Form S-4 SCHULMAN A INC Filed by: ICO P&O, Inc.

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As filed with the Securities and Exchange Commission on October 27, 2016

Registration No. 333-            

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM S-4

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

A. Schulman, Inc.*

(Exact name of registrant as specified in its charter)

 

 

 

Delaware (State of Incorporation)		2821 (Primary Standard Industrial Classification Code Number)		34-0514850 (I.R.S. Employer Identification No.)

3637 Ridgewood Road,

Fairlawn, Ohio 44333

(330) 666-3751

(Address, including zip code, and telephone number, including area code, of registrants’ principal executive offices)

 

 

Andrean R. Horton

Executive Vice President and Chief Legal Officer

3637 Ridgewood Road,

Fairlawn, Ohio 44333

(330) 666-3751

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

With a copy to:

Kimberly J. Pustulka

Jones Day

901 Lakeside Avenue

Cleveland, Ohio 44114

(216) 586-3939

 

 

Approximate date of commencement of proposed exchange offer: As soon as practicable after this Registration Statement is declared effective.

If the securities being registered on this form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, please check the following box.  ☐

If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a small reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “small reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer		☒		Accelerated filer		☐
Non-accelerated filer		☐  (Do not check if a smaller reporting company)		Small reporting company		☐

If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:

Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer)  ☐

Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)  ☐

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Each Class of Securities to be Registered		Amount to be Registered		Proposed Maximum Offering Price per Note		Proposed Maximum Aggregate Offering Price		Amount of Registration Fee(1)
6.875% Senior Notes due 2023		$375,000,000		100%		$375,000,000		$43,462.50
Guarantees of 6.875% Senior Notes due 2023(2)		N/A		N/A		N/A		N/A(3)

 

(1)	Calculated in accordance with Rule 457(f) of the Securities Act of 1933 (the “Securities Act”).

(2)	See inside facing page for additional registrant guarantors.

(3)	Pursuant to Rule 457(n) under the Securities Act, no separate filing fee is required for the guarantees.

 

 

The Registrants hereby amend this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrants shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act, or until this Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

 

*	See table of additional registrants

 

 

 

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Table of Additional Registrants*

 

Exact Name of Registrant as Specified in                          its Charter		State of    Incorporation or    Organization		IRS Employer    Identification Number		Primary Standard   Industrial Classification Number
Bayshore Industrial, L.L.C.		Texas		75-0554850		325211
Bulk Molding Compounds, Inc.		Illinois		36-3635448		325211
Citadel Intermediate Holdings, LLC		Delaware		26-2495369		551112
Citadel Plastics Holdings, Inc.		Delaware		20-8502342		551112
HGGC Citadel Plastics Holdings, Inc.		Delaware		45-4472141		551112
HGGC Citadel Plastics Intermediate Holdings, Inc.		Delaware		45-4472265		551112
HPC Holdings, LLC		Delaware		26-2526837		551112
ICO-Schulman, LLC		Texas		37-1601870		551112
ICO Global Services, Inc.		Delaware		51-0380029		551112
ICO P&O, Inc.		Delaware		75-0567360		551112
ICO Polymers, Inc.		Delaware		74-2869009		551112
ICO Polymers North America, Inc.		New Jersey		22-2548114		325211
ICO Technology, Inc.		Delaware		74-2868642		551112
LPI Holding Company		Delaware		20-3275636		551112
Lucent Polymers Inc.		Delaware		20-3275702		325211
Premix, Inc.		Ohio		34-0845290		325211
Premix Holding Company		Delaware		39-1961790		551112
The Matrixx Group, Incorporated		Indiana		35-1622701		325211
Wedco Technology, Inc.		New Jersey		22-3439360		551112

*The address and telephone number of the principal executive offices of each additional registrant is 3637 Ridgewood Road, Fairlawn, Ohio 44333, (330) 666-3751. The name, address and telephone number of the agent for service of each additional registrant is Andrean R. Horton, Executive Vice President and Chief Legal Officer at 3637 Ridgewood Road, Fairlawn, Ohio 44333, (330) 666-3751.

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Information contained herein is subject to completion or amendment. A registration statement relating to these securities has been filed with the Securities and Exchange Commission. These securities may not be sold nor may offers to buy be accepted prior to the time the registration statement becomes effective. This prospectus shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state.

 

SUBJECT TO COMPLETION, DATED OCTOBER 27, 2016

PROSPECTUS

 

OFFER TO EXCHANGE

Up to $375,000,000 aggregate principal amount of 6.875% Senior Notes due 2023

For any and all outstanding 6.875% Senior Notes due 2023

 

 

On May 26, 2015, we issued $375,000,000 aggregate principal amount of restricted 6.875% Senior Notes due 2023 in a private placement. We refer to these notes as the “Original Notes.”

We are offering to exchange up to $375,000,000 aggregate principal amount of new 6.875% Senior Notes due 2023, which we refer to as the “Exchange Notes,” for the Original Notes. We refer to this offer to exchange as the “Exchange Offer.” The terms of the Exchange Notes are substantially identical to the terms of the Original Notes, except that the Exchange Notes will be registered under the Securities Act of 1933, or the “Securities Act,” and the transfer restrictions and registration rights and related special interest provisions applicable to the Original Notes will not apply to the Exchange Notes. The Exchange Notes will be part of the same series of Original Notes and issued under the same base indenture and applicable supplemental indentures, which we refer to collectively as the “Indenture.” The Exchange Notes will be exchanged for Original Notes in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. We will not receive any proceeds from the issuance of Exchange Notes in the Exchange Offer.

You may withdraw tenders of Original Notes at any time prior to the expiration of the Exchange Offer.

The Exchange Offer expires at 9:00 a.m. New York City time on                     , 2016, unless extended, which we refer to as the “Expiration Date.”

We do not intend to list the Exchange Notes on any securities exchange or to seek approval through any automated quotation system, and no active public market for the Exchange Notes is anticipated.

 

 

You should consider carefully the risk factors beginning on page 7 of this prospectus before deciding whether to participate in the Exchange Offer.

Neither the Securities and Exchange Commission, or the “SEC,” nor any state securities commission has approved or disapproved of these Exchange Notes or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.

 

 

The date of this prospectus is                 , 2016.

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WHERE YOU CAN FIND MORE INFORMATION			ii
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE			ii
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS			iii
SUMMARY			1
RISK FACTORS			7
THE EXCHANGE OFFER			13
RATIO OF EARNINGS TO FIXED CHARGES			20
USE OF PROCEEDS			20
DESCRIPTION OF THE EXCHANGE NOTES			21
BOOK-ENTRY, SETTLEMENT AND CLEARANCE			74
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS			77
PLAN OF DISTRIBUTION			78
LEGAL MATTERS			78
EXPERTS			78

This prospectus may only be used where it is legal to make the Exchange Offer and by a broker-dealer for resales of Exchange Notes acquired in the Exchange Offer where it is legal to do so.

Rather than repeat certain information in this prospectus that we have already included in reports filed with the SEC, this prospectus incorporates important business and financial information about us that is not included in or delivered with this prospectus. We will provide this information to you at no charge upon written or oral request directed to: A. Schulman, Inc., 3637 Ridgewood Road, Fairlawn, Ohio 44333, Attention: Corporate Secretary, telephone: (330) 666-3751. In order to receive timely delivery of any requested documents in advance of the Expiration Date, you should make your request no later than                     , 2016, which is five full business days before you must make a decision regarding the Exchange Offer.

In making a decision regarding the Exchange Offer, you should rely only on the information contained in or incorporated by reference into this prospectus. We have not authorized anyone to provide you with any other information. If you receive any other information, you should not rely on it.

You should not assume that the information contained in this prospectus is accurate as of any date other than the date of the front cover of this prospectus or that the information incorporated by reference into this prospectus is accurate as of any date other than the date of the incorporated document. Neither the delivery of this prospectus nor any exchange made hereunder shall under any circumstances imply that the information herein is correct as of any date subsequent to the date on the cover of this prospectus. Our business, financial condition, results of operations and prospects may have changed since that date.

In this prospectus, unless otherwise indicated, including as set forth under the heading “Description of the Exchange Notes,” the terms “Company,” “issuer,” “A. Schulman,” “us,” “we” and “our” refer to A. Schulman, Inc. and its consolidated subsidiaries.

Each broker-dealer that receives Exchange Notes for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of Exchange Notes. The letter of transmittal accompanying this prospectus, which we refer to as the “Letter of Transmittal,” states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Exchange Notes received in exchange for Original Notes where the Original Notes were acquired by such broker-dealer as a result of market-making activities or other trading activities. We have agreed that, for a period ending on the date that is 20 business days after the date of this prospectus, we will make this prospectus available to any broker-dealer for use in connection with these resales. See “Plan of Distribution.”

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WHERE YOU CAN FIND ADDITIONAL INFORMATION

We are subject to the informational reporting requirements of the Securities Exchange Act of 1934, which we refer to as the “Exchange Act.” We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available over the Internet at the SEC’s website at www.sec.gov. You may read and copy any reports, statements and other information filed by us at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call 1-800-SEC-0330 for further information about the Public Reference Room. You may also inspect our SEC reports and other information on our website at www.aschulman.com. The information contained on or accessible through our website is not part of this prospectus, other than the documents that we file with the SEC that are specifically incorporated by reference in this prospectus.

INCORPORATION OF CERTAIN INFORMATION BY REFERENCE

We file periodic reports and other information with the SEC. In this prospectus, we “incorporate by reference” certain information we have filed with the SEC, which means that important information is being disclosed to you by referring to those documents. Those documents that are filed prior to the date of this prospectus are considered part of this prospectus, and those documents that are filed after the date of this prospectus and prior to the completion of the Exchange Offer will be considered a part of this prospectus from the date of the filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated herein by reference, or contained in this prospectus, shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein or in any other subsequently dated or filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. The documents listed below are incorporated by reference in this prospectus:

 

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our Annual Report on Form 10-K for the year ended August 31, 2016; and

 

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our Current Reports on Form 8-K filed on September 22, 2016, September 28, 2016, October 3, 2016 (amended October 7, 2016), October 17, 2016 and October 24, 2016.

We also incorporate by reference any future filings we make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the date of this prospectus and prior to the termination of the Exchange Offer. We do not and will not, however, incorporate by reference in this prospectus any documents or portions thereof that are not deemed “filed” with the SEC, including any information furnished pursuant to Item 2.02 or Item 7.01 of our Current Reports on Form 8-K after the date of this prospectus unless, and except to the extent, specified in such Current Reports.

We will provide you with a copy of any of these filings (other than an exhibit to these filings, unless the exhibit is specifically incorporated by reference into the filing requested) at no cost, if you submit a request to us by writing or telephoning us at the following address or telephone number:

A. Schulman, Inc.

3637 Ridgewood Road

Fairlawn, Ohio 44333

Attn: Corporate Secretary

(330) 666-3751

 

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DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS

A number of the matters discussed in this prospectus that are not historical or current facts deal with potential future circumstances and developments and may constitute “forward-looking statements” within the meaning of the federal securities laws. Forward-looking statements can be identified by the fact that they do not relate strictly to historic or current facts and relate to future events and expectations. Forward-looking statements contain such words as “anticipate,” “estimate,” “expect,” “project,” “intend,” “plan,” “believe,” and other words and terms of similar meaning in connection with any discussion of future operating or financial performance. Forward-looking statements are based on management’s current expectations and include known and unknown risks, uncertainties and other factors, many of which management is unable to predict or control, that may cause actual results, performance or achievements to differ materially from those expressed or implied in the forward-looking statements. Any forward-looking statement speaks only as of the date on which such statement is made, and we undertake no obligation, and specifically decline any obligation, other than that imposed by law, to publicly update or revise any forward-looking statements whether as a result of new information, future events or otherwise.

Risk factors and uncertainties that could cause actual results to differ materially from those suggested by these forward-looking statements, and could adversely affect the Company’s future financial performance, include, but are not limited to, the following:

 

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worldwide and regional economic, business and political conditions, including continuing economic uncertainties in some or all of the Company’s major product markets or countries where the Company has operations;

 

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the effectiveness of the Company’s efforts to improve operating margins through sales growth, price increases, productivity gains, and improved purchasing techniques;

 

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competitive factors, including intense price competition;

 

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fluctuations in the value of currencies in areas where the Company operates;

 

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volatility of prices and availability of the supply of energy and raw materials that are critical to the manufacture of the Company’s products, particularly plastic resins derived from oil and natural gas;

 

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changes in customer demand and requirements;

 

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effectiveness of the Company to achieve the level of cost savings, productivity improvements, growth and other benefits anticipated from acquisitions and the integration thereof, joint ventures and restructuring initiatives;

 

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escalation in the cost of providing employee health care;

 

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uncertainties regarding the resolution of pending and future litigation and other claims;

 

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the performance of the global automotive market as well as other markets served;

 

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further adverse changes in economic or industry conditions, including global supply and demand conditions and prices for products;

 

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operating problems with our information systems as a result of system security failures such as viruses, cyber-attacks or other causes;

 

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our current debt position could adversely affect our financial health and prevent us from fulfilling our financial obligations;

 

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integration of acquisitions, including most recently HGGC Citadel Plastic Holdings, Inc., which we refer to as “Citadel,” with our existing business, including the risk that the integration will be more costly or more time consuming and complex or simply less effective than anticipated;

 

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our ability to achieve the anticipated synergies, cost savings and other benefits from the Citadel acquisition;

 

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substantial time devoted by management to the integration of the Citadel acquisition; and

 

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failure of counterparties to perform under the terms and conditions of contractual arrangements, including suppliers, customers, buyers and sellers of a business and other third parties with which the Company contracts.

You should refer to the section entitled “Risk Factors” for a discussion of certain risks and uncertainties that may cause our actual results to differ from expected results. These factors and the other risk factors described in this prospectus are not necessarily all of the important factors that could cause actual results to differ materially from those expressed in any of our forward-looking statements. Other unknown or unpredictable factors also could adversely affect our results. Consequently, there can be no assurance that the actual results or developments anticipated by us will be realized or, even if substantially realized, that they will have the expected consequences to or effects on us. Given these uncertainties, prospective investors are cautioned not to place undue reliance on such forward-looking statements.

 

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RISK FACTORS

An investment in the Exchange Notes involves a significant degree of risk, including the risks described in this prospectus. You should carefully consider the risk factors set forth below as well as the other information contained under “Disclosure Regarding Forward-Looking Statements” and in the documents incorporated by reference in this prospectus, before making a decision regarding the Exchange Offer. Any of the following risks, as well as other risks and uncertainties, could materially and adversely affect our business, results of operations, cash flows and/or financial condition and thus cause the value of the Exchange Notes to decline. The risks and uncertainties described below are not the only risks facing our company. Additional risks and uncertainties not currently known to us or those we currently view to be immaterial may also materially and adversely affect our business, financial condition or results of operations. In such a case, you may lose all or part of your investment in the Exchange Notes.

Risks Relating to the Exchange Offer

If you choose not to exchange your Original Notes in the Exchange Offer, the transfer restrictions currently applicable to your Original Notes will remain in force and the market price of your Original Notes could decline.

If you do not exchange your Original Notes for Exchange Notes in the Exchange Offer, then you will continue to be subject to the transfer restrictions that apply to the Original Notes as set forth in the offering memorandum related to the private sale of the Original Notes. In general, the Original Notes may not be sold unless the sale is registered or exempt from registration under the Securities Act. Except as required by the Registration Rights Agreement, we do not intend to register resales of the Original Notes under the Securities Act. You should refer to “The Exchange Offer” for information about how to tender your Original Notes.

The tender of Original Notes pursuant to the Exchange Offer will reduce the outstanding principal amount of the Original Notes, which may have an adverse effect upon, and increase the volatility of, the market price of the Original Notes due to reduction in liquidity.

Certain persons who participate in the Exchange Offer must deliver a prospectus in connection with resales of the Exchange Notes.

Based on interpretations of the staff of the SEC contained in Exxon Capital Holdings Corp., SEC no-action letter (April 13, 1988), Morgan Stanley & Co. Inc., SEC no-action letter (June 5, 1991) and Shearman & Sterling, SEC no-action letter (July 2, 1983), we believe that you may offer for resale, resell or otherwise transfer the Exchange Notes without compliance with the registration and prospectus delivery requirements of the Securities Act. However, in some instances described in this prospectus under “Plan of Distribution,” certain holders of Exchange Notes will remain obligated to comply with the prospectus delivery requirements of the Securities Act in order to transfer the Exchange Notes. If such a holder transfers any Exchange Notes without delivering a prospectus meeting the requirements of the Securities Act or without an applicable exemption from registration under the Securities Act, such a holder may incur liability under the Securities Act. We do not, and will not, assume or indemnify such a holder against this liability.

Risks Relating to the Exchange Notes and Our Debt

Our substantial debt could adversely affect our financial health and prevent us from fulfilling our obligations under the Exchange Notes.

We have significant debt service obligations. As of August 31, 2016, we had outstanding debt of approximately $955.0 million and had an additional $279.1 million of availability under our Revolving Credit Facility (after giving effect to outstanding letters of credit), all of which would be secured debt if drawn, which

 

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would have effectively ranked senior to the Exchange Notes to the extent of the value of the collateral securing such indebtedness. Our substantial debt could have important consequences to you. For example, it could:

 

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make it more difficult for us to satisfy our obligations with respect to the Exchange Notes and the Senior Secured Credit Facilities;

 

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increase our vulnerability to general adverse economic and industry conditions, including interest rate fluctuations, because a portion of our borrowings, including those under the Senior Secured Credit Facilities, will be at variable rates of interest;

 

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require us to dedicate a substantial portion of our cash flow from operations to payments on our debt, thereby reducing the availability of our cash flow to fund working capital, capital expenditures, acquisitions, joint ventures and investments and other general corporate purposes;

 

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limit our flexibility in planning for, or reacting to, changes in our business and the product categories in which we participate;

 

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limit our ability to obtain additional debt or equity financing due to applicable financial and restrictive covenants in our debt agreements;

 

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place us at a competitive disadvantage compared to our competitors that have less debt; and

 

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limit our ability to borrow additional funds.

We expect to pay expenses and to pay principal and interest on current and future debt from cash provided by operating activities. Therefore, our ability to meet these payment obligations will depend on future financial performance and regional cash availability, which is subject in part to numerous economic, business and financial factors beyond our control. If our cash flow and capital resources are insufficient to fund our debt obligations, we may be forced to reduce or delay expansion plans and capital expenditures, limit payment of dividends, sell material assets or operations, obtain additional capital or restructure our debt.

Despite our anticipated debt levels, we and our subsidiaries may still incur significant additional debt. Incurring more debt could increase the risks associated with our substantial debt.

We and our subsidiaries may be able to incur substantial additional debt, including additional secured debt, in the future. The terms of the Indenture and our Revolving Credit Facility restrict, but do not completely prohibit, us from doing so. As of August 31, 2016, we had approximately $20.9 million outstanding under our Revolving Credit Facility and approximately $279.1 million of undrawn availability under our Revolving Credit Facility (after giving effect to outstanding letters of credit), all of which would be secured debt. In addition, the Indenture allows us to issue additional notes under certain circumstances, which will also be guaranteed by the Guarantors. The Indenture also allows us to incur certain other additional secured debt. The Indenture allows our non-Guarantor subsidiaries, which include our foreign subsidiaries, to incur additional debt, which debt (as well as other liabilities at any such subsidiary) would be structurally senior to the Exchange Notes. In addition, the Indenture does not prevent us from incurring certain other liabilities that do not constitute indebtedness (as defined in the Indenture). If new debt or other liabilities are added to our current debt levels, the related risks that we and our subsidiaries now face could intensify.

If we default under the Senior Secured Credit Facilities, we may not be able to service our debt obligations.

In the event of a default under the Senior Secured Credit Facilities, the lenders under the facilities could elect to declare all amounts borrowed, together with accrued and unpaid interest and other fees, to be due and payable. If such acceleration occurs, thereby permitting an acceleration of amounts outstanding under the Exchange Notes, we may not be able to repay the amounts due under the Senior Secured Credit Facilities, or the Exchange Notes. This could have serious consequences to the holders of the Exchange Notes and to our financial condition and results of operations, and could cause us to become bankrupt or insolvent.

 

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We may not be able to generate sufficient cash to service all of our debt, including the Exchange Notes, and may be forced to take other actions to satisfy our obligations under our debt, which may not be successful.

As of August 31, 2016, we had cash and cash equivalents of $35.3 million. In addition, we had access to a Revolving Credit Facility of $300.0 million, with approximately $279.1 million available as of August 31, 2016 (after giving effect to outstanding letters of credit). Our ability to make scheduled payments on or to refinance our debt obligations, including the Exchange Notes, and to fund working capital, planned capital expenditures and expansion efforts and any strategic alliances or acquisitions we may make in the future depends on our ability to generate cash in the future and our financial condition and operating performance, which are subject to prevailing economic and competitive conditions and to certain financial, business and other factors beyond our control. We cannot assure you that we will maintain a level of cash flows from operating activities sufficient to permit us to pay the principal, premium, if any, and interest on our debt, including the Exchange Notes.

If our cash flows and capital resources are insufficient to fund our debt service obligations, we may be forced to reduce or delay investments and capital expenditures, or to sell assets, seek additional capital or restructure or refinance our debt, including the Exchange Notes. These alternative measures may not be successful and may not permit us to meet our scheduled debt service obligations. If our operating results and available cash are insufficient to meet our debt service obligations, we could face substantial liquidity problems and might be required to dispose of material assets or operations to meet our debt service and other obligations. We may not be able to consummate those dispositions or to obtain the proceeds sought from them, and these proceeds may not be adequate to meet any debt service obligations then due. Additionally, the Indenture and the agreements governing the Senior Secured Credit Facilities limit the use of the proceeds from any disposition; as a result, we may not be allowed, under these documents, to use proceeds from such dispositions to satisfy our debt service obligations. Further, we may need to refinance all or a portion of our debt on or before maturity, and we cannot assure you that we will be able to refinance any of our debt on commercially reasonable terms or at all.

Debt under the Senior Secured Credit Facilities is effectively senior to the Exchange Notes and the Guarantees to the extent of the value of the collateral securing the Senior Secured Credit Facilities.

As of August 31, 2016, the Company and the Guarantors had approximately $543.0 million outstanding under the Senior Secured Credit Facilities and approximately $279.1 million of undrawn availability under our Revolving Credit Facility (after giving effect to outstanding letters of credit), all of which was secured debt. Obligations under the Senior Secured Credit Facilities are effectively senior in right of payment to all of the Company’s and the Guarantors’ obligations under the Exchange Notes and the Guarantees to the extent of the value of the collateral securing the Senior Secured Credit Facilities. In the event of a bankruptcy, claims by the holders of the Exchange Notes will, therefore, be effectively junior to claims by our creditors under the Senior Secured Credit Facilities to the extent of the realizable value of the collateral securing the Senior Secured Credit Facilities. In the same manner, the Exchange Notes and the Guarantees will also be effectively junior in right of payment to any other debt secured by a lien on our and the Guarantors’ assets, to the extent of the realizable value of such collateral.

The Indenture and the agreements governing the Senior Secured Credit Facilities impose significant operating and financial restrictions on us and our subsidiaries, which may prevent us from capitalizing on business opportunities.

The Indenture and the agreements governing the Senior Secured Credit Facilities impose significant operating and financial restrictions on us. These restrictions limit our ability, among other things, to:

 

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incur additional debt or issue certain disqualified stock and preferred stock;

 

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pay dividends, repurchase our capital stock, or make other restricted payments or investments;

 

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place restrictions on the ability of our restricted subsidiaries to pay dividends or make other payments to us;

 

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engage in transactions with affiliates;

 

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sell certain assets or merge with or into other companies;

 

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create liens; and

 

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enter into unrelated businesses.

Our Revolving Credit Facility and our Term Loan A Facility require us to meet financial covenants, including covenants relating to an interest coverage ratio and a maximum net debt leverage ratio.

As a result of these covenants and restrictions, we are limited in how we conduct our business and we may be unable to raise additional debt or equity financing to compete effectively or to take advantage of new business opportunities. The terms of any future debt we may incur could include more restrictive covenants. We cannot assure you that we will be able to maintain compliance with these covenants in the future and, if we fail to do so, that we will be able to obtain waivers from the lenders and/or amend the covenants.

Federal and state statutes allow courts, under specific circumstances, to void guarantees and require note holders to return payments received from guarantors.

The Exchange Notes will be guaranteed by our domestic subsidiaries that guarantee the Senior Secured Credit Facilities. Under the federal bankruptcy law and comparable provisions of state fraudulent transfer laws, a Guarantee could be voided, or claims in respect of a Guarantee could be subordinated to all other debts of that Guarantor if, among other things, the Guarantor, at the time it incurred the indebtedness evidenced by its Guarantee:

 

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incurred this debt with the intent of hindering, delaying or defrauding current or future creditors;

 

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received less than reasonably equivalent value or fair consideration for the incurrence of the Guarantee;

 

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was insolvent or rendered insolvent by reason of the incurrence of the Guarantee;

 

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was engaged in a business or transaction for which the Guarantor’s remaining assets constituted unreasonably small capital; or

 

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intended to incur, or believed that it would incur, debts beyond its ability to pay those debts as they mature.

In addition, any payment by that Guarantor pursuant to its Guarantee could be voided and required to be returned to the Guarantor, or to a fund for the benefit of the creditors of the Guarantor.

The measures of insolvency for purposes of these fraudulent transfer laws will vary depending upon the law applied in any proceeding to determine whether a fraudulent transfer has occurred. Generally, however, a Guarantor would be considered insolvent if:

 

•

the sum of its debts, including contingent liabilities, was greater than the fair saleable value of all of its assets;

 

•

the present fair saleable value of its assets was less than the amount that would be required to pay its probable liability on its existing debts, including contingent liabilities, as they become absolute and mature; or

 

•

it could not pay its debts as they become due.

 

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The Indenture contains a provision intended to limit each Guarantor’s liability to the maximum amount that it could incur without causing the incurrence of obligations under its Guarantee to be a fraudulent transfer. This provision may not be effective to protect the Guarantees from being voided under fraudulent transfer law, or may eliminate the Guarantor’s obligations or reduce the Guarantor’s obligations to an amount that effectively makes the Guarantee worthless.

Not all of our subsidiaries will guarantee the Exchange Notes, and the assets of our non-Guarantor subsidiaries may not be available to make payments on the Exchange Notes.

Not all of our subsidiaries are required to guarantee the Exchange Notes. Our subsidiaries that do not guarantee the Exchange Notes generated approximately $1,759.4 million of net sales for the year ended August 31, 2016. Included in our non-Guarantor subsidiaries net sales are $5.1 million of intercompany sales. In the event that any non-Guarantor subsidiary becomes insolvent, liquidates, reorganizes, dissolves or otherwise winds up, holders of its debt and other liabilities (including its trade creditors) generally will be entitled to payment on their claims from the assets of that subsidiary before any of those assets are made available to us. Our subsidiaries that do not guarantee the Exchange Notes are separate and distinct legal entities and have no obligation, contingent or otherwise, to pay any amounts due pursuant to the Exchange Notes, or to make any funds available therefor, whether by dividends, loans, distributions or other payments. Consequently, your claims in respect of the Exchange Notes will be structurally subordinated to all of the liabilities of our non-Guarantor subsidiaries, including trade payables, and any claims of third party holders of preferred equity interests, if any, in our non-Guarantor subsidiaries.

Our non-Guarantor subsidiaries may incur obligations that will constrain the ability of our subsidiaries to provide us with cash, which may affect our ability to make payments on our indebtedness, including the Exchange Notes offered hereby.

Our cash flows and our ability to service our debt, including our ability to pay the interest on and principal of the Exchange Notes when due, will be dependent upon cash dividends and other distributions or other transfers from our subsidiaries. Dividends, loans and advances to us from our non-Guarantor subsidiaries may be restricted by covenants in certain debt agreements. If our non-Guarantor subsidiaries incur obligations with these restrictive covenants, it will constrain the ability of our non-Guarantor subsidiaries to provide us with cash, which may affect our ability to make payments on the Exchange Notes.

The Guarantors may be released from their Guarantees under certain circumstances.

The Guarantors may be released from the Guarantees in a variety of circumstances. So long as any obligations under certain of the Senior Secured Credit Facilities remain outstanding, any Guarantee of the Exchange Notes may be released without action by, or consent of, any holder of Exchange Notes or the Trustee if, at the discretion of lenders under the Senior Secured Credit Facilities, the related Guarantor is no longer a Guarantor of obligations under the Senior Secured Credit Facilities. You will not have a claim as a creditor against any subsidiary that is no longer a Guarantor, and the indebtedness and other liabilities, including trade payables, whether secured or unsecured, of those subsidiaries will effectively be senior to your claims as a holder of the Exchange Notes.

We may not be able to repurchase the Exchange Notes upon a change of control or pursuant to an asset sale offer, which would result in a default under the Indenture and would adversely affect our business and financial condition.

Upon a change of control, as defined under the Indenture, the holders of Exchange Notes will have the right to require us to offer to purchase all of the Exchange Notes then outstanding at a price equal to 101% of their principal amount plus accrued and unpaid interest, if any. The source of funds for any such purchase of the Exchange Notes will be our available cash or cash generated from operations or other sources, including borrowings, sales of assets or sales of equity. We may not be able to repurchase the Exchange Notes upon a change

 

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of control because we may not have sufficient financial resources, including the ability to arrange necessary financing on acceptable terms or at all, to purchase all of the Exchange Notes that are tendered upon a change of control. Our failure to offer to purchase all outstanding Exchange Notes or to purchase all validly tendered Exchange Notes would be an event of default under the Indenture. Such an event of default may cause the acceleration of our other debt. Our other debt also may contain restrictions on repayment requirements with respect to specified events or transactions that constitute a change of control under the Indenture.

In addition, in certain circumstances specified in the Indenture, we will be required to commence an Offer to Purchase, as defined in the Indenture, pursuant to which we must repay senior debt or make an offer to purchase a principal amount of the Exchange Notes equal to the Excess Proceeds, as defined in the Indenture. The purchase price of the Exchange Notes will be 100% of their principal amount, plus accrued and unpaid interest.

Our other debt may contain restrictions that would limit or prohibit us from completing any such Offer to Purchase. Our failure to purchase any such Exchange Notes when required under the Indenture would be an event of default under the Indenture.

An active trading market may not develop for the Exchange Notes.

We have been informed by the initial purchasers of the Original Notes that they intend to make a market in the Exchange Notes. However, the initial purchasers are not obligated to make a market in the Exchange Notes and may cease their market-making activities at any time. The liquidity of any trading market in the Exchange Notes, and the market price quoted for the Exchange Notes, may be adversely affected by changes in the overall market for these types of securities and by changes in our financial performance or prospects or in the prospects for companies in our industries generally. As a result, you cannot be sure that an active trading market will develop for the Exchange Notes.

Many of the covenants in the Indenture will not apply if the Exchange Notes are rated investment grade by both Moody’s and Standard & Poor’s.

Many of the covenants in the Indenture will not apply to us during any period in which the Exchange Notes are rated investment grade by both Moody’s and Standard & Poor’s (each as defined herein), provided at such time no default or event of default has occurred and is continuing. Such covenants restrict, among other things, our ability to pay distributions, incur debt and enter into certain other transactions. There can be no assurance that the Exchange Notes will ever be rated investment grade, or that if they are rated investment grade, that the Exchange Notes will maintain these ratings. However, suspension of these covenants would allow us to engage in certain transactions that would not be permitted while these covenants were in force. To the extent the covenants are subsequently reinstated, any such actions taken while the covenants were suspended would not result in an event of default under the Indenture. See “Description of the Exchange Notes—Certain Covenants—Changes in Covenants when Notes Rated Investment Grade.”

 

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THE EXCHANGE OFFER

Purpose of the Exchange Offer

In connection with the offer and sale of the Original Notes, we entered into the Registration Rights Agreement with the initial purchasers of the Original Notes. We are making the Exchange Offer to satisfy our obligations under the Registration Rights Agreement.

Terms of the Exchange Offer

We are offering to exchange, upon the terms and subject to the conditions set forth in this prospectus and in the Letter of Transmittal, Exchange Notes for an equal principal amount of Original Notes. The terms of the Exchange Notes are identical in all material respects to those of the Original Notes, except for the transfer restrictions and registration rights and related special interest provisions relating to the Original Notes that will not apply to the Exchange Notes. The Exchange Notes will be of the same class as the Original Notes. The Exchange Notes will be entitled to the benefits of Indenture. See “Description of the Exchange Notes.”

The Exchange Offer is not conditioned upon any minimum aggregate principal amount of Original Notes being tendered or accepted for exchange. As of the date of this prospectus, $375,000,000 aggregate principal amount of the Original Notes was outstanding. Original Notes tendered in the Exchange Offer must be in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.

Based on certain interpretive letters issued by the staff of the SEC to third parties in unrelated transactions, holders of Original Notes, except any holder who is an “affiliate” of ours within the meaning of Rule 405 under the Securities Act, who exchange their Original Notes for Exchange Notes pursuant to the Exchange Offer generally may offer the Exchange Notes for resale, resell the Exchange Notes and otherwise transfer the Exchange Notes without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that the Exchange Notes are acquired in the ordinary course of the holders’ business and such holders are not participating in, and have no arrangement or understanding with any person to participate in, a distribution of the Exchange Notes.

Each broker-dealer that receives Exchange Notes for its own account in exchange for Original Notes, where the Original Notes were acquired by the broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of the Exchange Notes as described in “Plan of Distribution.” In addition, to comply with the securities laws of individual jurisdictions, if applicable, the Exchange Notes may not be offered or sold unless they have been registered or qualified for sale in the jurisdiction or an exemption from registration or qualification is available and complied with. We have agreed, pursuant to the Registration Rights Agreement, to file with the SEC a registration statement (of which this prospectus forms a part) with respect to the Exchange Notes. If you do not exchange Original Notes for Exchange Notes pursuant to the Exchange Offer, your Original Notes will continue to be subject to restrictions on transfer.

If any holder of the Original Notes is an affiliate of ours, is engaged in or intends to engage in or has any arrangement or understanding with any person to participate in the distribution of the Exchange Notes to be acquired in the Exchange Offer, the holder would not be able to rely on the applicable interpretations of the SEC and would be required to comply with the registration requirements of the Securities Act, except for resales made pursuant to an exemption from, or in a transaction not subject to, the registration requirement of the Securities Act and applicable state securities laws.

Expiration Date; extensions; termination; amendments

The Exchange Offer expires on the Expiration Date, which is 9:00 a.m., New York City time, on                     , 2016 unless we, in our sole discretion, extend the period during which the Exchange Offer is open.

 

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We reserve the right to extend the Exchange Offer at any time and from time to time prior to the Expiration Date by giving written notice to the Exchange Agent and by public announcement communicated by no later than 9:00 a.m., New York City time, on the next business day following the previously scheduled Expiration Date, unless otherwise required by applicable law or regulation, by making a release to PR Newswire or other wire service. During any extension of the Exchange Offer, all Original Notes previously tendered will remain subject to the Exchange Offer and may be accepted for exchange by us.

The exchange date will promptly follow the Expiration Date. We expressly reserve the right to:

 

•

terminate the Exchange Offer and not accept for exchange any Original Notes for any reason, including if any of the events set forth below under “—Conditions to the Exchange Offer” shall have occurred and shall not have been waived by us; and

 

•

amend the terms of the Exchange Offer in any manner, whether before or after any tender of the Original Notes.

If any termination or material amendment occurs, we will notify the Exchange Agent in writing and will either issue a press release or give written notice to the holders of the Original Notes as promptly as practicable. Additionally, in the event of a material amendment or change in the Exchange Offer, which would include any waiver of a material condition hereof, we will extend the offer period, if necessary, so that at least five business days remain in the Exchange Offer following notice of the material amendment or change, as applicable.

Unless we terminate the Exchange Offer prior to 9:00 a.m., New York City time, on the Expiration Date, we will exchange the Exchange Notes for the tendered Original Notes promptly after the Expiration Date, and will issue to the Exchange Agent Exchange Notes for Original Notes validly tendered, not withdrawn and accepted for exchange. Any Original Notes not accepted for exchange for any reason will be returned without expense to the tendering holder promptly after expiration or termination of the Exchange Offer. See “—Acceptance of Original Notes for exchange; delivery of Exchange Notes.”

This prospectus and the Letter of Transmittal and other relevant materials will be mailed by us to record holders of Original Notes and will be furnished to brokers, banks and similar persons whose names, or the names of whose nominees, appear on the lists of holders for subsequent transmittal to beneficial owners of Original Notes.

Procedures for tendering Original Notes

To participate in the Exchange Offer, you must properly tender your Original Notes to the Exchange Agent as described below. We will only issue the Exchange Notes in exchange for the Original Notes that you timely and properly tender. Therefore, you should allow sufficient time to ensure timely delivery of the Original Notes, and you should follow carefully the instructions on how to tender your Original Notes. It is your responsibility to properly tender your Original Notes. No Letter of Transmittal or other document should be sent to us. Beneficial owners may request their respective brokers, dealers, commercial banks, trust companies or nominees to effect the above transactions for them.

If you have any questions or need help in exchanging your Original Notes, please contact the Exchange Agent at the address or telephone numbers set forth below.

All of the Original Notes were issued in book-entry form, and all of the Original Notes are currently represented by global certificates registered in the name of Cede & Co., the nominee of DTC. You may tender your Original Notes using ATOP. The Exchange Agent will make a request to establish an account with respect to the Original Notes at DTC for purposes of the Exchange Offer within two business days after this prospectus is sent to holders of Original Notes, and any financial institution that is a participant in DTC may make book-entry delivery of Original Notes by causing DTC to transfer the Original Notes into the Exchange Agent’s account at DTC in accordance with DTC’s procedures for transfer. In connection with the transfer, DTC will send an

 

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“agent’s message” to the Exchange Agent. The agent’s message will state that DTC has received instructions from the participant to tender the Original Notes and that the participant agrees to be bound by the terms of the Letter of Transmittal.

By using the ATOP procedures to exchange the Original Notes, you will not be required to deliver a Letter of Transmittal to the Exchange Agent. However, you will be bound by its terms just as if you had signed it. The tender of Original Notes by you pursuant to the procedures set forth in this prospectus will constitute an agreement between you and us in accordance with the terms and subject to the conditions set forth in this prospectus and in the Letter of Transmittal.

All questions as to the validity, form, eligibility, including time of receipt, and acceptance for exchange of any tender of Original Notes will be determined by us and will be final and binding. We reserve the absolute right to reject any or all tenders not in proper form or the acceptances for exchange of which may, upon advice of our counsel, be unlawful. We also reserve the right to waive any defect, irregularities or conditions of tender as to particular Original Notes. Our interpretation of the terms and conditions of the Exchange Offer, including the instructions in the Letter of Transmittal, will be final and binding on all parties. Unless waived, all defects or irregularities in connection with tenders of the Original Notes must be cured within such time as we shall determine. Although we intend to notify holders of defects or irregularities with respect to tenders of the Original Notes, neither we, the Exchange Agent nor any other person will incur any liability for failure to give such notification. Tenders of the Original Notes will not be deemed made until such defects or irregularities have been cured or waived. Any Original Notes received by the Exchange Agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned to the tendering holder as soon as practicable after the Expiration Date.

In all cases, we will issue the Exchange Notes for the Original Notes that we have accepted for exchange under the Exchange Offer only after the Exchange Agent receives, prior to the Expiration Date: a book-entry confirmation of such number of the Original Notes into the Exchange Agent’s account at DTC and a properly transmitted agent’s message.

If we do not accept any tendered Original Notes for exchange or if the Original Notes are submitted for a greater principal amount than the holder desires to exchange, the unaccepted or non-exchanged Original Notes will be returned without expense to their tendering holder. Such non-exchanged Original Notes will be credited to an account maintained with DTC. These actions will occur as promptly as practicable after the expiration or termination of the Exchange Offer.

Each broker-dealer that receives the Exchange Notes for its own account in exchange for the Original Notes, where those Original Notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of those Exchange Notes. See “Plan of Distribution.”

Terms and conditions contained in the Letter of Transmittal

The Letter of Transmittal contains, among other things, the following terms and conditions, which are part of the Exchange Offer.

The transferring party tendering Original Notes for exchange will be deemed to have exchanged, assigned and transferred the Original Notes to us and irrevocably constituted and appointed the Exchange Agent as the transferor’s agent and attorney-in-fact to cause the Original Notes to be assigned, transferred and exchanged. The transferor will be required to represent and warrant that it has full power and authority to tender, exchange, assign and transfer the Original Notes and to acquire Exchange Notes issuable upon the exchange of the tendered Original Notes and that, when the same are accepted for exchange, we will acquire good and unencumbered title to the tendered Original Notes, free and clear of all liens, restrictions (other than restrictions on transfer), charges

 

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and encumbrances and that the tendered Original Notes are not and will not be subject to any adverse claim. The transferor will be required to also agree that it will, upon request, execute and deliver any additional documents deemed by the Exchange Agent or us to be necessary or desirable to complete the exchange, assignment and transfer of tendered Original Notes. The transferor will be required to agree that acceptance of any tendered Original Notes by us and the issuance of Exchange Notes in exchange for tendered Original Notes will constitute performance in full by us of our obligations under the Registration Rights Agreement and that we will have no further obligations or liabilities under the Registration Rights Agreement, except in certain limited circumstances. All authority conferred by the transferor will survive the death, bankruptcy or incapacity of the transferor and every obligation of the transferor will be binding upon the heirs, legal representatives, successors, assigns, executors, administrators and trustees in bankruptcy of the transferor.

Upon agreement to the terms of the Letter of Transmittal pursuant to an agent’s message, a holder, or beneficial holder of the Original Notes on behalf of which the holder has tendered, will, subject to that holder’s ability to withdraw its tender, and subject to the terms and conditions of the Exchange Offer generally, thereby certify that:

 

•

it is not an affiliate of ours or our subsidiaries or, if the transferor is an affiliate of ours or our subsidiaries, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable;

 

•

the Exchange Notes are being acquired in the ordinary course of business of the person receiving the Exchange Notes, whether or not the person is the registered holder;

 

•

the transferor has not entered into, engaged in, does not intend to engage in, and has no arrangement or understanding with any other person to engage in a distribution of the Exchange Notes issued to the transferor;

 

•

the transferor is not a broker-dealer who purchased the Original Notes for resale pursuant to an exemption under the Securities Act tendering Original Notes acquired directly from the Company for the transferor’s own account; and

 

•

the transferor is not restricted by any law or policy of the SEC from trading the Exchange Notes acquired in the Exchange Offer.

Each broker-dealer that receives Exchange Notes for its own account in exchange for Original Notes where such Original Notes were acquired by such broker-dealer as a result of market-making activities or other trading activities must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Notes. See “Plan of Distribution.”

Withdrawal rights

Original Notes tendered pursuant to the Exchange Offer may be withdrawn at any time prior to the Expiration Date.

For a withdrawal to be effective, a written letter or facsimile transmission notice of withdrawal must be received by the Exchange Agent at its address set forth in the Letter of Transmittal not later than 9:00 a.m., New York City time, on the Expiration Date. Any notice of withdrawal must specify the name and number of the account at DTC to be credited with withdrawn Original Notes and otherwise comply with the ATOP procedures. The Exchange Agent will return properly withdrawn Original Notes promptly following receipt of notice of withdrawal. Properly withdrawn Original Notes may be retendered by following the procedures described under “—Procedures for tendering Original Notes” above at any time on or prior to 9:00 a.m., New York City time, on the Expiration Date. All questions as to the validity of notices of withdrawals, including time of receipt, will be determined by us, and will be final and binding on all parties.

 

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Acceptance of Original Notes for exchange; delivery of Exchange Notes

Upon the terms and subject to the conditions of the Exchange Offer, the acceptance for exchange of Original Notes validly tendered and not withdrawn and the issuance of the Exchange Notes will be made on the exchange date. For purposes of the Exchange Offer, we will be deemed to have accepted for exchange validly tendered Original Notes when and if we have given written notice to the Exchange Agent. The Original Notes surrendered in exchange for the Exchange Notes will be retired and cannot be reissued.

The Exchange Agent will act as agent for the tendering holders of Original Notes for the purposes of receiving Exchange Notes from us and causing the Original Notes to be assigned, transferred and exchanged. Original Notes tendered by book-entry transfer into the Exchange Agent’s account at DTC pursuant to the procedures described above will be credited to an account maintained by the holder with DTC for the Original Notes, promptly after withdrawal, rejection of tender or termination of the Exchange Offer.

Conditions to the Exchange Offer

Notwithstanding any other provision of the Exchange Offer, or any extension of the Exchange Offer, we will not be required to issue Exchange Notes in exchange for any properly tendered Original Notes not previously accepted and may terminate the Exchange Offer by oral or written notice to the Exchange Agent and by timely public announcement communicated, unless otherwise required by applicable law or regulation, to PR Newswire or other wire service, or, at our option, modify or otherwise amend the Exchange Offer, if, in our reasonable determination:

 

•

there is threatened, instituted or pending any action or proceeding before, or any injunction, order or decree shall have been issued by, any court or governmental agency or other governmental regulatory or administrative agency or of the SEC:

 

•

seeking to restrain or prohibit the making or consummation of the Exchange Offer;

 

•

assessing or seeking any damages as a result thereof; or

 

•

resulting in a material delay in our ability to accept for exchange or exchange some or all of the Original Notes pursuant to the Exchange Offer; or

 

•

the Exchange Offer violates any applicable law or any applicable interpretation of the staff of the SEC.

These conditions are for our sole benefit and may be asserted by us with respect to all or any portion of the Exchange Offer regardless of the circumstances, including any action or inaction by us, giving rise to the condition or may be waived by us in whole or in part at any time or from time to time in our sole discretion. The failure by us at any time to exercise any of the foregoing rights will not be deemed a waiver of any right, and each right will be deemed an ongoing right that may be asserted at any time or from time to time. We reserve the right, notwithstanding the satisfaction of these conditions, to terminate or amend the Exchange Offer.

Any determination by us concerning the fulfillment or non-fulfillment of any conditions will be final and binding upon all parties.

In addition, we will not accept for exchange any Original Notes tendered, and no Exchange Notes will be issued in exchange for any Original Notes, if at such time, any stop order has been issued or is threatened with respect to the registration statement of which this prospectus forms a part, or with respect to the qualification of the indenture under which the Original Notes were issued under the Trust Indenture Act of 1939.

 

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Exchange Agent

U.S. Bank National Association, has been appointed as the Exchange Agent. Questions relating to the procedure for tendering, as well as requests for additional copies of this prospectus or the Letter of Transmittal, should be directed to the Exchange Agent addressed as follows:

By Registered Certified or Regular Mail or Overnight Courier or Hand Delivery:

U.S. Bank National Association

111 Filmore Avenue

St. Paul, Minnesota 55107-1402

Attn: Corporate Actions

By Facsimile Transmission:

651-466-7367

For Information:

800-934-6802

Originals of all documents sent by facsimile should be promptly sent to the Exchange Agent by mail, by hand or by overnight delivery service.

Solicitation of tenders; expenses

We have not retained any dealer-manager or similar agent in connection with the Exchange Offer and we will not make any payments to brokers, dealers or others for soliciting acceptances of the Exchange Offer. We will, however, pay the Exchange Agent reasonable and customary fees for its services and will reimburse it for actual and reasonable out-of-pocket expenses. The expenses to be incurred in connection with the Exchange Offer, including the fees and expenses of the Exchange Agent and printing, accounting and legal fees, will be paid by us.

No person has been authorized to give any information or to make any representations in connection with the Exchange Offer other than those contained in this prospectus. If given or made, the information or representations should not be relied upon as having been authorized by us. Neither the delivery of this prospectus nor any exchange made in the Exchange Offer will, under any circumstances, create any implication that there has been no change in our affairs since the date of this prospectus or any earlier date as of which information is given in this prospectus.

The Exchange Offer is not being made to, nor will tenders be accepted from or on behalf of, holders of Original Notes in any jurisdiction in which the making of the Exchange Offer or the acceptance would not be in compliance with the laws of the jurisdiction. However, we may, at our discretion, take any action as we may deem necessary to make the Exchange Offer in any jurisdiction.

Appraisal rights

You will not have appraisal or dissenters’ rights in connection with the Exchange Offer.

Transfer taxes

If you tender your Original Notes, you will not be obligated to pay any transfer taxes in connection with the Exchange Offer unless you instruct us to register Exchange Notes in the name of, or request Original Notes not tendered or not accepted in the Exchange Offer be returned to, a person other than the registered holder, in which case you will be responsible for the payment of any applicable transfer tax.

 

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Consequences of failure to exchange

As a consequence of the offer or sale of the Original Notes pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state securities laws, holders of Original Notes who do not exchange Original Notes for Exchange Notes in the Exchange Offer will continue to be subject to the restrictions on transfer of the Original Notes. In general, the Original Notes may not be offered or sold unless such offers and sales are registered under the Securities Act, or exempt from, or not subject to, the registration requirements of the Securities Act and applicable state securities laws.

Upon completion of the Exchange Offer, due to the restrictions on transfer of the Original Notes and the absence of similar restrictions applicable to the Exchange Notes, it is highly likely that the market, if any, for Original Notes will be less liquid than the market for Exchange Notes. Consequently, holders of Original Notes who do not participate in the Exchange Offer could experience significant diminution in the value of their Original Notes compared to the value of the Exchange Notes. See “Risk Factors—Risks Relating to the Exchange Offer.”

 

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RATIO OF EARNINGS TO FIXED CHARGES

The following table sets forth our ratio of earnings to fixed charges for the periods presented. For purposes of determining the ratio of earnings to fixed charges, earnings are defined as pre-tax income from continuing operations before adjustment for income or loss from equity investees plus the following (a) fixed charges, and (b) undistributed income (loss) from equity investees. Fixed charges consist of interest expensed plus (a) amortized discounts and capitalized expenses related to indebtedness, and (b) an estimate of the interest within rental expense.

 

		Fiscal Year Ended August 31,
		2016				2015				2014				2013				2012
Ratio of earnings to fixed charges(a)(b)			(c	)			1.60x				6.15x				5.52x				6.65x

 

(a)

Interest expense includes amortization of deferred financing costs in all periods and bridge financing fees in 2015. The Company’s policy is to classify interest expense recognized on uncertain tax positions as income tax expense. The Company has excluded interest expense recognized on uncertain tax positions from the Ratio of Earnings to Fixed Charges. Capitalized interest is not considered material.

(b)	Interest portion of rental expense is estimated to equal 1/3 of such expense, which is considered a reasonable approximation of the interest factor.

(c)	Earnings were not sufficient to cover fixed charges for the period. We would have needed to generate additional earnings of $366.5 million to achieve a coverage ratio of 1:1.

USE OF PROCEEDS

The Exchange Offer is intended to satisfy our obligations under the Registration Rights Agreement. We will not receive any cash proceeds from the issuance of the Exchange Notes. The terms of the Exchange Notes are identical in all material respects to the form and terms of the Original Notes, except for the transfer restrictions and registration rights and related special interest provisions relating to the Original Notes. In consideration for issuing the Exchange Notes as contemplated in this prospectus, we will receive, in exchange, an equal principal amount of the Original Notes. The Original Notes surrendered in exchange for the Exchange Notes will be retired and cannot be reissued.

 

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DESCRIPTION OF THE EXCHANGE NOTES

A. Schulman, Inc. (the “Company”) will issue 6.875% Senior Notes due 2023, which we refer to in this section of this prospectus as the “Exchange Notes,” under an indenture, dated May 26, 2015 (as amended and supplemented through the date hereof, the “Indenture”), among the Company, certain of the Company’s Subsidiaries constituting Guarantors and U.S. Bank National Association, as trustee (the “Trustee”). The Company is issuing the Exchange Notes in exchange for the 6.875% Senior Notes due 2023 (the “Original Notes” and, together with the Exchange Notes, the “Notes”) that were issued under the Indenture by the Company on May 26, 2015 in a private transaction that was not subject to the registration requirements of the Securities Act of 1933 (the “Securities Act”). The Exchange Notes will be of the same class and series as the Original Notes and be identical in all material respect to the Original Notes, except for transfer restrictions and registration rights and related special interest provisions relating to the Original Notes. References to the “Company,” “we,” “us,” “our” or similar terms shall mean A. Schulman, Inc., excluding its subsidiaries.

The terms of the Notes will include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (the “TIA”).

The statements under this caption relating to the Indenture and the Notes are summaries and are not complete descriptions thereof, and where reference is made to particular provisions, such provisions, including the definitions of certain terms, are qualified in their entirety by reference to all of the provisions of the Indenture and the Notes and those terms made part of the Indenture by the TIA. The definitions of certain capitalized terms used in the following summary are set forth below under “—Certain Definitions.” For more information on how you can obtain a copy of the Indenture, see “Where You Can Find More Information.”

Brief Description of the Notes and the Note Guarantees

The Notes will be:

 

•

general unsecured senior obligations of the Company;

 

•

unconditionally guaranteed, jointly and severally, by the Guarantors on a senior unsecured basis;

 

•

pari passu in right of payment with all existing and future senior Debt of the Company, including obligations under the Credit Agreement;

 

•

senior in right of payment to all existing and future subordinated Debt of the Company;

 

•

effectively subordinated to all secured Debt of the Company, including obligations under the Credit Agreement, to the extent of the value of the assets securing such Indebtedness; and

 

•

structurally subordinated to all Debt and other liabilities and preferred stock of Subsidiaries of the Company that are not Guarantors.

Each Note Guarantee will be:

 

•

a general unsecured senior obligation of each Guarantor;

 

•

pari passu in right of payment with all existing and future senior Debt of such Guarantor, including obligations under the Credit Agreement;

 

•

senior in right of payment to all existing and future subordinated Debt of such Guarantor; and

 

•

effectively subordinated to all secured Debt of such Guarantor, including obligations under the Credit Agreement, to the extent of the value of the assets pledged by such Guarantor securing such Debt.

 

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Principal, Maturity and Interest

The Company issued $375,000,000 in aggregate principal amount of Original Notes on May 26, 2015 and, pursuant to this prospectus, is offering to exchange all of the Original Notes for the Exchange Notes. The Company may issue additional Notes (the “Additional Notes”) under the Indenture, subject to the limitations described below under the covenant “Limitation on Incurrence of Debt.” The Notes and any Additional Notes subsequently issued under the Indenture will be treated as a single class for all purposes of the Indenture, including, without limitation, waivers, amendments, redemptions and offers to purchase. The Company will issue Exchange Notes and any Additional Notes in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The Notes will mature on June 1, 2023.

Interest on the Notes is payable at 6.875% per annum. Interest on the Notes is payable semi- annually in cash in arrears on June 1 and December 1, which payments commenced on December 1, 2015. The Company will make each interest payment to the Holders of record of the Notes on the immediately preceding May 15 and November 15. Interest on the Notes accrues from the most recent date to which interest has been paid or, if no interest has been paid, from and including the Issue Date. Interest is computed on the basis of a 360-day year comprised of twelve 30-day months.

Payments

Principal of and premium, if any, and interest on the Notes is payable, and the Notes will be exchangeable and transferable, at the office or agency of the Company maintained for such purposes, or, at the option of the Company, by check mailed to the Person entitled thereto as shown on the security register; provided that all payments of principal, premium, if any, and interest with respect to Notes represented by one or more global notes registered in the name of or held by The Depository Trust Company (“DTC”) or its nominee will be made through the facilities of DTC. No service charge will be made for any registration of transfer, exchange or redemption of Notes, except in certain circumstances for any tax or other governmental charge that may be imposed in connection therewith. Until otherwise designated by the Company, the Company’s office or agency will be the office of the Trustee maintained for such purpose.

Guarantees

The Company’s obligations under the Notes and the Indenture are fully and unconditionally Guaranteed (the “Note Guarantees”), on a joint and several basis, by each of the Company’s existing, and will be fully and unconditionally Guaranteed by the Company’s future, direct and indirect Subsidiaries that Guarantee the Company’s or any of its U.S. Subsidiaries’ obligations under the Credit Agreement. The obligations of each Guarantor under its Note Guarantee will be limited as necessary to prevent that Note Guarantee from constituting a fraudulent conveyance under applicable law. See “Risk Factors—Risks Relating to the Exchange Notes and Our Debt—Federal and state statutes allow courts, under specific circumstances, to void guarantees and require note holders to return payments received from guarantors.”

Not all of the Company’s Subsidiaries Guarantee the Notes. Claims of creditors of non-Guarantor Subsidiaries, including trade creditors, secured creditors and creditors holding Debt and Guarantees issued by those Subsidiaries, and claims of preferred stockholders (if any) of those Subsidiaries generally will have priority with respect to the assets and earnings of those Subsidiaries over the claims of creditors of the Company, including Holders of the Notes. For the year ended August 31, 2016, the non-Guarantor Subsidiaries accounted for approximately 70.5% of our net sales. Included in our non-Guarantor subsidiaries net sales are $5.1 million of intercompany sales.

The Note Guarantee of a Guarantor will be released:

 

(1)

in connection with a sale or other disposition (including by way of consolidation or merger) of the Capital Interests of the Guarantor or the sale or disposition of all or substantially all the assets of the Guarantor (other than to the Company or a Subsidiary or an Affiliate) otherwise permitted by the Indenture;

 

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(2)

in connection with the designation of the Guarantor as an Unrestricted Subsidiary in accordance with the terms of the Indenture;

 

(3)

upon the contemporaneous or substantially contemporaneous release or discharge of such Guarantor as a guarantor or borrower in respect of the Credit Agreement, except (x) a release, discharge or termination by or as a result of payment under such instrument or (y) to the extent such Guarantor is otherwise required to provide a Guarantee pursuant to the covenant described under “—Certain Covenants—Additional Note Guarantees”;

 

(4)

upon legal defeasance, covenant defeasance or satisfaction and discharge of the Indenture as provided below under the captions “—Defeasance” and “—Satisfaction and Discharge of the Indenture”; or

 

(5)

upon the contemporaneous release or discharge of all Guarantees by such Guarantor which would have required such Guarantor to guarantee the Notes pursuant to the covenant described under “—Certain Covenants—Additional Note Guarantees.”

Sinking Fund; Mandatory Redemptions

There are no mandatory sinking fund payment obligations with respect to the Notes.

Paying Agent and Registrar for the Notes

The Trustee acts as paying agent and registrar. The Company may change the paying agent or registrar without prior notice to the Holders of the Notes, and the Company or any of its Subsidiaries may act as paying agent or registrar. The registrar will maintain a register reflecting ownership of any Notes in certificated, non-global form outstanding from time to time and the paying agent will make payments on and facilitate transfer of such Notes in certificated, non-global form on the behalf of the Company.

Transfer and Exchange

A Holder may transfer or exchange Notes in accordance with the provisions of the Indenture. The registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents in connection with a transfer of Notes. Holders will be required to pay any taxes due on transfer. The Company will not be required to transfer or exchange any Note selected for redemption. Also, the Company will not be required to transfer or exchange any Note for a period of 15 days before a selection of Notes to be redeemed.

Optional Redemption

At any time prior to June 1, 2018, the Company may, at its option, redeem the Notes, in whole or in part, at one time or from time to time, upon not less than 30 nor more than 60 days’ prior notice, at a redemption price equal to the sum of 100% of the principal amount of Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest, if any, on the Notes redeemed, to, but not including, the applicable redemption date, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date in respect of then outstanding Notes.

In addition, on or after June 1, 2018, the Company may, at its option, redeem the Notes, in whole or in part, at one time or from time to time, upon not less than 30 nor more than 60 days’ prior notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid

 

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interest, if any, on the Notes redeemed, to, but not including, the applicable redemption date, if redeemed during the twelve-month period beginning on June 1 of the years indicated below, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date in respect of then outstanding Notes:

 

Year		Redemption Price
2018		105.156%
2019		103.438%
2020		101.719%
2021 and thereafter		100.000%

Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable Redemption Date.

In addition to the optional redemption of the Notes in accordance with the provisions of the preceding paragraphs, at any time prior to June 1, 2018, the Company may, at its option, redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture, at one time or from time to time, upon not less than 30 nor more than 60 days’ prior notice, at a redemption price equal to 106.875% of the principal amount, plus accrued and unpaid interest, if any, to, but not including, the applicable redemption date, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date in respect of then outstanding Notes, with the net proceeds of one or more Qualified Equity Offerings; provided that:

(1) at least 65% of the aggregate principal amount of Notes originally issued under the Indenture remains outstanding immediately after the occurrence of any such redemption; and

(2) that any such notice of redemption occurs within 90 days following the closing of any such Qualified Equity Offering.

Selection and Notice

If less than all of the Notes are to be redeemed at any time, the Trustee will select Notes to be redeemed in compliance with the requirements of the principal national securities exchange, if any, on which such Notes are listed, or, if such Notes are not so listed on a national securities exchange, on a pro rata basis or by lot or such similar method in accordance with the procedures of DTC; provided that no Notes of $2,000 or less shall be purchased or redeemed in part.

Notices of redemption shall be delivered at least 30 (or such shorter period as is specifically required in respect of any Special Mandatory Redemption) but not more than 60 days before the redemption date to each Holder of Notes to be redeemed. If any Note is to be redeemed in part only, the notice of redemption that relates to that Note shall state the portion of the principal amount thereof to be redeemed. A new Note in principal amount equal to the unredeemed portion of the original Note will be issued in the name of the Holder thereof upon cancellation of the original Note (or through book-entry transaction if Global Notes).

Notes called for redemption become due on the date fixed for redemption; provided that notices of redemption may be conditioned at the direction of the Company on one or more conditions precedent, such as the closing of a Change of Control or a financing transaction. The Company will provide prompt written notice to the Trustee rescinding any such conditional redemption in the event that any such condition precedent shall not have occurred, and thereafter such redemption and notice of redemption shall be rescinded and of no force or effect. Upon receipt of such notice from the Company rescinding such conditional redemption, the Trustee will promptly send a copy of such notice to the Holders of the Notes to be redeemed.

On and after the redemption date, interest ceases to accrue on Notes or portions of them called for redemption, so long as the Company has deposited with the paying agent funds sufficient to pay the principal of and premium, if any, plus accrued and unpaid interest, if any, on the Notes to be redeemed.

 

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Change of Control

Upon the occurrence of a Change of Control, the Company will make an Offer to Purchase to the Holders of all of the outstanding Notes (with a copy to the Trustee) at a Purchase Price in cash equal to 101% of the principal amount tendered, together with accrued and unpaid interest, if any, to but not including the Purchase Date (the “Change of Control Payment Date”). For purposes of the foregoing, an Offer to Purchase shall be deemed to have been made if (i) within 30 days following the date of the consummation of a transaction or series of transactions that constitutes a Change of Control, the Company commences an Offer to Purchase for all outstanding Notes at the Purchase Price and (ii) all Notes properly tendered pursuant to the Offer to Purchase are purchased on the terms of such Offer to Purchase.

The phrase “all or substantially all,” as used in the definition of “Change of Control,” has not been interpreted under New York law (which is the governing law of the Indenture) to represent a specific quantitative test. As a consequence, in the event the Holders of the Notes elected to exercise their rights under the Indenture and the Company elects to contest such election, there could be no assurance how a court interpreting New York law would interpret such phrase. As a result, it may be unclear as to whether a Change of Control has occurred and whether a Holder of Notes may require the Company to make an Offer to Purchase the Notes as described above.

On the Change of Control Payment Date, the Company will, to the extent permitted by law:

(1) accept for payment all Notes or portions of Notes properly tendered pursuant to the Offer to Purchase;

(2) deposit with the paying agent an amount equal to the Purchase Price in respect of all Notes or portions of Notes so tendered (the “Change of Control Payment”); and

(3) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate stating that all Notes or portions of such Notes have been tendered to and purchased by the Company.

In the event that we make a Change of Control Payment, the paying agent will promptly mail to each Holder of the Notes the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note must be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Company will publicly announce the results of the Offer to Purchase on or as soon as practicable after the Change of Control Payment Date.

The Change of Control purchase feature of the Notes may in certain circumstances make more difficult or discourage a sale or takeover of the Company (or any of its direct or indirect parent companies) and, thus, the removal of incumbent management. The Change of Control purchase feature is a result of negotiations between the Company and the initial purchasers of the Original Notes. We have no present intention to engage in a transaction involving a Change of Control, although it is possible that we could decide to do so in the future. Subject to the limitations discussed below, we could, in the future, enter into certain transactions, including acquisitions, refinancings or other recapitalizations, that would not constitute a Change of Control under the Indenture, but that could increase the amount of indebtedness outstanding at such time or otherwise affect our capital structure or credit ratings. Restrictions on our ability to incur additional Debt are contained in the covenants described under “Certain Covenants—Limitation on Incurrence of Debt” and “Certain Covenants—Limitation on Liens.” Such restrictions in the Indenture can be waived only with the consent of the Holders of a majority in principal amount of the Notes then outstanding. Except for the limitations contained in such covenants, however, the Indenture will not contain any covenants or provisions that may afford Holders of the Notes protection in the event of a highly leveraged transaction.

The Company will be required to comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws or regulations in connection with any repurchase of the Notes as

 

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described above. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of the Indenture, the Company will comply with the applicable securities laws and regulations and will be deemed to have complied with its obligations under the Change of Control provisions of the Indenture by virtue of such compliance.

The Company will not be required to make an Offer to Purchase upon a Change of Control if (i) a third party makes such Offer to Purchase contemporaneously with or upon a Change of Control in the manner, at the times and otherwise in compliance with the requirements of the Indenture and purchases all Notes validly tendered and not withdrawn under such Offer to Purchase or (ii) a notice of redemption has been given pursuant to the Indenture as described above under the caption “Optional Redemption.”

The Company’s ability to pay cash to the Holders of Notes upon a Change of Control may be limited by the Company’s then existing financial resources. Further, the agreements governing the Company’s other Debt contain, and future agreements of the Company may contain, prohibitions of certain events, including events that would constitute a Change of Control. If the exercise by the Holders of Notes of their right to require the Company to repurchase the Notes upon a Change of Control occurred at the same time as a change of control event under one or more of the Company’s other debt agreements, the Company’s ability to pay cash to the Holders of Notes pursuant to an Offer to Purchase may be further limited by the Company’s then existing financial resources. See “Risk Factors—Risks Relating to the Exchange Notes and Our Debt—We may not be able to repurchase the Exchange Notes upon a change of control or pursuant to an asset sale offer, which would result in a default under the Indenture and would adversely affect our business and financial condition.”

Even if sufficient funds were otherwise available, the terms of our Credit Facilities (and other Debt) may prohibit the Company’s prepayment of Notes before their scheduled maturity. Consequently, if the Company is not able to prepay the Credit Facilities or other Debt containing such restrictions or obtain requisite consents from the lenders under the Credit Facilities or the holders of such other Debt, the Company will be unable to fulfill its repurchase obligations upon a Change of Control, resulting in a Default under the Indenture.

In addition, an Offer to Purchase may be made in advance of a Change of Control, or conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of launching the Offer to Purchase.

Certain Covenants

Changes in Covenants When Notes Rated Investment Grade

Set forth below are certain covenants to be contained in the Indenture. If on any date following the date of the Indenture:

(a) the Notes have Investment Grade Ratings from both Rating Agencies; and

(b) no Default or Event of Default shall have occurred and be continuing;

then, beginning on that date (the “Suspension Date”) and subject to the provisions of the following paragraph, the covenants specifically listed under the following captions in this prospectus (collectively, the “Suspended Covenants”) will be immediately suspended:

 

•

“—Limitation on Incurrence of Debt”;

 

•

“—Limitation on Restricted Payments”;

 

•

“—Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries”;

 

•

“—Limitation on Asset Sales”;

 

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•

“—Limitation on Transactions with Affiliates”;

 

•

“—Additional Note Guarantees”; and

 

•

clause (iii) of the first paragraph of “—Consolidation, Merger, Conveyance, Transfer or Lease.”

Notwithstanding the foregoing, if the rating assigned by either such Rating Agency should subsequently decline and the Notes cease to have Investment Grade Ratings from both Rating Agencies, the foregoing covenants will be reinstated as of and from the date of such rating decline (the “Reversion Date”). The period of time between the Suspension Date and the Reversion Date is referred to as the “Suspension Period.”

Calculations under the reinstated “Restricted Payments” covenant will be made as if the “Restricted Payments” covenant had been in effect since the date of the Indenture. Accordingly, Restricted Payments made during the Suspension Period will reduce the amount available to be made as Restricted Payments under clause (c) of the “Limitation on Restricted Payments” covenant, except that no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. On the Reversion Date, Debt Incurred during any Suspension Period will be classified initially to have been Incurred pursuant to clause (ii) of the definition of “Permitted Debt.” Notwithstanding that the Suspended Covenants may be reinstated, no Default will be deemed to have occurred as a result of a failure to comply with such Suspended Covenants during any Suspension Period (or upon termination of any covenant Suspension Period or after that time based solely on events that occurred during the Suspension Period). There can be no assurance that the Notes will ever achieve an investment grade rating or that any such rating will be maintained.

The Company shall provide an Officer’s Certificate to the Trustee indicating the occurrence of any suspended or reinstated covenants. The Trustee shall have no obligation to independently determine or verify if such events have occurred or notify the Holders of any suspended or reinstated covenants. The Trustee may provide a copy of such Officer’s Certificate to any Holder of Notes upon request.

No Subsidiary shall be designated as an Unrestricted Subsidiary during a Suspension Period.

Limitation on Incurrence of Debt

The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt) and will not permit any Restricted Subsidiary to issue Preferred Interests; provided that the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) and Restricted Subsidiaries may issue Preferred Interests if, immediately after giving effect to the Incurrence of such Debt or issue of Preferred Interests and the receipt and application of the proceeds therefrom, the Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries, determined on a pro forma basis as if any such Debt or Preferred Interests (including any other Debt, other than Debt or Preferred Interests Incurred under the revolving portion of a Credit Facility, being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Four Quarter Period (as defined in the definition of “Consolidated Fixed Charge Coverage Ratio”) had been Incurred and the proceeds thereof had been applied at the beginning of the Four Quarter Period, and any other Debt repaid (other than Debt Incurred under the revolving portion of a Credit Facility) since the beginning of the Four Quarter Period had been repaid at the beginning of the Four Quarter Period, would be greater than 2.00 to 1.00; provided, however, that the amount of Debt Incurred and Preferred Interests that may be issued pursuant to the foregoing by Restricted Subsidiaries that are not Guarantors shall not at any one time outstanding exceed $50.0 million.

If, during the Four Quarter Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries, or any Person that subsequently became a Restricted Subsidiary or was merged with or into the Company or any of its Restricted Subsidiaries, shall have engaged in any Asset Sale or Asset Acquisition, Investments, mergers, consolidations or shall have designated any Restricted Subsidiary to

 

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be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, Consolidated Cash Flow Available for Fixed Charges and Consolidated Interest Expense for the Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale or Asset Acquisition, Investments, mergers, consolidations or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or Asset Acquisition, Investments, mergers, consolidations or designation had occurred on the first day of the Four Quarter Period.

If the Debt or Preferred Interests which is the subject of a determination under this provision is Acquired Debt, or Debt or Preferred Interests Incurred in connection with the simultaneous acquisition of any Person, business, property or assets, or Debt or Preferred Interests of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Four Quarter Period) to (x) the Incurrence of such Acquired Debt or such other Debt or Preferred Interests by the Company or any of its Restricted Subsidiaries and (y) the inclusion, in Consolidated Cash Flow Available for Fixed Charges, of the Consolidated Cash Flow Available for Fixed Charges of the acquired Person, business, property or assets or redesignated Subsidiary.

Notwithstanding the first paragraph above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.

For purposes of determining compliance under this “Limitation on Incurrence of Debt” covenant, (x) Debt Incurred under the Credit Agreement and outstanding on the Escrow Release Date shall at all times be treated as Incurred pursuant to clause (i) of the definition of “Permitted Debt” and (y) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included. For purposes of determining any particular amount of Debt under this “Limitation on Incurrence of Debt” covenant, if obligations in respect of letters of credit are Incurred pursuant to the Credit Facilities and are being treated as Incurred pursuant to clause (i) of the definition of Permitted Debt and the letters of credit relate to other Debt, then such other Debt shall not be deemed to have been Incurred. For purposes of determining compliance with this “Limitation on Incurrence of Debt” covenant, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above, including categories of Permitted Debt and under part (a) in the first paragraph of this “Limitation on Incurrence of Debt” covenant, the Company, in its sole discretion, may classify and divide, and from time to time may reclassify and redivide, all or any portion of such item of Debt, except as set forth in clause (x) in the first sentence of this paragraph. For purposes of determining compliance of any non-U.S. dollar-denominated Debt with this covenant, the amount outstanding under U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of the term Debt, or first committed, in the cases of the revolving credit Debt; provided, however, that if such Debt is Incurred to refinance other Debt denominated in the same or different currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Debt does not exceed the principal amount of such Debt being refinanced.

The Company and any Guarantor will not Incur any Debt that pursuant to its terms is contractually subordinate or junior in right of payment to any Debt unless such Debt is contractually subordinated in right of payment to the Notes and the applicable Note Guarantee to the same extent; provided that Debt will not be considered contractually subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority or by virtue of structural subordination.

 

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Limitation on Restricted Payments

The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment unless, at the time of and after giving effect to the proposed Restricted Payment:

(a)         no Default shall have occurred and be continuing or will occur as a consequence of such Restricted Payment;

(b)         immediately after giving effect to such Restricted Payment on a pro forma basis, the Company would be permitted to Incur at least $1.00 of additional Debt (other than Permitted Debt) pursuant to the provisions described in the first paragraph under the “Limitation on Incurrence of Debt” covenant; and

(c)         after giving effect to such Restricted Payment on a pro forma basis, the aggregate amount expended or declared for all Restricted Payments made on or after the Issue Date (excluding Restricted Payments permitted by clauses (ii) through (ix) and (xv) of the next succeeding paragraph), shall not exceed the sum (without duplication) of:

(1)         50% of the Consolidated Net Income (or, if Consolidated Net Income shall be a deficit, minus 100% of such deficit) of the Company accrued on a cumulative basis during the period (taken as one accounting period) from March 1, 2015, and ending on the last day of the fiscal quarter immediately preceding the date of such proposed Restricted Payment for which financial statements are available, plus

(2)         100% of the aggregate net proceeds (including the Fair Market Value of property other than cash) received by the Company subsequent to the Issue Date either (i) as a contribution to its common equity capital or (ii) from the issuance and sale of its Qualified Capital Interests, including Qualified Capital Interests issued upon the conversion or exchange of Debt or Redeemable Capital Interests of the Company Incurred after the Issue Date, and from the exercise of options, warrants or other rights to purchase such Qualified Capital Interests (other than, in each case, Capital Interests or Debt sold to a Subsidiary of the Company and, for the avoidance of doubt, any proceeds or property deemed to be received in consideration for the Convertible Special Stock of the Company issued in connection with the Transaction), plus

(3)         to the extent not otherwise included in the calculation of Consolidated Net Income of the Company for such period, 100% of the net reduction in Investments (other than Permitted Investments and Investments made pursuant to clause (x) of the next paragraph of this covenant) made on and after the Issue Date in any Person other than the Company or a Restricted Subsidiary resulting from dividends, repayment of loans or advances or other transfers of assets, in each case to the Company or any Restricted Subsidiary, plus

(4)         to the extent that any Investment (other than Permitted Investments or Investments in Unrestricted Subsidiaries) that was made on and after the Issue Date is sold for cash or otherwise disposed of, liquidated or repaid for cash or other assets, the lesser of (i) the initial amount of such Investment, or (ii) to the extent not otherwise included in the calculation of Consolidated Net Income of the Company for such period, the net cash return of capital or net Fair Market Value of return of capital with respect to such Investment, less the cost of any such disposition or liquidation, plus

(5)         to the extent that any Unrestricted Subsidiary of the Company designated as such on and after the Issue Date (other than to the extent designated as a Permitted Investment) is redesignated as a Restricted Subsidiary or merged or consolidated with or into the Company or a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Company’s Investment in such Subsidiary as of the date of such redesignation or (ii) such Fair Market Value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary, plus

 

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(6)         100% of any dividends or interest payments received by the Company or a Restricted Subsidiary on and after the Issue Date from an Unrestricted Subsidiary or other Investment (other than a Permitted Investment), to the extent such dividends or interest payments were not otherwise included in the calculation of Consolidated Net Income of the Company for such period.

Notwithstanding whether the foregoing provisions would prohibit the Company and its Restricted Subsidiaries from making a Restricted Payment, the Company and its Restricted Subsidiaries may make the following Restricted Payments:

(i)         the payment of any dividend on Capital Interests in the Company or a Restricted Subsidiary within 60 days after the declaration thereof if, at the declaration date, such payment was permitted by the foregoing provisions of this covenant;

(ii)         the purchase, repurchase, redemption, defeasance or other acquisition or retirement of any Capital Interests of the Company by conversion into, or by or in exchange for, Qualified Capital Interests, or out of net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of other Qualified Capital Interests of the Company; provided that the amount of any net proceeds that are utilized for such Restricted Payment will be excluded from clause (c)(2) of the preceding paragraph;

(iii)         the retirement of any shares of Redeemable Capital Interests by conversion into, or by exchange for, shares of Redeemable Capital Interests, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of other shares of Redeemable Capital Interests;

(iv)         the redemption, defeasance, repurchase or acquisition or retirement for value of any Debt of the Company or a Guarantor that is subordinate in right of payment to the Notes or the applicable Note Guarantee out of the net cash proceeds of a substantially concurrent issue and sale (other than to a Subsidiary of the Company) of (x) new subordinated Refinancing Debt of the Company or such Guarantor, as the case may be, Incurred in accordance with the Indenture or (y) of Capital Interests of the Company; provided that the amount of any net proceeds that are utilized for such Restricted Payment will be excluded from clause (c)(2) of the preceding paragraph;

(v)         the purchase, redemption, retirement or other acquisition for value of Capital Interests in the Company or any direct or indirect parent of the Company (or any payments to a direct or indirect parent company of the Company for the purposes of permitting any such repurchase) held by employees or former employees of the Company or any Restricted Subsidiary (or their estates or beneficiaries under their estates) upon death, disability, retirement or termination of employment or alteration of employment status or pursuant to the terms of any agreement under which such Capital Interests were issued; provided that the aggregate cash consideration paid for such purchase, redemption, retirement or other acquisition of such Capital Interests does not exceed $10.0 million in any calendar year; provided, further, that any unused amounts in any calendar year may be carried forward to one or more future periods subject to a maximum aggregate amount of repurchases made pursuant to this clause (v) not to exceed $15.0 million in any calendar year; provided, however, that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of Qualified Capital Interests of the Company or any direct or indirect parent company of the Company (to the extent contributed to the Company) to employees of the Company and its Restricted Subsidiaries that occurs after the Issue Date; provided, however, that the amount of such cash proceeds utilized for any such repurchase, retirement, other acquisition or dividend will not increase the amount available for Restricted Payments under clause (c) of the first paragraph of this covenant; plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date (provided, however, that the Company may elect to apply all or any portion of the

 

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aggregate increase contemplated by the proviso of this clause (v) in any calendar year and, to the extent any payment described under this clause (v) is made by delivery of Debt and not in cash, such payment shall be deemed to occur only when, and to the extent, the obligor on such Debt makes payments with respect to such Debt);

(vi)         the repurchase of Capital Interests deemed to occur (A) upon the exercise of stock options, warrants or similar rights to the extent such Capital Interests represent a portion of the exercise price of those stock options or warrants, (B) as a result of common shares utilized to satisfy tax withholding obligations upon exercise of stock options or vesting of other equity awards or (C) upon the cancellation of stock options, warrants or other equity awards;

(vii)         cash payments in lieu of issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for the Capital Interests of the Company or a Restricted Subsidiary;

(viii)         the declaration and payment of dividends to holders of any class or series of Redeemable Capital Interests of the Company or any Restricted Subsidiary issued or Incurred in compliance with the covenant described above under “—Limitation on Incurrence of Debt” to the extent such dividends are included in the definition of “Consolidated Fixed Charges”;

(ix)         to the extent no Default or Event of Default has occurred and is continuing or will occur as a consequence thereof, upon the occurrence of a Change of Control or an Asset Sale, the defeasance, redemption, repurchase or other acquisition of any subordinated Debt pursuant to provisions substantially similar to those described under “—Change of Control” and “—Limitation on Asset Sales” at a Purchase Price not greater than 101% of the principal amount thereof (in the case of a Change of Control) or at a percentage of the principal amount thereof not higher than the principal amount applicable to the Notes (in the case of an Asset Sale), plus any accrued and unpaid interest thereon; provided that prior to or contemporaneously with such defeasance, redemption, repurchase or other acquisition, the Company has made an Offer to Purchase with respect to the Notes and has repurchased all Notes validly tendered for payment and not withdrawn in connection therewith;

(x)        to the extent no Default or Event of Default has occurred and is continuing or will occur as a consequence thereof, other Restricted Payments not in excess of the greater of (a) $50.0 million and (b) 4.0% of the Consolidated Net Tangible Assets of the Company and its Restricted Subsidiaries;

(xi)         the purchase, repurchase, redemption, acquisition or retirement for nominal value of common stock or preferred stock purchase rights in each case issued in connection with any shareholder rights plan that may be adopted by the Company;

(xii)         the repurchase or other acquisition of shares of, or options to purchase shares of, common stock of the Company or any of its Subsidiaries pursuant to any share repurchase plan approved by the Company’s Board of Directors; provided, however, that the aggregate amount of such repurchases shall not exceed $2.0 million in any fiscal year, commencing with the fiscal year ending August 31, 2015, provided, further, that any unused amounts in any fiscal year may be carried forward to one or more fiscal years;

(xiii)         the making by the Company of quarterly dividend payments in respect of common stock of the Company of no more than $10.0 million in any fiscal quarter;

(xiv)         the making by the Company of quarterly dividend payments in respect of the Convertible Special Stock in any fiscal quarter of no more than the greater of (a) $2.0 million and (b) the amount of accumulated but unpaid dividends on Convertible Special Stock from the most recent date to which dividends have been paid, or if no dividends have been paid, the date of original issuance of the Convertible Special Stock; and

 

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(xv)         to the extent no Default or Event of Default has occurred and is continuing or will occur as a consequence thereof, other Restricted Payments; provided that the Total Leverage Ratio shall not be in excess of 3.25 to 1.0 immediately after giving effect to such Restricted Payment and the Incurrence of any Debt associated therewith.

If the Company makes a Restricted Payment which, at the time of the making of such Restricted Payment, in the good faith determination of the Company, would be permitted under the requirements of the Indenture, such Restricted Payment shall be deemed to have been made in compliance with the Indenture notwithstanding any subsequent adjustment made in good faith to the Company’s financial statements affecting Consolidated Net Income.

If any Person in which an Investment is made, which Investment constitutes a Restricted Payment when made, thereafter becomes a Restricted Subsidiary in accordance with the Indenture, all such Investments previously made in such Person shall no longer be counted as Restricted Payments for purposes of calculating the aggregate amount of Restricted Payments pursuant to clause (c) of the first paragraph under this “Limitation on Restricted Payments” covenant, in each case to the extent such Investments would otherwise be so counted.

If the Company or a Restricted Subsidiary transfers, conveys, sells, leases or otherwise disposes of an Investment in accordance with the “—Limitation on Asset Sales” covenant, which Investment was originally included in the aggregate amount expended or declared for all Restricted Payments pursuant to clause (c) of the definition of “Restricted Payments,” the aggregate amount expended or declared for all Restricted Payments shall be reduced by the lesser of (i) the net cash proceeds from the transfer, conveyance, sale, lease or other disposition of such Investment or (ii) the amount of the original Investment, in each case, to the extent originally included in the aggregate amount expended or declared for all Restricted Payments pursuant to clause (c) of the definition of “Restricted Payments.”

For purposes of this covenant, if a particular Restricted Payment involves a non-cash payment, including a distribution of assets, then such Restricted Payment shall be deemed to be an amount equal to the cash portion of such Restricted Payment, if any, plus an amount equal to the Fair Market Value of the non-cash portion of such Restricted Payment.

Limitation on Liens

The Company will not, and will not permit any of its Restricted Subsidiaries, directly or indirectly, to enter into, create, incur, assume or suffer to exist any Liens of any kind (other than Permitted Liens) (the “Initial Liens”), on or with respect to any of its property or assets now owned or hereafter acquired or any interest therein or any income or profits therefrom, which Liens secure Debt, without securing the Notes and all other amounts due under the Indenture equally and ratably with (or prior to) the Debt secured by such Lien until such time as such Debt is no longer secured by such Lien; provided that if the Debt so secured is subordinated by its terms to the Notes or a Note Guarantee, the Lien securing such Debt will also be so subordinated by its terms to the Notes and the applicable Note Guarantee at least to the same extent. Any Lien created for the benefit of the Holders of the Notes pursuant to the foregoing sentence shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Initial Lien.

Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries

The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, cause or suffer to exist or become effective or enter into any encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Interests owned by the Company or any Restricted Subsidiary or pay any Debt or other obligation owed to the Company or any Restricted Subsidiary, (ii) make loans or advances to the Company or any Restricted Subsidiary thereof or (iii) transfer any of its property or assets to the Company or any Restricted Subsidiary.

