shall agree to deliver the shares of Common Stock subject to such offering) at any time during its usual business hours, together with written notice by the holder of such Class B Common Stock (i) stating that such holder desires to convert the shares, or a stated number of the shares, of Class B Common Stock represented by such certificate or certificates into shares of Common Stock and (ii) representing that upon such conversion, such holder and its affiliates shall not, directly or indirectly, own, control or have power to vote a greater quantity of securities of any kind issued by the Corporation than such holder and its affiliates are permitted to own, control or have power to vote under any applicable law, regulation, rule or other governmental requirement. Such notice shall also state the name or names (with addresses) and denominations in which the certificate or certificates for shares of Common Stock are to be issued and shall include instructions for delivery -3- 4 thereof. In case such notice shall specify that the new certificates to be issued are to be issued in a name or names other than that of the holder of Class B Common Stock, such notice shall be accompanied by payment of all transfer taxes, if any. Promptly after such surrender and the receipt of such written notice and payment of transfer taxes, if applicable, the Corporation shall issue and deliver in accordance with such instructions the certificate or certificates for the Common Stock issuable upon such conversion, and the Corporation shall deliver to the converting holder a certificate representing any shares of Class B Common Stock which were represented by the certificate or certificates surrendered to the Corporation in connection with such conversion but which were not converted. Such conversion to the extent permitted by law shall be deemed to have been effected as of the close of business on the date on which such certificate or certificates have been surrendered, such notice has been received and such transfer taxes paid, if applicable, and at such time the rights of the holder of such Class B Common Stock (or specified portion thereof) as such holder shall cease and the person or persons in whose name or names the certificate or certificates for shares of Common Stock are to be issued upon such conversion shall be deemed to have become the holder or holders of record of the shares of Common Stock represented thereby. (c) Reservation of Shares, Validity, Etc. The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock or its treasury shares, for the purpose of issuance upon the conversion of the Class B Common Stock as provided in this Section 4.2(B)(6) such number of shares of Common Stock as are then issuable upon the conversion of all outstanding shares of Class B Common Stock (assuming that all such shares of Class B Common Stock are held by persons entitled to convert such shares fully into shares of Common Stock). The Corporation covenants that all shares of Common Stock which are issuable upon conversion shall, when issued, be duly and validly issued, fully paid and nonassessable and free from all taxes, liens and charges. The Corporation shall take all such action as may be necessary to assure that all such shares of Common Stock may be so issued without violation of any law or any regulation, rule or other requirement of any governmental authority applicable to the Corporation or any requirement of any domestic securities exchange upon which shares of Common Stock may be listed; provided, however, that the Corporation shall be entitled to rely on the representations of the holders of the Class B Common Stock required under subsections (a) or (b) of this Section 4.2(B)(6). The Corporation shall not take any action which would affect the number of shares of Common Stock outstanding or issuable for any purposes unless immediately following such action the Corporation would have authorized but unissued shares of Common Stock or treasury shares, not then reserved or required to be reserved for any purpose other than the purpose of issue upon conversion of the Class B Common Stock, sufficient to meet the reservation requirements of the first sentence of this subsection (c). (d) Registration and Listing. If any shares of Common Stock required to be reserved for purposes of conversion hereunder require, before such shares may be issued upon conversion, registration with or approval of any governmental authority under any federal or state law (other than any registration under the Securities Act of 1933, as then in effect, or any similar federal statute then in force, or any state securities law, required by reason of any transfer involved in such conversion), or listing on any domestic securities exchange, the Corporation shall, at its expense and as expeditiously as possible, use its best efforts to cause such shares to be duly registered or approved or listed, as the case may be. (e) Charges. The issuance of certificates for shares of Common