 

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However, the preceding restrictions will not apply to the following encumbrances or restrictions existing under or by reason of:

(a)         any encumbrance or restriction in existence on the Escrow Release Date, including pursuant to the Credit Agreement or by any other agreement or documents entered into in connection with the Credit Agreement and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, or refinancings, of any of the foregoing agreements or documents, provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings, in the good faith judgment of the Company, are not materially more restrictive, taken as a whole, with respect to such dividend or other payment restrictions than those contained in these agreements on the Escrow Release Date or refinancings thereof;

(b)         any encumbrance or restriction pursuant to an agreement relating to an acquisition of property, so long as the encumbrances or restrictions in any such agreement relate solely to the property so acquired (and are not or were not created in anticipation of or in connection with the acquisition thereof);

(c)         any encumbrance or restriction which exists with respect to a Person that becomes a Restricted Subsidiary or merges with or into a Restricted Subsidiary of the Company on or after the Issue Date, which is in existence at the time such Person becomes a Restricted Subsidiary, but not created in connection with or in anticipation of such Person becoming a Restricted Subsidiary, and which is not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person becoming a Restricted Subsidiary;

(d)         any instrument governing Debt or Capital Interests of a Person acquired by the Company or any of the Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Debt or Capital Interests was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, provided that, in the case of Debt, such Debt was permitted by the terms of the Indenture to be Incurred;

(e)         any encumbrance or restriction under the Indenture, the Notes and any Note Guarantees;

(f)         any encumbrance or restriction pursuant to an agreement effecting a permitted renewal, refunding, replacement, refinancing or extension of Debt issued pursuant to an agreement containing any encumbrance or restriction referred to in the foregoing clauses (b) through (e), so long as the encumbrances and restrictions contained in any such renewal, refunding, replacement, refinancing or extension agreement are no less favorable in any material respect to the Holders than the encumbrances and restrictions contained in the agreements governing the Debt being renewed, refunded, replaced, refinanced or extended in the good faith judgment of the Company;

(g)         customary provisions restricting subletting or assignment of any lease, contract, or license of the Company or any Restricted Subsidiary or provisions in agreements that restrict the assignment of such agreement or any rights thereunder;

(h)         any encumbrance or restriction by reason of applicable law, rule, regulation, order, license, permit or similar restriction;

(i)         any encumbrance or restriction under the sale of assets or Capital Interests, including, without limitation, any agreement for the sale or other disposition of a Subsidiary that restricts distributions by that Subsidiary pending its sale or other disposition;

(j)         restrictions on cash and other deposits or net worth imposed by customers under contracts entered into the ordinary course of business;

 

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(k)         customary provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements;

(l)         purchase money obligations (including Capital Lease Obligations) for property acquired in the ordinary course of business that impose restrictions on that property so acquired of the nature described in clause (iii) of the first paragraph hereof;

(m)         Liens securing Debt otherwise permitted to be Incurred under the Indenture, including the provisions of the covenant described above under the caption “—Limitation on Liens” that limit the right of the debtor to dispose of the assets subject to such Liens;

(n)         any Non-Recourse Receivable Subsidiary Indebtedness or other contractual requirements of a Receivable Subsidiary that is a Restricted Subsidiary in connection with a Qualified Receivables Transaction; provided that such restrictions apply only to such Receivable Subsidiary or the receivables and related assets described in the definition of “Qualified Receivables Transaction” which are subject to such Qualified Receivables Transaction;

(o)         any other agreement governing Debt entered into after the Issue Date that contains encumbrances and restrictions that are not materially more restrictive with respect to any Restricted Subsidiary than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date; and

(p)         existing under any agreement relating to Debt Incurred by non-Guarantor Subsidiaries permitted to be Incurred pursuant to the covenant “Limitation on Incurrence of Debt” above and Refinancing Debt in respect thereof; provided that such restrictions are customary for a financing of such type and apply only to the Persons Incurring such Debt (including Guarantees thereof) and their Subsidiaries.

Nothing contained in this “Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries” covenant shall prevent the Company or any Restricted Subsidiary from (i) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in the “Limitation on Liens” covenant or (ii) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Debt of the Company or any of its Restricted Subsidiaries Incurred in accordance with the “Limitation on Incurrence of Debt” and “Limitation on Liens” covenants in the Indenture.

Limitation on Asset Sales

The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:

 

(1)

the Company (or the applicable Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Capital Interests issued or sold or otherwise disposed of; and

 

(2)

at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Eligible Cash Equivalents. For purposes of this clause (2), each of the following will be deemed to be cash:

 

(3)

any liabilities, as shown on the most recent consolidated balance sheet of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee), that are assumed (contractually or otherwise) by the person acquiring such assets to the extent that the Company and its Restricted Subsidiaries have no further liability with respect to such liabilities;

 

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(4)

any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of their receipt, to the extent of the cash received in that conversion;

 

(5)

any stock or assets of the kind referred to in clauses (ii) or (iv) of the next paragraph of this covenant; and

 

(6)

any Designated Non-Cash Consideration received by the Company or its Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (d) that is at that time outstanding in the aggregate, not to exceed the greater of (i) $35.0 million and (ii) 2.75% of the Consolidated Net Tangible Assets of the Company and its Restricted Subsidiaries, in each case at the time of the receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration measured at the time received and without giving effect to subsequent changes in value.

Within 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Cash Proceeds at its option:

(i)         to permanently repay Debt and, if the Obligation repaid is revolving credit Debt, to correspondingly reduce commitments with respect thereto (A) under the Credit Facilities, (B) other Debt ranking pari passu with the Notes; provided that, to the extent the Company redeems, repays or repurchases pari passu Debt pursuant to this clause (i)(B), the Company shall equally and ratably reduce Obligations under the Notes, (C) other Debt of the Company, other than Debt that is owed to a Restricted Subsidiary, which is secured by a Lien that is permitted by the Indenture, and to correspondingly reduce commitments with respect thereto (other than Debt subordinated by its terms to the Notes) and (D) Debt of any Restricted Subsidiary that is not a Guarantor of the Notes;

(ii)         to acquire all or substantially all of the assets of, or any Capital Interests of, another Permitted Business, if, after giving effect to any such acquisition of Capital Interests, the Permitted Business is or becomes a Restricted Subsidiary of the Company;

(iii)         to make a capital expenditure in or that is used or useful in a Permitted Business or to make expenditures for maintenance, repair or improvement of existing properties and assets in accordance with the provisions of the Indenture;

(iv)         to acquire other assets (other than inventory) that are used or useful in a Permitted Business; or

(v)         any combination of the foregoing.

In addition to the foregoing, any acquisition of the type described in clauses (ii) or (iv) and/or any capital expenditure described in clause (iii), in each case made within 180 days prior to an Asset Sale, shall be deemed to satisfy this paragraph with respect to the application of the Net Cash Proceeds from such Asset Sale.

Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph of this covenant or that is not segregated from the general funds of the Company for investment as permitted by the foregoing clauses (ii), (iii) and (iv) in respect of a project that shall have been commenced, and for which binding contractual commitments have been entered into, prior to the end of such 365-day period and that shall not have been completed or abandoned shall constitute “Excess Proceeds”; provided, however, that the amount of any Net Cash Proceeds that cease to be so segregated as contemplated above and any Net Cash Proceeds that are segregated in respect of a project that is abandoned or completed shall also constitute “Excess

 

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Proceeds” at the time any such Net Cash Proceeds cease to be so segregated or at the time the relevant project is so abandoned or completed, as applicable; provided further, however, that the amount of any Net Cash Proceeds that continues to be segregated for investment and that is not actually reinvested within 540 days from the date of the receipt of such Net Cash Proceeds shall also constitute “Excess Proceeds.”

When the aggregate amount of Excess Proceeds exceeds $40.0 million, the Company will (and at any time the Company may), within 30 days, make an Offer to Purchase to all Holders of Notes (with a copy to the Trustee) and to all holders of other Debt ranking pari passu with the Notes containing provisions similar to those set forth in the Indenture with respect to asset sales, equal to the Excess Proceeds. The offer price in any Offer to Purchase will be equal to 100% of the principal amount plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Offer to Purchase, the Company may use those funds for any purpose not otherwise prohibited by the Indenture and they will no longer constitute Excess Proceeds. If the aggregate principal amount of Notes and other pari passu debt tendered into such Offer to Purchase exceeds the amount of Excess Proceeds, selection of such Notes for purchase will be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Notes are listed, or, if such Notes are not so listed, on a pro rata basis or by lot or such similar method in accordance with the procedures of DTC; provided that no Notes of $2,000 or less shall be purchased in part. Upon completion of each Offer to Purchase, the amount of Excess Proceeds will be reset at zero. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by the Indenture.

The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Offer to Purchase. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of the Indenture, the Company will comply with the applicable securities laws and regulations and will be deemed to have complied with its obligations under the Asset Sale provisions of the Indenture by virtue of such compliance.

Limitation on Transactions with Affiliates

The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction or series of related transactions, contract, agreement, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each of the foregoing, an “Affiliate Transaction”) involving aggregate consideration in excess of $10.0 million, unless:

(i)         such Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could reasonably be expected to have been obtained in a comparable arm’s-length transaction by the Company or such Restricted Subsidiary with an unaffiliated party;

(ii)         with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $30.0 million, the Company delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Company approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (i) above; and

(iii)         with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, the Company obtains and delivers to the Trustee a written opinion of a nationally recognized investment banking, accounting or appraisal firm stating that the transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.

 

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The foregoing limitations do not limit, and shall not apply to:

(1)         Restricted Payments that are permitted by the provisions of the Indenture described above under “—Limitation on Restricted Payments” and Permitted Investments permitted under the Indenture;

(2)         the payment of reasonable and customary compensation and indemnities and other benefits to members of the Board of Directors of the Company or a Restricted Subsidiary who are outside directors;

(3)         the payment of reasonable and customary compensation (including awards or grants in cash or securities and other payments) and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of the Company or any Restricted Subsidiary as determined by the Board of Directors thereof in good faith;

(4)         transactions between or among the Company and/or its Restricted Subsidiaries;

(5)         any agreement or arrangement as in effect on the Issue Date or on the Escrow Release Date and any amendment or modification thereto so long as such amendment or modification is not more disadvantageous to the Holders of the Notes in any material respect;

(6)         any contribution of capital to the Company;

(7)         transactions permitted by, and complying with, the provisions of the Indenture described below under “—Consolidation, Merger, Conveyance, Transfer or Lease”;

(8)         any transaction with a joint venture, partnership, limited liability company or other entity that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in such joint venture, partnership, limited liability company or other entity;

(9)         transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case, in the ordinary course of business and on terms that are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, as determined in good faith by the Company, than those that could reasonably be expected to be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Company;

(10)         transactions effected as part of a Qualified Receivables Transaction;

(11)         loans (or Guarantees of third-party loans) and advances to officers, directors and employees of the Company and Subsidiaries in an aggregate amount not to exceed $10.0 million at any one time outstanding for travel, entertainment, relocation and analogous ordinary business purposes;

(12)         the issuance or sale of any Capital Interests (other than Redeemable Capital Interests) of the Company; and

(13)         for the avoidance of doubt, the Transactions and the payment of fees and expenses in connection with the Transactions.

Provision of Financial Information

Whether or not required by the rules or regulations of the Commission, so long as any Notes are outstanding, the Company will furnish to the Trustee and the Holders of Notes, or file electronically with the Commission through the Commission’s Electronic Data Gathering, Analysis and Retrieval System (or any successor system), within the time periods specified in the Commission’s rules and regulations (after giving effect to any grace period provided by Rule 12b-25 under the Exchange Act):

(1)         all quarterly and annual financial information that would be required to be contained in a filing with the Commission on Forms 10-Q and 10-K if the Company were required to file such Forms,

 

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including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the annual information only, a report on the annual financial statements by the Company’s certified independent accountants; and

(2)         all current reports that would be required to be filed (as opposed to furnished) with the Commission on Form 8-K if the Company were required to file such reports.

In addition, whether or not required by the Commission, the Company will file a copy of all of the information and reports referred to in clauses (1) and (2) above with the Commission for public availability within the time periods specified in the Commission’s rules and regulations (after giving effect to any grace period provided by Rule 12b-25 under the Exchange Act) (unless the Commission will not accept such a filing) and make such information available to prospective investors. If the Commission will not accept the Company’s filings for any reason, the Company will post the reports referred to in the preceding paragraphs on its website or another website within the time periods that would apply if the Company were required to file those reports with the Commission.

If the Company has designated any of its Subsidiaries (other than a Receivables Subsidiary) as Unrestricted Subsidiaries, then the quarterly and annual financial information required by the preceding paragraph shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Company.

Delivery of the reports and documents described above to the Trustee is for informational purposes only, and the Trustee’s receipt of such reports and documents shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate).

In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision).

Additional Note Guarantees

If, on or after the Issue Date (unless such acquired or created Domestic Subsidiary is properly designated as an Unrestricted Subsidiary):

(1)         the Company or any of its Domestic Subsidiaries acquires or creates another Domestic Subsidiary that incurs any Debt under the Credit Agreement, any syndicated loan or capital markets Debt or Guarantees any such Debt of the Company or any of its Domestic Subsidiaries; or

(2)         any Domestic Subsidiary of the Company incurs Debt under the Credit Agreement, any syndicated loan or capital markets Debt or guarantees any such Debt of the Company or any of its Domestic Subsidiaries and that Domestic Subsidiary was not a Guarantor immediately prior to such incurrence or Guarantee (an “Additional Obligor”),

then that newly acquired or created Domestic Subsidiary or Additional Obligor, as the case may be, will become a Guarantor and Guarantee the Company’s Obligations in respect of the Notes and execute a supplemental indenture and deliver an opinion of counsel satisfactory to the Trustee within 30 days after the date on which it was acquired or created or incurred, as the case may be.

 

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Limitation on Designation of Unrestricted Subsidiaries

The Company may designate any Subsidiary of the Company to be an “Unrestricted Subsidiary” as provided below, in which event such Subsidiary and each other Person that is then or thereafter becomes a Subsidiary of such Subsidiary will be deemed to be an Unrestricted Subsidiary.

The Company may designate any Subsidiary to be an Unrestricted Subsidiary unless such Subsidiary owns any Capital Interests of, or owns or holds any Lien on any property of, the Company or any other Restricted Subsidiary of the Company; provided that either:

(x)         the Subsidiary to be so designated has total assets of $1,000 or less; or

(y)         the Company could make a Restricted Payment (other than pursuant to clause (xiii) of the second paragraph thereof) at the time of designation in an amount equal to the Fair Market Value of such Subsidiary pursuant to the “—Limitation on Restricted Payments” covenant and such amount is thereafter treated as a Restricted Payment for the purpose of calculating the amount available for Restricted Payments thereunder.

An Unrestricted Subsidiary may be designated as a Restricted Subsidiary if (i) all the Debt of such Unrestricted Subsidiary could be Incurred under the “—Limitation on Incurrence of Debt” covenant, (ii) all the Liens on the property and assets of such Unrestricted Subsidiary could be incurred pursuant to the “—Limitation on Liens” covenant and (iii) immediately after giving effect to such designation on a pro forma basis, the Company would be permitted to Incur at least $1.00 of additional Debt (other than Permitted Debt) pursuant to the provisions described in the first paragraph under the “Limitation on Incurrence of Debt” covenant.

Consolidation, Merger, Conveyance, Transfer or Lease

The Company will not in any transaction or series of transactions, consolidate with or merge into any other Person (other than a merger of a Restricted Subsidiary into the Company in which the Company is the continuing Person or the merger of a Restricted Subsidiary into or with another Restricted Subsidiary or another Person that as a result of such transaction becomes or merges into a Restricted Subsidiary), or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of the assets of the Company and its Restricted Subsidiaries (determined on a consolidated basis), taken as a whole, to any other Person, unless:

(i)         either: (a) the Company shall be the continuing Person or (b) the Person (if other than the Company) formed by such consolidation or into which the Company is merged, or the Person that acquires, by sale, assignment, conveyance, transfer, lease or other disposition, all or substantially all of the property and assets of the Company (such Person, the “Surviving Entity”), (1) shall be a corporation, partnership, limited liability company or similar entity organized and validly existing under the laws of the United States, any political subdivision thereof or any state thereof or the District of Columbia and (2) shall expressly assume, by a supplemental indenture, the due and punctual payment of all amounts due in respect of the principal of (and premium, if any) and interest on all the Notes and the performance of the covenants and obligations of the Company under the Indenture; provided that at any time the Company or its successor is not a corporation, there shall be a co-issuer of the Notes that is a corporation;

(ii)         immediately after giving effect to such transaction or series of transactions on a pro forma basis (including, without limitation, any Debt Incurred or anticipated to be Incurred in connection with or in respect of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing or would result therefrom;

(iii)         immediately after giving effect to any such transaction or series of transactions on a pro forma basis (including, without limitation, any Debt Incurred or anticipated to be Incurred in connection with or in respect of such transaction or series of transactions) as if such transaction or series of transactions had occurred on the first day of the determination period, the Company (or the Surviving

 

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Entity if the Company is not continuing) could Incur $1.00 of additional Debt (other than Permitted Debt) under the provisions described in the first paragraph of “—Limitation on Incurrence of Debt” or the Fixed Charge Coverage Ratio would not be less than immediately prior to such transaction or series of transactions;

(iv)         the Company (or the Surviving Entity if the Company is not continuing) delivers, or causes to be delivered, to the Trustee, in form satisfactory to the Trustee, an Officer’s Certificate and an opinion of counsel, each stating that such consolidation, merger, sale, conveyance, assignment, transfer, lease or other disposition complies with the requirements of the Indenture; and

(v)         if the Company is not the Surviving Entity, each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Guarantee shall apply to its obligations under the Indenture and the Notes.

Notwithstanding the foregoing, failure to satisfy the requirements of the preceding clauses (ii) and (iii) will not prohibit:

(a)         a merger between the Company and a Restricted Subsidiary that is a wholly owned Subsidiary of the Company; or

(b)         a merger between the Company and an Affiliate solely for the purpose of converting the Company into a corporation organized under the laws of the United States or any political subdivision or state thereof so long as the amount of Debt of the Company and its Restricted Subsidiaries is not increased thereby.

No Guarantor may sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person) another Person, unless:

(1)         immediately after giving effect to that transaction, no Default or Event of Default exists;

(2)         either (a) the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) assumes all the obligations of such Guarantor under the Indenture, pursuant to a supplemental indenture or (b) the Net Proceeds of such sale or other disposition are applied in accordance with the applicable provisions of the Indenture, if required; and

(3)         the Guarantor delivers, or causes to be delivered, to the Trustee an Officer’s Certificate and an opinion of counsel, each stating that such consolidation, merger, sale, conveyance, assignment, transfer, lease or other disposition complies with the requirements of the Indenture.

For all purposes of the Indenture and the Notes, Subsidiaries of any Surviving Entity will, upon such transaction or series of transactions, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to the Indenture and all Debt, and all Liens on property or assets, of the Surviving Entity and its Subsidiaries that was not Debt, or were not Liens on property or assets, of the Company and its Subsidiaries immediately prior to such transaction or series of transactions shall be deemed to have been Incurred upon such transaction or series of transactions.

Upon any transaction or series of transactions involving the Company that are of the type described in, and are effected in accordance with, conditions described in the immediately preceding paragraphs in which the Company is not the Surviving Entity, the Surviving Entity shall succeed to, and be substituted for, and may exercise every right and power of the Company under the Indenture with the same effect as if such Surviving Entity had been named as the Company therein; and when a Surviving Entity duly assumes all of the obligations and covenants of the Company pursuant to the Indenture and the Notes, except in the case of a lease, the predecessor Person shall be relieved of all such obligations.

 

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Limitation on Business Activities

The Company will not, and will not permit any Restricted Subsidiary to, engage in any business other than a Permitted Business.

Events of Default

Each of the following is an “Event of Default” under the Indenture:

(1)         default in the payment in respect of the principal of (or premium, if any, on) any Note when due and payable (whether at Stated Maturity or upon repurchase, acceleration, redemption or otherwise);

(2)         default in the payment of any interest upon any Note when it becomes due and payable, and continuance of such default for a period of 30 days;

(3)         failure to perform or comply with the Indenture provisions described under (a) “—Provision of Financial Information” and continuance of such failure to perform or comply for a period of 150 days and (b) the last sentence of “—Additional Note Guarantees,” in each case, after written notice thereof has been given to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the outstanding Notes;

(4)         except as permitted by the Indenture, any Note Guarantee of any Significant Subsidiary (or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary), shall for any reason cease to be, or it shall be asserted by any Guarantor or the Company not to be, in full force and effect and enforceable in accordance with its terms;

(5)         default in the performance, or breach, of any covenant or agreement of the Company or any Guarantor in the Indenture (other than a covenant or agreement a default in whose performance or whose breach is specifically dealt with in clauses (1), (2), (3) or (4) above), and continuance of such default or breach for a period of 60 days after written notice thereof has been given to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the outstanding Notes;

(6)         a default or defaults under any bonds, debentures, notes or other evidences of Debt (other than the Notes) by the Company or any Restricted Subsidiary having, individually or in the aggregate, a principal or similar amount outstanding of at least $50.0 million, whether such Debt now exists or shall hereafter be created, which default or defaults shall have resulted in the acceleration of the maturity of such Debt prior to its express maturity or shall constitute a failure to pay at least $50.0 million of such Debt when due and payable after the expiration of any applicable grace period with respect thereto;

(7)         the entry against the Company or any Restricted Subsidiary that is a Significant Subsidiary (or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary) of a final judgment or final judgments for the payment of money in an aggregate amount in excess of $50.0 million (net of any amounts covered by insurance issued by reputable insurance companies where coverage has not been disclaimed or denied), by a court or courts of competent jurisdiction, which judgment or judgments remain undischarged, unwaived, unstayed, unbonded or unsatisfied for a period of 60 consecutive days; or

(8)         certain events in bankruptcy, insolvency or reorganization affecting the Company or any Significant Subsidiary (or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary).

 

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If an Event of Default (other than an Event of Default specified in clause (8) above with respect to the Company) occurs and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the outstanding Notes may declare the principal of the Notes and any accrued interest on the Notes to be due and payable immediately by a notice in writing to the Company (and to the Trustee if given by Holders); provided, however, that after such acceleration, but before a judgment or decree based on acceleration, the Holders of a majority in aggregate principal amount of the outstanding Notes may, under certain circumstances, rescind and annul such acceleration if all Events of Default, other than the nonpayment of accelerated principal of or interest or on the Notes, have been cured or waived as provided in the Indenture and all amounts owing to the Trustee have been paid.

In the event of a declaration of acceleration of the Notes solely because an Event of Default described in clause (6) above has occurred and is continuing, the declaration of acceleration of the Notes shall be automatically rescinded and annulled if the event of default or payment default triggering such Event of Default pursuant to clause (6) shall be remedied or cured by the Company or a Restricted Subsidiary of the Company or waived by the holders of the relevant Debt within 20 business days after the declaration of acceleration with respect thereto and if the rescission and annulment of the acceleration of the Notes would not conflict with any judgment or decree of a court of competent jurisdiction obtained by the Trustee for the payment of amounts due on the Notes.

If an Event of Default specified in clause (8) above occurs with respect to the Company, the principal of and any accrued interest on the Notes then outstanding shall ipso facto become immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. For further information as to waiver of defaults, see “—Amendment, Supplement and Waiver.” The Trustee may withhold from Holders notice of any Default (except Default in payment of principal of, premium, if any, and interest) if the Trustee determines that such Default is cured or waived.

No Holder of any Note will have any right to institute any proceeding with respect to the Indenture or for any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice of a continuing Event of Default and unless also the Holders of at least 25% in aggregate principal amount of the outstanding Notes shall have made written request to the Trustee, and provided indemnity reasonably satisfactory to the Trustee, to institute such proceeding as Trustee, and the Trustee shall not have received from the Holders of a majority in aggregate principal amount of the outstanding Notes a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days. Such limitations do not apply, however, to a suit instituted by a Holder of a Note directly (as opposed to through the Trustee) for enforcement of payment of the principal of (and premium, if any) or interest on such Note on or after the respective due dates expressed in such Note.

The Company will be required to furnish to the Trustee annually a statement as to the performance of certain obligations under the Indenture and as to any default in such performance. The Company also is required to notify the Trustee if it becomes aware of the occurrence of any Default or Event of Default that has not been cured or waived.

Amendment, Supplement and Waiver

Without the consent of any Holders, the Company, the Guarantors (except that any existing Guarantors need not execute a supplemental indenture entered into pursuant to clause (7) below) and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental to the Indenture and any Note Guarantees for any of the following purposes:

(1)         to evidence the succession of another Person to the Company or any Guarantor and the assumption by any such successor of the covenants of the Company or Guarantor in the Indenture, any Note Guarantees and the Notes;

 

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(2)         to add to the covenants of the Company or the Guarantors for the benefit of the Holders, to surrender any right or power herein conferred upon the Company or the Guarantors, or to secure the Notes;

(3)         to add additional Events of Default;

(4)         to provide for uncertificated Notes in addition to or in place of certificated Notes;

(5)         to evidence and provide for the acceptance of appointment under the Indenture by a successor Trustee;

(6)         to provide for or confirm the issuance of Additional Notes in accordance with the terms of the Indenture;

(7)         to add a Guarantor or to release a Guarantor in accordance with the Indenture, or to modify the Indenture in connection with the addition of any Guarantor and Note Guarantee;

(8)         to cure any ambiguity, defect, omission, mistake or inconsistency;

(9)         to make any other provisions with respect to matters or questions arising under the Indenture, provided that such actions pursuant to this clause (9) shall not adversely affect the interests of the Holders in any material respect, as determined in good faith by the Board of Directors of the Company;

(10)         to conform the text of the Indenture or the Notes to any provision in “Description of Notes” of the offering memorandum related to the private sale of the Original Notes to the extent that the Trustee has received an Officer’s Certificate stating that such text constitutes an unintended conflict with the description of the corresponding provision in “Description of Notes” of the offering memorandum related to the private sale of the Original Notes; or

(11)         to effect or maintain the qualification of the Indenture under the TIA.

With the consent of the Holders of not less than a majority in aggregate principal amount of the outstanding Notes, the Company, the Guarantors and the Trustee may enter into an indenture or indentures supplemental to the Indenture or amend the Note Guarantees for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or the Notes or of modifying in any manner the rights of the Holders of the Notes under the Indenture, including the definitions therein; provided, however, that no such supplemental indenture or amendment shall, without the consent of the Holder of each outstanding Note affected thereby:

(1)         change the Stated Maturity of any Note or of any installment of interest on any Note, or reduce the amount payable in respect of the principal thereof or the rate of interest thereon or any premium payable thereon, or reduce the amount that would be due and payable on acceleration of the maturity thereof, or the coin or currency in which, any Note or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof, or change the date on which any Notes may be subject to redemption or reduce the Redemption Price therefor;

(2)         reduce the percentage in aggregate principal amount of the outstanding Notes, the consent of whose Holders is required for any such supplemental indenture or amendment, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of the Indenture or certain defaults thereunder and their consequences) provided for in the Indenture;

 

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(3)         modify the obligations of the Company to make Offers to Purchase upon a Change of Control or from the Excess Proceeds of Asset Sales after the occurrence of such Change of Control or such Asset Sale;

(4)         modify or change any provision of the Indenture affecting the ranking of the Notes or any Note Guarantee in a manner adverse to the Holders of the Notes;

(5)         modify any of the provisions of this paragraph or provisions relating to waiver of defaults or certain covenants, except to increase any such percentage required for such actions or to provide that certain other provisions of the Indenture cannot be modified or waived without the consent of the Holder of each outstanding Note affected thereby; or

(6)         release any Note Guarantees required to be maintained under the Indenture (other than in accordance with the terms of the Indenture).

The Holders of not less than a majority in aggregate principal amount of the outstanding Notes may on behalf of the Holders of all the Notes waive any past Default under the Indenture and its consequences, except a Default:

(1)         in any payment in respect of the principal of (or premium, if any) or interest on any Notes (including any Note which is required to have been purchased pursuant to an Offer to Purchase which has been made by the Company), or

(2)         in respect of a covenant or provision hereof which under the Indenture cannot be modified or amended without the consent of the Holder of each outstanding Note affected.

Satisfaction and Discharge of the Indenture

The Company and the Guarantors may terminate the obligations under the Indenture when:

(1)         either: (A) all Notes theretofore authenticated and delivered have been delivered to the Trustee for cancellation, or (B) all such Notes not theretofore delivered to the Trustee for cancellation (i) have become due and payable or (ii) will become due and payable within one year or are to be called for redemption within one year (a “Discharge”) under irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and the Company has irrevocably deposited or caused to be deposited with the Trustee funds in an amount sufficient to pay and discharge the entire indebtedness on the Notes, not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest to the Stated Maturity or date of redemption;

(2)         the Company or any Guarantor has paid or caused to be paid all other sums then due and payable under the Indenture by the Company;

(3)         the deposit will not result in a breach or violation of, or constitute a default under, any other material instrument to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound;

(4)         the Company has delivered irrevocable instructions to the Trustee under the Indenture to apply the deposited money toward the payment of the Notes at maturity or on the redemption date, as the case may be; and

(5)         the Company has delivered to the Trustee an Officer’s Certificate and an opinion of counsel reasonably acceptable to the Trustee, each stating that all conditions precedent under the Indenture relating to the Discharge have been complied with.

 

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Defeasance

The Company may elect, at its option, to have its obligations discharged with respect to the outstanding Notes (“defeasance”). Such defeasance means that the Company will be deemed to have paid and discharged the entire indebtedness represented by the outstanding Notes, except for:

(1)         the rights of Holders of such Notes to receive payments in respect of the principal of and any premium and interest on such Notes when payments are due,

(2)         the Company’s obligations with respect to such Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for security payments held in trust,

(3)         the rights, powers, trusts, duties and immunities of the Trustee,

(4)         the Company’s right of optional redemption, and

(5)         the defeasance provisions of the Indenture.

In addition, the Company may elect, at its option, to have its obligations released with respect to certain covenants, including, without limitation, its obligation to make Offers to Purchase in connection with Asset Sales and any Change of Control, in the Indenture (“covenant defeasance”) and any omission to comply with such obligation shall not constitute a Default or an Event of Default with respect to the Notes. In the event covenant defeasance occurs, certain events (not including non-payment, bankruptcy and insolvency events) described under “Events of Default” will no longer constitute an Event of Default with respect to the Notes.

In order to exercise either defeasance or covenant defeasance with respect to outstanding Notes:

(1)         the Company must irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the Holders of such Notes: (A) money in an amount, (B) U.S. government obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (C) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, and interest on such Notes on the Stated Maturity thereof or (if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company) the redemption date thereof, as the case may be, in accordance with the terms of the Indenture and such Notes;

(2)         in the case of defeasance, the Company shall have delivered to the Trustee an opinion of counsel stating that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of the Indenture, there has been a change in the applicable United States federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit, defeasance and discharge to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, defeasance and discharge were not to occur;

(3)         in the case of covenant defeasance, the Company shall have delivered to the Trustee an opinion of counsel to the effect that the Holders of such outstanding Notes will not recognize gain or loss

 

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for United States federal income tax purposes as a result of the deposit and covenant defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and covenant defeasance were not to occur;

(4)         no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien to secure such borrowing);

(5)         such defeasance or covenant defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the TIA (assuming all Notes are in default within the meaning of such Act);

(6)         such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than the Indenture) to which the Company is a party or by which the Company is bound; and

(7)         the Company shall have delivered to the Trustee an Officer’s Certificate and an opinion of counsel, each stating that all conditions precedent with respect to such defeasance or covenant defeasance have been complied with.

Notwithstanding the foregoing, the opinion of counsel required by clause (2) above with respect to a defeasance need not to be delivered if all Notes not therefore delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable at Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.

In connection with a Discharge, in the event the Company becomes insolvent within the applicable preference period after the date of deposit, monies held for the payment of the Notes may be part of the bankruptcy estate of the Company, disbursement of such monies may be subject to the automatic stay of the bankruptcy code and monies disbursed to Holders may be subject to disgorgement in favor of the Company’s estate. Similar results may apply upon the insolvency of the Company during the applicable preference period following the deposit of monies in connection with defeasance.

The Trustee

The Trustee from time to time in its capacity as a banking institution may extend credit to the Company in the normal course of business. Except during the continuance of an Event of Default, the Trustee will perform only such duties as are specifically set forth in the Indenture.

The Indenture contains certain limitations in the TIA on the rights of the Trustee, should it become a creditor of the Company, to obtain payment of claims in certain cases or to realize on certain property received in respect of any such claim as security or otherwise. The Trustee will be permitted to engage in other transactions; however, if it acquires any “conflicting interest” (as defined in the TIA) it must eliminate such conflict within 90 days, apply to the Commission for permission to continue or resign.

The Holders of a majority in principal amount of the outstanding Notes will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee, subject to certain exceptions. The Indenture provides that in case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by the Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs. Subject to such provisions,

 

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the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by the Indenture at the request or direction of any of the Holders pursuant to the Indenture, unless such Holders shall have provided to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.

No recourse may, to the full extent permitted by applicable law, be taken, directly or indirectly, with respect to the obligations of the Company or the Guarantors on the Notes or under the Indenture or any related documents, any certificate or other writing delivered in connection therewith, against (i) the Trustee in its individual capacity, (ii) any partner, owner, beneficiary, agent, officer, director, employee, agent, successor or assign of the Trustee, each in its individual capacity, or (iii) any holder of equity in the Trustee.

No Personal Liability of Shareholders, Partners, Officers or Directors

No director, officer, employee, shareholder, Affiliate, general or limited partner or incorporator, past, present or future, of the Company, the Guarantors or any of their Subsidiaries, as such or in such capacity, shall have any personal liability for any obligations of the Company or the Guarantors under the Notes, any Note Guarantee or the Indenture by reason of his, her or its status as such director, officer, employee, shareholder, Affiliate, general or limited partner or incorporator. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes.

Governing Law

The Indenture, the Notes and any Note Guarantees are governed by, and will be construed in accordance with, the laws of the State of New York. The Indenture provides that the Company, the Guarantors, the Trustee, and each holder of a Note by its acceptance thereof, irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to the Indenture, the Notes, the Note Guarantees or any transaction contemplated thereby.

Certain Definitions

Set forth below is a summary of certain of the defined terms used in the Indenture. Reference is made to the Indenture for the full definition of all such terms, as well as any capitalized term used herein for which no definition is provided.

“Acquired Business” means HGGC Citadel Plastics Holdings, Inc., a Delaware corporation, and its subsidiaries.

“Acquired Debt” means Debt (1) of a Person (including an Unrestricted Subsidiary) existing at the time such Person becomes a Restricted Subsidiary or (2) assumed in connection with the acquisition of assets from such Person. Acquired Debt shall be deemed to have been Incurred, with respect to clause (1) of the preceding sentence, on the date such Person becomes a Restricted Subsidiary and, with respect to clause (2) of the preceding sentence, on the date of consummation of such acquisition of assets.

“Affiliate” of any Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings that correspond to the foregoing.

“Applicable Premium” means, with respect to a Note at any date of redemption, the greater of (1) 1.0% of the then outstanding principal amount of such Note and (2) the excess of (A) the present value at such redemption date of (i) the redemption price of the Note at June 1, 2018 (such redemption price being set forth in the table appearing above under the caption “—Optional Redemption”) plus (ii) all required interest payments

 

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due on the Note through June 1, 2018 (excluding accrued but unpaid interest), computed using a discount rate equal to the Treasury Rate as of such redemption date (or in the case of a satisfaction and discharge or defeasance, as of the date on which funds are deposited with the Trustee) plus 50 basis points over (B) the then outstanding principal amount of such Note.

“Asset Acquisition” means:

(a)         an Investment by the Company or any Restricted Subsidiary in any other Person pursuant to which such Person shall become a Restricted Subsidiary, or shall be merged with or into the Company or any Restricted Subsidiary; or

(b)         the acquisition by the Company or any Restricted Subsidiary of the assets of any Person which constitute all or substantially all of the assets of such Person, any division or line of business of such Person or any other properties or assets of such Person other than in the ordinary course of business and consistent with past practices.

“Asset Sale” means any transfer, conveyance, sale, lease or other disposition (including, without limitation, dispositions pursuant to any consolidation or merger) by the Company or any of its Restricted Subsidiaries to any Person (other than to the Company or one or more of its Restricted Subsidiaries) in any single transaction or series of related transactions of:

(i)         Capital Interests in a Restricted Subsidiary (other than (i) directors’ qualifying shares or shares or interests required to be held by foreign nationals pursuant to local law and (ii) Preferred Interests of Restricted Subsidiaries that is issued in compliance with “—Certain Covenants—Limitation on Incurrence of Debt”);

(ii)         any other property or assets (other than in the normal course of business, including any sale or other disposition of obsolete or permanently retired equipment);

provided, however, that the term “Asset Sale” shall exclude:

(a)         any asset disposition permitted by the provisions described under “Consolidation, Merger, Conveyance, Transfer or Lease” that constitutes a disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries taken as a whole;

(b)         any transfer, conveyance, sale, lease or other disposition of property or assets, the gross proceeds of which (exclusive of indemnities) do not exceed in any one or related series of transactions $20.0 million;

(c)         sales or other dispositions of cash or Eligible Cash Equivalents;

(d)         sales of interests in or assets of Unrestricted Subsidiaries;

(e)         the disposition of assets that, in the good faith judgment of the Company, are no longer used or useful in the business of such entity;

(f)         a Restricted Payment or Permitted Investment that is otherwise permitted by the Indenture;

(g)         any trade-in of equipment in exchange for other equipment; provided that, in the good faith judgment of the Company, the Company or such Restricted Subsidiary receives equipment having a Fair Market Value equal to or greater than the equipment being traded in;

(h)         the concurrent purchase and sale or exchange of Related Business Assets or a combination of Related Business Assets between the Company or any of its Restricted Subsidiaries and

 

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another person to the extent that the Related Business Assets received by the Company or its Restricted Subsidiaries are of equivalent or greater Fair Market Value than the Related Business Assets transferred;

(i)         the creation of a Lien (but not the sale or other disposition of the property subject to such Lien);

(j)         leases or subleases in the ordinary course of business to third persons not interfering in any material respect with the business of the Company or any of its Restricted Subsidiaries and otherwise in accordance with the provisions of the Indenture;

(k)         any disposition by a Subsidiary to the Company or by the Company or a Subsidiary to a Restricted Subsidiary;

(l)         dispositions of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business and consistent with past practice;

(m)         licensing or sublicensing of intellectual property or other general intangibles in accordance with industry practice in the ordinary course of business;

(n)         any transfer of accounts receivable, or a fractional undivided interest therein, by a Receivable Subsidiary in a Qualified Receivables Transaction;

(o)         any release of any intangible claims or rights in connection with a lawsuit, dispute or other controversy;

(p)         sales of accounts receivable to a Receivable Subsidiary pursuant to a Qualified Receivables Transaction for the Fair Market Value thereof; including cash or other financial accommodation, such as the provision of letters of credit by such Receivable Subsidiary on behalf of or for the benefit of the transferor of such accounts receivable (for the purposes of this clause (p), Purchase Money Notes will be deemed to be cash); or

(q)         foreclosures on assets to the extent they would not otherwise result in a Default or Event of Default.

For purposes of this definition, any series of related transactions that, if effected as a single transaction, would constitute an Asset Sale shall be deemed to be a single Asset Sale effected when the last such transaction which is a part thereof is effected.

“Average Life” means, as of any date of determination, with respect to any Debt, the quotient obtained by dividing (i) the sum of the products of (x) the number of years from the date of determination to the dates of each successive scheduled principal payment (including any sinking fund or mandatory redemption payment requirements) of such Debt multiplied by (y) the amount of such principal payment by (ii) the sum of all such principal payments.

“Board of Directors” means (i) with respect to the Company or any Restricted Subsidiary, its board of directors or any duly authorized committee thereof; (ii) with respect to a corporation, the board of directors of such corporation or any duly authorized committee thereof; and (iii) with respect to any other entity, the board of directors or similar body of the general partner or managers of such entity or any duly authorized committee thereof.

“Capital Interests” in any Person means any and all shares, interests (including Preferred Interests), participations or other equivalents in the equity interest (however designated) in such Person and any rights (other than Debt securities convertible into an equity interest), warrants or options to acquire an equity interest in such Person.

 

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“Capital Lease Obligations” means any obligation of a Person under a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP; and the amount of Debt represented by such obligation shall be the capitalized amount of such obligations determined in accordance with GAAP; and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty.

“CFC” means a Person that is a controlled foreign corporation under Section 957 of the Code. “Change of Control” means:

(1)         the Company becomes aware (by way of a report or any other filing pursuant to the Exchange Act or written notice to the Company) that any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the ultimate “beneficial owner” (as such term is used in Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of this clause (1)such person or group shall be deemed to have “beneficial ownership” of all shares that any such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the Voting Interests in the Company, or

(2)         the Company sells, conveys, transfers or leases (either in one transaction or a series of related transactions) all or substantially all of its assets to, or merges or consolidates with, a Person other than a Restricted Subsidiary of the Company, other than a merger or consolidation where (A) the Voting Interests of the Company outstanding immediately prior to such transaction are converted into or exchanged for Voting Interests of the surviving or transferee Person constituting a majority of the outstanding Voting Interests of such surviving or transferee Person (immediately after giving effect to such issuance) and (B) immediately after such transaction, no “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) becomes, directly or indirectly, the beneficial owner of 50% or more of the voting power of the Voting Interests of the surviving or transferee Person.

“Code” means the Internal Revenue Code of 1986, as amended.

“Common Interests” of any Person means Capital Interests in such Person that do not rank prior, as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of such Person, to Capital Interests of any other class in such Person.

“Company” means A. Schulman, Inc. and any successor thereto.

“Consolidated Cash Flow Available for Fixed Charges” means, with respect to any Person for any period:

(i)         the sum of, without duplication, the amounts for such period, taken as a single accounting period, of:

(a)         Consolidated Net Income;

(b)         Consolidated Non-cash Charges;

(c)         Consolidated Interest Expense to the extent the same was deducted in computing Consolidated Net Income;

(d)         Consolidated Income Tax Expense;

(e)         any expenses or charges related to any equity offering, Permitted Investment, recapitalization or Incurrence of Debt permitted to be made under the Indenture (whether or not successful) or related to the private sale of the Original Notes;

 

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(f)         the amount of any minority interest expense attributable to minority equity interests of third parties in any non-wholly owned Subsidiary to the extent deducted in such period in computing Consolidated Net Income; and

(g)         any costs or expenses incurred by the Company or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of the Company or net cash proceeds of an issuance of Capital Interests of the Company (other than Redeemable Capital Interests); less

(ii)         non-cash items increasing Consolidated Net Income for such period, other than the accrual of revenue in the ordinary course of business.

“Consolidated Fixed Charge Coverage Ratio” means, with respect to any Person, the ratio of the aggregate amount of Consolidated Cash Flow Available for Fixed Charges of such Person for the four full fiscal quarters, treated as one period, for which financial information in respect thereof is available immediately preceding the date of the transaction (the “Transaction Date”) giving rise to the need to calculate the Consolidated Fixed Charge Coverage Ratio (such four full fiscal quarter period being referred to herein as the “Four Quarter Period”) to the aggregate amount of Consolidated Fixed Charges of such Person for the Four Quarter Period. In addition to and without limitation of the foregoing, for purposes of this definition, “Consolidated Cash Flow Available for Fixed Charges” and “Consolidated Fixed Charges” shall be calculated after giving effect (i) to the cost of any compensation, remuneration or other benefit paid or provided to any employee, consultant, Affiliate, equity owner of the entity involved in any Asset Acquisition to the extent such costs are eliminated or reduced (or public announcement has been made of the intent to eliminate or reduce such costs) prior to the date of such calculation and not replaced; and (ii) on a pro forma basis for the period of such calculation, to any Asset Sales or other dispositions or Asset Acquisitions, Investments, mergers, consolidations or designations of any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary occurring during the Four Quarter Period or any time subsequent to the last day of the Four Quarter Period and on or prior to the Transaction Date, as if such Asset Sale or other disposition or Asset Acquisition (including the Incurrence or assumption of any such Acquired Debt), Investment, merger, consolidation, disposed operation or designation occurred on the first day of the Four Quarter Period. For purposes of this definition, pro forma calculations shall be made in accordance with Article 11 of Regulation S-X promulgated under the Securities Act, except that such pro forma calculations may also include (1) adjustments of the nature used in connection with the calculation of “Further Adjusted EBITDA” as set forth under “Summary—Summary Unaudited Pro Forma Condensed Combined Financial Information of A. Schulman and Citadel” in the offering memorandum related to the private sale of the Original Notes and (2) operating expense reductions for such period resulting from the Asset Sale or other disposition or Asset Acquisition, investment, merger or consolidation for which pro forma effect is being given (A) that have been realized or (B) for which steps have been taken or are reasonably expected to be taken within twelve (12) months of the date of such transaction and are supportable and quantifiable and, in each case, including, but not limited to, (a) reduction in personnel expenses, (b) reduction of costs related to administrative functions, (c) reduction of costs related to leased or owned properties and (d) reductions from the consolidation of operations and streamlining of corporate overhead, provided that, in either case, such adjustments are set forth in an Officer’s Certificate signed by the Company’s chief financial or similar officer that states (i) the amount of such adjustment or adjustments and (ii) that such adjustment or adjustments are based on the reasonable good faith belief of the Officers executing such Officer’s Certificate at the time of such execution.

Furthermore, in calculating “Consolidated Fixed Charges” for purposes of determining the denominator (but not the numerator) of this “Consolidated Fixed Charge Coverage Ratio”:

(i)         interest on outstanding Debt determined on a fluctuating basis as of the Transaction Date and which will continue to be so determined thereafter shall be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Debt in effect on the Transaction Date; and

 

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(ii)         if interest on any Debt actually Incurred on the Transaction Date may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rates, then the interest rate in effect on the Transaction Date will be deemed to have been in effect during the Four Quarter Period.

If such Person or any of its Restricted Subsidiaries directly or indirectly Guarantees Debt of a third Person, the above clause shall give effect to the Incurrence of such Guaranteed Debt as if such Person or such Subsidiary had directly Incurred or otherwise assumed such Guaranteed Debt.

“Consolidated Fixed Charges” means, with respect to any Person for any period, the sum of, without duplication, the amounts for such period of:

(i)         Consolidated Interest Expense; and

(ii)         the product of (a) all cash dividends and other distributions paid or accrued during such period in respect of Redeemable Capital Interests of such Person and its Restricted Subsidiaries (other than dividends paid in Qualified Capital Interests) and any series of Preferred Interests of any Restricted Subsidiary of such Person during such period, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of such Person, expressed as a decimal.

“Consolidated Income Tax Expense” means, with respect to any Person for any period the provision for federal, state, local and foreign income taxes of such Person and its Restricted Subsidiaries for such period as determined on a consolidated basis in accordance with GAAP paid or accrued during such period, including any penalties and interest related to such taxes or arising from any tax examinations, to the extent the same were deducted in computing Consolidated Net Income.

“Consolidated Interest Expense” means, with respect to any Person for any period, without duplication, the sum of:

(i)         the total interest expense of such Person and its Restricted Subsidiaries for such period as determined on a consolidated basis in accordance with GAAP, including, without limitation:

(a)         any amortization of debt discount;

(b)         the net cost under any Hedging Obligation or Swap Contract in respect of interest rate protection (including any amortization of discounts);

(c)         the interest portion of any deferred payment obligation;

(d)         all commissions, discounts and other fees and charges owed with respect to Qualified Receivables Transactions (to the extent payable by the Company and its Restricted Subsidiaries to any Person other than the Company or a Restricted Subsidiary) and letters of credit and bankers’ acceptance financings; and

(e)         all accrued interest;

(ii)         the interest component of Capital Lease Obligations paid, accrued and/or scheduled to be paid or accrued by such Person and its Restricted Subsidiaries during such period determined on a consolidated basis in accordance with GAAP; and

(iii)         all capitalized interest of such Person and its Restricted Subsidiaries for such period; less interest income of such Person and its Restricted Subsidiaries for such period; provided, however, that Consolidated Interest Expense will exclude (I) the amortization or write-off of debt issuance costs and

 

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deferred financing fees, commissions, fees and expenses, (II) any expensing of interim loan commitment and other financing fees and (III) non-cash interest on any convertible or exchangeable notes that exists by virtue of the bifurcation of the debt and equity components of convertible or exchangeable notes and the application FSP APB 14-1 or any similar provision.

“Consolidated Net Income” means, with respect to any Person, for any period, the consolidated net income (or loss) of such Person and its Restricted Subsidiaries for such period as determined in accordance with GAAP, adjusted, to the extent included in calculating such net income, by:

(A)         excluding, without duplication

(i)         all extraordinary gains or losses (net of fees and expense relating to the transaction giving rise thereto), income, expenses or charges;

(ii)         the portion of net income of such Person and its Restricted Subsidiaries allocable to minority interest in unconsolidated Persons or Investments in Unrestricted Subsidiaries to the extent that cash dividends or distributions have not actually been received by such Person or one of its Restricted Subsidiaries; provided that, for the avoidance of doubt, Consolidated Net Income shall be increased in amounts equal to the amounts of cash actually received;

(iii)         gains or losses in respect of any Asset Sales by such Person or one of its Restricted Subsidiaries (net of fees and expenses relating to the transaction giving rise thereto), on an after-tax basis;

(iv)         solely for purposes of determining the amount available for Restricted Payments under clause (c) of the first paragraph of “Certain Covenants—Limitation on Restricted Payments,” the net income of any Restricted Subsidiary (other than a Guarantor) or such Person to the extent that the declaration of dividends or similar distributions by that Restricted Subsidiary of that income is not at the time permitted, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulations applicable to that Restricted Subsidiary or its stockholders; provided that for the avoidance of doubt, Consolidated Net Income shall be increased in amounts equal to the amounts of cash actually received;

(v)         any gain or loss realized as a result of the cumulative effect of a change in accounting principles;

(vi)         any fees and expenses paid in connection with the issuance of the Notes;

(vii)         non-cash compensation expense Incurred with any issuance of equity interests to an employee of such Person or any Restricted Subsidiary;

(viii)         any net after-tax gains or losses attributable to the early extinguishment or conversion of Debt;

(ix)         any non-cash impairment charges or asset write-off or write-down resulting from the application of ASC 350 or ASC 360, and the amortization of intangibles arising pursuant to ASC 805 or any related subsequent Accounting Standards Codification;

(x)         non-cash gains, losses, income and expenses resulting from fair value accounting required by ASC 815 or any related subsequent Accounting Standards Codification;

(xi)         any fees, expenses, charges or Integration Costs incurred during such period, or any amortization thereof for such period, in connection with any acquisition, Investment, Asset Sale, disposition, Incurrence or repayment of Debt (including such fees, expenses or charges related to any

 

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Credit Facility), issuance of Capital Interests, refinancing transaction or amendment or modification of any debt instrument, and including, in each case, any such transaction undertaken but not completed, and any charges or nonrecurring merger or acquisition costs incurred during such period as a result of any such transaction, in each case whether or not successful;

(xii)         any net unrealized gain or loss (after any offset) resulting from currency translation gains or losses related to currency remeasurements of Debt (including any net gain or loss resulting from obligations under Hedging Obligations for currency exchange risk) and any foreign currency translation gains or losses;

(xiii)         any accruals and reserves that are established for expenses and losses, in respect of equity-based awards compensation expense (provided that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall reduce Consolidated Net Income to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period);

(xiv)         any expenses, charges or losses that are covered by indemnification or other reimbursement provisions in connection with any Permitted Investment or any sale, conveyance, transfer or other disposition of assets permitted under the Indenture, to the extent actually reimbursed, or, so long as the Company has made a determination that a reasonable basis exists for indemnification or reimbursement and only to the extent that such amount is in fact indemnified or reimbursed within 365 days of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such 365 days); and

(xv)         to the extent covered by insurance and actually reimbursed, or, so long as the Company has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is in fact reimbursed within 365 days of the date of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed within such 365 days), expenses, charges or losses with respect to liability or casualty events or business interruption; and

(B)         including, without duplication, dividends and distributions from joint ventures actually received in cash by the Company.

“Consolidated Net Tangible Assets” of any Person as of any date means the total assets of such Person and its Restricted Subsidiaries less goodwill and other intangible assets of such Person and its Restricted Subsidiaries as of the most recent fiscal quarter end for which an internal consolidated balance sheet of such Person and its Subsidiaries is available, all calculated on a consolidated basis in accordance with GAAP.

“Consolidated Non-cash Charges” means, with respect to any Person for any period, the aggregate depreciation, amortization (including amortization of goodwill, other intangibles, deferred financing fees, debt issuance costs, commissions, fees and expenses) and other non-cash expenses of such Person and its Restricted Subsidiaries reducing Consolidated Net Income of such Person and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP (excluding any such charges constituting an extraordinary item or loss and excluding any such charges constituting an extraordinary item or loss or any charge which requires an accrual of or a reserve for cash charges for any future period).

“Consolidated Secured Leverage Ratio” means, with respect to any Person, the ratio of the aggregate amount of all Debt secured by Liens of such Person and its Restricted Subsidiaries less unrestricted cash and Eligible Cash Equivalents of the Company and its Restricted Subsidiaries, in each case at the end of the most recent fiscal period for which financial information in respect thereof is available immediately preceding the date of the transaction (the “Transaction Date”) giving rise to the need to calculate the Consolidated Secured Leverage

 

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Ratio to the aggregate amount of Consolidated Cash Flow Available for Fixed Charges of such Person for the four full fiscal quarters, treated as one period, for which financial information in respect thereof is available immediately preceding the Transaction Date (such four full fiscal quarter period being referred to herein as the “Four Quarter Period”). In addition to and without limitation of the foregoing, this ratio shall be calculated after giving effect (i) to the cost of any compensation, remuneration or other benefit paid or provided to any employee, consultant, Affiliate, equity owner of the entity involved in any Asset Acquisition to the extent such costs are eliminated or reduced (or public announcement has been made of the intent to eliminate or reduce such costs) prior to the date of such calculation and not replaced; and (ii) on a pro forma basis for the period of such calculation, to any Asset Sales or other dispositions or Asset Acquisitions, Investments, mergers, consolidations or designations of any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary occurring during the Four Quarter Period or any time subsequent to the last day of the Four Quarter Period and on or prior to the Transaction Date, as if such Asset Sale or other disposition or Asset Acquisition (including the Incurrence or assumption of any such Acquired Debt), Investment, merger, consolidation, disposed operation or designation occurred on the first day of the Four Quarter Period. For purposes of this definition, pro forma calculations shall be made in accordance with Article 11 of Regulation S-X promulgated under the Securities Act, except that such pro forma calculations may also include (1) adjustments of the nature used in connection with the calculation of “Further Adjusted EBITDA” as set forth under “Summary—Summary Unaudited Pro Forma Condensed Combined Financial Information of A. Schulman and Citadel” in the offering memorandum related to the private sale of the Original Notes and (2) operating expense reductions for such period resulting from the Asset Sale or other disposition or Asset Acquisition, investment, merger or consolidation for which pro forma effect is being given (A) that have been realized or (B) for which steps have been taken or are reasonably expected to be taken within twelve (12) months of the date of such transaction and are supportable and quantifiable and, in each case, including, but not limited to, (a) reduction in personnel expenses, (b) reduction of costs related to administrative functions, (c) reduction of costs related to leased or owned properties and (d) reductions from the consolidation of operations and streamlining of corporate overhead; provided that, in either case, such adjustments are set forth in an Officer’s Certificate signed by the Company’s chief financial or similar officer that states (i) the amount of such adjustment or adjustments and (ii) that such adjustment or adjustments are based on the reasonable good faith belief of the Officers executing such Officer’s Certificate at the time of such execution.

“Convertible Special Stock” means the Company’s 6.00% cumulative perpetual convertible special stock.

“Credit Agreement” means the Company’s credit agreement, with respect to the senior secured term loan credit facility and senior secured revolving credit facility dated as of the Escrow Release Date, by and among the Company, certain subsidiaries of the Company party thereto, the lenders party thereto, and JPMorgan Chase Bank, N.A., Inc., as administrative agent, together with all related notes, collateral documents, guarantees, and any other related agreements and instruments executed and delivered in connection therewith, in each case as amended, modified, supplemented, restated, refinanced, refunded or replaced in whole or in part (including by sales of debt securities) from time to time including by or pursuant to any agreement or instrument (including an indenture) that extends the maturity of any Debt thereunder, or increases the amount of available borrowings thereunder, or adds Subsidiaries of the Company as additional borrowers or guarantors thereunder, in each case with respect to such agreement or any successor or replacement agreement and whether by the same or any other agent, lender, group of lenders, purchasers or debt holders.

“Credit Facilities” means one or more credit facilities (including the Credit Agreement), commercial paper facilities or indentures, in each case with banks or other lenders, investors or a trustee providing for revolving loans, term loans, the issuance of letters of credit or bankers’ acceptances, receivables financings or the issuance of debt securities.

“Debt” means at any time (without duplication), with respect to any Person, whether recourse is to all or a portion of the assets of such Person, or non-recourse, the following: (i) all indebtedness of such Person for money borrowed or for the deferred purchase price of property, excluding any trade payables or other current liabilities incurred in the normal course of business; (ii) all obligations of such Person evidenced by bonds, debentures,

 

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notes, or other similar instruments; (iii) all reimbursement obligations of such Person with respect to letters of credit (other than letters of credit that are secured by cash or Eligible Cash Equivalents), bankers’ acceptances or similar facilities (excluding obligations in respect of letters of credit or bankers’ acceptances issued in respect of trade payables) issued for the account of such Person; provided that such obligations shall not constitute Debt except to the extent drawn and not repaid within five business days; (iv) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property or assets acquired by such Person; (v) all Capital Lease Obligations of such Person; (vi) the maximum fixed redemption or repurchase price of Redeemable Capital Interests in such Person at the time of determination; (vii) any Swap Contracts and Hedging Obligations of such Person at the time of determination; and (viii) all obligations of the types referred to in clauses (i) through (vii) of this definition of another Person, the payment of which, in either case, (A) such Person has Guaranteed or (B) is secured by (or the holder of such Debt or the recipient of such dividends or other distributions has an existing right, whether contingent or otherwise, to be secured by) any Lien upon the property or other assets of such Person, even though such Person has not assumed or become liable for the payment of such Debt. For purposes of the foregoing: (a) the maximum fixed repurchase price of any Redeemable Capital Interests that do not have a fixed repurchase price shall be calculated in accordance with the terms of such Redeemable Capital Interests as if such Redeemable Capital Interests were repurchased on any date on which Debt shall be required to be determined pursuant to the Indenture; provided, however, that, if such Redeemable Capital Interests are not then permitted to be repurchased, the repurchase price shall be the book value of such Redeemable Capital Interests; (b) the amount outstanding at any time of any Debt issued with original issue discount shall be the principal amount of such Debt less the remaining unamortized portion of the original issue discount of such Debt at such time as determined in conformity with GAAP, but such Debt shall be deemed Incurred only as of the date of original issuance thereof; (c) the amount of any Debt described in clause (vii) is the net amount payable (after giving effect to permitted set off) if such Swap Contracts or Hedging Obligations are terminated at that time due to default of such Person; (d) the amount of any Debt described in clause (viii)(A) above shall be the maximum liability under any such Guarantee; (e) the amount of any Debt described in clause (viii)(B) above shall be the lesser of (I) the maximum amount of the obligations so secured and (II) the Fair Market Value of such property or other assets; and (f) interest, fees, premium, and expenses and additional payments, if any, will not constitute Debt. For purposes of determining any particular amount of Debt, Guarantees, Liens, obligations with respect to letters of credit and other obligations supporting Debt otherwise included in the determination of a particular amount will not be included.

Notwithstanding the foregoing, the term “Debt” will exclude (a) any endorsements for collection or deposits in the ordinary course of business, (b) any realization of a Permitted Lien, (c) Debt that has been defeased or satisfied in accordance with the terms of the documents governing such Debt, and (d) in connection with the purchase by the Company or any Restricted Subsidiary of any business, (x) customary indemnification obligations and (y) post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment is otherwise contingent; provided, however, that, at the time of closing, the amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is paid within 60 days thereafter.

The amount of Debt of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above and the maximum liability, only upon the occurrence of the contingency giving rise to the obligations, of any contingent obligations at such date; provided, however, that in the case of Debt sold at a discount, the amount of such Debt at any time will be the accreted value thereof at such time. If such Person or any of its Restricted Subsidiaries directly or indirectly Guarantees Debt of a third Person, the amount of Debt of such Person shall give effect to the Incurrence of such Guaranteed Debt as if such Person or such Subsidiary had directly Incurred or otherwise assumed such Guaranteed Debt.

“Default” means any event that is, or after notice or passage of time, or both, would be, an Event of Default.

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“Designated Non-cash Consideration” pursuant to an Officer’s Certificate, setting forth the basis of such valuation, less the amount of cash or Eligible Cash Equivalents received in connection with a subsequent sale of such Designated Non-cash Consideration.

“Domestic Subsidiary” means any Restricted Subsidiary of the Company that was formed under the laws of the United States or any state of the United States or the District of Columbia.

“Eligible Bank” means a bank or trust company that (i) is licensed, chartered or organized and existing under the laws of the United States of America or Canada, or any state, territory, province or possession thereof, (ii) as of the time of the making or acquisition of an Investment in such bank or trust company, has combined capital and surplus in excess of $500.0 million and (iii) the senior Debt of which is rated at least “Baa-2” by Moody’s or at least “BBB” by S&P.

“Eligible Cash Equivalents” means any of the following Investments: (i) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) maturing not more than one year after the date of acquisition; (ii) time deposits in and certificates of deposit of any Eligible Bank, provided that such Investments have a maturity date not more than one year after date of acquisition; (iii) repurchase obligations with a term of not more than 180 days for underlying securities of the types described in clause (i) above entered into with any Eligible Bank; (iv) direct obligations issued by any state of the United States or any political subdivision or public instrumentality thereof; provided that such Investments mature, or are subject to tender at the option of the holder thereof, within 365 days after the date of acquisition and, at the time of acquisition, have a rating of at least A from S&P or A-2 from Moody’s (or an equivalent rating by any other nationally recognized rating agency); (v) commercial paper of any Person other than an Affiliate of the Company and other than structured investment vehicles; provided that such Investments have one of the two highest ratings obtainable from either S&P or Moody’s and mature within 180 days after the date of acquisition; (vi) overnight and demand deposits in and bankers’ acceptances of any Eligible Bank and demand deposits in any bank or trust company to the extent insured by the Federal Deposit Insurance Corporation against the Bank Insurance Fund; (vii) money market funds substantially all of the assets of which comprise Investments of the types described in clauses (i) through (vi); and (viii) instruments equivalent to those referred to in clauses (i) through (vi) above or funds equivalent to those referred to in clause (vii) above denominated in U.S. dollars, Euros or any other foreign currency comparable in credit quality and tenor to those referred to in such clauses and customarily used by corporations for cash management purposes in jurisdictions outside the United States to the extent reasonably required in connection with any business conducted by any Restricted Subsidiary organized in such jurisdiction, all as determined in good faith by the Company.

“Escrow Release Date” means the date of the Release.

“Escrowed Property” means the gross proceeds of the private sale of the Original Notes and an additional amount in cash in an aggregate amount sufficient to redeem the Original Notes in cash at a redemption price equal to 100% of the principal amount of the Original Notes, plus accrued and unpaid interest on the Original Notes to but not including July 15, 2015

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Expiration Date” has the meaning set forth in the definition of “Offer to Purchase.”

“Fair Market Value” means, with respect to the consideration received or paid in any transaction or series of transactions, the fair market value thereof as determined in good faith by the Company. In the case of a transaction between the Company or a Restricted Subsidiary, on the one hand, and a Receivable Subsidiary, on the other hand, if the Company determines in its sole discretion that such determination is appropriate, a determination as to Fair Market Value may be made at the commencement of the transaction and be applicable to all dealings between the Receivable Subsidiary and the Company or such Restricted Subsidiary during the course of such transaction.

 

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“Foreign Subsidiary” means any Restricted Subsidiary that is not a Domestic Subsidiary.

“Four Quarter Period” has the meaning set forth in the definition of “Consolidated Fixed Charge Coverage Ratio.”

“GAAP” means generally accepted accounting principles in the United States, consistently applied, as set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, or in such other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States, which are in effect from time to time.

“Guarantee” means, as applied to any Debt of another Person, (i) a guarantee (other than by endorsement of negotiable instruments for collection in the normal course of business), direct or indirect, in any manner, of any part or all of such Debt, (ii) any direct or indirect obligation, contingent or otherwise, of a Person guaranteeing or having the effect of guaranteeing the Debt of any other Person in any manner and (iii) an agreement of a Person, direct or indirect, contingent or otherwise, the practical effect of which is to assure in any way the payment or performance (or payment of damages in the event of non-performance) of all or any part of such Debt of another Person (and “Guaranteed” and “Guaranteeing” shall have meanings that correspond to the foregoing); provided, however, that the term “Guarantee” shall not include a contractual commitment by one Person to invest in another Person for so long as such Investment is reasonably expected to constitute a Permitted Investment.

“Guarantor” means any Person that executes a supplemental indenture providing a Note Guarantee in accordance with the provisions of the Indenture and their respective successors and assigns.

“Hedging Obligations” of any Person means the obligations of such Person pursuant to any interest rate agreement, currency agreement or commodity agreement, excluding commodity agreements relating to raw materials used in the ordinary course of the Company’s business.

“Holder” means a Person in whose name a Note is registered in the security register.

“Incur” means, with respect to any Debt or other obligation of any Person, to create, issue, incur (by conversion, exchange or otherwise), assume, Guarantee or otherwise become liable in respect of such Debt or other obligation or the recording, as required pursuant to GAAP or otherwise, of any such Debt or other obligation on the balance sheet of such Person; provided, however, that a change in GAAP or an interpretation thereunder that results in an obligation of such Person that exists at such time becoming Debt shall not be deemed an Incurrence of such Debt. Debt otherwise Incurred by a Person before it becomes a Subsidiary of the Company shall be deemed to be Incurred at the time at which such Person becomes a Subsidiary of the Company. “Incurrence,” “Incurred,” “Incurrable” and “Incurring” shall have meanings that correspond to the foregoing. A Guarantee by the Company or a Restricted Subsidiary of Debt Incurred by the Company or a Restricted Subsidiary, as applicable, shall not be a separate Incurrence of Debt. In addition, the following shall not be deemed a separate Incurrence of Debt:

(1)         amortization of debt discount or accretion of principal with respect to a non-interest bearing or other discount security;

(2)         the payment of regularly scheduled interest in the form of additional Debt of the same instrument or the payment of regularly scheduled dividends on Capital Interests in the form of additional Capital Interests of the same class and with the same terms;

(3)         the obligation to pay a premium in respect of Debt arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Debt; and

(4)         unrealized losses or charges in respect of Hedging Obligations.

 

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“Integration Costs” means, with respect to any acquisition, all costs relating to the integration of the acquired business or operations into the Company’s, including labor costs, consulting fees, travel costs and any other expenses relating to the integration process.

“Investment” by any Person means any direct or indirect loan, advance, guarantee for the benefit of (or other extension of credit) or capital contribution to (by means of any transfer of cash or other property or assets to another Person or any other payments for property or services for the account or use of another Person) another Person, including, without limitation, the following: (i) the purchase or acquisition of any Capital Interest or other evidence of beneficial ownership in another Person; (ii) the purchase, acquisition or Guarantee of the Debt of another Person or the issuance of a “keep-well” with respect thereto; and (iii) the purchase or acquisition of the business or assets of another Person substantially as an entirety, but shall exclude: (a) accounts receivable and other extensions of trade credit in accordance with the Company’s customary practices; (b) the acquisition of property and assets from suppliers and other vendors in the normal course of business; and (c) prepaid expenses and workers’ compensation, utility, lease and similar deposits in the normal course of business.

“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other Rating Agency.

“Issue Date” means the date of original issuance of the Notes under the Indenture.

“Lien” means, with respect to any property or other asset, any mortgage, deed of trust, deed to secure debt, pledge, hypothecation, assignment, deposit arrangement, security interest, lien (statutory or otherwise), charge, easement, encumbrance, preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever on or with respect to such property or other asset (including, without limitation, any conditional sale or other title retention agreement having substantially the same economic effect as any of the foregoing).

“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.

“Net Cash Proceeds” means, with respect to Asset Sales of any Person, cash and Eligible Cash Equivalents received, net of (i) all reasonable out-of-pocket costs and expenses of such Person incurred in connection with such a sale, including, without limitation, all legal, accounting, title and recording tax expenses, commissions and other fees and expenses incurred and all federal, state, foreign and local taxes arising in connection with such an Asset Sale that are paid or required to be accrued as a liability under GAAP by such Person; (ii) all payments made by such Person on any Debt that is secured by such properties or other assets in accordance with the terms of any Lien upon or with respect to such properties or other assets or that must, by the terms of such Lien or such Debt, or in order to obtain a necessary consent to such transaction or by applicable law, be repaid to any other Person (other than the Company or a Restricted Subsidiary thereof) in connection with such Asset Sale; (iii) all contractually required distributions and other payments made to minority interest holders in Restricted Subsidiaries of such Person as a result of such transaction; (iv) the deduction of appropriate amounts provided by the seller as a reserve, in accordance with GAAP, against any liabilities associated with the property disposed of in such Asset Sale and retained by the Company or any Restricted Subsidiary after such Asset Sale, including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale; and (v) payments of unassumed liabilities (not constituting Debt) relating to the property sold at the time of, or within 30 days after, the date of such sale; provided, however, that (a) in the event that any consideration for an Asset Sale (which would otherwise constitute Net Cash Proceeds) is required by (I) contract to be held in escrow pending determination of whether a purchase price adjustment will be made or (II) GAAP to be reserved against other liabilities in connection with such Asset Sale, such consideration (or any portion thereof) shall become Net Cash Proceeds only at such time as it is released to such Person from escrow or otherwise; and (b) any non-cash consideration received in connection with any transaction subsequently converted to cash shall become Net Cash Proceeds only at such time as it is so converted.

 

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“Non-Recourse Receivable Subsidiary Indebtedness” has the meaning set forth in the definition of “Receivable Subsidiary.”

“Obligations” means any principal, premium, interest (including any interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, federal or foreign law), penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and banker’s acceptances), damages and other liabilities, and guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing any Debt.

“Offer” has the meaning set forth in the definition of “Offer to Purchase.”

“Offer to Purchase” means a written offer (the “Offer”) sent by the Company electronically or by first- class mail, with a copy to the Trustee, to each Holder at its address appearing in the security register on the date of the Offer, offering to purchase up to the aggregate principal amount of Notes set forth in such Offer. Unless otherwise required by applicable law, the offer shall specify an expiration date (the “Expiration Date”) of the Offer to Purchase which shall be, subject to any contrary requirements of applicable law, not less than 30 days or more than 60 days after the date of delivery of such Offer and a settlement date (the “Purchase Date”) for purchase of Notes within five business days after the Expiration Date and, in connection with a Change of Control, such Purchase Date may be no earlier than the date of the consummation of the Change of Control. The Company shall notify the Trustee at least 15 days (or such shorter period as is acceptable to the Trustee) prior to the sending of the Offer of the Company’s obligation to make an Offer to Purchase, and the Offer shall be sent electronically or by first class mail by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company. The Offer shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Offer to Purchase. The Offer shall also state:

(1)         the section of the Indenture pursuant to which the Offer to Purchase is being made;

(2)         the Expiration Date and the Purchase Date;

(3)         the aggregate principal amount of the outstanding Notes offered to be purchased pursuant to the Offer to Purchase (including, if less than 100%, the manner by which such amount has been determined pursuant to Indenture covenants requiring the Offer to Purchase) (the “Purchase Amount”);

(4)         the purchase price to be paid by the Company for each $2,000 principal amount of Notes (and integral multiples of $1,000 in excess thereof) accepted for payment (as specified pursuant to the Indenture) (the “Purchase Price”);

(5)         that the Holder may tender all or any portion of the Notes registered in the name of such Holder and that any portion of a Note tendered must be tendered in a minimum amount of $2,000 principal amount (and integral multiples of $1,000 in excess thereof);

(6)         the place or places where Notes are to be surrendered for tender pursuant to the Offer to Purchase, if applicable;

(7)         that, unless the Company defaults in making such purchase, any Note accepted for purchase pursuant to the Offer to Purchase will cease to accrue interest on and after the Purchase Date, but that any Note not tendered or tendered but not purchased by the Company pursuant to the Offer to Purchase will continue to accrue interest at the same rate;

(8)         that, on the Purchase Date, the Purchase Price will become due and payable upon each Note accepted for payment pursuant to the Offer to Purchase;

 

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(9)         that each Holder electing to tender a Note pursuant to the Offer to Purchase will be required to surrender such Note or cause such Note to be surrendered at the place or places set forth in the Offer prior to the close of business on the Expiration Date (such Note being, if the Company or the Trustee so requires, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing);

(10)         that Holders will be entitled to withdraw all or any portion of Notes tendered if the Company (or its paying agent) receives, not later than the close of business on the Expiration Date, a facsimile transmission or letter setting forth the name of the Holder, the aggregate principal amount of the Notes the Holder tendered, the certificate number of the Note the Holder tendered and a statement that such Holder is withdrawing all or a portion of his tender; provided that in the case of Notes held in book-entry form, holders must withdraw all or any portion of Notes in accordance with DTC’s applicable procedures;

(11)         that (a) if Notes having an aggregate principal amount less than or equal to the Purchase Amount are duly tendered and not withdrawn pursuant to the Offer to Purchase, the Company shall purchase all such Notes and (b) if Notes having an aggregate principal amount in excess of the Purchase Amount are tendered and not withdrawn pursuant to the Offer to Purchase, the Company shall purchase Notes having an aggregate principal amount equal to the Purchase Amount on a pro rata basis (with such adjustments as may be deemed appropriate so that only Notes in denominations of $2,000 principal amount or integral multiples of $1,000 in excess thereof shall be purchased);

(12)         if applicable, that, in the case of any Holder whose Note is purchased only in part, the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Note without service charge, a new Note or Notes, of any authorized denomination as requested by such Holder, in the aggregate principal amount equal to and in exchange for the unpurchased portion of the aggregate principal amount of the Notes so tendered; and

(13)         if such notice is delivered prior to the occurrence of a Change of Control, stating that the Offer to Purchase is conditional on the occurrence of such Change of Control, and, if applicable, shall state that, in the Company’s discretion, the Purchase Date may be delayed until such time as the Change of Control shall occur, or that such redemption may not occur and such notice may be rescinded in the event that the Company shall determine that such condition will not be satisfied by the Purchase Date, or by the Purchase Date as so delayed.

“Officer’s Certificate” means a certificate signed by the chairman of the board, the chief executive officer, the president, the chief operating officer, the chief financial officer, the treasurer, any assistant treasurer, the controller, the secretary or any vice president.

“Permitted Business” means any business similar in nature to any business conducted by the Company and the Restricted Subsidiaries on the Issue Date or immediately after the consummation of the Transactions and any business reasonably ancillary, incidental, complementary or related to, or a reasonable extension, development or expansion of, the business conducted by the Company and the Restricted Subsidiaries on the Issue Date or immediately after the consummation of the Transactions, in each case, as determined in good faith by the Company.

“Permitted Debt” means:

(i)         Debt Incurred pursuant to any Credit Facilities in an aggregate principal amount not to exceed at any one time outstanding $1,400.0 million less any amounts Incurred and outstanding pursuant to clause (xvi) below;

 

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(ii)         Debt under the Notes issued on the Issue Date (including the Exchange Notes) and, the contribution, indemnification and reimbursement obligations owed by the Company or any Guarantor to any of the other of them in respect of amounts paid or payable on such Notes;

(iii)         Guarantees of the Notes (including the Notes Guarantees related to the Exchange Notes);

(iv)         Debt of the Company or any Restricted Subsidiary outstanding on the Issue Date (other than (A) clause (i), (ii) or (iii) above and, (B) after the Escrow Release Date, Debt repaid on the Escrow Release Date with the proceeds of the private sale of the Original Notes and the initial borrowings under the Credit Agreement in connection with the Transactions);

(v)         Guarantees Incurred by the Company of Debt of a Restricted Subsidiary otherwise permitted to be incurred under the Indenture;

(vi)         Guarantees by any Restricted Subsidiary of Debt of the Company or any Restricted Subsidiary, including Guarantees by any Restricted Subsidiary of Debt under the Credit Agreement, provided that (a) such Debt is Permitted Debt or is otherwise Incurred in accordance with the “Limitation on Incurrence of Debt” covenant and (b) such Guarantees are subordinated to the Notes to the same extent as the Debt being Guaranteed;

(vii)         Debt incurred in respect of workers’ compensation claims and self-insurance obligations, and, for the avoidance of doubt, indemnity, bid, performance, warranty, release, appeal, surety and similar bonds, standby letters of credit, letters of credit for operating purposes and completion guarantees provided or incurred (including Guarantees thereof) by the Company or a Restricted Subsidiary in the ordinary course of business;

(viii)         Debt under Swap Contracts and Hedging Obligations (excluding Swap Contracts and Hedging Obligations entered into for speculative purposes);

(ix)         Debt of the Company to a Restricted Subsidiary; provided that if such Debt is owing to a Restricted Subsidiary that is not a Guarantor and is subordinated in right of payment to the Notes; provided further that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such Debt (except to the Company or another Restricted Subsidiary) shall be deemed, in each case, to be an incurrence of such Debt not permitted by this clause;

(x)         Debt of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that if a Guarantor incurs such Debt owing to a Restricted Subsidiary that is neither the Company nor a Guarantor, such Debt is subordinated in right of payment to the Guarantee of the notes of such Guarantor; provided further that any subsequent transfer of any such Debt (except to the Company or another Restricted Subsidiary) shall be deemed, in each case, to be an incurrence of such Debt not permitted by this clause;

(xi)         Debt of the Company or any Restricted Subsidiary pursuant to Capital Lease Obligations and Purchase Money Debt; provided that the aggregate principal amount of such Debt outstanding at any time may not exceed the greater of (x) $75.0 million in the aggregate and (y) 6.0% of the Consolidated Net Tangible Assets of the Company and its Restricted Subsidiaries;

(xii)       Debt arising from agreements of the Company or a Restricted Subsidiary providing for indemnification, contribution, earnout, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or Capital Interests of a Restricted Subsidiary otherwise permitted under the Indenture;

 

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(xiii)       the issuance by any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of shares of Preferred Interests; provided, however, that:

(a)          any subsequent issuance or transfer of Capital Interests that results in any such Preferred Interests being held by a Person other than the Company or a Restricted Subsidiary; and

(b)          any sale or other transfer of any such Preferred Interests to a Person that is not either the Company or a Restricted Subsidiary

shall be deemed, in each case, to constitute an issuance of such Preferred Interests by such Restricted Subsidiary that was not permitted by this clause (xiii);

(xiv)       Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Debt is extinguished within five business days of Incurrence;

(xv)       Debt of the Company or any Restricted Subsidiary not otherwise permitted pursuant to this definition, in an aggregate principal amount not to exceed the greater of (a) $100.0 million and (b) 8.0% of the Consolidated Net Tangible Assets of the Company and its Restricted Subsidiaries;

(xvi)       Purchase Money Notes Incurred by any Receivable Subsidiary that is a Restricted Subsidiary in a Qualified Receivables Transaction and Non-Recourse Receivable Subsidiary Indebtedness;

(xvii)       Guarantees in the ordinary course of business of the obligations of government agencies or of suppliers, customers, franchisees and licensees of the Company or any of its Restricted Subsidiaries;

(xviii)       Debt consisting of take-or-pay obligations on customary business terms contained in supply agreements entered into in the ordinary course of business;

(xix)       Refinancing Debt with respect to Debt Incurred or outstanding pursuant to clauses (ii), (iii), (iv) and (vi), this clause (xix) and clause (xx);

(xx)       (x) Debt of the Company or any Restricted Subsidiary Incurred or issued to finance an acquisition or (y) Acquired Debt; provided that after giving effect to such acquisition, merger or consolidation, either (a) the Company would be permitted to Incur at least $1.00 of additional Debt pursuant to the Consolidated Fixed Charge Coverage test set forth in the first paragraph under the caption “—Certain Covenants—Limitation on Incurrence of Debt” or (b) the Consolidated Fixed Charge Coverage Ratio of the Company would not be lower than immediately prior to such acquisition, merger or consolidation; and

(xxi)       Debt of Restricted Subsidiaries that are not Guarantors Incurred pursuant to this clause not to exceed at any one time outstanding, and together with any other Debt Incurred under this clause (xxi), the greater of (a) $150.0 million and (b) 11.75% of the Consolidated Net Tangible Assets of the Company and its Restricted Subsidiaries.

Notwithstanding anything herein to the contrary, Debt permitted under clauses (i), (xi) and (xv) of this definition of “Permitted Debt” shall not constitute “Refinancing Debt” under clause (xix) of this definition of “Permitted Debt.”

“Permitted Investments” means:

(a)         Investments in existence on the Issue Date and any extensions or replacements thereof on terms no less favorable and in amounts no greater than exist on the Issue Date;

 

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(b)         Investments in cash and Eligible Cash Equivalents;

(c)         Investments in property and other assets owned or used by the Company or any Restricted Subsidiary in the normal course of business;

(d)         prepaid expenses, negotiable instruments held for collection, lease, utility, workers’ compensation, performance and other similar deposits provided to third parties in the ordinary course of business;

(e)         Investments by the Company or any of its Restricted Subsidiaries in the Company or any Restricted Subsidiary, including, for the avoidance of doubt, the Target Acquisition;

(f)         Investments by the Company or any Restricted Subsidiary in a Person, if as a result of such Investment (A) such Person becomes a Restricted Subsidiary or (B) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated or wound-up into, the Company or a Restricted Subsidiary;

(g)         Swap Contracts and Hedging Obligations;

(h)         receivables owing to the Company or any of its Subsidiaries and advances to suppliers, in each case if created, acquired or made in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;

(i)         Investments received in settlement of obligations owed to the Company or any Restricted Subsidiary and as a result of bankruptcy or insolvency proceedings or upon the foreclosure or enforcement of any Lien in favor of the Company or any Restricted Subsidiary;

(j)         Investments by the Company or any Restricted Subsidiary not otherwise permitted under this definition, in an aggregate amount not to exceed the greater of (x) $100.0 million and (y) 8.0% of the Consolidated Net Tangible Assets of the Company and its Restricted Subsidiaries at any one time outstanding;

(k)         loans (and Guarantees of third-party loans) and advances to officers, directors and employees of the Company and Subsidiaries in an aggregate amount not to exceed $10.0 million in the aggregate at any one time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;

(l)         Investments the payment for which consists solely of Qualified Capital Interests of the Company;

(m)         any Investment in any Person to the extent such Investment represents the non-cash portion of the consideration received in connection with an Asset Sale consummated in compliance with the covenant described under “—Certain Covenants—Limitation on Asset Sales” or any other disposition of Property not constituting an Asset Sale;

(n)         payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business and consistent with past practice;

(o)         Guarantees by the Company or any Restricted Subsidiary of Debt of the Company or a Restricted Subsidiary (other than a Receivables Subsidiary) of Debt otherwise permitted by the covenant described hereunder “—Certain Covenants—Limitation on Incurrence of Debt”;

 

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(p)         any Investment by the Company or any Restricted Subsidiary in a Receivable Subsidiary or any Investment by a Receivable Subsidiary in any other Person in connection with a Qualified Receivables Transaction, so long as any Investment in a Receivable Subsidiary is in the form of a Purchase Money Note or an Investment in Capital Interests;

(q)         loans or advances to customers or suppliers in the ordinary course of business;

(r)         Investments in any Person made in exchange for, out of the net cash proceeds of the substantially concurrent sale of, Capital Interests of the Company (other than Redeemable Capital Interests); and

(s)         Investments in any joint venture that is not a Restricted Subsidiary having an aggregate fair market value, taken together with all other Investments made pursuant to this clause (s) that are at the time outstanding, not to exceed the greater of (x) $50.0 million and (y) 4.0% of the Consolidated Net Tangible Assets of the Company and its Restricted Subsidiaries.