Stock upon conversion of shares of Class B Common Stock shall be made without charge to the holders of such shares of Class B Common Stock for any issue tax in respect thereof or other cost incurred by the Corporation in connection with such conversion and the related issue of shares of Common Stock; provided, however, that the Corporation shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of any certificate in a name other than that of the holder of the Class B Common Stock converted. (f) Converted or Otherwise Acquired Shares To Be Retired. Any shares of Class B Common Stock which are converted into shares of Common Stock pursuant to this Section 4.2(B)(6) or otherwise acquired by the Company in any manner whatsoever shall be permanently retired promptly on the acquisition thereof and shall not under any circumstances be reissued, and the Corporation shall from time to time take such appropriate action as may be necessary to reduce the authorized number of shares of Class B Common Stock accordingly. -4- 5 7. Voting Rights. (a) General. Except as otherwise provided by law or this Article IV, the holders of the Common Stock shall be entitled to vote as a class for the election or removal of all Directors of the Corporation and on all other matters to be voted on by the stockholders of the Corporation and the holders of the Class B Common Stock shall have no right to vote on matters to be voted on by the stockholders of the Corporation, and the Class B Common Stock shall not be included in determining the number of shares voting or entitled to vote on such matters. (b) Special Voting Rights. The holders of the Class B Common Stock shall be entitled to vote on, and shall be included in determining the number of shares of Common Stock and Class B Common Stock voting or entitled to vote on, the following matters: (i) any amendment to this Restated Certificate of Incorporation, (ii) any sale, lease, transfer or other disposition of all or substantially all of the property and assets of the Corporation on which the holders of the Common Stock have the right to vote, (iii) any merger or consolidation of the Corporation with or into any other corporation on which the holders of the Common Stock have the right to vote, and (iv) any liquidation, dissolution or winding up of the Corporation on which the holders of the Common Stock have the right to vote. (c) Meeting Procedures. At every meeting of the holders of the Common Stock, such holders shall vote together as a class. At every meeting of the holders of the Common Stock and Class B Common Stock, at which the holders of the Class B Common Stock are entitled to vote on any matter, the holders of the Class B Common Stock and the holders of the Common Stock shall vote thereon together as a single class; provided, however, that the holders of the Class B Common Stock shall be entitled to vote separately as a class on any amendment to the provisions pertaining to Class B Common Stock set forth in this Article IV.B. (d) One Vote Per Share. On all matters to be voted on by the holders of Common Stock or the Class B Common Stock, the holders of such class shall be entitled to one vote for each share thereof held of record. ARTICLE V POWERS OF BOARD OF DIRECTORS 5.1. Expanded Powers of the Board. In furtherance of, and not in limitation of, the powers conferred by law, the Board of Directors is expressly authorized and empowered: A. to adopt, amend or repeal the Bylaws of the Corporation; provided, however, that the Bylaws adopted by the Board of Directors under the powers hereby conferred may be amended or repealed by the Board of Directors or by the stockholders entitled to vote with respect thereto; and B. from time to time to determine whether and to what extent, and at what times and places, and under what conditions and regulations, the accounts and books of the Corporation, or any of them, shall be open to inspection of stockholders; and, except as so determined or as so provided in any Preferred Stock Designation, no stockholder shall have any right to inspect any account, book or document of the Corporation other than such rights as may be conferred by applicable law. 5.2. Powers Specified in Bylaws. The Corporation may in its Bylaws confer powers upon the Board of Directors in addition to the foregoing and in addition to the powers and authorities expressly conferred upon the Board of Directors by applicable law. -5- 6 ARTICLE VI NO STOCKHOLDER ACTION BY WRITTEN CONSENT Subject to the rights of the holders of any series of Preferred Stock as set forth in a Preferred Stock Designation to elect additional Directors under specific circumstances, upon the closing of the Corporation's first public offering of Common Stock under a registration statement filed with the Securities and Exchange Commission, any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders of the Corporation and may not be effected by any consent in writing of such stockholders. ARTICLE VII ELECTION OF DIRECTORS 