“Permitted Liens” means:

(a)         Liens existing at the Issue Date (other than Liens securing obligations under the Credit Agreement);

(b)         Liens that secure (i) Credit Facilities incurred pursuant to (x) clause (i) of the definition of “Permitted Debt” and/or (y) after the Escrow Release Date, the provisions described in the first paragraph of “Certain Covenants—Limitation on Incurrence of Debt” in an aggregate principal amount not to exceed an amount that does not cause the Consolidated Secured Leverage Ratio on a pro forma basis (such calculation to assume, for the purpose of this clause (b), that debt capacity under any revolving credit facility is fully drawn) to exceed 2.75 to 1.00, (ii) Hedging Obligations and Swap Contracts relating to such Credit Facilities and permitted under the agreements related thereto and (iii) fees, expenses and other amounts payable under such Credit Facilities or payable pursuant to cash management agreements or agreements with respect to similar banking services relating to such Credit Facilities and permitted under the agreements related thereto;

(c)         any Lien for taxes or assessments or other governmental charges or levies not then due and payable (or which, if due and payable, are being contested in good faith and for which adequate reserves are being maintained, to the extent required by GAAP);

(d)         any warehousemen’s, materialmen’s, landlord’s or other similar Liens arising by law for sums not then due and payable (or which, if due and payable, are being contested in good faith and with respect to which adequate reserves are being maintained, to the extent required by GAAP);

(e)         minor survey exceptions, encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other similar restrictions as to the use of real properties or Liens incidental to the conduct of the business of such Person or to the ownership of its properties which do not individually or in the aggregate materially adversely affect the value of the Company or materially impair the operation of the business of such Person;

(f)         pledges or deposits (i) in connection with workers’ compensation, unemployment insurance and other types of statutory obligations or the requirements of any official body; (ii) to secure the performance of tenders, bids, surety or performance bonds, leases, purchase, construction, sales or servicing contracts (including utility contracts) and other similar obligations Incurred in the normal course of business consistent with industry practice; (iii) to obtain or secure obligations with respect to letters of credit, Guarantees, bonds or other sureties or assurances given in connection with the activities

 

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described in clauses (i) and (ii) above, in each case not Incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property or services or imposed by ERISA or the Code in connection with a “plan” (as defined in ERISA); or (iv) arising in connection with any attachment unless such Liens shall not be satisfied or discharged or stayed pending appeal within 60 days after the entry thereof or the expiration of any such stay;

(g)         Liens on property or assets existing at the time of acquisition thereof; provided that such Liens are not extended to the property and assets of the Company and its Restricted Subsidiaries other than the property or assets acquired;

(h)         Liens on property or assets of a Person existing at the time such Person is merged with or into or consolidated with the Company or a Restricted Subsidiary, or becomes a Restricted Subsidiary (and not created or Incurred in anticipation of such transaction); provided that such Liens are not extended to the property and assets of the Company and its Restricted Subsidiaries other than the property or assets acquired;

(i)         Liens securing Debt of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary thereof;

(j)         for the avoidance of doubt, other Liens (not securing Debt) incidental to the conduct of the business of the Company or any of its Restricted Subsidiaries, as the case may be, or the ownership of their assets which do not individually or in the aggregate materially adversely affect the value of the Company or materially impair the operation of the business of the Company or its Restricted Subsidiaries;

(k)         Liens in favor of customs or revenue authorities arising as a matter of law to secure payment of custom duties in connection with the importation of goods incurred in the ordinary course of business;

(l)         licenses of intellectual property granted in the ordinary course of business;

(m)         Liens to secure Capital Lease Obligations and Purchase Money Debt permitted to be incurred pursuant to clause (xi) of the definition of “Permitted Debt”; provided that such Liens do not extend to or cover any assets other than such assets acquired or constructed after the Issue Date with the proceeds of such Capital Lease Obligation or Purchase Money Debt;

(n)         Liens in favor of the Company or any Guarantor;

(o)           Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligation in respect of banker’s acceptances issued or created in the ordinary course of business for the account of such Person to facilitate the purchase, shipment, or storage of such inventory or other goods;

(p)         Liens on property or shares of Capital Interests of another Person at the time such other Person becomes a Subsidiary of such Person; provided, however, that (i) the Liens may not extend to any other property owned by such Person or any of its Restricted Subsidiaries (other than assets and property affixed or appurtenant thereto and any proceeds thereof) and (ii) such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Restricted Subsidiary;

(q)         Liens (i) that are contractual rights of set-off (A) relating to the establishment of depository relations with banks not given in connection with the issuance of Debt, (B) relating to pooled deposit or sweep accounts of the Company or any of its Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations and other cash management activities incurred in the ordinary course of business of the Company and or any of its Restricted Subsidiaries or (C) relating to purchase orders and

 

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other agreements entered into with customers of the Company or any of its Restricted Subsidiaries in the ordinary course of business and (ii) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection, (Y) encumbering reasonable customary initial deposits and margin deposits and attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business, and (Z) in favor of banking institutions arising as a matter of law or pursuant to customary account agreements encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry and (iii) other Liens in favor of banking institutions on the cash of non-Guarantor Subsidiaries securing obligations and liabilities of non-Guarantor Subsidiaries thereof in respect of cash pooling arrangements (which each of the foregoing being within the general parameters customary in the banking industry or arising pursuant to the applicable banking institution’s general terms and conditions);

(r)         Liens created by or resulting from any litigation or other proceedings which is being contested in good faith by appropriate proceedings, including Liens arising out of judgments or awards against the Company or any Restricted Subsidiary with respect to which the Company or such Restricted Subsidiary is in good faith prosecuting an appeal or proceedings for review or for which the time to make an appeal has not yet expired; or final unappealable judgment Liens which are satisfied within 15 days of the date of judgment; or Liens Incurred by the Company or any Restricted Subsidiary for the purpose of obtaining a stay or discharge in the course of any litigation or other proceeding to which the Company or such Restricted Subsidiary is a party;

(s)         leases, subleases, licenses or sublicenses granted to others in the ordinary course of business which do not materially interfere with the ordinary conduct of the business of the Company or any Restricted Subsidiaries and do not secure any Debt;

(t)         any interest of title of an owner of equipment or inventory on loan or consignment to the Company or any of its Restricted Subsidiaries and Liens arising from Uniform Commercial Code financing statement filings regarding operating leases entered into by the Company or any Restricted Subsidiary in the ordinary course of business;

(u)         deposits in the ordinary course of business to secure liability to insurance carriers;

(v)         Liens securing the Notes and the Note Guarantees (including the Exchange Notes and related Notes Guarantees);

(w)         Liens on the Capital Interests of a Receivables Subsidiary and accounts receivable and related assets described in the definition of “Qualified Receivables Transaction,” in each case, incurred in connection with a Qualified Receivables Transaction;

(x)         Liens securing Hedging Obligations and Swap Contracts so long as any related Debt is permitted to be Incurred under the Indenture;

(y)         options, put and call arrangements, rights of first refusal and similar rights relating to Investments in joint ventures, partnerships and the like permitted to be made under the Indenture;

(z)        (i) set-off rights not otherwise set forth in clause (q) above, or (ii) Liens arising in connection with repurchase agreements that constitute Investments;

(aa)         Liens not otherwise permitted under the Indenture in an aggregate amount not to exceed $70.0 million;

(bb)         Liens on property or assets of the Company or any Restricted Subsidiary in favor of the United States of America, any state thereof or any instrumentality of either to secure certain payments pursuant to any contract or statute; and

 

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(cc)         Liens to secure any permitted extension, renewal, refinancing or refunding (or successive extensions, renewals, refinancings or refundings), in whole or in part, of any Debt secured by Liens referred to above; provided that such Liens do not extend to any other property or assets and the principal amount of the obligations secured by such Liens is not increased.

“Person” means any individual, corporation, limited liability company, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.

“Preferred Interests,” as applied to the Capital Interests in any Person, means Capital Interests in such Person of any class or classes (however designated) that rank prior, as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of such Person, to shares of Common Interests in such Person.

“Purchase Amount” has the meaning set forth in the definition of “Offer to Purchase.”

“Purchase Date” has the meaning set forth in the definition of “Offer to Purchase.”

“Purchase Money Debt” means Debt:

(i)         Incurred to finance the purchase or construction (including additions and improvements thereto) of any assets (other than Capital Interests) of such Person or any Restricted Subsidiary; and

(ii)         that is secured by a Lien on such assets where the lender’s sole security is to the assets so purchased or constructed; and

in either case that does not exceed 100% of the cost and to the extent the purchase or construction prices for such assets are or should be included in “addition to property, plant or equipment” in accordance with GAAP.

“Purchase Money Note” means a promissory note of a Receivable Subsidiary to the Company or any Restricted Subsidiary, which note must be repaid from cash available to the Receivable Subsidiary, other than amounts required to be established as reserves pursuant to agreements, amounts paid to investors in respect of interest, principal and other amounts owing to such investors and amounts paid in connection with the purchase of newly generated receivables. The repayment of a Purchase Money Note may be subordinated to the repayment of other liabilities of the Receivable Subsidiary on terms determined in good faith by the Company to be substantially consistent with market practice in connection with Qualified Receivables Transactions.

“Purchase Price” has the meaning set forth in the definition of “Offer to Purchase.”

“Qualified Capital Interests” in any Person means a class of Capital Interests other than Redeemable Capital Interests.

“Qualified Equity Offering” means (i) an underwritten public equity offering of Qualified Capital Interests pursuant to an effective registration statement under the Securities Act or (ii) a private equity offering of Qualified Capital Interests of the Company, or any direct or indirect parent company of the Company, other than (x) any such public or private sale to an entity that is an Affiliate of the Company and (y) any public offerings registered on Form S-8; provided that, in the case of an offering or sale by a direct or indirect parent company of the Company, such parent company contributes to the capital of the Company the portion of the net cash proceeds of such offering or sale necessary to pay the aggregate Redemption Price (plus accrued interest to the redemption date) of the Notes to be redeemed pursuant to the provisions described under the second paragraph of “—Optional Redemption.”

“Qualified Receivables Transaction” means any transaction or series of transactions entered into by the Company or any of its Restricted Subsidiaries pursuant to which the Company or such Restricted Subsidiary transfers to (a) a Receivable Subsidiary (in the case of a transfer by the Company or any of its Restricted

 

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Subsidiaries) or (b) any other Person (in the case of a transfer by a Receivable Subsidiary), or grants a security interest in, any accounts receivable (whether now existing or arising in the future) of the Company or any of its Restricted Subsidiaries, and any assets related thereto, including, without limitation, all collateral securing such accounts receivable, all contracts and all Guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with an accounts receivable financing transaction; provided such transaction is on market terms as determined in good faith by the Company at the time the Company or such Restricted Subsidiary enters into such transaction.

“Rating Agency” means (1) each of Moody’s and S&P and (2) if Moody’s or S&P ceases to rate the Notes for reasons outside of the Company’s control, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) under the Exchange Act selected by the Company as a replacement agency for Moody’s or S&P, as the case may be.

“Receivable Subsidiary” means a Subsidiary of the Company:

(1)         that is formed solely for the purpose of, and that engages in no activities other than activities in connection with, financing accounts receivable of the Company and/or its Restricted Subsidiaries; provided that “accounts receivable” includes providing letters of credit on behalf of or for the benefit of the Company and/or its Restricted Subsidiaries;

(2)         that is designated by the Board of Directors as a Receivable Subsidiary pursuant to an Officer’s Certificate that is delivered to the Trustee;

(3)         that is either (a) a Restricted Subsidiary or (b) an Unrestricted Subsidiary designated in accordance with the covenant described under “—Certain Covenants—Limitation on Designation of Unrestricted Subsidiaries”;

(4)         no portion of the Debt or any other obligation (contingent or otherwise) of which (a) is at any time Guaranteed by the Company or any Restricted Subsidiary (excluding Guarantees of obligations (other than any Guarantee of Debt) pursuant to Standard Securitization Undertakings), (b) is at any time recourse to or obligates the Company or any Restricted Subsidiary in any way, other than pursuant to Standard Securitization Undertakings or (c) subjects any asset of the Company or any other Restricted Subsidiary of the Company, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings (such Debt, “Non-Recourse Receivable Subsidiary Indebtedness”);

(5)         with which neither the Company nor any Restricted Subsidiary has any material contract, agreement, arrangement or understanding other than (a) contracts, agreements, arrangements and understandings entered into in the ordinary course of business on terms no less favorable to the Company or such Restricted Subsidiary than those that might reasonably be expected to be obtained at the time from Persons that are not Affiliates of the Company in connection with a Qualified Receivables Transaction as determined in good faith by the Board of Directors of the Company, (b) fees payable in the ordinary course of business in connection with servicing accounts receivable in connection with such a Qualified Receivables Transaction as determined in good faith by the Board of Directors of the Company and (c) any Purchase Money Note issued by such Receivable Subsidiary to the Company or a Restricted Subsidiary or any letters of credit provided by such Receivable Subsidiary on behalf of or for the benefit of the Company or any Restricted Subsidiary; and

(6)         with respect to which neither the Company nor any other Restricted Subsidiary has any obligation (a) to subscribe for additional shares of Capital Interests therein or make any additional capital contribution or similar payment or transfer thereto except in connection with a Qualified Receivables Transaction or (b) to maintain or preserve the solvency or any balance sheet term, financial condition, level of income or results of operations thereof.

 

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“Redeemable Capital Interests” in any Person means any equity security of such Person that by its terms (or by terms of any security into which it is convertible or for which it is exchangeable), or otherwise (including the passage of time or the happening of an event), is required to be redeemed, is redeemable at the option of the holder thereof in whole or in part (including by operation of a sinking fund), or is convertible or exchangeable for Debt of such Person at the option of the holder thereof, in whole or in part, at any time prior to the Stated Maturity of the Notes; provided that only the portion of such equity security which is required to be redeemed, is so convertible or exchangeable or is so redeemable at the option of the holder thereof before such date will be deemed to be Redeemable Capital Interests. Notwithstanding the preceding sentence, any equity security that would constitute Redeemable Capital Interests solely because the holders of the equity security have the right to require the Company to repurchase such equity security upon the occurrence of a Change of Control or an Asset Sale will not constitute Redeemable Capital Interests if the terms of such equity security provide that the Company may not repurchase or redeem any such equity security pursuant to such provisions unless such repurchase or redemption complies with the covenant described above under the caption “—Certain Covenants— Limitation on Restricted Payments.” The amount of Redeemable Capital Interests deemed to be outstanding at any time for purposes of the Indenture will be the maximum amount that the Company and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Redeemable Capital Interests or portion thereof, exclusive of accrued dividends.

“Redemption Price,” when used with respect to any Note to be redeemed, means the price at which it is to be redeemed pursuant to the Indenture.

“Refinancing Debt” means Debt that refunds, refinances, renews, replaces or extends any Debt permitted to be Incurred by the Company or any Restricted Subsidiary pursuant to the terms of the Indenture, whether involving the same or any other lender or creditor or group of lenders or creditors, but only to the extent that

(i)         the Refinancing Debt is subordinated to the Notes to at least the same extent as the Debt being refunded, refinanced, renewed, replaced or extended, if such Debt was subordinated to the Notes,

(ii)         the Refinancing Debt is scheduled to mature either (a) no earlier than the Debt being refunded, refinanced, renewed, replaced or extended or (b) at least 91 days after the maturity date of the Notes,

(iii)         the Refinancing Debt has an Average Life at the time such Refinancing Debt is Incurred that is equal to or greater than the Average Life of the Debt being refunded, refinanced, renewed, replaced or extended,

(iv)         such Refinancing Debt is in an aggregate principal amount that is less than or equal to the sum of (a) the aggregate principal or accreted amount (in the case of any Debt issued with original issue discount, as such) then outstanding under the Debt being refunded, refinanced, renewed, replaced or extended, (b) the amount of accrued and unpaid interest, if any, and premiums owed, if any, not in excess of preexisting prepayment provisions on such Debt being refunded, refinanced, renewed, replaced or extended and (c) the amount of reasonable and customary fees, expenses and costs related to the Incurrence of such Refinancing Debt, and

(v)         such Refinancing Debt is Incurred by the same Person (or its successor) that initially Incurred the Debt being refunded, refinanced, renewed, replaced or extended, except that the Company may Incur Refinancing Debt to refund, refinance, renew, replace or extend Debt of any Restricted Subsidiary of the Company.

“Related Business Assets” means assets (other than cash or Eligible Cash Equivalents) used or useful in a Permitted Business; provided that any assets received by the Company or a Restricted Subsidiary in exchange for assets transferred by the Company or a Restricted Subsidiary shall not be deemed to be Related Business Assets if they consist of securities of a Person unless, upon receipt of the securities of such Person, such Person would become a Restricted Subsidiary.

 

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“Release” means the release to the Company of the Escrowed Property (less the discount to the initial purchasers of the Original Notes) by U.S. Bank National Association, as escrow agent.

“Restricted Payment” is defined to mean any of the following:

(a)         any dividend or other distribution declared or paid on the Capital Interests in the Company or on the Capital Interests in any Restricted Subsidiary of the Company that are held by, or declared and paid to, any Person other than the Company or a Restricted Subsidiary of the Company (other than

(i)         dividends, distributions or payments made solely in Qualified Capital Interests in the Company and

(ii)         dividends or distributions payable to the Company or a Restricted Subsidiary of the Company or to other holders of Capital Interests of a Restricted Subsidiary on a pro rata basis);

(b)         any payment made by the Company or any of its Restricted Subsidiaries to purchase, redeem, acquire or retire any Capital Interests in the Company (including the conversion into, or exchange for, Debt, of any Capital Interests) (other than a payment made solely in Qualified Capital Interests in the Company);

(c)         any payment made by the Company or any of its Restricted Subsidiaries (other than a payment made solely in Qualified Capital Interests in the Company) to redeem, repurchase, defease (including an in substance or legal defeasance) or otherwise acquire or retire for value (including pursuant to mandatory repurchase covenants), prior to any scheduled maturity or scheduled sinking fund, Debt of the Company or any Guarantor that is subordinate in right of payment to the Notes or Note Guarantees (excluding any Debt owed to the Company or any Restricted Subsidiary); except payments of principal and interest in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, within one year of the due date thereof;

(d)         any Investment by the Company or a Restricted Subsidiary in any Person, other than a Permitted Investment; and

(e)         any designation of a Restricted Subsidiary as an Unrestricted Subsidiary.

“Restricted Subsidiary” means any Subsidiary that has not been designated as an “Unrestricted Subsidiary” in accordance with the Indenture.

“S&P” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc., and any successor to its rating agency business.

“Significant Subsidiary” has the meaning set forth in Rule 1-02 of Regulation S-X under the Securities and Exchange Act, but shall not include any Unrestricted Subsidiary.

“Standard Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by the Company or any Restricted Subsidiary which are reasonably customary in an accounts receivable securitization transaction as determined in good faith by the Company, including Guarantees by the Company or any Restricted Subsidiary of any of the foregoing obligations of the Company or a Restricted Subsidiary.

“Stated Maturity,” when used with respect to (i) any Note or any installment of interest thereon, means the date specified in such Note as the fixed date on which the principal amount of such Note or such installment

 

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of interest is due and payable and (ii) any other Debt or any installment of interest thereon, means the date specified in the instrument governing such Debt as the fixed date on which the principal of such Debt or such installment of interest is due and payable.

“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person.

“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including, without limitation, any fuel price caps and fuel price collar or floor agreements and similar agreements or arrangements designed to protect against or manage fluctuations in fuel prices and any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

“Target” means HGGC Citadel Plastics Holdings, Inc., a Delaware corporation.

“Target Acquisition” means the acquisition of all of the Capital Interests of Target pursuant to the Target Acquisition Agreement.

“Target Acquisition Agreement” means the Stock Purchase Agreement dated as of March 15, 2015 among the Company, Citadel Plastics Holdings, LLC, the Target and the other parties thereto.

“Total Leverage Ratio” means, as of any date of determination, the ratio of (a) the consolidated Debt of the Company and its Restricted Subsidiaries less unrestricted cash and Eligible Cash Equivalents of the Company and its Restricted Subsidiaries at the end of the most recent fiscal period for which financial information in respect thereof is available immediately preceding the Transaction Date to (b) the Consolidated Cash Flow Available for Fixed Charges of the Company and its Restricted Subsidiaries for the four full fiscal quarters, treated as one period, for which financial information in respect thereof is available immediately preceding the date of such transaction. In addition to and without limitation of the foregoing, this ratio shall be calculated after giving effect (i) to the cost of any compensation, remuneration or other benefit paid or provided to any employee, consultant, Affiliate, equity owner of the entity involved in any Asset Acquisition to the extent such costs are eliminated or reduced (or public announcement has been made of the intent to eliminate or reduce such costs) prior to the date of such calculation and not replaced; and (ii) on a pro forma basis for the period of such calculation, to any Asset Sales or other dispositions or Asset Acquisitions, Investments, mergers, consolidations or designations of any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary occurring during the Four Quarter Period or any time subsequent to the last day of the Four Quarter Period and on or prior to the Transaction Date, as if such Asset Sale or other disposition or Asset Acquisition (including the Incurrence or assumption of any such Acquired Debt), Investment, merger, consolidation, disposed operation or designation occurred on the first day of the Four Quarter Period. For purposes of this definition, pro forma calculations shall be made in accordance with Article 11 of Regulation S-X promulgated under the Securities Act, except that such pro forma calculations may also include (1) adjustments of the nature used in connection with the calculation of “Further Adjusted EBITDA” as set forth under “Summary—Summary Unaudited Pro Forma Condensed Combined

 

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Financial Information of A. Schulman and Citadel” in the offering memorandum related to the private sale of the Original Notes and (2) operating expense reductions for such period resulting from the Asset Sale or other disposition or Asset Acquisition, investment, merger or consolidation for which pro forma effect is being given (A) that have been realized or (B) for which steps have been taken or are reasonably expected to be taken within twelve (12) months of the date of such transaction and are supportable and quantifiable and, in each case, including, but not limited to, (a) reduction in personnel expenses, (b) reduction of costs related to administrative functions, (c) reduction of costs related to leased or owned properties and (d) reductions from the consolidation of operations and streamlining of corporate overhead; provided that, in either case, such adjustments are set forth in an Officer’s Certificate signed by the Company’s chief financial or similar officer that states (i) the amount of such adjustment or adjustments and (ii) that such adjustment or adjustments are based on the reasonable good faith belief of the Officers executing such Officer’s Certificate at the time of such execution.

“Transactions” means (i) the Target Acquisition, (ii) the private sale of the Original Notes, (iii) the repayment or redemption of certain Debt of the Company and the Acquired Business, (iv) the entry into the Credit Agreement and (v) the issuance of the Company’s Convertible Special Stock in connection with the Target Acquisition.

“Treasury Rate” means the yield to maturity at the date of redemption of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) which has become publicly available at least two business days prior to the date of redemption (or, if such Statistical Release is no longer published, any publicly available source for similar market data)) most nearly equal to the period from the redemption date to June 1, 2018; provided, however, that if the period from the redemption date to June 1, 2018 is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Treasury Rate will be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the then remaining term of the Notes to June 1, 2018 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.

“Unrestricted Subsidiary” means: (i) any Subsidiary designated as such by an Officer’s Certificate as set forth below where neither the Company nor any of its Restricted Subsidiaries (a) provides credit support for, or Guarantee of, any Debt of such Subsidiary or any Subsidiary of such Subsidiary (including any undertaking, agreement or instrument evidencing such Debt, but excluding in the case of a Receivables Subsidiary any Standard Securitization Undertakings under which the lender has recourse to the Company or any Restricted Subsidiary or to any of their assets that does not exceed $15.0 million in the aggregate.); provided that the Company or any Restricted Subsidiary may pledge Capital Interests or Property of any Unrestricted Subsidiary on a non-recourse basis as long as the pledgee has no claim whatsoever against the Company or any Restricted Subsidiary other than to obtain that pledged Capital Interests or Property, or (b) is directly or indirectly liable for any Debt of such Subsidiary or any Subsidiary of such Subsidiary; and (ii) any Subsidiary of an Unrestricted Subsidiary.

“Voting Interests” means, with respect to any Person, securities of any class or classes of Capital Interests in such Person entitling the holders thereof generally to vote on the election of members of the Board of Directors or comparable body of such Person.

 

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BOOK-ENTRY, SETTLEMENT AND CLEARANCE

The Global Note

The Exchange Notes issued in exchange for Original Notes will be represented by one or more global notes in definitive, fully registered form, without interest coupons, which we refer to collectively as the “Global Note.”

Upon issuance, the Global Note will be deposited with the Trustee as custodian for DTC and registered in the name of Cede & Co., as nominee of DTC.

Ownership of beneficial interests in the Global Note will be limited to persons who have accounts with DTC, which we refer to as “DTC Participants,” or persons who hold interests through DTC Participants. We expect that under procedures established by DTC:

 

•

upon deposit of the Global Note with DTC’s custodian, DTC will credit portions of the principal amount of the Global Note to the accounts of the DTC Participants designated by the Exchange Agent; and

 

•

ownership of beneficial interests in the Global Note will be shown on, and transfer of ownership of those interests will be effected only through, records maintained by DTC (with respect to interests of DTC Participants) and the records of DTC Participants (with respect to other owners of beneficial interests in the Global Note).

Beneficial interests in the Global Note may not be exchanged for notes in physical, certificated form except in the limited circumstances described below.

Book-entry Procedures for the Global Note

The following description of the operations and procedures of DTC is provided solely as a matter of convenience. These operations and procedures are solely within the control of the respective settlement systems and are subject to changes by them. Neither the Company nor the Trustee takes any responsibility for these operations and procedures, and investors are urged to contact the system or their participants directly to discuss these matters.

DTC has advised the Company that DTC is a limited-purpose trust company created to hold securities for its participating organizations, which we refer to collectively as “Participants,” and to facilitate the clearance and settlement of transactions in those securities between Participants through electronic book-entry changes in accounts of its Participants. The Participants include securities brokers and dealers (including the initial purchasers of the Original Notes), banks, trust companies, clearing corporations and certain other organizations. Access to DTC’s system is also available to other entities such as banks, brokers, dealers and trust companies that clear through, or maintain a custodial relationship with, a Participant, either directly or indirectly, which we refer to collectively as the “Indirect Participants.” Persons who are not Participants may beneficially own securities held by or on behalf of DTC only through the Participants or the Indirect Participants. The ownership interests in, and transfers of ownership interests in, each security held by or on behalf of DTC are recorded on the records of the Participants and Indirect Participants.

DTC has also advised the Company that, pursuant to procedures established by it:

(1)   upon deposit of the Global Note, DTC will credit the accounts of Participants designated by the initial purchaser with portions of the principal amount of the Global Note; and

(2)   ownership of these interests in the Global Note will be shown on, and the transfer of ownership of these interests will be effected only through, records maintained by DTC (with respect to the Participants) or by the Participants and the Indirect Participants (with respect to other owners of beneficial interests in the Global Notes).

 

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Investors in the Global Note who are Participants in DTC’s system may hold their interests therein directly through DTC. Investors in the Global Note who are not Participants may hold their interests therein indirectly through organizations which are Participants in such system. All interests in a Global Note may be subject to the procedures and requirements of DTC. The laws of some states require that certain persons take physical delivery in definitive form of securities that they own. Consequently, the ability to transfer beneficial interests in a Global Note to such Persons will be limited to that extent. Because DTC can act only on behalf of Participants, which in turn act on behalf of Indirect Participants, the ability of a Person having beneficial interests in a Global Note to pledge such interests to Persons that do not participate in the DTC system, or otherwise take actions in respect of such interests, may be affected by the lack of a physical certificate evidencing such interests.

Except as described below, owners of an interest in the Global Note will not have Exchange Notes registered in their names, will not receive physical delivery of Exchange Notes in certificated form and will not be considered the registered owners or “Holders” thereof under the Indenture for any purpose.

Payments in respect of the principal of, and interest and premium and additional interest, if any, on a Global Note registered in the name of DTC or its nominee will be payable to DTC in its capacity as the registered Holder under the Indenture. Under the terms of the Indenture, the Company and the Trustee will treat the persons in whose names the Exchange Notes, including the Global Note, are registered as the owners of the Exchange Notes for the purpose of receiving payments and for all other purposes.

Consequently, neither the Company nor the Trustee nor any agent of the Company or the Trustee has or will have any responsibility or liability for:

(1)   any aspect of DTC’s records or any Participant’s or Indirect Participant’s records relating to, or payments made on account of, beneficial ownership interest in the Global Note or for maintaining, supervising or reviewing any of DTC’s records, or any Participant’s or Indirect Participant’s records, relating to the beneficial ownership interests in the Global Note; or

(2)   any other matter relating to the actions and practices of DTC or any of its Participants or Indirect Participants.

DTC has advised the Company that its current practice, upon receipt of any payment in respect of securities such as the Exchange Notes (including principal and interest), is to credit the accounts of the relevant Participants with the payment on the payment date unless DTC has reason to believe it will not receive payment on such payment date. Each relevant Participant is credited with an amount proportionate to its beneficial ownership of an interest in the principal amount of the relevant security as shown on the records of DTC. Payments by the Participants and the Indirect Participants to the beneficial owners of Exchange Notes will be governed by standing instructions and customary practices and will be the responsibility of the Participants or the Indirect Participants and will not be the responsibility of DTC, the Trustee or the Company. Neither the Company nor the Trustee will be liable for any delay by DTC or any of its Participants in identifying the beneficial owners of the Exchange Notes, and the Company and the Trustee may conclusively rely on and will be protected in relying on instructions from DTC or its nominee for all purposes.

DTC has advised the Company that it will take any action permitted to be taken by a holder of the Exchange Notes only at the direction of one or more Participants to whose account DTC has credited the interests in the Global Note and only in respect of such portion of the aggregate principal amount of the Exchange Notes as to which such Participant or Participants has or have given such direction. However, if there is an event of default under the Exchange Notes, DTC reserves the right to exchange the Global Note for legended notes in certificated form and to distribute such notes to its Participants.

Neither the Company nor the Trustee nor any of their respective agents will have any responsibility for the performance by DTC or the Participants or Indirect Participants of their respective obligations under the rules and procedures governing their operations.

 

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Certificated Notes

Notes in physical, certificated form will be issued and delivered to each person that DTC identifies as a beneficial owner of the related Exchange Notes only if:

 

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DTC notifies us at any time that it is unwilling or unable to continue as depositary for the Global Note and a successor depositary is not appointed within 90 days;

 

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DTC ceases to be registered as a clearing agency under the Exchange Act and a successor depositary is not appointed within 90 days;

 

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we, at our option, notify the Trustee that we elect to cause the issuance of certificated notes; or

 

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certain other events provided in the Indenture should occur.

 

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CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS

The following is a discussion of certain United States federal income tax consequences of an exchange of Original Notes for Exchange Notes pursuant to the Exchange Offer, but does not purport to be a complete analysis of all the potential tax considerations relating to the Exchange Offer or the Exchange Notes. This discussion is based on current provisions of the Internal Revenue Code of 1986, as amended, which we refer to as the “Code,” applicable Treasury Regulations promulgated thereunder, judicial interpretations thereof and administrative rulings and pronouncements of the Internal Revenue Service, all as in effect as of the date of this prospectus and all of which are subject to change, possibly with retroactive effect, or different interpretations, and any such change or differing interpretations could affect the accuracy of the statements and conclusions set forth herein. This summary is for general information only and does not purport to address all aspects of United States federal income taxation that may be relevant to particular holders in light of their particular circumstances and does not apply to holders subject to special rules under the United States federal income tax laws, including, for example, holders having a “functional currency” other than the United States dollar, persons subject to special rules applicable to former citizens and residents of the United States, banks or other financial institutions, persons subject to the alternative minimum tax, grantor trusts, entities or arrangements treated as partnerships for United States federal income tax purposes (or investors therein), subchapter S corporations, retirement plans, individual retirement accounts or other tax-deferred accounts, real estate investment trusts, regulated investment companies, insurance companies, tax-exempt entities (including private foundations), dealers in securities or currencies, traders in securities who elect to apply a mark-to-market method of accounting, persons holding Exchange Notes in connection with a hedging transaction, straddle, conversion transaction, constructive sale, or other integrated transaction, and corporations treated as “personal holding companies,” “controlled foreign corporations,” or “passive foreign investment companies.” In addition, this summary is limited to persons that hold Original Notes and that will hold the Exchange Notes as “capital assets” within the meaning of Section 1221 of the Code (generally, property held for investment). This summary does not address United States federal tax laws other than those pertaining to the federal income tax (such as the gift tax, the estate tax and the Medicare tax) or the effect of any applicable state, local or foreign tax laws.

The exchange of an Original Note for an Exchange Note pursuant to the Exchange Offer will not constitute a taxable exchange for United States federal income tax purposes. Rather, the Exchange Note you receive will be treated for United States federal income tax purposes as a continuation of your investment in the corresponding Original Note surrendered in the Exchange Offer. Consequently, you will not recognize any taxable income, gain or loss upon the receipt of an Exchange Note pursuant to the Exchange Offer, your holding period for an Exchange Note will include your holding period of the Original Note exchanged therefor, and your adjusted tax basis in an Exchange Note will be the same as your adjusted tax basis in the Original Note immediately before such exchange. The United States federal income tax consequences of holding and disposing of an Exchange Note received pursuant to the Exchange Offer generally will be the same as the United States federal income tax consequences of holding and disposing of an Original Note.

You are urged to consult your own tax advisor regarding the United States federal, state, local and foreign tax consequences of exchanging Original Notes for Exchange Notes and of holding and disposing of Exchange Notes given your particular situation.

 

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PLAN OF DISTRIBUTION

Any broker-dealer that holds Original Notes that were acquired for its own account as a result of market-making activities or other trading activities (other than Original Notes acquired directly from us) may exchange such Original Notes pursuant to the Exchange Offer. Any such broker-dealer, however, may be deemed to be an “underwriter” within the meaning of the Securities Act and must, therefore, deliver a prospectus meeting the requirements of the Securities Act in connection with any resales of Exchange Notes received by such broker-dealer in the Exchange Offer. Such prospectus delivery requirement may be satisfied by the delivery by such broker-dealer of this prospectus. We have agreed to make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with such resales for a period of 20 business days from the date of this prospectus.

We will not receive any proceeds from any sale of Exchange Notes by broker-dealers. Exchange Notes received by broker-dealers for their own account in the Exchange Offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the Exchange Notes or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any of these resales may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from these broker-dealers and/or the purchasers of Exchange Notes. Any broker-dealer that resells Exchange Notes that were received by it for its own account in the Exchange Offer and any broker-dealer that participates in a distribution of the Exchange Notes may be deemed to be an “underwriter” within the meaning of the Securities Act and any profit on any such resale of Exchange Notes and any commission or concessions received by any such person may be deemed to be underwriting compensation under the Securities Act. The Letter of Transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.

We have agreed to pay all expenses incident to the Exchange Offer, including the expenses of one counsel for the holders of the Original Notes, other than commissions or concessions of any brokers or dealers and will indemnify the holders of the Original Notes, including any broker-dealers, against certain liabilities, including liabilities under the Securities Act.

LEGAL MATTERS

The validity of the Exchange Notes and Guarantees offered hereby will be passed upon for us by Jones Day, Krieg DeVault LLP, Indianapolis, Indiana (with respect to Indiana law matters) and Greenberg Traurig, LLP (with respect to New Jersey law matters).

EXPERTS

The financial statements and management’s assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal Control over Financial Reporting) incorporated in this Prospectus by reference to the Annual Report on Form 10-K for the year ended August 31, 2016 have been so incorporated in reliance on the report (which contains an adverse opinion on the effectiveness of internal control over financial reporting) of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.

 

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PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 20.    Indemnification of Directors and Officers.

Delaware Registrants

A. Schulman, Inc., Citadel Plastics Holdings, Inc., HGGC Citadel Plastics Holdings, Inc., HGGC Citadel Plastics Intermediate Holdings, Inc., ICO Global Services, Inc., ICO P&O Inc., ICO Polymers, Inc., ICO Technology, Inc., LPI Holding Company and Lucent Polymers Holding Company are incorporated under the laws of Delaware.

Limitation of Personal Liability of Directors

Under Section 102(b)(7) of the General Corporation Law of the State of Delaware (the “DGCL”), a certificate of incorporation may, subject to certain limitations, contain a provision limiting or eliminating a director’s personal liability to the corporation or its stockholders for monetary damages for a director’s breach of fiduciary duty, provided that such provision shall not eliminate or limit the liability of a director for: (1) any breach of the director’s duty of loyalty to the corporation or its stockholders; (2) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (3) unlawful payment of dividends or unlawful stock repurchases, as set forth in the DGCL; or (4) any transaction from which the director derived an improper personal benefit. The certificates of incorporation of each of the registrants incorporated under the DGCL limit or eliminate to the fullest extent permitted by the DGCL a director’s personal liability to the corporation or its stockholders for monetary damages for a director’s breach of fiduciary duty.

Indemnification of Directors, Officers and Employees

Section 145 of the DGCL empowers Delaware corporations to indemnify any persons who are, or are threatened to be made, parties to any threatened, pending or completed legal action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The indemnity may include expenses (including attorney fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests and, for criminal proceedings, had no reasonable cause to believe his conduct was unlawful. A Delaware corporation may indemnify directors, officers, employees and agents in an action by or in the right of the corporation under the same conditions, except that no indemnification is permitted without judicial approval if the person is adjudged to be liable to the corporation in the performance of his duty. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against expenses that such officer or director actually and reasonably incurred.

The certificates of incorporation or by-laws of each of the registrants incorporated under the DGCL provide that each person who is or was a director, officer, employee or agent of such corporations shall be indemnified by such corporations against expenses (including, but not limited to, attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him) in connection with any actual or threatened action, suit or proceeding to which he may be made a party by reason of his being, or having been, a director, officer, employee or agent of such corporations to the full extent permitted by the DGCL, upon such determination having been made as to his good faith and conduct as is required by the DGCL or, with respect to any criminal action or proceeding, upon such determination that he did not have reasonable cause to believe that his action was unlawful as is required by the DGCL. The certificates of incorporation or by-laws of the registrants

 

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incorporated under the DGCL, other than ICO Polymers, Inc. and ICO Technology, Inc., also provide that expenses incurred in defending a civil or criminal action, suit or proceeding shall be paid by such corporations in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it ultimately shall be determined that he is not entitled to be indemnified by such corporations.

Section 174 of the DGCL provides, among other things, that a director who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption, may be held liable for such actions. A director who was either absent when the unlawful actions were approved or dissented at the time may avoid liability by causing his or her dissent to such actions to be entered into the books containing the minutes of the meetings of the board of directors at the time such action occurred or immediately after such absent director receives notice of the unlawful acts.

Citadel Intermediate Holdings, LLC and HPC Holdings, LLC are limited liability companies organized under the laws of Delaware.

Section 18-108 of the Delaware Limited Liability Company Act (the “DLLCA”) empowers Delaware limited liability companies to indemnify and hold harmless any member or manager of the limited liability company or other person from and against any and all claims and demands whatsoever.

The limited liability company agreement of HPC Holdings, LLC contains provisions that indemnify, and provide for advancement of expenses to, the member and each officer to the full extent of the law for any act or omission performed or omitted on behalf of such limited liability companies; provided, however, that any indemnity shall be provided out of and to the extent of such companies’ assets only, and no member or officer, as applicable, or any other person, shall have personal liability on account thereof. The governing documents of Century Intermediate Holdings, LLC do not contain comparable provisions.

New Jersey Registrants

ICO Polymers North America, Inc. and Wedco Technology, Inc. are incorporated under the laws of New Jersey.

Section 14A:3-5 of the New Jersey Business Corporation Act (the “NJBCA”) authorizes a corporation to indemnify a corporate agent against expenses and liability in connection with any proceeding involving the corporate agent by reason of him being or having been a corporate agent, if such corporate agent (i) acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation and (ii) with respect to any criminal proceeding, such corporate agent had no reasonable cause to believe such corporate agent’s conduct was unlawful. “Corporate agent” means any person who is or was a director, officer, employee or agent of the indemnifying corporation or of any constituent corporation absorbed by the indemnifying corporation in a consolidation or merger and any such person who is serving as such at the request of the indemnifying corporation. Expenses incurred by a corporate agent in connection with a proceeding may be paid by the corporation in advance of the final disposition of the proceeding as authorized by the board of directors upon receipt of an undertaking by or on behalf of the corporate agent to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified.

The bylaws of Wedco Technology, Inc. provide for the indemnification of directors, officers, employees or agents against those liabilities and on those terms and conditions as are specified in Section 14A: 3-5 of the NJBCA. The governing documents of ICO Polymers North America, Inc. do not contain comparable provisions.

 

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Texas Registrants

Bayshore Industrial, L.L.C. and ICO-Schulman, LLC are limited liability companies organized under the laws of Texas.

Section 101.402 of the Texas Limited Liability Company Act (the “TLLCA”) permits a limited liability company to indemnify members, managers, officers and other persons and purchase and maintain liability insurance for such persons. Section 101.401 of the TLLCA provides that the company agreement of a limited liability company may expand or restrict any duties, including fiduciary duties, and related liabilities that a member, manager, officer, or other person has to the company or to a member or manager of the company.

The limited liability company agreement of ICO-Schulman, LLC provides that, to the extent permitted by applicable law, ICO-Schulman, LLC shall indemnify its members, managers and officers against losses, claims, damages or liabilities to which such members, managers and officers may become subject in connection with an action taken in connection with any matter arising out of or in connection with the limited liability company agreement of ICO-Schulman, LLC or ICO-Schulman, LLC’s business or affairs and requires ICO-Schulman, LLC to reimburse such members, managers and officers for their reasonable legal and other reasonable out-of-pocket expenses as they are incurred in connection therewith, provided that they shall promptly repay to ICO-Schulman, LLC the amount of any such reimbursed expenses paid to them if it shall ultimately be determined that they were not entitled to be indemnified by ICO-Schulman, LLC in connection with such action. The governing documents of Bayshore Industrial, L.L.C. do not contain comparable provisions.

Illinois Registrant

Bulk Molding Compounds, Inc. is incorporated under the laws of Illinois.

Under Section 8.75 of the Illinois Business Corporation Act of 1983 (the “ILBCA”), a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding (i) if such person acted in good faith and in a manner that person reasonably believed to be in or not opposed to the best interests of the corporation and (ii) with respect to any criminal action or proceeding, if he or she had no reasonable cause to believe such conduct was unlawful. In actions brought by or in the right of the corporation, a corporation may indemnify such person against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner that person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made in respect of any claim, issue or matter as to which that person shall have been adjudged to be liable to the corporation unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnification for such expenses which the court shall deem proper.

To the extent that such person has been successful on the merits or otherwise in defending any such action, suit or proceeding referred to above or any claim, issue or matter therein, he or she is entitled to indemnification for expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith, if such person acted in good faith and in a manner that person reasonably believed to be in or not opposed to the best interests of the corporation.

 

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Section 8.75(f) of the ILBCA further provides that the indemnification and advancement of expenses provided by or granted under Section 8.75 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors, or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office.

The bylaws of the registrant incorporated under the ILBCA provide for the indemnification of directors and officers to the fullest extent permitted by the ILBCA.

Indiana Registrant

The Matrixx Group, Incorporated is incorporated under the laws of Indiana.

Section 23-1-37-8 of the Indiana Business Corporation Law (“IBCL”) provide that a corporation may indemnify a former or current director made a party to a proceeding against liability if the individual acted in good faith and (i) in the case of conduct in his or her official capacity, the individual acted in a manner he or she reasonably believed to be in the best interests of the corporation, (ii) in all other cases, the individual’s conduct was at least not opposed to the best interests of the corporation and, (iii) with respect to any criminal proceeding, the individual had either reasonable cause to believe his or her conduct was lawful or no reasonable cause to believe his or her conduct was unlawful.

Unless limited by its articles of incorporation, Section 23-1-37-9 of the IBCL provides that a corporation must indemnify a director who is wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party because the director is or was a director of the corporation, against reasonable expenses incurred by the director in connection with the proceeding.

Section 23-1-37-13 of the IBCL provides that, unless its articles of incorporation provide otherwise, an officer of a corporation, whether or not a director, is entitled to mandatory indemnification under Section 231-37-9 of the IBCL to the same extent as a director and a corporation may indemnify and advance expenses to an officer, employee or agent of the corporation, whether or not a director, to the same extent as a director.

The by-laws of the registrant incorporated under the IBCL provide that such registrant shall indemnify a former or current director or officer made a party to a proceeding against liability to the fullest extent provided by the IBCL.

Ohio Registrant

Premix, Inc. is incorporated under the laws of Ohio.

Section 1701.13(E) of the Ohio Revised Code (the “ORC”) authorizes Ohio corporations to indemnify officers and directors from liability if the officer or director acted in good faith and in a manner reasonably believed by the officer or director to be in or not opposed to the best interests of the corporation, and, with respect to any criminal actions, if the officer or director had no reason to believe his or her action was unlawful. In the case of an action by or on behalf of a corporation, indemnification may not be made (1) if the person seeking indemnification is adjudged liable for negligence or misconduct, unless the court in which such action was brought determines such person is fairly and reasonably entitled to indemnification, or (2) if liability asserted against such person concerns certain unlawful distributions. The indemnification provisions of the ORC require indemnification if a director or officer has been successful on the merits or otherwise in defense of any action, suit or proceeding that he or she was a party to by reason of the fact that he or she is or was a director or officer of the corporation. The indemnification authorized under the ORC is not exclusive and is in addition to any other rights granted to officers and directors under the articles of incorporation or code of regulations of the corporation or any agreement between officers and directors and the corporation. A corporation may purchase and maintain insurance or furnish similar protection on behalf of any officer or director against any liability

 

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asserted against such person and incurred by such person in his or her capacity, or arising out of his or her status, as an officer or director, whether or not the corporation would have the power to indemnify him or her against such liability under the Ohio Code.

The code of regulations of the registrant incorporated under the ORC provides for the indemnification of directors and officers to the maximum extent permitted by Ohio law as authorized by the board of directors of the registrant and for the advancement of expenses incurred in connection with the defense of any action, suit or proceeding that he or she was a party to by reason of the fact that he or she is or was a director or officer of the registrant upon the receipt of an undertaking to repay such amount unless it is ultimately determined that the director or officer is entitled to indemnification.

Certain Other Arrangements

A. Schulman, Inc. and the other registrants maintain directors’ and officers’ liability insurance policies that cover the directors and officers of A. Schulman, Inc. and the other registrants, respectively, in amounts that the registrants believe are customary in their industry.

Item 21.    Exhibits and Financial Statement Schedules.

(a) Exhibits

See the Exhibit Index, incorporated by reference herein.

Item 22.    Undertakings.

(a)   Each of the undersigned registrants 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 (the “Securities Act”);

(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. Notwithstanding the foregoing, any increase or decrease in the 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 end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent 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 the registration statement or any material change to such information in the 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;

 

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(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;

(4)   that, for the purpose of determining liability under the Securities Act to any purchaser, if the registrants are subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use; and

(5)   that, for the purpose of determining liability of the registrants under the Securities Act to any purchaser in the initial distribution of the securities: Each of the undersigned registrants undertakes that in a primary offering of securities of the undersigned registrants pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrants will be sellers to the purchaser and will be considered to offer or sell such securities to such purchaser:

(i)   Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

(ii)   Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;

(iii)   The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and

(iv)   Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

(b)   Each of the undersigned registrants hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (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 the 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.

(c)   Each of the undersigned registrants hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11 or 13 of Form S-4, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.

 

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(d)   Each of the undersigned registrants hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.

(e)   Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of a registrant pursuant to the foregoing provisions, or otherwise, such registrant has been advised that in the opinion of the SEC 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 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 Securities Act and will be governed by the final adjudication of such issue.

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fairlawn, State of Ohio, on October 27, 2016.

 

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.

 

Signature				Title				Date
*				Chairman, Chief Executive Officer and President (Principal Executive Officer)				October 27, 2016
Joseph M. Gingo
/s/ Joseph J. Levanduski				Executive Vice President, Chief Financial Officer (Principal Financial Officer)				October 27, 2016
Joseph J. Levanduski
*				Vice President, Chief Accounting Officer and Corporate Controller (Principal				October 27, 2016
Kristopher R. Westbrooks				Accounting Officer)
*				Director				October 27, 2016
Eugene R. Allspach
*				Director				October 27, 2016
Gregory T. Barmore
*				Director				October 27, 2016
David G. Birney
*				Director				October 27, 2016
Lee D. Meyer
*				Director				October 27, 2016
James A. Mitarotonda
*				Director				October 27, 2016
Ernest J. Novak, Jr.
*				Director				October 27, 2016
Dr. Irvin D. Reid

* The undersigned, by signing her name hereto, does hereby sign and execute this Registration Statement pursuant to the Power of Attorney executed by the above-named directors and officers of the Registrant, which is being filed herewith on behalf of such directors and officers.

By:  /s/ Andrean R. Horton

Attorney-in-Fact

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fairlawn, State of Ohio, on October 27, 2016.

 

Power of Attorney

Each person whose signature appears below constitutes and appoints each of Joseph M. Gingo, Joseph J. Levanduski and Andrean R. Horton as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including all pre-effective and post-effective amendments and registration statements filed pursuant to Rule 462 under the Securities Act of 1933), 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 act and thing requisite and necessary to be done, 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-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

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.

 

Signature				Title				Date
/s/ Joseph M. Gingo Joseph M. Gingo				Manager , President and Chief Executive Officer (Principal Executive Officer)				October 27, 2016
/s/ Joseph J. Levanduski Joseph J. Levanduski				Manager, Vice President, Chief Financial Officer and Treasurer (Principal Financial Officer and Principal Accounting Officer)				October 27, 2016
/s/ Andrean R. Horton				Manager				October 27, 2016
Andrean R. Horton

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fairlawn, State of Ohio, on October 27, 2016.

 

Power of Attorney

Each person whose signature appears below constitutes and appoints each of Joseph M. Gingo, Joseph J. Levanduski and Andrean R. Horton as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including all pre-effective and post-effective amendments and registration statements filed pursuant to Rule 462 under the Securities Act of 1933), 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 act and thing requisite and necessary to be done, 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-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

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.

 

Signature				Title				Date
/s/ Joseph M. Gingo Joseph M. Gingo				Chairman and Chief Executive Officer (Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer)				October 27, 2016
/s/ Joseph J. Levanduski Joseph J. Levanduski				Director				October 27, 2016
/s/ Wisdom Dzotsi Wisdom Dzotsi				Director				October 27, 2016

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fairlawn, State of Ohio, on October 27, 2016.

 

Power of Attorney

Each person whose signature appears below constitutes and appoints each of Joseph M. Gingo, Joseph J. Levanduski and Andrean R. Horton as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including all pre-effective and post-effective amendments and registration statements filed pursuant to Rule 462 under the Securities Act of 1933), 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 act and thing requisite and necessary to be done, 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-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

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.

 

Signature				Title				Date
/s/ Joseph M. Gingo Joseph M. Gingo				President and Chief Executive Officer (Principal Executive Officer)				October 27, 2016
/s/ Joseph J. Levanduski Joseph J. Levanduski				Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)				October 27, 2016
/s/ Joseph M. Gingo Joseph M. Gingo				President of Citadel Plastics Holdings, Inc., Sole Member				October 27, 2016

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, each of the registrants has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fairlawn, State of Ohio, on October 27, 2016.

 

Power of Attorney

Each person whose signature appears below constitutes and appoints each of Joseph M. Gingo, Joseph J. Levanduski and Andrean R. Horton as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including all pre-effective and post-effective amendments and registration statements filed pursuant to Rule 462 under the Securities Act of 1933), 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 act and thing requisite and necessary to be done, 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-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

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.

 

Signature				Title				Date
/s/ Joseph M. Gingo Joseph M. Gingo				Director and President (Principal Executive Officer)				October 27, 2016
/s/ Timothy J. McDannold Timothy J. McDannold				Treasurer (Principal Financial Officer and Principal Accounting Officer)				October 27, 2016

 

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Table of Contents

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, each of the registrants has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fairlawn, State of Ohio, on October 27, 2016.

 

Power of Attorney

Each person whose signature appears below constitutes and appoints each of Joseph M. Gingo, Joseph J. Levanduski and Andrean R. Horton as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including all pre-effective and post-effective amendments and registration statements filed pursuant to Rule 462 under the Securities Act of 1933), 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 act and thing requisite and necessary to be done, 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-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

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.

 

Signature				Title				Date
/s/ Joseph M. Gingo Joseph M. Gingo				Director, President and Chief Executive Officer (Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer)				October 27, 2016
/s/ Andrean R. Horton Andrean R. Horton				Director				October 27, 2016
/s/ Joseph J. Levanduski Joseph J. Levanduski				Director				October 27, 2016
/s/ Timothy J. McDannold Timothy J. McDannold				Director				October 27, 2016

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fairlawn, State of Ohio, on October 27, 2016.

 

Power of Attorney

Each person whose signature appears below constitutes and appoints each of Joseph M. Gingo, Joseph J. Levanduski and Andrean R. Horton as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including all pre-effective and post-effective amendments and registration statements filed pursuant to Rule 462 under the Securities Act of 1933), 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 act and thing requisite and necessary to be done, 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-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

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.

 

Signature				Title				Date
/s/ Joseph M. Gingo Joseph M. Gingo				Director and Chief Executive Officer (Principal Executive Officer)				October 27, 2016
/s/ Joseph J. Levanduski Joseph J. Levanduski				Director and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)				October 27, 2016
/s/ Andrean R. Horton Andrean R. Horton				Director				October 27, 2016
/s/ Frank Roederer Frank Roederer				Director				October 27, 2016

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fairlawn, State of Ohio, on October 27, 2016.

 

Power of Attorney

Each person whose signature appears below constitutes and appoints each of Joseph M. Gingo, Joseph J. Levanduski and Andrean R. Horton as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including all pre-effective and post-effective amendments and registration statements filed pursuant to Rule 462 under the Securities Act of 1933), 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 act and thing requisite and necessary to be done, 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-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

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.

 

Signature				Title				Date
/s/ Joseph M. Gingo Joseph M. Gingo				Manager and President (Principal Executive Officer)				October 27, 2016
/s/ Joseph J. Levanduski Joseph J. Levanduski				Manager Treasurer (Principal Financial Officer and Principal Accounting Officer)				October 27, 2016
/s/ Andrean R. Horton Andrean R. Horton				Manager				October 27, 2016

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, each of the registrants has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fairlawn, State of Ohio, on October 27, 2016.

 

Power of Attorney

Each person whose signature appears below constitutes and appoints each of Joseph M. Gingo, Joseph J. Levanduski and Andrean R. Horton as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including all pre-effective and post-effective amendments and registration statements filed pursuant to Rule 462 under the Securities Act of 1933), 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 act and thing requisite and necessary to be done, 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-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

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.

 

Signature				Title				Date
/s/ Joseph M. Gingo Joseph M. Gingo				Director, President and Chief Executive Officer (Principal Executive Officer)				October 27, 2016
/s/ Joseph J. Levanduski Joseph J. Levanduski				Director, Vice President, Chief Financial Officer and Treasurer (Principal Financial Officer and Principal Accounting Officer)				October 27, 2016

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fairlawn, State of Ohio, on October 27, 2016.

 

Power of Attorney

Each person whose signature appears below constitutes and appoints each of Joseph M. Gingo, Joseph J. Levanduski and Andrean R. Horton as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including all pre-effective and post-effective amendments and registration statements filed pursuant to Rule 462 under the Securities Act of 1933), 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 act and thing requisite and necessary to be done, 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-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

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.

 

Signature				Title				Date
/s/ Joseph M. Gingo Joseph M. Gingo				Director and Chief Executive Officer (Principal Executive Officer)				October 27, 2016
/s/ Joseph J. Levanduski Joseph J. Levanduski				Director, Senior Vice President, Chief Financial Officer and Treasurer (Principal Financial Officer and Principal Accounting Officer)				October 27, 2016
/s/ Eric Donald Parsons Eric Donald Parsons				Director				October 27, 2016

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fairlawn, State of Ohio, on October 27, 2016.

 

Power of Attorney

Each person whose signature appears below constitutes and appoints each of Joseph M. Gingo, Joseph J. Levanduski and Andrean R. Horton as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including all pre-effective and post-effective amendments and registration statements filed pursuant to Rule 462 under the Securities Act of 1933), 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 act and thing requisite and necessary to be done, 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-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

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.

 

Signature				Title				Date
/s/ Joseph J. Levanduski Joseph J. Levanduski				Director, President, Chief Executive Officer, Chief Financial Officer and Treasurer (Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer)				October 27, 2016
/s/ Andrean R. Horton Andrean R. Horton				Director				October 27, 2016

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fairlawn, State of Ohio, on October 27, 2016.

 

Power of Attorney

Each person whose signature appears below constitutes and appoints each of Joseph M. Gingo, Joseph J. Levanduski and Andrean R. Horton as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including all pre-effective and post-effective amendments and registration statements filed pursuant to Rule 462 under the Securities Act of 1933), 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 act and thing requisite and necessary to be done, 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-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

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.

 

Signature				Title				Date
/s/ Joseph M. Gingo Joseph M. Gingo				Director, President and Chief Executive Officer (Principal Executive Officer)				October 27, 2016
/s/ Joseph J. Levanduski Joseph J. Levanduski				Director and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)				October 27, 2016
/s/ Andrean R. Horton Andrean R. Horton				Director				October 27, 2016
/s/ Timothy J. McDannold Timothy J. McDannold				Director				October 27, 2016

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fairlawn, State of Ohio, on October 27, 2016.

 

Power of Attorney

Each person whose signature appears below constitutes and appoints each of Joseph M. Gingo, Joseph J. Levanduski and Andrean R. Horton as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including all pre-effective and post-effective amendments and registration statements filed pursuant to Rule 462 under the Securities Act of 1933), 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 act and thing requisite and necessary to be done, 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-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

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.

 

Signature				Title				Date
/s/ Joseph M. Gingo Joseph M. Gingo				Director and President (Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer)				October 27, 2016
/s/ Joseph J. Levanduski Joseph J. Levanduski				Director				October 27, 2016
/s/ Andrean R. Horton Andrean R. Horton				Director				October 27, 2016
/s/ Timothy J. McDannold Timothy J. McDannold				Director				October 27, 2016

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fairlawn, State of Ohio, on October 27, 2016.

 

Power of Attorney

Each person whose signature appears below constitutes and appoints each of Joseph M. Gingo, Joseph J. Levanduski and Andrean R. Horton as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including all pre-effective and post-effective amendments and registration statements filed pursuant to Rule 462 under the Securities Act of 1933), 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 act and thing requisite and necessary to be done, 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-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

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.

 

Signature				Title				Date
/s/ Joseph M. Gingo Joseph M. Gingo				Director and President (Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer)				October 27, 2016
/s/ Frank Roederer Frank Roederer				Director				October 27, 2016
/s/ Andrean R. Horton Andrean R. Horton				Director				October 27, 2016
/s/ Joseph M. Levanduski Joseph M. Levanduski				Director				October 27, 2016

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fairlawn, State of Ohio, on October 27, 2016.

 

Power of Attorney

Each person whose signature appears below constitutes and appoints each of Joseph M. Gingo, Joseph J. Levanduski and Andrean R. Horton as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including all pre-effective and post-effective amendments and registration statements filed pursuant to Rule 462 under the Securities Act of 1933), 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 act and thing requisite and necessary to be done, 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-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

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.

 

Signature				Title				Date
/s/ Frank Roederer Frank Roederer				Director and President (Principal Executive Officer)				October 27, 2016
/s/ Joseph J. Levanduski Joseph J. Levanduski				Director and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)				October 27, 2016
/s/ Andrean R. Horton Andrean R. Horton				Director				October 27, 2016
/s/ Timothy J. McDannold Timothy J. McDannold				Director				October 27, 2016

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fairlawn, State of Ohio, on October 27, 2016.

 

Power of Attorney

Each person whose signature appears below constitutes and appoints each of Joseph M. Gingo, Joseph J. Levanduski and Andrean R. Horton as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including all pre-effective and post-effective amendments and registration statements filed pursuant to Rule 462 under the Securities Act of 1933), 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 act and thing requisite and necessary to be done, 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-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

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.

 

Signature				Title				Date
/s/ Joseph M. Gingo Joseph M. Gingo				Director, President and Chief Executive Officer (Principal Executive Officer)				October 27, 2016
/s/ Joseph J. Levanduski Joseph J. Levanduski				Director, Chief Financial Officer and Treasurer (Principal Financial Officer and Principal Accounting Officer)				October 27, 2016
/s/ Eric Donald Parsons Eric Donald Parsons				Director				October 27, 2016

 

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EXHIBIT INDEX

 

2.1		Stock Purchase Agreement, dated as of March 15, 2015, by and among A. Schulman, Inc., HGGC Citadel Plastics Holdings, Inc., Citadel Plastics Holdings, LLC (in its capacity as the representative of the holders of securities of the company), and certain other individual persons (incorporated by reference to Exhibit 2.1 to the Registration Statement on Form S-3 (Reg. No. 333-203670) filed with the Securities and Exchange Commission on April 27, 2015).
3.1		Amended and Restated Certificate of Incorporation of A. Schulman, Inc. (incorporated by reference from Exhibit 3.1 to the Quarterly Report on Form 10-Q (File No. 000-07459) filed with the Securities and Exchange Commission on July 7, 2015).
3.2		Amended and Restated By-laws of A. Schulman, Inc. (incorporated by reference from Exhibit 3.2 to the Current Report on Form 8-K (File No. 000-07459) filed with the Securities and Exchange Commission on June 27, 2011).
3.3*		Certificate of Formation of Bayshore Industrial, L.L.C.
3.4*		Limited Liability Company Agreement of Bayshore Industrial, L.L.C.
3.5*		Articles of Incorporation of Bulk Molding Compounds, Inc., as amended.
3.6*		Amended and Restated By-laws of Bulk Molding Compounds, Inc.
3.7*		Certificate of Formation of Citadel Intermediate Holdings, LLC, as amended.
3.8*		Amended and Restated Limited Liability Company Agreement of Citadel Intermediate Holdings, LLC.
3.9*		Amended and Restated Certificate of Incorporation of Citadel Plastics Holdings, Inc.
3.10*		By-laws of Citadel Plastics Holdings, Inc.
3.11*		Certificate of Incorporation of HGGC Citadel Plastics Holdings, Inc., as amended
3.12*		By-laws of HGGC Citadel Plastics Holdings, Inc.
3.13*		Certificate of Incorporation of HGGC Citadel Plastics Intermediate Holdings, Inc.
3.14*		By-laws of HGGC Citadel Plastics Intermediate Holdings, Inc.
3.15*		Certificate of Formation of HPC Holdings, LLC.
3.16*		Second Amended and Restated Limited Liability Company Agreement of HPC Holdings, LLC.
3.17*		Certificate of Formation of ICO-Schulman, LLC.
3.18*		Limited Liability Company Agreement of ICO-Schulman, LLC.
3.19*		Certificate of Incorporation of ICO Global Services, Inc.
3.20*		By-laws of ICO Global Services, Inc.
3.21*		Certificate of Incorporation of ICO P&O, Inc.
3.22*		By-laws of ICO P&O, Inc.
3.23*		Certificate of Incorporation of ICO Polymers, Inc.
3.24*		Bylaws of ICO Polymers, Inc.
3.25*		Certificate of Incorporation of ICO Polymers North America, Inc.
3.26*		By-laws of ICO Polymers North America, Inc.
3.27*		Restated Certificate of Incorporation of ICO Technology, Inc.
3.28*		Bylaws of ICO Technology, Inc.

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3.29*		Second Amended and Restated Certificate of Incorporation of LPI Holding Company.
3.30*		Third Amended and Restated By-laws of LPI Holding Company.
3.31*		Certificate of Incorporation of Lucent Polymers Inc., as amended
3.32*		Third Amended and Restated By-laws of Lucent Polymers Inc.
3.33*		Amended Articles of Incorporation of Premix, Inc.
3.34*		Second Amended and Restated Code of Regulations of Premix, Inc.
3.35*		Second Amended and Restated Certificate of Incorporation of Premix Holding Company.
3.36*		Second Amended and Restated By-laws of Premix Holding Company.
3.37*		Articles of Incorporation of The Matrixx Group, Incorporated, as amended.
3.38*		Amended and Restated By-laws of The Matrixx Group, Incorporated.
3.39*		Certificate of Incorporation of Wedco Technology, Inc., as amended
3.40*		By-laws of Wedco Technology, Inc.
4.1		Indenture, dated May 26, 2015, by and among A. Schulman, Inc., the guarantors party thereto and U.S. Bank National Association, as trustee (including the Form of 6.875% Senior Note due 2023) (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 000-07459) filed with the Securities and Exchange Commission on May 28, 2015).
4.2		First Supplemental Indenture, dated as of June 1, 2015, by and among A. Schulman, Inc., the guarantors party thereto and U.S. Bank National Association, as trustee (incorporated by reference from Exhibit 4.1 to the Current Report on Form 8-K (File No. 000-07459) filed with the Securities and Exchange Commission on June 3, 2015).
4.3		Second Supplemental Indenture, dated as of August 31, 2016, by and among A. Schulman, Inc., the guarantors party thereto and U.S. Bank National Association, as trustee (incorporated by reference from Exhibit 4.3 to the Annual Report on Form 10-K (File No. 000-07459) for the year ended August 31, 2016, filed with the Securities and Exchange Commission on October 27, 2016).
4.4		Registration Rights Agreement, dated as of May 26, 2015, by and among A. Schulman, Inc., the guarantors party thereto and Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P. Morgan Securities LLC, as representatives of the initial purchasers (incorporated by reference to Exhibit 4.2 to the Current Report on Form 8-K (File No. 000-07459) filed with the Securities and Exchange Commission on May 28, 2015).
4.5		Joinder to Registration Rights Agreement, dated as of June 1, 2015, by and among A. Schulman, Inc., the guarantors party thereto and Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P. Morgan Securities LLC, as representatives of the initial purchasers (incorporated by reference to Exhibit 4.2 to the Current Report on Form 8-K (File No. 000-07459) filed with the Securities and Exchange Commission on June 3, 2015).
5.1*		Opinion of Jones Day.
5.2*		Opinion of Krieg DeVault LLP.
5.3*		Opinion of Greenberg Traurig, LLP, Indianapolis, Indiana.
12.1*		Computation of Ratio of Earnings to Fixed Charges.
23.1*		Consent of PricewaterhouseCoopers LLP.
23.2*		Consent of Jones Day (included in Exhibit 5.1).
23.3*		Consent of Krieg DeVault LLP, Indianapolis, Indiana (included in Exhibit 5.2).
23.4*		Consent of Greenberg Traurig, LLP (included in Exhibit 5.1).

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24.1*		Power of Attorney for directors and officers of A. Schulman, Inc.
24.2*		Powers of Attorney for directors and officers of guarantors (included in the signature pages to this registration statement).
25.1*		Statement of Eligibility under the Trust Indenture Act of 1939 by U.S. Bank National Association (Form T-1).
99.1*		Form of Letter of Transmittal.

 

*Filed herewith.

Exhibit 3.3

 

Corporations Section P.O. Box 13697 Austin, Texas 78711-3697				Carlos H. Cascos Secretary of State
		Office of the Secretary of State

The undersigned, as Secretary of State of Texas, does hereby certify that the attached is a true and correct copy of each document on file in this office as described below:

Bayshore Industrial, LLC

Filing Number: 801708190

 

Certificate of Conversion		December 27, 2012

In testimony whereof, I have hereunto signed my name officially and caused to be impressed hereon the Seal of State at my office in Austin, Texas on April 22, 2015.

 

		Carlos H. Cascos                              Secretary of State

 

		Come visit us on the internet at http://www.sos.state.tx.us/
Phone: (512) 463-5555		Fax: (512) 463-5709		Dial: 7-1-1 for Relay Services
Prepared by: SOS-WEB		TID: 10266		Document: 603108250005

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Form 642 (Revised 05/11)   Return in duplicate to: Secretary of State P.O. Box 13697 Austin, TX 78711-3697 512 463-5555 FAX: 512 463-5709   Filing Fee: See instructions		Certificate of Conversion of a Limited Partnership Converting to a Limited Liability Company		This space reserved for office use.

Converting Entity Information

The name of the converting limited partnership is:

Bayshore Industrial, L.P.

 

 

The jurisdiction of formation of the limited partnership is:		Texas

The date of formation of the limited partnership is:		09/28/2004

The file number, if any, issued to the limited partnership by the secretary of state is:		800395368

Converted Entity Information

The limited partnership named above is converting to a limited liability company. The name of the limited liability company is:

Bayshore Industrial, LLC    

 

The limited liability company will be formed under the laws of:		Texas

Plan of Conversion

 

☐	The plan of conversion is attached.

If the plan of conversion is not attached, the following section must be completed.

Alternative Statements

In lieu of providing the plan of conversion, the converting limited partnership certifies that:

1. A signed plan of conversion is on file at the principal place of business of the limited partnership, the converting entity. The address of the principal place of business of the limited partnership is:

 

1300 McCabe Road		LaPorte		TX		USA		77571
Street or Mailing Address		City		State		Country		Zip Code

2. A signed plan of conversion will be on file after the conversion at the principal place of business of the limited liability company, the converted entity. The address of the principal place of business of the limited liability company is:

 

1300 McCabe Road		LaPorte		TX		USA		77571
Street or Mailing Address		City		State		Country		Zip Code

3. A copy of the plan of conversion will be furnished on written request without cost by the converting entity before the conversion or by the converted entity after the conversion to any owner or member of the converting or converted entity.

 

Form 642		4

TX156BOC - 06/10/2011 CT System Online

 

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Certificate of Formation for the Converted Entity

If the converted entity is a Texas limited liability company, the certificate of formation of the Texas limited liability company must be attached to this certificate either as an attachment or exhibit to the plan of conversion, or as an attachment or exhibit to this certificate of conversion if the plan has not been attached to the certificate of conversion.

Approval of the Plan of Conversion

The plan of conversion has been approved as required by the laws of the jurisdiction of formation and the governing documents of the converting entity.

Effectiveness of Filing (Select either A, B, or C.)

A. ☒ This document becomes effective when the document is accepted and filed by the secretary of state.

B. ☐ This document becomes effective at a later date, which is not more than ninety (90) days from the date of signing. The delayed effective date is:                                         

C. ☐ This document takes effect upon the occurrence of the future event or fact, other than the passage of time. The 90^th day after the date of signing is:                                         

The following event or fact will cause the document to take effect in the manner described below:

 

 

 

 

Tax Certificate

 

☐	Attached hereto is a certificate from the comptroller of public accounts that certifies that the converting entity is in good standing for purposes of conversion.

 

☒	In lieu of providing the tax certificate, the limited liability company as the converted entity is liable for the payment of any franchise taxes.

Execution

The undersigned signs this document subject to the penalties imposed by law for the submission of a materially false or fraudulent instrument. The undersigned certifies that the statements contained herein are true and correct, and that the person signing is authorized under the provisions of the Business Organizations Code to execute the filing instrument.

 

Date:		December 27, 2012
								Bayshore Industrial GP, L.L.C.
						By:
								Signature of authorized person (see instructions)
						David C. Minc, Vice President, General Counsel, and Secretary
								Printed or typed name of authorized person

 

Form 642		5

TX156BOC - 06/10/2011 CT System Online

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Form 205 (Revised 05/11)   Submit in duplicate to: Secretary of State P.O. Box 13697 Austin, TX 78711-3697 512 463-5555 FAX: 512 463-5709 Filing Fee: $300		Certificate of Formation Limited Liability Company		This space reserved for office use.

Article 1 – Entity Name and Type

The filing entity being formed is a limited liability company. The name of the entity is:

Bayshore Industrial, LLC

 

The name must contain the words “limited liability company,” “limited company,” or an abbreviation of one of these phrases.

Article 2 – Registered Agent and Registered Office

(See instructions. Select and complete either A or B and complete C.)

☒    A. The initial registered agent is an organization (cannot be entity named above) by the name of:

C T Corporation System

 

OR

☐    B. The initial registered agent is an individual resident of the state whose name is set forth below:

 

First Name		M.I.		Last Name		Suffix

C. The business address of the registered agent and the registered office address is:

 

350 N. St. Paul Street Suite 2900		Dallas		TX		75201-4234
Street Address		City		State		Zip Code

Article 3—Governing Authority

(Select and complete either A or B and provide the name and address of each governing person.)

☐    A. The limited liability company will have managers. The name and address of each initial manager are set forth below.

☒    B. The limited liability company will not have managers. The company will be governed by its members, and the name and address of each initial member are set forth below.

 

GOVERNING PERSON 1
NAME (Enter the name of either an individual or an organization, but not both.)   IF INDIVIDUAL
		First Name OR IF ORGANIZATION		M.I.		Last Name		Suffix
		Bayshore Industrial GP, L.L.C.
		Organization Name

ADDRESS   1300 McCabe Road				LaPorte		TX		USA		77571
Street or Mailing Address				City		State		Country		Zip Code

 

Form 205		4

 

TX060BOC - 06/09/2011 CT System Online

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GOVERNING PERSON 2
NAME (Enter the name of either an individual or an organization, but not both.)
		IF INDIVIDUAL
		First Name		M.I.		Last Name		Suffix
		OR
		IF ORGANIZATION
		Bayshore Industrial LP, L.L.C.
		Organization Name

ADDRESS
1300 McCabe Road				LaPorte		TX		USA		77571
Street or Mailing Address				City		State		Country		Zip Code

 

GOVERNING PERSON 3
NAME (Enter the name of either an individual or an organization, but not both.)
		IF INDIVIDUAL
		First Name		M.I.		Last Name		Suffix
		OR
		IF ORGANIZATION
		Organization Name

ADDRESS
Street or Mailing Address				City		State		Country		Zip Code

Article 4 – Purpose

The purpose for which the company is formed is for the transaction of any and all lawful purposes for which a limited liability company may be organized under the Texas Business Organizations Code.

Supplemental Provisions/Information

Text Area: [The attached addendum, if any, is incorporated herein by reference.]

1. Bayshore Industrial, LLC is being formed pursuant to a plan of conversion.

2. Bayshore Industrial, LLC at 1300 McCabe Road, LaPorte, TX 77571, was formally known as Bayshore Industrial, L.P., formed on 09/28/2004 in the state of Texas.

 

Form 205		5

TX060BOC - 06/09/2011 CT System Online

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Organizer

The name and address of the organizer:

 

David C. Minc
Name
3550 West Market Street		Akron		OH		44333
Street or Mailing Address		City		State		Zip Code

Effectiveness of Filing (Select either A, B, or C.)

A. ☒ This document becomes effective when the document is filed by the secretary of state.

B. ☐ This document becomes effective at a later date, which is not more than ninety (90) days from the date of signing. The delayed effective date is:

C. ☐ This document takes effect upon the occurrence of the future event or fact, other than the passage of time. The 90^th day after the date of signing is:

The following event or fact will cause the document to take effect in the manner described below:

Execution

The undersigned affirms that the person designated as registered agent has consented to the appointment. The undersigned signs this document subject to the penalties imposed by law for the submission of a materially false or fraudulent instrument and certifies under penalty of perjury that the undersigned is authorized to execute the filing instrument.

 

Date:		December 27, 2012

 

 

Form 205		6

TX060BOC - 06/09/2011 CT System Online

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Form 509
(Revised 12/10)
Submit with relevant filing instrument.
		Consent to Use
		of Similar Name
Filing Fee: None

 

(1)		Bayshore Industrial GP, L.L.C.
		Name of the entity or individual who holds the existing name on file with the secretary of state
		consents to the use of
(2)		Bayshore Industrial, LLC
		Proposed name

as the name of a filing entity or foreign filing entity in Texas for the purpose of submitting a filing instrument to the secretary of state. This consent does not authorize the use of the similar name in violation of a right of another under the Trademark Act of 1946, as amended (15 U.S.C. Section 1051 et seq.); Chapter 16 or 71, Business & Commerce Code; or common law.

 

(3)	The undersigned certifies to being authorized by the holder of the existing name to give this consent. The undersigned signs this document subject to the penalties imposed by law for the submission of a materially false or fraudulent instrument.

 

Date:		December 27, 2012

 

 

Form 509		2

TX130 - 01/25/2011 CT System Online

Exhibit 3.4

COMPANY AGREEMENT

OF

BAYSHORE INDUSTRIAL, LLC

THIS COMPANY AGREEMENT (this “Agreement”), by ICO Global Services, Inc. (the “Member”), dated as of December 31, 2012;

W I T N E S S E T H:

WHEREAS, the Member desires to confirm the filing with the Texas Secretary of State of the Certificate of Formation (the “Certificate”) of BAYSHORE INDUSTRIAL, LLC, a Texas limited liability company (the “Company”); and

WHEREAS, the Member desires to enter into this Agreement as to the affairs and the conduct of business of the Company, and the Member intends that this Agreement constitute the “company agreement” of the Company, within the meaning of that term as defined in Chapter 101 of the Texas Business Organizations Code (the “Act”);

NOW, THEREFORE, it is agreed and stated as follows:

Section 1. Formation; Member. The Company was formed upon the filing of its Certificate with the Texas Secretary of State. The Member shall be the sole member of the Company. Whether under this Agreement, under any other agreement or obligation by which the Company and/or the Member may be bound, or pursuant to applicable law, any action or inaction taken or omitted to be taken by or with the consent of the Member shall bind the Company. The Member may delegate such power and authority.

Section 2. Term. The term of the Company commenced with the filing of the Certificate with the Texas Secretary of State and shall continue in perpetuity, unless and until the Member consents in writing to dissolve the Company. Upon dissolution the Company shall be wound up and terminated as provided in the Act, and the Member shall have the authority to wind up the Company.

Section 3. Capital Contributions. The Member shall determine the amounts, forms and timing of capital contributions required of the Member.

Section 4. Tax Matters. It is the express intention of the Company and the Member that the Company be treated as a C corporation for all U.S. federal income tax purposes, and that an election pursuant to Treasury Regulation Section 301.7701-3 for the Company to be so treated remain in effect.

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Section 5. Distributions. Distributions of cash or property under circumstances not involving the liquidation of the Company, if any, shall be within the discretion of the Member as to amount, form and frequency. Upon the liquidation of the Company, the Member shall have the power to liquidate or to distribute in kind any and all of the assets of the Company.

Section 6. General Provisions.

(a) No Third Party Beneficiaries. None of the provisions of this Agreement shall be construed as existing for the benefit of any creditor of the Company or as being enforceable by any party not a signatory hereto. There shall be no third party beneficiaries of this Agreement.

(b) Entire Agreement. This Agreement constitutes the entire company agreement of the Company within the meaning of the Act and contains the entire understanding, agreement and statement of the Member upon the subject matter of this Agreement and may only be amended, changed or waived in a writing signed by the Member. The Member acknowledges that the provisions of the Act shall govern the affairs of the Company and the conduct of its business, except as provided in this Agreement.

(c) Provisions Binding. This Agreement shall inure to the benefit of and be binding upon the Member and its successors and assigns.

(d) Applicable Law. This Agreement shall be interpreted in accordance with the laws of the State of Texas.

(Signature Page Follows)

 

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IN WITNESS WHEREOF, the undersigned has duly executed this Company Agreement of Bayshore Industrial, LLC, effective as of the date and year first above written.

 

 

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Exhibit 3.5

 

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File Number            5538-098-8

To all to whom these Presents Shall Come, Greeting:

I, Jesse White, Secretary of State of the State of Illinois, do hereby certify that I am the keeper of the records of the Department of Business Services. I certify that

THE FOREGOING AND HERETO ATTACHED IS A TRUE AND CORRECT COPY, CONSISTING OF 08 PAGES, AS TAKEN FROM THE ORIGINAL ON FILE IN THIS OFFICE FOR BULK MOLDING COMPOUNDS, INC..**

 

		In Testimony Whereof, I hereto set my hand and cause to be affixed the Great Seal of the State of Illinois, this 22ND day of APRIL A.D. 2015.
Authentication #: 1511202229 verifiable until 04/22/2016.
Authenticate at: http://www.cyberdriveillinois.com		SECRETARY OF STATE

Exhibit 3.6

AMENDED & RESTATED BY-LAWS

OF

BULK MOLDING COMPOUNDS, INC.

an Illinois corporation

(Adopted May 9, 2005)

ARTICLE I

OFFICES AND RECORDS

Section 1.1 Registered Office. The Corporation shall continuously maintain in the State of Illinois a registered office and a registered agent whose business office shall be the registered office.

Section 1.2 Other Offices. The Corporation may have such other offices, either within or without the State of Illinois, as the Board of Directors may designate or as the business of the Corporation may from time to time require.

Section 1.3 Corporate Records - Examination by Shareholders. The Corporation shall keep correct and complete books and records of account and shall also keep minutes of the proceedings of its shareholders and Board of Directors and committees thereof. The Corporation also shall keep at its registered office or principal place of business in the State of Illinois, or at the office of a transfer agent or registrar in the State of Illinois, a record of its shareholders, giving the names and addresses of all shareholders and the number and class of shares held by each.

Upon the written request of any shareholder of the Corporation, the Corporation shall mail to such shareholder within fourteen (14) days after receipt of such request a balance sheet as of the close of its latest fiscal year and a profit and loss statement for such fiscal year; provided that if such request is received by the Corporation before such financial statements are available, the Corporation shall mail such financial statements within fourteen (14) days after they become available, but in any event within one hundred twenty (120) days after the close of its latest fiscal year.

Any person who is a shareholder of record of the Corporation shall have the right to examine, in person or by agent, at any reasonable time or times, the Corporation’s books and records of account, minutes, voting trust agreements filed with the Corporation, and the record of shareholders, and to make extracts therefrom, but only for a proper purpose. In order to exercise this right, a shareholder must make written demand upon the Corporation, stating with particularity the records sought to be examined and the purpose therefor.

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ARTICLE II

SHAREHOLDERS

Section 2.1 Annual Meeting. An annual meeting of the shareholders shall be held on the first Tuesday in April of each year for the purpose of electing the directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting shall be a legal holiday, such meeting shall be held on the next succeeding business day.

Section 2.2 Special Meetings. Special meetings of the shareholders may be called by the Chairman, CEO, President, by the Board of Directors, or by the holders of not less than one-fifth of all the outstanding shares entitled to vote on the matter for which the meeting is called, for the purpose or purposes stated in the call of the meeting. Special meetings of the shareholders may also be called by such other officers or persons as provided in the Articles of Incorporation or these By-Laws.

Section 2.3 Time and Place of Meeting. The Board of Directors may designate any time and place as the time and place of meeting for any annual or special meeting of shareholders called by the Board of Directors. If no designation is made, or if a special meeting is otherwise called, the place of the meeting shall be at the registered office of the Corporation in the State of Illinois.

Section 2.4 Notice of Meeting; Waiver. Written or printed notice stating the place, day, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten (10) nor more than sixty (60) days before the date of the meeting, or in the case of a merger, consolidation, share exchange, dissolution, or sale, lease, or exchange of assets, not Jess than twenty (20) nor more than sixty (60) days before the date of the meeting, either personally or by mail, by or at the direction of the Chairman, CEO, President, or the Secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, with postage thereon prepaid, addressed to the shareholder at his or her address as it appears on the records of the Corporation. Except as provided herein, when a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. Attendance at any meeting shall constitute waiver of notice thereof unless the person at the meeting objects to the holding of the meeting because proper notice was not given.

Section 2.5 Fixing Record Date. For the purpose of determining the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or to receive payment of any dividend, or other distribution or allotment of any rights, or to exercise any rights in respect of any change, conversion or exchange of shares or for the purpose of any other lawful action, the Board of

 

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Directors of the Corporation may fix in advance a record date for such determination of shareholders, which shall not be more than sixty (60) days and, for a meeting of shareholders, not less than ten (10) days, or in the case of a merger, consolidation, share exchange, dissolution or sale, lease or exchange of assets, not less than twenty (20) days, immediately preceding such meeting. If no record date is fixed, the record date for the determination of shareholders for any purpose shall be the date on which notice of the meeting is mailed or the date the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting.

Section 2.6 Voting Lists. The officer or agent having charge of the transfer books for shares of the Corporation shall make, within twenty (20) days after the record date for a meeting of shareholders or ten (10) days before such meeting, whichever is earlier, a complete list of shareholders entitled to vote at such meeting, arranged in alphabetical order, showing the address of and the number of shares registered in the name of the shareholder, which list, for a period of ten (10) days prior to such meeting, shall be kept on file at the registered office of the Corporation and shall be open to inspection by any shareholder and to copying at the shareholder’s expense, for any proper purpose at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to inspection by any shareholder during the whole time of the meeting. The original share ledger or transfer book, or a duplicate thereof kept in the State of Illinois, shall be prima facie evidence as to who are the shareholders entitled to examine such list or share ledger or transfer book or to vote at any meeting of shareholders.

Section 2.7 Quorum. A majority of the outstanding shares of the Corporation entitled to vote on a matter, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders for consideration of such matter at a meeting of shareholders; provided that if less than a majority of the outstanding shares are represented at such meeting, a majority of the shares so represented may adjourn the meeting at any time without further notice. In no event shall a quorum consist of less than one-third of the outstanding shares entitled so to vote. If a quorum is present, the affirmative vote of the majority of the shares represented at the meeting and entitled to vote on a matter shall be the act of the shareholders, unless the vote of a greater number or voting by classes is required by the Illinois Business Corporation Act of 1983, the Articles of Incorporation or these ByLaws. At any adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the original meeting. Withdrawal of shareholders from any meeting shall not cause failure of a duly constituted quorum at that meeting. The Articles of Incorporation may require any number of a percent greater than a majority up to and including a requirement of unanimity to constitute a quorum.

Section 2.8 Voting of Shares. Each outstanding share, regardless of class, shall be entitled to one vote in each matter submitted to vote at a meeting of shareholders, and in all elections for directors, every shareholder shall have the right to vote the number of shares owned by such shareholder for as many persons as there are directors multiplied by the number of such shares or to distribute such cumulative votes in any proportion among any number of candidates.

 

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Section 2.9 Voting of Shares by Certain Holders. Shares registered in the name of another corporation, domestic or foreign, may be voted by any officer, agent, proxy or other legal representative authorized to vote such shares under the law of incorporation of such corporation or as the by-laws of such corporation may prescribe, or, in the absence of such provision, as the board of directors of such corporation may determine.

A corporation may treat the president or other person holding the position of chief executive officer of such other corporation as authorized to vote such shares, together with any other person indicated and any other holder of an office indicated by the corporate shareholder to the corporation as a person or an office authorized to vote such shares. Such persons and offices indicated shall be registered by the Corporation on the transfer books for shares and included in any voting list prepared in accordance with Section 7.30 of the Illinois Business Corporation Act of 1983.

Shares registered in the name of a deceased person, a minor ward or a person under legal disability may be voted by the administrator, executor, or court appointed guardian, either in person or by proxy without a transfer of such shares into the name of such administrator, executor, or court appointed guardian. Shares registered in the name of a trustee may be voted by him or her, either in person or by proxy.

A shareholder whose shares are pledged shall be entitled to vote such shares until the shares have been transferred into the name of the pledgee, and thereafter the pledgee shall be entitled to vote the shares so transferred.

Shares of its own stock belonging to the Corporation shall not be voted, directly or indirectly, at any meeting and shall not be counted in determining the total number of outstanding shares at any given time, but shares of its own stock held by it in a fiduciary capacity may be voted and shall be counted in determining the total number of outstanding shares at any given time.

Section 2.10 Proxies. Each shareholder entitled to vote at a meeting of shareholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for him or her by proxy. No proxy shall be valid after eleven (11) months from the date of its execution, unless otherwise provided in the proxy.

Section 2.11 Informal Action by Shareholders. Any action required to be taken at a meeting of the shareholders, or any other action which may be taken at a meeting of the shareholders, may be taken without a meeting and without a vote if a consent in writing, setting forth the action so taken, shall be signed (i) by all of the shareholders entitled to vote with respect to the subject matter thereof, or (ii) by the holders of outstanding shares 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 voting if five (5) days prior notice of the proposed action is given in writing to all of the shareholders entitled to vote with respect to the subject matter thereof.

 

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Prompt notice of the taking of the corporation action without a meeting by less than unanimous written consent shall be given in writing to those shareholders that have not consented in writing. In the event that the action which is consented to is such as would have required the filing of a certificate under any other section of the Illinois Business Corporation Act of 1983 other than Section 7.10, if such action had been voted on by the shareholders at a meeting thereof, the certificate filed under such other section of Illinois Business Corporation Act of 1983, shall state, in lieu of any statement required by such section concerning any vote of shareholders, that written consent has been given in accordance with the provisions of this Section 7.10 of the Illinois Business Corporation Act of 1983, and that written notice has been given as provided in said Section 7.10.

Section 2.12 Voting by Ballot. Voting on any question or in any election may be by voice unless the presiding officer shall order or any shareholder shall demand that voting be by ballot.

Section 2.13 Inspectors. At any meeting of shareholders, the chairman of the meeting may, or upon the request of any shareholder shall, appoint one or more persons as inspectors for such meeting.

Such inspectors shall ascertain and report the number of shares represented at the meeting, based upon their determination of the validity and effect of proxies; count all votes and report the results; and do such other acts as are proper to conduct the election and voting with impartiality and fairness to all the shareholders.

Each report of an inspector shall be in writing and signed by him or her or by a majority of them if there be more than one inspector acting at such meeting. If there is more than one inspector, the report of a majority shall be the report of the inspectors. The report of the inspector or inspectors on the number of shares represented at the meeting and the results of the voting shall be prima facie evidence thereof.

ARTICLE III

BOARD OF DIRECTORS

Section 3.1 General Powers. The business and affairs of the Corporation shall be managed by or under the direction of its Board of Directors.