7.1. Number, Election and Terms of Directors. Subject to the rights of the holders of Preferred Stock to elect additional Directors under specific circumstances, the number of the Directors of the Corporation shall be fixed from time to time by or pursuant to the Bylaws of the Corporation. The Directors, other than those who may be elected by the holders of Preferred Stock, shall be classified with respect to the time for which they severally hold office into three classes, as nearly their equal in number as possible, as shall be provided in the manner specified in the Bylaws of the Corporation. At each annual meeting of the stockholders of the Corporation, the successors of the class of Directors whose term expires at that meeting shall be elected by plurality vote of all votes cast at such meeting to hold office for a term expiring at the annual meeting of stockholders held in the third year following the year of their election. 7.2. Removal of Directors. Until such time as The Prudential Insurance Company of America ("Prudential") and its Affiliates (as defined) are the record holders of shares of Common Stock and/or Class B Common Stock representing less than 5% of the then issued and outstanding Common Stock, on a Fully-Diluted Basis (as defined) that, when acquired by Prudential and/or its Affiliates, had not been registered pursuant to the Securities Act of 1933, as amended, any Director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of Directors and the holders of 25% or more of the outstanding Common Stock shall have the right to call a special meeting of stockholders solely for the purpose of removing any Director and filling any vacancy created thereby. Notwithstanding Article VI hereof, the removal of a director pursuant to this Section 7.2 may be effected by the written consent of stockholders. 7.3. Stockholder Nomination of Director Candidates and Introduction of Business. Advance notice of stockholder nominations for the election of Directors and advance notice of business to be brought by stockholders before an annual meeting shall be given in the manner provided in the Bylaws of the Corporation. 7.4. Newly Created Directorships and Vacancies. Except as otherwise provided for or fixed by or pursuant to the provisions of Article IV of this Restated Certificate of Incorporation relating to the rights of the holders of Preferred Stock to elect Directors under specified circumstances, newly created directorships resulting from any increase in the number of Directors and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other cause shall be filled only by the affirmative vote of a majority of the remaining Directors then in office, even though less than a quorum of the Board of Directors. Any Director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the class of Directors in which the new directorship was created or the vacancy occurred and until such Director's successor shall have been elected and qualified. Notwithstanding the foregoing provisions of this Section 7.4, until such time as Prudential and its Affiliates are the record holders of shares of Common Stock and/or Class B Common Stock representing less than 5% of the then issued and outstanding shares of Common Stock, on a Fully-Diluted Basis that, when acquired by Prudential and/or its Affiliates, had not been registered pursuant to the Securities Act of 1933, as amended, at any meeting of stockholders at which action is taken resulting in the removal of a Director, the vacancy on the Board of Directors resulting from such removal may be filled by the holders of a majority of the -6- 7 shares then entitled to vote at an election of Directors and, if so filled, such Director shall hold office for the remainder of the full term of the class of Directors in which the vacancy occurred and until such Director's successor shall have been elected and qualified. Notwithstanding Article VI hereof, any action permitted to be taken at a meeting pursuant to the preceding sentence of this Section 7.4 may be effected by the written consent of stockholders. 7.5. Decrease in Number of Directors. No decrease in the number of Directors constituting the Board of Directors shall shorten the term of an incumbent Director. 7.6. No Requirement of Written Ballot. The election of the Directors may be conducted in any form adopted by the Board of Directors, and need not be by written ballot. In the event, however, that a majority of the stockholders vote to require written ballots, written ballots shall be used. 7.7 Certain Defined Terms. As used in this Article VII, (i) the term "Affiliate" shall mean a person that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such person; (ii) the term "control" shall mean the power to cause the election of a majority of the members of the board of directors or other governing body of any entity; and (iii) the term "Fully-Diluted Basis" shall mean after giving effect to the exercise, conversion and exchange of all securities or