Section 3.2 Number, Tenure and Qualifications. The number of directors of the Corporation shall be not less than three (3) and not more than six (6) and within that variable range shall be that number of directors last elected by the shareholders, reduced by the number of deaths, resignations or removals occurring since the last election. Each director shall hold office until the next annual meeting of shareholders or until his or her successor shall have been elected and qualified. Directors need not be residents of Illinois or shareholders of the Corporation. The number of directors may be increased or decreased from time to time by the election of a greater or

 

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a lesser number within the variable range, or beyond the variable range by the amendment of this Section 3.2. No decrease in the number or range of directors shall have the effect of shortening the term of an incumbent director. A resignation is effective when the notice is given unless the notice specifies a future date. The pending vacancy may be filled before the effective date, but the successor shall not take office until the effective date.

Section 3.3 Regular Meetings. A regular meeting of the Board of Directors shall be held without other notice than this By-law immediately after, and at the same place, as the annual meeting of shareholders. The Board of Directors may, by resolution, provide the time and place for the holding of additional regular meetings without other notice than such resolution.

Section 3.4 Special Meetings. Special meetings of the Board of Directors may be called at the request of the Chairman, CEO, President or any one or more director. The person or persons authorized to call special meetings of the Board of Directors may fix any place as the place for holding any special meeting of the Board of Directors called by them.

Section 3.5 Notice; Waiver. Notice of any special meeting shall be given by written notice to each director at his or her business address. Any person or persons authorized to call special meetings of the Board of Directors may give notice of special meetings by regular United States mail; such notice shall be given at least two (2) days prior to the date of the meeting and shall be deemed to be delivered when deposited in the United States mail so addressed, with postage thereon prepaid. Any person or persons authorized to call special meetings may also give notice of special meetings by facsimile transmission, telegram, overnight private or United States mail, or personal delivery. If by telegram, facsimile transmission, or personal delivery, such notice shall be given at least twenty-four (24) hours prior to the meeting and shall be deemed delivered when the telegram is delivered to the telegraph company, when the facsimile transmission is confirmed by the director or an agent of the director at his or her business address, or when personal delivery is made, as applicable. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting.

Section 3.6 Quorum. A majority of the number of directors fixed by these By-Laws, or in the absence of a By-law fixing the number of directors, the number stated in the Articles of Incorporation or named by the incorporators, shall constitute a quorum for transaction of business at any meeting of the Board of Directors unless a greater number is required by the Articles of Incorporation or these By-Laws, provided that if less than a majority of such directors is present at said meeting, a majority of the directors present may adjourn the meeting at any time without further notice. If the Corporation has a variable range board of directors, a quorum shall consist of a majority of the directors then in office, but not less than a majority of the minimum number of directors specified for the variable range of the Board unless the Articles of Incorporation or these By-Laws specify a greater number. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless the act of or greater number is required by the Illinois Business Corporation Act of 1983, the Articles of Incorporation or these By-Laws.

 

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Section 3.7 Vacancies. Any vacancy occurring in the Board of Directors and any directorship to be filled by reason of an increase in the number of directors may be filled by election at an annual meeting or at a special meeting of shareholders called for that purpose; provided, however, that vacancies occurring between meetings of shareholders by reason of an increase in the number of directors or otherwise may be filled by the Board of Directors. A director elected by the shareholders to fill a vacancy shall hold office for the balance of the term for which he was elected. A director appointed to fill a vacancy shall serve until the next meeting of shareholders at which directors are to be selected.

Section 3.8 Informal Action. Unless specifically prohibited by the Articles of Incorporation or these By-Laws, any action required by the Illinois Business Corporation Act of 1983 to be taken at a meeting of the Board of Directors, or any other action which may be taken at a meeting of the Board of Directors or any committee thereof, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all the directors entitled to vote with respect to the subject matter thereof, or by all the members of the committee, as the case may be. Any such consent signed by all the directors or all the members of a committee shall have the same effect as a unanimous vote.

The consent shall be evidenced by one or more written approvals, each of which sets forth the action taken and bears the signature of one or more directors. All the approvals evidencing the consent shall be delivered to the Secretary to be filed with the corporate records. The action taken shall be effective when all the directors have approved the consent unless the consent specifies a different effective date.

Section 3.9 Telephonic Meetings. Unless specifically prohibited by the Articles of Incorporation or these By-Laws, members of the Board of Directors or of any committee of the Board of Directors may participate in and act at any meeting of such board or committee through the use of a telephone conference or other communications equipment by means of which all persons participating in the meeting can hear each other. Participation in such meetings shall constitute attendance and presence in person at the meeting of the person or persons so participating.

Section 3.10 Committees. The Board of Directors, by a resolution adopted by a majority of the number of directors fixed by the By-Laws may create one or more committees of the Board of Directors and may designate two or more directors to constitute such a committee, which committee, to the extent provided in such resolution, shall have and exercise all of the authority of the Board of Directors in the management of the Corporation, except as otherwise provided in the Illinois Business Corporation Act of 1983. Vacancies in the membership of any committee shall be filled by the Board of Directors at a regular or special meeting of the Board of Directors. Each committee shall keep regular minutes of its proceedings and report the same to the Board when requested.

 

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Unless the appointment by the Board of Directors requires a greater number, a majority of any committee shall constitute a quorum, and a majority of a quorum is necessary for committee action. A committee may act by unanimous consent in writing without a meeting and, subject to the provision of these By-Laws or action by the Board of Directors, any committee by majority vote of its members shall determine the time and place of meetings and the notice required therefor.

Section 3.11 Presumption of Assent. A director of the Corporation who is present at a meeting of the Board of Directors at which action on any corporate matter is taken shall be conclusively presumed to have assented to the action taken unless his or her dissent shall be entered in the minutes of the meeting or unless he or she shall file a written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the Secretary of the Corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action.

Section 3.12 Compensation. The Board of Directors, by the affirmative vote of a majority of directors then in office, and irrespective of any personal interest of any of its members, shall have authority to establish reasonable compensation of all directors for services to the Corporation as directors, officers, or otherwise, notwithstanding the provisions of Section 8.60 of the Illinois Business Corporation Act of 1983. By resolution of the Board of Directors, the directors may be paid their expenses, if any, of attendance at each meeting of the Board. No such payment previously mentioned in this section shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.

Section 3.13 Removal of Directors. Shareholders at a meeting may remove one or more directors, with or without cause, by the affirmative vote of the holders of a majority of the outstanding shares then entitled to vote at an election of directors, except as follows:

(1) No director shall be removed at a meeting of the shareholders unless the notice of such meeting shall state that a purpose of the meeting is to vote upon the removal of one or more directors named in the notice. Only the named director or directors may be removed at such meeting.

(2) If the Corporation has cumulative voting and less than the entire Board is to be removed, no director may be removed, with or without cause, if the votes cast against his or her removal would be sufficient to elect him or her if then cumulatively voted at an election of the entire Board of Directors.

(3) If a director is elected by a class or series of shares, he or she may be removed only by the shareholders of that class or series.

 

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ARTICLE IV

OFFICERS

Section 4.1 Number. The officers of the Corporation shall be a Chairman, a CEO, a President, a Secretary, and such other officers as may be elected or appointed by the Board of Directors. Any two or more offices may be held by the same person. One officer shall have the authority to certify the By-Laws, resolutions of the shareholders and Board of Directors and committees thereof, and other documents of the Corporation as true and correct copies thereof.

Section 4.2 Election and Term of Office. The officers of the Corporation shall be elected or appointed annually by the Board of Directors at the regular meeting of the Board of Directors or at a meeting held in lieu thereof. Vacancies may be filled or new offices created and filled at any meeting of the Board of Directors. Except as provided herein, each officer shall hold office until his or her successor shall have been duly elected and shall have qualified or until his or her death, resignation or removal. Election of an officer shall not of itself create any contract rights of that officer against the Corporation.

Section 4.3 Removal. Any officer elected or appointed by the Board of Directors may be removed by the Board of Directors whenever in its judgment the best interests of the Corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed.

Section 4.4 Chairman. The Chairman shall serve as the Chairman of the Board of Directors. The Chairman shall preside at all meetings of the shareholders and of the Board of Directors. He or she shall be ex officio a member of all standing committees. The Chairman shall have power to sign, with the Secretary or Assistant Secretary, or any other proper officer of the Corporation thereunto authorized by the Board of Directors, certificates for shares of the Corporation, deeds, mortgages, bonds, contracts or other instruments which the Board of Directors has authorized to be executed except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these By-Laws to some other officer or agent of the Corporation or shall be required by law to be otherwise signed or executed.

Section 4.5 CEO. The CEO shall, subject to the control of the Board of Directors, serve as the chief executive officer and supervise and direct the business, financial, and legal affairs of the Corporation, and shall be responsible for seeing that the policies of the Corporation as established by the Board of Directors are carried out. The CEO shall have power to sign, with the Secretary or Assistant Secretary, or any other proper officer of the Corporation thereunto authorized by the Board of Directors, certificates for shares of the Corporation, deeds, mortgages, bonds, contracts or other instruments which the Board of Directors has authorized to be executed except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these By-Laws to some other officer or agent of the Corporation or shall be required by law to be otherwise signed or executed.

 

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Section 4.6 President. The President shall serve as the chief operating officer of the Corporation and shall have all powers of such office as a matter of law and practice and, in this capacity, shall, subject to the control of the Board of Directors, supervise and direct all day-to-day operations of the Corporation. The President shall also have such other powers and perform such other duties as from time to time may be delegated to him or her by the Chairman, CEO, or the Board of Directors, or as may be prescribed by these By-Laws.

Section 4.7 Vice Presidents. The Vice President (or if there be more than one, the Vice Presidents) shall assist the President in the discharge of his or her duties as the Chairman, CEO or President may direct and shall perform such other duties as from time to time may be assigned to him or her by the Chairman, CEO, President or by the Board of Directors. In the absence of the President or in the event of his or her death, inability or refusal to act, the Vice President (or in the event there be more than one Vice President, the Vice Presidents in the order of their seniority as determined from time to time by the Board of Directors) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Except in those instances in which the authority to execute is expressly delegated to another officer or agent of the Corporation or a different mode of execution is expressly prescribed by the Board of Directors or these By-Laws, the Vice President (or each of them if there are more than one) may execute for the Corporation certificates for its shares and any contracts, deeds, mortgages, bonds or other instruments, which the Board of Directors has authorized to be executed, and he or she may accomplish such execution either under or without the seal of the Corporation and either individually or with the Secretary, any Assistant Secretary, or any other officer thereunto authorized by the Board of Directors, according to the requirements of the form of the instrument.

Section 4.8 Secretary. The Secretary shall (a) keep the minutes of the shareholders’ and the Board of Directors’ meetings in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these By-Laws or as required by law; (c) be custodian of the corporate records and of the seal of the Corporation, if such a seal shall exist; (d) keep a register of the post office address of each shareholder which shall be furnished to the Secretary by each such shareholder; (e) sign with the Chairman, CEO, President or a Vice President, or any other officer thereunto authorized by the Board of Directors, certificates for shares of the Corporation, the issuance of which shall have been authorized by the Board of Directors and any contracts, deeds, mortgages, bonds, or other instruments which the Board of Directors has authorized to be executed, according to the requirements of the form of the instrument, except when a different mode of execution is expressly prescribed by the Board of Directors or these By-Laws; (f) have general charge of the stock transfer books of the Corporation; and (g) in general perform all duties incident to the office of Secretary and such other duties from time to time may be assigned to him or her by the Chairman, CEO, President or the Board of Directors.

Section 4.9 Treasurer. The Treasurer shall be the principal accounting and financial officer of the Corporation. He or she shall (a) have charge and custody of and be responsible for all funds and securities of the Corporation, (b) receive and give receipts for moneys due and payable to the Corporation from any source whatsoever, and deposit all such monies in the name of the

 

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Corporation in such banks, trust companies or other depositaries as shall be selected by the Board of Directors, (c) disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and (d) in general perform all of the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him or her by the Chairman, CEO, President or the Board of Directors. If required by the Board of Directors, the Treasurer shall give a bond in such sum and with such surety or sureties as the Board of Directors shall determine, for the faithful discharge of his or her duties and for the restoration to the Corporation, in case of his or her death, resignation, retirement or removal from office, of all books, papers, vouchers, money, securities, and other property belonging to the Corporation in his or her possession or control.

Section 4.10 Assistant Treasurers and Assistant Secretaries. The Assistant Treasurer, or any of them if there be more than one, and the Assistant Secretary or any of them if there be more than one, shall perform such duties as shall be assigned to them by the Treasurer or the Secretary, respectively, or by the Chairman, CEO, President or the Board of Directors. An Assistant Secretary may sign with the Chairman, CEO, President, or a Vice President, or any other officer thereunto authorized by the Board of Directors, certificates for shares of the Corporation, the issue of which shall have been authorized by the Board of Directors, and any contracts, deeds, mortgages, bonds, or other instruments which the Board of Directors has authorized to be executed, according to the requirements of the form of the instrument, except when a different mode of execution is expressly prescribed by the Board of Directors or these By-Laws. An Assistant Treasurer shall respectively, if required by the Board of Directors, give bonds for the faithful discharge of his or her duties in such sums and with such sureties as the Board of Directors shall determine.

Section 4.11 Controller. The Board of Directors may elect a Controller who shall be responsible for all accounting and auditing functions of the Corporation and who shall perform such other duties as may from time to time be required of him or her by the Board of Directors.

Section 4.12 Appointive Officers. The Chairman, CEO or President may appoint other officers and agents on a division basis or otherwise, as such divisions or other operating units are created by the Board of Directors, and such other officers and agents shall receive such compensation, have such tenure and exercise such authority as the President shall specify. All appointments made by the Chairman, CEO or President hereunder and all the terms and conditions thereof must be reported to the Board of Directors. No appointive officer shall have any contractual rights against the Corporation for compensation by virtue of such appointment beyond the date of the appointment of his or her successor, death, resignation, or removal, whichever event shall first occur, except as otherwise provided in an employment contract or under an employee deferred compensation plan.

Section 4.13 Salaries. The salaries of the elected officers shall be fixed from time to time by the Board of Directors and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation.

Section 4.14 Vacancies. A newly created office or a vacancy in any office because of death, resignation, removal, disqualification or otherwise may be filled by the Board of Directors for the unexpired portion of the term at any meeting of the Board of Directors.

 

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ARTICLE V

CERTIFICATES FOR SHARES AND THEIR TRANSFER

Section 5.1 Certificates For Shares. Certificates representing shares of the Corporation shall be signed by the appropriate corporate officers, such as the President or a Vice President or by such officer as shall be designated by resolution of the Board of Directors, and by the Secretary or an Assistant Secretary, and shall be sealed with the seal or a facsimile of the seal of the corporation if the Corporation has a seal. If the signature of each officer be by facsimile, the certificate shall be manually signed by or on behalf of a duly authorized transfer agent or clerk. Each certificate representing shares shall be consecutively numbered or otherwise identified, and shall also state the name of the shareholder to whom issued, the number and class of shares (with designation of series, if any), the date of issue, and that the Corporation is organized under Illinois law. The certificate may state the par value or a statement that the shares are without par value, if applicable. If the Corporation is authorized and does issue shares of more than one class or of a series within a class, the certificate shall also contain such information or statement as may be required by law.

The name and address of each shareholder, the number and class of shares held and the date on which the certificates for the shares were issued shall be entered on the books of the Corporation. The shareholder in whose name shares are registered on the books of the Corporation shall be deemed the owner thereof for all purposes as regards the Corporation.

Unless prohibited by the Articles of Incorporation, the Board of Directors may provide by resolution that some or all of any class or series of shares shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until the certificate has been surrendered to the Corporation. Within a reasonable time after the issuance or transfer of uncertificated shares, the Corporation shall send the registered owner thereof a written notice of all information that would appear on a certificate. Except as otherwise expressly provided by law, the rights and obligations of the holders of uncertificated shares shall be identical to those of the holders of certificates representing shares of the same class and series.

Section 5.2 Transfer of Shares. Transfer of shares of the Corporation shall be recorded on the books of the Corporation and, except in the case of a lost or destroyed certificate, shall be made on surrender for cancellation of the certificate for such shares. A certificate presented for transfer must be duly endorsed and accompanied by proper guaranty of signature and other appropriate assurances that the endorsement is effective. Transfer of an uncertified share shall be made on receipt by the Corporation of an instruction from the registered owner or other appropriate person. The instruction shall be in writing or be a communication in such form as may be agreed upon in writing by the Corporation.

Section 5.3 Lost Certificates. If a certificate representing shares has allegedly been lost or destroyed, the Board of Directors may in its discretion as may be required by law, direct that a new certificate be issued upon such indemnification and other reasonable requirements as it may impose.

 

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ARTICLE VI

CONTRACTS, LOANS, CHECKS AND DEPOSITS

Section 6.1 Contracts. The Board of Directors may authorize any officer or officers, agent or agents, of the Corporation, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances.

Section 6.2 Loans. No loans shall be contracted on behalf of the Corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the Board of Directors. Such authority may be general or confined to specific instances. The Corporation shall have the power to lend money to its directors, officers, employees and agents.

Section 6.3 Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers, agent or agents of the Corporation and in such manner as shall from time to time be determined by resolution of the Board of Directors.

Section 6.4 Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks, trust companies or other depositaries as the Board of Directors may select.

ARTICLE VII

INDEMNIFICATION OF OFFICERS,

DIRECTORS, EMPLOYEES AND AGENTS

Section 7.1 Third Party Action. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he or she is or was a director, officer, employee or agent of the Corporation, or who is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or

 

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proceeding, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interest of the Corporation, or with respect to any criminal action or proceeding, that the person had reasonable cause to believe that his or her conduct was unlawful.

Section 7.2 Derivative Action. The Corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he or she is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Corporation; provided that no indemnification shall be made with respect to any claim, issue or matter as to which such person has been adjudged to have been liable to the Corporation, unless, and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.

Section 7.3 Successful Defense. To the extent that a director, officer, employee or agent of the Corporation has been successful, on the merits or otherwise, in the defense of any action, suit or proceeding referred to in Sections 7.1 and 7.2 herein, or in defense of any claim, issue or matter therein, he or she shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection therewith.

Section 7.4 Procedures. Any indemnification under Sections 7.1 and 7.2 herein (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in Sections 7.1 and 7.2 herein. Such determination shall be made (a) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (b) if such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (c) by the shareholders.

Section 7.5 Expenses. Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the director, officer, employee or agent to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Corporation as authorized herein.

 

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Section 7.6 Not Exclusive Provisions. The indemnification and advancement of expenses provided by this Article VII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any by-law, contract, agreement, vote of shareholders or disinterested directors or otherwise, both as to action in his or her other official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.

Section 7.7 Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Article VII.

Section 7.8 Shareholder Notice. If the Corporation has paid indemnity or has advanced expenses to a director, officer, employee or agent, the Corporation shall report the indemnification or advance in writing to the shareholders with or before the notice of the next shareholders’ meeting.

Section 7.9 Merger. In the case of a merger, the term “corporation” shall include, in addition to the surviving corporation, any merging corporation absorbed in a merger which, if its separate existence had continued, would have had the power and authority to indemnify its directors, officers, and employees or agents, so that any person who was a director, officer, employee or agent of such merging corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this section with respect to the surviving corporation as such person would have with respect to such merging corporation if its separate existence had continued.

Section 7.10 Definitions. For purposes of this Article VII, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise tax assessed on a person with respect to an employee benefit plan; and references to the phrase “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by such director, officer, employee, or agent with respect to an employee benefit plan, its participants, or beneficiaries. A person who acted in good faith and in a manner he or she reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interest of the Corporation” as referred to in this Article VII.

 

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ARTICLE VIII

MISCELLANEOUS PROVISIONS

Section 8.1 Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.

Section 8.2 Distributions. The Board of Directors may from time to time declare, and the Corporation may pay distributions (dividends, redemptions and other transfers of money or property) to its shareholders on its outstanding shares in the manner and upon the terms and conditions provided by the Illinois Business Corporation Act of 1983 and the Articles of Incorporation of the Corporation.

Section 8.3 Seal. The Corporation may use a corporate seal which may be altered at pleasure, by causing it, or a facsimile thereof, to be impressed or affixed or in any other manner reproduced. The corporate seal shall have inscribed thereon the name of the Corporation and the words “Corporate Seal, Illinois”. The affixing of a corporate seal to an instrument shall not give the instrument additional force or effect, or change the construction thereof and the use of the corporate seal is not mandatory.

Section 8.4 Audits. The Board of Directors shall determine whether the Corporation’s accounts, books and records shall be audited upon the conclusion of each fiscal year, and shall determine who performs that audit.

Section 8.5 Resignations. Any director or any officer, whether elected or appointed, may resign at any time by serving written notice of such resignation on the Board of Directors and unless specifically made effective at a future date, such resignation shall be deemed to be effective as of the close of business on the date said notice is received by the Board of Directors. No formal action shall be required of the Board of Directors or the shareholders to make any such resignation effective.

ARTICLE IX

AMENDMENTS

Section 9 Amendments. Unless reserved to the shareholders by the Articles of Incorporation of the Corporation, these By-Laws may be made, altered, amended or repealed by the shareholders or the Board of Directors, but no By-law adopted by the shareholders may be altered, amended or repealed by the Board of Directors if the By-Laws so provide. The By-Laws may contain any provisions for the regulation and management of the affairs of the Corporation not inconsistent with law or the Articles of Incorporation of the Corporation.

 

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Exhibit 3.7

 

		Delaware		PAGE 1
		The First State

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “CITADEL INTERMEDIATE HOLDINGS, LLC” AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

CERTIFICATE OF FORMATION, FILED THE TENTH DAY OF APRIL, A.D. 2008, AT 3:13 O’CLOCK P.M.

CERTIFICATE OF AMENDMENT, FILED THE ELEVENTH DAY OF JUNE, A.D. 2008, AT 2:34 O’CLOCK P.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID LIMITED LIABILITY COMPANY, “CITADEL INTERMEDIATE HOLDINGS, LLC”.

 

				Jeffrey W. Bullock, Secretary of State
4532166    8100H				AUTHENTICATION: 2312443
150548185				DATE: 04-22-15
You may verify this certificate online at corp.delaware.gov/authver.shtml

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CERTIFICATE OF FORMATION

OF

CITADEL INTERMEDIATE HOLDINGS, LLC

The Certificate of Formation is being executed as of April 10, 2008, for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act, 6 Del. C. Sections 18-101, et seq.

The undersigned, being duly authorized to execute and file this Certificate, does hereby certify as follows:

1. Name. The name of the limited liability company is Citadel Intermediate Holdings, LLC (the “Company”);

2. Registered Office and Registered Agent. The Company’s registered office in the State of Delaware is located at 2711 Centerville Road, Suite 400, City of Wilmington, County of New Castle, Delaware 19808. The registered agent of the Company for service of process at such address is Corporation Service Company.

IN WITNESS WHEREOF, the undersigned has duly executed this Certificate of Formation as of the day and year first above written.

 

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State of Delaware Secretary of State Division of Corporations Delivered 02:38 PM 06/11/2008 FILED 02:34 PM 06/11/2008 SRV 080683365 – 4532166 FILE

STATE OF DELAWARE

CERTIFICATE OF AMENDMENT

 

1.	Name of Limited Liability Company:

 

 

2.	The Certificate of Formation of the limited liability company is hereby amended as follows:

The address of its registered office in the State of Delaware is: Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company.

IN WITNESS WHEREOF, the undersigned have executed this Certificate on the 10^th day of June, A.D. 2008.

 

Exhibit 3.8

AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT OF

CITADEL INTERMEDIATE HOLDINGS, LLC

This Amended and Restated Limited Liability Company Agreement (this “Agreement”) of Citadel Intermediate Holdings, LLC, a Delaware limited liability company (the “Company”), is made effective as of February 29, 2012, by Citadel Plastics Holdings, Inc., a Delaware corporation (the “Sole Member”, and together with any party hereafter admitted as a member of the Company in accordance with the terms hereof, the “Members”).

WHEREAS, this Agreement is being adopted in order to amend and restate, in its entirety, that certain Operating Agreement, dated as of March 2, 2008, by and among the Member and the Managers as defined therein (the “Original LLC Agreement”), and the Original LLC Agreement shall be superseded, in its entirety, by this Agreement; and

WHEREAS, the Members desire to provide for certain agreements governing the business and affairs of the Company as set forth herein; and

Intending to be legally bound, the Members and the Company hereby agree as follows:

1. Formation of the Company. The Company was formed on April 10, 2008, upon the execution and filing of a certificate of formation with the Secretary of State of the State of Delaware in accordance with the provisions of the Delaware Limited Liability Company Act, as amended (the “Act”).

2. Term. The Company will have perpetual existence unless terminated in accordance with this Agreement.

3. Name. The name of the Company will be “Citadel Intermediate Holdings, LLC” or such other name as may be determined from time to time by the Members.

4. Purpose; Powers. The Company is organized for the object and purpose of engaging in all such lawful transactions and business activities as may be determined from time to time by the Members. The Company will have any and all powers necessary or desirable to carry out the purposes and business of the Company, to the extent the same may be lawfully exercised by limited liability companies under the Act.

5. Registered Office and Agent. The registered office of the Company in the State of Delaware is 1209 Orange Street, City of Wilmington, New Castle County, Delaware 19801. The registered agent of the Company for service of process at such address is The Corporation Trust Company. The registered office and/or registered agent of the Company may be changed from time to time in the discretion of the Members.

6. Members. As of the date hereof, the sole Member of the Company is the Sole Member. The Schedule of Members attached hereto shall be amended to reflect the future admission of each additional Member in accordance with Section 15.

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7. Management.

(i) Except as otherwise required by the Act, the business and affairs of the Company shall be managed by or under the direction of one Managing Member (the “Managing Member”). The initial Managing Member shall be the Sole Member. Except as otherwise expressly provided for in this Agreement, the Members hereby consent to the exercise by the Managing Member of all such powers and rights conferred on it by the Act with respect to the management and control of the Company. Notwithstanding the foregoing and except as explicitly set forth in this Agreement, if a vote, consent or approval of the Members is required by the Act or other applicable law with respect to any act to be taken by the Company or matter considered by the Managing Member, the Members agree that they shall be deemed to have consented to or approved such act or voted on such matter in accordance with the determination of the Managing Member on such act or matter. With the exception of the Managing Member and the Officers appointed pursuant to Section 8, no Member, in his or its capacity as a Member, shall have any power to act for, sign for or do any act that would bind the Company.

(ii) For the avoidance of doubt, the Managing Member shall have the power and authority to delegate to any individual, sole proprietorship, partnership, joint venture, trust, unincorporated association, corporation, limited liability company, entity or governmental entity (whether foreign, federal, state, county, city or otherwise and including any instrumentality, division, agency or department thereof) (each, a “Person”) the Managing Member’s rights and powers to manage and control the business and affairs of the Company, including to delegate to agents and employees of a Member or the Company (including Officers) and to delegate by a written agreement with, or otherwise to, other persons. The Managing Member may, by express prior written consent, authorize any Person (including, without limitation, any Member or Officer) to enter into and perform under any document on behalf of the Company.

(iii) For the avoidance of doubt, the Managing Member may, from time to time, designate one or more committees. Any such committee, to the extent expressly provided in the written enabling resolution and until dissolved by the Managing Member, shall have and may exercise any or all of the authority of the Managing Member. At every meeting of any such committee, the presence of a majority of all the representatives thereof shall constitute a quorum, and the affirmative vote of a majority of the representatives present shall be necessary for the adoption of any resolution. The Managing Member may dissolve any committee at any time.

8. Designation of Officers.

(i) The Managing Member may elect officers of the Company, including a President, Chief Executive Officer, Chief Operating Officer, a Secretary, one or more Assistant Secretaries and such other officers and assistant officers (including, without limitation, one or more Vice Presidents) as the Managing Member may determine (“Officers”). No Officer need be a resident of the State of Delaware or be a Member. The Managing Member may use descriptive words or phrases to designate the standing, seniority or area of special competence of the Officers appointed and unless otherwise designated by the Managing Member, Officers shall have the customary power and authority of persons with like positions at similarly sized companies. Any number of offices may be held by the same Person. All Officers as between themselves and the Company shall have such authority and perform such duties in the

 

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management of the Company or as the Managing Member may from time to time determine, and may act on behalf of the Company in the manner and regarding such matters or as may be authorized by the Managing Member. From time to time the Managing Member may establish, increase, eliminate, reduce or otherwise modify responsibilities of the Officers of the Company or may create or eliminate offices as the Managing Member may consider appropriate.

(ii) The salaries or other compensation, if any, of the Officers of the Company shall be fixed from time to time by the Managing Member. Each Officer elected by the Managing Member shall serve until his or her successor is duly appointed or, if earlier, until his or her death, resignation or removal. A vacancy in any office because of death, resignation, removal or any other cause may only be filled by the Managing Member.

(iii) Any Officer may resign at any time by so notifying the Managing Member in writing. Any Officer elected by the Managing Member may be removed with or without cause by the Managing Member, but such removal shall be without prejudice to the contract rights, if any, of the Officer so removed. The election of a person as an Officer shall not of itself create a right to continued employment with the Company.

9. Contributions. Persons admitted as Members of the Company shall make such contributions of cash (or promissory obligations), property or services to the Company as shall be determined by the Managing Member and the Member making the contribution in their sole discretion at the time of each such admission and from time to time thereafter. The Company and the Managing Member acknowledge and agree that, as of the date hereof, the Member has made all contributions as previously agreed and holds 100% of the issued and outstanding limited liability company interests (“Percentage Interests”).

10. Distributions. Distributions of cash or other assets of the Company shall be made at such times and in such amounts as the Managing Member may determine. Distributions shall be made to Members pro rata in accordance with the number of outstanding Percentage Interests held by each Member immediately prior to a distribution.

11. Assignments. A Member may freely assign all or any portion of its Percentage Interests. Upon any such assignment, the assignee will be admitted to the Company as a substitute Member.

12. Dissolution. The Company will be dissolved and its affairs will be wound up and terminated only upon the affirmative vote of each of the Members or an administrative dissolution or the entry of a decree of judicial dissolution, under Section 18-802 of the Act. Upon dissolution, the Company will be liquidated in an orderly manner by the Members.

13. Limitation on Liability. The debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Member or Officer of the Company shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Officer.

14. Amendments. This Agreement may be amended from time to time by a written instrument executed and delivered by the Members.

 

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15. Title to Company Assets. Company assets shall be deemed to be owned by the Company as an entity, and no Member, individually or collectively, shall have any ownership interest in such Company assets or any portion thereof. Legal title to any or all Company assets may be held in the name of the Company or one or more nominees, as the Managing Member may determine. The Managing Member hereby declares and warrants that any Company assets for which legal title is held in its name or the name of any nominee shall be held in trust by the Managing Member or such nominee for the use and benefit of the Company in accordance with the provisions of this Agreement. All Company assets shall be recorded as the property of the Company on its books and records, irrespective of the name in which legal title to such Company assets is held.

16. Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or the effectiveness or validity of any provision in any other jurisdiction, and this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provision had never been contained herein.

17. Opt-in to Article 8 of the Uniform Commercial Code. The Members hereby agree that the Percentage Interests shall be securities governed by Article 8 of the Uniform Commercial Code of the State of Delaware as in effect from time to time (“Article 8”). At no time shall the Members elect that such Percentage Interests shall not be governed by Article 8.

18. Counterparts. This Agreement may be executed in multiple counterparts with the same effect as if all signing parties had signed the same document. All counterparts shall be construed together and constitute the same instrument.

19. Descriptive Headings; Interpretation. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a substantive part of this Agreement. Whenever required by the context, any pronoun used in this Agreement shall include the corresponding masculine, feminine, or neuter forms, and the singular form of nouns, pronouns, and verbs shall include the plural and vice versa. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and (a) no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement, and (b) no rule of strict construction shall be applied against any party hereto or any intended beneficiary hereof. Wherever a conflict exists between this Agreement and any other agreement, this Agreement shall control but solely to the extent of such conflict.

20. Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

 

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21. Creditors.

(i) None of the provisions of this Agreement (with the exception of Section 18, as applicable) shall be for the benefit of or enforceable by any creditors of the Company or any of its Affiliates, and no creditor who makes a loan to the Company or any of its Affiliates may have or acquire at any time as a result of making the loan any direct or indirect interest in Company profits, losses, distributions, capital, or property other than as a secured creditor; provided, that nothing in this Section 22 shall limit the rights of any creditor under any contract or agreement executed and delivered by the Company in favor of such creditor.

(ii) Without limiting the generality of Section 11, the membership interest in the Company of each member (each, a “Membership Interest”) shall be transferable in whole or in part, either voluntarily or by operation of law. Each member may at any time and from time to time sell, assign, convey, exchange, mortgage, pledge, grant security interests in and to and liens upon, and otherwise dispose of or transfer all or any portion of such member’s Membership Interest. Upon any transfer of all or any portion of any member’s Membership Interest, the transferee thereof shall become a member of the Company upon completion of such transfer without, in any case the approval or consent of, or any further action on the part of, the Company, any of the other members or any other person or persons. Without limiting any of the foregoing, upon any sale, disposition or other transfer by any pledgee or other secured party or lienholder of all or any portion of any member’s Membership Interest pursuant to the exercise of foreclosure rights or any other rights or remedies as secured party under or in respect of any pledge of, or any grant of security interests or other liens on, all or any portion of the Membership Interest so transferred, any transferee thereof shall, upon completion of such transfer, become a member of the Company and shall acquire, to the extent of all or that portion of the Membership Interest so transferred, all of the rights, title and interests of a member in the Company, including all of the rights and obligations of a member of the Company under this Agreement, without, in any such case, the approval or consent of, or any further action on the part of, the Company, any of the other members or any other person or persons.

22. Waiver. No failure by any party to insist upon the strict performance of any covenant, duty, agreement, or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or any other covenant, duty, agreement or condition. Notwithstanding anything in this Agreement to the contrary, Section 18-305(a) of the Act shall not apply to the Company, and no Member shall have any rights thereunder.

23. Electronic Delivery. This Agreement and any signed agreement or instrument entered into in connection with this Agreement, and any amendments hereto or thereto, to the extent delivered by means of a facsimile machine or electronic mail (any such delivery, an “Electronic Delivery”), shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto or to any such agreement or instrument, each other party hereto or thereto shall re execute original forms hereof and/or thereof and deliver them to all other parties. No party hereto or to any such agreement or instrument shall raise (a) the use of Electronic Delivery to deliver a signature or (b) the fact that any signature or agreement or instrument was transmitted or

 

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communicated through the use of Electronic Delivery, as a defense to the formation of a contract or agreement, and each such party forever waives any such defense, except to the extent such defense relates to lack of authenticity.

*        *        *         *

 

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IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Limited Liability Company Agreement of Citadel Intermediate Holdings, LLC as of the date first above written.

 

(Citadel Intermediate Holdings, LLC - A&R LLC Agreement)

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Schedule of Members

As of February 29, 2012

 

Name of Member		Percentage Interests
Citadel Plastics Holdings, Inc.			100	%

Exhibit 3.9

 

		Delaware		PAGE 1
		The First State

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS FILED FROM AND INCLUDING THE RESTATED CERTIFICATE OR A MERGER WITH A RESTATED CERTIFICATE ATTACHED OF “CITADEL PLASTICS HOLDINGS, INC.” AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

RESTATED CERTIFICATE, FILED THE SEVENTH DAY OF MARCH, A.D. 2007, AT 4:06 O’CLOCK P.M.

CERTIFICATE OF CORRECTION, FILED THE TWENTY-FIFTH DAY OF FEBRUARY, A.D. 2008, AT 3:40 O’CLOCK P.M.

CERTIFICATE OF AMENDMENT, FILED THE FIRST DAY OF MAY, A.D. 2008, AT 2:18 O’CLOCK P.M.

CERTIFICATE OF AMENDMENT, FILED THE TWENTY-SECOND DAY OF DECEMBER, A.D. 2008, AT 5:15 O’CLOCK P.M.

CERTIFICATE OF AMENDMENT, FILED THE TWENTY-FOURTH DAY OF APRIL, A.D. 2009, AT 6:45 O’CLOCK P.M.

CERTIFICATE OF MERGER, FILED THE TWENTY-NINTH DAY OF FEBRUARY, A.D. 2012, AT 9:44 O’CLOCK A.M.

 

				Jeffrey W. Bullock, Secretary of State
4304194    8100X				AUTHENTICATION: 2312432
150548169				DATE: 04-22-15
You may verify this certificate online at corp.delaware.gov/authver.shtml

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State of Delaware Secretary of State Division of Corporations Delivered 04:19 PM 03/07/2007 FILED 04:06 PM 03/07/2007 SRV 070291874 – 4304194 FILE

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

CITADEL PLASTICS HOLDINGS, INC.

The undersigned, Citadel Plastics Holdings, Inc. (the “Corporation”), having filed its original Certificate of Incorporation with the Secretary of State of the State of Delaware on February 20, 2007, does hereby amend and restate its Certificate of Incorporation and certify as follows:

I. That the Board of Directors of the Corporation, adopted a resolution by written consent in accordance with Section 141(f) of the General Corporation Law of the State of Delaware, as amended from time to time (the “GCL”) setting forth the Amended and Restated Certificate of Incorporation set forth below (the “Certificate”), declaring it advisable and voting in favor of the adoption of the Certificate.

II. That the Certificate has been duly adopted in accordance with Sections 242 and Section 245 of the GCL:

ARTICLE FIRST

The name of the Corporation is Citadel Plastics Holdings, Inc.

ARTICLE SECOND

The address of the Corporation’s registered office in the State of Delaware is No. 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.

ARTICLE THIRD

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 GCL.

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ARTICLE FOURTH

Part A. Authorized Capital Stock.

The total number of shares of capital stock that the Corporation has authority to issue is 1,600,000 consisting of:

 

(1)

500,000 shares of Preferred Stock, $.0001 par value per share (the “Preferred Stock”), of which 500,000 shares are designated as Series A Preferred Stock, $.0001 par value per share (the “Series A Preferred Stock”); and

 

(2)

1,100,000 shares of Common Stock, $.0001 par value per share (the “Common Stock”).

The shares of the Preferred Stock and the Common Stock shall have the rights, preferences and limitations set forth below.

Part B. Power, Preferences and Special Rights of the Preferred Stock.

Paragraph 1. Authority of Board to Fix Terms of Certain Preferred Stock. The Board of Directors of the Corporation is hereby expressly authorized at any time and from time to time to provide for the issuance of all or any shares of the Preferred Stock other than the Series A Preferred Stock in one or more additional classes or series, and to fix for each such class or series such voting powers, full or limited, or no voting powers, and such distinctive designations, preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions thereof, as shall be stated and expressed in the resolution or resolutions adopted by the Board of Directors providing for the issuance of such class or series and to the fullest extent as may now or hereafter be permitted by the GCL, including, without limiting the generality of the foregoing, the authority to provide that any such class or series may be (i) subject to redemption at such time or times and at such price or prices; (ii) entitled to receive dividends (which may be cumulative or non-cumulative) at such rates, on such conditions, and at such times, and payable in preference to, or in such relation to, the dividends payable on any other class or classes or any other series; (iii) entitled to such rights upon the dissolution of, or upon any distribution of the assets of, the Corporation; or (iv) convertible into, or exchangeable for, shares of any other class or classes of stock, or of any other series of the same or any other class or classes of stock, or other securities or property, of the Corporation at such price or prices or at such rates of exchange and with such adjustments; all as may be stated in such resolution or resolutions. Unless otherwise provided in such resolution or resolutions, shares of Preferred Stock of such class or series which shall be issued and thereafter acquired by the Corporation through purchase, redemption, exchange, conversion or otherwise shall return to the status of authorized but unissued Preferred Stock, undesignated as to class or series.

Paragraph 2. Series A Preferred Stock. Notwithstanding the provisions of Article FOURTH, Part B, Paragraph 1, the terms of the Series A Preferred Stock are established below and nothing in Paragraph 1 shall be deemed to confer any authority on the Board of Directors to establish different or additional terms applicable to the Series A Preferred Stock.

 

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Paragraph 2A. Dividends.

2A(1). General Obligation. When and as declared by the Corporation’s Board of Directors and to the extent permitted under the GCL, the Corporation shall pay preferential dividends to the holders of the Series A Preferred Stock as provided in this paragraph 2A(1). Except as otherwise provided herein, dividends on each share of the Series A Preferred Stock (a “Share”) shall accrue on a daily basis at the rate of 10% per annum on the sum of the Liquidation Value thereof plus all accumulated and unpaid dividends thereon, from and including the date of issuance of such Share to and including the first to occur of (i) the date on which the Liquidation Value of such Share (plus all accrued and unpaid dividends thereon) is paid to the holder thereof in connection with the liquidation of the Corporation or the redemption of such Share by the Corporation, or (ii) the date on which such Share is otherwise acquired by the Corporation. Such dividends shall accrue whether or not they have been declared and whether or not there are profits, surplus or other funds of the Corporation legally available for the payment of dividends, and such dividends shall be cumulative such that all accrued and unpaid dividends shall be fully paid or declared with funds irrevocably set apart for payment before any Distribution may be made with respect to any Junior Securities. The date on which the Corporation initially issues any Share shall be deemed to be its “date of issuance” regardless of the number of times transfer of such Share is made on the stock records maintained by or for the Corporation and regardless of the number of certificates which may be issued to evidence such Share.

2A(2). Dividend Reference Dates. To the extent not paid on March 31, June 30, September 30 and December 31 of each year, beginning the last day of first quarter following closing (the “Dividend Reference Dates”), all dividends which have accrued on each Share outstanding during the three-month period (or other period in the case of the initial Dividend Reference Date) ending upon each such Dividend Reference Date shall be accumulated and shall remain accumulated dividends with respect to such Share until paid to the holder thereof. The foregoing sentence uses the term “accumulated” to effectuate the concept of “dividends on dividends” (or compounding) on a quarterly basis on the Dividend Reference Dates.

2A(3). Distribution of Partial Dividend Payments. Except as otherwise provided herein, if at any time the Corporation pays less than the total amount of dividends then accrued with respect to the Series A Preferred Stock, such payment shall be distributed pro rata among the holders thereof based upon the aggregate accrued but unpaid dividends on the Shares held by each holder.

Paragraph 2B. Liquidation. Upon any liquidation, dissolution or winding up of the Corporation (whether voluntary or involuntary), each holder of the Series A Preferred Stock shall be entitled to be paid, before any Distribution is made upon any Junior Securities, an amount in cash equal to the aggregate Liquidation Value of all Shares of the Series A Preferred Stock held by such holder (plus all accrued and unpaid dividends thereon), and the holders of the Series A Preferred Stock shall not be entitled to any further payment. If, upon any such liquidation, dissolution or winding up of the Corporation, the Corporation’s assets to be distributed among the holders of the Series A Preferred Stock are insufficient to permit payment to such holders of the aggregate amount which they are entitled to be paid under this Paragraph 2B, then the entire assets available to be distributed to the Corporation’s stockholders shall be distributed pro rata among such holders based upon the aggregate Liquidation Value (plus all accrued and unpaid

 

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dividends) of the Series A Preferred Stock held by each such holder. Not less than 60 days prior to the payment date stated therein, the Corporation shall mail written notice of any such liquidation, dissolution or winding up to each record holder of the Series A Preferred Stock, setting forth in reasonable detail the amount of proceeds to be paid with respect to each Share and each share of Common Stock in connection with such liquidation, dissolution or winding up.

Paragraph 2C. Priority of Series A Preferred Stock on Dividends and Redemption. So long as any Series A Preferred Stock remains outstanding, without the prior written consent of the holders of a majority of the Series A Preferred Stock then outstanding, neither the Corporation nor any Subsidiary shall redeem, purchase or otherwise acquire directly or indirectly any Junior Securities, nor shall the Corporation directly or indirectly pay or declare any Distribution upon any Junior Securities; provided that the Corporation may repurchase shares of Common Stock from present or former employees, officers, directors and consultants of the Corporation and its Subsidiaries pursuant to arrangements approved by the Corporation’s Board of Directors for an aggregate purchase price of no more than the fair market value of such shares.

Paragraph 2D. No Voting Rights. Except as otherwise provided herein and as otherwise required by law, the holders of the Series A Preferred Stock shall have no voting rights; provided that the holders of the Series A Preferred Stock shall be entitled to notice of all stockholder meetings at the same time and in the same manner as notice is given to the stockholders entitled to vote at such meetings.

Paragraph 2E. Registration of Transfer. The Corporation shall keep at its principal office (or such other place as the Corporation reasonably designates) a register for the registration of Shares of Series A Preferred Stock. Upon the surrender of any certificates representing Series A Preferred Stock at such place, the Corporation shall, at the request of the record holder of such certificate, execute and deliver (at the Corporation’s expense) a new certificate or certificates in exchange therefor representing in the aggregate the number of Shares represented by the surrendered certificate. Each such new certificate shall be registered in such name and shall represent such number of Shares as is requested by the holder of the surrendered certificate and shall be substantially identical in form to the surrendered certificate, and dividends shall accrue on the Series A Preferred Stock represented by such new certificate from the last date dividends were fully paid on such Series A Preferred Stock represented by the surrendered certificate (as adjusted for any dividends paid during such period). The issuance of new certificates shall be made without charge to the holders of the surrendered certificates for any issuance tax in respect thereof or other cost incurred by the Corporation in connection with such issuance.

Paragraph 2F. Replacement. Upon receipt of evidence reasonably satisfactory to the Corporation (an affidavit of the registered holder shall be satisfactory) of the ownership and the loss, theft, destruction or mutilation of any certificate evidencing Shares of Series A Preferred Stock, and in the case of any such loss, theft or destruction, upon receipt of indemnity reasonably satisfactory to the Corporation (provided that if the holder is a financial institution or other institutional investor its own agreement shall be satisfactory), or, in the case of any such mutilation upon surrender of such certificate, the Corporation shall (at its expense) execute and deliver in lieu of such certificate a new certificate of like-kind representing the number of Shares represented by such lost, stolen, destroyed or mutilated certificate and dated the date of such lost, stolen, destroyed or mutilated certificate and dividends shall accrue on the Series A Preferred

 

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Stock represented by such new certificate from the last date dividends were fully paid on the Series A Preferred Stock represented by such lost, stolen, destroyed or mutilated certificate (as adjusted for any dividends paid during such period).

Paragraph 2G. Notices. Except as otherwise expressly provided hereunder, all notices referred to herein shall be in writing and shall be delivered by registered or certified mail, return receipt requested and postage prepaid, or by reputable overnight courier service, charges prepaid, and shall be deemed to have been given when so mailed or sent (i) to the Corporation, at its principal executive offices and (ii) to any stockholder, at such holder’s address as it appears in the stock records of the Corporation (unless otherwise specified in a written notice to the Corporation by such holder).

Paragraph 2H. Certain Definitions.

“Distribution” means each distribution made by the Corporation to holders of Common Stock, whether in cash, property, or security of the Corporation and whether by dividend, liquidating distributions or otherwise; provided that neither of the following shall be a Distribution: (i) any redemption or repurchase by the Corporation of any shares of Common Stock for any reason (after which such shares shall cease to be outstanding shares) or (ii) any recapitalization or exchange of any shares of Common Stock, or any subdivision (by stock split, stock dividend or otherwise) of any outstanding shares of Common Stock.

“Dividend Reference Date” has the meaning set forth in paragraph 2A(2) hereof.

“Junior Securities” means any capital stock or other equity securities of the Corporation, except for the Series A Preferred Stock.

“Liquidation Value” of any Share of Series A Preferred Stock as of any particular date shall be equal to $1,000.

“Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof.

“Share” has the meaning set forth in paragraph 2(A)(1) hereof.

“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity if such Person or Persons shall be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or shall be or control the managing general partner of such limited liability company, partnership, association or other business entity.

 

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Paragraph 2I. Amendment and Waiver. No amendment, modification or waiver shall be binding or effective with respect to any provision of this Paragraph 2 of Part B hereof without the prior written consent of the holders of a majority of the Series A Preferred Stock outstanding at the time such action is taken.

Part C. Powers, Preferences and Special Rights of the Common Stock.

Except as otherwise provided in this Part C or as otherwise required by applicable law, all shares of Common Stock shall be identical in all respects and shall entitle the holders thereof to the same rights, preference and privileges, subject to the same qualifications, limitations and restrictions as set forth herein.

Paragraph 1. Voting Rights. Except as otherwise provided in this Part C or as otherwise required by applicable law, the holders of Common Stock shall be entitled to one vote per share. The rights of the holders of Common Stock to receive Distributions are subject to the provisions of outstanding shares of Preferred Stock.

Paragraph 2. Replacement. Upon receipt of evidence reasonably satisfactory to the Corporation (an affidavit of the registered holder will be satisfactory) of the ownership and the loss, theft, destruction or mutilation of any certificate evidencing one or more shares of any class of Common Stock, and in the case of any such loss, theft or destruction, upon receipt or indemnity reasonably satisfactory to the Corporation (provided that if the holder is a financial institution or other institutional investor its own agreement will be satisfactory), or, in the case of any such mutilation upon surrender of such certificate, the Corporation shall (at its expense) execute and deliver in lieu of such certificate a new certificate of like kind representing the number of shares of such class represented by such lost, stolen, destroyed or mutilated certificate and dated the date of such lost, stolen, destroyed or mutilated certificate.

Paragraph 3. Registration of Transfer. The Corporation shall keep at its principal office (or such other place as the Corporation reasonably designates) a register for the registration of shares of Common Stock. Except as otherwise provided in this Part C, upon the surrender of any certificate representing shares of any class of Common Stock at such place, the Corporation shall, at the request of the registered holder of such certificate, execute and deliver a new certificate or certificates in exchange therefor representing in the aggregate the number of shares of such class represented by the surrendered certificate, and the Corporation forthwith shall cancel such surrendered certificate. Each such new certificate will be registered in such name and will represent such number of shares of such class as is requested by the holder of the surrendered certificate and shall be substantially identical in form to the surrendered certificate. The issuance of new certificates shall be made without charge to the holders of the surrendered certificates for any issuance tax in respect thereof or other cost incurred by the Corporation in connection with such issuance.

Paragraph 4 Notices. All notices referred to herein shall be in writing, and shall be delivered by registered or certified mail), return receipt requested, postage prepaid, and shall be

 

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deemed to have been given when so mailed (i) to the Corporation at its principal executive offices and (ii) to any stockholder at such holder’s address as it appears in the stock records of the Corporation (unless otherwise specified in a written notice to the Corporation by such holder).

Paragraph 5. Amendment and Waiver. No amendment or waiver of any provision of this Part C shall be effective without the prior written consent of the holders of a majority of the then outstanding shares of Common Stock except as may be required by the GCL.

ARTICLE FIFTH

The Corporation is to have perpetual existence.

ARTICLE SIXTH

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 by-laws of the Corporation.

ARTICLE SEVENTH

Meetings of stockholders may be held within or without the State of Delaware, as the by-laws of the Corporation may provide. The books of the Corporation may be kept outside the State of Delaware at such place or places as may be designed from time to time by the Board of Directors or in the by-laws of the Corporation. Election of directors need not be by written ballot unless the by-laws of the Corporation so provide.

ARTICLE EIGHTH

To the fullest extent permitted by the GCL 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 a breach of fiduciary duty as a director. Any repeal or modification of this Article Eighth shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.

ARTICLE NINTH

The Corporation expressly elects not to be governed by Section 203 of the GCL.

ARTICLE TENTH

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 herein and by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation.

 

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IN WITNESS WHEREOF, Citadel Plastics Holdings, Inc. has caused this Amended and Restated Certificate of Incorporation to be executed on this 7th day of March, 2007.

 

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CERTIFICATE OF CORRECTION TO THE

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

CITADEL PLASTICS HOLDINGS, INC.

Citadel Plastics Holdings, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware,

DOES HEREBY CERTIFY THAT:

 

1.

The name of the corporation is Citadel Plastics Holdings, Inc. (the “Corporation”).

 

2.

The Amended and Restated Certificate of Incorporation of the Corporation (the “Certificate”) was filed with the Secretary of State of Delaware on March 7, 2007, and said Certificate requires correction as permitted by Section 103 of the General Corporation Law of the State of Delaware.

 

3.

The inadvertent inaccuracy or defect of the Certificate to be corrected is to change the amount of the “Liquidation Value” in the Certificate from $1,000 to $100. Upon the filing of this Certificate of Correction, the language contained herein shall become a part of the Certificate and shall be effective as of the date of the original filing of the Certificate as stated above.

 

4.

The definition of “Liquidation Value” in Article Fourth Part B Paragraph 2H of the Certificate is replaced in its entirety as follows:

““Liquidation Value” of any Share of Series A Preferred Stock as of any particular date shall be equal to $100.”

 

				CITADEL PLASTICS HOLDINGS, INC.
Date: February 23, 2008				By:
						Name:		J. Michael Fitzpatrick
						Title:		President

 

State of Delaware Secretary of State Division of Corporations Delivered 03:40 PM 02/25/2008 FILED 03:40 PM 02/25/2008 SRV 080216718 – 4304194 FILE

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		State of Delaware Secretary of State Division of Corporations Delivered 02:21 PM 05/01/2008 FILED 02:18 PM 05/01/2008 SRV 080493922 – 4304194 FILE

CERTIFICATE OF AMENDMENT

TO

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

CITADEL PLASTICS HOLDINGS, INC.

* * * * *

Adopted in accordance with the provisions

of §242 of the General Corporation Law

of the State of Delaware

* * * * *

J. Michael Fitzpatrick, being the Chief Executive Officer and President of Citadel Plastics Holdings, Inc., a corporation duly organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”), does hereby certify as follows:

FIRST: That the Amended and Restated Certificate of Incorporation of the Corporation be, and hereby is, amended by deleting Article Fourth, Part A in its entirety and substituting in lieu thereof a new Article Fourth, Part A to read as follows:

“The total number of shares of capital stock that the Corporation has authority to issue is 2,585,000 consisting of:

(1) 715,000 shares of Preferred Stock, $.0001 par value per share (the “Preferred Stock”), of which 650,000 shares are designated as Series A Preferred Stock, $.0001 par value per share (the “Series A Preferred Stock”); and

(2) 1,870,000 shares of Common Stock, $.0001 par value per share (the “Common Stock”).

The shares of the Preferred Stock and the Common Stock shall have the rights, preferences and limitations set forth below.”

SECOND: That the Amended and Restated Certificate of Incorporation of the Corporation be, and hereby is, amended by deleting Article Fourth, Part B, Paragraph 2B in its entirety and substituting in lieu thereof a new Article Fourth, Part B, Paragraph 2B to read as follows:

“Paragraph 2B. Liquidation. Upon any liquidation, dissolution or winding up of the Corporation (whether voluntary or involuntary) or the consummation of a Liquidity Event (as hereinafter defined), each holder of the Series A Preferred Stock shall be entitled to be paid, before any Distribution is made upon any Junior Securities, an amount in cash equal to the aggregate

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Liquidation Value of all Shares of the Series A Preferred Stock held by such holder (plus all accrued and unpaid dividends thereon), and the holders of the Series A Preferred Stock shall not be entitled to any further payment. If, upon any such liquidation, dissolution or winding up of the Corporation or the consummation of a Liquidity Event, the Corporation’s assets to be distributed among the holders of the Series A Preferred Stock are insufficient to permit payment to such holders of the aggregate amount which they are entitled to be paid under this Paragraph 2B, then the entire assets available to be distributed to the Corporation’s stockholders shall be distributed pro rata among such holders based upon the aggregate Liquidation Value (plus all accrued and unpaid dividends) of the Series A Preferred Stock held by each such holder. The following events, in each case, shall be deemed a “Liquidity Event”: (i) a merger, consolidation or reorganization of the Corporation (except a merger or consolidation in which the holders of capital stock of the Corporation immediately prior to such merger or consolidation continue after the consummation thereof to hold at least 50% of the voting power of the Corporation or the surviving or acquiring entity), (ii) a sale, transfer or issuance or series of related sales, transfers or issuances of shares of the Corporation’s capital stock that results in any new Person or new group of affiliated Persons owning of record or beneficially capital stock possessing at least 50% of the voting power of the Corporation, or (iii) a sale, lease, transfer, exclusive license or other disposition of all or substantially all of the assets of the Corporation in any transaction or series of related transactions (other than a sale, lease, transfer, exclusive license or other dispositions in the ordinary course of business), as determined on a consolidated basis.”

THIRD: That the Amended and Restated Certificate of Incorporation of the Corporation be, and hereby is, amended by deleting Article Fourth, Part B, Paragraph 2I in its entirety and substituting in lieu thereof a new Article Fourth, Part B, Paragraph 2I to read as follows:

“Paragraph 2I. Amendment and Waiver. No amendment, modification or waiver shall be binding or effective with respect to any provision of this Paragraph 2 of Part B hereof without the prior written consent of the holders of a majority of the Series A Preferred Stock outstanding at the time such action is taken, which shall include PNC Mezzanine Partners III, L.P. (or its permitted transferees) so long as PNC Mezzanine Partners III, L.P. (or its permitted transferees) owns shares of the Series A Preferred Stock and to the extent it owns the lesser of (i) the number of shares of Series A Preferred Stock equal to 70% of the percentage of Series A Preferred Stock owned by PNC Mezzanine Partners III, L.P. as of the first date that PNC Mezzanine Partners III, L.P. received Series A Preferred Stock (the “PNC Issuance Date”), or (ii) the percentage equal to 70% of the percentage of Series A Preferred Stock owned by PNC Mezzanine Partners III, L.P. as of the PNC Issuance Date.”

 

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FOURTH: That the Amended and Restated Certificate of Incorporation of the Corporation be, and hereby is, amended by deleting Article Eighth in its entirety and substituting in lieu thereof a new Article Eighth to read as follows:

“EIGHTH: A. Indemnification of Officers and Directors: The Corporation shall:

1. indemnify, to the fullest extent permitted by the GCL, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that such person is or was a director or an officer of the Corporation, or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, or, if such person has previously been designated for indemnification by the resolution of the Board of Directors, an employee or agent of the Corporation, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interest of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful; and

2. indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was a director or an officer, or is or was serving at the request of the Corporation as a director or officer of another corporation, joint venture, trust or other enterprise, or, if such person has previously been designated for indemnification by the resolution of the Board of Directors, an employee or agent of the Corporation, against expenses (including attorneys’ fees) actually and reasonably incurred by each person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper; and

 

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3. indemnity, to the extent that a present or former director or officer has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Article EIGHTH, Part A, paragraphs (1) and (2), or in defense of any claim, issue or matter therein, any such present or former director or officer against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith; and

4. make any indemnification under Article EIGHTH, Part A, paragraphs (1) and (2) (unless ordered by a court) only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because such director, officer, employee or agent has met the applicable standard of conduct set forth in Article EIGHTH, Part A, paragraphs (1) and (2). Such determination shall be made (a) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (b) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (c) by the stockholders of the Corporation; and

5. pay expenses incurred by a director or an officer in defending a civil or criminal action, suit or proceeding in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such director or officer is not entitled to be indemnified by the Corporation as authorized in this Article EIGHTH. Notwithstanding the foregoing, the Corporation shall not be obligated to pay expenses incurred by a director or an officer with respect to any threatened, pending, or completed claim, suit or action, whether civil, criminal, administrative, investigative or otherwise (“Proceedings”) initiated or brought voluntarily by a director or an officer and not by way of defense (other than Proceedings brought to establish or enforce a right to indemnification under the provisions of this Article EIGHTH unless a court of competent jurisdiction determines that each of the material assertions made by the director or officer in such proceeding were not made in good faith or were frivolous). The Corporation shall not be obligated to indemnify the director or officer for any amount paid in settlement of a Proceeding covered hereby without the prior written consent of the Corporation to such settlement; and

6. not deem the indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this Article EIGHTH exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such director’s or officer’s official capacity and as to action in another capacity while holding such office; and

 

4

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7. have the right, authority and power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Article EIGHTH; and

8. deem the provisions of this Article EIGHTH to be a contract between the Corporation and each director, or appropriately designated officer, employee or agent who serves in such capacity at any time while this Article EIGHTH is in effect and any repeal or modification of this Article EIGHTH shall not affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any action, suit or proceeding theretofore or thereafter brought or threatened based in whole or in part upon such state of facts. The provisions of this Article EIGHTH shall not be deemed to be a contract between the Corporation and any directors, officers, employees or agents of any other corporation (the “Second Corporation”) which shall merge into or consolidate with this Corporation when this Corporation shall be the surviving or resulting Corporation, and any such directors, officers, employees or agents of the Second Corporation shall be indemnified to the full extent permitted under the GCL only at the discretion of the Board of Directors of this Corporation; and

9. continue the indemnification and advancement of expenses provided by, or granted pursuant to, this Article EIGHTH, unless otherwise provided when authorized or ratified, as to a person who has ceased to be a director, officer, employee or agent of the Corporation and such rights shall inure to the benefit of the heirs, executors and administrators of such a person.

B. Elimination of Certain Liability of Directors: No director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (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 law, (iii) under Section 174 of the GCL, as the same exists or hereafter may be amended, or (iv) for any transaction from which the director derived an improper personal benefit. If the GCL is amended to authorize the further elimination or limitation of liability of directors, then the liability of a director of the Corporation, in addition to the limitation on personal liability provided herein, shall be limited to the fullest extent permitted by the amended GCL. Any repeal or modification of this Article

 

5

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EIGHTH by the stockholders of the Corporation shall be prospective only, and shall not adversely affect any limitation on the personal liability of a director of the Corporation existing at the time of such repeal or modification.”

FIFTH: That the Board of Directors of the Corporation approved the foregoing amendment by unanimous written consent pursuant to the provisions of Section 141(f) and 242 of the General Corporation Law of the State of Delaware and directed that such amendment be submitted to the stockholders of the Corporation entitled to vote thereon for their consideration, approval and adoption thereof.

SIXTH: That the stockholders entitled to vote thereon approved the foregoing amendment by written consent in accordance with Section 228 and 242 of the General Corporation Law of the State of Delaware.

* * * * *

 

6

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IN WITNESS WHEREOF, the undersigned does hereby certify that this Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Corporation is the act and deed of the undersigned and the facts stated herein are true and accordingly has hereunto set his hand this 1^st day of May, 2008.

 

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CERTIFICATE OF AMENDMENT TO

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF

CITADEL PLASTICS HOLDINGS, INC.

Adopted in accordance with the provisions

of §242 of the General Corporation Law

of the State of Delaware

J. Michael Fitzpatrick, being the Chief Executive Officer and President of Citadel Plastics Holdings, Inc., a corporation duly organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”), does hereby certify as follows:

FIRST: That the Amended and Restated Certificate of Incorporation of the Corporation be, and hereby is, amended by deleting Article Fourth, Part A in its entirety and substituting in lieu thereof a new Article Fourth, Part A to read as follows:

“The total number of shares of capital stock that the Corporation has authority to issue is 3,180,000, consisting of:

(1) 780,000 shares of Preferred Stock, $.0001 par value per share (the “Preferred Stock”), of which 780,000 shares are designated as Series A Preferred Stock, $.0001 par value per share (the “Series A Preferred Stock”); and

(2) 2,400,000 shares of Common Stock, $.0001 par value per share (the “Common Stock”).

The shares of the Preferred Stock and the Common Stock shall have the rights, preferences and limitations set forth below.”

SECOND: That the Board of Directors of the Corporation approved the foregoing amendment by unanimous written consent pursuant to the provisions of Section 141(f) and 242 of the General Corporation Law of the State of Delaware and directed that such amendment be submitted to the stockholders of the Corporation entitled to vote thereon for their consideration, approval and adoption thereof.

THIRD: That the stockholders entitled to vote thereon approved the foregoing amendment by written consent in accordance with Section 228 and 242 of the General Corporation Law of the State of Delaware.

* * * * *

 

State of Delaware Secretary of State Division of Corporations Delivered 05:41 PM 12/22/2008 FILED 05:15 PM 12/22/2008 SRV 081221347 – 4304194 FILE

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IN WITNESS WHEREOF, the undersigned does hereby certify that this Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Corporation is the act and deed of the undersigned and the facts stated herein are true and accordingly has hereunto set his hand this 22nd day of December, 2008.

 

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State of Delaware Secretary of State Division of Corporations Delivered 06:55 PM 04/24/2009 FILED 06:45 PM 04/24/2009 SRV 090397921 – 4304194 FILE

CERTIFICATE OF AMENDMENT TO

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF

CITADEL PLASTICS HOLDINGS, INC.

Adopted in accordance with the provisions

of §242 of the General Corporation Law

of the State of Delaware

J. Michael Fitzpatrick, being the Chief Executive Officer and President of Citadel Plastics Holdings, Inc., a corporation duly organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”), does hereby certify as follows:

FIRST: That the Amended and Restated Certificate of Incorporation of the Corporation be, and hereby is, amended by deleting Article Fourth, Part A in its entirety and substituting in lieu thereof a new Article Fourth, Part A to read as follows:

“The total number of shares of capital stock that the Corporation has authority to issue is 3,300,000, consisting of:

(1) 800,000 shares of Preferred Stock, $.0001 par value per share (the “Preferred Stock”), of which 800,000 shares are designated as Series A Preferred Stock, $.0001 par value per share (the “Series A Preferred Stock”); and

(2) 2,500,000 shares of Common Stock, $.0001 par value per share (the “Common Stock”).

The shares of the Preferred Stock and the Common Stock shall have the rights, preferences and limitations set forth below.”

SECOND: That the Board of Directors of the Corporation approved the foregoing amendment by unanimous written consent pursuant to the provisions of Section 141(f) and 242 of the General Corporation Law of the State of Delaware and directed that such amendment be submitted to the stockholders of the Corporation entitled to vote thereon for their consideration, approval and adoption thereof.

THIRD: That the stockholders entitled to vote thereon approved the foregoing amendment by written consent in accordance with Section 228 and 242 of the General Corporation Law of the State of Delaware.

* * * * *

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IN WITNESS WHEREOF, the undersigned does hereby certify that this Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Corporation is the act and deed of the undersigned and the facts stated herein are true and accordingly has hereunto set his hand this 22th day of April, 2009.

 

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		State of Delaware Secretary of State Division of Corporations Delivered 09:47 AM 02/29/2012 FILED 09:44 AM 02/29/2012 SRV 120248768 – 4304194 FILE

CERTIFICATE OF MERGER

OF

CITY ACQUISITION MERGER SUB, INC.

WITH AND INTO

CITADEL PLASTICS HOLDINGS, INC.

CITADEL PLASTICS HOLDINGS, INC., a corporation duly organized and existing under and by virtue of the laws of the State of Delaware (the “Corporation”), desiring to merge CITY ACQUISITION MERGER SUB, INC., a Delaware corporation (“Merger Sub”), with and into the Corporation (the “Merger”), pursuant to Title 8, Section 251 (c) of the General Corporation Law of the State of Delaware (the “DGCL”), hereby certifies as follows:

FIRST: The name and state of incorporation of each of the constituent corporations to the Merger (the “Constituent Corporations”) are as follows:

 

Name		State of Incorporation
City Acquisition Merger Sub, Inc.		Delaware
Citadel Plastics Holdings, Inc.		Delaware

SECOND: An Amended and Restated Agreement and Plan of Merger, entered into as of February 28, 2012 and effective as of February 1, 2012, by and among each of the Constituent Corporations, HGGC Citadel Plastics Holdings, Inc., a Delaware corporation, the stockholders and optionholders listed on the signature pages thereto and the representative named therein (the “Merger Agreement”), was approved, adopted, certified, executed and acknowledged by each of the Constituent Corporations in accordance with Section 251 of the DGCL (and by the written consent of their respective stockholders in accordance with Section 228 of the DGCL).

THIRD: The Corporation will continue as the corporation surviving the Merger (the “Surviving Corporation”) and the name of the Surviving Corporation shall be Citadel Plastics Holdings, Inc. upon the effectiveness of the Merger in accordance with Section 251 of the DGCL and Section 103 of the DGCL (the “Effective Time”).

FOURTH: At the Effective Time, the Certificate of Incorporation of the Surviving Corporation shall be amended and restated in the Merger to read, in its entirety, as set forth on Exhibit A attached hereto, and as so amended and restated shall be the Certificate of Incorporation of the Surviving Corporation until further amended pursuant to the DGCL.

FIFTH: An executed copy of the Merger Agreement is on file at the offices of the Surviving Corporation at 1600 Powis Court, West Chicago, Illinois 60185, and a copy thereof will be furnished by the Surviving Corporation, on request and without cost, to any stockholder of either of the Constituent Corporations.

SIXTH: This Certificate of Merger, and the Merger, shall become effective at the time this Certificate of Merger is filed with the Secretary of State of the State of Delaware.

*        *        *         *

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IN WITNESS WHEREOF, the Corporation has caused this Certificate of Merger to be executed as of the 29th day of February, 2012.

 

 

{DE Certificate of Merger - City Acquisition Merger Sub, Inc. into Citadel Plastics Holdings, Inc.}		S-1

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Exhibit A

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

CITADEL PLASTICS HOLDINGS, INC.

ARTICLE ONE

The name of the corporation is Citadel Plastics Holdings, Inc.

ARTICLE TWO

The address of the corporation’s registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware, 19801. The name of its registered agent at such address is The Corporation Trust Company.

ARTICLE THREE

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 the State of Delaware.

ARTICLE FOUR

The total number of shares of stock which the corporation has authority to issue is one thousand (1,000) shares of Common Stock, with a par value of $0.001 per share.

ARTICLE FIVE

The corporation is to have perpetual existence.

ARTICLE SIX

In furtherance and not in limitation of the powers conferred by statute, the board of directors of the corporation is expressly authorized to make, alter or repeal the by-laws of the corporation.

 

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ARTICLE SEVEN

Meetings of stockholders may be held within or without the State of Delaware, as the by-laws of the corporation may provide. The books of the corporation may be kept 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 by-laws of the corporation. Election of directors need not be by written ballot unless the by-laws of the corporation so provide.

ARTICLE EIGHT

To the fullest extent permitted by the General Corporation Law of the State of Delaware 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 a breach of fiduciary duty as a director. Any repeal or modification of this ARTICLE EIGHT shall not adversely affect any right or protection of a director of the corporation existing at the time of such repeal or modification.

ARTICLE NINE

The corporation expressly elects not to be governed by Section 203 of the General Corporation Law of the State of Delaware.

ARTICLE TEN

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 herein and by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation.

 

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Exhibit 3.10

BY-LAWS

OF

CITADEL PLASTICS HOLDINGS, INC.

ARTICLE I

STOCKHOLDERS

Section 1. Place of Stockholders’ Meetings. All meetings of the stockholders of the Corporation shall be held at such place or places, within or outside the State of Delaware, as may be fixed by the Board of Directors from time to time or as shall be specified in the respective notices thereof.

Section 2. Date, Hour and Purpose of Annual Meetings of Stockholders. Annual Meetings of Stockholders, commencing with the year 2008, shall be held on such day and at such time as the Directors may determine from time to time by resolution, at which meeting the stockholders shall elect, by a plurality of the votes cast at such election, a Board of Directors, and transact such other business as may properly be brought before the meeting. If for any reason a Board of Directors shall not be elected at the Annual Meeting of Stockholders, or if it appears that such Annual Meeting is not held on such date as may be fixed by the Directors in accordance with the provisions of the By-laws, then in either such event the Directors shall cause the election to be held as soon thereafter as convenient.

Section 3. Special Meetings of Stockholders. Special meetings of the stockholders entitled to vote may be called by the Chairman of the Board, if any, the Vice Chairman of the Board, if any, the President or any Vice President, the Secretary or by the Board of Directors, and shall be called by any of the foregoing at the request in writing of stockholders owning a majority in amount of the entire capital stock of the Corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the meeting.

Section 4. Notice of Meetings of Stockholders. Except as otherwise expressly required or permitted by the laws of Delaware, not less than ten days nor more than sixty days before the date of every stockholders’ meeting, the Secretary shall give to each stockholder of record entitled to vote at such meeting written notice stating the place, day and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Such notice, if mailed, shall be deemed to be given when deposited in the United States mail, with postage thereon prepaid, addressed to the stockholder at the post office address for notices to such stockholder as it appears on the records of the Corporation.

Without limiting the manner by which notice may otherwise be given to stockholders, any notice given to stockholders by the Corporation for any purpose shall be effective if given by way of an electronic transmission (e.g., facsimile or e-mail) consented to by the stockholder to whom notice is given.

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An Affidavit of the Secretary or an Assistant Secretary or of a transfer agent of the Corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein.

Section 5. Quorum of Stockholders.

(a) Unless otherwise provided by the laws of Delaware, at any meeting of the stockholders the presence in person or by proxy of stockholders entitled to cast a majority of the votes thereat shall constitute a quorum.

(b) At any meeting of the stockholders at which a quorum shall be present, a majority of those present in person or by proxy may adjourn the meeting from time to time without notice other than announcement at the meeting. In the absence of a quorum, the officer presiding thereat shall have power to adjourn the meeting from time to time until a quorum shall be present. Notice of any adjourned meeting other than announcement at the meeting shall not be required to be given, except as provided in paragraph (d) below and except where expressly required by law.

(c) At any adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting originally called, but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof, unless a new record date is fixed by the Board of Directors.

(d) If an adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the adjourned meeting.

Section 6. Chairman and Secretary of Meeting. The Chairman, or in his absence, the Vice Chairman, or in his absence, the President, or in his absence, any Vice President, shall preside at meetings of the stockholders. The Secretary shall act as secretary of the meeting, or in his absence an Assistant Secretary shall act, or if neither is present, then the presiding officer shall appoint a person to act as secretary of the meeting.

Section 7. Voting by Stockholders. Except as may be otherwise provided by the Certificate of Incorporation or by these By-laws, at every meeting of the stockholders each stockholder shall be entitled to one vote for each share of stock standing in his name on the books of the Corporation on the record date for the meeting. All elections and questions shall be decided by the vote of a majority in interest of the stockholders present in person or represented by proxy and entitled to vote at the meeting, except as otherwise permitted or required by the laws of Delaware, the Certificate of Incorporation or these By-laws.

Section 8. Proxies. Any stockholder entitled to vote at any meeting of stockholders may vote either in person or by his attorney-in-fact. Every proxy shall be in writing, subscribed by the stockholder or his duly authorized attorney-in-fact, but need not be dated, sealed, witnessed or acknowledged.

 

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Section 9. Action by Consent Without Meeting. Any action required or permitted to be taken at any meeting of the Stockholders may be taken without a meeting if all Stockholders consent thereto in writing or by electronic transmission and the writing or electronic transmission or transmissions are filed with the records of the Corporation.

Section 10. List of Stockholders.

(a) At least ten days before every meeting of stockholders, the Secretary shall prepare or cause to be prepared a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder.

(b) For a period of at least ten days prior to the meeting, such list shall be open to examination by any stockholder for any purpose germane to the meeting, either (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation.

(c) If the meeting is to be held at a place, the list shall also be produced and kept at the time and place of the meeting during the whole time of the meeting, and it may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.

(d) The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this Section or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.

ARTICLE II

DIRECTORS

Section 1. Powers of Directors. The property, business and affairs of the Corporation shall be managed by its Board of Directors, which may exercise all the powers of the Corporation except such as are by the laws of Delaware or the Certificate of Incorporation or these By-laws required to be exercised or done by the stockholders.

Section 2. Number, Method of Election, Terms of Office of Directors. The number of Directors which shall constitute the whole Board of Directors shall be such as from time to time shall be determined by resolution of the Board of Directors, but the number shall not be less than one provided that the tenure of a Director shall not be affected by any decrease in the number of Directors so made by the Board. Each Director shall hold office until his successor is elected and qualified, provided however that a Director may resign at any time.

 

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Section 3. Vacancies on Board of Directors.

(a) Any Director may resign his office at any time by delivering his resignation in writing to the Chairman or the President or the Secretary. It will take effect at the time specified therein, or if no time is specified, it will be effective at the time of its receipt by the Corporation. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation.

(b) Any vacancy or newly created Directorship resulting from any increase in the authorized number of Directors may be filled by vote of a majority of the Directors then in office, though less than a quorum, and any Director so chosen shall hold office until the next annual election of Directors by the stockholders and until his successor is duly elected and qualified, or until his earlier resignation or removal.

Section 4. Meetings of the Board of Directors.

(a) The Board of Directors may hold their meetings, both regular and special, either within or outside the State of Delaware.

(b) Regular meetings of the Board of Directors may be held without notice at such time and place as shall from time to time be determined by resolution of the Board of Directors.

(c) The first meeting of each newly elected Board of Directors except the initial Board of Directors shall be held as soon as practicable after the Annual Meeting of the stockholders for the election of officers and the transaction of such other business as may come before it.

(d) Special meetings of the Board of Directors shall be held whenever called by direction of the Chairman or the President or at the request of Directors constituting one-third of the number of Directors then in office, but not less than two Directors.

(e) The Secretary shall give notice to each Director of any meeting of the Board of Directors by mailing the same at least two days before the meeting or by telegraphing or delivering the same not later than the day before the meeting. Such notice need not include a statement of the business to be transacted at, or the purpose of, any such meeting. Any and all business may be transacted at any meeting of the Board of Directors. No notice of any adjourned meeting need be given. No notice to or waiver by any Director shall be required with respect to any meeting at which the Director is present.

Section 5. Quorum and Action. A majority of the entire Board of Directors shall constitute a quorum for the transaction of business; but if there shall be less than a quorum at any meeting of the Board, a majority of those present may adjourn the meeting from time to time. Unless otherwise provided by the laws of Delaware, the Certificate of Incorporation or these By-laws, the act of a majority of the Directors present at any meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 6. Presiding Officer and Secretary of Meeting. The Chairman or, in his absence, a member of the Board of Directors selected by the members present, shall preside at meetings of the Board. The Secretary shall act as secretary of the meeting, but in his absence the presiding officers shall appoint a secretary of the meeting.

Section 7. Action by Consent Without Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing and the writing or writings are filed with the records of the Board or committee.

Section 8. Executive Committee. The Board of Directors may appoint from among its members and from time to time may fill vacancies in an Executive Committee to serve during the pleasure of the Board. The Executive Committee shall consist of three members, or such greater number of members as the Board of Directors may by resolution from time to time fix. One of such members shall be the Chairman of the Board and another shall be the Vice Chairman of the Board, who shall be the presiding officer of the Committee. During the intervals between the meetings of the Board, the Executive Committee shall possess and may exercise all of the powers of the Board in the management of the business and affairs of the Corporation conferred by these By-laws or otherwise. The Committee shall keep a record of all its proceedings and report the same to the Board. A majority of the members of the Committee shall constitute a quorum. The act of a majority of the members of the Committee present at any meeting at which a quorum is present shall be the act of the Committee.

Section 9. Other Committees. The Board of Directors may also appoint from among its members such other committees of two or more Directors as it may from time to time deem desirable, and may delegate to such committees such powers of the Board as it may consider appropriate.

Section 10. Compensation of Directors. Directors shall receive such reasonable compensation for their service on the Board of Directors or any committees thereof, whether in the form of salary or a fixed fee for attendance at meetings, or both, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any Director from serving in any other capacity and receiving compensation therefor.

ARTICLE III

OFFICERS

Section 1. Executive Officers of the Corporation. The executive officers of the Corporation shall be chosen by the Board of Directors and shall be a President, a Secretary and a Treasurer. The Board of Directors also may appoint a Chairman of the Board, a Vice Chairman of the Board, and one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers. Any two offices except those of Chairman of the Board and Vice Chairman of the Board, President and Vice President, or President and Secretary may be filled by the same person. None of the officers need be a member of the Board except the Chairman of the Board and the Vice Chairman of the Board.

 

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Section 2. Choosing of Executive Officers. The Board of Directors at its first meeting after each Annual Meeting of Stockholders shall choose a President, a Secretary and a Treasurer.

Section 3. Additional Officers. The Board of Directors may appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board.

Section 4. Salaries. The salaries of all officers and agents of the Corporation specially appointed by the Board shall be fixed by the Board of Directors.

Section 5. Term, Removal and Vacancies. The officers of the Corporation shall hold office until their respective successors are chosen and qualify. Any officer elected or appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise shall be filled by the Board of Directors.

Section 6. Chairman of the Board. The Chairman of the Board, if any, shall preside at all meetings of the Board of Directors and of the stockholders. He shall be the Chief Executive Officer of the Company, unless the Board has designated the President as the Chief Executive Officer. In the absence or disability of the Chairman of the Board: (a) the Vice Chairman of the Board shall preside at all meetings of the Board of Directors and of the stockholders, and (b) the powers and duties of the Chairman of the Board shall be exercised jointly by the Vice Chairman of the Board and the President until such authority is altered by action of the Board of Directors. The Chairman of the Board shall present to the Annual Meeting of Stockholders a report of the business of the preceding fiscal year.

Section 7. Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall have such powers and perform such duties as are provided in these By-laws or as may be delegated to him by the Chairman of the Board, and shall perform such other duties as may from time to time be assigned to him by the Board of Directors.

Section 8. President. The President shall have such powers and perform such duties as are provided in these By-laws or as may be delegated to him by the Board of Directors or the Chairman of the Board. If there is no Chairman of the Board, the President shall be the Chief Executive Officer of the Corporation and shall have all the duties and responsibilities previously enumerated for the Chairman of the Board. In the absence of the Chairman of the Board and the Vice Chairman of the Board, the President shall preside at all meetings of the stockholders.

Section 9. Powers and Duties of the Chief Executive Officer. The Chief Executive Officer shall have general charge and supervision of the business of the Company and shall exercise and perform all the duties incident to the office of the Chief Executive Officer. He shall have direct supervision of the other officers and shall also exercise and perform such powers and duties as may be assigned to him by the Board of Directors.

 

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Section 10. Powers and Duties of Vice Presidents. Any Vice President designated by the Board of Directors shall, in the absence, disability, or inability to act of the President, perform all duties and exercise all the powers of the President and shall perform such other duties as the Board may from time to time prescribe. Each Vice President shall have such other powers and shall perform such other duties as may be assigned to him by the Board.

Section 11. Powers and Duties of Treasurer and Assistant Treasurers.

(a) The Treasurer shall have the care and custody of all the funds and securities of the Corporation except as may be otherwise ordered by the Board of Directors, and shall cause such funds to be deposited to the credit of the Corporation in such banks or depositories as may be designated by the Board of Directors, the Chairman, the President or the Treasurer, and shall cause such securities to be placed in safekeeping in such manner as may be designated by the Board of Directors, the Chairman, the President or the Treasurer.

(b) The Treasurer, or an Assistant Treasurer, or such other person or persons as may be designated for such purpose by the Board of Directors, the Chairman, the President or the Treasurer, may endorse in the name and on behalf of the Corporation all instruments for the payment of money, bills of lading, warehouse receipts, insurance policies and other commercial documents requiring such endorsement.

(c) The Treasurer, or an Assistant Treasurer, or such other person or persons as may be designated for such purpose by the Board of Directors, the Chairman, the President or the Treasurer, may sign all receipts and vouchers for payments made to the Corporation; he shall render a statement of the cash account of the Corporation to the Board of Directors as often as it shall require the same; he shall enter regularly in books to be kept by him for that purpose full and accurate accounts of all moneys received and paid by him on account of the Corporation and of all securities received and delivered by the Corporation.

(d) Each Assistant Treasurer shall perform such duties as may from time to time be assigned to him by the Treasurer or by the Board of Directors. In the event of the absence of the Treasurer or his incapacity or inability to act, then any Assistant Treasurer may perform any of the duties and may exercise any of the powers of the Treasurer.

Section 12. Powers and Duties of Secretary and Assistant Secretaries.

(a) The Secretary shall attend all meetings of the Board, all meetings of the stockholders, and shall keep the minutes of all proceedings of the stockholders and the Board of Directors in proper books provided for that purpose. The Secretary shall attend to the giving and serving of all notices of the Corporation in accordance with the provisions of the By-laws and as required by the laws of Delaware. The Secretary may, with the President, a Vice President or other authorized officer, sign all contracts and other documents in the name of the Corporation. He shall perform such other duties as may be prescribed in these By-laws or assigned to him and all other acts incident to the position of Secretary.

 

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(b) Each Assistant Secretary shall perform such duties as may from time to time be assigned to him by the Secretary or by the Board of Directors. In the event of the absence of the Secretary or his incapacity or inability to act, then any Assistant Secretary may perform any of the duties and may exercise any of the powers of the Secretary.

(c) In no case shall the Secretary or any Assistant Secretary, without the express authorization and direction of the Board of Directors, have any responsibility for, or any duty or authority with respect to, the withholding or payment of any federal, state or local taxes of the Corporation, or the preparation or filing of any tax return.

ARTICLE IV

CAPITAL STOCK

Section 1. Stock Certificates.

(a) Every holder of stock in the Corporation shall be entitled to have a certificate signed in the name of the Corporation by the Chairman or the President or the Vice Chairman or a Vice President, and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary, certifying the number of shares owned by him.

(b) If such a certificate is countersigned by a transfer agent other than the Corporation or its employee, or by a registrar other than the Corporation or its employee, the signatures of the officers of the Corporation may be facsimiles and, if permitted by Delaware law, any other signature on the certificate may be a facsimile.

(c) In case any officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer at the date of issue.

(d) Certificates of stock shall be issued in such form not inconsistent with the Certificate of Incorporation as shall be approved by the Board of Directors. They shall be numbered and registered in the order in which they are issued. No certificate shall be issued until fully paid.

Section 2. Record Ownership. A record of the name and address of the holder of each certificate, the number of shares represented thereby, and the date of issue thereof shall be made on the Corporation’s books. The Corporation shall be entitled to treat the holder of record of any share of stock as the holder in fact thereof, and accordingly shall not be bound to recognize any equitable or other claim to or interest in any share on the part of any other person, whether or not it shall have express or other notice thereof, except as required by the laws of Delaware.

 

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Section 3. Transfer of Record Ownership. Transfers of stock shall be made on the books of the Corporation only by direction of the person named in the certificate or his attorney, lawfully constituted in writing, and only upon the surrender of the certificate therefor and a written assignment of the shares evidenced thereby. Whenever any transfer of stock shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer if, when the certificates are presented to the Corporation for transfer, both the transferor and transferee request the Corporation to do so.

Section 4. Lost, Stolen or Destroyed Certificates. Certificates representing shares of the stock of the Corporation shall be issued in place of any certificate alleged to have been lost, stolen or destroyed in such manner and on such terms and conditions as the Board of Directors from time to time may authorize.