other rights then exercisable or convertible into or exchangeable for Common Stock (including, without limitation, any subscriptions, options, warrants, conversions or other rights pursuant to any agreements, arrangements or commitments of any kind obligating the Corporation to issue or sell any shares of Common Stock or any securities exercisable or convertible into or exchangeable for Common Stock). ARTICLE VIII INDEMNIFICATION Each person who is or was a Director or officer of the Corporation, or each such person who is or was serving at the request of the Board of Directors or an officer of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including the heirs, executors, administrators or estate of such person), shall be indemnified by the Corporation to the full extent permitted from time to time by the DGCL as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment) or any other applicable laws as presently or hereafter in effect. Without limiting the generality or the effect of the foregoing, the Corporation may enter into one or more agreements with any person which provide for indemnification greater or different than that provided in this Article VIII. Any amendment or repeal of this Article VIII shall not adversely affect any right or protection existing hereunder immediately prior to such amendment or repeal. ARTICLE IX NO MONETARY LIABILITY OF DIRECTORS TO STOCKHOLDERS To the full extent permitted by the DGCL or any other applicable laws presently or hereafter in effect, no Director of the Corporation shall be personally liable to the Corporation or its stockholders for or with respect to any acts or omissions in the performance of his or her duties as a Director of the Corporation. Any repeal or modification of this Article Ninth shall not adversely affect any right or protection of a Director of the Corporation existing immediately prior to such repeal or modification. -7- 8 ARTICLE X AMENDMENT The Corporation reserves the right at any time and from time to time to amend, alter, change or repeal any provision contained in this Restated Certificate of Incorporation or a Preferred Stock Designation, and any other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed herein or by applicable law, and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, Directors or any other persons whomsoever by and pursuant to this Restated Certificate of Incorporation in its present form or as hereafter amended are granted subject to the right reserved in this Article X; provided, however, that any amendment or repeal of Article VIII or Article IX of this Restated Certificate of Incorporation shall not adversely affect any right or protection existing hereunder immediately prior to such amendment or repeal, and provided further that no Preferred Stock Designation shall be amended after the issuance of any shares of the series of Preferred Stock created thereby, except in accordance with the terms of such Preferred Stock Designation and the requirements of applicable law. 5. In lieu of a vote of the stockholders, written consents to this Restated Certificate of Incorporation have been signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted, in accordance with the provisions of Sections 228, 242 and 245 of the DGCL. IN WITNESS WHEREOF, the said ASSOCIATED MATERIALS INCORPORATED has caused this certificate to be signed by William W. Winspear, its President, under its corporate seal attested by Robert L. Winspear, its Secretary, this 12th day of October, 1994. ASSOCIATED MATERIALS INCORPORATED /s/ William W. Winspear ---------------------------------- William W. Winspear, President /s/ Robert L. Winspear - --------------------------------- Robert L. Winspear, Secretary -8- 9 CERTIFICATE OF RETIREMENT OF STOCK OF ASSOCIATED MATERIALS INCORPORATED Associated Materials Incorporated, a corporation organized and existing under the General Corporation Law of the State of Delaware (the "Corporation"), DOES HEREBY CERTIFY: FIRST: That the Board of Directors of the Corporation duly adopted a resolution which identified shares of the capital stock of the Corporation, which to the extent hereinafter set forth, had the status of retired shares, and which retired shares had capital applied in connection with their conversion. SECOND: The shares of capital stock of the Corporation which are retired are identified as being 1,150,000 shares of Class B Common Stock, par value of $.0025 per share ("Class B Common Stock"). THIRD: That the Restated Certificate of Incorporation of the corporation prohibits the reissuance of the shares of Class B Common Stock when so retired and, pursuant to the provisions of Section 243 of the General Corporation Law of the State of Delaware, upon the effective date of the filing of this Certificate, the Restated Certificate of Incorporation of the Corporation shall be amended so as to effect a reduction in the authorized number of shares of the Class B Common Stock to the extent of 1,150,000 shares, being the