Section 5. Transfer Agent, Registrar, Rules Respecting Certificates. The Corporation shall maintain one or more transfer offices or agencies where stock of the Corporation shall be transferable. The Corporation shall also maintain one or more registry offices where such stock shall be registered. The Board of Directors may make such rules and regulations as it may deem expedient concerning the issue, transfer and registration of stock certificates.

Section 6. Fixing Record Date for Determination of Stockholders of Record. The Board of Directors may fix in advance a date as the record date for the purpose of determining the stockholders entitled to notice of, or to vote at, any meeting of the stockholders or any adjournment thereof, or the stockholders entitled to receive payment of any dividend or other distribution or the allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or to express consent to corporate action in writing without a meeting, or in order to make a determination of the stockholders for the purpose of any other lawful action. Such record date in any case shall not be more than sixty days nor less than ten days before the date of a meeting of the stockholders, nor more than sixty days prior to any other action requiring such determination of the stockholders. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

ARTICLE V

SECURITIES HELD BY THE CORPORATION

Section 1. Voting. Unless the Board of Directors shall otherwise order, the Chairman, the Vice Chairman, the President, any Vice President or the Treasurer shall have full power and authority on behalf of the Corporation to attend, act and vote at any meeting of the stockholders of any corporation in which the Corporation may hold stock and at such meeting to exercise any or all rights and powers incident to the ownership of such stock, and to execute on behalf of the Corporation a proxy or proxies empowering another or others to act as aforesaid. The Board of Directors from time to time may confer like powers upon any other person or persons.

 

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Section 2. General Authorization to Transfer Securities Held by the Corporation.

(a) Any of the following officers, to-wit: the Chairman, the President, any Vice President, the Treasurer or the Secretary of the Corporation shall be and are hereby authorized and empowered to transfer, convert, endorse, sell, assign, set over and deliver any and all shares of stock, bonds, debentures, notes, subscription warrants, stock purchase warrants, evidences of indebtedness, or other securities now or hereafter standing in the name of or owned by the Corporation, and to make, execute and deliver under the seal of the Corporation any and all written instruments of assignment and transfer necessary or proper to effectuate the authority hereby conferred.

(b) Whenever there shall be annexed to any instrument of assignment and transfer executed, pursuant to and in accordance with the foregoing paragraph (a), a certificate of the Secretary or an Assistant Secretary of the Corporation in office at the date of such certificate setting forth the provisions hereof and stating that they are in full force and effect and setting forth the names of persons who are then officers of the Corporation, then all persons to whom such instrument and annexed certificate shall thereafter come shall be entitled, without further inquiry or investigation and regardless of the date of such certificate, to assume and to act in reliance upon the assumption that the shares of stock or other securities named in such instrument were theretofore duly and properly transferred, endorsed, sold, assigned, set over and delivered by the Corporation, and that with respect to such securities the authority of these provisions of the By-laws and of such officers is still in full force and effect.

ARTICLE VI

DIVIDENDS

Section 1. Declaration of Dividends. Dividends upon the capital stock of the Corporation may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation.

Section 2. Payment and Reserves. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the Directors shall think conducive to the interest of the Corporation, and the directors may modify or abolish any such reserves in the manner in which they were created.

Section 3. Record Date. The Board of Directors may, to the extent provided by law, prescribe a period, in no event in excess of sixty (60) days, prior to the date for payment of any dividend, as a record date for the determination of stockholders entitled to receive payment of any such dividend, and in such case such stockholders and only such stockholders as shall be stockholders of record on said date so fixed shall be entitled to receive payment of such dividend, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid.

 

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ARTICLE VII

GENERAL PROVISIONS

Section 1. Signatures of Officers. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate. The signature of any officer upon any of the foregoing instruments may be a facsimile whenever authorized by the Board.

Section 2. Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.

Section 3. Seal. Upon resolution of the Board of Directors, the Corporation may elect to have a corporate seal. In such event, the corporate seal shall have inscribed thereon the name of the Corporation, the year of its incorporation and the words “Corporate Seal, Delaware”. Said seal may be used for causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

ARTICLE VIII

WAIVER OF OR DISPENSING WITH NOTICE

Whenever any notice of the time, place or purpose of any meeting of the stockholders, Directors or a committee is required to be given under the laws of Delaware, the Certificate of Incorporation or these By-laws, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the holding thereof, or actual attendance at the meeting in person, or in the case of the stockholders, by his attorney-in-fact, shall be deemed equivalent to the giving of such notice to such persons. No notice need be given to any person with whom communication is made unlawful by any law of the United States or any rule, regulation, proclamation or executive order issued under any such law.

ARTICLE IX

AMENDMENT OF BY-LAWS

These By-laws, or any of them, may from time to time be supplemented, amended or repealed by the Board of Directors, or by the vote of a majority in interest of the stockholders represented and entitled to vote at any meeting at which a quorum is present.

 

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Exhibit 3.11

 

		Delaware		PAGE 1
		The First State

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “HGGC CITADEL PLASTICS HOLDINGS, INC.” AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

CERTIFICATE OF INCORPORATION, FILED THE TWENTY-FOURTH DAY OF JANUARY, A.D. 2012, AT 6:28 O’CLOCK P.M.

CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE TENTH DAY OF FEBRUARY, A.D. 2012, AT 9:12 O’CLOCK A.M.

CERTIFICATE OF AMENDMENT, FILED THE TWENTY-EIGHTH DAY OF FEBRUARY, A.D. 2012, AT 3:08 O’CLOCK P.M.

CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE THIRTEENTH DAY OF JANUARY, A.D. 2014, AT 1:31 O’CLOCK P.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION, “HGGC CITADEL PLASTICS HOLDINGS, INC.”.

 

				Jeffrey W. Bullock, Secretary of State
5099948    8100H				AUTHENTICATION:  2312416
150548141				DATE:  04-22-15
You may verify this certificate online at corp.delaware.gov/authver.shtml

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		State of Delaware Secretary of State Division of Corporations Delivered 06:40 PM 01/24/2012 FILED 06:28 PM 01/24/2012 SRV 120081703 - 5099948 FILE

CERTIFICATE OF INCORPORATION

OF

HGGC CITADEL PLASTICS HOLDINGS, INC.

ARTICLE ONE

The name of the corporation is HGGC Citadel Plastics Holdings, Inc.

ARTICLE TWO

The address of the corporation’s registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware, 19801. The name of its registered agent at such address is The Corporation Trust Company.

ARTICLE THREE

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 the State of Delaware.

ARTICLE FOUR

The total number of shares of stock which the corporation has authority to issue is one thousand (1,000) shares of Common Stock, with a par value of $0.001 per share.

ARTICLE FIVE

The name and mailing address of the sole incorporator are as follows:

 

NAME		MAILING ADDRESS
Howard P. Young		c/o Kirkland & Ellis LLP 555 California Street, Suite 2700 San Francisco, CA 94104

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ARTICLE SIX

The corporation is to have perpetual existence.

ARTICLE SEVEN

In furtherance and not in limitation of the powers conferred by statute, the board of directors of the corporation is expressly authorized to make, alter or repeal the by-laws of the corporation.

ARTICLE EIGHT

Meetings of stockholders may be held within or without the State of Delaware, as the by-laws of the corporation may provide. The books of the corporation may be kept 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 by-laws of the corporation. Election of directors need not be by written ballot unless the by-laws of the corporation so provide.

ARTICLE NINE

To the fullest extent permitted by the General Corporation Law of the State of Delaware 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 a breach of fiduciary duty as a director. Any repeal or modification of this ARTICLE NINE shall not adversely affect any right or protection of a director of the corporation existing at the time of such repeal or modification.

ARTICLE TEN

The corporation expressly elects not to be governed by Section 203 of the General Corporation Law of the State of Delaware.

ARTICLE ELEVEN

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 herein and by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation.

 

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I, THE UNDERSIGNED, being the sole 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 stated herein are true, and accordingly have hereunto set my hand on the 24th day of January, 2012.

 

 

{HGGC Citadel Plastics Holdings, Inc. - DE Certificate of Incorporation}		S-1

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State of Delaware Secretary of State Division of Corporations Delivered 09:24 AM 02/10/2012 FILED 09:12 AM 02/10/2012 SRV 120150055 - 5099948 FILE

STATE OF DELAWARE

CERTIFICATE OF CHANGE

OF REGISTERED AGENT AND/OR

REGISTERED OFFICE

OF

HGGC CITADEL PLASTICS HOLDINGS, INC.

It is hereby certified that:

1. The name of the corporation (hereinafter called the “Corporation”) is:

HGGC Citadel Plastics Holdings, Inc.

2. The registered agent of the Corporation within the State of Delaware is hereby changed to Corporation Service Company, the business office of which is 2711 Centerville Road, Suite 400, City of Wilmington, County of New Castle, Delaware, 19808.

3. The registered office of the Corporation within the State of Delaware is hereby changed to 2711 Centerville Road, Suite 400, City of Wilmington, County of New Castle, Delaware, 19808.

4. The Corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors.

Signed on February 10, 2012.

 

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		State of Delaware Secretary of State Division of Corporations Delivered 03:13 PM 02/28/2012 FILED 03:08 PM 02/28/2012 SRV 120243279 - 5099948 FILE

CERTIFICATE OF AMENDMENT

TO

CERTIFICATE OF INCORPORATION

OF

HGGC CITADEL PLASTICS HOLDINGS, INC.

*     *     *     *

Adopted in accordance with the provisions of §242 of the

General Corporation Law of the State of Delaware

*     *     *     *

The undersigned, being the President and Chief Executive Officer of HGGC Citadel Plastics Holdings, Inc., a corporation duly organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”), DOES HEREBY CERTIFY as follows:

FIRST: The Board of Directors of the Corporation (the “Board”) adopted the resolution set forth below proposing an amendment to the Certificate of Incorporation of the Corporation (the “Amendment”) and directed that the Amendment be submitted to the holders of the issued and outstanding shares of capital stock of the Corporation entitled to vote thereon for their consideration and approval:

WHEREAS, the Board deems it advisable and in the best interests of the Corporation to amend the Certificate of Incorporation of the Corporation, pursuant to Section 242 of the General Corporation Law of the State of Delaware.

NOW, THEREFORE, BE IT RESOLVED, that, subject to the approval by the stockholders of the Corporation (the “Stockholders”), the Certificate of Incorporation of the Corporation be amended in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware by deleting ARTICLE FOUR thereof in its entirety and substituting therefor the ARTICLE FOUR as follows:

“ARTICLE FOUR:

The total number of shares which the corporation shall have authority to issue is 200,000.00000 shares of Common Stock, with a par value of $0.001 per share (the “Common Stock”).”

SECOND: The Amendment was duly adopted in accordance with Section 228 and Section 242 of the General Corporation Law of the State of Delaware by the holders of all of the issued and outstanding shares of the Common Stock of the Corporation entitled to vote thereon.

*     *     *     *     *

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IN WITNESS WHEREOF, the undersigned does hereby certify under penalties of perjury that this Certificate of Amendment to the Certificate of Incorporation of the Corporation is the act and deed of the undersigned and the facts stated herein are true and accordingly has hereunto set his hand this 28th day of February, 2012.

 

 

{HGGC Citadel Plastics Holdings, Inc. - Certificate of Amendment re authorized shares}		S-1

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State of Delaware Secretary of State Division of Corporations Delivered 01:36 PM 01/13/2014 FILED 01:31 PM 01/13/2014 SRV 140039632 - 5099948 FILE

STATE OF DELAWARE

CERTIFICATE OF CHANGE OF REGISTERED AGENT

AND/OR REGISTERED OFFICE

The corporation organized and existing under the General Corporation Law of the State of Delaware, hereby certifies as follows:

1. The name of the corporation is HGGC CITADEL PLASTICS HOLDINGS, INC..

2. The Registered Office of the corporation in the State of Delaware is changed to Corporation Trust Center 1209 Orange (street), in the City of Wilmington, County of New Castle Zip Code 19801. The name of the Registered Agent at such address upon whom process against this Corporation may be served is THE CORPORATION TRUST COMPANY.

3. The foregoing change to the registered office/agent was adopted by a resolution of the Board of Directors of the corporation.

 

Exhibit 3.12

BY-LAWS

OF

HGGC CITADEL PLASTICS HOLDINGS, INC.,

A Delaware Corporation

(Adopted as of January 24, 2012)

ARTICLE I

OFFICES

Section 1. Registered Office. The registered office of the corporation in the State of Delaware shall be located at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware, County of New Castle, 19801. The name of the corporation’s registered agent at such address shall be The Corporation Trust Company. The registered office and/or registered agent of the corporation may be changed from time to time by action of the Board of Directors.

Section 2. Other Offices. The corporation may also have offices at such other places, both within and without the State of Delaware, as the Board of Directors may from time to time determine or the business of the corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

Section 1. Place and Time of Meetings. An annual meeting of the stockholders shall be held each year within one hundred twenty (120) days after the close of the immediately preceding fiscal year of the corporation for the purpose of electing directors and conducting such other proper business as may come before the meeting. The date, time and place, if any, and/or the means of remote communication, of the annual meeting shall be determined by the Board of Directors. No annual meeting of stockholders need be held if not required by the corporation’s certificate of incorporation or by the General Corporation Law of the State of Delaware.

Section 2. Special Meetings. Special meetings of stockholders may be called for any purpose and may be held at such time and place, within or without the State of Delaware, and/or by means of remote communication, as shall be stated in a notice of meeting or in a duly executed waiver of notice thereof. Such meetings may be called at any time by the Board of Directors or the chief executive officer or president and shall be called by the chief executive officer or president upon the written request of holders of shares entitled to cast not less than 50 percent of the votes at the meeting, such written request shall state the purpose or purposes of the meeting and shall be delivered to the chief executive officer or president. On such written request, the chief executive officer or president shall fix a date and time for such meeting within 30 days of the date requested for such meeting in such written request.

Section 3. Place of Meetings. The Board of Directors may designate any place, either within or without the State of Delaware, and/or by means of remote communication, as the place of meeting for any annual meeting or for any special meeting called by the Board of Directors. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal executive office of the corporation.

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Section 4. Notice. Whenever stockholders are required or permitted to take any action at a meeting, written or printed notice stating the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of special meetings, the purpose or purposes, of such meeting, shall be given to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. All such notices shall be delivered, either personally, by mail, or by a form of electronic transmission consented to by the stockholder to whom the notice is given, by or at the direction of the Board of Directors, the chief executive officer, the president or the secretary, and if mailed, such notice shall be deemed to be delivered when deposited in the United States mail, postage prepaid, addressed to the stockholder at his, her or its address as the same appears on the records of the corporation. If given by electronic transmission, such notice shall be deemed to be delivered (i) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; (ii) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (iii) if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (a) such posting and (b) the giving of such separate notice; and (iv) if by any other form of electronic transmission, when directed to the stockholder. Any such consent shall be revocable by the stockholder by written notice to the corporation. Any such consent shall be deemed revoked if (1) the corporation is unable to deliver by electronic transmission two consecutive notices given by the corporation in accordance with such consent and (2) such inability becomes known to the secretary or an assistant secretary of the corporation or to the transfer agent.

Section 5. Stockholders List. The officer having charge of the stock ledger of the corporation shall make, at least 10 days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at such meeting arranged in alphabetical order, showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, and/or (ii) during ordinary business hours, at the principal place of business of the corporation. In the event that the corporation determines to make the list available on an electronic network, the corporation may take reasonable steps to ensure that such information is available only to stockholders of the corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.

Section 6. Quorum. The holders of a majority of the outstanding shares of capital stock, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders, except as otherwise provided by statute or by the certificate of incorporation. If a quorum is not present, the holders of a majority of the shares present in person or represented by proxy at the meeting, and entitled to vote at the meeting, may adjourn the meeting to another time and/or place.

Section 7. Adjourned Meetings. When a meeting is adjourned to another time and place, notice need not be given of the adjourned meeting if the time, place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

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Section 8. Vote Required. When a quorum is present, the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders, unless the question is one upon which by express provisions of an applicable law or of the certificate of incorporation a different vote is required, in which case such express provision shall govern and control the decision of such question.

Section 9. Voting Rights. Except as otherwise provided by the General Corporation Law of the State of Delaware or by the certificate of incorporation of the corporation or any amendments thereto and subject to Section 3 of Article VI hereof, every stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of common stock held by such stockholder.

Section 10. Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period.

Section 11. Action by Written Consent. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken and bearing the dates of signature of the stockholders who signed the consent or consents, shall be 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 and shall be delivered to the corporation by delivery to its registered office in the state of Delaware, or the corporation’s principal place of business, or an officer or agent of the corporation having custody of the book or books in which proceedings of meetings of the stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. All consents properly delivered in accordance with this section shall be deemed to be recorded when so delivered. No written consent shall be effective to take the corporate action referred to therein unless, within 60 days after the earliest dated consent delivered to the corporation as required by this section, written consents signed by the holders of a sufficient number of shares to take such corporate action are so recorded. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Any action taken pursuant to such written consent or consents of the stockholders shall have the same force and effect as if taken by the stockholders at a meeting thereof.

Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used; provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing.

Section 12. Action by Telegram, Cablegram or Other Electronic Transmission Consent. A telegram, cablegram or other electronic transmission consenting to an action to be taken and transmitted by a stockholder or proxyholder, or by a person or persons authorized to act for a stockholder or proxyholder, shall be deemed to be written, signed and dated for the purposes of this section; provided that any such telegram, cablegram or other electronic transmission sets forth or is delivered with information from which the corporation can determine (i) that the telegram, cablegram or other electronic

 

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transmission was transmitted by the stockholder or proxyholder or by a person or persons authorized to act for the stockholder or proxyholder and (ii) the date on which such stockholder or proxyholder or authorized person or persons transmitted such telegram, cablegram or electronic transmission. The date on which such telegram, cablegram or electronic transmission is transmitted shall be deemed to be the date on which such consent was signed. No consent given by telegram, cablegram or other electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper form shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded if, to the extent and in the manner provided by resolution of the Board of Directors of the corporation.

ARTICLE III

DIRECTORS

Section 1. General Powers. The business and affairs of the corporation shall be managed by or under the direction of the Board of Directors.

Section 2. Number, Election and Term of Office. The number of directors which shall constitute the first board shall be four (4). Thereafter, the number of directors shall be established from time to time by resolution of the board or of the stockholders. The directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote in the election of directors. The directors shall be elected in this manner at the annual meeting of the stockholders, except as provided in Section 4 of this Article III. Each director elected shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.

Section 3. Removal and Resignation. Any director or the entire Board of Directors may be removed at any time, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors. Whenever the holders of any class or series are entitled to elect one or more directors by the provisions of the corporation’s certificate of incorporation, the provisions of this section shall apply, in respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole. Any director may resign at any time upon notice given in writing or by electronic transmission to the corporation.

Section 4. Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director. Each director so chosen shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as herein provided.

Section 5. Annual Meetings. The annual meeting of each newly elected Board of Directors shall be held without notice (other than notice under these by-laws) immediately after, and at the same place, if any, as the annual meeting of stockholders.

Section 6. Other Meetings and Notice. Regular meetings, other than the annual meeting, of the Board of Directors may be held without notice at such time and at such place, if any, as shall from time to time be determined by resolution of the Board of Directors. Special meetings of the Board of Directors may be called by or at the request of the chief executive officer, the president or any director on at least 24 hours notice to each director, either personally, by telephone, by mail or by telegraph.

 

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Section 7. Quorum, Required Vote and Adjournment. A majority of the total number of directors shall constitute a quorum for the transaction of business. The vote of a majority of directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

Section 8. Committees. The Board of Directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation, which to the extent provided in such resolution or these Bylaws shall have and may exercise the powers of the Board of Directors in the management and affairs of the corporation except as otherwise limited by law. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required.

Section 9. Committee Rules. Each committee of the Board of Directors may fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may otherwise be provided by a resolution of the Board of Directors designating such committee. In the event that a member and that member’s alternate, if alternates are designated by the Board of Directors as provided in Section 8 of this Article III, of such committee is or are absent or disqualified, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member.

Section 10. Communications Equipment. Members of the Board of Directors or any committee thereof may participate in and act at any meeting of such board or committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in the meeting pursuant to this section shall constitute presence in person at the meeting.

Section 11. Waiver of Notice and Presumption of Assent. Any member of the Board of Directors or any committee thereof who is present at a meeting shall be conclusively presumed to have waived notice of such meeting except when such member attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Such member shall be conclusively presumed to have assented to any action taken unless his or her dissent shall be entered in the minutes of the meeting or unless his or her written dissent to such action shall be filed with the person acting as the secretary of the meeting before the adjournment thereof or shall be forwarded by registered mail to the secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to any member who voted in favor of such action.

Section 12. Action by Written Consent. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the board or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the board, or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

 

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ARTICLE IV

OFFICERS

Section 1. Number. The officers of the corporation shall be elected by the Board of Directors and shall consist of a chief executive officer or president, a secretary, and such other officers and assistant officers as may be deemed necessary or desirable by the Board of Directors. Any number of offices may be held by the same person. In its discretion, the Board of Directors may choose not to fill any office for any period as it may deem advisable.

Section 2. Election and Term of Office. The officers of the corporation shall be elected annually by the Board of Directors at its first meeting held after each annual meeting of stockholders or as soon thereafter as conveniently may be. Vacancies may be filled or new offices created and filled at any meeting of the Board of Directors. Each officer shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.

Section 3. Removal. Any officer or agent elected by the Board of Directors may be removed by the Board of Directors whenever in its judgment the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed.

Section 4. Vacancies. Any vacancy occurring in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the Board of Directors for the unexpired portion of the term by the Board of Directors then in office.

Section 5. Compensation. Compensation of all officers shall be fixed by the Board of Directors, and no officer shall be prevented from receiving such compensation by virtue of his or her also being a director of the corporation.

Section 6. The Chief Executive Officer or President. The chief executive officer or president shall be the chief executive officer of the corporation; shall preside at all meetings of the stockholders and Board of Directors at which he or she is present; subject to the powers of the Board of Directors, shall have general charge of the business, affairs and property of the corporation, and control over its officers, agents and employees; and shall see that all orders and resolutions of the Board of Directors are carried into effect. The chief executive officer or president shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the corporation. The chief executive officer or president shall have such other powers and perform such other duties as may be prescribed by the Board of Directors or as may be provided in these Bylaws.

Section 7. The Secretary and Assistant Secretaries. The secretary shall attend all meetings of the Board of Directors, all meetings of the committees thereof and all meetings of the stockholders and record all the proceedings of the meetings in a book or books to be kept for that purpose. Under the chief executive officer’s or president’s supervision, the secretary shall (i) give, or cause to be given, all notices required to be given by these Bylaws or by law, (ii) have such powers and perform such duties as the Board of Directors, the chief executive officer, president or these Bylaws may, from time to time, prescribe and (iii) have custody of the corporate seal of the corporation. The secretary, or an assistant secretary, shall have authority to affix the corporate seal to any instrument requiring it and when so affixed, it may be attested by his or her signature or by the signature of such assistant secretary. The Board of Directors may give general authority to any other officer to affix the seal of the corporation and

 

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to attest the affixing by his or her signature. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the Board of Directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the Board of Directors, the chief executive officer, president, or secretary may, from time to time, prescribe.

Section 8. Other Officers, Assistant Officers and Agents. Officers, assistant officers and agents, if any, other than those whose duties are provided for in these Bylaws, shall have such authority and perform such duties as may from time to time be prescribed by resolution of the Board of Directors.

Section 9. Absence or Disability of Officers. In the case of the absence or disability of any officer of the corporation and of any person hereby authorized to act in such officer’s place during such officer’s absence or disability, the Board of Directors may by resolution delegate the powers and duties of such officer to any other officer or to any director, or to any other person whom it may select.

ARTICLE V

INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS

Section 1. Nature of Indemnity. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she, is or was a director or officer, of the corporation shall be indemnified and held harmless by the corporation to the fullest extent which it is empowered to do so by the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended against all expense, liability and loss (including attorneys’ fees actually and reasonably incurred by such person in connection with such proceeding); provided, that, except as provided in Section 2 hereof, the corporation shall indemnify any such person seeking indemnification in connection with a proceeding initiated by such person only if such proceeding was authorized by the Board of Directors of the corporation. The corporation may, by action of its Board of Directors, provide indemnification to employees and agents of the corporation with the same scope and effect as the foregoing indemnification of directors and officers.

Section 2. Procedure for Indemnification of Directors and Officers. Any indemnification of a director or officer of the corporation under Section 1 of this Article V or advance of expenses under Section 5 of this Article V shall be made promptly, and in any event within 30 days, upon the written request of the director or officer. If a determination by the corporation that the director or officer is entitled to indemnification pursuant to this Article V is required, and the corporation fails to respond within 60 days to a written request for indemnity, the corporation shall be deemed to have approved the request. If the corporation denies a written request for indemnification or advancing of expenses, in whole or in part, or if payment in full pursuant to such request is not made within 30 days, the right to indemnification or advances as granted by this Article V shall be enforceable by the director or officer in any court of competent jurisdiction. Such person’s costs and expenses incurred in connection with successfully establishing his or her right to indemnification, in whole or in part, in any such action shall also be indemnified by the corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any, has been tendered to the corporation) that the claimant has not met the standards of conduct which make it permissible under the General Corporation Law of the State of Delaware for the corporation to indemnify the claimant for the amount claimed, but the burden of such defense shall be on the corporation. Neither the failure of the corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because

 

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he or she has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

Section 3. Article Not Exclusive. The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article V shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the certificate of incorporation, by-law, agreement, vote of stockholders or disinterested directors or otherwise.

Section 4. Insurance. The corporation may purchase and maintain insurance on its own behalf and on behalf of any person who is or was a director, officer, employee, fiduciary, or agent of the corporation or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, whether or not the corporation would have the power to indemnify such person against such liability under this Article V.

Section 5. Expenses. Expenses incurred by any person described in Section 1 of this Article V in defending a proceeding shall be paid by the corporation in advance of such proceeding’s final disposition upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the corporation. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Board of Directors deems appropriate.

Section 6. Employees and Agents. Persons who are not covered by the foregoing provisions of this Article V and who are or were employees or agents of the corporation, or who are or were serving at the request of the corporation as employees or agents of another corporation, partnership, joint venture, trust or other enterprise, may be indemnified to the extent authorized at any time or from time to time by the Board of Directors.

Section 7. Contract Rights. The provisions of this Article V shall be deemed to be a contract right between the corporation and each director or officer who serves in any such capacity at any time while this Article V and the relevant provisions of the General Corporation Law of the State of Delaware or other applicable law are in effect, and any repeal or modification of this Article V or any such law shall not affect any rights or obligations then existing with respect to any state of facts or proceeding then existing.

Section 8. Merger or Consolidation. For purposes of this Article V, references to “the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Article V with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued.

 

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ARTICLE VI

STOCK

Section 1. Fixing a Record Date for Stockholder Meetings. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be the close of business on the next day preceding the day on which notice is given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

Section 2. Fixing a Record Date for Action by Written Consent. In order that the corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by statute, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by statute, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.

Section 3. Fixing a Record Date for Other Purposes. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment or any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purposes of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

Section 4. Registered Stockholders. The corporation shall maintain or cause to be maintained a registry of holders of shares of the stock of the corporation and, with respect to each share of stock issued and outstanding, shall record therein all proper transfers requested by the registered owner of such share of stock to be recorded in such registry. Prior to recording the transfer of shares, the corporation may treat the registered owner as the person entitled to receive dividends, to vote, to receive notifications, and otherwise to exercise all the rights and powers of an owner.

Section 5. Subscriptions for Stock. Unless otherwise provided for in the subscription agreement, subscriptions for shares shall be paid in full at such time, or in such installments and at such times, as

 

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shall be determined by the Board of Directors. Any call made by the Board of Directors for payment on subscriptions shall be uniform as to all shares of the same class or as to all shares of the same series. In case of default in the payment of any installment or call when such payment is due, the corporation may proceed to collect the amount due in the same manner as any debt due the corporation.

ARTICLE VII

GENERAL PROVISIONS

Section 1. Dividends. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or any other purpose and the directors may modify or abolish any such reserve in the manner in which it was created.

Section 2. Checks, Drafts or Orders. All checks, drafts, or other orders for the payment of money by or to the corporation and all notes and other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such manner, as shall be determined by resolution of the Board of Directors or a duly authorized committee thereof.

Section 3. Contracts. The Board of Directors may authorize any officer or officers, or any agent or agents, of the corporation to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances.

Section 4. Loans. The corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or of its subsidiary, including any officer or employee who is a director of the corporation or its subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to benefit the corporation. The loan, guaranty or other assistance may be with or without interest, and may be unsecured, or secured in such manner as the Board of Directors shall approve, including, without limitation, a pledge of shares of stock of the corporation. Nothing in this section contained shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute.

Section 5. Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the Board of Directors.

Section 6. Corporate Seal. The Board of Directors shall provide a corporate seal which shall be in the form of a circle and shall have inscribed thereon the name of the corporation and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

Section 7. Voting Securities Owned By Corporation. Voting securities in any other corporation held by the corporation shall be voted by the chief executive officer or president, unless the Board of Directors specifically confers authority to vote with respect thereto, which authority may be general or confined to specific instances, upon some other person or officer. Any person authorized to vote securities shall have the power to appoint proxies, with general power of substitution.

 

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Section 8. Inspection of Books and Records. Any stockholder of record, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the corporation’s stock ledger, a list of its stockholders, and its other books and records, and to make copies or extracts therefrom. A proper purpose shall mean any purpose reasonably related to such person’s interest as a stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the corporation at its registered office in the State of Delaware or at its principal place of business.

Section 9. Section Headings. Section headings in these Bylaws are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein.

Section 10. Inconsistent Provisions. In the event that any provision of these Bylaws is or becomes inconsistent with any provision of the certificate of incorporation, the General Corporation Law of the State of Delaware or any other applicable law, the provision of these Bylaws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect.

ARTICLE VIII

AMENDMENTS

These Bylaws may be amended, altered, or repealed and new Bylaws adopted at any meeting of the Board of Directors by a majority vote. The fact that the power to adopt, amend, alter, or repeal the Bylaws has been conferred upon the Board of Directors shall not divest the stockholders of the same powers.

ARTICLE IX

CERTAIN BUSINESS COMBINATIONS

The corporation, by the affirmative vote (in addition to any other vote required by law or the certificate of incorporation) of its stockholders holding a majority of the shares entitled to vote, expressly elects not to be governed by §203 of the General Corporation Law of the State of Delaware.

 

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Exhibit 3.13

 

		Delaware		PAGE 1
		The First State

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “HGGC CITADEL PLASTICS INTERMEDIATE HOLDINGS, INC.” AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

CERTIFICATE OF INCORPORATION, FILED THE TWENTY-FOURTH DAY OF JANUARY, A.D. 2012, AT 6:31 O’CLOCK P.M.

CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE TENTH DAY OF FEBRUARY, A.D. 2012, AT 9:17 O’CLOCK A.M.

CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE THIRTEENTH DAY OF JANUARY, A.D. 2014, AT 1:32 O’CLOCK P.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION, “HGGC CITADEL PLASTICS INTERMEDIATE HOLDINGS, INC.”.

 

				Jeffrey W. Bullock, Secretary of State
5099951    8100H				AUTHENTICATION: 2312422
150548149				DATE: 04-22-15
You may verify this certificate online at corp.delaware.gov/authver.shtml

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				State of Delaware Secretary of State Division of Corporations Delivered 06:40 PM 01/24/2012 FILED 06:31 PM 01/24/2012 SRV 120081716 – 5099951 FILE

CERTIFICATE OF INCORPORATION

OF

HGGC CITADEL PLASTICS INTERMEDIATE HOLDINGS, INC.

ARTICLE ONE

The name of the corporation is HGGC Citadel Plastics Intermediate Holdings, Inc.

ARTICLE TWO

The address of the corporation’s registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware, 19801. The name of its registered agent at such address is The Corporation Trust Company.

ARTICLE THREE

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 the State of Delaware.

ARTICLE FOUR

The total number of shares of stock which the corporation has authority to issue is one thousand (1,000) shares of Common Stock, with a par value of $0.001 per share.

ARTICLE FIVE

The name and mailing address of the sole incorporator are as follows:

 

NAME		MAILING ADDRESS
Howard P. Young		c/o Kirkland & Ellis LLP
		555 California Street, Suite 2700
		San Francisco, CA 94104

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ARTICLE SIX

The corporation is to have perpetual existence.

ARTICLE SEVEN

In furtherance and not in limitation of the powers conferred by statute, the board of directors of the corporation is expressly authorized to make, alter or repeal the by-laws of the corporation.

ARTICLE EIGHT

Meetings of stockholders may be held within or without the State of Delaware, as the by-laws of the corporation may provide. The books of the corporation may be kept 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 by-laws of the corporation. Election of directors need not be by written ballot unless the by-laws of the corporation so provide.

ARTICLE NINE

To the fullest extent permitted by the General Corporation Law of the State of Delaware 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 a breach of fiduciary duty as a director. Any repeal or modification of this ARTICLE NINE shall not adversely affect any right or protection of a director of the corporation existing at the time of such repeal or modification.

ARTICLE TEN

The corporation expressly elects not to be governed by Section 203 of the General Corporation Law of the State of Delaware.

ARTICLE ELEVEN

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 herein and by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation.

 

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I, THE UNDERSIGNED, being the sole 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 stated herein are true, and accordingly have hereunto set my hand on the 24th day of January, 2012.

 

 

{HGGC Citadel Plastics Intermediate Holdings, Inc. - DE Certificate of Incorporation}		S-1

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State of Delaware Secretary of State Division of Corporations Delivered 09:24 AM 02/10/2012 FILED 09:17 AM 02/10/2012 SRV 120150117 – 5099951 FILE

STATE OF DELAWARE

CERTIFICATE OF CHANGE

OF REGISTERED AGENT AND/OR

REGISTERED OFFICE

OF

HGGC CITADEL PLASTICS INTERMEDIATE HOLDINGS, INC.

It is hereby certified that:

1. The name of the corporation (hereinafter called the “Corporation”) is:

HGGC Citadel Plastics Intermediate Holdings, Inc.

2. The registered agent of the Corporation within the State of Delaware is hereby changed to Corporation Service Company, the business office of which is 2711 Centerville Road, Suite 400, City of Wilmington, County of New Castle, Delaware, 19808.

3. The registered office of the Corporation within the State of Delaware is hereby changed to 2711 Centerville Road, Suite 400, City of Wilmington, County of New Castle, Delaware, 19808.

4. The Corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors.

Signed on February 10, 2012.

 

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				State of Delaware Secretary of State Division of Corporations Delivered 01:37 PM 01/13/2014 FILED 01:32 PM 01/13/2014 SRV 140039642 – 5099951 FILE

STATE OF DELAWARE

CERTIFICATE OF CHANGE OF REGISTERED AGENT

AND/OR REGISTERED OFFICE

The corporation organized and existing under the General Corporation Law of the State of Delaware, hereby certifies as follows:

1. The name of the corporation is HGGC Citadel Plastics Intermediate Holdings. Inc..

2. The Registered Office of the corporation in the State of Delaware is changed to Corporation Trust Center 1209 Orange (street), in the City of Wilmington, County of New Castle Zip Code 19801. The name of the Registered Agent at such address upon whom process against this Corporation may be served is THE CORPORATION TRUST COMPANY.

3. The foregoing change to the registered office/agent was adopted by a resolution of the Board of Directors of the corporation.

 

Exhibit 3.14

BY-LAWS

OF

HGGC CITADEL PLASTICS INTERMEDIATE HOLDINGS, INC.,

A Delaware Corporation

(Adopted as of January 24, 2012)

ARTICLE I

OFFICES

Section 1. Registered Office. The registered office of the corporation in the State of Delaware shall be located at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware, County of New Castle, 19801. The name of the corporation’s registered agent at such address shall be The Corporation Trust Company. The registered office and/or registered agent of the corporation may be changed from time to time by action of the Board of Directors.

Section 2. Other Offices. The corporation may also have offices at such other places, both within and without the State of Delaware, as the Board of Directors may from time to time determine or the business of the corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

Section 1. Place and Time of Meetings. An annual meeting of the stockholders shall be held each year within one hundred twenty (120) days after the close of the immediately preceding fiscal year of the corporation for the purpose of electing directors and conducting such other proper business as may come before the meeting. The date, time and place, if any, and/or the means of remote communication, of the annual meeting shall be determined by the Board of Directors. No annual meeting of stockholders need be held if not required by the corporation’s certificate of incorporation or by the General Corporation Law of the State of Delaware.

Section 2. Special Meetings. Special meetings of stockholders may be called for any purpose and may be held at such time and place, within or without the State of Delaware, and/or by means of remote communication, as shall be stated in a notice of meeting or in a duly executed waiver of notice thereof. Such meetings may be called at any time by the Board of Directors or the chief executive officer or president and shall be called by the chief executive officer or president upon the written request of holders of shares entitled to cast not less than 50 percent of the votes at the meeting, such written request shall state the purpose or purposes of the meeting and shall be delivered to the chief executive officer or president. On such written request, the chief executive officer or president shall fix a date and time for such meeting within 30 days of the date requested for such meeting in such written request.

Section 3. Place of Meetings. The Board of Directors may designate any place, either within or without the State of Delaware, and/or by means of remote communication, as the place of meeting for any annual meeting or for any special meeting called by the Board of Directors. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal executive office of the corporation.

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Section 4. Notice. Whenever stockholders are required or permitted to take any action at a meeting, written or printed notice stating the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of special meetings, the purpose or purposes, of such meeting, shall be given to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. All such notices shall be delivered, either personally, by mail, or by a form of electronic transmission consented to by the stockholder to whom the notice is given, by or at the direction of the Board of Directors, the chief executive officer, the president or the secretary, and if mailed, such notice shall be deemed to be delivered when deposited in the United States mail, postage prepaid, addressed to the stockholder at his, her or its address as the same appears on the records of the corporation. If given by electronic transmission, such notice shall be deemed to be delivered (i) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; (ii) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (iii) if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (a) such posting and (b) the giving of such separate notice; and (iv) if by any other form of electronic transmission, when directed to the stockholder. Any such consent shall be revocable by the stockholder by written notice to the corporation. Any such consent shall be deemed revoked if (1)the corporation is unable to deliver by electronic transmission two consecutive notices given by the corporation in accordance with such consent and (2) such inability becomes known to the secretary or an assistant secretary of the corporation or to the transfer agent.

Section 5. Stockholders List. The officer having charge of the stock ledger of the corporation shall make, at least 10 days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at such meeting arranged in alphabetical order, showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, and/or (ii) during ordinary business hours, at the principal place of business of the corporation. In the event that the corporation determines to make the list available on an electronic network, the corporation may take reasonable steps to ensure that such information is available only to stockholders of the corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.

Section 6. Quorum. The holders of a majority of the outstanding shares of capital stock, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders, except as otherwise provided by statute or by the certificate of incorporation. If a quorum is not present, the holders of a majority of the shares present in person or represented by proxy at the meeting, and entitled to vote at the meeting, may adjourn the meeting to another time and/or place.

Section 7. Adjourned Meetings. When a meeting is adjourned to another time and place, notice need not be given of the adjourned meeting if the time, place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

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Section 8. Vote Required. When a quorum is present, the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders, unless the question is one upon which by express provisions of an applicable law or of the certificate of incorporation a different vote is required, in which case such express provision shall govern and control the decision of such question.

Section 9. Voting Rights. Except as otherwise provided by the General Corporation Law of the State of Delaware or by the certificate of incorporation of the corporation or any amendments thereto and subject to Section 3 of Article VI hereof, every stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of common stock held by such stockholder.

Section 10. Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period.

Section 11. Action by Written Consent. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken and bearing the dates of signature of the stockholders who signed the consent or consents, shall be 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 and shall be delivered to the corporation by delivery to its registered office in the state of Delaware, or the corporation’s principal place of business, or an officer or agent of the corporation having custody of the book or books in which proceedings of meetings of the stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. All consents properly delivered in accordance with this section shall be deemed to be recorded when so delivered. No written consent shall be effective to take the corporate action referred to therein unless, within 60 days after the earliest dated consent delivered to the corporation as required by this section, written consents signed by the holders of a sufficient number of shares to take such corporate action are so recorded. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Any action taken pursuant to such written consent or consents of the stockholders shall have the same force and effect as if taken by the stockholders at a meeting thereof.

Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used; provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing.

Section 12. Action by Telegram, Cablegram or Other Electronic Transmission Consent. A telegram, cablegram or other electronic transmission consenting to an action to be taken and transmitted by a stockholder or proxyholder, or by a person or persons authorized to act for a stockholder or proxyholder, shall be deemed to be written, signed and dated for the purposes of this section; provided that any such telegram, cablegram or other electronic transmission sets forth or is delivered with information from which the corporation can determine (i) that the telegram, cablegram or other electronic

 

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transmission was transmitted by the stockholder or proxyholder or by a person or persons authorized to act for the stockholder or proxyholder and (ii) the date on which such stockholder or proxyholder or authorized person or persons transmitted such telegram, cablegram or electronic transmission. The date on which such telegram, cablegram or electronic transmission is transmitted shall be deemed to be the date on which such consent was signed. No consent given by telegram, cablegram or other electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper form shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded if, to the extent and in the manner provided by resolution of the Board of Directors of the corporation.

ARTICLE III

DIRECTORS

Section 1. General Powers. The business and affairs of the corporation shall be managed by or under the direction of the Board of Directors.

Section 2. Number, Election and Term of Office. The number of directors which shall constitute the first board shall be four (4). Thereafter, the number of directors shall be established from time to time by resolution of the board or of the stockholders. The directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote in the election of directors. The directors shall be elected in this manner at the annual meeting of the stockholders, except as provided in Section 4 of this Article III. Each director elected shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.

Section 3. Removal and Resignation. Any director or the entire Board of Directors may be removed at any time, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors. Whenever the holders of any class or series are entitled to elect one or more directors by the provisions of the corporation’s certificate of incorporation, the provisions of this section shall apply, in respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole. Any director may resign at any time upon notice given in writing or by electronic transmission to the corporation.

Section 4. Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director. Each director so chosen shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as herein provided.

Section 5. Annual Meetings. The annual meeting of each newly elected Board of Directors shall be held without notice (other than notice under these by-laws) immediately after, and at the same place, if any, as the annual meeting of stockholders.

Section 6. Other Meetings and Notice. Regular meetings, other than the annual meeting, of the Board of Directors may be held without notice at such time and at such place, if any, as shall from time to time be determined by resolution of the Board of Directors. Special meetings of the Board of Directors may be called by or at the request of the chief executive officer, the president or any director on at least 24 hours notice to each director, either personally, by telephone, by mail or by telegraph.

 

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Section 7. Quorum, Required Vote and Adjournment. A majority of the total number of directors shall constitute a quorum for the transaction of business. The vote of a majority of directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

Section 8. Committees. The Board of Directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation, which to the extent provided in such resolution or these Bylaws shall have and may exercise the powers of the Board of Directors in the management and affairs of the corporation except as otherwise limited by law. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required.

Section 9. Committee Rules. Each committee of the Board of Directors may fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may otherwise be provided by a resolution of the Board of Directors designating such committee. In the event that a member and that member’s alternate, if alternates are designated by the Board of Directors as provided in Section 8 of this Article III, of such committee is or are absent or disqualified, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member.

Section 10. Communications Equipment. Members of the Board of Directors or any committee thereof may participate in and act at any meeting of such board or committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in the meeting pursuant to this section shall constitute presence in person at the meeting.

Section 11. Waiver of Notice and Presumption of Assent. Any member of the Board of Directors or any committee thereof who is present at a meeting shall be conclusively presumed to have waived notice of such meeting except when such member attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Such member shall be conclusively presumed to have assented to any action taken unless his or her dissent shall be entered in the minutes of the meeting or unless his or her written dissent to such action shall be filed with the person acting as the secretary of the meeting before the adjournment thereof or shall be forwarded by registered mail to the secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to any member who voted in favor of such action.

Section 12. Action by Written Consent. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the board or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the board, or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

 

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ARTICLE IV

OFFICERS

Section 1. Number. The officers of the corporation shall be elected by the Board of Directors and shall consist of a chief executive officer or president, a secretary, and such other officers and assistant officers as may be deemed necessary or desirable by the Board of Directors. Any number of offices may be held by the same person. In its discretion, the Board of Directors may choose not to fill any office for any period as it may deem advisable.

Section 2. Election and Term of Office. The officers of the corporation shall be elected annually by the Board of Directors at its first meeting held after each annual meeting of stockholders or as soon thereafter as conveniently may be. Vacancies may be filled or new offices created and filled at any meeting of the Board of Directors. Each officer shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.

Section 3. Removal. Any officer or agent elected by the Board of Directors may be removed by the Board of Directors whenever in its judgment the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed.

Section 4. Vacancies. Any vacancy occurring in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the Board of Directors for the unexpired portion of the term by the Board of Directors then in office.

Section 5. Compensation. Compensation of all officers shall be fixed by the Board of Directors, and no officer shall be prevented from receiving such compensation by virtue of his or her also being a director of the corporation.

Section 6. The Chief Executive Officer or President. The chief executive officer or president shall be the chief executive officer of the corporation; shall preside at all meetings of the stockholders and Board of Directors at which he or she is present; subject to the powers of the Board of Directors, shall have general charge of the business, affairs and property of the corporation, and control over its officers, agents and employees; and shall see that all orders and resolutions of the Board of Directors are carried into effect. The chief executive officer or president shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the corporation. The chief executive officer or president shall have such other powers and perform such other duties as may be prescribed by the Board of Directors or as may be provided in these Bylaws.

Section 7. The Secretary and Assistant Secretaries. The secretary shall attend all meetings of the Board of Directors, all meetings of the committees thereof and all meetings of the stockholders and record all the proceedings of the meetings in a book or books to be kept for that purpose. Under the chief executive officer’s or president’s supervision, the secretary shall (i) give, or cause to be given, all notices required to be given by these Bylaws or by law, (ii) have such powers and perform such duties as the Board of Directors, the chief executive officer, president or these Bylaws may, from time to time, prescribe and (iii) have custody of the corporate seal of the corporation. The secretary, or an assistant secretary, shall have authority to affix the corporate seal to any instrument requiring it and when so affixed, it may be attested by his or her signature or by the signature of such assistant secretary. The Board of Directors may give general authority to any other officer to affix the seal of the corporation and

 

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to attest the affixing by his or her signature. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the Board of Directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the Board of Directors, the chief executive officer, president, or secretary may, from time to time, prescribe.

Section 8. Other Officers, Assistant Officers and Agents. Officers, assistant officers and agents, if any, other than those whose duties are provided for in these Bylaws, shall have such authority and perform such duties as may from time to time be prescribed by resolution of the Board of Directors.

Section 9. Absence or Disability of Officers. In the case of the absence or disability of any officer of the corporation and of any person hereby authorized to act in such officer’s place during such officer’s absence or disability, the Board of Directors may by resolution delegate the powers and duties of such officer to any other officer or to any director, or to any other person whom it may select.

ARTICLE V

INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS

Section 1. Nature of Indemnity. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she, is or was a director or officer, of the corporation shall be indemnified and held harmless by the corporation to the fullest extent which it is empowered to do so by the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended against all expense, liability and loss (including attorneys’ fees actually and reasonably incurred by such person in connection with such proceeding); provided, that, except as provided in Section 2 hereof, the corporation shall indemnify any such person seeking indemnification in connection with a proceeding initiated by such person only if such proceeding was authorized by the Board of Directors of the corporation. The corporation may, by action of its Board of Directors, provide indemnification to employees and agents of the corporation with the same scope and effect as the foregoing indemnification of directors and officers.

Section 2. Procedure for Indemnification of Directors and Officers. Any indemnification of a director or officer of the corporation under Section 1 of this Article V or advance of expenses under Section 5 of this Article V shall be made promptly, and in any event within 30 days, upon the written request of the director or officer. If a determination by the corporation that the director or officer is entitled to indemnification pursuant to this Article V is required, and the corporation fails to respond within 60 days to a written request for indemnity, the corporation shall be deemed to have approved the request. If the corporation denies a written request for indemnification or advancing of expenses, in whole or in part, or if payment in full pursuant to such request is not made within 30 days, the right to indemnification or advances as granted by this Article V shall be enforceable by the director or officer in any court of competent jurisdiction. Such person’s costs and expenses incurred in connection with successfully establishing his or her right to indemnification, in whole or in part, in any such action shall also be indemnified by the corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any, has been tendered to the corporation) that the claimant has not met the standards of conduct which make it permissible under the General Corporation Law of the State of Delaware for the corporation to indemnify the claimant for the amount claimed, but the burden of such defense shall be on the corporation. Neither the failure of the corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because

 

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he or she has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

Section 3. Article Not Exclusive. The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article V shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the certificate of incorporation, by-law, agreement, vote of stockholders or disinterested directors or otherwise.

Section 4. Insurance. The corporation may purchase and maintain insurance on its own behalf and on behalf of any person who is or was a director, officer, employee, fiduciary, or agent of the corporation or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, whether or not the corporation would have the power to indemnify such person against such liability under this Article V.

Section 5. Expenses. Expenses incurred by any person described in Section 1 of this Article V in defending a proceeding shall be paid by the corporation in advance of such proceeding’s final disposition upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the corporation. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Board of Directors deems appropriate.

Section 6. Employees and Agents. Persons who are not covered by the foregoing provisions of this Article V and who are or were employees or agents of the corporation, or who are or were serving at the request of the corporation as employees or agents of another corporation, partnership, joint venture, trust or other enterprise, may be indemnified to the extent authorized at any time or from time to time by the Board of Directors.

Section 7. Contract Rights. The provisions of this Article V shall be deemed to be a contract right between the corporation and each director or officer who serves in any such capacity at any time while this Article V and the relevant provisions of the General Corporation Law of the State of Delaware or other applicable law are in effect, and any repeal or modification of this Article V or any such law shall not affect any rights or obligations then existing with respect to any state of facts or proceeding then existing.

Section 8. Merger or Consolidation. For purposes of this Article V, references to “the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Article V with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued.

 

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ARTICLE VI

CERTIFICATES OF STOCK

Section 1. Form. Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in the name of the corporation by the chief executive officer or a president or vice-president and the secretary or an assistant secretary of the corporation, certifying the number of shares owned by such holder in the corporation. If such a certificate is countersigned (i) by a transfer agent or an assistant transfer agent other than the corporation or its employee or (ii) by a registrar, other than the corporation or its employee, the signature of any such chief executive officer, president, vice-president, secretary, or assistant secretary may be facsimiles. In case any officer or officers who have signed, or whose facsimile signature or signatures have been used on, any such certificate or certificates shall cease to be such officer or officers of the corporation whether because of death, resignation or otherwise before such certificate or certificates have been delivered by the corporation, such certificate or certificates may nevertheless be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon had not ceased to be such officer or officers of the corporation. All certificates for shares shall be consecutively numbered or otherwise identified. The name of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the books of the corporation. Shares of stock of the corporation shall only be transferred on the books of the corporation by the holder of record thereof or by such holder’s attorney duly authorized in writing, upon surrender to the corporation of the certificate or certificates for such shares endorsed by the appropriate person or persons, with such evidence of the authenticity of such endorsement, transfer, authorization, and other matters as the corporation may reasonably require, and accompanied by all necessary stock transfer stamps. In that event, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate or certificates, and record the transaction on its books. The Board of Directors may appoint a bank or trust company organized under the laws of the United States or any state thereof to act as its transfer agent or registrar, or both in connection with the transfer of any class or series of securities of the corporation.

Section 2. Lost Certificates. The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates previously issued by the corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen, or destroyed certificate or certificates, or his or her legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against the corporation on account of the loss, theft or destruction of any such certificate or the issuance of such new certificate.

Section 3. Fixing a Record Date for Stockholder Meetings. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be the close of business on the next day preceding the day on which notice is given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

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Section 4. Fixing a Record Date for Action by Written Consent. In order that the corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by statute, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by statute, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.

Section 5. Fixing a Record Date for Other Purposes. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment or any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purposes of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

Section 6. Registered Stockholders. Prior to the surrender to the corporation of the certificate or certificates for a share or shares of stock with a request to record the transfer of such share or shares, the corporation may treat the registered owner as the person entitled to receive dividends, to vote, to receive notifications, and otherwise to exercise all the rights and powers of an owner.

Section 7. Subscriptions for Stock. Unless otherwise provided for in the subscription agreement, subscriptions for shares shall be paid in full at such time, or in such installments and at such times, as shall be determined by the Board of Directors. Any call made by the Board of Directors for payment on subscriptions shall be uniform as to all shares of the same class or as to all shares of the same series. In case of default in the payment of any installment or call when such payment is due, the corporation may proceed to collect the amount due in the same manner as any debt due the corporation.

ARTICLE VII

GENERAL PROVISIONS

Section 1. Dividends. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or any other purpose and the directors may modify or abolish any such reserve in the manner in which it was created.

 

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Section 2. Checks, Drafts or Orders. All checks, drafts, or other orders for the payment of money by or to the corporation and all notes and other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such manner, as shall be determined by resolution of the Board of Directors or a duly authorized committee thereof.

Section 3. Contracts. The Board of Directors may authorize any officer or officers, or any agent or agents, of the corporation to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances.

Section 4. Loans. The corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or of its subsidiary, including any officer or employee who is a director of the corporation or its subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to benefit the corporation. The loan, guaranty or other assistance may be with or without interest, and may be unsecured, or secured in such manner as the Board of Directors shall approve, including, without limitation, a pledge of shares of stock of the corporation. Nothing in this section contained shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute.

Section 5. Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the Board of Directors.

Section 6. Corporate Seal. The Board of Directors shall provide a corporate seal which shall be in the form of a circle and shall have inscribed thereon the name of the corporation and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

Section 7. Voting Securities Owned By Corporation. Voting securities in any other corporation held by the corporation shall be voted by the chief executive officer or president, unless the Board of Directors specifically confers authority to vote with respect thereto, which authority may be general or confined to specific instances, upon some other person or officer. Any person authorized to vote securities shall have the power to appoint proxies, with general power of substitution.

Section 8. Inspection of Books and Records. Any stockholder of record, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the corporation’s stock ledger, a list of its stockholders, and its other books and records, and to make copies or extracts therefrom. A proper purpose shall mean any purpose reasonably related to such person’s interest as a stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the corporation at its registered office in the State of Delaware or at its principal place of business.

Section 9. Section Headings. Section headings in these Bylaws are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein.

Section 10. Inconsistent Provisions. In the event that any provision of these Bylaws is or becomes inconsistent with any provision of the certificate of incorporation, the General Corporation Law of the State of Delaware or any other applicable law, the provision of these Bylaws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect.

 

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ARTICLE VIII

AMENDMENTS

These Bylaws may be amended, altered, or repealed and new Bylaws adopted at any meeting of the Board of Directors by a majority vote. The fact that the power to adopt, amend, alter, or repeal the Bylaws has been conferred upon the Board of Directors shall not divest the stockholders of the same powers.

ARTICLE IX

CERTAIN BUSINESS COMBINATIONS

The corporation, by the affirmative vole (in addition to any other vote required by law or the certificate of incorporation) of its stockholders holding a majority of the shares entitled to vote, expressly elects not to be governed by §203 of the General Corporation Law of the State of Delaware.

 

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Exhibit 3.15

 

		Delaware		PAGE 1
		The First State

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS FILED FROM AND INCLUDING THE RESTATED CERTIFICATE OR A MERGER WITH A RESTATED CERTIFICATE ATTACHED OF “HPC HOLDINGS, LLC” AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

RESTATED CERTIFICATE, FILED THE FIFTH DAY OF NOVEMBER, A.D. 2014, AT 11:23 O’CLOCK A.M.

 

				Jeffrey W. Bullock, Secretary of State
4542177    8100X				AUTHENTICATION:  2312449
150548149				DATE:   04-22-15
You may verify this certificate online at corp.delaware.gov/authver.shtml

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AMENDED AND RESTATED

CERTIFICATE OF FORMATION

OF

HPC HOLDINGS, LLC

It is hereby certified that:

1. The name of the limited liability company (hereinafter called the “Company”) is HPC Holdings, LLC.

2. The Company filed its original Certificate of Formation with the Delaware Secretary of State on May 2, 2008, under the name “HPC Holdings, LLC”.

3. Pursuant to provisions of Section 18-208 of the Delaware Limited Liability Company Act, the Certificate of Formation of the Company is hereby amended and restated to read in its entirety as follows:

 

FIRST:		Name. The name of the limited liability company (the “Company”) is HPC Holdings, LLC.
SECOND:		Registered Office and Registered Agent. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware, 19801. The name of its registered agent at such address is The Corporation Trust Company.

IN WITNESS WHEREOF, the undersigned has duly executed this Amended and Restated Certificate of Formation on behalf of HPC Holdings, LLC as of the 5th day of November, 2014.

 

Exhibit 3.16

SECOND AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

HPC HOLDINGS, LLC

This Second Amended and Restated Limited Liability Company Agreement (this “Restated Agreement”) of HPC Holdings, LLC, a Delaware limited liability company (the “Company”), is entered into, as of November 5, 2014, by and between the Company and Bulk Molding Compounds, Inc., an Illinois corporation, as the sole member of the Company (the “Member”).

RECITALS

WHEREAS, the Company was formed on May 2, 2008, bearing the name HPC Holdings, LLC, as a limited liability company under the Delaware Limited Liability Company Act (6 Del.C. §18-101, et seq.), as amended from time to time (the “Act”);

WHEREAS, pursuant to that certain Agreement and Plan of Merger (the “Merger Agreement”), dated as of September 26, 2014, by and among the Member, the Company, the Members (as defined therein) and unitholders of the Company signatory thereto, Highlander Partners, L.P., both individually and in its capacity as the Seller Representative (as defined therein), and Citadel Plastics Holdings, Inc., the Member has acquired all of the outstanding Membership Interests (as defined in that certain Amended and Restated Operating Agreement of the Company, dated as of December 30, 2010 (the “Original Agreement”)) in the Company;

WHEREAS, the Member desires to amend and restate, in its entirety, the terms of the Original Agreement, and the Original Agreement shall be superseded, in its entirety, by this Restated Agreement; and

WHEREAS, the Member desires to enter into this Restated Agreement, pursuant to which the rights and obligations of the Member and certain other constituencies of the Company shall be set forth and agreed upon as of the date hereof.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby established, the Company and the Member hereby agree as follows:

AGREEMENT

1. Formation. The Company has been organized as a Delaware limited liability company by the filing of a Certificate of Formation (the “Certificate”) under and pursuant to the Act.

2. Name. The name of the Company is “HPC Holdings, LLC”.

3. Registered Office; Registered Agent; Principal Office; Other Offices. The registered office of the Company required by the Act to be maintained in the State of Delaware shall be the registered office set forth in the Certificate or such other office (which need not be a place of business of

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the Company) as the Board (as defined below) may designate from time to time in the manner provided by law. The registered agent of the Company in the State of Delaware shall be the initial registered agent named in the Certificate or such other person or persons as the Board may designate from time to time in the manner provided by law. The principal office of the Company shall be at such place as the Board may designate from time to time, which need not be in the State of Delaware, and the Company shall maintain records there.

4. Purposes. The Company will exist for the object and purpose of, and the nature of the business to be conducted and promoted by the Company is and will be, engaging in any lawful act or activity for which limited liability companies may be formed under the Act and engaging in any and all activities necessary or incidental to the foregoing.

5. Term. The existence of the Company commenced on the date the Certificate was filed with the office of the Secretary of State of Delaware and shall continue until the Company is dissolved pursuant to Section 13 of this Restated Agreement.

6. Member. The name and the mailing address of the Member and the percentage of limited liability company interests in the Company (the “Membership Interests”) held by the Member are identified on Schedule 1 attached hereto.

7. Liability of Member. Except as otherwise required by applicable law and as explicitly set forth in this Restated Agreement, the Member shall not have any personal liability whatsoever in such Member’s capacity as a member, whether to the Company, to the creditors of the Company or to any other third party, for the debts, liabilities, commitments or any other obligations of the Company or for any losses of the Company.

8. Management.

(a) All management powers over the business and affairs of the Company shall be exclusively vested in a board of managers (the “Board”) appointed from time to time by the Member, and the Board shall conduct, direct and exercise full control over all activities of the Company. Each member of the Board is referred to herein as a “Manager.” The Managers shall be the “managers” of the Company for the purposes of the Act. The Board has the full power on the Company’s behalf, in its name, to manage, control, administer and operate its business and affairs and to do or cause to be done anything necessary or appropriate for the Company’s business. The Managers are hereby designated as authorized persons, within the meaning of the Act, to execute, deliver and file the certificate of formation of the Company and all other certificates (and any amendments and/or restatements hereof) required or permitted by the Act to be filed in the Office of the Secretary of State of the State of Delaware.

(b) The number of Managers shall be four (4). The number of Managers of the Company shall be fixed from time to time by the Member. The Managers shall be Michael W. Huff, Gary L. Crittenden, James L. Learner and Hudson D. Smith, Jr. (constituting all of the current Mangers of the Company). Each Manager shall hold his or her office for the term for which he or she was appointed and thereafter until his or her successor shall have been appointed, or until his or her earlier death, resignation or removal. A Manager need not be a Member or a resident of the State of Delaware.

(c) Any Manager position to be filled by reason of an increase in the number of Managers or by any other reason shall be filled by the Member. Any Manager may be removed by the Member at any time. Any Manager may resign at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time is specified, at the time of its receipt by the remaining Manager(s). The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation.

 

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(d) The Board may act (i) through meetings and written consents pursuant to Section 8(e) and (ii) through any person or persons to whom authority and duties have been delegated pursuant to Section 8(f).

(e) Each Manager shall have one vote on all matters submitted to the Board (whether the consideration of such matter is taken at a meeting, by written consent or otherwise). The affirmative vote of the Managers holding a majority of the votes of the Managers shall be the act of the Board. Meetings of the Board shall be held at the principal office of the Company or at such other place as may be determined by the Board. A majority of the Managers, present in person or through their duly authorized attorneys-in-fact, shall constitute a quorum at any meeting of the Board. Business may be conducted once a quorum is present. Regular meetings of the Board shall be held on such dates and at such times as shall be determined by the Board. Special meetings of the Board may be called by a majority of all of the Managers on at least 24 hours’ prior written notice to the other Managers, which notice shall state the purpose or purposes for which such meeting is being called. The actions taken by the Board at any meeting, however called and noticed, shall be as valid as though taken at a meeting duly held after regular call and notice if (but not until), either before, at or after the meeting, the Manager as to whom it was improperly held signs a written waiver of notice or a consent to the holding of such meeting or an approval of the minutes thereof. The actions by the Board may be taken by vote of the Board at a meeting of the Managers thereof or by written consent (without a meeting, without notice and without a vote) so long as such consent is signed by at least the minimum number of Managers that would be necessary to authorize or take such action at a meeting of the Board in which all Managers were present. Prompt notice of the action so taken without a meeting shall be given to those Managers who have not consented in writing. Each meeting of the Board shall, at the request of any Manager, be held by conference telephone or similar communications equipment by means of which all individuals participating in the meeting can be heard.

(f) The Board may, from time to time, designate one or more persons to be officers of the Company. No officer need be a resident of the State of Delaware, a Member or a Manager. Any officers so designated shall have such authority and perform such duties as the Board may, from time to time, delegate to them. The Board may assign titles to particular officers. Michael W. Huff shall be the Chief Executive Officer, Kevin Andrews shall be the President, Rick Dettman shall be the Chief Financial Officer and Gregory T. Knipp shall be the Corporate Controller, Secretary and Treasurer of the Company (constituting all of the current officers of the Company). Unless the Board otherwise decides, if the title is one commonly used for officers of a business corporation, the assignment of such title shall constitute the delegation to such officer of the authority and duties that are normally associated with that office, subject to any specific delegation of authority and duties made to such officer by the Board. Each officer shall hold office until his or her successor shall be duly designated and shall qualify or until his or her death or until he or she shall resign or shall have been removed in the manner hereinafter provided. Any number of offices may be held by the same individual. Any officer may resign as such at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time be specified, at the time of its receipt by the Board. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation. Any officer may be removed as such, either with or without cause, by the Board whenever in its judgment the best interests of the Company shall be served thereby.

(g) Each Manager of the Company may at any time and from time to time engage in and own interests in other business ventures of any and every type and description, independently or with others (including ones in competition with the Company) with no obligation to offer to the Company the right to participate therein.

 

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9. Indemnification; Exculpation.

(a) The Company hereby agrees to indemnify and hold harmless any person (each an “Indemnified Person”) to the fullest extent permitted under the Act, as the same now exists or may hereafter be amended, substituted or replaced (but, in the case of any such amendment, substitution or replacement only to the extent that such amendment, substitution or replacement permits the Company to provide broader indemnification rights than the Company is providing immediately prior to such amendment), against all expenses, liabilities and losses (including attorneys’ fees, judgments, fines, excise taxes or penalties) reasonably incurred or suffered by such person by reason of the fact that such person is or was a member of the Company, is or was serving as a Manager or an officer of the Company or is or was serving at the request of the Company as an officer, director, principal, member, employee or agent of another corporation, partnership, joint venture, limited liability company, trust or other enterprise; provided that (unless the Board otherwise consents) no Indemnified Person shall be indemnified for any expenses, liabilities and losses suffered that are attributable to such Indemnified Person’s gross negligence, willful misconduct or knowing violation of law. Expenses, including attorneys’ fees, incurred by any such Indemnified Person in defending a proceeding shall be paid by the Company in advance of the final disposition of such proceeding, including any appeal therefrom, upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company. The Company may, by action of the Member, provide indemnification to employees and agents of the Company with the same scope and effect as the foregoing indemnification of members, managers and officers.

(b) Notwithstanding anything contained herein to the contrary, any indemnity by the Company shall be provided out of and to the extent of Company assets only, and the Member shall have no personal liability on account thereof or shall be required to make additional capital contributions to help satisfy such indemnity of the Company.

(c) None of the Indemnified Persons shall be liable to the Member or the Company for mistakes of judgment, or for action or inaction, taken in good faith, or for losses due to such mistakes, action or inaction, or to the negligence, dishonesty, or bad faith of any employee, broker or other agent of the Company, provided that such employee, broker or agent was selected, engaged, or retained with reasonable care. Any party entitled to relief hereunder may consult with legal counsel and accountants in respect of affairs of the Company and be fully protected and justified in any reasonable action or inaction that is taken in good faith in accordance with the advice or opinion of such counsel or accountants, provided that they shall have been selected with reasonable care. Notwithstanding any of the foregoing to the contrary, the provisions of this paragraph shall not be construed so as to relieve (or attempt to relieve) any person of any liability (i) for conduct which is grossly negligent, reckless, or intentionally wrongful or criminally unlawful, provided that such person had no reasonable cause to believe that his or its conduct was unlawful, or (ii) to the extent (but only to the extent) that such liability may not be waived, modified, or limited under applicable law.

(d) The right to indemnification and the advancement and payment of expenses conferred in this Section 9 shall not be exclusive of any other right which an Indemnified Person may have or hereafter acquire under any law (common or statutory), agreement, vote of the Member or otherwise.

10. Certificates. The Membership Interests in the Company held by the Member shall be uncertificated unless otherwise determined by the Board.

 

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11. Distributions. Distributions shall be made to the Member at the time and in the aggregate amounts determined by the Board.

12. Allocations of Profits and Losses. The Company’s profits and losses shall be allocated to the Member in accordance with the Membership Interests held by the Member as set forth on the attached Schedule 1 attached hereto.

13. Dissolution. The Company shall dissolve, and its affairs shall be wound up upon the first to occur of the following: (a) the written consent of the Member, (b) any time there are no members of the Company unless the Company is continued in accordance with the Act, or (c) the entry of a decree of judicial dissolution under Section 18-802 of the Act.

14. Additional Contributions. The Member is not required to make any additional contribution to the Company.

15. Assignments. The Member may assign in whole or in part its Membership Interests.

16. Admission of Additional Members. One or more additional members of the Company may be admitted to the Company with the consent of the Board.

17. Governing Law. This Restated Agreement shall be governed by, and construed under, the laws of the State of Delaware, all rights and remedies being governed by said laws.

*     *     *     *     *

 

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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have duly executed this Second Amended and Restated Limited Liability Company Agreement as of the date first above-written.

 

 

{HPC Holdings, LLC - Second A&R Limited Liability Company Agreement}		S-1

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Schedule 1

Name and Address of the Member and Membership Interests held by the Member

 

Name				Membership Interests
Bulk Molding Compounds, Inc.				100%
c/o Citadel Plastics Holdings, Inc.
1600 Powis Court
West Chicago, IL 60185

Exhibit 3.17

 

Corporations Section P.O. Box 13697 Austin, Texas 78711-3697				Carlos H. Cascos Secretary of State

Office of the Secretary of State

The undersigned, as Secretary of State of Texas, does hereby certify that the attached is a true and correct copy of each document on file in this office as described below:

ICO - Schulman, LLC

Filing Number: 801198769

 

Certificate of Formation		November 30, 2009
Certificate of Amendment		April 16, 2010
Certificate of Merger		April 30, 2010

 

		In testimony whereof, I have hereunto signed my name officially and caused to be impressed hereon the Seal of State at my office in Austin, Texas on April 22, 2015.        Carlos H. Cascos Secretary of State

 

Come visit us on the internet at http://www.sos.state.tx.us/
Phone: (512) 463-5555		Fax: (512) 463-5709		Dial: 7-1-1 for Relay Services
Prepared by: SOS-WEB		TID: 10266		Document: 603108370005

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		Certificate of Formation Limited Liability Company
Secretary of State				Filed in the Office of the
P.O. Box 13697				Secretary of State of Texas
Austin, TX 78711-3697				Filing #: 801198769 11/30/2009
FAX: 512/463-5709				Document #: 285944000002
Filing Fee: $300				Image Generated Electronically
				for Web Filing

Article 1 - Entity Name and Type

The filing entity being formed is a limited liability company. The name of the entity is:

Wildcat Spider, LLC

The name of the entity must contain the words “Limited Liability Company” or “Limited Company,” or an accepted abbreviation of such terms. The name must not be the same as, deceptively similar to or similar to that of an existing corporate, limited liability company, or limited partnership name on file with the secretary of state. A preliminary check for “name availability” is recommended.

Article 2 - Registered Agent and Registered Office

☒ A. The initial registered agent is an organization (cannot be company named above) by the name of:

CT Corporation System

OR

☐ B. The initial registered agent is an individual resident of the state whose name is set forth below:

C. The business address of the registered agent and the registered office address is:

Street Address:

350 North St. Paul Street Dallas TX 75201

Article 3 - Governing Authority

☒ A. The limited liability company is to be managed by managers.

OR

☐ B. The limited liability company will not have managers. Management of the company is reserved to the members. The names and addresses of the governing persons are set forth below:

 

Manager 1: Richard A. Green		Title:   Manager
Address:  555 Ravine View Drive Akron OH, USA 44303
Manager 2: Rand W. Torgler		Title:   Manager
Address:  222 Hickory Lane Orrville OH, USA 44667
Manager 3: Ryan P. Jones		Title:   Manager
Address:  7364 Herrick Park Drive Hudson OH, USA 44236

Article 4 - Purpose

The purpose for which the company is organized is for the transaction of any and all lawful business for which limited liability companies may be organized under the Texas Business Organizations Code.

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Supplemental Provisions / Information

[The attached addendum, if any, is incorporated herein by reference.]

 

Organizer

The name and address of the organizer are set forth below.

Ryan P. Jones            7364 Herrick Park Drive, Hudson OH 44236

Effectiveness of Filing

☒ A. This document becomes effective when the document is filed by the secretary of state.

OR

☐ B. This document becomes effective at a later date, which is not more than ninety (90) days from the date of its signing. The delayed effective date is:

Execution

The undersigned signs this document subject to the penalties imposed by law for the submission of a materially false or fraudulent instrument.

 

Ryan P. Jones

Signature of Organizer

FILING OFFICE COPY

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Form 424 (Revised 12/09)   Submit in duplicate to: Secretary of State P.O. Box 13697 Austin, TX 78711-3697 512 463-5555 FAX: 512/463-5709 Filing Fee: See instructions		Certificate of Amendment		This space reserved for office use.

Entity Information

The name of the filing entity is:

Wildcat Spider, LLC

 

State the name of the entity as currently shown in the records of the secretary of state. If the amendment changes the name of the entity, state the old name and not the new name.

The filing entity is a: (Select the appropriate entity type below.)

 

☐ For-profit Corporation		☐ Professional Corporation
☐ Nonprofit Corporation		☐ Professional Limited Liability Company
☐ Cooperative Association		☐ Professional Association
☒ Limited Liability Company		☐ Limited Partnership

 

The file number issued to the filing entity by the secretary of state is:		801198769

 

The date of formation of the entity is:		November 30, 2009

Amendments

1. Amended Name

(If the purpose of the certificate of amendment is to change the name of the entity, use the following statement)

The amendment changes the certificate of formation to change the article or provision that names the filing entity. The article or provision is amended to read as follows:

The name of the filing entity is: (state the new name of the entity below)

ICO - Schulman, LLC

 

The name of the entity must contain an organizational designation or accepted abbreviation of such term, as applicable.

 

Form 424				6

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2. Amended Registered Agent/Registered Office

The amendment changes the certificate of formation to change the article or provision stating the name of the registered agent and the registered office address of the filing entity. The article or provision is amended to read as follows:

Registered Agent

(Complete either A or B, but not both. Also complete C.)

☐  A.  The registered agent is an organization (cannot be entity named above) by the name of:

 

 

 

OR

☐  B.  The registered agent is an individual resident of the state whose name is:

 

 

 

First Name		M.I.		Last Name		Suffix

The person executing this instrument affirms that the person designated as the new registered agent has consented to serve as registered agent.

C. The business address of the registered agent and the registered office address is:

 

				TX
Street Address (No P.O. Box)		City		State         Zip Code

3. Other Added, Altered, or Deleted Provisions

Other changes or additions to the certificate of formation may be made in the space provided below. If the space provided is insufficient, incorporate the additional text by providing an attachment to this form. Please read the instructions to this form for further information on format.

Text Area (The attached addendum, if any, is incorporated herein by reference.)

 

☐ Add each of the following provisions to the certificate of formation. The identification or reference of the added provision and the full text are as follows:

 

☐ Alter each of the following provisions of the certificate of formation. The identification or reference of the altered provision and the full text of the provision as amended are as follows:

 

☐ Delete each of the provisions identified below from the certificate of formation.

Statement of Approval

The amendments to the certificate of formation have been approved in the manner required by the Texas Business Organizations Code and by the governing documents of the entity.

 

Form 424		7

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Effectiveness of Filing (Select either A, B, or C.)

A. ☒ This document becomes effective when the document is filed by the secretary of state.

B. ☐ This document becomes effective at a later date, which is not more than ninety (90) days from the date of signing. The delayed

effective date is:

C. ☐ This document takes effect upon the occurrence of a future event or fact, other than the passage of time. The 90^th day after the

date of signing is:

The following event or fact will cause the document to take effect in the manner described below:

Execution

The undersigned signs this document subject to the penalties imposed by law for the submission of a materially false or fraudulent instrument and certifies under penalty of perjury that the undersigned is authorized under the provisions of law governing the entity to execute the filing instrument.

 

Date:		April 6, 2010
						By:		Wildcat Spider LLC
								Signature of authorized person
								David C. Minc, Secretary
								Printed or typed name of authorized person (see instructions)

 

Form 424		8

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Form 622 (Revised 12/08) Return in duplicate to: Secretary of State P.O. Box 13697 Austin, TX 78711-3697 512 463-5555 FAX: 512 463-5709 Filing Fee: see instructions		Certificate of Merger Combination Merger Business Organizations Code		This space reserved for office use.

Parties to the Merger

Pursuant to chapter 10 of the Texas Business Organizations Code, and the title applicable to each domestic filing entity identified below, the undersigned parties submit this certificate of merger.

The name, organizational form, state of incorporation or organization, and file number, if any, issued by the secretary of state for each organization that is a party to the merger are as follows:

Party 1

 

ICO - Schulman, LLC

Name of Organization

 

The organization is a		limited liability company		It is organized under the laws of
		Specify organizational form (e.g., for-profit corporation)

 

Texas                                 USA		The file number, if any, is		801198769
State                 Country				Texas Secretary of State file number

 

Its principal place of business is		3550 West Market Street                                              Akron                                                      OH
		Address                                                                        City                                                        State

 

☒  The organization will survive the merger.		☐  The organization will not survive the merger.

☐  The plan of merger amends the name of the organization. The new name is set forth below.

 

 

 

Name as Amended

Party 2

 

ICO, Inc.

Name of Organization

 

The organization is a		corporation		It is organized under the laws of
		Specify organizational form (e.g., for-profit corporation)

 

Texas                                 USA		The file number, if any, is		0148312700
State                 Country				Texas Secretary of State file number

 

Its principal place of business is		1811 Bering Drive, Suite 200                                     Houston                                                      TX
		Address                                                                        City                                                          State

 

☐  The organization will survive the merger.		☒  The organization will not survive the merger.

☐  The plan of merger amends the name of the organization. The new name is set forth below.

 

 

 

Name as Amended

Party 3

 

 

 

Name of Organization

 

The organization is a				It is organized under the laws of
		Specify organizational form (e.g., for-profit corporation)

 

Form 622		5

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		The file number, if any, is
State                 Country				Texas Secretary of State file number

 

Its principal place of business is
		Address                                                                        City                                                        State

 

☐  The organization will survive the merger.		☐ The organization will not survive the merger.

☐  The plan of merger amends the name of the organization. The new name is set forth below.

 

 

 

Name as Amended

Plan of Merger

☐  The plan of merger is attached.

If the plan of merger is not attached, the following statements must be completed.

Alternative Statements

In lieu of providing the plan of merger, each domestic filing entity certifies that:

1. A signed plan of merger is on file at the principal place of business of each surviving, acquiring, or new domestic entity or non-code organization that is named in this form as a party to the merger or an organization created by the merger.

2. On written request, a copy of the plan of merger will be furnished without cost by each surviving, acquiring, or new domestic entity or non-code organization to any owner or member of any domestic entity that is a party to or created by the plan of merger and, if the certificate of merger identifies multiple surviving domestic entities or non-code organizations, to any creditor or oblige of the parties to the merger at the time of the merger if a liability or obligation is then outstanding.

Complete item 3B if the merger effected changes to the certificate of formation of a surviving filing entity.

3A. No amendments to the certificate of formation of any surviving filing entity that is a party to the merger are effected by the merger.

3B.  ☐  The plan of merger effected changes or amendments to the certificate of formation of:

 

 

 

Name of filing entity effecting amendments

The changes or amendments to the filing entity’s certificate of formation, other than the name change noted previously, are stated below.

Amendment Text Area

4. Organizations Created by Merger

The name, jurisdiction of organization, principal place of business address, and entity description of each entity or other organization to be created pursuant to the plan of merger are set forth below. The certificate of formation of each new domestic filing entity to be created is being filed with this certificate of merger.

 

Form 622		6

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Name of New Organization 1				Jurisdiction		Entity Type (See instructions)

 

 

 

Principal Place of Business Address		City				State		Zip Code

 

 

 

Name of New Organization 2				Jurisdiction		Entity Type (See instructions)

 

 

 

Principal Place of Business Address		City				State		Zip Code

 

 

 

Name of New Organization 3				Jurisdiction		Entity Type (See instructions)

 

 

 

Principal Place of Business Address		City				State		Zip

Approval of the Plan of Merger

The plan of merger has been approved as required by the laws of the jurisdiction of formation of each organization that is a party to the merger and by the governing documents of those organizations.

 

☐ The approval of the owners or members of
		Name of domestic entity

was not required by the provisions of the BOC.

Effectiveness of Filing (Select either A, B, or C.)

A. ☒ This document becomes effective when the document is accepted and filed by the secretary of state.

B. ☐ This document becomes effective at a later date, which is not more than ninety (90) days from the date of signing. The delayed

effective date is:

C. ☐ This document takes effect on the occurrence of the future event or fact, other than the passage of time. The 90^th day after the

date of signing is:

The following event or fact will cause the document to take effect in the manner described below:

 

 

 

 

 

 

Tax Certificate

 

☐		Attached hereto is a certificate from the comptroller of public accounts that all taxes under title 2, Tax Code, have been paid by the non-surviving filing entity.
☒		In lieu of providing the tax certificate, one or more of the surviving, acquiring or newly created organizations will be liable for the payment of the required franchise taxes.

 

Form 622		7

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Execution

The undersigned signs this document subject to the penalties imposed by law for the submission of a materially false or fraudulent instrument. The undersigned certifies that the statements contained herein are true and correct, and that the person signing is authorized under the provisions of the Business Organizations Code, or other law applicable to and governing the merging entity, to execute the filing instrument.

 

 

Date:		April 30, 2010
						ICO - Schulman, LLC
						Merging Entity Name
						Signature of authorized person (see instructions)
						David C. Minc, Secretary
						Printed or typed name of authorized person
						ICO, Inc.
						Merging Entity Name
						Signature of authorized person (see instructions)
						A. John Knapp, Jr., President and CEO
						Printed or typed name of authorized person
						Merging Entity Name
						Signature of authorized person (see instructions)
						Printed or typed name of authorized person

 

Form 622		8

Exhibit 3.18

WILDCAT SPIDER, LLC

(a Texas Limited Liability Company)

LIMITED LIABILITY COMPANY AGREEMENT

THE MEMBERSHIP INTERESTS REFERENCED HEREIN HAVE NOT

BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,

AS AMENDED, NOR PURSUANT TO THE PROVISIONS

OF ANY STATE SECURITIES LAW.

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LIMITED LIABILITY COMPANY AGREEMENT

OF

WILDCAT SPIDER, LLC

This Limited Liability Company Agreement (this “Agreement”) of Wildcat Spider, LLC, a Texas limited liability company (the “Company”), is hereby adopted effective for all purposes, as of December 2, 2009 (the “Effective Date”) by A. Schulman, Inc., a Delaware corporation. As used in this Agreement, the term “Member” shall mean each person and entity individually (so long as each is a member of the Company) or any other person or entity who is admitted as a member of the Company in accordance with this Agreement, and the BOC (as defined below), and the term “Members” shall mean all members of the Company, collectively.

RECITALS

WHEREAS, the Company was formed as a limited liability company pursuant to the Texas Business Organizations Code (as amended from time to time, the “BOC”), by the filing of a Certificate of Formation with the Secretary of State of State of Texas.

NOW, THEREFORE, the undersigned hereby adopts the following as the Limited Liability Agreement of the Company:

1. FORMATION: The Certificate of Formation of the Company, the formation of the Company as a Texas limited liability company under the BOC, and all actions taken by the person who executed and filed the Certificate of Formation of the Company are hereby adopted and ratified. The affairs of the Company and the conduct of its business shall be governed by the terms and be subject to the conditions set forth in this Agreement, as amended from time to time. The Members are hereby authorized and directed to file any necessary amendments to the Certificate of Formation of the Company in the office of the Secretary of State of the State of Texas and such other documents as may be required or appropriate under the BOC or the laws of any other jurisdiction in which the Company may conduct business or own property.

2. NAME AND PRINCIPAL PLACE OF BUSINESS:

(a) The name of the Company is “Wildcat Spider, LLC.” The Company may change its name from time to time and may adopt one or more trade or fictitious names for use by the Company. All business of the Company shall be conducted under such name and title to all assets or property owned by the Company shall be held in such name.

(b) The principal office and place of business of the Company within the United States shall be 3550 W. Market Street, Akron, Ohio 44333. The Company may locate its place of business at any other place or places selected by the Members from time to time.

3. REGISTERED AGENT AND REGISTERED OFFICE: The name of the Company’s registered agent for service of process in the State of Texas shall be CT Corporation, and the address of the Company’s registered agent and the address of the Company’s registered office in the State of Texas shall be 350 N. St. Paul Street, Dallas, Texas 75201. The registered agent and the registered office of the Company may be changed from time to time by the Members.

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4. DURATION: The duration of the Company shall be deemed to have commenced upon the filing of the Certificate of Formation of the Company in the office of the Secretary of State of the State of Texas and shall be of perpetual duration, unless sooner terminated in accordance with either this Agreement or the BOC.

5. PURPOSE: The purpose for which the Company is organized is for the transaction of any and all lawful business for which limited liability companies may be organized under the BOC and to conduct such activities as may be necessary, advisable, convenient or appropriate to promote or conduct the business of the Company.

6. MEMBERS: A. Schulman, Inc. is hereby admitted as member of the Company and shall be shown as such on the books and records of the Company. No other person or entity shall be admitted as a member of the Company and no additional interest in the Company shall be issued, without the approval of the Members.

7. MANAGEMENT:

(a) Except as specifically limited herein, (i) the business and affairs of the Company shall be managed by a board of managers (the “Board”), which shall have the exclusive power and authority, on behalf of the Company, to take any action of any kind not inconsistent with this Agreement and to do anything and everything it deems necessary or appropriate to carry on the business of the Company; (ii) all decisions relating to the business and affairs of the Company and all decisions required or permitted to be made by the Company as a member, partner or other beneficial owner of any other entity, may be made by, and all action proposed to be taken by or on behalf of the Company, may be taken by the Board; and (iii) unless otherwise set forth herein, no person shall have the authority to execute documents or take other actions on behalf of the Company and thereby bind the Company without the consent of the Board. For the purposes of the BOC, the members of the Board shall constitute “managers” of the Company.

(b) The Members, in their sole discretion, shall appoint the members of the Board. The initial managers are Richard A. Green, Rand W. Torgler and Ryan P. Jones, and each of them shall serve in such capacity until his successor is duly appointed or until the earlier of his death, resignation or removal.

(c) The Board, in its sole discretion, may appoint officers of the Company for the purpose of managing the day-to-day operations of the Company’s business, and the actions of any officer taken in accordance with such rights and powers shall bind the Company.

(d) The Board may, by resolution, designate from among its members one or more committees, each of which shall be comprised of one or more managers, and may designate one or more of the managers as alternate members of any committee, who may, subject to any limitations imposed by the Board, replace absent or disqualified members at any meeting of that committee. Such committee shall have and may exercise all of the authority of the Board, subject to the limitations in the establishment of that committee. Any members thereof may be removed by a majority vote of the Board.

(e) Other committees not having and exercising the authority of the Board in the management of the Company may be designated by a resolution adopted by the Board. Except as otherwise provided in such resolution, members of each such committee shall be appointed by the Board. Any member thereof may be removed by the Board at its discretion.

 

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8. ELECTION OF OFFICERS; TITLES AND TERM OF OFFICE:

(a) The Board may designate officers of the Company on an annual basis. The initial officers of the Company shall consist of a President, Treasurer and Secretary. Each of the persons set forth below is hereby elected to the office set forth opposite his or her name to serve in such capacity until his or her death, resignation or removal or until a successor has been elected and qualified:

 

Joseph M. Gingo		President
Paul DeSantis		Treasurer
David Minc		Secretary

(b) The officers of the Company shall be appointed annually by the Board, and each officer shall hold office until his or her successor shall have been duly elected and qualified or until his or her death or until he or she shall resign or shall have been removed in the manner hereinafter provided or otherwise disqualified to serve.

(c) Any officer may be removed, either with or without cause, by the Board at any regular or special meeting, but such removal shall be without prejudice to the contract rights, if any, of the officer so removed. Any officer may resign at any time upon notice to the Company.

(d) A vacancy in the office of any officer, whether as a result of death, resignation, removal or any other cause, may be filled by the Board at any regular or special meeting.

(e) The Board may elect such other officers as the business of the Company may require, each of whom shall have authority to perform such duties as are provided in this Agreement or as the Board may, from time to time, specify, and shall hold such office until his or her successor shall have been duly elected and qualified or until his or her death or until he or she shall resign or shall have been removed in the manner set forth above or otherwise disqualified to serve.

(f) Officers and other employees of the Company shall receive such salaries or other compensation as shall be determined by resolution of the Board, adopted in advance or after the rendering of the services, or by employment contracts entered into by the Company. Election or appointment of any officer or any other employee shall not of itself create contract rights or any rights to compensation hereunder.

(g) The President shall have and is hereby given full power and authority, except as otherwise required by law or directed by the Board (i) to execute, on behalf of the Company, all duly authorized contracts, agreements, deeds, conveyances or other obligations of the Company, applications, consents, proxies and other powers of attorney, and other documents and instruments, and (ii) to vote and otherwise act on behalf of the Company, in person or by proxy, at any meeting of any other entity in which the Company may hold securities and otherwise

 

3

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exercise any and all rights and powers which the Company may possess by reason of its ownership of securities of such other entity. In addition, the President may delegate to other officers, employees and agents of the Company the power and authority to take any action which the President is authorized to take under this section, with such limitations as the President may specify; such authority so delegated by the President shall not be re-delegated by the Person to whom such execution authority has been delegated.

9. MEETINGS:

(a) All meetings of the Members or the Board shall be held at the principal office of the Company designated in or pursuant to Section 2(b), or at such other place within or without the State of Texas as may be determined by the Members or the Board, respectively, and set forth in the respective notice or waivers of notice of the meeting.

(b) The annual meeting of the Members for the election of managers and of the Board for the appointment of officers and the transaction of other business that properly comes before the meetings shall be held at the time and date designated by the Members or the Board, respectively, from time to time and stated in the notice of the meeting. The annual meetings shall be called in the same manner as provided in this Agreement for special meetings, except that the purposes of the meetings need not be enumerated in the notice of annual meetings unless required by applicable law.

(c) Special meetings of the Members may be called by the Board or by any Member. Special meetings of the Board may be called at the request of two or more managers. Business transacted at all special meetings shall be confined to the purposes stated in the notice.

(d) Written or printed notice stating the place, day and hour of the meeting and, in the case of special meetings, the purpose or purposes for which the meeting is called, shall be delivered not less than one (1) nor more than ten (10) days before the date of the meeting, either personally by hand delivery or dispatched by electronic facsimile transmission (with receipt thereof confirmed) or by mail or by a nationally recognized overnight courier service (such as Federal Express, UPS, or others), by or at the direction of the Members or the managers, as the case may be, calling the meeting, to each Member or each manager, as the case may be, of record entitled to vote at the meeting. Notice shall be deemed given on the date of receipt.

(e) Attendance of a Member or manager at any meeting shall constitute a waiver of notice of such meeting, except where a Member or manager attends a meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Members or the Board need be specified in the notice or waiver of notice of such meeting.

10. VOTING:

(a) The presence at a meeting of those Members that collectively hold a majority interest in the Company shall constitute a quorum. For purposes of a meeting of the Board, a majority of the managers shall constitute a quorum. Once a quorum is present for a meeting of the Board, the withdrawal of any manager before adjournment or the refusal of a manager to vote

 

4

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shall not effect the presence of a quorum at a meeting. If, or to the extent that, a quorum is not present at any meeting, then the managers entitled to vote at the meeting may adjourn or recess the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present or represented.

(b) At any meeting of the Members at which a quorum is present, the act of the holders of a majority interest in the Company shall be the act of the Members, unless the vote of a greater number is required by law. For purposes of a meeting of the Board, except as otherwise set forth herein or as required by law, each manager shall be entitled to one vote on each matter submitted to a vote for approval of the Board and the affirmative vote of a majority of the Board shall constitute approval.

(c) Notwithstanding any other provision contained in this Section 10, all actions of the Members or the Board may be taken by a written consent without need for a meeting, or any meeting thereof may be held by means of a telephone conference or other communications equipment by means of which all persons participating in the meeting can hear each other. Any action that may be taken by the Members or the Board without a meeting shall be effective only if the written consent or consents are in writing and set forth the action so taken. A written consent shall be effective if signed, in the case of the Members, by the holders of a majority interest in the Company or, in the case of the Board, by a majority of the managers. The consent may be in two or more counterparts. To the extent permitted by law, facsimile signatures shall be accepted as original signatures. The signed consent shall be placed in the minute book of the Company.

11. INITIAL CAPITAL CONTRIBUTIONS AND PERCENTAGE INTERESTS:

(a) Before or upon execution of this Agreement, each Member shall have contributed to the Company in the following amounts:

 

Member		Contribution
A. Schulman, Inc.		$	1,000

(b) No Member shall be paid interest on any capital contribution to the Company.

(c) Interests in the Company shall be expressed as a percentage of the whole based on the capital contributions of each Member (“Percentage Interest”). The initial Percentage Interest of each Member is set forth below:

 

Member		Percentage Interest
A. Schulman, Inc.			100	%

12. EVENT REQUIRING A WINDING UP AND TERMINATION:

(a) The Company shall be dissolved and its business wound up upon the happening of any of the following events, whichever shall first occur:

(i) the sale, condemnation or other disposition of all or substantially all of the assets of the Company and the receipt of all consideration therefor;

 

5

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(ii) the written approval of the Members;

(iii) the dissolution or final adjudication of any Member as a bankrupt or the filing by any Member of a voluntary petition in bankruptcy unless there is at least one remaining Member; or

(iv) any other event that causes the winding up of the Company under applicable law unless its business is continued pursuant to applicable law.

(b) Upon winding up, the Company’s business shall be liquidated in an orderly manner. The Board shall act as the liquidator (unless the Board elects to appoint a liquidator) to wind up the business of the Company pursuant to this Agreement. In performing its duties, the liquidator is authorized to sell, distribute, exchange or otherwise dispose of the assets of the Company in accordance with the BOC and in any reasonable manner that the liquidator shall determine to be in the best interests of the Members or their successors-in-interest. Upon final distribution of the Company’s assets, the Members or the managers shall file a certificate of winding up and termination with the Secretary of State of the State of Texas and take such other actions as may be necessary to terminate the existence of the Company.

(c) In the event it becomes necessary in connection with the liquidation of the Company to make a distribution of property in kind, such property shall be transferred and conveyed to the Members so as to vest in them the whole of such property equal to their interest in the property based upon the amount of cash that would be distributed to the Members in accordance with Section 13 hereof if such property were sold for an amount of cash equal to the fair market value of such property, as determined by the liquidator in good faith.

13. INDEMNIFICATION: Neither the Members, the Board nor any officer of the Company (the “Indemnitees”) shall be liable to the Company or to any other Indemnitee for monetary damages for any losses, claims, damages or liabilities arising from any act or omission performed or omitted by him, her or it arising out of or in connection with this Agreement or the Company’s business or affairs, SPECIFICALLY INCLUDING ANY SUCH LOSS, CLAIM, DAMAGE OR LIABILITY THAT IS ATTRIBUTABLE, IN WHOLE OR IN PART, TO THE NEGLIGENCE OF SUCH INDEMNITEE, but specifically excluding any such loss, claim, damage or liability primarily attributable to such Indemnitee’s gross negligence, malfeasance, fraud or willful misconduct. The Company shall, to the fullest extent permitted or required by applicable law, indemnify, defend and hold harmless each Indemnitee against any losses, claims, damages or liabilities to which such Indemnitee may become subject to in connection with any matter arising out of or in connection with this Agreement or the Company’s business or affairs, SPECIFICALLY INCLUDING ANY SUCH LOSS, CLAIM, DAMAGE OR LIABILITY THAT IS ATTRIBUTABLE, IN WHOLE OR IN PART, TO THE NEGLIGENCE OF SUCH INDEMNITEE, but specifically excluding any such loss, claim, damage or liability primarily attributable to such Indemnitee’s gross negligence, malfeasance, fraud or willful misconduct. If any Indemnitee becomes involved in any capacity in any action, proceeding or investigation in connection with any matter arising out of or in

 

6

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connection with this Agreement or the Company’s business or affairs, the Company shall reimburse such Indemnitee for his, her or its reasonable legal and other reasonable out-of-pocket expenses (including the cost of any investigation and preparation) as they are incurred in connection therewith, provided that such Indemnitee shall promptly repay to the Company the amount of any such reimbursed expenses paid to him, her or it if it shall ultimately be determined that such Indemnitee was not entitled to be indemnified by the Company in connection with such action, proceeding or investigation. If for any reason (other than the gross negligence, malfeasance, fraud or willful misconduct of such Indemnitee) the foregoing indemnification is unavailable to such Indemnitee, or insufficient to hold him, her or it harmless, then the Company shall contribute to the amount paid or payable by such Indemnitee as a result of such loss, claim, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and such Indemnitee on the other hand or, if such allocation is not permitted by applicable law, to reflect not only the relative benefits referred to above but also any other relevant equitable considerations. The provisions of this Section 13 shall survive for a period of four years from the date of dissolution of the Company, provided that (i) if at the end of such period there are any actions, proceedings or investigations then pending, any Indemnitee may so notify the Company and the other Indemnitees at such time (which notice shall include a brief description of each such action, proceeding or investigation and the liabilities asserted therein) and the provisions of this Section 13 shall survive with respect to each such action, proceeding or investigation set forth in such notice (or any related action, proceeding or investigation based upon the same or similar claim) until such date that such action, proceeding or investigation is finally resolved, and (ii) the obligations of the Company under this Section 13 shall be satisfied solely out of Company assets. Notwithstanding anything to the contrary contained in this Agreement, the obligations of the Company or any Indemnitee under this Section 13 shall (i) be in addition to any liability that the Company or such Indemnitee may otherwise have and (ii) inure to the benefit of such Indemnitee, his, her or its affiliates and their respective members, directors, officers, employees, agents and affiliates and any successors, assigns, heirs and personal representatives of such persons or entities.

14. LIABILITY OF THE MEMBERS: Except as otherwise expressly provided in the BOC, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Member shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member. Except as otherwise expressly provided in the BOC, the liability of a Member shall be limited to the amount of his or her capital contribution, if any, required to be made by such Member in accordance with the provisions of this Agreement, but only when and to the extent the same shall become due pursuant to the provisions of this Agreement.

15. NATURE OF INTEREST IN THE COMPANY: No Member shall have any interest in any specific assets of the Company. The interest of the Members in the Company is personal property.

16. MISCELLANEOUS:

(a) Each Member agrees to execute, acknowledge, deliver, file, record and publish such further instruments and documents, and do all such other acts and things as may be required by law, or as may be required to carry out the intent and purposes of this Agreement.

 

7

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(b) This Agreement shall be binding upon any party hereto and their respective successors and assigns and shall inure to the benefit of any party hereto and, except as otherwise provided herein, their successors and assigns.

(c) In case any one or more of the provisions contained in this Agreement or any application thereof shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and other application thereof shall not in any way be affected or impaired thereby.

(d) This Agreement may be amended only by a written instrument executed by the Members.

(e) This Agreement shall be governed by and construed in accordance with the laws of the State of Texas.

(f) All titles or captions contained in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit, extend, or describe the scope of this Agreement or the intent of any provision in this Agreement.

(g) Nothing contained in this Agreement is intended or shall be deemed to benefit any creditor of the Company or any Member, and no creditor of the Company shall be entitled to require the Company to solicit or accept any capital contribution for the Company or to enforce any right that the Company or any Member may have against a Member under this Agreement.

[signature page follows]

 

8

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IN WITNESS WHEREOF, the undersigned, as the Member, has caused this Agreement to be executed on the Effective Date.

 

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WILDCAT SPIDER, LLC

Unanimous Written Consent Of The Board of Managers Without A Meeting

December 2, 2009

Pursuant to Section 10(c) of the Limited Liability Company Agreement of Wildcat Spider, LLC, a Texas limited liability company (the “Company”), the undersigned, being all of the members of the board of managers (the “Board of Managers”) of the Company, hereby adopt, by this Unanimous Written Consent of the Board of Managers Without a Meeting, the following resolutions:

The Merger

RESOLVED, that the form, terms and provisions of the Agreement and Plan of Merger (the “Merger Agreement”) to be entered into by and among A. Schulman, Inc., a Delaware corporation (“Parent”), the Company, and ICO, Inc., a Texas corporation (“Target”), including any exhibits, annexes and schedules thereto, in substantially the form presented to the Board of Managers, with such changes, additions, deletions and modifications as authorized hereby, providing, among other things, for the merger of Target with and into the Company (the “Merger”), with the Company as the surviving company, in which each Target common share issued and outstanding immediately prior to the effective time of the Merger (other than Target common shares owned by Parent or any of its direct or indirect subsidiaries, any Target common shares held in the treasury of Target or any Target common shares as to which appraisal rights are properly demanded and perfected in accordance with applicable law) will be converted into the right to receive (i) the Cash Consideration and (ii) the Stock Consideration, in each case, as described in the Merger Agreement, be, and they hereby are, approved and adopted; and

FURTHER RESOLVED, that any officer of the Company (the “Authorized Officers”) be, and each of them hereby is, authorized for and on behalf of the Company to execute and deliver the Merger Agreement, in substantially the form presented to the Board of Managers, with such additions, deletions, changes or modifications as such Authorized Officer executing the same shall approve, such execution and delivery to conclusively evidence the authorization and approval thereof by the Company, and are each hereby empowered to take any other action and make any such filings as such Authorized Officer deems necessary or desirable in connection with the execution, delivery and performance of the Merger Agreement and the consummation of the transactions contemplated thereby, including the Merger.

Certificate of Merger

RESOLVED, that if the Merger Agreement is adopted by Target’s stockholders, then the Authorized Officers shall therefore be, and each of them hereby is, authorized and directed, for and on behalf of the Company, to execute and file with the Secretary of State of the State of Texas a Certificate of Merger merging Target with and into the Company, and to pay, or cause to be paid, any and all costs, fees and expenses related thereto.

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General

RESOLVED, that the Authorized Officers be, and each of them hereby is, authorized, empowered and directed, in the name and on behalf of the Company, to negotiate, execute, seal, file, deliver and carry out such other documents and agreements, and to take such steps and to perform such acts, including the payment of fees, costs and expenses associated therewith, as such Authorized Officer deems necessary or desirable in connection with the implementation of the transactions contemplated by or in furtherance of any of the foregoing resolutions, and any such documents and agreements executed and delivered, or acts taken by, them or any of them shall be conclusive evidence of his or her authority in so doing, and that the Company hereby ratifies and confirms any and all actions heretofore or hereafter taken by any such person in implementation of the foregoing resolutions.

[signature page follows]

 

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IN WITNESS WHEREOF, the undersigned managers of the Company have executed this Unanimous Written Consent of the Board of Managers Without a Meeting, which may be executed in two or more counterparts, each of which shall be deemed an original but shall together constitute but one and the same instrument, as of the date first set forth above.

 

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WILDCAT SPIDER, LLC

Written Consent Of The Sole Member Without A Meeting

December 2, 2009

Pursuant to Section 10(c) of the Limited Liability Company Agreement of Wildcat Spider, LLC, a Texas limited liability company (the “Company”), and Section 101.359 of the Texas Business Organizations Code (the “TBOC”), the undersigned, being the sole member (the “Sole Member”) of the Company, hereby adopts, by this Written Consent of the Sole Member Without a Meeting, the following resolutions:

The Merger

RESOLVED, that the form, terms and provisions of the Agreement and Plan of Merger (the “Merger Agreement”) to be entered into by and among A. Schulman, Inc., a Delaware corporation (“Parent”), the Company, and ICO, Inc., a Texas corporation (“Target”), including any exhibits, annexes and schedules thereto, in substantially the form presented to the Sole Member, with such changes, additions, deletions and modifications as authorized hereby, providing, among other things, for the merger of Target with and into the Company (the “Merger”), with the Company as the surviving company, in which each Target common share issued and outstanding immediately prior to the effective time of the Merger (other than Target common shares owned by Parent or any of its direct or indirect subsidiaries, any Target common shares held in the treasury of Target or any Target common shares as to which appraisal rights are properly demanded and perfected in accordance with applicable law) will be converted into the right to receive (i) the Cash Consideration and (ii) the Stock Consideration, in each case, as described in the Merger Agreement, be, and they hereby are, approved and adopted; and

FURTHER RESOLVED, that the Merger is hereby approved in all respects in accordance with Section 101.356 of the TBOC; and

FURTHER RESOLVED, that any officer of the Company (the “Authorized Officers”) be, and each of them hereby is, authorized for and on behalf of the Company to execute and deliver the Merger Agreement, in substantially the form presented to the Sole Member, with such additions, deletions, changes or modifications as such Authorized Officer executing the same shall approve, such execution and delivery to conclusively evidence the authorization and approval thereof by the Company, and are each hereby empowered to take any other action and make any such filings as such Authorized Officer deems necessary or desirable in connection with the execution, delivery and performance of the Merger Agreement and the consummation of the transactions contemplated thereby, including the Merger.

Certificate of Merger

RESOLVED, that if the Merger Agreement is adopted by Target’s stockholders, then the Authorized Officers shall therefore be, and each of them hereby is, authorized and directed, for and on behalf of the Company, to execute and file with the Secretary of State of the State of Texas a Certificate of Merger merging Target with and into the Company, and to pay, or cause to be paid, any and all costs, fees and expenses related thereto.

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General

RESOLVED, that the Authorized Officers be, and each of them hereby is, authorized, empowered and directed, in the name and on behalf of the Company, to negotiate, execute, seal, file, deliver and carry out such other documents and agreements, and to take such steps and to perform such acts, including the payment of fees, costs and expenses associated therewith, as such Authorized Officer deems necessary or desirable in connection with the implementation of the transactions contemplated by or in furtherance of any of the foregoing resolutions, and any such documents and agreements executed and delivered, or acts taken by, them or any of them shall be conclusive evidence of his or her authority in so doing, and that the Company hereby ratifies and confirms any and all actions heretofore or hereafter taken by any such person in implementation of the foregoing resolutions.

[signature page follows]

 

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IN WITNESS WHEREOF, the undersigned Sole Member has executed this Written Consent of the Sole Member Without a Meeting as of the date first set forth above.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by their respective officers thereunto duly authorized, all as of the date first written above.

 

Signature Page to Agreement and Plan of Merger

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WILDCAT SPIDER, LLC

Written Consent Of The Sole Member Without A Meeting

April 5, 2010

Pursuant to Section 10(c) of the Limited Liability Company Agreement (the “LLC Agreement”) of Wildcat Spider, LLC, a Texas limited liability company (the “Company”), and Section 101.359 of the Texas Business Organizations Code, the undersigned, being the sole member (the “Sole Member”) of the Company, hereby adopts, by this Written Consent of the Sole Member Without a Meeting, the following resolutions:

Resignations of the Members of the Board of Managers

RESOLVED, that, in accordance with Section 7(b) of the LLC Agreement, the resignations of the following members of the board of managers (the “Board”) of the Company delivered to the Company on April 5, 2010 are hereby accepted:

Richard A. Green

Rand W. Torgler

Ryan P. Jones

Appointment of Members of the Board of Managers

RESOLVED, that, in accordance with Section 7(b) of the LLC Agreement, the following persons are hereby appointed as members of the Board, and each of them shall serve in such capacity until his successor is duly appointed or until the earlier of his death, resignation, or removal:

Joseph M. Gingo

Paul DeSantis

David Minc

General

RESOLVED, that any officer of the Company (the “Authorized Officers”) be, and each of them hereby is, authorized, empowered and directed, in the name and on behalf of the Company, to negotiate, execute, seal, file, deliver and carry out such other documents and agreements, and to take such steps and to perform such acts, including the payment of fees, costs and expenses associated therewith, as such Authorized Officer deems necessary or desirable in connection with the implementation of the transactions contemplated by or in furtherance of any of the foregoing resolutions, and any such documents and agreements executed and delivered, or acts taken by, them or any of them shall be conclusive evidence or his or her authority in so doing, and that any and all actions heretofore or hereafter taken by any Authorized Officer in implementation of the foregoing resolutions are hereby approved, adopted, ratified and confirmed in all respects.

[signature page follows]

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IN WITNESS WHEREOF, the undersigned Sole Member has executed this Written Consent of the Sole Member Without a Meeting as of the date first set forth above.

 

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April 5, 2010

Wildcat Spider, LLC

3550 West Market Street

Akron, Ohio 44333

 

RE:	Manager Resignation

Dear Sir or Madam:

I, Richard A. Green, do hereby resign as a member of the board of managers of Wildcat Spider, LLC effective as of the date hereof.

 

Sincerely,

Richard A. Green

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April 5, 2010

Wildcat Spider, LLC

3550 West Market Street

Akron, Ohio 44333

 

RE:	Manager Resignation

Dear Sir or Madam:

I, Ryan P. Jones, do hereby resign as a member of the board of managers of Wildcat Spider, LLC effective as of the date hereof.

 

Sincerely,

Ryan P. Jones

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April 5, 2010

Wildcat Spider, LLC

3550 West Market Street

Akron, Ohio 44333

 

Re:	Manager Resignation

Dear Sir or Madam:

I, Rand W. Torgler, do hereby resign as a member of the board of managers of Wildcat Spider, LLC effective as of the date hereof.

 

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WILDCAT SPIDER, LLC

Written Consent Of The Sole Member Without A Meeting

April 6, 2010

Pursuant to Section 10(c) of the Limited Liability Company Agreement (the “LLC Agreement”) of Wildcat Spider, LLC, a Texas limited liability company (the “Company”), and Section 101.359 of the Texas Business Organizations Code (the “TBOC”), the undersigned, being the sole member (the “Sole Member”) of the Company, hereby adopts, by this Written Consent of the Sole Member Without a Meeting, the following resolutions:

Name Change

RESOLVED, that the name of the Company be changed from “Wildcat Spider, LLC” to “ICO – Schulman, LLC;”

FURTHER RESOLVED, that, in accordance with Sections 2(a) and 16(d) of the LLC Agreement and Section 101.053 of the TBOC, Section 2(a) of the LLC Agreement be, and it hereby is, amended and restated in its entirety as follows:

The name of the Company is “ICO – Schulman, LLC.” The Company may change its name from time to time and may adopt one or more trade or fictitious names for use by the Company. All business of the Company shall be conducted under such name and title to all assets or property owned by the Company shall be held in such name.

FURTHER RESOLVED, that, in accordance with Sections 2(a) and 16(d) of the LLC Agreement and Section 101.053 of the TBOC, any and all references in the LLC Agreement to “Wildcat Spider, LLC” as the name of the Company, be, and they hereby are, amended to be references to “ICO – Schulman, LLC” as the name of the Company;

FURTHER RESOLVED, that, in accordance with Section 1 of the LLC Agreement and Section 101.356(d) of the TBOC, Article 1 of the Certificate of Formation of the Company be amended to change the name of the Company from “Wildcat Spider, LLC” to “ICO – Schulman, LLC;” and

FURTHER RESOLVED, that any officer of the Company (the “Authorized Officers”) be, and each of them hereby is, empowered to take any action and make any such filings as such Authorized Officer deems necessary or desirable in connection with changing the name of the Company from “Wildcat Spider, LLC” to “ICO – Schulman, LLC.”

Certificate of Amendment

RESOLVED, the Authorized Officers shall therefore be, and each of them hereby is, authorized and directed, for and on behalf of the Company, to execute and file with the Secretary

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of State of the State of Texas a Certificate of Amendment reflecting the amendment to Article 1 of the Certificate of Formation of the Company to change the name of the Company from “Wildcat Spider, LLC” to “ICO – Schulman, LLC,” and to pay, or cause to be paid, any and all costs, fees and expenses related thereto.

General

RESOLVED, that the Authorized Officers be, and each of them hereby is, authorized, empowered and directed, in the name and on behalf of the Company, to negotiate, execute, seal, file, deliver and carry out such other documents and agreements, and to take such steps and to perform such acts, including the payment of fees, costs and expenses associated therewith, as such Authorized Officer deems necessary or desirable in connection with the implementation of the transactions contemplated by or in furtherance of any of the foregoing resolutions, and any such documents and agreements executed and delivered, or acts taken by, them or any of them shall be conclusive evidence or his or her authority in so doing, and that any and all actions heretofore or hereafter taken by any Authorized Officer in implementation of the foregoing resolutions are hereby approved, adopted, ratified and confirmed in all respects.

[signature page follows]

 

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IN WITNESS WHEREOF, the undersigned Sole Member has executed this Written Consent of the Sole Member Without a Meeting as of the date first set forth above.

 

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Form 424		Certificate of Amendment		This space reserved for office use.
(Revised 12/09)   Submit in duplicate to: Secretary of State P.O. Box 13697 Austin, TX 78711-3697 512 463-5555 FAX: 512/463-5709 Filing Fee: See instructions

Entity Information

The name of the filing entity is:

Wildcat Spider, LLC

 

State the name of the entity as currently shown in the records of the secretary of state. If the amendment changes the name of the entity, state the old name and not the new name.

The filing entity is a: (Select the appropriate entity type below.)

 

☐ For-profit Corporation		☐ Professional Corporation
☐ Nonprofit Corporation		☐ Professional Limited Liability Company
☐ Cooperative Association		☐ Professional Association
☒ Limited Liability Company		☐ Limited Partnership

 

The file number issued to the filing entity by the secretary of state is:		801198769

 

The date of formation of the entity is:		November 30, 2009

Amendments

1. Amended Name

(If the purpose of the certificate of amendment is to change the name of the entity, use the following statement)

The amendment changes the certificate of formation to change the article or provision that names the filing entity. The article or provision is amended to read as follows:

The name of the filing entity is: (state the new name of the entity below)

ICO - Schulman, LLC

 

The name of the entity must contain an organizational designation or accepted abbreviation of such term, as applicable.

 

Form 424		6

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2. Amended Registered Agent/Registered Office

The amendment changes the certificate of formation to change the article or provision stating the name of the registered agent and the registered office address of the filing entity. The article or provision is amended to read as follows:

Registered Agent

(Complete either A or B, but not both. Also complete C.)

☐ A. The registered agent is an organization (cannot be entity named above) by the name of:

 

 

 

OR

☐ B. The registered agent is an individual resident of the state whose name is:

 

First Name		M.I.		Last Name		Suffix

The person executing this instrument affirms that the person designated as the new registered agent has consented to serve as registered agent.

C. The business address of the registered agent and the registered office address is:

 

				TX
Street Address (No P.O. Box)		City		State		Zip Code

3. Other Added, Altered, or Deleted Provisions

Other changes or additions to the certificate of formation may be made in the space provided below. If the space provided is insufficient, incorporate the additional text by providing an attachment to this form. Please read the instructions to this form for further information on format.

Text Area (The attached addendum, if any, is incorporated herein by reference.)

 

☐ Add each of the following provisions to the certificate of formation. The identification or reference of the added provision and the full text are as follows:

 

☐ Alter each of the following provisions of the certificate of formation. The identification or reference of the altered provision and the full text of the provision as amended are as follows:

 

☐ Delete each of the provisions identified below from the certificate of formation.

Statement of Approval

The amendments to the certificate of formation have been approved in the manner required by the Texas Business Organizations Code and by the governing documents of the entity.

 

Form 424		7

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Effectiveness of Filing (Select either A, B, or C.)

A. ☒ This document becomes effective when the document is filed by the secretary of state.

B. ☐ This document becomes effective at a later date, which is not more than ninety (90) days from the date of signing. The delayed

effective date is:

C. ☐ This document takes effect upon the occurrence of a future event or fact, other than the passage of time. The 90^th day after the

date of signing is:

The following event or fact will cause the document to take effect in the manner described below:

Execution

The undersigned signs this document subject to the penalties imposed by law for the submission of a materially false or fraudulent instrument and certifies under penalty of perjury that the undersigned is authorized under the provisions of law governing the entity to execute the filing instrument.

 

Date:		April 6, 2010
						By:		WILDCAT SPIDER LLC
								Signature of authorized person
								DAVID C. MINC, SECRETARY
								Printed or typed name of authorized person (see instructions)

 

Form 424		8

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Corporations Section P.O. Box 13697 Austin, Texas 78711-3697				Hope Andrade Secretary of State
Office of the Secretary of State

April 19, 2010

CT Corporation System

701 Brazos, Ste. 720

Austin, TX 78701 USA

RE: ICO - Schulman, LLC

File Number: 801198769

It has been our pleasure to file the Certificate of Amendment for the referenced entity. Enclosed is the certificate evidencing filing. Payment of the filing fee is acknowledged by this letter.

If we may be of further service at any time, please let us know.

Sincerely,

Corporations Section

Business & Public Filings Division

(512) 463-5555

Enclosure

 

Come visit us on the internet at http://www.sos.state.tx.us/
Phone: (512) 463-5555		Fax: (512) 463-5709		Dial: 7-1-1 for Relay Services
Prepared by: Lynda Boots		TID: 10303		Document: 304044080002

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Corporations Section P.O. Box 13697 Austin, Texas 78711-3697				Hope Andrade Secretary of State
		Office of the Secretary of State

CERTIFICATE OF FILING

OF

ICO - Schulman, LLC

801198769

[formerly: Wildcat Spider, LLC]

The undersigned, as Secretary of State of Texas, hereby certifies that a Certificate of Amendment for the above named entity has been received in this office and has been found to conform to the applicable provisions of law.

ACCORDINGLY, the undersigned, as Secretary of State, and by virtue of the authority vested in the secretary by law, hereby issues this certificate evidencing filing effective on the date shown below.

Dated: 04/16/2010

Effective: 04/16/2010

 

				Hope Andrade      Secretary of State

 

Come visit us on the internet at http://www.sos.state.tx.us/
Phone: (512) 463-5555		Fax: (512) 463-5709		Dial: 7-1-1 for Relay Services
Prepared by: Lynda Boots		TID: 10303		Document: 304044080002

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Form 424 (Revised 12/09)   Submit in duplicate to: Secretary of State P.O. Box 13697 Austin, TX 78711-3697 512 463-5555 FAX: 512/463-5709 Filing Fee: See instructions		Certificate of Amendment		This space reserved for office use.

Entity Information

The name of the filing entity is:

Wildcat Spider, LLC

 

State the name of the entity as currently shown in the records of the secretary of state. If the amendment changes the name of the entity, state the old name and not the new name.

The filing entity is a: (Select the appropriate entity type below.)

 

☐ For-profit Corporation		☐ Professional Corporation
☐ Nonprofit Corporation		☐ Professional Limited Liability Company
☐ Cooperative Association		☐ Professional Association
☒ Limited Liability Company		☐ Limited Partnership

 

The file number issued to the filing entity by the secretary of state is:		801198769

 

The date of formation of the entity is:		November 30, 2009

Amendments

1. Amended Name

(If the purpose of the certificate of amendment is to change the name of the entity, use the following statement)

The amendment changes the certificate of formation to change the article or provision that names the filing entity. The article or provision is amended to read as follows:

The name of the filing entity is: (state the new name of the entity below)

ICO - Schulman, LLC

 

The name of the entity must contain an organizational designation or accepted abbreviation of such term, as applicable.

 

Form 424		6

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2. Amended Registered Agent/Registered Office

The amendment changes the certificate of formation to change the article or provision stating the name of the registered agent and the registered office address of the filing entity. The article or provision is amended to read as follows:

Registered Agent

(Complete either A or B, but not both. Also complete C.)

☐ A. The registered agent is an organization (cannot be entity named above) by the name of:

 

 

 

OR

☐  B.  The registered agent is an individual resident of the state whose name is:

 

 

 

First Name		M.I.		Last Name		Suffix

The person executing this instrument affirms that the person designated as the new registered agent has consented to serve as registered agent.

C. The business address of the registered agent and the registered office address is:

 

				TX
Street Address (No P.O. Box)		City		State         Zip Code

3. Other Added, Altered, or Deleted Provisions

Other changes or additions to the certificate of formation may be made in the space provided below. If the space provided is insufficient, incorporate the additional text by providing an attachment to this form. Please read the instructions to this form for further information on format.

Text Area (The attached addendum, if any, is incorporated herein by reference.)

 

☐ Add each of the following provisions to the certificate of formation. The identification or reference of the added provision and the full text are as follows:

 

☐ Alter each of the following provisions of the certificate of formation. The identification or reference of the altered provision and the full text of the provision as amended are as follows:

 

☐ Delete each of the provisions identified below from the certificate of formation.

Statement of Approval

The amendments to the certificate of formation have been approved in the manner required by the Texas Business Organizations Code and by the governing documents of the entity.

 

Form 424		7

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Effectiveness of Filing (Select either A, B, or C.)

A. ☒ This document becomes effective when the document is filed by the secretary of state.

B. ☐ This document becomes effective at a later date, which is not more than ninety (90) days from the date of signing. The delayed

effective date is:

C. ☐ This document takes effect upon the occurrence of a future event or fact, other than the passage of time. The 90^th day after the

date of signing is:

The following event or fact will cause the document to take effect in the manner described below:

Execution

The undersigned signs this document subject to the penalties imposed by law for the submission of a materially false or fraudulent instrument and certifies under penalty of perjury that the undersigned is authorized under the provisions of law governing the entity to execute the filing instrument.

 

Date:		April 6, 2010
						By:		WILDCAT SPIDER LLC
								Signature of authorized person
								DAVID C. MINC, SECRETARY
								Printed or typed name of authorized person (see instructions)

 

Form 424		8

Exhibit 3.19

 

		Delaware		PAGE 1
		The First State

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “ICO GLOBAL SERVICES, INC.” AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

CERTIFICATE OF INCORPORATION, FILED THE TWENTY-THIRD DAY OF MARCH, A.D. 1998, AT 4:30 O’CLOCK P.M.

CERTIFICATE OF RESIGNATION OF REGISTERED AGENT WITH APPOINTMENT, FILED THE SEVENTH DAY OF OCTOBER, A.D. 1998, AT 9 O’CLOCK A.M.

CERTIFICATE OF AMENDMENT, FILED THE TWENTY-FOURTH DAY OF MARCH, A.D. 2000, AT 9 O’CLOCK A.M.

CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE FOURTEENTH DAY OF SEPTEMBER, A.D. 2010, AT 11:36 O’CLOCK A.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION, “ICO GLOBAL SERVICES, INC.”.

 

				Jeffrey W. Bullock, Secretary of State
2867459      8100H				AUTHENTICATION: 2312390
150548119				DATE: 04-22-15

You may verify this certificate online

at corp.delaware.gov/authver.shtml

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		STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 04:30 PM 03/23/1998 981111994 – 2867459

CERTIFICATE OF INCORPORATION

OF

ICO GLOBAL SERVICES, INC.

FIRST: The name of the corporation is ICO Global Services, Inc.

SECOND: The registered office of the corporation in the State of Delaware is located at 103 Foulk Road, Suite 200, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is Entity Services (Delaware), Inc.

THIRD: 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.

FOURTH: The total number of shares of all classes of stock which the corporation shall have authority to issue is One Thousand (1,000) shares of Common Stock of the par value of One Cent ($0.01) per share.

FIFTH: The name of the incorporator is M.A. Brzoska and her mailing address is c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, County of New Castle, Delaware 19801.

SIXTH: The name and mailing address of the director, who shall serve until the first annual meeting of stockholders or until his successors are elected and qualified, is as follows:

 

Name		Address
Robert C. Campbell		103 Foulk Road, Suite 200
		Wilmington, Delaware 19803

The number of directors of the corporation shall be as specified in, or determined in the manner provided in, the bylaws. Election of directors need not be by written ballot.

SEVENTH: In furtherance of, and not in limitation of, the powers conferred by statute, the Board of Directors is expressly authorized to adopt, amend or repeal the bylaws of the corporation.

EIGHTH: Whenever a compromise or arrangement is proposed between the corporation and its creditors or any class of them and/or between the 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 the corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for the 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

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appointed for the 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 the 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 the corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of the corporation as a 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 the corporation, as the case may be, and also on the corporation.

NINTH: No director of the corporation shall be liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (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 law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit.

TENTH: The corporation shall have the right, subject to any express provisions or restrictions contained in the certificate of incorporation or bylaws of the corporation, from time to time, to amend the certificate of incorporation or any provision thereof in any manner now or hereafter provided by law, and all rights and powers of any kind conferred upon a director or stockholder of the corporation by the certificate of incorporation or any amendment thereof are subject to such right of the corporation.

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 that this is my act and deed and that the facts herein stated are true, and accordingly have hereunto set my hand this 23rd day of March, 1998.

 

** TOTAL PAGE.003 **

 

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STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 10/07/1998 981389675 – 2492472

STATE OF DELAWARE

CERTIFICATE OF RESIGNATION

OF REGISTERED AGENT WITH APPOINTMENT

OF A SUCCESSOR REGISTERED AGENT

Pursuant to the provisions of Section 135 of Title 8 of the Delaware Code, the undersigned agent for service of process, in order to resign as agent and appoint a successor agent, hereby certifies that:

 

1.	The name of the resigning agent is: Entity Services (Delaware), Inc.

 

2.	The name of the successor agent is: Entity Services Group, LLC

 

3.	The address of the successor agent is: 103 Foulk Road, Suite 200, Wilmington, DE 19803

 

4.	Attached to this certificate is a statement from each such Corporation ratifying and approving such change of Registered Agent.

IN WITNESS WHEREOF, the undersigned agent has caused this certificate to be signed on its behalf by its Officer this 14^th day of September, 1998.

 

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AFFIDAVIT

STATE OF DELAWARE

COUNTY OF NEW CASTLE

Weepor Company, a Delaware Corporation, hereby ratifies and approves of the resignation of Entity Services (Delaware), Inc. and appointment of Entity Services Group, LLC as successor located at 103 Foulk Road, Suite 200, Wilmington, DE 19803.

IN WITNESS WHEREOF, the said Corporation has caused this certificate to be signed on its behalf by its Officer this 22^nd day of July, 1998.

 

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STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 03/24/2000 001150394 – 2867459

CERTIFICATE OF AMENDMENT

OF

CERTIFICATE OF INCORPORATION

OF

ICO GLOBAL SERVICES, INC.

ICO Global Services, 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, by unanimous written consent of its members filed with the minutes of the Board, adopted a resolution proposing and declaring advisable the following amendment to the Certificate of Incorporation of said corporation:

RESOLVED that Section 4 of the Certificate of Incorporation of ICO Global Services, Inc., be amended to read as follows:

FOURTH: The total number of shares which the Company shall have the Authority to issue is 2,000 shares of Common Stock, and the par value of Each of such shares is One Cent ($.01) amount in the aggregate to Twenty Dollars ($20.00).

SECOND. That in lieu of a meeting and vote of stockholders, the stockholders have given unanimous written consent to said amendment in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

THIRD. That the aforesaid amendment was duly adopted in accordance with the applicable provisions of Sections 242 of the general Corporation Law of the State of Delaware.

IN WITNESS WHEREOF, SAID CORPORATION HAS caused this Certificate to be signed by Robert C. Campbell its Secretary, and attested by Kari L. Johnson its Assistant Secretary, this 24^th day of March A.D. 2000.

 

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		State of Delaware Secretary of State Division of Corporations Delivered 12:03 PM 09/14/2010 FILED 11:36 AM 09/14/2010 SRV 100905530 – 2867459 FILE

STATE OF DELAWARE

CERTIFICATE OF CHANGE

OF REGISTERED AGENT AND/OR

REGISTERED OFFICE

The Board of Directors of ICO Global Services, Inc., a Delaware Corporation, on this 26th day of August, A.D. 2010, do hereby resolve and order that the location of the Registered Office of this Corporation within this State be, and the same hereby is Corporation Trust Center 1209 Orange Street, in the City of Wilmington, County of New Castle Zip Code 19801

The name of the Registered Agent therein and in charge thereof upon whom process against this Corporation may be served, is THE CORPORATION TRUST COMPANY

The Corporation does hereby certify that the foregoing is a true copy of a resolution adopted by the Board of Directors at a meeting held as herein stated.

IN WITNESS WHEREOF, said Corporation has caused this certificate to be signed by an authorized officer, the 26 day of August, A.D., 2010.

 

Exhibit 3.20

BYLAWS

OF

ICO GLOBAL SERVICES, INC.

A Delaware Corporation

Date of Adoption:

April 1, 1998

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ICO GLOBAL SERVICES, INC.

BYLAWS

Table of Contents

 

				Page
Article I
Offices					1
Section 1.		Registered Office			1
Section 2.		Other Offices			1
Article II
Stockholders					1
Section 1.		Place of Meetings			1
Section 2.		Quorum; Adjournment of Meetings			1
Section 3.		Annual Meetings			2
Section 4.		Special Meetings			2
Section 5.		Record Date			2
Section 6.		Notice of Meetings			3
Section 7.		Stock List			3
Section 8.		Proxies			3
Section 9.		Voting; Elections; Inspectors			3
Section 10.		Conduct of Meetings			4
Section 11.		Treasury Stock			5
Section 12.		Action Without Meeting			5
Article III
Board of Directors					5
Section 1.		Power; Number; Term of Office			5
Section 2.		Quorum			5
Section 3.		Place of Meetings; Order of Business			5
Section 4.		First Meeting			6
Section 5.		Regular Meetings			6
Section 6.		Special Meetings			6
Section 7.		Removal			6
Section 8.		Vacancies; Increases in the Number of Directors			6

 

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Section 9.		Compensation			7
Section 10.		Action Without a Meeting; Telephone Conference Meeting			7
Section 11.		Approval or Ratification of Acts or Contracts by Stockholders			7
Article IV
Committees					7
Section 1.		Designation; Powers			7
Section 2.		Procedure; Meetings; Quorum			8
Section 3.		Substitution of Members			8
Article V
Officers					8
Section 1.		Number, Titles and Term of Office			8
Section 2.		Salaries			9
Section 3.		Removal			9
Section 4.		Vacancies			9
Section 5.		Powers and Duties of the Chief Executive Officer			9
Section 6.		Powers and Duties of the Chairman of the Board			9
Section 7.		Powers and Duties of the President			9
Section 8.		Vice Presidents			9
Section 9.		Treasurer			10
Section 10.		Assistant Treasurers			10
Section 11.		Secretary			10
Section 12.		Assistant Secretaries			10
Section 13.		Action with Respect to Securities of Other Corporations			10
Article VI
Indemnification of Directors, Officers, Employees and Agents					11
Section 1.		Right to Indemnification			11
Section 2.		Indemnification of Employees and Agents			11
Section 3.		Right of Claimant to Bring Suit			12
Section 4.		Nonexclusivity of Rights			12
Section 5.		Insurance			12
Section 6.		Savings Clause			12
Section 7.		Definitions			13
Article VII
Capital Stock					13
Section 1.		Certificates of Stock			13
Section 2.		Transfer of Shares			13

 

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Section 3.		Ownership of Shares			14
Section 4.		Regulations Regarding Certificates			14
Section 5.		Lost or Destroyed Certificates			14
Article VIII
Miscellaneous Provisions					14
Section 1.		Fiscal Year			14
Section 2.		Corporate Seal			14
Section 3.		Notice and Waiver of Notice			14
Section 4.		Resignations			15
Section 5.		Facsimile Signatures			15
Section 6.		Reliance upon Books, Reports and Records			15
Article IX
Amendments					15

 

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DELAWARE BYLAWS

OF

ICO GLOBAL SERVICES, INC.

Article I

Offices

Section 1. Registered Office. The registered office of the Corporation required by the General Corporation Law of the State of Delaware to be maintained in the State of Delaware, shall be the registered office named in the original Certificate of Incorporation of the Corporation, or such other office as may be designated from time to time by the Board of Directors in the manner provided by law. Should the Corporation maintain a principal office within the State of Delaware such registered office need not be identical to such principal office of the Corporation.

Section 2. Other Offices. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.

Article II

Stockholders

Section 1. Place of Meetings. All meetings of the stockholders shall be held at the principal office of the Corporation, or at such other place within or without the State of Delaware as shall be specified or fixed in the notices or waivers of notice thereof.

Section 2. Quorum; Adjournment of Meetings. Unless otherwise required by law or provided in the Certificate of Incorporation or these bylaws, the holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at any meeting of stockholders for the transaction of business and the act of a majority of such stock so represented at any meeting of stockholders at which a quorum is present shall constitute the act of the meeting of stockholders. The stockholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum.

Notwithstanding the other provisions of the Certificate of Incorporation or these bylaws, the chairman of the meeting or the holders of a majority of the issued and outstanding stock, present in person or represented by proxy, at any meeting of stockholders, whether or not a quorum is present, shall have the power to adjourn such meeting from time to time, without any notice other than announcement at the meeting of the time and place of the holding of the adjourned meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at such meeting. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally called.

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Section 3. Annual Meetings. An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall be held at such place, within or without the State of Delaware, on such date, and at such time as the Board of Directors shall fix and set forth in the notice of the meeting, which date shall be within thirteen (13) months subsequent to the later of the date of incorporation or the last annual meeting of stockholders.

Section 4. Special Meetings. Unless otherwise provided in the Certificate of Incorporation, special meetings of the stockholders for any purpose or purposes may be called at any time by the Chairman of the Board (if any), by the President or by a majority of the Board of Directors, or by a majority of the executive committee (if any), and shall be called by the Chairman of the Board (if any), by the President or the Secretary upon the written request therefor, stating the purpose or purposes of the meeting, delivered to such officer, signed by the holder(s) of at least ten percent (10%) of the issued and outstanding stock entitled to vote at such meeting.

Section 5. Record Date. For the purpose of determining stockholders entitled to notice of or to vote at any meeting of stockholders, or any adjournment thereof, or entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors of the Corporation may fix, in advance, a date as the record date for any such determination of stockholders, which date shall not be more than sixty (60) days nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action.

If the Board of Directors does not fix a record date for any meeting of the stockholders, the record date for determining stockholders entitled to notice of or to vote at such meeting shall be at the close of business on the day next preceding the day on which notice is given, or, if in accordance with Article VIII, Section 3 of these bylaws notice is waived, at the close of business on the day next preceding the day on which the meeting is held. If, in accordance with Section 12 of this Article II, corporate action without a meeting of stockholders is to be taken, the record date for determining stockholders entitled to express consent to such corporate action in writing, when no prior action by the Board of Directors is necessary, shall be the day on which the first written consent is expressed. The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

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Section 6. Notice of Meetings. Written notice of the place, date and hour of all meetings, and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be given by or at the direction of the Chairman of the Board (if any) or the President, the Secretary or the other person(s) calling the meeting to each stockholder entitled to vote thereat not less than ten (10) nor more than sixty (60) days before the date of the meeting. Such notice may be delivered either personally or by mail. If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to the stockholder at his address as it appears on the records of the Corporation.

Section 7. Stock List. A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order for each class of stock and showing the address of each such stockholder and the number of shares registered in the name of such stockholder, shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be held. The stock list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.

Section 8. Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to a corporate action in writing without a meeting may authorize another person or persons to act for him by proxy. Proxies for use at any meeting of stockholders shall be filed with the Secretary, or such other officer as the Board of Directors may from time to time determine by resolution, before or at the time of the meeting. All proxies shall be received and taken charge of and all ballots shall be received and canvassed by the secretary of the meeting who shall decide all questions touching upon the qualification of voters, the validity of the proxies, and the acceptance or rejection of votes, unless an inspector or inspectors shall have been appointed by the chairman of the meeting, in which event such inspector or inspectors shall decide all such questions.

No proxy shall be valid after three (3) years from its date, unless the proxy provides for a longer period. Each proxy shall be revocable unless expressly provided therein to be irrevocable and coupled with an interest sufficient in law to support an irrevocable power.

Should a proxy designate two or more persons to act as proxies, unless such instrument shall provide the contrary, a majority of such persons present at any meeting at which their powers thereunder are to be exercised shall have and may exercise all the powers of voting or giving consents thereby conferred, or if only one be present, then such powers may be exercised by that one; or, if an even number attend and a majority do not agree on any particular issue, each proxy so attending shall be entitled to exercise such powers in respect of the same portion of the shares as he is of the proxies representing such shares.

Section 9. Voting; Elections; Inspectors. Unless otherwise required by law or provided in the Certificate of Incorporation, each stockholder shall have one vote for each share of stock

 

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entitled to vote which is registered in his name on the record date for the meeting. Shares registered in the name of another corporation, domestic or foreign, may be voted by such officer, agent or proxy as the bylaw (or comparable instrument) of such corporation may prescribe, or in the absence of such provision, as the Board of Directors (or comparable body) of such corporation may determine. Shares registered in the name of a deceased person may be voted by his executor or administrator, either in person or by proxy.

All voting, except as required by the Certificate of Incorporation or where otherwise required by law, may be by a voice vote; provided, however, that upon demand therefor by stockholders holding a majority of the issued and outstanding stock present in person or by proxy at any meeting a stock vote shall be taken. Every stock vote shall be taken by written ballots, each of which shall state the name of the stockholder or proxy voting and such other information as may be required under the procedure established for the meeting. All elections of directors shall be by ballot, unless otherwise provided in the Certificate of Incorporation.

At any meeting at which a vote is taken by ballots, the chairman of the meeting may appoint one or more inspectors, each of whom shall subscribe an oath or affirmation to execute faithfully the duties of inspector at such meeting with strict impartiality and according to the best of his ability. Such inspector shall receive the ballots, count the votes and make and sign a certificate of the result thereof. The chairman of the meeting may appoint any person to serve as inspector, except no candidate for the office of director shall be appointed as an inspector.

Unless otherwise provided in the Certificate of Incorporation, cumulative voting for the election of directors shall be prohibited.

Section 10. Conduct of Meetings. The meetings of the stockholders shall be presided over by the Chairman of the Board (if any), or if he is not present, by the President, or if neither the Chairman of the Board (if any), nor President is present, by a chairman elected at the meeting. The Secretary of the Corporation, if present, shall act as secretary of such meetings, or if he is not present, an Assistant Secretary shall so act; if neither the Secretary nor an Assistant Secretary is present, then a secretary shall be appointed by the chairman of the meeting. The chairman of any meeting of stockholders shall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and the conduct of discussion as seem to him in order. Unless the chairman of the meeting of stockholders shall otherwise determine, the order of business shall be as follows:

 

(a)

Calling of meeting to order.

 

(b)

Election of a chairman and the appointment of a secretary if necessary.

 

(c)

Presentation of proof of the due calling of the meeting.

 

(d)

Presentation and examination of proxies and determination of a quorum.

 

(e)

Reading and settlement of the minutes of the previous meeting.

 

(f)

Reports of officers and committees.

 

(g)

The election of directors if an annual meeting, or a meeting called for that purpose.

 

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(h)

Unfinished business.

 

(i)

New business.

 

(j)

Adjournment.

Section 11. Treasury Stock. The Corporation shall not vote, directly or indirectly, shares of its own stock owned by it and such shares shall not be counted for quorum purposes.

Section 12. Action Without Meeting. Unless otherwise provided in the Certificate of Incorporation, any action permitted or required by law, the Certificate of Incorporation or these bylaws to be taken at a meeting of stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be 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. Prompt notice of the taking of the corporate action without a meeting by less than a unanimous written consent shall be given by the Secretary to those stockholders who have not consented in writing.

Article III

Board of Directors

Section 1. Power: Number: Term of Office. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, and subject to the restrictions imposed by law or the Certificate of Incorporation, they may exercise all the powers of the Corporation.

The number of directors which shall constitute the whole Board of Directors, shall be determined from time to time by resolution of the Board of Directors (provided that no decrease in the number of directors which would have the effect of shortening the term of an incumbent director may be made by the Board of Directors). If the Board of Directors makes no such determination, the number of directors shall be the number set forth in the Certificate of Incorporation. Each director shall hold office for the term for which he is elected, and until his successor shall have been elected and qualified or until his earlier death, resignation or removal.

Unless otherwise provided in the Certificate of Incorporation, directors need not be stockholders nor residents of the State of Delaware.

Section 2. Quorum. Unless otherwise provided in the Certificate of Incorporation, a majority of the total number of directors shall constitute a quorum for the transaction of business of the Board of Directors and the vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

Section 3. Place of Meetings; Order of Business. The directors may hold their meetings and may have an office and keep the books of the Corporation, except as otherwise provided by

 

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law, in such place or places, within or without the State of Delaware, as the Board of Directors may from time to time determine by resolution. At all meetings of the Board of Directors business shall be transacted in such order as shall from time to time be determined by the Chairman of the Board (if any), or in his absence by the President, or by resolution of the Board of Directors.

Section 4. First Meeting. Each newly elected Board of Directors may hold its first meeting for the purpose of organization and the transaction of business, if a quorum is present, immediately after and at the same place as the annual meeting of the stockholders. Notice of such meeting shall not be required. At the first meeting of the Board of Directors in each year at which a quorum shall be present, held next after the annual meeting of stockholders, the Board of Directors shall proceed to the election of the officers of the Corporation.

Section 5. Regular Meetings. Regular meetings of the Board of Directors shall be held at such times and places as shall be designated from time to time by resolution of the Board of Directors. Notice of such regular meetings shall not be required.

Section 6. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board (if any), the President or, on the written request of any two directors, by the Secretary, in each case on at least twenty-four (24) hours personal, written, telegraphic, cable or wireless notice to each director. Such notice, or any waiver thereof pursuant to Article VIII, Section 3 hereof, need not state the purpose or purposes of such meeting, except as may otherwise be required by law or provided for in the Certificate of Incorporation or these bylaws.

Section 7. Removal. 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; provided that, unless the Certificate of Incorporation otherwise provides, if the Board of Directors is classified, then the stockholders may effect such removal only for cause; and provided further that, if the Certificate of Incorporation expressly grants to stockholders the right to cumulate votes for the election of directors and if less than the entire board is to be removed, no director may be removed without cause if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire Board of Directors, or, if there be classes of directors, at an election of the class of directors of which such director is a part.

Section 8. Vacancies; Increases in the Number of Directors. Unless otherwise provided in the Certificate of Incorporation, vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, although less than a quorum, or a sole remaining director; and any director so chosen shall hold office until the next annual election and until his successor shall be duly elected and shall qualify, unless sooner displaced.

If the directors of the Corporation are divided into classes, any directors elected to fill vacancies or newly created directorships shall hold office until the next election of the class for which such directors shall have been chosen, and until their successors shall be duly elected and shall qualify.

 

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Section 9. Compensation. Unless otherwise restricted by the Certificate of Incorporation, the Board of Directors shall have the authority to fix the compensation of directors.

Section 10. Action Without a Meeting: Telephone Conference Meeting. Unless otherwise restricted by the Certificate of Incorporation, any action required or permitted to be taken at any meeting of the Board of Directors, or any committee designated by the Board of Directors, may be taken without a meeting if all members of the Board of Directors or committee, as the case may be consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or committee. Such consent shall have the same force and effect as a unanimous vote at a meeting, and may be stated as such in any document or instrument filed with the Secretary of State of Delaware.

Unless otherwise restricted by the Certificate of Incorporation, subject to the requirement for notice of meetings, members of the Board of Directors, or members of any committee designated by the Board of Directors, may participate in a meeting of such Board of Directors or committee, as the case may be, by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in such a meeting shall constitute presence in person at such meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.

Section 11. Approval or Ratification of Acts or Contracts by Stockholders. The Board of Directors in its discretion may submit any act or contract for approval or ratification at any annual meeting of the stockholders, or at any special meeting of the stockholders called for the purpose of considering any such act or contract, and any act or contract that shall be approved or be ratified by the vote of the stockholders holding a majority of the issued and outstanding shares of stock of the Corporation entitled to vote and present in person or by proxy at such meeting (provided that a quorum is present), shall be as valid and as binding upon the Corporation and upon all the stockholders as if it has been approved or ratified by every stockholder of the Corporation. In addition, any such act or contract may be approved or ratified by the written consent of stockholders holding a majority of the issued and outstanding shares of capital stock of the Corporation entitled to vote and such consent shall be as valid and as binding upon the Corporation and upon all the stockholders as if it had been approved or ratified by every stockholder of the Corporation.

Article IV

Committees

Section 1. Designation: Powers. The Board of Directors may, by resolution passed by a majority of the whole board, designate one or more committees, including, if they shall so

 

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determine, an executive committee, each such committee to consist of one or more of the directors of the Corporation. Any such designated committee shall have and may exercise such of the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation as may be provided in such resolution, except that no such committee shall have the power or authority of the Board of Directors in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation’s property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution of the Corporation, or amending, altering or repealing the bylaws or adopting new bylaws for the Corporation and, unless such resolution or the Certificate of Incorporation expressly so provides, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock. Any such designated committee may authorize the seal of the Corporation to be affixed to all papers which may require it. In addition to the above such committee or committees shall have such other powers and limitations of authority as may be determined from time to time by resolution adopted by the Board of Directors.

Section 2. Procedure; Meetings; Quorum. Any committee designated pursuant to Section 1 of this Article shall choose its own chairman, shall keep regular minutes of its proceedings and report the same to the Board of Directors when requested, shall fix its own rules or procedures, and shall meet at such times and at such place or places as may be provided by such rules, or by resolution of such committee or resolution of the Board of Directors. At every meeting of any such committee, the presence of a majority of all the members thereof shall constitute a quorum and the affirmative vote of a majority of the members present shall be necessary for the adoption by it of any resolution.

Section 3. Substitution of Members. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting and not disqualified from voting, whether or not constituting a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of the absent or disqualified member.

Article V

Officers

Section 1. Number, Titles and Term of Office. The officers of the Corporation shall be a President, one or more Vice Presidents (any one or more of whom may be designated Executive Vice President or Senior Vice President), a Treasurer, a Secretary and, if the Board of Directors so elects, a Chairman of the Board and such other officers as the Board of Directors may from time to time elect or appoint. Each officer shall hold office until his successor shall be duly elected and shall qualify or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. Any number of offices may be held by the same person, unless the Certificate of Incorporation provides otherwise. Except for the Chairman of the Board, if any, no officer need be a director.

 

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Section 2. Salaries. The salaries or other compensation of the officers and agents of the Corporation shall be fixed from time to time by the Board of Directors.

Section 3. Removal. Any officer or agent elected or appointed by the Board of Directors may be removed, either with or without cause, by the vote of a majority of the whole Board of Directors at a special meeting called for the purpose, or at any regular meeting of the Board of Directors, provided the notice for such meeting shall specify that the matter of any such proposed removal will be considered at the meeting but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment of an officer or agent shall not of itself create contract rights.

Section 4. Vacancies. Any vacancy occurring in any office of the Corporation may be filled by the Board of Directors.

Section 5. Powers and Duties of the Chief Executive Officer. The President shall be the chief executive officer of the Corporation unless the Board of Directors designates the Chairman of the Board as chief executive officer. Subject to the control of the Board of Directors and the executive committee (if any), the chief executive officer shall have general executive charge, management and control of the properties, business and operations of the Corporation with all such powers as may be reasonably incident to such responsibilities; he may agree upon and execute all leases, contracts, evidences of indebtedness and other obligations in the name of the Corporation and may sign all certificates for shares of capital stock of the Corporation; and shall have such other powers and duties as designated in accordance with these bylaws and as from time to time may be assigned to him by the Board of Directors.

Section 6. Powers and Duties of the Chairman of the Board. If elected, the Chairman of the Board shall preside at all meetings of the stockholders and of the Board of Directors; and he shall have such other powers and duties as designated in these bylaws and as from time to time may be assigned to him by the Board of Directors.

Section 7. Powers and Duties of the President. Unless the Board of Directors otherwise determines, the President shall have the authority to agree upon and execute all leases, contracts, evidences of indebtedness and other obligations in the name of the Corporation; and, unless the Board of Directors otherwise determines, he shall, in the absence of the Chairman of the Board or if there be no Chairman of the Board, preside at all meetings of the stockholders and (should he be a director) of the Board of Directors; and he shall have such other powers and duties as designated in accordance with these bylaws and as from time to time may be assigned to him by the Board of Directors.

Section 8. Vice Presidents. In the absence of the President, or in the event of his inability or refusal to act, a Vice President designated by the Board of Directors shall perform the duties

 

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of the President, and when so acting shall have all the powers of and be subject to all the restrictions upon the President. In the absence of a designation by the Board of Directors of a Vice President to perform the duties of the President, or in the event of his absence or inability or refusal to act, the Vice President who is present and who is senior in terms of time as a Vice President of the Corporation shall so act. The Vice Presidents shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.

Section 9. Treasurer. The Treasurer shall have responsibility for the custody and control of all the funds and securities of the Corporation, and he shall have such other powers and duties as designated in these bylaws and as from time to time may be assigned to him by the Board of Directors. He shall perform all acts incident to the position of Treasurer, subject to the control of the chief executive officer and the Board of Directors; and he shall, if required by the Board of Directors, give such bond for the faithful discharge of his duties in such form as the Board of Directors may require.

Section 10. Assistant Treasurers. Each Assistant Treasurer shall have the usual powers and duties pertaining to his office, together with such other powers and duties as designated in these bylaws and as from time to time may be assigned to him by the chief executive officer or the Board of Directors. The Assistant Treasurers shall exercise the powers of the Treasurer during that officer’s absence or inability or refusal to act.

Section 11. Secretary. The Secretary shall keep the minutes of all meetings of the Board of Directors, committees of directors and the stockholders, in books provided for that purpose; he shall attend to the giving and serving of all notices; he may in the name of the Corporation affix the seal of the Corporation to all contracts of the Corporation and attest the affixation of the seal of the Corporation thereto; he may sign with the other appointed officers all certificates for shares of capital stock of the Corporation; he shall have charge of the certificate books, transfer books and stock ledgers, and such other books and papers as the Board of Directors may direct, all of which shall at all reasonable times be open to inspection of any director upon application at the office of the Corporation during business hours; he shall have such other powers and duties as designated in these bylaws and as from time to time may be assigned to him by the Board of Directors; and he shall in general perform all acts incident to the office of Secretary, subject to the control of the chief executive officer and the Board of Directors.

Section 12. Assistant Secretaries. Each Assistant Secretary shall have the usual powers and duties pertaining to his office, together with such other powers and duties as designated in these bylaws and as from time to time may be assigned to him by the chief executive officer or the Board of Directors. The Assistant Secretaries shall exercise the powers of the Secretary during that officer’s absence or inability or refusal to act.

Section 13. Action with Respect to Securities of Other Corporations. Unless otherwise directed by the Board of Directors, the chief executive officer shall have power to vote and otherwise act on behalf of the Corporation, in person or by proxy, at any meeting of security holders of or with respect to any action of security holders of any other corporation in which this Corporation may hold securities and otherwise to exercise any and all rights and powers which this Corporation may possess by reason of its ownership of securities in such other corporation.

 

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Article VI

Indemnification of Directors, Officers, Employees and Agents

Section 1. Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she or a person of whom he or she is the legal representative, is or was or has agreed to become a director or officer of the Corporation or is or was serving or has agreed to serve at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director or officer or in any other capacity while serving or having agreed to serve as a director or officer, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Delaware General Corporation Law, 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) against all expense, liability and loss (including without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to serve in the capacity which initially entitled such person to indemnity hereunder and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the board of directors of the Corporation. The right to indemnification conferred in this Article VI shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the Delaware General Corporation Law requires, the payment of such expenses incurred by a current, former or proposed director or officer in his or her capacity as a director or officer or proposed director or officer (and not in any other capacity in which service was or is or has been agreed to be rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such indemnified person, to repay all amounts so advanced if it shall ultimately be determined that such indemnified person is not entitled to be indemnified under this Section or otherwise.

Section 2. Indemnification of Employees and Agents. The Corporation may, by action of its Board of Directors, provide indemnification to employees and agents of the Corporation, individually or as a group, with the same scope and effect as the indemnification of directors and officers provided for in this Article.

 

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Section 3. Right of Claimant to Bring Suit. If a written claim received by the Corporation from or on behalf of an indemnified party under this Article VI is not paid in full by the Corporation within ninety days after such receipt, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible under the Delaware General Corporation Law for the Corporation to indemnity the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

Section 4. Nonexclusivity of Rights. The right to indemnification and the advancement and payment of expenses conferred in this Article VI shall not be exclusive of any other right which any person may have or hereafter acquire under any law (common or statutory), provision of the Certificate of Incorporation of the Corporation, bylaw, agreement, vote of stockholders or disinterested directors or otherwise.

Section 5. Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any person who is or was serving as a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnity such person against such expense, liability or loss under the Delaware General Corporation Law.

Section 6. Savings Clause. If this Article VI or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnity and hold harmless each director and officer of the Corporation, as to costs, charges and expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative to the full extent permitted by any applicable portion of this Article VI that shall not have been invalidated and to the fullest extent permitted by applicable law.

 

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Section 7. Definitions. For purposes of this Article, reference to the “Corporation” shall include, in addition to the Corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger prior to (or, in the case of an entity specifically designated in a resolution of the Board of Directors, after) the adoption hereof and which, if its separate existence had continued, would have had the power and authority to indemnify its directors, officers and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued.

Article VII

Capital Stock

Section 1. Certificates of Stock. The certificates for shares of the capital stock of the Corporation shall be in such form, not inconsistent with that required by law and the Certificate of Incorporation, as shall be approved by the Board of Directors. The Chairman of the Board (if any), President or a Vice President shall cause to be issued to each stockholder one or more certificates, under the seal of the Corporation or a facsimile thereof if the Board of Directors shall have provided for such seal, and signed by the Chairman of the Board (if any), President or a Vice President and the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer certifying the number of shares (and, if the stock of the Corporation shall be divided into classes or series, the class and series of such shares) owned by such stockholder in the Corporation; provided, however, that any of or all the signatures on the certificate may be facsimile. The stock record books and the blank stock certificate books shall be kept by the Secretary, or at the office of such transfer agent or transfer agents as the Board of Directors may from time to time by resolution determine. In case any officer, transfer agent or registrar who shall have signed or whose facsimile signature or signatures shall have been placed upon any such certificate or certificates shall have ceased to be such officer, transfer agent or registrar before such certificate is issued by the Corporation, such certificate may nevertheless be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue. The stock certificates shall be consecutively numbered and shall be entered in the books of the Corporation as they are issued and shall exhibit the holder’s name and number of shares.

Section 2. Transfer of Shares. The shares of stock of the Corporation shall be transferable only on the books of the Corporation by the holders thereof in person or by their duly authorized attorneys or legal representatives upon surrender and cancellation of certificates for a like number of shares. Upon surrender to the Corporation or a transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.

 

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Section 3. Ownership of Shares. The Corporation shall be entitled to treat the holder of record of any share or shares of capital stock of the Corporation as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware.

Section 4. Regulations Regarding Certificates. The Board of Directors shall have the power and authority to make all such rules and regulations as they may deem expedient concerning the issue, transfer and registration or the replacement of certificates for shares of capital stock of the Corporation.

Section 5. Lost or Destroyed Certificates. The Board of Directors may determine the conditions upon which a new certificate of stock may be issued in place of a certificate which is alleged to have been lost, stolen or destroyed; and may, in their discretion, require the owner of such certificate or his legal representative to give bond, with sufficient surety, to indemnify the Corporation and each transfer agent and registrar against any and all losses or claims which may arise by reason of the issue of a new certificate in the place of the one so lost, stolen or destroyed.

Article VIII

Miscellaneous Provisions

Section 1. Fiscal Year. The fiscal year of the Corporation shall be such as established from time to time by the Board of Directors.

Section 2. Corporate Seal. The Board of Directors may provide a suitable seal, containing the name of the Corporation. The Secretary shall have charge of the seal (if any). If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used by the Treasurer or by the Assistant Secretary or Assistant Treasurer.

Section 3. Notice and Waiver of Notice. Whenever any notice is required to be given by law, the Certificate of Incorporation or under the provisions of these bylaws, said notice shall be deemed to be sufficient if given (i) by telegraphic, cable or wireless transmission or (ii) by deposit of the same in a post office box in a sealed prepaid wrapper addressed to the person entitled thereto at his post office address, as it appears on the records of the Corporation, and such notice shall be deemed to have been given on the day of such transmission or mailing, as the case may be.

Whenever notice is required to be given by law, the Certificate of Incorporation or under any of the provisions of these bylaws, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.

 

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Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in any written waiver of notice unless so required by the Certificate of Incorporation or the bylaws.

Section 4. Resignations. Any director, member of a committee or officer may resign at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time be specified, at the time of its receipt by the chief executive officer or Secretary. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation.

Section 5. Facsimile Signatures. In addition to the provisions for the use of facsimile signatures elsewhere specifically authorized in these bylaws, facsimile signatures of any officer or officers of the Corporation may be used whenever and as authorized by the Board of Directors.

Section 6. Reliance upon Books, Reports and Records. Each director and each member of any committee designated by the Board of Directors shall, in the performance of his duties, be fully protected in relying in good faith upon the books of account or reports made to the Corporation by any of its officers, or by an independent certified public accountant, or by an appraiser selected with reasonable care by the Board of Directors or by any such committee, or in relying in good faith upon other records of the Corporation.

Article IX

Amendments

If provided in the Certificate of Incorporation of the Corporation, the Board of Directors shall have the power to adopt, amend and repeal from time to time bylaws of the Corporation, subject to the right of the stockholders entitled to vote with respect thereto to amend or repeal such bylaws as adopted or amended by the Board of Directors.

 

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Exhibit 3.21

 

		Delaware		PAGE 1
		The First State

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “ICO P&O, INC.” AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

CERTIFICATE OF INCORPORATION, FILED THE THIRTY-FIRST DAY OF MARCH, A.D. 1998, AT 11:30 O’CLOCK A.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE EFFECTIVE DATE OF THE AFORESAID CERTIFICATE OF INCORPORATION IS THE FIRST DAY OF APRIL, A.D. 1998.

CERTIFICATE OF MERGER, FILED THE THIRTY-FIRST DAY OF MARCH, A.D. 1998, AT 11:31 O’CLOCK A.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE EFFECTIVE DATE OF THE AFORESAID CERTIFICATE OF MERGER IS THE FIRST DAY OF APRIL, A.D. 1998.

CERTIFICATE OF CORRECTION, FILED THE TWENTY-SECOND DAY OF AUGUST, A.D. 2000, AT 3:30 O’CLOCK P.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION, “ICO P&O, INC.”.

 

				Jeffrey W. Bullock, Secretary of State
2867458      8100H				AUTHENTICATION: 2312384
150548104				DATE: 04-22-15

 

You may verify this certificate online at corp.delaware.gov/authver.shtml

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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 11:30 AM 03/31/1998
981123345 – 2867458

CERTIFICATE OF INCORPORATION

OF

ICO P&O, INC.

FIRST: The name of the corporation is ICO P&O, Inc.

SECOND: The registered office of the corporation in the State of Delaware is located at the Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.

THIRD: 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 the State of Delaware.

FOURTH: The total number of shares of all classes of stock which the corporation shall have authority to issue is One Thousand (1,000) shares of Common Stock of the par value of One Cent ($0.01) per share.

FIFTH: The name of the incorporator is Edward G. Zizmont, Jr. and his mailing address is c/o Vinson & Elkins L.L.P., 2300 First City Tower, 1001 Fannin, Houston, Texas 77002-6760.

SIXTH: The names and mailing addresses of the directors, who shall serve until the first annual meeting of stockholders or until their successors are elected and qualified, are as follows:

 

Name		Address
Brad Leuschner		11490 Westheimer, Suite 1000
		Houston, Texas 77002
Tony Endieveri		11490 Westheimer, Suite 1000
		Houston, Texas 77002

The number of directors of the corporation shall be as specified in, or determined in the manner provided in, the bylaws. Election of directors need not be by written ballot.

SEVENTH: In furtherance of, and not in limitation of, the powers conferred by statute, the Board of Directors is expressly authorized to adopt, amend or repeal the bylaws of the corporation.

EIGHTH: Whenever a compromise or arrangement is proposed between the corporation and its creditors or any class of them and/or between the 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 the corporation or of any creditor or stockholder thereof or on the application of

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any receiver or receivers appointed for the 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 the 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 the 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 the corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of the corporation as a 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 the corporation, as the case may be, and also on the corporation.

NINTH: No director of the corporation shall be liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (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 law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit.

TENTH: The corporation shall have the right, subject to any express provisions or restrictions contained in the certificate of incorporation or bylaws of the corporation, from time to time, to amend the certificate of incorporation or any provision thereof in any manner now or hereafter provided by law, and all rights and powers of any kind conferred upon a director or stockholder of the corporation by the certificate of incorporation or any amendment thereof are subject to such right of the corporation.

ELEVENTH: The incorporation of the Company will become effective on April 1,1998 at 12:01 a.m. in accordance with the provisions of Section 103(d) of the General Corporation Law of the State of Delaware.

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 that this is my act and deed and that the facts herein stated are true, and accordingly have hereunto set my hand this 31st day of March, 1998.

 

 

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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 11:31 AM 03/31/1998
981123349 – 2867458

CERTIFICATE OF MERGER

OF

ICO P&O, INC.

(a Texas corporation)

INTO

ICO P&O, INC.

(a Delaware corporation)

(UNDER SECTION 252 OF THE

GENERAL CORPORATION LAW OF THE

STATE OF DELAWARE)

The undersigned corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:

FIRST: That the name and state of incorporation of each of the constituent corporations in the merger are as follows:

 

NAME		State of Incorporation
ICO P&O, Inc.		Delaware
ICO P&O, Inc.		Texas

SECOND: That an Agreement and Plan of Merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations in accordance with the requirements of subsection (c) of Section 252 of the General Corporation Law of the State of Delaware.

THIRD: That the name of the surviving corporation in the merger is ICO P&O, Inc., a Delaware corporation.

FOURTH: That the Certificate of Incorporation of ICO P&O, Inc., a Delaware corporation, the surviving corporation, shall be the certificate of incorporation of the surviving corporation.

FIFTH: That the executed Agreement and Plan of Merger is on file at the principal place of business of the surviving corporation. The address of the principal place of business of the surviving corporation is 11490 Westheimer, Suite 1000, Houston, Texas 77077.

SIXTH: That a copy of the Agreement and Plan of Merger will be furnished by the surviving corporation, on request and without cost to any stockholder of any constituent corporation.

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SEVENTH: That the authorized capital stock of ICO P&O, Inc., the constituent corporation which is a corporation not incorporated under the laws of the State of Delaware, is 1,000 shares of Common Stock, par value $1.00 per share.

EIGHTH: The merger will become effective on April 1, 1998 at 12:04 a.m. in accordance with the provisions of Section 103(d) of the General Corporation Law of the State of Delaware.

IN WITNESS WHEREOF, ICO P&O, Inc., a Delaware corporation, has caused this Certificate to be signed by Brad Leuschner, its President, on the 31st day of March, 1998.

 

 

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** TOTAL PAGE.005 **

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				STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 03:30 PM 08/22/2000 001425045 – 2867458

CERTIFICATE OF CORRECTION

TO THE

CERTIFICATE OF MERGER

OF

ICO P&O, INC.

(a Texas corporation)

INTO

ICO P&O, INC.

(a Delaware corporation)

ICO P&O, Inc., a Delaware corporation organized and existing under and by virtue of The General Corporation Law of the State of Delaware, and originally incorporated under the name of ICO P&O, Inc., DOES HEREBY CERTIFY:

 

1.

The name of the corporation is ICO P&O, Inc.

 

2.

A Certificate of Merger was filed with the Secretary of State of Delaware on March 31,1998, with an effective date of April 1,1998, and said Certificate of Merger requires correction as permitted by subsection (f) of Section 103 of The General Corporation Law of the State of Delaware.

 

3.

The inaccuracies or defects of the Certificate of Merger to be corrected is as follows:

 

(i)

Article Seventh incorrectly states the authorized capital stock of ICO P&O, Inc., the constituent corporation which is a corporation not incorporated under the laws of the State of Delaware; and

 

(ii)

the date of signature of the President stated it was signed on March 31,1998, and should have reflected that it was signed effective as of April 1, 1998.

 

4.

Article Seventh of the Certificate of Merger is corrected to read as follows:

“SEVENTH: That the authorized capital stock of ICO P&O, Inc., the constituent corporation which is a corporation not incorporated under the laws of the State of Delaware, is 50,500,000 shares, of which 500,000 shall be Preferred Stock, with no par value, and 50,000,000 shall be Common Stock, no par value.”

The signatory language is corrected to read as follows:

“IN WITNESS WHEREOF, ICO P&O, Inc., a Delaware corporation, has caused this Certificate to be signed by Brad Leuschner, its President, effective as of April 1, 1998.”

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IN WITNESS WHEREOF, the undersigned authorized officer has executed this Certificate of Correction this 31^st day of January, 2000.

 

 

** TOTAL PAGE.003 **

Exhibit 3.22

BYLAWS

OF

ICO P&O, INC.

A Delaware Corporation

Date of Adoption:

April 1, 1998

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ICO P&O, INC.

BYLAWS

Table of Contents

 

		Page
Article I
Offices			1
Section 1. Registered Office			1
Section 2. Other Offices			1
Article II
Stockholders			1
Section 1. Place of Meetings			1
Section 2. Quorum; Adjournment of Meetings			1
Section 3. Annual Meetings			2
Section 4. Special Meetings			2
Section 5. Record Date			2
Section 6. Notice of Meetings			3
Section 7. Stock List			3
Section 8. Proxies			3
Section 9. Voting; Elections; Inspectors			3
Section 10. Conduct of Meetings			4
Section 11. Treasury Stock			5
Section 12. Action Without Meeting			5
Article III
Board of Directors			5
Section 1. Power; Number; Term of Office			5
Section 2. Quorum			5
Section 3. Place of Meetings; Order of Business			5
Section 4. First Meeting			6
Section 5. Regular Meetings			6
Section 6. Special Meetings			6
Section 7. Removal			6
Section 8. Vacancies; Increases in the Number of Directors			6

 

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Section 9. Compensation			7
Section 10. Action Without a Meeting; Telephone Conference Meeting			7
Section 11. Approval or Ratification of Acts or Contracts by Stockholders			7
Article IV
Committees			7
Section 1. Designation; Powers			7
Section 2. Procedure; Meetings; Quorum			8
Section 3. Substitution of Members			8
Article V
Officers			8
Section 1. Number, Titles and Term of Office			8
Section 2. Salaries			9
Section 3. Removal			9
Section 4. Vacancies			9
Section 5. Powers and Duties of the Chief Executive Officer			9
Section 6. Powers and Duties of the Chairman of the Board			9
Section 7. Powers and Duties of the President			9
Section 8. Vice Presidents			9
Section 9. Treasurer			10
Section 10. Assistant Treasurers			10
Section 11. Secretary			10
Section 12. Assistant Secretaries			10
Section 13. Action with Respect to Securities of Other Corporations			10
Article VI
Indemnification of Directors, Officers, Employees and Agents			11
Section 1. Right to Indemnification			11
Section 2. Indemnification of Employees and Agents			11
Section 3. Right of Claimant to Bring Suit			12
Section 4. Nonexclusivity of Rights			12
Section 5. Insurance			12
Section 6. Savings Clause			12
Section 7. Definitions			13
Article VII
Capital Stock			13
Section 1. Certificates of Stock			13
Section 2. Transfer of Shares			13

 

-ii-

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Section 3. Ownership of Shares			14
Section 4. Regulations Regarding Certificates			14
Section 5. Lost or Destroyed Certificates			14
Article VIII
Miscellaneous Provisions			14
Section 1. Fiscal Year			14
Section 2. Corporate Seal			14
Section 3. Notice and Waiver of Notice			14
Section 4. Resignations			15
Section 5. Facsimile Signatures			15
Section 6. Reliance upon Books, Reports and Records			15
Article IX
Amendments			15

 

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DELAWARE BYLAWS

OF

ICO P&O, INC.

Article I

Offices

Section 1. Registered Office. The registered office of the Corporation required by the General Corporation Law of the State of Delaware to be maintained in the State of Delaware, shall be the registered office named in the original Certificate of Incorporation of the Corporation, or such other office as may be designated from time to time by the Board of Directors in the manner provided by law. Should the Corporation maintain a principal office within the State of Delaware such registered office need not be identical to such principal office of the Corporation.

Section 2. Other Offices. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.

Article II

Stockholders

Section 1. Place of Meetings. All meetings of the stockholders shall be held at the principal office of the Corporation, or at such other place within or without the State of Delaware as shall be specified or fixed in the notices or waivers of notice thereof.

Section 2. Quorum; Adjournment of Meetings. Unless otherwise required by law or provided in the Certificate of Incorporation or these bylaws, the holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at any meeting of stockholders for the transaction of business and the act of a majority of such stock so represented at any meeting of stockholders at which a quorum is present shall constitute the act of the meeting of stockholders. The stockholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum.

Notwithstanding the other provisions of the Certificate of Incorporation or these bylaws, the chairman of the meeting or the holders of a majority of the issued and outstanding stock, present in person or represented by proxy, at any meeting of stockholders, whether or not a quorum is present, shall have the power to adjourn such meeting from time to time, without any notice other than announcement at the meeting of the time and place of the holding of the adjourned meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at such meeting. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally called.

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Section 3. Annual Meetings. An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall be held at such place, within or without the State of Delaware, on such date, and at such time as the Board of Directors shall fix and set forth in the notice of the meeting, which date shall be within thirteen (13) months subsequent to the later of the date of incorporation or the last annual meeting of stockholders.

Section 4. Special Meetings. Unless otherwise provided in the Certificate of Incorporation, special meetings of the stockholders for any purpose or purposes may be called at any time by the Chairman of the Board (if any), by the President or by a majority of the Board of Directors, or by a majority of the executive committee (if any), and shall be called by the Chairman of the Board (if any), by the President or the Secretary upon the written request therefor, stating the purpose or purposes of the meeting, delivered to such officer, signed by the holder(s) of at least ten percent (10%) of the issued and outstanding stock entitled to vote at such meeting.

Section 5. Record Date. For the purpose of determining stockholders entitled to notice of or to vote at any meeting of stockholders, or any adjournment thereof, or entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors of the Corporation may fix, in advance, a date as the record date for any such determination of stockholders, which date shall not be more than sixty (60) days nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action.

If the Board of Directors does not fix a record date for any meeting of the stockholders, the record date for determining stockholders entitled to notice of or to vote at such meeting shall be at the close of business on the day next preceding the day on which notice is given, or, if in accordance with Article VIII, Section 3 of these bylaws notice is waived, at the close of business on the day next preceding the day on which the meeting is held. If, in accordance with Section 12 of this Article II, corporate action without a meeting of stockholders is to be taken, the record date for determining stockholders entitled to express consent to such corporate action in writing, when no prior action by the Board of Directors is necessary, shall be the day on which the first written consent is expressed. The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

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Section 6. Notice of Meetings. Written notice of the place, date and hour of all meetings, and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be given by or at the direction of the Chairman of the Board (if any) or the President, the Secretary or the other person(s) calling the meeting to each stockholder entitled to vote thereat not less than ten (10) nor more than sixty (60) days before the date of the meeting. Such notice may be delivered either personally or by mail. If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to the stockholder at his address as it appears on the records of the Corporation.

Section 7. Stock List. A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order for each class of stock and showing the address of each such stockholder and the number of shares registered in the name of such stockholder, shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be held. The stock list shall also be produced and kept at the time and place of the meeting during the whole time thereof , and may be inspected by any stockholder who is present.

Section 8. Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to a corporate action in writing without a meeting may authorize another person or persons to act for him by proxy. Proxies for use at any meeting of stockholders shall be filed with the Secretary, or such other officer as the Board of Directors may from time to time determine by resolution, before or at the time of the meeting. All proxies shall be received and taken charge of and all ballots shall be received and canvassed by the secretary of the meeting who shall decide all questions touching upon the qualification of voters, the validity of the proxies, and the acceptance or rejection of votes, unless an inspector or inspectors shall have been appointed by the chairman of the meeting, in which event such inspector or inspectors shall decide all such questions.

No proxy shall be valid after three (3) years from its date, unless the proxy provides for a longer period. Each proxy shall be revocable unless expressly provided therein to be irrevocable and coupled with an interest sufficient in law to support an irrevocable power.

Should a proxy designate two or more persons to act as proxies, unless such instrument shall provide the contrary, a majority of such persons present at any meeting at which their powers thereunder are to be exercised shall have and may exercise all the powers of voting or giving consents thereby conferred, or if only one be present, then such powers may be exercised by that one; or, if an even number attend and a majority do not agree on any particular issue, each proxy so attending shall be entitled to exercise such powers in respect of the same portion of the shares as he is of the proxies representing such shares.

Section 9. Voting; Elections; Inspectors. Unless otherwise required by law or provided in the Certificate of Incorporation, each stockholder shall have one vote for each share of stock

 

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entitled to vote which is registered in his name on the record date for the meeting. Shares registered in the name of another corporation, domestic or foreign, may be voted by such officer, agent or proxy as the bylaw (or comparable instrument) of such corporation may prescribe, or in the absence of such provision, as the Board of Directors (or comparable body) of such corporation may determine. Shares registered in the name of a deceased person may be voted by his executor or administrator, either in person or by proxy.

All voting, except as required by the Certificate of Incorporation or where otherwise required by law, may be by a voice vote; provided, however, that upon demand therefor by stockholders holding a majority of the issued and outstanding stock present in person or by proxy at any meeting a stock vote shall be taken. Every stock vote shall be taken by written ballots, each of which shall state the name of the stockholder or proxy voting and such other information as may be required under the procedure established for the meeting. All elections of directors shall be by ballot, unless otherwise provided in the Certificate of Incorporation.