total number of shares of Class B Common Stock retired. FOURTH: This Certificate of Retirement of Stock shall be effective upon filing with the Secretary of State of the State of Delaware. IN WITNESS WHEREOF, the Corporation has caused this Certificate to be signed by William W. Winspear, its Chairman of the Board, President and Chief Executive Officer and attested by Robert L. Winspear, its Vice President, Treasurer and Secretary, this 31st day of March, 1998. ASSOCIATED MATERIALS INCORPORATED By: /s/ William W. Winspear ---------------------------------- William W. Winspear Chairman of the Board, President and Chief Executive Officer ATTEST: By: /s/ Robert L. Winspear -------------------------------------- Robert L. Winspear Secretary EX-5.1 3 OPINION & CONSENT OF JONES, DAY, REAVIS & POGUE 1 Exhibit 5.1 [Letterhead of Jones, Day, Reavis & Pogue] September 15, 1998 Associated Materials Incorporated 2200 Ross Avenue, Suite 4100 East Dallas, Texas 75201 Re: Registration Statement on Form S-8 relating to 250,000 shares of Common Stock, par value $.0025 per share, of Associated Materials Incorporated Ladies and Gentlemen: We are acting as counsel to Associated Materials Incorporated, a Delaware corporation (the "Company"), in connection with the registration of 250,000 shares (the "Shares") of common stock, par value $.0025 per share, of the Company ("Common Stock") under the Securities Act of 1933, as amended, pursuant to the Company's Registration Statement on Form S-8 (the "Registration Statement"). We have examined such documents, records, and matters of law as we have deemed necessary for purposes of this opinion. Based on such examination and on the assumptions set forth below, we are of the opinion that, when issued and delivered in accordance with the provisions of the Associated Materials Incorporated Employee Stock Purchase Plan (the "Plan") against payment of the consideration therefor as provided in the Plan and having a value not less than the par value thereof, the Shares will be duly authorized, validly issued, fully paid and nonassessable. In rendering the foregoing opinion, we have relied as to certain factual matters upon certificates of officers of the Company and public officials, and we have not independently checked or verified the accuracy of the statements contained therein. In addition, our examination of matters of law has been limited to the General Corporation Law of the State of Delaware and the federal laws of the United States of America, in each case as in effect on the date hereof. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement with respect to the Common Stock. Very truly yours, /s/ Jones, Day, Reavis & Pogue Jones, Day, Reavis & Pogue EX-23.2 4 CONSENT OF ERNST & YOUNG LLP 1 Exhibit 23.2 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Associated Materials Incorporated Employee Stock Purchase Plan of our report dated January 29, 1998, with respect to the consolidated financial statements of Associated Materials Incorporated included in its Annual Report (Form 10-K) for the year ended December 31, 1997, filed with the Securities and Exchange Commission. /s/ ERNST & YOUNG LLP Dallas, Texas September 14, 1998
EX-24.1 5 POWER OF ATTORNEY 1 Exhibit 24.1 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and appoints William W. Winspear, Robert L. Winspear and James E. O'Bannon the true and lawful attorney-in-fact, with full power of substitution and resubstitution, for him and in his name, place and stead, to sign on his behalf, as a director or officer, or both, as the case may be, of Associated Materials Incorporated, a Delaware corporation (the "Corporation"), one or more Registration Statements on Form S-8 or any other appropriate form (the "Registration Statement"), under the Securities Act of 1933, as amended, with respect to the shares of Common Stock, par value $.0025 per share, of the Corporation issuable pursuant to the Associated Materials Incorporated Employee Stock Purchase Plan and to sign any or all amendments and any or all post-effective amendments to the Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney or attorneys-in-fact, each of them with or without the others, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes may lawfully do or cause to be done by virtue hereof. Dated: August 26, 1998 /s/ WILLIAM W. WINSPEAR /s/ JAMES F. LEARY ------------------------------ --------------------------------------------------- William W. Winspear James F. Leary /s/ ALAN B. LERNER /s/ RICHARD I. GALLAND ------------------------------ --------------------------------------------------- Alan B. Lerner Richard I. Galland /s/ JOHN T. GRAY /s/ A.A. MEITZ ------------------------------ --------------------------------------------------- John T. Gray A. A. Meitz /s/ DONALD L. KAUFMAN /s/ ROBERT L. WINSPEAR ------------------------------ --------------------------------------------------- Donald L. Kaufman Robert L. Winspear
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