At any meeting at which a vote is taken by ballots, the chairman of the meeting may appoint one or more inspectors, each of whom shall subscribe an oath or affirmation to execute faithfully the duties of inspector at such meeting with strict impartiality and according to the best of his ability. Such inspector shall receive the ballots, count the votes and make and sign a certificate of the result thereof. The chairman of the meeting may appoint any person to serve as inspector, except no candidate for the office of director shall be appointed as an inspector.

Unless otherwise provided in the Certificate of Incorporation, cumulative voting for the election of directors shall be prohibited.

Section 10. Conduct of Meetings. The meetings of the stockholders shall be presided over by the Chairman of the Board (if any), or if he is not present, by the President, or if neither the Chairman of the Board (if any), nor President is present, by a chairman elected at the meeting. The Secretary of the Corporation, if present, shall act as secretary of such meetings, or if he is not present, an Assistant Secretary shall so act; if neither the Secretary nor an Assistant Secretary is present, then a secretary shall be appointed by the chairman of the meeting. The chairman of any meeting of stockholders shall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and the conduct of discussion as seem to him in order. Unless the chairman of the meeting of stockholders shall otherwise determine, the order of business shall be as follows:

 

(a)

Calling of meeting to order.

 

(b)

Election of a chairman and the appointment of a secretary if necessary.

 

(c)

Presentation of proof of the due calling of the meeting.

 

(d)

Presentation and examination of proxies and determination of a quorum.

 

(e)

Reading and settlement of the minutes of the previous meeting.

 

(f)

Reports of officers and committees.

 

(g)

The election of directors if an annual meeting, or a meeting called for that purpose.

 

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(h)

Unfinished business.

 

(i)

New business.

 

(j)

Adjournment.

Section 11. Treasury Stock. The Corporation shall not vote, directly or indirectly, shares of its own stock owned by it and such shares shall not be counted for quorum purposes.

Section 12. Action Without Meeting. Unless otherwise provided in the Certificate of Incorporation, any action permitted or required by law, the Certificate of Incorporation or these bylaws to be taken at a meeting of stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be 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. Prompt notice of the taking of the corporate action without a meeting by less than a unanimous written consent shall be given by the Secretary to those stockholders who have not consented in writing.

Article III

Board of Directors

Section 1. Power; Number; Term of Office. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, and subject to the restrictions imposed by law or the Certificate of Incorporation, they may exercise all the powers of the Corporation.

The number of directors which shall constitute the whole Board of Directors, shall be determined from time to time by resolution of the Board of Directors (provided that no decrease in the number of directors which would have the effect of shortening the term of an incumbent director may be made by the Board of Directors). If the Board of Directors makes no such determination, the number of directors shall be the number set forth in the Certificate of Incorporation. Each director shall hold office for the term for which he is elected, and until his successor shall have been elected and qualified or until his earlier death, resignation or removal.

Unless otherwise provided in the Certificate of Incorporation, directors need not be stockholders nor residents of the State of Delaware.

Section 2. Quorum. Unless otherwise provided in the Certificate of Incorporation, a majority of the total number of directors shall constitute a quorum for the transaction of business of the Board of Directors and the vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

Section 3. Place of Meetings; Order of Business. The directors may hold their meetings and may have an office and keep the books of the Corporation, except as otherwise provided by

 

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law, in such place or places, within or without the State of Delaware, as the Board of Directors may from time to time determine by resolution. At all meetings of the Board of Directors business shall be transacted in such order as shall from time to time be determined by the Chairman of the Board (if any), or in his absence by the President, or by resolution of the Board of Directors.

Section 4. First Meeting. Each newly elected Board of Directors may hold its first meeting for the purpose of organization and the transaction of business, if a quorum is present, immediately after and at the same place as the annual meeting of the stockholders. Notice of such meeting shall not be required. At the first meeting of the Board of Directors in each year at which a quorum shall be present, held next after the annual meeting of stockholders, the Board of Directors shall proceed to the election of the officers of the Corporation.

Section 5. Regular Meetings. Regular meetings of the Board of Directors shall be held at such times and places as shall be designated from time to time by resolution of the Board of Directors. Notice of such regular meetings shall not be required.

Section 6. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board (if any), the President or, on the written request of any two directors, by the Secretary, in each case on at least twenty-four (24) hours personal, written, telegraphic, cable or wireless notice to each director. Such notice, or any waiver thereof pursuant to Article VIII, Section 3 hereof, need not state the purpose or purposes of such meeting, except as may otherwise be required by law or provided for in the Certificate of Incorporation or these bylaws.

Section 7. Removal. 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; provided that, unless the Certificate of Incorporation otherwise provides, if the Board of Directors is classified, then the stockholders may effect such removal only for cause; and provided further that, if the Certificate of Incorporation expressly grants to stockholders the right to cumulate votes for the election of directors and if less than the entire board is to be removed, no director may be removed without cause if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire Board of Directors, or, if there be classes of directors, at an election of the class of directors of which such director is a part.

Section 8. Vacancies; Increases in the Number of Directors. Unless otherwise provided in the Certificate of Incorporation, vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, although less than a quorum, or a sole remaining director; and any director so chosen shall hold office until the next annual election and until his successor shall be duly elected and shall qualify, unless sooner displaced.

If the directors of the Corporation are divided into classes, any directors elected to fill vacancies or newly created directorships shall hold office until the next election of the class for which such directors shall have been chosen, and until their successors shall be duly elected and shall qualify.

 

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Section 9. Compensation. Unless otherwise restricted by the Certificate of Incorporation, the Board of Directors shall have the authority to fix the compensation of directors.

Section 10. Action Without a Meeting; Telephone Conference Meeting. Unless otherwise restricted by the Certificate of Incorporation, any action required or permitted to be taken at any meeting of the Board of Directors, or any committee designated by the Board of Directors, may be taken without a meeting if all members of the Board of Directors or committee, as the case may be consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or committee. Such consent shall have the same force and effect as a unanimous vote at a meeting, and may be stated as such in any document or instrument filed with the Secretary of State of Delaware.

Unless otherwise restricted by the Certificate of Incorporation, subject to the requirement for notice of meetings, members of the Board of Directors, or members of any committee designated by the Board of Directors, may participate in a meeting of such Board of Directors or committee, as the case may be, by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in such a meeting shall constitute presence in person at such meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.

Section 11. Approval or Ratification of Acts or Contracts by Stockholders. The Board of Directors in its discretion may submit any act or contract for approval or ratification at any annual meeting of the stockholders, or at any special meeting of the stockholders called for the purpose of considering any such act or contract, and any act or contract that shall be approved or be ratified by the vote of the stockholders holding a majority of the issued and outstanding shares of stock of the Corporation entitled to vote and present in person or by proxy at such meeting (provided that a quorum is present), shall be as valid and as binding upon the Corporation and upon all the stockholders as if it has been approved or ratified by every stockholder of the Corporation. In addition, any such act or contract may be approved or ratified by the written consent of stockholders holding a majority of the issued and outstanding shares of capital stock of the Corporation entitled to vote and such consent shall be as valid and as binding upon the Corporation and upon all the stockholders as if it had been approved or ratified by every stockholder of the Corporation.

Article IV

Committees

Section 1. Designation; Powers. The Board of Directors may, by resolution passed by a majority of the whole board, designate one or more committees, including, if they shall so

 

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determine, an executive committee, each such committee to consist of one or more of the directors of the Corporation. Any such designated committee shall have and may exercise such of the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation as may be provided in such resolution, except that no such committee shall have the power or authority of the Board of Directors in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation’s property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution of the Corporation, or amending, altering or repealing the bylaws or adopting new bylaws for the Corporation and, unless such resolution or the Certificate of Incorporation expressly so provides, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock. Any such designated committee may authorize the seal of the Corporation to be affixed to all papers which may require it. In addition to the above such committee or committees shall have such other powers and limitations of authority as may be determined from time to time by resolution adopted by the Board of Directors.

Section 2. Procedure; Meetings; Quorum. Any committee designated pursuant to Section 1 of this Article shall choose its own chairman, shall keep regular minutes of its proceedings and report the same to the Board of Directors when requested, shall fix its own rules or procedures, and shall meet at such times and at such place or places as may be provided by such rules, or by resolution of such committee or resolution of the Board of Directors. At every meeting of any such committee, the presence of a majority of all the members thereof shall constitute a quorum and the affirmative vote of a majority of the members present shall be necessary for the adoption by it of any resolution.

Section 3. Substitution of Members. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting and not disqualified from voting, whether or not constituting a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of the absent or disqualified member.

Article V

Officers

Section 1. Number, Titles and Term of Office. The officers of the Corporation shall be a President, one or more Vice Presidents (any one or more of whom may be designated Executive Vice President or Senior Vice President), a Treasurer, a Secretary and, if the Board of Directors so elects, a Chairman of the Board and such other officers as the Board of Directors may from time to time elect or appoint. Each officer shall hold office until his successor shall be duly elected and shall qualify or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. Any number of offices may be held by the same person, unless the Certificate of Incorporation provides otherwise. Except for the Chairman of the Board, if any, no officer need be a director.

 

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Section 2. Salaries. The salaries or other compensation of the officers and agents of the Corporation shall be fixed from time to time by the Board of Directors.

Section 3. Removal. Any officer or agent elected or appointed by the Board of Directors may be removed, either with or without cause, by the vote of a majority of the whole Board of Directors at a special meeting called for the purpose, or at any regular meeting of the Board of Directors, provided the notice for such meeting shall specify that the matter of any such proposed removal will be considered at the meeting but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment of an officer or agent shall not of itself create contract rights.

Section 4. Vacancies. Any vacancy occurring in any office of the Corporation may be filled by the Board of Directors.

Section 5. Powers and Duties of the Chief Executive Officer. The President shall be the chief executive officer of the Corporation unless the Board of Directors designates the Chairman of the Board as chief executive officer. Subject to the control of the Board of Directors and the executive committee (if any), the chief executive officer shall have general executive charge, management and control of the properties, business and operations of the Corporation with all such powers as may be reasonably incident to such responsibilities; he may agree upon and execute all leases, contracts, evidences of indebtedness and other obligations in the name of the Corporation and may sign all certificates for shares of capital stock of the Corporation; and shall have such other powers and duties as designated in accordance with these bylaws and as from time to time may be assigned to him by the Board of Directors.

Section 6. Powers and Duties of the Chairman of the Board. If elected, the Chairman of the Board shall preside at all meetings of the stockholders and of the Board of Directors; and he shall have such other powers and duties as designated in these bylaws and as from time to time may be assigned to him by the Board of Directors.

Section 7. Powers and Duties of the President. Unless the Board of Directors otherwise determines, the President shall have the authority to agree upon and execute all leases, contracts, evidences of indebtedness and other obligations in the name of the Corporation; and, unless the Board of Directors otherwise determines, he shall, in the absence of the Chairman of the Board or if there be no Chairman of the Board, preside at all meetings of the stockholders and (should he be a director) of the Board of Directors; and he shall have such other powers and duties as designated in accordance with these bylaws and as from time to time may be assigned to him by the Board of Directors.

Section 8. Vice Presidents. In the absence of the President, or in the event of his inability or refusal to act, a Vice President designated by the Board of Directors shall perform the duties

 

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of the President, and when so acting shall have all the powers of and be subject to all the restrictions upon the President. In the absence of a designation by the Board of Directors of a Vice President to perform the duties of the President, or in the event of his absence or inability or refusal to act, the Vice President who is present and who is senior in terms of time as a Vice President of the Corporation shall so act. The Vice Presidents shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.

Section 9. Treasurer. The Treasurer shall have responsibility for the custody and control of all the funds and securities of the Corporation, and he shall have such other powers and duties as designated in these bylaws and as from time to time may be assigned to him by the Board of Directors. He shall perform all acts incident to the position of Treasurer, subject to the control of the chief executive officer and the Board of Directors; and he shall, if required by the Board of Directors, give such bond for the faithful discharge of his duties in such form as the Board of Directors may require.

Section 10. Assistant Treasurers. Each Assistant Treasurer shall have the usual powers and duties pertaining to his office, together with such other powers and duties as designated in these bylaws and as from time to time may be assigned to him by the chief executive officer or the Board of Directors. The Assistant Treasurers shall exercise the powers of the Treasurer during that officer’s absence or inability or refusal to act.

Section 11. Secretary. The Secretary shall keep the minutes of all meetings of the Board of Directors, committees of directors and the stockholders, in books provided for that purpose; he shall attend to the giving and serving of all notices; he may in the name of the Corporation affix the seal of the Corporation to all contracts of the Corporation and attest the affixation of the seal of the Corporation thereto; he may sign with the other appointed officers all certificates for shares of capital stock of the Corporation; he shall have charge of the certificate books, transfer books and stock ledgers, and such other books and papers as the Board of Directors may direct, all of which shall at all reasonable times be open to inspection of any director upon application at the office of the Corporation during business hours; he shall have such other powers and duties as designated in these bylaws and as from time to time may be assigned to him by the Board of Directors; and he shall in general perform all acts incident to the office of Secretary, subject to the control of the chief executive officer and the Board of Directors.

Section 12. Assistant Secretaries. Each Assistant Secretary shall have the usual powers and duties pertaining to his office, together with such other powers and duties as designated in these bylaws and as from time to time may be assigned to him by the chief executive officer or the Board of Directors. The Assistant Secretaries shall exercise the powers of the Secretary during that officer’s absence or inability or refusal to act.

Section 13. Action with Respect to Securities of Other Corporations. Unless otherwise directed by the Board of Directors, the chief executive officer shall have power to vote and otherwise act on behalf of the Corporation, in person or by proxy, at any meeting of security holders of or with respect to any action of security holders of any other corporation in which this Corporation may hold securities and otherwise to exercise any and all rights and powers which this Corporation may possess by reason of its ownership of securities in such other corporation.

 

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Article VI

Indemnification of Directors,

Officers, Employees and Agents

Section 1. Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she or a person of whom he or she is the legal representative, is or was or has agreed to become a director or officer of the Corporation or is or was serving or has agreed to serve at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director or officer or in any other capacity while serving or having agreed to serve as a director or officer, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Delaware General Corporation Law, 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) against all expense, liability and loss (including without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to serve in the capacity which initially entitled such person to indemnity hereunder and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the board of directors of the Corporation. The right to indemnification conferred in this Article VI shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the Delaware General Corporation Law requires, the payment of such expenses incurred by a current, former or proposed director or officer in his or her capacity as a director or officer or proposed director or officer (and not in any other capacity in which service was or is or has been agreed to be rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such indemnified person, to repay all amounts so advanced if it shall ultimately be determined that such indemnified person is not entitled to be indemnified under this Section or otherwise.

Section 2. Indemnification of Employees and Agents. The Corporation may, by action of its Board of Directors, provide indemnification to employees and agents of the Corporation, individually or as a group, with the same scope and effect as the indemnification of directors and officers provided for in this Article.

 

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Section 3. Right of Claimant to Bring Suit. If a written claim received by the Corporation from or on behalf of an indemnified party under this Article VI is not paid in full by the Corporation within ninety days after such receipt, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible under the Delaware General Corporation Law for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

Section 4. Nonexclusivity of Rights. The right to indemnification and the advancement and payment of expenses conferred in this Article VI shall not be exclusive of any other right which any person may have or hereafter acquire under any law (common or statutory), provision of the Certificate of Incorporation of the Corporation, bylaw, agreement, vote of stockholders or disinterested directors or otherwise.

Section 5. Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any person who is or was serving as a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law.

Section 6. Savings Clause. If this Article VI or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify and hold harmless each director and officer of the Corporation, as to costs, charges and expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative to the full extent permitted by any applicable portion of this Article VI that shall not have been invalidated and to the fullest extent permitted by applicable law.

 

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Section 7. Definitions. For purposes of this Article, reference to the “Corporation” shall include, in addition to the Corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger prior to (or, in the case of an entity specifically designated in a resolution of the Board of Directors, after) the adoption hereof and which, if its separate existence had continued, would have had the power and authority to indemnify its directors, officers and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued.

Article VII

Capital Stock

Section 1. Certificates of Stock. The certificates for shares of the capital stock of the Corporation shall be in such form, not inconsistent with that required by law and the Certificate of Incorporation, as shall be approved by the Board of Directors. The Chairman of the Board (if any), President or a Vice President shall cause to be issued to each stockholder one or more certificates, under the seal of the Corporation or a facsimile thereof if the Board of Directors shall have provided for such seal, and signed by the Chairman of the Board (if any), President or a Vice President and the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer certifying the number of shares (and, if the stock of the Corporation shall be divided into classes or series, the class and series of such shares) owned by such stockholder in the Corporation; provided, however, that any of or all the signatures on the certificate may be facsimile. The stock record books and the blank stock certificate books shall be kept by the Secretary, or at the office of such transfer agent or transfer agents as the Board of Directors may from time to time by resolution determine. In case any officer, transfer agent or registrar who shall have signed or whose facsimile signature or signatures shall have been placed upon any such certificate or certificates shall have ceased to be such officer, transfer agent or registrar before such certificate is issued by the Corporation, such certificate may nevertheless be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue. The stock certificates shall be consecutively numbered and shall be entered in the books of the Corporation as they are issued and shall exhibit the holder’s name and number of shares.

Section 2. Transfer of Shares. The shares of stock of the Corporation shall be transferable only on the books of the Corporation by the holders thereof in person or by their duly authorized attorneys or legal representatives upon surrender and cancellation of certificates for a like number of shares. Upon surrender to the Corporation or a transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.

 

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Section 3. Ownership of Shares. The Corporation shall be entitled to treat the holder of record of any share or shares of capital stock of the Corporation as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware.

Section 4. Regulations Regarding Certificates. The Board of Directors shall have the power and authority to make all such rules and regulations as they may deem expedient concerning the issue, transfer and registration or the replacement of certificates for shares of capital stock of the Corporation.

Section 5. Lost or Destroyed Certificates. The Board of Directors may determine the conditions upon which a new certificate of stock may be issued in place of a certificate which is alleged to have been lost, stolen or destroyed; and may, in their discretion, require the owner of such certificate or his legal representative to give bond, with sufficient surety, to indemnify the Corporation and each transfer agent and registrar against any and all losses or claims which may arise by reason of the issue of a new certificate in the place of the one so lost, stolen or destroyed.

Article VIII

Miscellaneous Provisions

Section 1. Fiscal Year. The fiscal year of the Corporation shall be such as established from time to time by the Board of Directors.

Section 2. Corporate Seal. The Board of Directors may provide a suitable seal, containing the name of the Corporation. The Secretary shall have charge of the seal (if any). If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used by the Treasurer or by the Assistant Secretary or Assistant Treasurer.

Section 3. Notice and Waiver of Notice. Whenever any notice is required to be given by law, the Certificate of Incorporation or under the provisions of these bylaws, said notice shall be deemed to be sufficient if given (i) by telegraphic, cable or wireless transmission or (ii) by deposit of the same in a post office box in a sealed prepaid wrapper addressed to the person entitled thereto at his post office address, as it appears on the records of the Corporation, and such notice shall be deemed to have been given on the day of such transmission or mailing, as the case may be.

Whenever notice is required to be given by law, the Certificate of Incorporation or under any of the provisions of these bylaws, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.

 

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Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in any written waiver of notice unless so required by the Certificate of Incorporation or the bylaws.

Section 4. Resignations. Any director, member of a committee or officer may resign at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time be specified, at the time of its receipt by the chief executive officer or Secretary. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation.

Section 5. Facsimile Signatures. In addition to the provisions for the use of facsimile signatures elsewhere specifically authorized in these bylaws, facsimile signatures of any officer or officers of the Corporation may be used whenever and as authorized by the Board of Directors.

Section 6. Reliance upon Books, Reports and Records. Each director and each member of any committee designated by the Board of Directors shall, in the performance of his duties, be fully protected in relying in good faith upon the books of account or reports made to the Corporation by any of its officers, or by an independent certified public accountant, or by an appraiser selected with reasonable care by the Board of Directors or by any such committee, or in relying in good faith upon other records of the Corporation.

Article IX

Amendments

If provided in the Certificate of Incorporation of the Corporation, the Board of Directors shall have the power to adopt, amend and repeal from time to time bylaws of the Corporation, subject to the right of the stockholders entitled to vote with respect thereto to amend or repeal such bylaws as adopted or amended by the Board of Directors.

 

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Exhibit 3.23

State of Delaware

Office of the Secretary of State

 

 

I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF INCORPORATION OF “ICO POLYMERS, INC.”, FILED IN THIS OFFICE ON THE TWENTIETH DAY OF JANUARY, A.D. 1998, AT 10 O’CLOCK A.M.

 

						Edward J. Freel, Secretary of State
		2847655     8100				AUTHENTICATION: 8873147
		981021143				DATE: 01-20-98

 

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CERTIFICATE OF INCORPORATION

of

ICO POLYMERS, INC.

FIRST: The name of the corporation is ICO Polymers, Inc. (the “Corporation”).

SECOND: The address of the registered office of the Corporation 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.

THIRD: The purpose of the corporation is to engage in, carry on and conduct any lawful business, act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “DGCL”).

FOURTH: The aggregate number of shares of capital stock that the Corporation shall have authority to issue is one thousand (1,000) shares of common stock, par value $0.01 per share (“Common Stock”) Each share of Common Stock shall entitle the holder thereof to one vote at all meetings of the stockholders of the Corporation. Shares of Common Stock may be issued for such consideration and for such corporate purposes as the Board of Directors of the Corporation may from time to time determine. In the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up of the Corporation, the holders of the Common Stock shall be entitled to receive all the assets of the Corporation, tangible and intangible, of whatever kind available for distribution to stockholders, ratably in proportion to the number of shares of Common Stock held by each.

FIFTH: The name and mailing address of the incorporator are as follows:

 

Name		Mailing Address
Michael Contorno		11490 Westheimer, Suite 1000
		Houston, Texas 77077

SIXTH: The powers of the incorporator shall terminate upon the filing of this Certificate of Incorporation and the name and mailing address of the person to serve as sole director of the Corporation until the first annual meeting of the stockholders or until his successor or successors are duly elected and qualified are:

 

Name		Mailing Address
Edward Bourbonais		11490 Westheimer, Suite 1000
		Houston, Texas 77077

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SEVENTH: (1) In General. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors of the Corporation. In addition to the authority and powers conferred upon the Board of Directors of the Corporation by the DGCL or by the provisions of this Certificate of Incorporation, the Board of Directors of the Corporation is hereby authorized and empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject to the provisions of the DGCL, this Certificate of Incorporation and any Bylaws adopted by the stockholders of the Corporation.

(2) Number, Election and Terms of Directors. The number of directors that shall constitute the whole Board of Directors of the Corporation shall be as from time to time fixed by, or in the manner provided in, the Bylaws of the Corporation. Election of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide. Each director shall hold office for the full term for which such director is elected and until such director’s successor shall have been duly elected and qualified or until his earlier death, resignation or removal.

EIGHTH: The Board of Directors of the Corporation is expressly empowered to adopt, amend or repeal the Bylaws of the Corporation.

NINTH: A director of the Corporation shall not be personally liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (a) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) under Section 174 of the DGCL, as the same exists or hereafter may be amended, supplemented or replaced or (d) for any transaction from which the director derived an improper personal benefit. If the DGCL is amended after the date of filing of this Certificate of Incorporation to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation, in addition to the limitation on personal liability provided herein, shall be limited to the fullest extent permitted by the amended DGCL. Any repeal or modification of this Article NINTH by the stockholders of the Corporation shall be prospective only, and shall not adversely affect any limitation on the personal liability of a director of the Corporation existing at the time of such repeal or modification.

*        *        *

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I, the undersigned, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the DGCL, do make this certificate, hereby declaring that this is my act and deed, and that the facts herein stated are true, and accordingly have hereunto set my hand this 15th day of January, 1998.

 

Exhibit 3.24

BYLAWS

OF

ICO POLYMERS, INC.

Adopted and Effective

as of

January 20, 1998

 

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TABLE OF CONTENTS

 

				Page
ARTICLE I
OFFICES
Section 1.		Registered Office			1
Section 2.		Other Offices			1
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1.		Place of Meetings			1
Section 2.		Annual Meetings			1
Section 3.		Special Meetings			1
Section 4.		Quorum			2
Section 5.		Voting			2
Section 6.		List of Stockholders Entitled to Vote			2
ARTICLE III
DIRECTORS
Section 1.		Number and Election of Directors			3
Section 2.		Vacancies			3
Section 3.		Duties and Powers			3
Section 4.		Meetings			3
Section 5.		Quorum			4
Section 6.		Actions by Written Consent			4
Section 7.		Meetings by Conference Telephone			4
Section 8.		Committees			4
Section 9.		Compensation			4
Section 10.		Interested Directors			5
ARTICLE IV
OFFICERS
Section 1.		General			5
Section 2.		Election			5
Section 3.		President			6
Section 4.		Executive Vice Presidents and Vice Presidents			6
Section 5.		Secretary			6

 

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				Page
Section 6.		Treasurer			7
Section 7.		Assistant Secretaries			7
Section 8.		Assistant Treasurers			7
Section 9.		Other Officers			7
ARTICLE V
STOCK
Section 1.		Form of Certificates			8
Section 2.		Signatures			8
Section 3.		Lost Certificates			8
Section 4.		Transfers			8
ARTICLE VI
NOTICES
Section 1.		Notices			8
Section 2.		Waivers of Notice			9
ARTICLE VII
INDEMNIFICATION
Section 1.		General			9
Section 2.		Insurance			9
ARTICLE VIII
GENERAL PROVISIONS
Section 1.		Dividends			9
Section 2.		Disbursements			10
Section 3.		Fiscal Year			10
Section 4.		Corporate Seal			10
Section 5.		Amendments			10

 

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BYLAWS

OF

ICO POLYMERS, INC.

(hereinafter the “Corporation”)

ARTICLE I

OFFICES

Section 1. Registered Office. The Corporation’s registered office in the State of Delaware shall be located at 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.

Section 2. Other Offices. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine.

ARTICLE II

MEETINGS OF STOCKHOLDERS

Section 1. Place of Meetings. Meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and place, either within or without the State of Delaware, as may be designated from time to time by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof.

Section 2. Annual Meetings. The annual meeting of stockholders shall be held on such date and at such time as may be designated from time to time by the Board of Directors and stated in the notice of the meeting, at which meeting the stockholders shall elect by a plurality vote a Board of Directors, and transact such other business as may properly be brought before the meeting. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting.

Section 3. Special Meetings. Unless otherwise prescribed by law or by the Corporation’s Certificate of Incorporation as may be amended and restated from time to time (the

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“Certificate of Incorporation”), special meetings of stockholders, for any purpose or purposes, may be called by either (a) the Chairman of the Board of Directors, if there be one, or (b) the President, and shall be called by any officer of the Corporation at the instruction of a majority of the Board of Directors. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called shall be given not less than ten nor more than sixty days before the date of the meeting to each stockholder entitled to vote at such meeting.

Section 4. Quorum. Except as otherwise provided by law or by the Certificate of Incorporation, the holders of a majority of the capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted that might have been transacted at the meeting as originally noticed. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting.

Section 5. Voting. Unless otherwise required by law, the Certificate of Incorporation or these bylaws, any question brought before any meeting of stockholders shall be decided by the vote of the holders of a majority of the voting power of the stock represented and entitled to vote thereat. Such votes may be cast in person or by proxy but no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for a longer period. The Board of Directors, in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his or her discretion, may require that any votes cast at such meeting shall be cast by written ballot.

Section 6. List of Stockholders Entitled to Vote. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder of the Corporation who is present. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.

 

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ARTICLE III

DIRECTORS

Section 1. Number and Election of Directors. The business and affairs of the Corporation shall be managed by a Board of Directors initially consisting of one director. The number of directors of the Corporation may be increased or decreased from time to time by resolution adopted by the Board of Directors, but no decrease by the Board of Directors shall have the effect of shortening the term of any incumbent director. Except as provided in Section 2 of this Article III, directors shall be elected by a plurality of the votes cast at annual meetings of stockholders and each director so elected shall hold office until the next annual meeting and until his or her successor is duly elected and qualified or until his or her earlier resignation or removal. Any director may resign at any time upon notice to the Corporation. A director need not be a stockholder, a citizen of the United States or a resident of the State of Delaware.

Section 2. Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and qualified or until their earlier resignation or removal. If there are no directors in office, then an election of directors may be held in the manner provided by statute.

Section 3. Duties and Powers. The business of the Corporation shall be managed by or under the direction of the Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these bylaws directed or required to be exercised or done by the stockholders.

Section 4. Meetings. Meetings shall be held at such time as the Board of Directors shall fix, except that the first meeting of a newly elected Board of Directors shall be held as soon after its election as the directors may conveniently assemble. Meetings shall be held at such place within or without the State of Delaware as may be fixed by the Board of Directors. No call shall be required for regular meetings for which the time and place have been fixed. Special meetings may be called by or at the direction of the Chairman of the Board, if any, the President or a majority of the directors then in office. No notice shall be required for regular meetings for which the time and place have been fixed. Written, oral or any other mode of notice of the time and place shall be given for special meetings in sufficient time for the convenient assembly of the directors thereat. Notice need not be given to any director or to any member of a committee of directors who submits a written waiver of notice signed by him or her before or after the time stated therein. Attendance of any such person at a meeting shall constitute a waiver of notice of such meeting, except when he or she attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the directors need be specified in any written waiver of notice.

 

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Section 5. Quorum. Except as may be otherwise specifically provided by law, the Certificate of Incorporation or these bylaws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

Section 6. Actions by Written Consent. Unless otherwise provided by the Certificate of Incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all the members of the Board of Directors or committee, as the case may be, consent thereto in writing, in one document or in counterparts, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or committee.

Section 7. Meetings by Conference Telephone. Unless otherwise provided by the Certificate of Incorporation or these bylaws, members of the Board of Directors or any committee designated by the Board of Directors may participate in a meeting of the Board of Directors or such committee by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 7 shall constitute presence in person at such meeting.

Section 8. Committees. The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any absent or disqualified member. Any committee, to the extent allowed by law and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. Without limitation to the foregoing, any committee shall have the power and authority to declare a dividend, to authorize the issuance of stock or to adopt a certificate of ownership and merger pursuant to Section 253 of the Delaware General Corporation Law. Each committee shall keep regular minutes and report to the Board of Directors when required.

Section 9. Compensation. Directors as such may receive a stated salary for their services, fixed by resolution of the Board of Directors. In addition, a fixed sum and expenses of attendance, if any, may be allowed for attendance at each regular or special meeting of the Board of Directors or any committee thereof; provided that nothing contained herein shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.

 

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Section 10. Interested Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof that authorizes the contract or transaction, or solely because his, her or their votes are counted for such purpose if (a) the material facts as to his, her or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors be less than a quorum, (b) the material facts as to his, her or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon and the contract or transaction is specifically approved in good faith by vote of the stockholders or (c) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or a committee that authorizes, approves or ratifies the contract or transaction.

ARTICLE IV

OFFICERS

Section 1. General. The officers of the Corporation shall be appointed by the Board of Directors and shall be a President and a Secretary. The Board of Directors, in its discretion, may also appoint a Treasurer and one or more Executive Vice Presidents, Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same person, unless otherwise prohibited by law, the Certificate of Incorporation or these bylaws. The officers of the Corporation need not be stockholders of the Corporation or directors of the Corporation.

Section 2. Election. The Board of Directors at its first meeting held after each annual meeting of stockholders shall elect the officers of the Corporation, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors; and all officers of the Corporation shall hold office until their successors are chosen and qualified or until their earlier resignation or removal. Any officer elected by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors. The salaries of all officers of the Corporation shall be fixed by the Board of Directors and may be altered from time to time except as otherwise provided by contract.

 

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Section 3. President. The President shall, subject to the control of the Board of Directors, have general supervision of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. He or she shall be the Chief Executive Officer of the Corporation and shall execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except that the other officers of the Corporation may sign and execute documents when so authorized by these bylaws, the Board of Directors or the President. In the absence or disability of the Chairman of the Board of Directors, or if there be none, the President shall preside at all meetings of the stockholders and the Board of Directors. The President shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him or her by these bylaws or by the Board of Directors. In the absence of the appointment of a Treasurer, the duties of the Treasurer, as described in Section 6 of this Article IV, shall be performed by the President.

Section 4. Executive Vice Presidents and Vice Presidents. At the request of the President or in his or her absence or in the event of his or her inability or refusal to act the Executive Vice President or the Executive Vice Presidents if there be more than one, and the Vice President or the Vice Presidents, if there be more than one (in the order designated by the Board of Directors), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Each Executive Vice President and each Vice President shall perform such other duties and have such other powers as the Board of Directors from time to time may prescribe. If there be no Executive Vice President or Vice President, the Board of Directors shall designate the officer of the Corporation who, in the absence of the President or in the event of the inability or refusal of the President to act, shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President.

Section 5. Secretary. The Secretary shall attend all meetings of the Board of Directors and all meetings of stockholders and record all the proceedings thereat in a book or books to be kept for that purpose; the Secretary shall also perform like duties for the standing committees when required. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or President, under whose supervision he or she shall be. If the Secretary shall be unable or shall refuse to cause to be given notice of all meetings of the stockholders and special meetings of the Board of Directors, and if there be no Assistant Secretary, then either the Board of Directors or the President may choose another officer to cause such notice to be given. The Secretary shall have custody of the seal of the Corporation and the Secretary or an Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his or her signature. The Secretary shall see that all books, reports, statements, certificates and other documents and records required by law to be kept or filed are properly kept or filed, as the case may be.

 

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Section 6. Treasurer. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board of Directors, at its regular meeting, or when the Board of Directors so requires, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his or her office and for the restoration to the Corporation, in case of his or her death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her possession or under his or her control belonging to the Corporation.

Section 7. Assistant Secretaries. Except as may be otherwise provided in these bylaws, Assistant Secretaries, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the President, any Executive Vice President, if there be one, any Vice President, if there be one, or the Secretary, and in the absence of the Secretary or in the event of his or her disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Secretary.

Section 8. Assistant Treasurers. Assistant Treasurers, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the President, any Executive Vice President, if there be one, any Vice President, if there be one, or the Treasurer, and in the absence of the Treasurer or in the event of his or her disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his or her office and for the restoration to the Corporation, in case of his or her death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her possession or under his or her control belonging to the Corporation.

Section 9. Other Officers. Such other officers as the Board of Directors may choose shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers.

 

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ARTICLE V

STOCK

Section 1. Form of Certificates. Every holder of stock in the Corporation shall be entitled to have a certificate signed in the name of the Corporation (a) by the President, an Executive Vice President or a Vice President and (b) by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, certifying the number of shares owned by such holder.

Section 2. Signatures. Where a certificate is countersigned by (a) a transfer agent other than the Corporation or its designated employees or (b) a registrar other than the Corporation or its designated employees, any other signature on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue.

Section 3. Lost Certificates. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his or her legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.

Section 4. Transfers. Stock of the Corporation shall be transferable in the manner prescribed by law and in these bylaws. Transfers of stock shall be made on the books of the Corporation only by the person named in the certificate or by his or her attorney lawfully constituted in writing and upon the surrender of the certificate therefor, which shall be cancelled before a new certificate shall be issued.

ARTICLE VI

NOTICES

Section 1. Notices. Whenever written notice is required by law, the Certificate of Incorporation or these bylaws to be given to any director, member of a committee or stockholder, such notice may be given by mail, addressed to such director, member of a committee or

 

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stockholder, at his or her address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Written notice may also be given personally or by facsimile transmission, telegram, telex or cable.

Section 2. Waivers of Notice. Whenever any notice is required by law, the Certificate of Incorporation or these bylaws to be given to any director, member of a committee or stockholder, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to notice.

ARTICLE VII

INDEMNIFICATION

Section 1. General. Each person who at any time shall serve, or shall have served, as a director, officer, employee or agent of the Corporation, or any person who, while a director, officer, employee or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, shall be entitled to indemnification as, and to the fullest extent, permitted by Section 145 of the Delaware General Corporation Law or any successor statutory provision, as from time to time amended. The foregoing right of indemnification shall not be deemed exclusive of any other rights to which those to be indemnified may be entitled as a matter of law or under any agreement, vote of shareholders or disinterested directors, or other arrangement.

Section 2. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise against any liability asserted against him and incurred by him in such capacity or arising out of his status as such a person, whether or not the Corporation would have the power to indemnify him against that liability under this Article VII or the Delaware General Corporation Law.

ARTICLE VIII

GENERAL PROVISIONS

Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, and may be paid in cash, in property or in shares of the

 

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capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve.

Section 2. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.

Section 3. Fiscal Year. The fiscal year of the Corporation shall end on September 30 of each year, unless otherwise fixed by resolution of the Board of Directors.

Section 4. Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced.

Section 5. Amendments. These bylaws may be altered, amended or repealed, in whole or in part, or new bylaws may be adopted by the stockholders or by the Board of Directors of the Corporation.

 

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Exhibit 3.25

 

 

		Certificate of Incorporation   of   WEDCO, INC.

This is to certify that, there is hereby organized a corporation under and by virtue of N.J.S. 14A:1-1 at seq., the “New Jersey Business Corporation Act.”

14A:2-7 (1) (a) 1. The name of the corporation is Wedco, Inc.

14A:2-7 (1) (g) 2. The address (and zip code) of this corporation’s initial registered office is

328 Park Avenue, Box 310

Scotch Plains, NJ 07076

and the name of this corporation’s initial registered agent at such address is

Walter L. Leib, Esquire

14A:2-7 (1) (b) 3. The purposes for which this corporation is organized are:

To engage in any activity within the purposes for which corporations may be organized under the “New Jersey Business Corporation Act.” N.J.S. 14A:1-1 et seq.

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14A:2-7 (1) (c) 4. The aggregate number of shares which the corporation shall have authority to issue is

One Thousand (1000) shares common/One Hundred ($100.00)

Dollars par value per share

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5. The First Board of Directors of this corporation shall consist of Director(s) and the name and address of each person who is to serve as such Director is:

 

Name		Address		Zip Code
William E. Willoughby		Mine Brook Road Far Hills, NJ		07931
William C. Willoughby		Box 185, R.D. #1 Asbury, NJ		08802
Walter L. Leib		328 Park Avenue, Box 310 Scotch Plains, NJ		07076

6. The name and address of each incorporation is:

 

Name		Address		Zip Code
Edward N. Barol, Esquire		Suite 1300, 1845 Walnut Street Philadelphia, PA		19103

In Witness Whereof. each individual incorporator, each being over the age of eighteen years, has signed this Certificate; or if the incorporator be a corporation, has caused this Certificate to be signed by its authorized officers, this 9^th day of March 1984.+

 

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I, The Secretary of State of the State of New Jersey, HEREBY CERTIFY that the foregoing is true copy of CERTIFICATE OF INCORPORATION and the endorsements thereon, as the same is taken from and compared with the original filed in my office on the 9 day of March A.D. 1984 and now remaining on file and of record therein.

 

		IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal at Trenton, this day of March 9, A.D. 1984

SECRETARY OF STATE

 

 

Certificate of Incorporation

of

WEDCO, INC.

 

 

FORWARD FOR RECORDING

AND FILING

BY: (INCLUDE ADDRESS AND ZIP CODE)

Edward N. Barol, Esquire

Pechner, Dorfman, Wolffe, Rounick & Cabot

1845 Walnut Street, Suite 1300

Philadelphia, PA 19103

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C-102A Rev 12/93

New Jersey Department of State

Division of Commercial Recording

Certificate of Amendment to the Certificate of Incorporation

(For Use by Domestic Profit Corporations)

Pursuant to the provisions of Section 14A:9-2 (4) and Section 14A:9-4 (3), Corporations, General, of the New Jersey Statutes, the undersigned corporation executes the following Certificate of Amendment to its Certificate of Incorporation:

1. The name of the corporation is: Wedco, Inc.

2. The following amendment to the Certificate of Incorporation was approved by the directors and hereafter duly adopted by the shareholders of the corporation on the 30^th day of September, 2002:

Resolved, the Article One of the Certificate of Incorporation be amended to read as follows:

The name of the corporation is ICO Polymers North America, Inc.

3. The number of shares outstanding at the time of the adoption of the amendment was: 1,000

4. The number of shares voting for and against such amendment is as follows:

 

Number of Shares Voting for Amendment		Number of Shares Voting Against Amendment
1,000		-0-

 

BY:
		Timothy J. Gollin, President

Dated this 30^th day of September, 2002

0100220629

 

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UNANIMOUS WRITTEN CONSENT OF THE

BOARD OF DIRECTORS OF

WEDCO, INC.

(a New Jersey corporation)

The undersigned, being all of the directors of Wedco, Inc., a New Jersey corporation (the “Company”), do hereby, adopt, by unanimous consent in writing in accordance with the provisions of the New Jersey Business Corporation Act and the Company’s By-Laws, the following resolutions;

WHEREAS, the Company has determined that it is in its best interest to amend the Company’s Certificate of Incorporation;

NOW THEREFORE BE IT RESOLVED, that Article One of the Certificate of Incorporation be amended to read as follows:

The name of the corporation is ICO Polymers North America, Inc.

This unanimous consent may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed shall be deemed to be an original and all of which when so executed shall be deemed to be an original and of which when taken together will constitute one and the same instrument.

IN WITNESS WHEREOF, the undersigned have executed this Unanimous Written Consent the 30th day of September, 2002.

 

Timothy J. Gollin, Director

 

Christopher N. O’Sullivan, Director

 

Jon C. Biro, Director

 

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UNANIMOUS WRITTEN CONSENT

OF THE SOLE SHAREHOLDER

IN LIEU OF A MEETING OF

WEDCO, INC.

The undersigned, Wedco Technology, Inc., a New Jersey corporation (the Corporation) and being the Sole Shareholder of Wedco, Inc., a New Jersey corporation (the “Company”) in lieu of a Meeting of the Shareholders, with waiver of notice having been duly given, for the purpose of adopting an amendment approved by the directors of the Company to the Certificate of Incorporation for the Company; hereby adopt by unanimous consent in writing in accordance with the New Jersey Business Corporation Act, the following resolution;

NOW THEREFORE BE IT RESOLVED, that Article One of the Certificate of Incorporation of the Company be amended to read as follows:

The name of the corporation is ICO Polymers North America, Inc.

IN WITNESS WHEREOF, the undersigned has executed this Unanimous Written Consent the 30th day of September 2002.

Wedco Technology, Inc.

 

Timothy J. Gollin President

 

Exhibit 3.26

BY-LAWS

OF

WEDCO, INC.

 

 

ARTICLE I

STOCKHOLDERS’ MEETINGS

SECTION 1. Annual Meetings. The annual meetings of the stockholders of the corporation, commencing with the year 1984, shall be held at such place within or without the State of New Jersey as may be fixed by resolution of the Board of Directors and as shall be designated in the notice of said meeting, on such date and at such time as the Board of Directors may also fix by resolution, or if the Board of Directors fails to set a date and time, on the third Tuesday of August at 12:00 Noon, if not a legal holiday, and if such day is a legal holiday, then such meeting shall be held on the next business day.

At each annual meeting of stockholders there shall be held an election of directors and such other business as may properly come before it. Failure of the Board to fix the date of or to hold the annual meeting as designated, or to elect a sufficient number of directors at such meeting or any adjournment thereof, shall not otherwise affect the

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corporate acts of the Board. If the annual meeting for election of directors is not held on the date designated therefor, the directors shall cause the meeting to be held as soon thereafter as convenient.

A notice of any change in the time or place of a meeting for the election of directors shall be given to each stockholder entitled to vote at the meeting, at least ten days before the election is held, in person or by mail.

SECTION 2. Special Meetings. Special meetings of the stockholders shall be held at the principal office of the corporation in the State of New Jersey, or at such other place within or without the State of New Jersey as may be designated in the notice of said meeting by the Chairman or by the Board of Directors and upon call of the Chairman or the Board of Directors. It shall be the duty of the Chairman or the Board of Directors to order and call such meetings whenever persons holding one-fourth of the capital stock of the corporation outstanding shall in writing request the same. Such special meetings shall be held at such place and in the same manner as in the case of the annual meeting of stockholders.

SECTION 3. Notice and Purpose of Meetings. Notice of the purpose or purposes and of the time and place within or without the State of New Jersey of every meeting of stockholders shall be in writing and signed by the President

 

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or Vice-President or the Secretary or an Assistant Secretary and a copy thereof shall be sent by mail not less than ten days before the meeting, to each stockholder of record entitled to vote at such meeting. Such notice shall be directed to each stockholder at his address as it appears on the stock transfer books. Such further notice shall be given as may be required by law. Except as otherwise expressly provided by statute, no publication of any notice of a meeting of stockholders shall be required. Notice of any meeting of stockholders shall not be required to be given to any stockholder who shall attend such meeting in person or by proxy, or who shall, in person or by attorney thereunto authorized, waive such notice in writing or by telegraph, cable, radio, or wireless either before or after such meeting. Except where otherwise required by law, notice of any adjourned meeting of the stockholders of the corporation shall not be required to be given.

SECTION 4. Quorum. At all meetings of stockholders, unless otherwise determined by law or the Certificate of Incorporation, the presence in person or by proxy of stockholders entitled to cast at least a majority of the votes which all stockholders are entitled to cast on the particular matter, shall constitute a quorum for the purpose of considering such matter. In the absence of a quorum at any meeting or any adjournment thereof, a majority of those

 

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present in person or by proxy and entitled to vote may adjourn such meeting for a period not exceeding twenty days. At any such adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at the meeting as originally called.

SECTION 5. Organization and Conduct. Meetings of the stockholders shall be presided over by the Chairman of the Board, or if he is not present, by the President, or if he is not present, by a Vice-President, or if neither the Chairman, the President or a Vice-President is present, by a Chairman to be chosen by a majority of the stockholders entitled to vote who are present in person or by proxy at the meeting. The Secretary of the corporation, or in his absence, an Assistant Secretary, shall act as Secretary of every meeting.

Meetings of the stockholders shall be conducted in any orderly manner determined by the Chairman of the meeting, and his determination on any point of order and any ruling made by him shall be conclusive and non-reviewable.

SECTION 6. Voting. Except as otherwise provided in the By-Laws, the Certificate of Incorporation, or in the laws of the State of New Jersey, at every meeting of the stockholders, each stockholder of the corporation entitled to vote at such meeting shall have one vote in person or by proxy for each share of stock having voting rights held by

 

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him. Any vote on stock of the corporation may be given by the stockholder entitled thereto in person or by his proxy appointed by an instrument in writing, subscribed by such stockholder or by his attorney thereunto authorized and delivered to the Secretary of the meeting, if he shall so request, provided, however, that no proxy shall be voted on after three years from its date unless said proxy provides for a longer period. Except as otherwise required by statute, by the Certificate of Incorporation or these By-Laws, all matters coming before any meeting of the stockholders shall be decided by the vote of a majority in interest of the stockholders of the corporation present in person or by proxy at such meeting and entitled to vote thereat, a quorum being present. At all elections of directors the voting may but need not be by ballot, and the persons receiving the greatest number of votes shall be the directors of the corporation. The poll at all elections of directors shall be opened in accordance with the laws of the State of New Jersey.

SECTION 7. List of Stockholders and Books. The directors shall cause the Secretary, or other officer designated by them, who has charge of the transfer books and the stock books, to make, at least ten days before every election after the first election, a full, true and complete list, in alphabetical order, of all the stockholders

 

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entitled to vote at the ensuing election, and the post-office address and the number of shares held by each. Such list shall at all times during the usual hours for business be kept at the principal office in the State of New Jersey, open to the examination of any stockholder. Such books shall be the only evidence as to who are the stockholders entitled to examine such books or list, and to vote at the election. The Board of Directors shall produce such books and list at the time and place of election, to remain there during the election. Photographs or microphotographs of such books shall have the same force and effect as the original thereof.

SECTION 8. Inspectors of Election. At all elections of directors, or in any other case in which inspectors may act, two inspectors of election shall be appointed by the Chairman of the meeting. The inspectors of election shall take and subscribe an oath faithfully to execute the duties of inspectors at such meeting with strict impartiality and according to the best of their ability, and shall take charge of the polls and after the vote shall have been taken shall make a certificate of the result thereof, but no director or candidate for the office of director shall be appointed as such inspector. If there be a failure to appoint inspectors or if any inspector appointed be absent or refuse to act, or if his office becomes vacant, the stockholders present at the meeting, by a per capita vote, may choose temporary inspectors of the number required.

 

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In case the right to vote upon any share of stock is questioned, the inspectors of the election shall refer to the stock books of the corporation to ascertain who are the stockholders, and in the case of a discrepancy between the books, the transfer book shall control and determine who are entitled to vote.

ARTICLE II

DIRECTORS

SECTION 1. Powers, Number, Qualification, Term, Quorum, and Vacancies. The property, affairs and business of the corporation shall be managed by its Board of Directors, consisting of not less than three nor more than thirteen persons, the exact number to be determined by resolution of the Board. Except as hereinafter provided, directors shall be chosen at the annual meeting of stockholders and each director shall be chosen to serve for one year and until his successor shall be chosen and qualified in his stead. The directors shall have the power, from time to time, when the stockholders as such are not assembled in a meeting, regular or special, to increase or decrease their own number in accordance with these By-Laws. If the number of directors be increased, the additional directors may be

 

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chosen by a majority of the directors in office at the time of the increase, or if not so chosen prior to the next annual meeting of the stockholders, they shall be chosen by the stockholders.

A majority of the entire Board shall constitute a quorum except when a vacancy or vacancies prevent such majority, whereupon a majority of the directors in office shall constitute a quorum, provided, however, that such majority shall constitute at least one-third of the whole Board but not less than two directors. A majority of the directors present, whether or not a quorum is present, may adjourn a meeting to another time and place. Except as herein otherwise provided, the actions of the Board shall be determined at a meeting duly assembled, by vote of a majority of the directors present at the time of the vote, a quorum being present at such time.

In case one or more vacancies shall occur in the Board of Directors by reason of death, resignation, disqualification or otherwise, except in so far as otherwise provided in the case of a vacancy or vacancies occurring by reason of removal by the stockholders, the remaining directors may, by a majority vote, choose a successor or successors for the unexpired term or terms.

 

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SECTION 2. Meetings. Meetings of the Board of Directors shall be held at such place within or outside the State of New Jersey as may from time to time be fixed by resolution of the Board of Directors, or as may be specified in the notice of the meeting. Regular meetings of the Board of Directors shall be held at such times as may from time to time be fixed by resolution of the Board of Directors, and special meetings may be held at any time upon the call of the Chairman of the Board, the President or any Vice-President or the Secretary or any two directors by oral, telegraphic, or written notice duly served on or sent or mailed to each director not less than two days before such meeting. A meeting of the Board of Directors may be held without notice immediately after the annual meeting of stockholders. Notice need not be given of regular meetings of the Board of Directors held at times fixed by resolution of the Board of Directors. Meetings may be held at any time without notice if all the directors are present, or if at any time before or after the meeting those not present waive notice of the meeting in writing.

SECTION 3. Executive Committee. The Board of Directors may, in its discretion, by the affirmative vote a majority of the whole Board of Directors, appoint an executive committee which shall have and may exercise such powers as shall be conferred or authorized by the resolutions appointing it. A majority of any such committee, if the committee be composed of more than two members, may determine

 

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its action and fix the time and place of its meetings, unless the Board of Directors shall otherwise provide. The Board of Directors shall have power at any time to fill vacancies in, to change the membership of, or to discharge any such committee.

SECTION 4. Removal of Directors. At any special meeting of the stockholders, duly called as provided in these By-Laws, any director or directors may by the affirmative vote of the holders of a majority of all the shares of stock outstanding and entitled to vote for the election of directors be removed from office, either with or without cause, and his successor or their successors may be elected at such meeting; or the remaining directors may, to the extent vacancies are not filled by such election, fill any vacancy or vacancies created by such removal.

ARTICLE III

OFFICERS

SECTION 1. Executive Officers. The executive officers of the corporation shall be chosen by the Board of Directors as soon as may be practicable after the annual meeting of the stockholders. These shall be a Chairman of the Board, (who shall be the principal executive officer of the corporation, and shall be a director), a President, one or more Vice-Presidents (the number thereof to be determined by the Board of Directors), a Secretary and a Treasurer.

 

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The Board of Directors or the Executive Committee may also in its discretion appint other officers, including Assistant Secretaries, Assistant Treasurers, and agents and employees, who shall have such authority and perform such duties as the Board or the Executive Committee may determine. The Board of Directors may fill any vacancy which may occur in any office. Any two offices, except those of President and Vice-President, may be held by the same person, but no officer shall execute, acknowledge or verify any instrument on behalf of the corporation in more than one capacity, if such instrument is required by law or these By-Laws to be executed, acknowledged or verified by two or more officers on behalf of the corporation.

SECTION 2. Term of Office. The term of office of all officers shall be one year and until their respective successors are chosen and qualified. Any officer may be removed from office at any time with or without cause by the vote of a majority of the entire Board of Directors.

SECTION 3. Powers and Duties. The officers of the corporation shall have such powers and duties as generally pertain to their respective offices, as well as such powers and duties as may from time to time be conferred by the Board of Directors or the Executive Committee. The Chairman of the Board, or in his absence the President, shall preside at all meetings of the stockholders.

 

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SECTION 4. Compensation. The officers of the corporation shall receive only such compensation as the Board of Directors may from time to time determine.

SECTION 5. Miscellaneous Provisions. The Board of Directors may require that any officer, agent or employee of the corporation be bonded for the faithful performance of his duties.

ARTICLE IV

CERTIFICATES OF STOCK

SECTION 1. Certificates for stock of the corporation shall be in such form as the Board of Directors may from time to time prescribe and shall be signed by the Chairman or President or a Vice-President and by the Treasurer or Assistant Treasurer, or the Secretary or an Assistant Secretary, and shall bear thereon an impression of the seal of the corporation or a facsimile thereof. The Board of Directors shall appoint a Transfer Agent for the transfer of the stock of the corporation, and also a Registrar for the registration of certificates of stock of the corporation; and the Board of Directors may revoke any such appointment previously made and appoint another Transfer Agent or Registrar in place of the one whose appointment has been revoked. The Board of Directors may appoint the same institution to serve as Registrar and Transfer Agent.

 

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No certificate of stock of any class shall be binding upon the corporation or have any validity unless countersigned by the Transfer Agent and the Registrar of Transfers. In the case of certificates of stock of the corporation countersigned by a Transfer Agent of the corporation and registered by a Registrar of the corporation, the signatures of the officers of the corporation thereon may be facsimiles of their respective autograph signatures, and all of such stock certificates so countersigned and registered and signed in facsimile as aforesaid shall be as valid and effective for all purposes as if the facsimile signatures thereon of such officers were their autograph signatures, and notwithstanding the fact that any such officer whose facsimile signature appears thereon may have ceased to be such officer at the time when any such stock certificates shall be actually issued or delivered.

All certificates shall be consecutively numbered according to the order of registration and denomination. The name and address of the person owning the shares represented thereby, the number of such shares, and the date of issue shall be entered in the books of the corporation.

SECTION 2. The Board of Directors may direct a new certificate or certificates of stock to be issued in the place of any certificate or certificates theretofore issued and alleged to have been lost or destroyed, but the Board of

 

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Directors when authorizing such issue of a new certificate or certificates may, in their discretion, require the owner of the stock represented by the certificate so lost or destroyed, or his legal representative, to furnish proof by affidavit or otherwise to the satisfaction of the Board of Directors as to the ownership of the stock represented by such certificate alleged to have been lost or destroyed and the facts which tend to prove its loss or destruction. The Board of Directors may also require such owner to execute and deliver to the corporation a bond with or without surety, in such sum as the Board may direct, indemnifying the corporation against any claim that may be made against it by reason of the issue of such new certificate or certificates, and against any other liability or loss in the premises.

SECTION 3. Upon compliance with any provisions restricting the transferability of shares that may be set forth in these By-Laws, or in any written agreement between the corporation and the holder in respect thereof, shares of stock of the corporation shall be transferred only on the books of the corporation by the holder thereof in person, or by his attorney, upon the surrender and cancellation of certificates for a like number of shares.

SECTION 4. The Board of Directors may make such rules and regulations as it may deem expedient concerning the issue, transfer and registration of the certificates of stock of the corporation.

 

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SECTION 5. The corporation shall be entitled to treat the holder of record of any share or shares of stock as the holder thereof in fact and shall not be bound to recognize any equitable or other claim to or interest in such shares on the part of any other person, whether or not the corporation shall have express or other notice thereof, except as otherwise expressly provided by law.

SECTION 6. Closing of Transfer Books. The Board of Directors shall have power to close the stock transfer books of the corporation for a period not exceeding fifty days preceding the date of any stockholders’ meeting, or the date on which the consent or dissent of stockholders may be effectively expressed for any purpose without a meeting, or the date fixed for the payment of any dividend or the date for the allotment of rights or the making of any distribution or for the delivery of evidences of rights or evidences of interests arising out of any change, conversion or exchange of capital stock. Provided, however, that in lieu of closing the stock transfer books as aforesaid, the Board of Directors may in its discretion fix a date not exceeding fifty days before the date of any meeting of stockholders, or the last day on which the consent or dissent of stockholders may be effectively expressed for any purpose without

 

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a meeting, or the date fixed for the payment of any dividend or for the allotment of rights or for the delivery of evidences of rights or evidences of interests arising out of any change, conversion or exchange of capital stock, as the time as of which stockholders entitled to notice of and to vote at such meetings or whose consent or dissent is required or may be expressed for any purpose or entitled to receive any such dividend, distribution, rights or interests shall be determined; and all persons who are holders of record of voting stock at such time and no others shall be entitled to notice of and to vote at such meeting or to express their consent or dissent, as the case may be, and only stockholders of record at the time so fixed shall be entitled to receive such dividend, distribution rights or interests.

ARTICLE V

FISCAL YEAR

The fiscal year of the corporation shall begin on the first day of April in each year and shall end on the thirty-first day of March next following, unless otherwise determined by the Board of Directors.

 

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ARTICLE VI

AMENDMENTS

The By-Laws of the corporation shall be subject to alteration, amendment or repeal, and new By-Laws not inconsistent with any provision of the Certificate of Incorporation or statute, may be made, either by the affirmative vote of the holders of a majority in interest of the stockholders of the corporation present in person or by proxy at any annual or special meeting of the stockholders and entitled to vote thereat a quorum being present, or by the affirmative vote of a majority of the whole Board, given at any regular or special meeting of the Board, provided that notice of the proposal so to make, alter, amend, or repeal such By-Laws be included in the notice of such meeting of the Board or the stockholders, as the case may be. By-Laws made, altered, or amended by the Board may be altered, amended, or repealed by the stockholders at any annual or special meeting thereof.

 

- 17 -

Exhibit 3.27

 

				STATE OF DELAWARE
				SECRETARY OF STATE
				DIVISION OF CORPORATIONS
				FILED 11:30 AM 09/20/1994
				944176501 - 2435861

CERTIFICATE OF INCORPORATION

OF

NDT ACQUISITION CORP.

 

1.

The name of this corporation is NDT ACQUISITION CORP.

 

2.

The corporation’s Registered Office in the State of Delaware is to be located at 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.

 

3.

The corporation’s initial Registered Agent in the State of Delaware is The Corporation Trust Company.

 

4.

The purpose of the corporation is to engage in any lawful act or activity for which corporation’s may be organized under the General Corporation Law of Delaware.

 

5.

The total number of shares of capital stock which the corporation is authorized to issue is Fifteen Hundred (1500) shares of common stock, without par value.

 

6.

The name and mailing address of the incorporator is as follows:

Laura L. Warren

1800 Provident Tower

One East Fourth Street

Cincinnati, Ohio 45202

 

7.

The corporation is to have perpetual existence.

I, the undersigned, for the purpose of forming a corporation under the laws of the State of Delaware, do make, file and record this Certificate, and do certify that the facts herein stated are true, and I have accordingly set my hand this 19th day of September, 1994.

 

201465/09/19/94

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CERTIFICATE OF AMENDMENT

OF

CERTIFICATE OF INCORPORATION

BEFORE PAYMENT OF CAPITAL

OF

NDT ACQUISITION CORP.

The undersigned, being the sole incorporator of NDT Acquisition Corp., 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 first paragraph of the Certificate of Incorporation be and it hereby is amended to read as follows:

 

1.

The name of this corporation is ICO Technology, Inc.

SECOND: That the corporation has not received any payment for any of its stock.

THIRD: That the amendment was duly adopted in accordance with the provisions of Section 241 of the General Corporation Law of the State of Delaware.

IN WITNESS WHEREOF, I have signed this certificate this 3rd day of May, 1996.

 

358518.1

 

				STATE OF DELAWARE
				SECRETARY OF STATE
				DIVISION OF CORPORATIONS
				FILED 09:00 AM 05/06/1996
				960131794 - 2435861

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FEB-10-1998    15:54		CT CORPORATION SYSTEM		713 759 1950    P.02/04

 

RESTATED CERTIFICATE OF INCORPORATION

OF

ICO TECHNOLOGY, INC.

ICO Technology, Inc. (the “Corporation”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “DGCL”), hereby adopts this Restated Certificate of Incorporation, which accurately restates and integrates the provisions of the existing Certificate of Incorporation of the Corporation and all amendments thereto that are in effect on the date hereof (the “Certificate of Incorporation”) and further amends the provisions of the Certificate of Incorporation as described below, and does hereby further certify that:

1. The name of the Corporation is ICO Technology, Inc. The original certificate of incorporation of the Corporation (which was then named NDT Acquisition Corp. but which name was subsequently changed to ICO Technology, Inc. pursuant to a Certificate of Amendment to that Certificate of Incorporation) was filed with the Secretary of State of the State of Delaware on September 20, 1994.

2. The Board of Directors of the Corporation duly adopted a resolution proposing and declaring advisable the amendments to the Certificate of Incorporation as described herein, all in accordance with the provisions of Section 241 of the DGCL.

3. The Corporation has not received any payment for any of its stock, and the Corporation has not yet elected any officers.

4. The Certificate of Incorporation is hereby restated and further amended to read in its entirety as follows:

RESTATED CERTIFICATE OF INCORPORATION

FIRST: The name of the corporation is ICO Technology, Inc. (the “Corporation”).

SECOND: The address of the registered office of the Corporation 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.

 

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FEB-10-1998    15:54		CT CORPORATION SYSTEM		713 759 1950    P.03/04

 

THIRD: The purpose of the corporation is to engage in, carry on and conduct any lawful business, act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “DGCL”).

FOURTH: The aggregate number of shares of capital stock that the Corporation shall have authority to issue is one thousand (1,000) shares of common stock, par value $0.01 per share (“Common Stock”). Each share of Common Stock shall entitle the holder thereof to one vote at all meetings of the stockholders of the Corporation. Shares of Common Stock may be issued for such consideration and for such corporate purposes as the Board of Directors of the Corporation may from time to time determine. In the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up of the Corporation, the holders of the Common Stock shall be entitled to receive all the assets of the Corporation, tangible and intangible, of whatever kind available for distribution to stockholders, ratably in proportion to the number of shares of Common Stock held by each.

FIFTH: (1) In General. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors of the Corporation. In addition to the authority and powers conferred upon the Board of Directors of the Corporation by the DGCL or by the provisions of this Certificate of Incorporation, the Board of Directors of the Corporation is hereby authorized and empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject to the provisions of the DGCL, this Restated Certificate of Incorporation and any Bylaws adopted by the stockholders of the Corporation.

(2) Number, Election and Terms of Directors. The number of directors that shall constitute the whole Board of Directors of the Corporation shall be as from time to time fixed by, or in the manner provided in, the Bylaws of the Corporation. Election of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide. Each director shall hold office for the full term for which such director is elected and until such director’s successor shall have been duly elected and qualified or until his earlier death, resignation or removal.

SIXTH: The Board of Directors of the Corporation is expressly empowered to adopt, amend or repeal the Bylaws of the Corporation.

SEVENTH: A director of the Corporation shall not be personally liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (a) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) under Section 174 of the DGCL, as the same exists or hereafter may be amended, supplemented or replaced or (d) for any transaction from which the director derived an improper personal benefit. If the DGCL is amended after the date of filing of this Restated Certificate of Incorporation to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation, in addition to the

 

2

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FEB-10-1998    15:55		CT CORPORATION SYSTEM		713 759 1950    P.04/04

 

limitation on personal liability provided herein, shall be limited to the fullest extent permitted by the amended DGCL. Any repeal or modification of this Article SEVENTH by the stockholders of the Corporation shall be prospective only, and shall not adversely affect any limitation on the personal liability of a director of the Corporation existing at the time of such repeal or modification.

*        *        *

IN WITNESS WHEREOF, ICO Technology, Inc. has caused this certificate to be executed this 9^th day of February, 1998.

 

 

3

TOTAL P.04

Exhibit 3.28

BYLAWS

OF

ICO TECHNOLOGY, INC.

Adopted and Effective

as of

February 4, 1998

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TABLE OF CONTENTS

 

				Page
ARTICLE I
OFFICES
Section 1.		Registered Office			1
Section 2.		Other Offices			1
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1.		Place of Meetings			1
Section 2.		Annual Meetings			1
Section 3.		Special Meetings			1
Section 4.		Quorum			2
Section 5.		Voting			2
Section 6.		List of Stockholders Entitled to Vote			2
ARTICLE III
DIRECTORS
Section 1.		Number and Election of Directors			3
Section 2.		Vacancies			3
Section 3.		Duties and Powers			3
Section 4.		Meetings			3
Section 5.		Quorum			4
Section 6.		Actions by Written Consent			4
Section 7.		Meetings by Conference Telephone			4
Section 8.		Committees			4
Section 9.		Compensation			4
Section 10.		Interested Directors			5
ARTICLE IV
OFFICERS
Section 1.		General			5
Section 2.		Election			5
Section 3.		President			6
Section 4.		Executive Vice Presidents and Vice Presidents			6
Section 5.		Secretary			6

 

-i-

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				Page
Section 6.		Treasurer			7
Section 7.		Assistant Secretaries			7
Section 8.		Assistant Treasurers			7
Section 9.		Other Officers			7
ARTICLE V
STOCK
Section 1.		Form of Certificates			8
Section 2.		Signatures			8
Section 3.		Lost Certificates			8
Section 4.		Transfers			8
ARTICLE VI
NOTICES
Section 1.		Notices			8
Section 2.		Waivers of Notice			9
ARTICLE VII
INDEMNIFICATION
Section 1.		General			9
Section 2.		Insurance			9
ARTICLE VIII
GENERAL PROVISIONS
Section 1.		Dividends			9
Section 2.		Disbursements			10
Section 3.		Fiscal Year			10
Section 4.		Corporate Seal			10
Section 5.		Amendments			10

 

-ii-

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BYLAWS

OF

ICO TECHNOLOGY, INC.

(hereinafter the “Corporation”)

ARTICLE I

OFFICES

Section 1. Registered Office. The Corporation’s registered office in the State of Delaware shall be located at 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.

Section 2. Other Offices. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine.

ARTICLE II

MEETINGS OF STOCKHOLDERS

Section 1. Place of Meetings. Meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and place, either within or without the State of Delaware, as may be designated from time to time by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof.

Section 2. Annual Meetings. The annual meeting of stockholders shall be held on such date and at such time as may be designated from time to time by the Board of Directors and stated in the notice of the meeting, at which meeting the stockholders shall elect by a plurality vote a Board of Directors, and transact such other business as may properly be brought before the meeting. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting.

Section 3. Special Meetings. Unless otherwise prescribed by law or by the Corporation’s Certificate of Incorporation as may be amended and restated from time to time (the

---

“Certificate of Incorporation”), special meetings of stockholders, for any purpose or purposes, may be called by either (a) the Chairman of the Board of Directors, if there be one, or (b) the President, and shall be called by any officer of the Corporation at the instruction of a majority of the Board of Directors. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called shall be given not less than ten nor more than sixty days before the date of the meeting to each stockholder entitled to vote at such meeting.

Section 4. Quorum. Except as otherwise provided by law or by the Certificate of Incorporation, the holders of a majority of the capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted that might have been transacted at the meeting as originally noticed. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting.

Section 5. Voting. Unless otherwise required by law, the Certificate of Incorporation or these bylaws, any question brought before any meeting of stockholders shall be decided by the vote of the holders of a majority of the voting power of the stock represented and entitled to vote thereat. Such votes may be cast in person or by proxy but no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for a longer period. The Board of Directors, in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his or her discretion, may require that any votes cast at such meeting shall be cast by written ballot.

Section 6. List of Stockholders Entitled to Vote. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder of the Corporation who is present. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.

 

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ARTICLE III

DIRECTORS

Section 1. Number and Election of Directors. The business and affairs of the Corporation shall be managed by a Board of Directors initially consisting of one director. The number of directors of the Corporation may be increased or decreased from time to time by resolution adopted by the Board of Directors, but no decrease by the Board of Directors shall have the effect of shortening the term of any incumbent director. Except as provided in Section 2 of this Article III, directors shall be elected by a plurality of the votes cast at annual meetings of stockholders and each director so elected shall hold office until the next annual meeting and until his or her successor is duly elected and qualified or until his or her earlier resignation or removal. Any director may resign at any time upon notice to the Corporation. A director need not be a stockholder, a citizen of the United States or a resident of the State of Delaware.

Section 2. Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and qualified or until their earlier resignation or removal. If there are no directors in office, then an election of directors may be held in the manner provided by statute.

Section 3. Duties and Powers. The business of the Corporation shall be managed by or under the direction of the Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these bylaws directed or required to be exercised or done by the stockholders.

Section 4. Meetings. Meetings shall be held at such time as the Board of Directors shall fix, except that the first meeting of a newly elected Board of Directors shall be held as soon after its election as the directors may conveniently assemble. Meetings shall be held at such place within or without the State of Delaware as may be fixed by the Board of Directors. No call shall be required for regular meetings for which the time and place have been fixed. Special meetings may be called by or at the direction of the Chairman of the Board, if any, the President or a majority of the directors then in office. No notice shall be required for regular meetings for which the time and place have been fixed. Written, oral or any other mode of notice of the time and place shall be given for special meetings in sufficient time for the convenient assembly of the directors thereat. Notice need not be given to any director or to any member of a committee of directors who submits a written waiver of notice signed by him or her before or after the time stated therein. Attendance of any such person at a meeting shall constitute a waiver of notice of such meeting, except when he or she attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the directors need be specified in any written waiver of notice.

 

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Section 5. Quorum. Except as may be otherwise specifically provided by law, the Certificate of Incorporation or these bylaws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

Section 6. Actions by Written Consent. Unless otherwise provided by the Certificate of Incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all the members of the Board of Directors or committee, as the case may be, consent thereto in writing, in one document or in counterparts, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or committee.

Section 7. Meetings by Conference Telephone. Unless otherwise provided by the Certificate of Incorporation or these bylaws, members of the Board of Directors or any committee designated by the Board of Directors may participate in a meeting of the Board of Directors or such committee by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 7 shall constitute presence in person at such meeting.

Section 8. Committees. The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any absent or disqualified member. Any committee, to the extent allowed by law and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. Without limitation to the foregoing, any committee shall have the power and authority to declare a dividend, to authorize the issuance of stock or to adopt a certificate of ownership and merger pursuant to Section 253 of the Delaware General Corporation Law. Each committee shall keep regular minutes and report to the Board of Directors when required.

Section 9. Compensation. Directors as such may receive a stated salary for their services, fixed by resolution of the Board of Directors. In addition, a fixed sum and expenses of attendance, if any, may be allowed for attendance at each regular or special meeting of the Board of Directors or any committee thereof; provided that nothing contained herein shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.

 

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Section 10. Interested Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof that authorizes the contract or transaction, or solely because his, her or their votes are counted for such purpose if (a) the material facts as to his, her or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors be less than a quorum, (b) the material facts as to his, her or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon and the contract or transaction is specifically approved in good faith by vote of the stockholders or (c) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or a committee that authorizes, approves or ratifies the contract or transaction.

ARTICLE IV

OFFICERS

Section 1. General. The officers of the Corporation shall be appointed by the Board of Directors and shall be a President and a Secretary. The Board of Directors, in its discretion, may also appoint a Treasurer and one or more Executive Vice Presidents, Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same person, unless otherwise prohibited by law, the Certificate of Incorporation or these bylaws. The officers of the Corporation need not be stockholders of the Corporation or directors of the Corporation.

Section 2. Election. The Board of Directors at its first meeting held after each annual meeting of stockholders shall elect the officers of the Corporation, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors; and all officers of the Corporation shall hold office until their successors are chosen and qualified or until their earlier resignation or removal. Any officer elected by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors. The salaries of all officers of the Corporation shall be fixed by the Board of Directors and may be altered from time to time except as otherwise provided by contract.

 

-5-

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Section 3. President. The President shall, subject to the control of the Board of Directors, have general supervision of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. He or she shall be the Chief Executive Officer of the Corporation and shall execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except that the other officers of the Corporation may sign and execute documents when so authorized by these bylaws, the Board of Directors or the President. In the absence or disability of the Chairman of the Board of Directors, or if there be none, the President shall preside at all meetings of the stockholders and the Board of Directors. The President shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him or her by these bylaws or by the Board of Directors. In the absence of the appointment of a Treasurer, the duties of the Treasurer, as described in Section 6 of this Article IV, shall be performed by the President.

Section 4. Executive Vice Presidents and Vice Presidents. At the request of the President or in his or her absence or in the event of his or her inability or refusal to act the Executive Vice President or the Executive Vice Presidents if there be more than one, and the Vice President or the Vice Presidents, if there be more than one (in the order designated by the Board of Directors), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Each Executive Vice President and each Vice President shall perform such other duties and have such other powers as the Board of Directors from time to time may prescribe. If there be no Executive Vice President or Vice President, the Board of Directors shall designate the officer of the Corporation who, in the absence of the President or in the event of the inability or refusal of the President to act, shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President.

Section 5. Secretary. The Secretary shall attend all meetings of the Board of Directors and all meetings of stockholders and record all the proceedings thereat in a book or books to be kept for that purpose; the Secretary shall also perform like duties for the standing committees when required. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or President, under whose supervision he or she shall be. If the Secretary shall be unable or shall refuse to cause to be given notice of all meetings of the stockholders and special meetings of the Board of Directors, and if there be no Assistant Secretary, then either the Board of Directors or the President may choose another officer to cause such notice to be given. The Secretary shall have custody of the seal of the Corporation and the Secretary or an Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his or her signature. The Secretary shall see that all books, reports, statements, certificates and other documents and records required by law to be kept or filed are properly kept or filed, as the case may be.

 

-6-

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Section 6. Treasurer. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board of Directors, at its regular meeting, or when the Board of Directors so requires, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his or her office and for the restoration to the Corporation, in case of his or her death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her possession or under his or her control belonging to the Corporation.

Section 7. Assistant Secretaries. Except as may be otherwise provided in these bylaws, Assistant Secretaries, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the President, any Executive Vice President, if there be one, any Vice President, if there be one, or the Secretary, and in the absence of the Secretary or in the event of his or her disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Secretary.

Section 8. Assistant Treasurers. Assistant Treasurers, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the President, any Executive Vice President, if there be one, any Vice President, if there be one, or the Treasurer, and in the absence of the Treasurer or in the event of his or her disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his or her office and for the restoration to the Corporation, in case of his or her death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her possession or under his or her control belonging to the Corporation.

Section 9. Other Officers. Such other officers as the Board of Directors may choose shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers.

 

-7-

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ARTICLE V

STOCK

Section 1. Form of Certificates. Every holder of stock in the Corporation shall be entitled to have a certificate signed in the name of the Corporation (a) by the President, an Executive Vice President or a Vice President and (b) by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, certifying the number of shares owned by such holder.

Section 2. Signatures. Where a certificate is countersigned by (a) a transfer agent other than the Corporation or its designated employees or (b) a registrar other than the Corporation or its designated employees, any other signature on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue.

Section 3. Lost Certificates. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his or her legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.

Section 4. Transfers. Stock of the Corporation shall be transferable in the manner prescribed by law and in these bylaws. Transfers of stock shall be made on the books of the Corporation only by the person named in the certificate or by his or her attorney lawfully constituted in writing and upon the surrender of the certificate therefor, which shall be cancelled before a new certificate shall be issued.

ARTICLE VI

NOTICES

Section 1. Notices. Whenever written notice is required by law, the Certificate of Incorporation or these bylaws to be given to any director, member of a committee or stockholder, such notice may be given by mail, addressed to such director, member of a committee or

 

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stockholder, at his or her address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Written notice may also be given personally or by facsimile transmission, telegram, telex or cable.

Section 2. Waivers of Notice. Whenever any notice is required by law, the Certificate of Incorporation or these bylaws to be given to any director, member of a committee or stockholder, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to notice.

ARTICLE VII

INDEMNIFICATION

Section 1. General. Each person who at any time shall serve, or shall have served, as a director, officer, employee or agent of the Corporation, or any person who, while a director, officer, employee or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, shall be entitled to indemnification as, and to the fullest extent, permitted by Section 145 of the Delaware General Corporation Law or any successor statutory provision, as from time to time amended. The foregoing right of indemnification shall not be deemed exclusive of any other rights to which those to be indemnified may be entitled as a matter of law or under any agreement, vote of shareholders or disinterested directors, or other arrangement.

Section 2. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise against any liability asserted against him and incurred by him in such capacity or arising out of his status as such a person, whether or not the Corporation would have the power to indemnify him against that liability under this Article VII or the Delaware General Corporation Law.

ARTICLE VIII

GENERAL PROVISIONS

Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, and may be paid in cash, in property or in shares of the

 

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capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve.

Section 2. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.

Section 3. Fiscal Year. The fiscal year of the Corporation shall end on September 30 of each year, unless otherwise fixed by resolution of the Board of Directors.

Section 4. Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced.

Section 5. Amendments. These bylaws may be altered, amended or repealed, in whole or in part, or new bylaws may be adopted by the stockholders or by the Board of Directors of the Corporation.

 

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Exhibit 3.29

CERTIFICATE OF MERGER

MERGING

LPI MERGER SUB, INC.,

a Delaware corporation

WITH AND INTO

LPI HOLDING COMPANY,

a Delaware corporation

(Under Section 251 of the General Corporation Law of the State of Delaware)

Pursuant to Section 251(c) of the General Corporation Law of the State of Delaware, as amended (the “DGCL”), LPI Holding Company, a Delaware corporation (the “Company”), in connection with the merger (the “Merger”) of LPI Merger Sub, Inc., a Delaware corporation (“Merger Sub”), with and into the Company, hereby certifies as follows:

FIRST: The names and states of incorporation of the constituent corporations to the Merger (the “Constituent Corporations”) are:

 

Name		State of Incorporation
LPI Holding Company		Delaware
LPI Merger Sub, Inc.		Delaware

SECOND: An Agreement and Plan of Merger, dated as of December 6, 2013 (the “Merger Agreement”), by and among The Matrixx Group, Incorporated, an Indiana corporation, Merger Sub, the Company, certain stockholders of the Company named therein both as Sellers (as defined in the Merger Agreement) and, solely for purposes of making the representations and warranties in Article IV thereof, as Representing Sellers (as defined in the Merger Agreement), and River Associates Investments, LLC, a Tennessee limited liability company, solely in its capacity as the representative of the Sellers, setting forth the terms and conditions of the Merger, has been approved, adopted, executed and acknowledged by each of the Constituent Corporations in accordance with Sections 228 and 251 of the DGCL.

THIRD: The Company shall be the surviving corporation in the Merger. The name of the surviving corporation is “LPI Holding Company”.

FOURTH: The Amended and Restated Certificate of Incorporation of the Company, as in effect immediately prior to the effective time of the Merger, shall be amended and restated upon the effectiveness of the Merger to read, in its entirety, as set forth on Exhibit A hereto, and, as so amended and restated, shall be the Certificate of Incorporation of the surviving corporation.

FIFTH: The Merger shall become effective upon the filing of this Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the DGCL.

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SIXTH: An executed copy of the Merger Agreement is on file at the office of the surviving corporation at:

LPI Holding Company

1700 Lynch Road

Evansville, IN 47711

SEVENTH: A copy of the Merger Agreement will be furnished by the surviving corporation, on request and without cost, to any stockholder of either of the Constituent Corporations.

*      *      *      *       *

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

 

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IN WITNESS WHEREOF, the undersigned, on behalf of the Company and not as an individual, for the purpose of effectuating the Merger of the Constituent Corporations, pursuant to the DGCL, under penalties of perjury, does hereby declare and certify that this is the act and deed of the Company and the facts stated herein are true and accordingly has hereunto signed this Certificate of Merger this      day of December, 2013.

 

(DE Certificate of Merger -

LPI Merger Sub, Inc. with and into LPI Holding Company)

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Exhibit A

SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

LPI HOLDING COMPANY

ARTICLE ONE

The name of the corporation is LPI Holding Company.

ARTICLE TWO

The address of the corporation’s registered office in the State of Delaware is 160 Greentree Drive, Suite 101, in the City of Dover, County of Kent, Delaware 19904. The name of its registered agent at such address is National Registered Agents, Inc.

ARTICLE THREE

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 the State of Delaware.

ARTICLE FOUR

The total number of shares of stock which the corporation has authority to issue is one thousand (1,000) shares of Common Stock, with a par value of $0.01 per share.

ARTICLE FIVE

The corporation is to have perpetual existence.

ARTICLE SIX

In furtherance and not in limitation of the powers conferred by statute, the board of directors of the corporation is expressly authorized to make, alter or repeal the by-laws of the corporation.

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ARTICLE SEVEN

Meetings of stockholders may be held within or without the State of Delaware, as the by-laws of the corporation may provide. The books of the corporation may be kept 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 by-laws of the corporation. Election of directors need not be by written ballot unless the by-laws of the corporation so provide.

ARTICLE EIGHT

To the fullest extent permitted by the General Corporation Law of the State of Delaware 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 a breach of fiduciary duty as a director. Any repeal or modification of this ARTICLE EIGHT shall not adversely affect any right or protection of a director of the corporation existing at the time of such repeal or modification.

ARTICLE NINE

The corporation expressly elects not to be governed by Section 203 of the General Corporation Law of the State of Delaware.

ARTICLE TEN

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 herein and by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation.

 

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Exhibit 3.30

THIRD AMENDED AND RESTATED BY-LAWS

OF

LPI HOLDING COMPANY

A Delaware corporation

(Adopted as of December 6, 2013)

ARTICLE I

OFFICES

Section 1 Registered Office. The registered office of the corporation in the State of Delaware shall be located at 160 Greentree Drive, Suite 101, City of Dover, County of Kent, Delaware 19904. The name of the corporation’s registered agent at such address shall be National Registered Agents, Inc. The registered office and/or registered agent of the corporation may be changed from time to time by action of the board of directors.

Section 2 Other Offices. The corporation may also have offices at such other places, both within and without the State of Delaware, as the board of directors may from time to time determine or the business of the corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

Section 1 Annual Meetings. An annual meeting of the stockholders shall be held each year within one hundred twenty (120) days after the close of the immediately preceding fiscal year of the corporation for the purpose of electing directors and conducting such other proper business as may come before the meeting. The date, time and place, if any, and/or the means of remote communication, of the annual meeting shall be determined by the board of directors of the corporation. No annual meeting of stockholders need be held if not required by the corporation’s certificate of incorporation or by the General Corporation Law of the State of Delaware.

Section 2 Special Meetings. Special meetings of stockholders may be called for any purpose (including, without limitation, the filling of board vacancies and newly created directorships) and may be held at such time and place, within or without the State of Delaware, and/or by means of remote communication, as shall be stated in a written notice of meeting or in a duly executed waiver of notice thereof. Such meetings may be called at any time by the board of directors or the president and shall be called by the president upon the written request of holders of shares entitled to cast not less than a majority of the votes at the meeting, which written request shall state the purpose or purposes of the meeting and shall be delivered to the president. The date, time and place, if any, and/or remote communication, of any special meeting of stockholders shall be determined by the board of directors of the corporation. On such written request, the president shall fix a date and time for such meeting within 10 days after receipt of a request for such meeting in such written request.

Section 3 Place of Meetings. The board of directors may designate any place, either within or without the State of Delaware, and/or by means of remote communication, as the place of meeting for any annual meeting or for any special meeting called by the board of directors. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal executive office of the corporation.

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Section 4 Notice. Whenever stockholders are required or permitted to take any action at a meeting, written or printed notice stating the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of special meetings, the purpose or purposes, of such meeting, shall be given to each stockholder entitled to vote at such meeting and to each director not less than 10 nor more than 60 days before the date of the meeting. All such notices shall be delivered, either personally, by mail, or by a form of electronic transmission consented to by the stockholder to whom the notice is given, by or at the direction of the board of directors, the president or the secretary, and if mailed, such notice shall be deemed to be delivered when deposited in the United States mail, postage prepaid, addressed to the stockholder at his, her or its address as the same appears on the records of the corporation. If given by electronic transmission, such notice shall be deemed to be delivered (a) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; (b) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (c) if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (1) such posting and (2) the giving of such separate notice; and (3) if by any other form of electronic transmission, when directed to the stockholder. Any such consent shall be revocable by the stockholder by written notice to the corporation. Any such consent shall be deemed revoked if (1) the corporation is unable to deliver by electronic transmission two consecutive notices given by the corporation in accordance with such consent and (2) such inability becomes known to the secretary or an assistant secretary of the corporation or to the transfer agent. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened.

Section 5 Stockholders List. The officer who has charge of the stock ledger of the corporation shall make, at least 10 days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at such meeting arranged in alphabetical order, showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, and/or (ii) during ordinary business hours, at the principal place of business of the corporation. In the event that the corporation determines to make the list available on an electronic network, the corporation may take reasonable steps to ensure that such information is available only to stockholders of the corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.

Section 6 Quorum. The holders of a majority of the issued and outstanding shares of capital stock, entitled to vote thereon, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders, except as otherwise provided by statute or by the corporation’s certificate of incorporation. If a quorum is not present, the holders of a majority of the shares present in person or represented by proxy at the meeting, and entitled to vote at the meeting, may adjourn the meeting to another time and/or place.

Section 7 Adjourned Meetings. When a meeting is adjourned to another time and place, notice need not be given of the adjourned meeting if the time, place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in

 

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person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

Section 8 Vote Required. When a quorum is present, the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders, unless the question is one upon which by express provisions of an applicable law or of the corporation’s certificate of incorporation a different vote is required, in which case such express provision shall govern and control the decision of such question.

Section 9 Voting Rights. Except as otherwise provided by the General Corporation Law of the State of Delaware or by the corporation’s certificate of incorporation or any amendments thereto and subject to Section 3 of Article VI hereof, every stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of common stock held by such stockholder.

Section 10 Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally. Any proxy is suspended when the person executing the proxy is present at a meeting of stockholders and elects to vote, except that when such proxy is coupled with an interest and the fact of the interest appears on the face of the proxy, the agent named in the proxy shall have all voting and other rights referred to in the proxy, notwithstanding the presence of the person executing the proxy. At each meeting of the stockholders, and before any voting commences, all proxies filed at or before the meeting shall be submitted to and examined by the secretary or a person designated by the secretary, and no shares may be represented or voted under a proxy that has been found to be invalid or irregular.

Section 11 Action by Written Consent. Unless otherwise provided in the corporation’s certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken and bearing the dates of signature of the stockholders who signed the consent or consents, shall be 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 and shall be delivered to the corporation by delivery to its registered office in the state of Delaware, or the corporation’s principal place of business, or an officer or agent of the corporation having custody of the book or books in which proceedings of meetings of the stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested or by reputable overnight courier service. All consents properly delivered in accordance with this section shall be deemed to be recorded when so delivered. No written consent shall be effective to take the corporate action referred to therein unless, within 60 days after the earliest dated consent delivered to the corporation as required by this section, written consents signed by the holders of a sufficient number of shares to take such corporate action are so recorded. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Any action taken pursuant to such written consent or consents of the stockholders shall have the same force and effect as if taken by the stockholders at a meeting thereof.

 

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Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used; provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing.

Section 12 Action by Facsimile, Email or Other Electronic Transmission Consent. A facsimile, email or other electronic transmission by a stockholder or proxyholder (or by any person authorized to act on such person’s behalf) of a proxy or a written consent to an action to be taken (including the delivery of such a document in the .pdf, .tif, .gif, .peg or similar format attached to an email message) shall be deemed to be written, signed, dated and delivered to the corporation for the purposes of this Article; provided that any such facsimile, email or other electronic transmission sets forth or is delivered with information from which the corporation can determine (A) that the facsimile, email or other electronic transmission was transmitted by the stockholder or proxyholder or by a person authorized to act for the stockholder or proxyholder and (B) the date on which such stockholder or proxyholder or authorized person transmitted such facsimile, email or other electronic transmission. The date on which such facsimile, email or other electronic transmission is transmitted shall be deemed to be the date on which such consent or proxy was signed. Any such facsimile, email or other electronic transmission of a consent or proxy shall be treated in all respects as an original executed consent or proxy and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of the board of directors or the Secretary of the corporation, each stockholder, proxyholder or other authorized person who delivered a consent or proxy by facsimile, email or other electronic transmission shall re-execute the original form thereof and deliver such original to the corporation at its registered office in the State of Delaware, its principal place of business or to an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. No consent given by facsimile, email or other electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper form shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded.

ARTICLE III

DIRECTORS

Section 1 General Powers. The business and affairs of the corporation shall be managed by or under the direction of the board of directors.

Section 2 Number, Election and Term of Office. The number of directors which shall constitute the board shall be four (4). Thereafter, the number of directors shall be established from time to time by resolution of the board or by resolution of the stockholders. The directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote in the election of directors. The directors shall be elected in this manner at the annual meeting of the stockholders, except as otherwise provided in Section 4 of this Article III. Each director elected shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.

Section 3 Removal and Resignation. Any director or the entire board of directors may be removed at any time, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors. Whenever the holders of any class or series are entitled to elect one or more

 

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directors by the provisions of the corporation’s certificate of incorporation, the provisions of this section shall apply, in respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole. Any director may resign at any time upon notice given in writing or by electronic transmission to the corporation.

Section 4 Vacancies. Except as otherwise provided in the corporation’s certificate of incorporation, board vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director. Each director so chosen shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as herein provided.

Section 5 Annual Meetings. The annual meeting of each newly elected board of directors shall be held without notice (other than notice under these by-laws) immediately after, and at the same place, if any, as the annual meeting of stockholders.

Section 6 Other Meetings and Notice. Regular meetings, other than the annual meeting, of the board of directors may be held without notice at such time and at such place, if any, as shall from time to time be determined by resolution of the board of directors and promptly communicated to all directors then in office. Special meetings of the board of directors may be called by or at the request of the president or any director on at least 24 hours notice to each director, either personally, by telephone, by mail or by electronic transmission.

Section 7 Quorum, Required Vote and Adjournment. A majority of the total number of directors then in office authorized shall constitute a quorum for the transaction of business. The vote of a majority of directors present at a meeting at which a quorum is present shall be the act of the board of directors. If a quorum shall not be present at any meeting of the board of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Except as otherwise required by the corporation’s certificate of incorporation, each director shall be entitled to one vote on exactly the matter presented to the board for approval.

Section 8 Committees. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation, which to the extent provided in such resolution or these by-laws shall have and may exercise the powers of the board of directors in the management and affairs of the corporation, except as otherwise limited by law. The board of directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required.

Section 9 Committee Rules. Each committee of the board of directors may fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may otherwise be provided by a resolution of the board of directors designating such committee. Unless otherwise provided in such a resolution, the presence of a majority of the members of the committee then in office shall be necessary to constitute a quorum. In the event that a member and that member’s alternate, if alternates are designated by the board of directors as provided in Section 8 of this Article III, of such committee is or are absent or disqualified, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of any such absent or disqualified member.

 

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Section 10 Communications Equipment. Members of the board of directors or any committee thereof may participate in and act at any meeting of such board or committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in the meeting pursuant to this section shall constitute presence in person at the meeting.

Section 11 Waiver of Notice and Presumption of Assent. Any member of the board of directors or any committee thereof who is present at a meeting shall be conclusively presumed to have waived notice of such meeting, except when such member attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Such member shall be conclusively presumed to have assented to any action taken unless his or her dissent shall be entered in the minutes of the meeting or unless his or her written dissent to such action shall be filed with the person acting as the secretary of the meeting before the adjournment thereof or shall be forwarded by registered mail to the secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to any member who voted in favor of such action.

Section 12 Action by Written Consent. Unless otherwise restricted by the corporation’s certificate of incorporation, any action required or permitted to be taken at any meeting of the board of directors, or of any committee thereof, may be taken without a meeting if all members of the board or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the board, or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

ARTICLE IV

OFFICERS

Section 1 Number. The officers of the corporation shall be elected by the board of directors and shall consist of a president, a vice president, a secretary, and such other officers and assistant officers as may be deemed necessary or desirable by the board of directors. Any number of offices may be held by the same person. In its discretion, the board of directors may choose not to fill any office for any period as it may deem advisable.

Section 2 Election and Term of Office. The officers of the corporation shall be elected annually by the board of directors at its first meeting held after each annual meeting of stockholders or as soon thereafter as conveniently may be. Vacancies may be filled or new offices created and filled at any meeting of the board of directors. Each officer shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.

Section 3 Removal. Any officer or agent elected by the board of directors may be removed by the board of directors whenever in its judgment the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed.

Section 4 Vacancies. Any vacancy occurring in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the board of directors for the unexpired portion of the term by the board of directors then in office.

 

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Section 5 Compensation. Compensation of all officers shall be fixed by the board of directors, and no officer shall be prevented from receiving such compensation by virtue of his or her also being a director of the corporation.

Section 6 The President. The president shall be the chief executive officer of the corporation; in the absence of the chairman of the board, shall preside at all meetings of the stockholders and board of directors at which he or she is present; subject to the powers of the board of directors, shall have general charge of the business, affairs and property of the corporation, and control over its officers, agents and employees; and shall see that all orders and resolutions of the board of directors are carried into effect. The president shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. The president shall have such other powers and perform such other duties as may be prescribed by the board of directors or as may be provided in these by-laws.

Section 7 Vice-presidents. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, act with all of the powers and be subject to all the restrictions of the president. The vice-presidents shall also perform such other duties and have such other powers as the board of directors, the president or these by-laws may, from time to time, prescribe.

Section 8 Secretary and Assistant Secretaries. The secretary shall attend all meetings of the board of directors, all meetings of the committees thereof and all meetings of the stockholders and record all the proceedings of the meetings in a book or books to be kept for that purpose. Under the president’s supervision, the secretary shall give, or cause to be given, all notices required to be given by these by-laws or by law, shall have such powers and perform such duties as the board of directors, the president or these by-laws may, from time to time, prescribe, and shall have custody of the corporate seal of the corporation. The secretary, or an assistant secretary, shall have authority to affix the corporate seal to any instrument requiring it and when so affixed, it may be attested by his or her signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his or her signature. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors, the president, or secretary may, from time to time, prescribe.

Section 9 Other Officers, Assistant Officers and Agents. Officers, assistant officers and agents, if any, other than those whose duties are provided for in these by-laws, shall have such authority and perform such duties as may from time to time be prescribed by resolution of the board of directors.

Section 10 Absence or Disability of Officers. In the case of the absence or disability of any officer of the corporation and of any person hereby authorized to act in such officer’s place during such officer’s absence or disability, the board of directors may by resolution delegate the powers and duties of such officer to any other officer or to any director, or to any other person whom it may select.

ARTICLE V

INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS

Section 1 Nature of Indemnity. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether brought by or in the right of the corporation or any of its subsidiaries and whether civil, criminal, administrative or investigative

 

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(hereinafter a “proceeding”), or any appeal of such proceeding, by reason of or arising out of the fact that such person, or any other person for whom such person is the legal representative, is or was a director or officer of the corporation or is or was serving at the request of the corporation as a director, officer, manager, general partner, employee, fiduciary, or agent of another corporation or of a partnership, limited liability company, joint venture, trust or other enterprise, shall be indemnified and held harmless by the corporation to the fullest extent which it is empowered to do so unless prohibited from doing so by the General Corporation Law of the State of Delaware, 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) against all expense, liability and loss (including attorneys’ fees actually and reasonably incurred by such person in connection with such proceeding) and such indemnification shall inure to the benefit of his or her heirs, executors and administrators; provided that, with respect to any former director or officer of the corporation who resigned or was replaced on or prior to the date on which these by-laws are adopted, such person shall be indemnified solely to the extent of coverage actually provided under the corporation’s run-off or tail insurance policies effective as of December 6, 2013; provided, further, that, except as provided in Section 2 of this Article V, the corporation shall indemnify any such person seeking indemnification in connection with a proceeding initiated by such person only if such proceeding was authorized by the board of directors of the corporation. The right to indemnification conferred in this Article V shall be a contract right and, subject to Sections 2 and 5 hereof, shall include the right to be paid by the corporation the expenses incurred in defending any such proceeding in advance of its final disposition. The corporation may, by action of its board of directors, provide indemnification to employees and agents of the corporation with the same scope and effect as the foregoing indemnification of directors and officers.

Section 2 Procedure for Indemnification of Directors and Officers. Any indemnification of a director or officer of the corporation provided for under Section 1 of this Article V or advance of expenses provided for under Section 5 of this Article V shall be made promptly, and in any event within 30 days, upon the written request of the director or officer. If a determination by the corporation that the director or officer is entitled to indemnification pursuant to this Article V is required, and the corporation fails to respond within 60 days to a written request for indemnity, the corporation shall be deemed to have approved the request. If the corporation wrongfully denies a written request for indemnification or advancing of expenses, in whole or in part, or if payment in full pursuant to such request is not properly made within 30 days, the right to indemnification or advances as granted by this Article V shall be enforceable by the director or officer in any court of competent jurisdiction. Such person’s costs and expenses incurred in connection with successfully establishing his or her right to indemnification, in whole or in part, in any such action shall also be indemnified by the corporation; provided that, with respect to any former director or officer of the corporation who resigned or was replaced on or prior to the date on which these by-laws are adopted, such person shall be indemnified solely to the extent of coverage actually provided under the corporation’s run-off or tail insurance policies effective as of December 6, 2013. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any, has been tendered to the corporation) that the claimant has not met the standards of conduct which make it permissible under the General Corporation Law of the State of Delaware for the corporation to indemnify the claimant for the amount claimed, but the burden of such defense shall be on the corporation. Neither the failure of the corporation (including its board of directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the corporation (including its board of directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

 

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Section 3 Article Not Exclusive. The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article V shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the corporation’s certificate of incorporation, by-law, agreement, vote of stockholders or disinterested directors or otherwise.

Section 4 Insurance. The corporation may purchase and maintain insurance on its own behalf and on behalf of any person who is or was a director, officer, employee, fiduciary, or agent of the corporation or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, whether or not the corporation would have the power to indemnify such person against such liability under this Article V.

Section 5 Expenses. Expenses incurred by any person described in Section 1 of this Article V in defending a proceeding shall be paid by the corporation in advance of such proceeding’s final disposition unless otherwise determined by the board of directors in the specific case upon receipt of an undertaking by or on behalf of the director or officer or other person to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the board of directors deems appropriate.

Section 6 Employees and Agents. Persons who are not covered by the foregoing provisions of this Article V and who are or were employees or agents of the corporation, or who are or were serving at the request of the corporation as employees or agents of another corporation, partnership, joint venture, trust or other enterprise, may be indemnified, and may be advanced expenses, to the extent authorized at any time or from time to time by the board of directors.

Section 7 Contract Rights. The provisions of this Article V shall be deemed to be a vested contract right between the corporation and each director and officer who serves in any such capacity at any time while this Article V and the relevant provisions of the General Corporation Law of the State of Delaware or other applicable law are in effect. Such contract right shall vest for each director and officer at the time such person is elected or appointed to such position, and no repeal or modification of this Article V or any such law shall affect any such vested rights or obligations of any current or former director or officer with respect to any state of facts or proceeding regardless of when occurring.

Section 8 Merger or Consolidation. For purposes of this Article V, references to “the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Article V with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued.

 

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ARTICLE VI

CERTIFICATES OF STOCK

Section 1 Form. Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in the name of the corporation by the chief executive officer, president or a vice-president and the secretary or an assistant secretary of the corporation, certifying the number of shares owned by such holder in the corporation. If such a certificate is countersigned (1) by a transfer agent or an assistant transfer agent other than the corporation or its employee or (2) by a registrar, other than the corporation or its employee, the signature of any such president, vice-president, secretary, or assistant secretary may be facsimiles. In case any officer or officers who have signed, or whose facsimile signature or signatures have been used on, any such certificate or certificates shall cease to be such officer or officers of the corporation whether because of death, resignation or otherwise before such certificate or certificates have been delivered by the corporation, such certificate or certificates may nevertheless be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon had not ceased to be such officer or officers of the corporation. All certificates for shares shall be consecutively numbered or otherwise identified. The name of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the books of the corporation. Shares of stock of the corporation shall only be transferred on the books of the corporation by the holder of record thereof or by such holder’s attorney duly authorized in writing, upon surrender to the corporation of the certificate or certificates for such shares endorsed by the appropriate person or persons, with such evidence of the authenticity of such endorsement, transfer, authorization, and other matters as the corporation may reasonably require, and accompanied by all necessary stock transfer stamps. In that event, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate or certificates, and record the transaction on its books. The board of directors may appoint a bank or trust company organized under the laws of the United States or any state thereof to act as its transfer agent or registrar, or both in connection with the transfer of any class or series of securities of the corporation.

Section 2 Lost Certificates. The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates previously issued by the corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or destroyed. When authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen, or destroyed certificate or certificates, or his or her legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against the corporation on account of the loss, theft or destruction of any such certificate or the issuance of such new certificate.

Section 3 Fixing a Record Date for Stockholder Meetings. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. If no record date is fixed by the board of directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be the close of business on the next day preceding the day on which notice is given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided that the board of directors may fix a new record date for the adjourned meeting.

 

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Section 4 Fixing a Record Date for Action by Written Consent. In order that the corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which date shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the board of directors. If no record date has been fixed by the board of directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is required by statute, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the board of directors and prior action by the board of directors is required by statute, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action.

Section 5 Fixing a Record Date for Other Purposes. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment or any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purposes of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto.

Section 6 Registered Stockholders. Prior to the surrender to the corporation of the certificate or certificates for a share or shares of stock with a request to record the transfer of such share or shares, the corporation may treat the registered owner as the person entitled to receive dividends, to vote, to receive notifications, and otherwise to exercise all the rights and powers of an owner. The corporation shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof.

Section 7 Subscriptions for Stock. Unless otherwise provided for in the subscription agreement, subscriptions for shares shall be paid in full at such time, or in such installments and at such times, as shall be determined by the board of directors. Any call made by the board of directors for payment on subscriptions shall be uniform as to all shares of the same class or as to all shares of the same series. In case of default in the payment of any installment or call when such payment is due, the corporation may proceed to collect the amount due in the same manner as any debt due the corporation.

ARTICLE VII

GENERAL PROVISIONS

Section 1 Dividends. Dividends upon the capital stock of the corporation, subject to the provisions of the corporation’s certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the corporation’s certificate of incorporation. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or any other purpose and the directors may modify or abolish any such reserve in the manner in which it was created.

 

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Section 2 Checks, Drafts or Orders. All checks, drafts, or other orders for the payment of money by or to the corporation and all notes and other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such manner, as shall be determined by resolution of the board of directors or a duly authorized committee thereof.

Section 3 Contracts. The board of directors may authorize any officer or officers, or any agent or agents, of the corporation to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances.

Section 4 Loans. The corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or of its subsidiary, including any officer or employee who is a director of the corporation or its subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to benefit the corporation. The loan, guaranty or other assistance may be with or without interest, and may be unsecured, or secured in such manner as the board of directors shall approve, including, without limitation, a pledge of shares of stock of the corporation. Nothing in this section contained shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute.

Section 5 Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the board of directors.

Section 6 Corporate Seal. The board of directors shall provide a corporate seal which shall be in the form of a circle and shall have inscribed thereon the name of the corporation and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

Section 7 Voting Securities Owned By Corporation. Voting securities in any other corporation or other entity (such as a limited liability company, limited partnership or trust) held by the corporation shall be voted as directed by the board of directors, unless the board of directors specifically confers authority to vote with respect thereto, which authority may be general or confined to specific instances, upon some other person or officer. Any person authorized to vote securities shall have the power to appoint proxies, with general power of substitution.

Section 8 Inspection of Books and Records. Any stockholder of record, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the corporation’s stock ledger, a list of its stockholders, and its other books and records, and to make copies or extracts therefrom. A proper purpose shall mean any purpose reasonably related to such person’s interest as a stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the corporation at its registered office in the State of Delaware or at its principal place of business.

Section 9 Exclusive Jurisdiction. Unless otherwise waived by resolution of the Board, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative

 

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action or proceeding brought on behalf of the corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the corporation to the corporation or the corporation’s stockholders, (iii) any action asserting a claim against the corporation arising pursuant to any provision of the General Corporation Law of the State of Delaware or the corporation’s certificate of incorporation or by-laws or (iv) any action asserting a claim against the corporation governed by the internal affairs doctrine.

Section 10 Section Headings. Section headings in these by-laws are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein.

Section 11 Inconsistent Provisions. In the event that any provision of these by-laws is or becomes inconsistent with any provision of the corporation’s certificate of incorporation, the General Corporation Law of the State of Delaware or any other applicable law, the provision of these by-laws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect.

ARTICLE VIII

AMENDMENTS

These by-laws may be amended, altered, or repealed and new by-laws adopted at any meeting of the board of directors by a majority vote. The fact that the power to adopt, amend, alter, or repeal the by-laws has been conferred upon the board of directors shall not divest the stockholders of the same powers.

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Exhibit 3.31

 

		State of Delaware Secretary of State Division of Corporations Delivered 02:36 PM 06/21/2005 FILED 02:26 PM 06/21/2005 SRV 050515649 – 3988723 FILE

CERTIFICATE OF INCORPORATION

OF

LUCENT ACQUISITION CORPORATION

I, the undersigned, for the purpose of incorporating and organizing a corporation under the General Corporation Law of the State of Delaware (the “Act”) do execute this Certificate of Incorporation and do hereby certify as follows:

ARTICLE I

NAME OF THE CORPORATION

The name of the Corporation is Lucent Acquisition Corporation.

ARTICLE II

REGISTERED OFFICE AND AGENT

The address of the Corporation’s registered office in the State of Delaware is 160 Greentree Drive, Suite 101, Dover, Kent County, Delaware 19904. The name of its registered agent at such address is National Registered Agents, Inc.

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 Act.

ARTICLE IV

CAPITAL STOCK

The total number of shares that the Corporation is authorized to issue is One Hundred (100) shares, $0.01 par value. The stock shall be designated “Common Stock.” The holders of Common Stock shall be entitled to one vote per share upon all matters voted upon by the stockholders of the Corporation.

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ARTICLE V

AUTHORITY OF BOARD OF DIRECTORS

The board of directors of the Corporation is authorized to adopt, amend or repeal the bylaws of the Corporation in the manner provided in the bylaws of the Corporation.

ARTICLE VI

INCORPORATOR

The name and mailing address of the incorporator is Jonathan F. Kent, 1000 Volunteer Building, 832 Georgia Avenue, Chattanooga, Tennessee 37402-2289.

ARTICLE VII

LIABILITY OF DIRECTORS

No director of the Corporation shall be personally liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (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 law, (iii) under Section 174 of the Act, or (iv) for any transaction from which the director derived an improper personal benefit. If the Act is amended after the filing of this Certificate of Incorporation to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Act, as so amended. Any repeal or modification of this Article VII by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.

ARTICLE VIII

INDEMNIFICATION

The Corporation shall have the power to indemnify its directors to the fullest extent permitted by law.

IN WITNESS WHEREOF, I have made, signed and sealed this Certificate of Incorporation this 20th day of June, 2005.

 

 

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ARTICLES OF AMENDMENT TO THE

CERTIFICATE OF INCORPORATION OF

LUCENT ACQUISITION CORPORATION

Pursuant to the provisions of Section 242 of Delaware General Corporation Law, the undersigned corporation adopts the following Articles of Amendment to the Certificate of Incorporation:

1. The name of the corporation is Lucent Acquisition Corporation.

2. Article I of the Certificate of Incorporation shall be deleted in its entirety and inserted in lieu thereof shall be the following:

ARTICLE I

NAME OF THE CORPORATION

The name of the Corporation is Lucent Polymers Inc.

This Amendment to the Certificate of Incorporation was duly adopted on August 29, 2005 by the Sole Stockholder of the Corporation.

Dated this 29^th day of August, 2005.

 

 

		State of Delaware Secretary of State Division of Corporations Delivered 11:26 AM 08/30/2005 FILED 11:26 AM 08/30/2005 SRV 050712908 – 3988723 FILE

Exhibit 3.32

THIRD AMENDED AND RESTATED BY-LAWS

OF

LUCENT POLYMERS INC.

A Delaware corporation

(Adopted as of December 6, 2013)

ARTICLE I

OFFICES

Section 1 Registered Office. The registered office of the corporation in the State of Delaware shall be located at 160 Greentree Drive, Suite 101, City of Dover, County of Kent, Delaware 19904. The name of the corporation’s registered agent at such address shall be National Registered Agents, Inc. The registered office and/or registered agent of the corporation may be changed from time to time by action of the board of directors.

Section 2 Other Offices. The corporation may also have offices at such other places, both within and without the State of Delaware, as the board of directors may from time to time determine or the business of the corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

Section 1 Annual Meetings. An annual meeting of the stockholders shall be held each year within one hundred twenty (120) days after the close of the immediately preceding fiscal year of the corporation for the purpose of electing directors and conducting such other proper business as may come before the meeting. The date, time and place, if any, and/or the means of remote communication, of the annual meeting shall be determined by the board of directors of the corporation. No annual meeting of stockholders need be held if not required by the corporation’s certificate of incorporation or by the General Corporation Law of the State of Delaware.

Section 2 Special Meetings. Special meetings of stockholders may be called for any purpose (including, without limitation, the filling of board vacancies and newly created directorships) and may be held at such time and place, within or without the State of Delaware, and/or by means of remote communication, as shall be stated in a written notice of meeting or in a duly executed waiver of notice thereof. Such meetings may be called at any time by the board of directors or the president and shall be called by the president upon the written request of holders of shares entitled to cast not less than a majority of the votes at the meeting, which written request shall state the purpose or purposes of the meeting and shall be delivered to the president. The date, time and place, if any, and/or remote communication, of any special meeting of stockholders shall be determined by the board of directors of the corporation. On such written request, the president shall fix a date and time for such meeting within 10 days after receipt of a request for such meeting in such written request.

Section 3 Place of Meetings. The board of directors may designate any place, either within or without the State of Delaware, and/or by means of remote communication, as the place of meeting for any annual meeting or for any special meeting called by the board of directors. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal executive office of the corporation.

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Section 4 Notice. Whenever stockholders are required or permitted to take any action at a meeting, written or printed notice stating the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of special meetings, the purpose or purposes, of such meeting, shall be given to each stockholder entitled to vote at such meeting and to each director not less than 10 nor more than 60 days before the date of the meeting. All such notices shall be delivered, either personally, by mail, or by a form of electronic transmission consented to by the stockholder to whom the notice is given, by or at the direction of the board of directors, the president or the secretary, and if mailed, such notice shall be deemed to be delivered when deposited in the United States mail, postage prepaid, addressed to the stockholder at his, her or its address as the same appears on the records of the corporation. If given by electronic transmission, such notice shall be deemed to be delivered (a) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; (b) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (c) if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (1) such posting and (2) the giving of such separate notice; and (3) if by any other form of electronic transmission, when directed to the stockholder. Any such consent shall be revocable by the stockholder by written notice to the corporation. Any such consent shall be deemed revoked if (1) the corporation is unable to deliver by electronic transmission two consecutive notices given by the corporation in accordance with such consent and (2) such inability becomes known to the secretary or an assistant secretary of the corporation or to the transfer agent. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened.

Section 5 Stockholders List. The officer who has charge of the stock ledger of the corporation shall make, at least 10 days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at such meeting arranged in alphabetical order, showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, and/or (ii) during ordinary business hours, at the principal place of business of the corporation. In the event that the corporation determines to make the list available on an electronic network, the corporation may take reasonable steps to ensure that such information is available only to stockholders of the corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.

Section 6 Quorum. The holders of a majority of the issued and outstanding shares of capital stock, entitled to vote thereon, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders, except as otherwise provided by statute or by the corporation’s certificate of incorporation. If a quorum is not present, the holders of a majority of the shares present in person or represented by proxy at the meeting, and entitled to vote at the meeting, may adjourn the meeting to another time and/or place.

Section 7 Adjourned Meetings. When a meeting is adjourned to another time and place, notice need not be given of the adjourned meeting if the time, place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in

 

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person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

Section 8 Vote Required. When a quorum is present, the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders, unless the question is one upon which by express provisions of an applicable law or of the corporation’s certificate of incorporation a different vote is required, in which case such express provision shall govern and control the decision of such question.

Section 9 Voting Rights. Except as otherwise provided by the General Corporation Law of the State of Delaware or by the corporation’s certificate of incorporation or any amendments thereto and subject to Section 3 of Article VI hereof, every stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of common stock held by such stockholder.

Section 10 Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally. Any proxy is suspended when the person executing the proxy is present at a meeting of stockholders and elects to vote, except that when such proxy is coupled with an interest and the fact of the interest appears on the face of the proxy, the agent named in the proxy shall have all voting and other rights referred to in the proxy, notwithstanding the presence of the person executing the proxy. At each meeting of the stockholders, and before any voting commences, all proxies filed at or before the meeting shall be submitted to and examined by the secretary or a person designated by the secretary, and no shares may be represented or voted under a proxy that has been found to be invalid or irregular.

Section 11 Action by Written Consent. Unless otherwise provided in the corporation’s certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken and bearing the dates of signature of the stockholders who signed the consent or consents, shall be 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 and shall be delivered to the corporation by delivery to its registered office in the state of Delaware, or the corporation’s principal place of business, or an officer or agent of the corporation having custody of the book or books in which proceedings of meetings of the stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested or by reputable overnight courier service. All consents properly delivered in accordance with this section shall be deemed to be recorded when so delivered. No written consent shall be effective to take the corporate action referred to therein unless, within 60 days after the earliest dated consent delivered to the corporation as required by this section, written consents signed by the holders of a sufficient number of shares to take such corporate action are so recorded. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Any action taken pursuant to such written consent or consents of the stockholders shall have the same force and effect as if taken by the stockholders at a meeting thereof.

 

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Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used; provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing.

Section 12 Action by Facsimile, Email or Other Electronic Transmission Consent. A facsimile, email or other electronic transmission by a stockholder or proxyholder (or by any person authorized to act on such person’s behalf) of a proxy or a written consent to an action to be taken (including the delivery of such a document in the .pdf, .tif, .gif, .peg or similar format attached to an email message) shall be deemed to be written, signed, dated and delivered to the corporation for the purposes of this Article; provided that any such facsimile, email or other electronic transmission sets forth or is delivered with information from which the corporation can determine (A) that the facsimile, email or other electronic transmission was transmitted by the stockholder or proxyholder or by a person authorized to act for the stockholder or proxyholder and (B) the date on which such stockholder or proxyholder or authorized person transmitted such facsimile, email or other electronic transmission. The date on which such facsimile, email or other electronic transmission is transmitted shall be deemed to be the date on which such consent or proxy was signed. Any such facsimile, email or other electronic transmission of a consent or proxy shall be treated in all respects as an original executed consent or proxy and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of the board of directors or the Secretary of the corporation, each stockholder, proxyholder or other authorized person who delivered a consent or proxy by facsimile, email or other electronic transmission shall re-execute the original form thereof and deliver such original to the corporation at its registered office in the State of Delaware, its principal place of business or to an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. No consent given by facsimile, email or other electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper form shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded.

ARTICLE III

DIRECTORS

Section 1 General Powers. The business and affairs of the corporation shall be managed by or under the direction of the board of directors.

Section 2 Number, Election and Term of Office. The number of directors which shall constitute the board shall be four (4). Thereafter, the number of directors shall be established from time to time by resolution of the board or by resolution of the stockholders. The directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote in the election of directors. The directors shall be elected in this manner at the annual meeting of the stockholders, except as otherwise provided in Section 4 of this Article III. Each director elected shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.

Section 3 Removal and Resignation. Any director or the entire board of directors may be removed at any time, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors. Whenever the holders of any class or series are entitled to elect one or more

 

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directors by the provisions of the corporation’s certificate of incorporation, the provisions of this section shall apply, in respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole. Any director may resign at any time upon notice given in writing or by electronic transmission to the corporation.

Section 4 Vacancies. Except as otherwise provided in the corporation’s certificate of incorporation, board vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director. Each director so chosen shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as herein provided.

Section 5 Annual Meetings. The annual meeting of each newly elected board of directors shall be held without notice (other than notice under these by-laws) immediately after, and at the same place, if any, as the annual meeting of stockholders.

Section 6 Other Meetings and Notice. Regular meetings, other than the annual meeting, of the board of directors may be held without notice at such time and at such place, if any, as shall from time to time be determined by resolution of the board of directors and promptly communicated to all directors then in office. Special meetings of the board of directors may be called by or at the request of the president or any director on at least 24 hours notice to each director, either personally, by telephone, by mail or by electronic transmission.

Section 7 Quorum, Required Vote and Adjournment. A majority of the total number of directors then in office authorized shall constitute a quorum for the transaction of business. The vote of a majority of directors present at a meeting at which a quorum is present shall be the act of the board of directors. If a quorum shall not be present at any meeting of the board of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Except as otherwise required by the corporation’s certificate of incorporation, each director shall be entitled to one vote on exactly the matter presented to the board for approval.

Section 8 Committees. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation, which to the extent provided in such resolution or these by-laws shall have and may exercise the powers of the board of directors in the management and affairs of the corporation, except as otherwise limited by law. The board of directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required.

Section 9 Committee Rules. Each committee of the board of directors may fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may otherwise be provided by a resolution of the board of directors designating such committee. Unless otherwise provided in such a resolution, the presence of a majority of the members of the committee then in office shall be necessary to constitute a quorum. In the event that a member and that member’s alternate, if alternates are designated by the board of directors as provided in Section 8 of this Article III, of such committee is or are absent or disqualified, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of any such absent or disqualified member.

 

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Section 10 Communications Equipment. Members of the board of directors or any committee thereof may participate in and act at any meeting of such board or committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in the meeting pursuant to this section shall constitute presence in person at the meeting.

Section 11 Waiver of Notice and Presumption of Assent. Any member of the board of directors or any committee thereof who is present at a meeting shall be conclusively presumed to have waived notice of such meeting, except when such member attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Such member shall be conclusively presumed to have assented to any action taken unless his or her dissent shall be entered in the minutes of the meeting or unless his or her written dissent to such action shall be filed with the person acting as the secretary of the meeting before the adjournment thereof or shall be forwarded by registered mail to the secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to any member who voted in favor of such action.

Section 12 Action by Written Consent. Unless otherwise restricted by the corporation’s certificate of incorporation, any action required or permitted to be taken at any meeting of the board of directors, or of any committee thereof, may be taken without a meeting if all members of the board or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the board, or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

ARTICLE IV

OFFICERS

Section 1 Number. The officers of the corporation shall be elected by the board of directors and shall consist of a president, a vice president, a secretary, and such other officers and assistant officers as may be deemed necessary or desirable by the board of directors. Any number of offices may be held by the same person. In its discretion, the board of directors may choose not to fill any office for any period as it may deem advisable.

Section 2 Election and Term of Office. The officers of the corporation shall be elected annually by the board of directors at its first meeting held after each annual meeting of stockholders or as soon thereafter as conveniently may be. Vacancies may be filled or new offices created and filled at any meeting of the board of directors. Each officer shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.

Section 3 Removal. Any officer or agent elected by the board of directors may be removed by the board of directors whenever in its judgment the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed.

Section 4 Vacancies. Any vacancy occurring in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the board of directors for the unexpired portion of the term by the board of directors then in office.

 

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Section 5 Compensation. Compensation of all officers shall be fixed by the board of directors, and no officer shall be prevented from receiving such compensation by virtue of his or her also being a director of the corporation.

Section 6 The President. The president shall be the chief executive officer of the corporation; in the absence of the chairman of the board, shall preside at all meetings of the stockholders and board of directors at which he or she is present; subject to the powers of the board of directors, shall have general charge of the business, affairs and property of the corporation, and control over its officers, agents and employees; and shall see that all orders and resolutions of the board of directors are carried into effect. The president shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. The president shall have such other powers and perform such other duties as may be prescribed by the board of directors or as may be provided in these by-laws.

Section 7 Vice-presidents. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, act with all of the powers and be subject to all the restrictions of the president. The vice-presidents shall also perform such other duties and have such other powers as the board of directors, the president or these by-laws may, from time to time, prescribe.

Section 8 Secretary and Assistant Secretaries. The secretary shall attend all meetings of the board of directors, all meetings of the committees thereof and all meetings of the stockholders and record all the proceedings of the meetings in a book or books to be kept for that purpose. Under the president’s supervision, the secretary shall give, or cause to be given, all notices required to be given by these by- laws or by law, shall have such powers and perform such duties as the board of directors, the president or these by-laws may, from time to time, prescribe, and shall have custody of the corporate seal of the corporation. The secretary, or an assistant secretary, shall have authority to affix the corporate seal to any instrument requiring it and when so affixed, it may be attested by his or her signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his or her signature. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors, the president, or secretary may, from time to time, prescribe.

Section 9 Other Officers, Assistant Officers and Agents. Officers, assistant officers and agents, if any, other than those whose duties are provided for in these by-laws, shall have such authority and perform such duties as may from time to time be prescribed by resolution of the board of directors.

Section 10 Absence or Disability of Officers. In the case of the absence or disability of any officer of the corporation and of any person hereby authorized to act in such officer’s place during such officer’s absence or disability, the board of directors may by resolution delegate the powers and duties of such officer to any other officer or to any director, or to any other person whom it may select.

 

ARTICLE V

INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS

Section 1 Nature of Indemnity. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether brought by or in the right of the corporation or any of its subsidiaries and whether civil, criminal, administrative or investigative

 

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(hereinafter a “proceeding”), or any appeal of such proceeding, by reason of or arising out of the fact that such person, or any other person for whom such person is the legal representative, is or was a director or officer of the corporation or is or was serving at the request of the corporation as a director, officer, manager, general partner, employee, fiduciary, or agent of another corporation or of a partnership, limited liability company, joint venture, trust or other enterprise, shall be indemnified and held harmless by the corporation to the fullest extent which it is empowered to do so unless prohibited from doing so by the General Corporation Law of the State of Delaware, 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) against all expense, liability and loss (including attorneys’ fees actually and reasonably incurred by such person in connection with such proceeding) and such indemnification shall inure to the benefit of his or her heirs, executors and administrators; provided that, with respect to any former director or officer of the corporation who resigned or was replaced on or prior to the date on which these by-laws are adopted, such person shall be indemnified solely to the extent of coverage actually provided under the corporation’s run-off or tail insurance policies effective as of December 6, 2013; provided, further, that, except as provided in Section 2 of this Article V, the corporation shall indemnify any such person seeking indemnification in connection with a proceeding initiated by such person only if such proceeding was authorized by the board of directors of the corporation. The right to indemnification conferred in this Article V shall be a contract right and, subject to Sections 2 and 5 hereof, shall include the right to be paid by the corporation the expenses incurred in defending any such proceeding in advance of its final disposition. The corporation may, by action of its board of directors, provide indemnification to employees and agents of the corporation with the same scope and effect as the foregoing indemnification of directors and officers.

Section 2 Procedure for Indemnification of Directors and Officers. Any indemnification of a director or officer of the corporation provided for under Section 1 of this Article V or advance of expenses provided for under Section 5 of this Article V shall be made promptly, and in any event within 30 days, upon the written request of the director or officer. If a determination by the corporation that the director or officer is entitled to indemnification pursuant to this Article V is required, and the corporation fails to respond within 60 days to a written request for indemnity, the corporation shall be deemed to have approved the request. If the corporation wrongfully denies a written request for indemnification or advancing of expenses, in whole or in part, or if payment in full pursuant to such request is not properly made within 30 days, the right to indemnification or advances as granted by this Article V shall be enforceable by the director or officer in any court of competent jurisdiction. Such person’s costs and expenses incurred in connection with successfully establishing his or her right to indemnification, in whole or in part, in any such action shall also be indemnified by the corporation; provided that, with respect to any former director or officer of the corporation who resigned or was replaced on or prior to the date on which these by-laws are adopted, such person shall be indemnified solely to the extent of coverage actually provided under the corporation’s run-off or tail insurance policies effective as of December 6, 2013. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any, has been tendered to the corporation) that the claimant has not met the standards of conduct which make it permissible under the General Corporation Law of the State of Delaware for the corporation to indemnify the claimant for the amount claimed, but the burden of such defense shall be on the corporation. Neither the failure of the corporation (including its board of directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the corporation (including its board of directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

 

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Section 3 Article Not Exclusive. The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article V shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the corporation’s certificate of incorporation, by-law, agreement, vote of stockholders or disinterested directors or otherwise.

Section 4 Insurance. The corporation may purchase and maintain insurance on its own behalf and on behalf of any person who is or was a director, officer, employee, fiduciary, or agent of the corporation or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, whether or not the corporation would have the power to indemnify such person against such liability under this Article V.

Section 5 Expenses. Expenses incurred by any person described in Section 1 of this Article V in defending a proceeding shall be paid by the corporation in advance of such proceeding’s final disposition unless otherwise determined by the board of directors in the specific case upon receipt of an undertaking by or on behalf of the director or officer or other person to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the board of directors deems appropriate.

Section 6 Employees and Agents. Persons who are not covered by the foregoing provisions of this Article V and who are or were employees or agents of the corporation, or who are or were serving at the request of the corporation as employees or agents of another corporation, partnership, joint venture, trust or other enterprise, may be indemnified, and may be advanced expenses, to the extent authorized at any time or from time to time by the board of directors.

Section 7 Contract Rights. The provisions of this Article V shall be deemed to be a vested contract right between the corporation and each director and officer who serves in any such capacity at any time while this Article V and the relevant provisions of the General Corporation Law of the State of Delaware or other applicable law are in effect. Such contract right shall vest for each director and officer at the time such person is elected or appointed to such position, and no repeal or modification of this Article V or any such law shall affect any such vested rights or obligations of any current or former director or officer with respect to any state of facts or proceeding regardless of when occurring.

Section 8 Merger or Consolidation. For purposes of this Article V, references to “the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Article V with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued.

 

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ARTICLE VI

CERTIFICATES OF STOCK

Section 1 Form. Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in the name of the corporation by the chief executive officer, president or a vice-president and the secretary or an assistant secretary of the corporation, certifying the number of shares owned by such holder in the corporation. If such a certificate is countersigned (1) by a transfer agent or an assistant transfer agent other than the corporation or its employee or (2) by a registrar, other than the corporation or its employee, the signature of any such president, vice-president, secretary, or assistant secretary may be facsimiles. In case any officer or officers who have signed, or whose facsimile signature or signatures have been used on, any such certificate or certificates shall cease to be such officer or officers of the corporation whether because of death, resignation or otherwise before such certificate or certificates have been delivered by the corporation, such certificate or certificates may nevertheless be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon had not ceased to be such officer or officers of the corporation. All certificates for shares shall be consecutively numbered or otherwise identified. The name of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the books of the corporation. Shares of stock of the corporation shall only be transferred on the books of the corporation by the holder of record thereof or by such holder’s attorney duly authorized in writing, upon surrender to the corporation of the certificate or certificates for such shares endorsed by the appropriate person or persons, with such evidence of the authenticity of such endorsement, transfer, authorization, and other matters as the corporation may reasonably require, and accompanied by all necessary stock transfer stamps. In that event, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate or certificates, and record the transaction on its books. The board of directors may appoint a bank or trust company organized under the laws of the United States or any state thereof to act as its transfer agent or registrar, or both in connection with the transfer of any class or series of securities of the corporation.

Section 2 Lost Certificates. The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates previously issued by the corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or destroyed. When authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen, or destroyed certificate or certificates, or his or her legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against the corporation on account of the loss, theft or destruction of any such certificate or the issuance of such new certificate.

Section 3 Fixing a Record Date for Stockholder Meetings. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. If no record date is fixed by the board of directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be the close of business on the next day preceding the day on which notice is given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided that the board of directors may fix a new record date for the adjourned meeting.

 

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Section 4 Fixing a Record Date for Action by Written Consent. In order that the corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which date shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the board of directors. If no record date has been fixed by the board of directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is required by statute, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the board of directors and prior action by the board of directors is required by statute, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action.

Section 5 Fixing a Record Date for Other Purposes. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment or any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purposes of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto.

Section 6 Registered Stockholders. Prior to the surrender to the corporation of the certificate or certificates for a share or shares of stock with a request to record the transfer of such share or shares, the corporation may treat the registered owner as the person entitled to receive dividends, to vote, to receive notifications, and otherwise to exercise all the rights and powers of an owner. The corporation shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof.

Section 7 Subscriptions for Stock. Unless otherwise provided for in the subscription agreement, subscriptions for shares shall be paid in full at such time, or in such installments and at such times, as shall be determined by the board of directors. Any call made by the board of directors for payment on subscriptions shall be uniform as to all shares of the same class or as to all shares of the same series. In case of default in the payment of any installment or call when such payment is due, the corporation may proceed to collect the amount due in the same manner as any debt due the corporation.

ARTICLE VII

GENERAL PROVISIONS

Section 1 Dividends. Dividends upon the capital stock of the corporation, subject to the provisions of the corporation’s certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the corporation’s certificate of incorporation. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or any other purpose and the directors may modify or abolish any such reserve in the manner in which it was created.

 

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Section 2 Checks, Drafts or Orders. All checks, drafts, or other orders for the payment of money by or to the corporation and all notes and other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such manner, as shall be determined by resolution of the board of directors or a duly authorized committee thereof.

Section 3 Contracts. The board of directors may authorize any officer or officers, or any agent or agents, of the corporation to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances.

Section 4 Loans. The corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or of its subsidiary, including any officer or employee who is a director of the corporation or its subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to benefit the corporation. The loan, guaranty or other assistance may be with or without interest, and may be unsecured, or secured in such manner as the board of directors shall approve, including, without limitation, a pledge of shares of stock of the corporation. Nothing in this section contained shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute.

Section 5 Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the board of directors.

Section 6 Corporate Seal. The board of directors shall provide a corporate seal which shall be in the form of a circle and shall have inscribed thereon the name of the corporation and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

Section 7 Voting Securities Owned By Corporation. Voting securities in any other corporation or other entity (such as a limited liability company, limited partnership or trust) held by the corporation shall be voted as directed by the board of directors, unless the board of directors specifically confers authority to vote with respect thereto, which authority may be general or confined to specific instances, upon some other person or officer. Any person authorized to vote securities shall have the power to appoint proxies, with general power of substitution.

Section 8 Inspection of Books and Records. Any stockholder of record, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the corporation’s stock ledger, a list of its stockholders, and its other books and records, and to make copies or extracts therefrom. A proper purpose shall mean any purpose reasonably related to such person’s interest as a stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the corporation at its registered office in the State of Delaware or at its principal place of business.

Section 9 Exclusive Jurisdiction. Unless otherwise waived by resolution of the Board, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative

 

12

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action or proceeding brought on behalf of the corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the corporation to the corporation or the corporation’s stockholders, (iii) any action asserting a claim against the corporation arising pursuant to any provision of the General Corporation Law of the State of Delaware or the corporation’s certificate of incorporation or by-laws or (iv) any action asserting a claim against the corporation governed by the internal affairs doctrine.

Section 10 Section Headings. Section headings in these by-laws are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein.

Section 11 Inconsistent Provisions. In the event that any provision of these by-laws is or becomes inconsistent with any provision of the corporation’s certificate of incorporation, the General Corporation Law of the State of Delaware or any other applicable law, the provision of these by-laws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect.

ARTICLE VIII

AMENDMENTS

These by-laws may be amended, altered, or repealed and new by-laws adopted at any meeting of the board of directors by a majority vote. The fact that the power to adopt, amend, alter, or repeal the by-laws has been conferred upon the board of directors shall not divest the stockholders of the same powers.

*         *         *         *         *

 

13

Exhibit 3.33

 

 

		RECEIPT AND CERTIFICATE		No.        16310

PREMIX, INC.

 

NAME

        283197        

NUMBER

 

DOMESTIC CORPORATIONS   ARTICLES OF INCORPORATION AMENDMENT MERGER/CONSOLIDATION DISSOLUTION AGENT RE-INSTATEMENT CERTIFICATES OF CONTINUED EXISTENCE MISCELLANEOUS   FOREIGN CORPORATIONS   LICENSE AMENDMENT SURRENDER OF LICENSE APPOINTMENT OF AGENT CHANGE OF PRINCIPAL OFFICE RE-INSTATEMENT FORM 7 PENALTY		MISCELLANEOUS FILINGS   ANNEXATION/INCORPORATION—CITY OR VILLAGE RESERVATION OF CORPORATE NAMES REGISTRATION OF NAME REGISTRATION OF NAME RENEWALS REGISTRATION OF NAME—CHANGE OF REGISTRANTS ADDRESS TRADE MARK TRADE MARK RENEWAL SERVICE MARK SERVICE MARK RENEWAL MARK OF OWNERSHIP MARK OF OWNERSHIP RENEWAL EQUIPMENT CONTRACT/CHATTEL MORTGAGE POWER OF ATTORNEY SERVICE OF PROCESS MISCELLANEOUS ASSIGNMENT—TRADE MARK, MARK OF OWNERSHIP, SERVICE MARK

I certify that the attached document was received and filed in the office of TED W. BROWN, Secretary of State, at Columbus, Ohio, on the 11th day of August A.D. 1959, and recorded on Roll B114 at Frame 1272 of the RECORDS OF INCORPORATION and MISCELLANEOUS FILINGS.

 

 

Filed by and Returned To:		Warren and Young
		Peoples Savings and Loan Co. Bldg.
		Ashtabula, Ohio
		FEE RECEIVED: $ 112.50
NAME: PREMIX, INC.

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		ARTICLES OF INCORPORATION   OF   PREMIX, INC.

The undersigned, a majority of whom are citizens of the United States, desiring to form a corporation, for profit, under Sections 1701:01 et seq. of the Revised Code of Ohio, do hereby certify:

FIRST. The name of said corporation shall be PREMIX, INC.

SECOND. The place in Ohio where its principal office is to be located is Conneaut City, Ashtabula County.

THIRD. The purpose or purposes for which it is formed are:

(a) To manufacture, fabricate, process, buy, sell, and otherwise deal in all kinds, forms, combinations, and products of plastics, iron, steel, aluminum, wood, and other plastic materials and metals, or any of them; and all or any articles consisting or partly, consisting of plastics, iron, steel, aluminum, wood, or other plastic materials or metals, or either or any of them; and generally, to carry on the business of producing, manufacturing, buying, selling, leasing or otherwise dealing in plastic products of every type and description.

(b) To manufacture, purchase or otherwise acquire, distribute, sell, assign and transfer, exchange or otherwise dispose of, and to invest, trade, deal in or deal with goods, wares, and merchandise and personal property of every class and description.

(c) To acquire by purchase or otherwise and to own, hold, invest in, improve, develop, maintain, use, lease, sell, convey, transfer, mortgage, guarantee, pledge, exchange, or otherwise deal in or dispose of real property, or interests in real property, of any character whatsoever, whether situated within or without the State of Ohio.

(d) To make, enter into, perform and carry out any arrangements, contracts and/or agreements

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of every kind for any lawful purpose, without limit as to amount or otherwise, with any corporation, association, partnership, firm, trustee, syndicate, individual and/or any political or governmental division or subdivision, domestic or foreign.

(e) To acquire by purchase, subscription, underwriting, participation in syndicates, or otherwise, and to hold, own, sell, exchange, pledge, hypothecate or otherwise dispose of, shares of stock, bonds, mortgages, debentures, trust receipts, participation certificates, certificates of beneficial interest, notes and other securities, obligations, contracts, choses in action, and evidences of indebtedness generally, or interests therein, of corporations, associations, firms, trusts, governments, states, colonies, municipalities, and other organizations or persons; to receive, collect and dispose of interest, dividends and income upon, of or from, and to exercise any and all rights and privileges of individual ownership or interest in any of the foregoing, including the right to vote thereon for any and all purposes, and to do any and all acts and things for the preservation, protection, improvement and enhancement in value thereof, and to endorse or guarantee the same or become surety in respect thereof, and to aid by loan, subsidy, guarantee or otherwise, those issuing, selling, creating or responsible for the same.

(f) To apply for, obtain, purchase, take licenses in respect of or otherwise acquire, and to hold, own, use, grant licenses in respect of, manufacture under, sell, assign, mortgage, pledge, or otherwise dispose of: any and all inventions, devices, processes and any improvements and modifications thereof; and any and all letters patent of the United States or of any other country, state, territory, or locality, and all rights connected therewith or appertaining thereunto: any and all copyrights granted by the United States or any other country, state, territory, or locality; and any and all trade-marks, trade names, trade symbols and other indications of origin and ownership granted by or recognized under the laws of the United States or of any other country, state, territory or locality.

(g) To acquire all or any part of the goodwill, rights, property and business of any corporation, association, partnership, firm, trustee, syndicate, combination, organization, other entity or individual, domestic or foreign, heretofore or hereafter engaged in any business, similar to the business of the

 

- 2 -

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corporation or otherwise, and to pay for the same in cash or in shares or obligations of the corporation or otherwise, and to hold, utilize, enjoy and in any manner dispose of the whole or any part of the rights and property so acquired, and to assume in connection therewith any liabilities of any such corporation, association, partnership, firm, trustee, syndicate, combination, organization, individual, or other entity, domestic or foreign, and to conduct in the State of Ohio and/or in any other state, territory, locality or country the whole or any part of the business thus acquired, provided such business is not prohibited by the laws of the State of Ohio.

(h) Each purpose specified in any clause or paragraph contained in this Article Third shall be deemed to be independent of all other purposes herein specified and shall not be limited or restricted by reference to or inference from the terms of any other clause or paragraph of these Articles of Incorporation.

(i) The corporation reserves the right, at any time and from time to time, substantially to change its purposes, in the manner now or hereafter permitted by statute. Any change of the purposes of the corporation, authorized or approved by the holders of shares entitling them to exercise the proportion of the voting power of the corporation now or hereafter required by statute, shall be binding and conclusive upon every shareholder of the corporation as fully as if such shareholder had voted therefor; and no shareholder, notwithstanding that he may have voted against such change of purposes or may have objected in writing thereto, shall be entitled to payment of the fair cash value of his shares.

FOURTH. The maximum number of shares which the corporation is authorized to have outstanding is One Thousand Two Hundred Fifty (1,250) Shares with a par value of One Hundred Dollars ($100.00) each.

FIFTH. The amount of capital with which the corporation will begin business is Five Hundred Dollars ($500.00).

SIXTH. The board of directors is hereby authorized to fix and determine and to vary the amount of working capital of the corporation, to determine whether any, and, if any, what part of its surplus

 

- 3 -

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however created or arising, shall be used or disposed of or declared in dividends or paid to shareholders, and, without action by the shareholders, to use and apply such surplus, or any part thereof, at any time or from time to time in the purchase or acquisition of shares of any class, voting trust certificates for shares, bonds, debentures, notes, scrip, warrants, obligations, evidences of indebtedness of the corporation or other securities of the corporation, to such extent or amount and in such manner and upon such terms as the board of directors shall deem expedient.

SEVENTH. A director of this corporation shall not be disqualified by his office from dealing or contracting with the corporation as a vendor, purchaser, employee, agent, or otherwise; nor shall any transaction or contract or act of this corporation be void or voidable or in any way affected or invalidated by reason of the fact that any director or any firm of which any director is a member or any corporation of which any director is a shareholder or director is in any way interested in such transaction or contract or act, provided the fact that such director or such firm or such corporation is so interested shall be disclosed or shall be known to the board of directors or such members thereof as shall be present at any meeting of the board of directors at which action upon any such contract or transaction or act shall be taken; nor shall any such director be accountable or responsible to the corporation for or in respect to any such transaction or contract or act of this corporation or for any gains or profits realized by him by reason of the fact that he or any firm of which he is a member or any corporation of which he is a shareholder or director is interested in such transaction or contract or act; and any such director may be counted in determining

 

- 4 -

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the existence of a quorum at any meeting of the board of directors of the corporation which shall authorize or take action in respect to any such contract or transaction or act, and may vote thereat to authorize, ratify or approve any such contract or transaction or act, with like force and effect as if he or any firm of which he is a member or any corporation of which he is a shareholder or director were not interested in such transaction or contract or act.

EIGHT. No holder of shares of the corporation of any class shall be entitled as such, as a matter of right, to subscribe for or purchase shares of any class, now or hereafter authorized, or to purchase or subscribe for, securities convertible into or exchangeable for shares of the corporation or to which shall be attached or appertain any warrants or rights entitling the holder thereof to subscribe for or purchase shares, except such rights of subscription or purchase, if any, at such price or prices and upon such terms and conditions as the board of directors in its discretion from time to time may determine. The intent of this section is to eliminate all pre-emptive rights in shares or securities of this corporation herein or hereafter authorized.

NINTH. If and when any shareholder desires, or on the happening of any event is required, to sell his shares or any part thereof, said corporation shall have a pre-emptive right to purchase the same for the purpose of retiring said shares, holding the same as Treasury shares, or re-selling said shares to others. Any shareholder so desiring or required to sell his shares or any part thereof shall give to said corporation written notice of such desire or requirement to sell, and if the exercise of such pre-emptive right be authorized by the board of directors, such right shall be exercised by said

 

- 5 -

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corporation within sixty days after receipt of such notice, but if not so exercised, such pre-emptive right in the corporation shall be null and void on and after the expiration of said sixty days. The purchase price for such shares shall be book value thereof as of the date of said notice.

IN WITNESS WHEREOF, we have hereunto subscribed our names, this 8^th day of August, 1959.

 

 

- 6 -

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ORIGINAL APPOINTMENT OF AGENT

 

The undersigned, being at least a majority of the incorporators of PREMIX, INC., hereby appoint GEORGE H. KAULL, a natural person resident in the county in which the corporation has its principal office, upon whom any process, notice or demand required or permitted by statute to be served upon the corporation may be served. His complete address is West Adams Street, Conneaut, Ohio,

 

 

PREMIX, INC.

Gentlemen:

I hereby accept appointment as agent of your corporation upon whom process, tax notices or demands may be served.

 

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		RECEIPT AND CERTIFICATE		No.        22853

PREMIX, INC.

 

NAME

 

283197

NUMBER

 

DOMESTIC CORPORATIONS   ARTICLES OF INCORPORATION AMENDMENT MERGER/CONSOLIDATION DISSOLUTION AGENT RE-INSTATEMENT CERTIFICATES OF CONTINUED EXISTENCE MISCELLANEOUS   FOREIGN CORPORATIONS   LICENSE AMENDMENT SURRENDER OF LICENSE APPOINTMENT OF AGENT CHANGE OF PRINCIPAL OFFICE RE-INSTATEMENT FORM 7 PENALTY		MISCELLANEOUS FILINGS   ANNEXATION/INCORPORATION—CITY OR VILLAGE RESERVATION OF CORPORATE NAMES REGISTRATION OF NAME REGISTRATION OF NAME RENEWALS REGISTRATION OF NAME—CHANGE OF REGISTRANTS ADDRESS TRADE MARK TRADE MARK RENEWAL SERVICE MARK SERVICE MARK RENEWAL MARK OF OWNERSHIP MARK OF OWNERSHIP RENEWAL EQUIPMENT CONTRACT/CHATTEL MORTGAGE POWER OF ATTORNEY SERVICE OF PROCESS MISCELLANEOUS ASSIGNMENT—TRADE MARK, MARK OF OWNERSHIP, SERVICE MARK

I certify that the attached document was received and filed in the office of TED W. BROWN, Secretary of State, at Columbus, Ohio, on the 14th day of Jan. A.D. 1961, and recorded on Roll B193 at Frame 515 of the RECORDS OF INCORPORATION and MISCELLANEOUS FILINGS.

 

 

Filed by and Returned To:		Warren and Young
		Peoples Savings and Loan Co. Bldg.
		Ashtabule, Ohio

FEE RECEIVED: $ 87.50

 

.		NAME: PREMIX, INC.

---

		PREMIX, INC.
		CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION

Upon motion duly made, seconded and unanimously carried, IT WAS RESOLVED that Article Fourth of the Articles of Incorporation of PREMIX, INC. be and the same is hereby amended, so that as amended, it shall read as follows:

“FOURTH. The maximum number of shares which the corporation is authorized to have outstanding is Two Thousand Five Hundred (2,500) shares, of which One Thousand Two Hundred Fifty (1,250) shares shall be voting common shares with a par value of One Hundred Dollars ($100.00) each, and One Thousand Two Hundred Fifty (1,250) shares shall be Class A non-voting common shares with a par value of One Hundred Dollars ($100.00) each.

“Both classes of common shares shall have the same rights and privileges and be subject to the same restrictions, except that the Class A common shares shall be non-voting shares.”

WE HEREBY CERTIFY that we are the duly qualified, elected and acting President and Secretary, respectively, of PREMIX, INC., and that the above resolution was adopted at the annual meeting of the shareholders of said corporation duly called, and held on October 29, 1960, all of the shareholders of said corporation being present at said meeting in person or by proxy and voting unanimously to adopt the above resolution.

 

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		RECEIPT AND CERTIFICATE		No.        6934

PREMIX, INC.

 

NAME

        283197        

NUMBER

 

DOMESTIC CORPORATIONS   ARTICLES OF INCORPORATION ✓ AMENDMENT MERGER/CONSOLIDATION DISSOLUTION AGENT RE-INSTATEMENT CERTIFICATES OF CONTINUED EXISTENCE MISCELLANEOUS   FOREIGN CORPORATIONS   LICENSE AMENDMENT SURRENDER OF LICENSE APPOINTMENT OF AGENT CHANGE OF ADDRESS OF AGENT CHANGE OF PRINCIPAL OFFICE RE-INSTATEMENT FORM 7 PENALTY		MISCELLANEOUS FILINGS   ANNEXATION/INCORPORATION—CITY OR VILLAGE RESERVATION OF CORPORATE NAMES REGISTRATION OF NAME REGISTRATION OF NAME RENEWALS REGISTRATION OF NAME—CHANGE OF REGISTRANTS ADDRESS TRADE MARK TRADE MARK RENEWAL SERVICE MARK SERVICE MARK RENEWAL MARK OF OWNERSHIP MARK OF OWNERSHIP RENEWAL EQUIPMENT CONTRACT/CHATTEL MORTGAGE POWER OF ATTORNEY SERVICE OF PROCESS MISCELLANEOUS ASSIGNMENT—TRADE MARK, MARK OF OWNERSHIP, SERVICE MARK, REGISTRATION OF NAME

I certify that the attached document was received and filed in the office of TED W. BROWN, Secretary of State, at Columbus, Ohio, on the 19th day of August A.D. 1968, and recorded on Roll B571 at Frame 1351 of the RECORDS OF INCORPORATION and MISCELLANEOUS FILINGS.

 

 

Filed by and Returned To:		Warren and Young
		Peoples Savings & Loan
		Ashtabula, Ohio 44004         Att: E. Terry Warren
		FEE RECEIVED:		$ 1,388.00
		NAME: PREMIX, INC.

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		CERTIFICATE OF AMENDMENT   TO ARTICLES OF INCORPORATION OF   PREMIX, INC.

GEORGE H. KAULL, President, and M. H. YOUNG, Secretary, of Premix, Inc., an Ohio corporation, with its principal office located at North Kingsville, Ashtabula County, Ohio, do hereby certify that action by consent of the holders of the shares of said corporation entitling them to vote on the proposal to amend the Articles of Incorporation thereof, as contained in the following resolution, was duly consented to and approved on the 5th day of August, 1968, by which consent all of the shareholders approved of the hereinafter set forth resolution, and that by the affirmative vote entitling them to exercise all of the voting power of the corporation, the following resolution was adopted to amend the Articles:

RESOLVED, by the shareholders, that the Articles of Incorporation of Premix, Inc. as heretofore amended, be, and the same hereby are, further amended by striking therefrom Article IV and inserting in lieu thereof the following:

“FOURTH. The maximum number of shares which this Corporation is authorized to have out-standing is 68,800, all of which shall be without par value; 48,800 shall be Class A Voting Common shares, and 20,000 shall be Class B Non-Voting Common shares;

“Both classes of common shares shall have the same rights and privileges except that the Class B Non-Voting Common shares shall be non-voting shares;”

IN WITNESS WHEREOF, said GEORGE H. KAULL, President, and M. H. YOUNG, Secretary, of Premix, Inc., acting for and on behalf of said corporation, have hereunto subscribed their names and caused the seal of said corporation to be hereunto affixed this 5th day of August, 1968.

 

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		RECEIPT AND CERTIFICATE		No.        11036

PREMIX, INC.

 

NAME

        283197        

NUMBER

 

DOMESTIC CORPORATIONS   ARTICLES OF INCORPORATION ✓AMENDMENT MERGER/CONSOLIDATION DISSOLUTION AGENT RE-INSTATEMENT CERTIFICATES OF CONTINUED EXISTENCE MISCELLANEOUS   FOREIGN CORPORATIONS   LICENSE AMENDMENT SURRENDER OF LICENSE APPOINTMENT OF AGENT CHANGE OF ADDRESS OF AGENT CHANGE OF PRINCIPAL OFFICE RE-INSTATEMENT FORM 7 PENALTY		MISCELLANEOUS FILINGS   ANNEXATION/INCORPORATION—CITY OR VILLAGE RESERVATION OF CORPORATE NAMES REGISTRATION OF NAME REGISTRATION OF NAME RENEWALS REGISTRATION OF NAME—CHANGE OF REGISTRANTS ADDRESS TRADE MARK TRADE MARK RENEWAL SERVICE MARK SERVICE MARK RENEWAL MARK OF OWNERSHIP MARK OF OWNERSHIP RENEWAL EQUIPMENT CONTRACT/CHATTEL MORTGAGE POWER OF ATTORNEY SERVICE OF PROCESS MISCELLANEOUS ASSIGNMENT—TRADE MARK, MARK OF OWNERSHIP, SERVICE MARK, REGISTRATION OF NAME

I certify that the attached document was received and filed in the office of TED W. BROWN, Secretary of State, at Columbus, Ohio, on the 11th day of August A.D. 1972, and recorded on Roll B823 at Frame 493 of the RECORDS OF INCORPORATION and MISCELLANEOUS FILINGS.

 

 

Filed by and Returned To:		Warren and Young
		Peoples Savings & Loan Bldg.
		Ashtabula, Ohio 44004         Att: E. Terry Warren
		FEE RECEIVED:		$ 313.00
		NAME: PREMIX, INC.

 

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CERTIFICATE OF AMENDMENT TO

THE AMENDED ARTICLES OF INCORPORATION

OF

PREMIX, INC.

George H. Kaull, President and E. Terry Warren, Secretary of Premix, Inc., an Ohio Corporation, with its principal office located at north Kingsville, Ashtabula County, Ohio, do hereby certify that on August 10, 1972, in a writing approved and signed by the holders of all of the outstanding shares of said Corporation as specified in Ohio Revised Code Section 1701.54, the following resolutions were adopted:

RESOLVED, that the Articles of Incorporation of Premix, Inc., as heretofore amended, be, and the same hereby are, further amended by striking therefrom Article IV and inserting in lieu thereof the following:

“FOURTH. The number of shares which this Corporation is authorized to have outstanding is 97,600, all of which shall be without par value; 48,800 shall be Class A voting common shares and 48,800 shall be Class B non-voting common shares;”

“Both classes of common shares shall have the same rights and privileges except that the Class B non-voting common shares shall be on non-voting shares;”

FURTHER RESOLVED, that the President and Secretary of the Corporation be, and hereby are, authorized and directed to execute and file in the office of the Secretary of the State of Ohio, a Certificate of Amendment of said Articles of Incorporation as heretofore amended, amending said Articles of Incorporation as aforesaid, and to execute, deliver and file any other certificate or instrument which they may deem necessary or appropriate to render effective, or otherwise fully carry out, the intent and purposes of these resolutions.

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IN WITNESS WHEREOF, said George H. Kaull, President, and E. Terry Warren, Secretary, of Premix, Inc., have hereunto subscribed their names as of this 10th day of August, 1972.

 

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IN WITNESS WHEREOF, the said George H. Kaull, President and E. Terry Warren, Secretary, of Premix, Inc. have hereunto subscribed their names as of the 1st day of July, 1974.
George H. Kaull, President
E. Terry Warren, Secretary

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		Department of State   The State of Ohio

Sherrod Brown

Secretary of State

283197

 

 

It is hereby certified that the Secretary of State of Ohio has custody of the Records of Incorporation and Miscellaneous Filings; that
said records show the filing and recording of:		AMD INC
				of:

PREMIX, INC.

 

United States of America State of Ohio Office of the Secretary of State		Recorded on Roll F823 at Frame 0278 of the Records of Incorporation and Miscellaneous Filings.
		Witness my hand and the seal of the Secretary of State, at the City of Columbus, Ohio, this 13TH day of JAN, A.D. 1986.   Sherrod Brown Secretary of State

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		CERTIFICATE OF
		AMENDMENT TO AMENDED ARTICLES OF INCORPORATION
		OF PREMIX, INC.

George H. Kaull, Chairman, and E. Terry Warren, Secretary, of PREMIX, INC., an Ohio corporation with its principal office located at North Kingsville, Ashtabula County, Ohio, do hereby certify that at a meeting of shareholders held for that purpose, the following resolutions were adopted by all the shareholders:

“RESOLVED, that the Amended Articles of Incorporation of Premix, Inc., as heretofore amended, be, and the same hereby are, further amended by striking therefrom Article Fourth and inserting in lieu thereof the following:

‘ARTICLE FOURTH: The number of shares which the corporation is authorized to have outstanding is 15,000,000, all of which shall be common shares without par value. Of said 15,000,000 shares, 2,327,880 shall be Class A Voting common shares, 10,000,000 shall be Class B Non-voting common shares and 2,672,120 shall be Class E Non-voting common shares. Each holder of Class A Voting common shares shall be entitled to one vote for each Class A Voting common share held on any matter or matters submitted to shareholders. Unless otherwise provided by law, the holders of Class B Non-voting common shares and Class E Non-voting common shares shall not be entitled to vote with respect to any matter or matters submitted to shareholders. Except as provided in the two preceding sentences, the rights and privileges of Class A Voting common shares, Class B Non-voting common shares and Class E Non-voting common shares shall be identical.’

FURTHER RESOLVED, that the 232,788 Class A Voting common shares previously issued and outstanding at the time of the adoption of this amendment to the Articles of Incorporation are hereby changed into 2,327,880 Class A Voting common shares without par value, each of said previously issued and outstanding Class A Voting common shares being split into ten Class A Voting common shares without par value; and

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FURTHER RESOLVED, that the 411,559 Class B Non-voting common shares previously issued and outstanding at the time of the adoption of this amendment to the Articles of Incorporation, are hereby changed into 4,115,590 Class B Non-voting common shares without par value, each of said previously issued and outstanding Class B Non-voting shares being split into ten Class B Non-voting common shares without par value; and

FURTHER RESOLVED, that the 68,756 Class E Non-voting common shares previously issued and outstanding at the time of the adoption of this amendment to the Articles of Incorporation are hereby changed into 687,560 Class E Non-voting common shares without par value, each of said previously issued and outstanding Class E Non-voting common shares being split into ten Class E Non-voting common shares without par value; and

FURTHER RESOLVED, that the Chairman of the Board and the Secretary of the corporation be, and hereby are, authorized and directed to execute and file in the office of the Secretary of State of Ohio a Certificate of Amendment of said Amended Articles of Incorporation, amending said Amended Articles of Incorporation as aforesaid, and to issue, execute, deliver and file any other certificate or instrument, including certificates for shares, which they may deem necessary or appropriate to render effective, or otherwise fully carry out, the intent and purposes of these resolutions.”

 

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IN WITNESS WHEREOF, George H. Kaull, Chairman, and E. Terry Warren, Secretary, of Premix, Inc., acting for and on behalf of the Corporation, have hereunto subscribed their names this 11 day of December, 1985.

 

 

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TED W. BROWN

Secretary of State

Certificate

283197

 

It is Hereby Certified that the Secretary of State of Ohio has custody of the Records of Incorporation and Miscellaneous Filings; that
said records show the filing and recording of:		AMD INC		OF

PREMIX, INC.

 

United States of America STATE OF OHIO Office of the Secretary of State		Recorded on Roll E388 at Frame 1178 of the Records of Incorporation and Miscellaneous Filings.
		Witness my hand and the seal of the Secretary of State, at the City of Columbus, Ohio, this 3RD day of MARCH, A. D. 1978
				TED W. BROWN
				Secretary of State

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CERTIFIED RESOLUTIONS

The undersigned, Ford M. Davey, Corporate Senior Vice President, and E. Terry Warren, Secretary of Premix, Inc., an Ohio corporation, do each certify that he is said officer of Premix, Inc. and do each further certify that by unanimous consent in an Action by Written Consent of the voting shareholder of said corporation, on February 16, 1978, the resolutions attached hereto as Exhibit “A” were duly adopted and such resolutions have not been modified, amended or rescinded and are presently in full force and effect.

IN WITNESS WHEREOF, the undersigned have hereunto set their hands and the seal of Premix, Inc., this 1st day of March, 1978.

 

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EXHIBIT “A”

 

		PREMIX, INC.
		ACTION BY WRITTEN CONSENT OF SHAREHOLDER

In accordance with Section 1701.54 of the Revised Code of the State of Ohio, the undersigned, being the Shareholder of Premix, Inc., does hereby consent in writing to the following resolutions, to wit:

RESOLVED, that the Articles of Incorporation of Premix, Inc. as heretofore amended, be, and the same are hereby further amended by striking therefrom Article Fourth and inserting in lieu thereof the following:

“ARTICLE FOURTH: The number of shares which the corporation is authorized to have outstanding is 2,000,000, all of which shall be common shares without par value. Of said 2,000,000 shares, 232,860 shall be Class A Voting common shares, 1,032,760 shall be Class B Non-voting common shares and 734,380 shall be Class E Non-voting common shares. Each holder of Class A Voting common shares shall be entitled to one vote for each Class A Voting common share held on any matter or matters submitted to shareholders. Unless otherwise provided by law, the holders of Class B Non-voting common shares and Class E Non-voting common shares shall not be entitled to vote with respect to any matter or matters submitted to shareholders. Except as provided in the two preceding sentences, the rights and privileges of Class A Voting common shares, Class B Non-voting common shares and Class E Non-voting common shares shall be identical.

FURTHER RESOLVED, that the 23,286 shares of Class A Voting common shares previously authorized at the time of the adoption of this amendment to the Articles of Incorporation (of which 23,286 are issued and outstanding at this time) are hereby changed into 232,860 Class A Voting common shares without par value, each of said previously authorized Class A Voting common share being split into ten Class A Voting common shares without par value (the 23,286 shares issued and outstanding at this time being changed into 232,860 Class A Voting common shares without par value); and

FURTHER RESOLVED, that the 103,276 shares of Class B Non-voting common shares previously authorized at the time of the adoption of this amendment to the Articles of Incorporation, (of which 50,776 are issued and outstanding at this time) are hereby changed into 1,032,760 Class B Non-voting common shares without par value, each of said previously authorized Class B Non-voting share being split into ten Class B Non-voting common shares

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without par value (the 50,776 shares issued and outstanding at this time being changed into 507,760 Class B Non-voting common shares without par value); and

FURTHER RESOLVED, that the 73,438 shares of Class E Non-voting common shares previously authorized at the time of the adoption of this amendment to the Articles of Incorporation (of which 500 are issued and outstanding at this time) are hereby changed into 734,380 Class E Non-voting common shares without par value, each of said previously authorized Class E Non-voting common share being split into ten Class E Non-voting common shares without par value (the 500 shares issued and outstanding at this time being Changed into 5,000 Class E Non-voting common shares without par value); and

FURTHER RESOLVED, that the Chairman of the Board and the Secretary of the corporation be, and hereby are, authorized and directed to execute and file in the office of the Secretary of State of Ohio a Certificate of Amendment of said Articles of Incorporation as heretofore amended, amending said Articles of Incorporation as aforesaid, and to execute, deliver and file any other certificate or instrument which they may deem necessary or appropriate to render effective, or otherwise fully carry out, the intent and purposes of these resolutions.”

 

						THE FARMERS NATIONAL BANK & TRUST COMPANY OF ASHTABULA, TRUSTEE, UNDER AGREEMENTS WITH GEORGE H. KAULL, BARBARA W. CORDELL AND E. TERRY WARREN, ET AL.
						BY:		/s/    Jack E. Zaback
								Jack E. Zaback
								Vice President and
								Senior Trust Officer
DATE:		February 16, 1978

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TED W. BROWN

Secretary of State

Certificate

283197

 

It is Hereby Certified that the Secretary of State of Ohio has custody of the Records of Incorporation and Miscellaneous Filings;
that said records show the filing and recording of:		AMA CHS CHL		OF

PREMIX, INC.

 

United States of America STATE OF OHIO Office of the Secretary of State		Recorded on Roll E329 at Frame 1489 of the Records of Incorporation and Miscellaneous Filings.
		Witness my hand and the seal of the Secretary of State, at the City of Columbus, Ohio, this 13TH day of OCTOBER, A. D. 1977
				TED W. BROWN
				Secretary of State

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PREMIX, INC.

CERTIFICATE OF ADOPTION OF

AMENDED ARTICLES OF INCORPORATION

The undersigned, George H. Kaull and E. Terry Warren, do hereby certify that they are the Chairman of the Board and Secretary, respectively, of Premix, Inc. an Ohio corporation (the “Corporation”), that the following resolutions adopting Amended Articles of Incorporation of the Corporation were adopted by unanimous written action of the shareholders without a meeting pursuant to Section 1701754 of the Ohio Revised Code as of September 26, 1977:

RESOLVED, that the Amended Articles of Incorporation of the Corporation, in the form attached hereto as Exhibit A, be, and they are hereby, adopted:

FURTHER RESOLVED, that the Chairman of the Board and the Secretary be, and they are hereby, authorized and directed to certify said Amended Articles of Incorporation to the Secretary of State of Ohio.

and that the Amended Articles of Incorporation annexed to this Certificate are a true copy of the Amended Articles of Incorporation so adopted.

IN WITNESS WHEREOF, the undersigned have hereunto subscribed their names this 26^th day of September, 1977.

 

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AMENDED ARTICLES OF INCORPORATION

OF

PREMIX, INC.

FIRST: The name of the corporation is PREMIX, INC.

SECOND: The place in the State of Ohio where the principal office of the corporation is located is in the village of North Kingsville, Ashtabula County.

THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be formed under Sections 1701.01 to 1701.98, inclusive, of the Ohio Revised Code.

FOURTH: The number of shares which the corporation is authorized to have outstanding is 200,000, all of which shall be Common Shares, without par value. Of said 200,000 shares, 23,286 shall be Class A Voting Common Shares, 103,276 shall be Class B Nonvoting Common Shares and 73,438 shall be Class E Nonvoting Common Shares. Each holder of Class A Voting Common Shares shall be entitled to one vote for each Class A Voting Common Share held on any matter or matters submitted to shareholders. Unless otherwise provided by law, the holders of Class B Nonvoting Common Shares

 

EXHIBIT A

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and Class E Nonvoting Common Shares shall not be entitled to vote with respect to any matter or matters submitted to shareholders. Except as provided in the two preceding sentences, the rights and privileges of Class A Voting Common Shares, Class B Nonvoting Common Shares and Class E Nonvoting Common Shares shall be identical.

FIFTH: No holder of shares of the corporation of any class shall be entitled as such, as a matter of right, to subscribe for or purchase shares of any class, now or hereafter authorized, or to subscribe for or purchase securities convertible into or exchangeable for shares of the corporation or to which shall be attached or appertain any warrants or rights entitling the holder thereof to subscribe for or purchase shares, except such rights of subscription or purchase, if any, for such considerations and upon such terms and conditions as its board of directors from time to time may determine, subject to the provisions of ARTICLE SEVENTH hereof.

SIXTH: (a) Except as hereinafter provided in this ARTICLE SIXTH, no holder of Common Shares, of any class, of the corporation shall sell, transfer or otherwise dispose of all or any part of the shares held by him without first offering the same to the corporation for purchase at a price equal to the book value of such shares at the end of the

 

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corporation’s last fiscal year ended prior to the date on which the offer is made. Such book value shall be determined from the corporation’s records in accordance with generally accepted accounting principles. Any dispute as to such book value shall be referred to a firm of independent public accountants (which may be the corporation’s regular accounting firm) selected by the Board of Director’s of the corporation, whose decision shall be binding on all parties. In accepting such offer, the corporation shall have the right to purchase all but not less than all of the shares offered to it. Said offer shall remain open for acceptance by the corporation for sixty (60) days after receipt thereof, unless within said period the corporation notifies the offering shareholder of its election not to purchases, in which case the right of the corporation shall expire on the date of such notice. In the event such offer is accepted, the purchase price shall be due and payable within sixty (60) days after such acceptance or as the parties may otherwise agree.

(b) In the event the corporation does not elect to purchase all of the shares offered as hereinabove provided, the offering shareholder (or his executor or administrator in the case of a deceased shareholder) shall have the right to sell, transfer or otherwise dispose of any

 

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shares not so purchased to such other party or parties as he desires for a period of sixty (60) days after expiration of the right to purchase as set forth in Section (a) above; provided, however, that said shares may not be disposed of to any other party at a lesser price or on more favorable terms than those provided herein without again offering them to the corporation at such lesser price or more favorable terms; provided, further, that in the event of any such disposition of said shares, the person acquiring said shares or any rights therein shall acknowledge in writing to the corporation his receipt of a copy of the restrictions contained in this ARTICLE SIXTH and his agreement to comply therewith and be bound thereby (any such person, even absent such written acknowledgment, being bound by such restrictions through his acceptance of possession of said shares). After said sixty (60) day period, these restrictions shall again apply and be in full force and effect.

(c) In the event of the death of any holder of Common Shares, of any class, of the corporation, the shares owned by such deceased shareholder shall be deemed to be offered for sale to the corporation as set forth in Section (a) hereof on the date of death. Said offer shall remain open for acceptance by the corporation for a period of sixty (60) days after the date of the appointment of the

 

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executor or administrator of the estate of such deceased shareholder, unless prior to the expiration of such period, the corporation notifies such executor or administrator of its election not to purchase, in which case the right to purchase of the corporation shall expire on the date of such notice. In the event said offer is accepted, the purchase price shall be due and payable within sixty (60) days after such exercise, or as the parties may otherwise agree. In the event and that the corporation chooses not to purchase, such shares shall be distributed or otherwise disposed of as part of the estate of such deceased shareholder.

(d) In the event of a proposed pledge or other hypothecation of the Common Shares, of any class, of the corporation the pledgee or other person proposed to acquire a security interest in said shares shall acknowledge in writing to the corporation his receipt of a copy of the restrictions contained in this ARTICLE SIXTH and his agreement to comply therewith and be bound thereby. In the event no such acknowledgment is received by the corporation, such pledge or other hypothecation shall not be made.

(e) In the event of the insolvency or the appointment of a receiver of any property of any shareholder, or an assignment for the benefit of creditors, filing of a petition of bankruptcy, or commencement of any

 

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proceedings under any bankruptcy or insolvency laws by or against any shareholder, the Common Shares, of any class, of the corporation owned by such shareholder at the date of any such event shall be deemed to be offered for sale as set forth in Section (a) hereof on the date of the first of such events to occur. The offer to the corporation shall remain open for acceptance for a period of sixty (60) days after the date of the appointment of the receiver or trustee in bankruptcy. In the event the corporation chooses not to purchase, such shares shall remain the property of such shareholder or shall be disposed of pursuant to a decree or order of any court or agency having jurisdiction under federal or state law. In the absence of any order of disposition by any court having such jurisdiction, such shares shall be and remain subject to the provisions and restrictions contained in this ARTICLE SIXTH.

(f) The provisions contained in this ARTICLE SIXTH shall be binding upon and inure to the benefit of each person now or hereafter becoming a holder of Common Shares, of any class, of the corporation, and upon and to their respective executors, administrators, heirs, successors and assigns.

SEVENTH: No shares of any class, whether authorized and unissued or held from time to time in the treasury

 

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of the corporation, shall be issued by the corporation after the effectiveness of these Amended Articles of Incorporation except upon the express written consent of the holders of a majority of the then outstanding Class A Voting Common Shares.

EIGHT: Notwithstanding any provision of Ohio Revised Code Sections 1701.01 to 1701.98, inclusive, now or hereafter in force, requiring for the authorization or taking of any action the vote or consent of the holders of shares entitling them to exercise two-thirds or any other proportion of the voting power of the corporation or of any class or classes of shares thereof, such action, unless otherwise expressly required by law or these Amended Articles of Incorporation, may be authorized or taken by the vote or consent of the holders of shares entitling them to exercise a majority of the voting power of the corporation or of such class or classes of shares thereof.

NINTH: To the extent permitted by law, the corporation, by action of its board of directors, may purchase or otherwise acquire shares of any class issued by it.

TENTH: These Amended Articles of Incorporation shall supersede and take the place of the existing Articles of Incorporation of the corporation and all amendments thereto.

 

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Exhibit 3.34

CODE OF REGULATIONS

OF

PREMIX, INC.

ARTICLE I

Meetings of Shareholders

Section 1. Annual Meetings. The annual meeting of shareholders shall be held at such time and on such date in each year as may be fixed by the Board of Directors and stated in the notice of the meeting, for the election of directors, the consideration of reports to be laid before such meeting and the transaction of such other business as may properly come before the meeting.

Section 2. Special Meetings. Special meetings of the shareholders shall be called upon the written request of the chairman of the board, the president, the directors by action at a meeting, a majority of the directors acting without a meeting, or of the holders of shares entitling them to exercise twenty-five percent (25%) of the voting power of the Corporation entitled to vote thereat. Calls for such meetings shall specify the purposes thereof. No business other than that specified in the call shall be considered at any special meeting.

Section 3. Notices of Meetings. Unless waived, written notice of each annual or special meeting stating the time, place, and the purposes thereof shall be given by personal delivery or by mail to each shareholder of record entitled to vote at or entitled to notice of the meeting, not more than sixty (60) days nor less than seven (7) days before any such meeting. If mailed, such notice shall be directed to the shareholder at his address as the same appears upon the records of the Corporation. Any shareholder, either before or after any meeting, may waive any notice required to be given by law or under these Regulations.

Section 4. Place of Meetings. Meetings of shareholders shall be held at the principal office of the Corporation unless the Board of Directors determines that a meeting shall be held at some other place within or without the State of Ohio and causes the notice thereof to so state.

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Section 5. Quorum. The holders of voting shares present in person or by proxy shall constitute a quorum for the transaction of business to be considered at any meeting of shareholders; provided, however, that no action required by law or by the Articles of Incorporation or these Regulations to be authorized or taken by the holders of a designated proportion of the shares of any particular class or of each class may be authorized or taken by a lesser proportion.

Section 6. Record Date. The Board of Directors may fix a record date for any lawful purpose, including without limiting the generality of the foregoing, the determination of shareholders entitled to (i) receive notice of or to vote at any meeting, (ii) receive payment of any dividend or distribution, (iii) receive or exercise rights of purchase of or subscription for, or exchange or conversion of, shares or other securities, subject to any contract right with respect thereto, or (iv) participate in the execution of written consents, waivers or releases. Said record date shall not be more than sixty (60) days preceding the date of such meeting, the date fixed for the payment of any dividend or distribution or the date fixed for the receipt or the exercise of rights, as the case may be.

If a record date shall not be fixed, the record date for the determination of shareholders who are entitled to notice of, or who are entitled to vote at, a meeting of shareholders, shall be the close of business on the date next preceding the day on which notice is given, or the close of business on the date next preceding the day on which the meeting is held, as the case may be.

Section 7. Proxies. A person who is entitled to attend a shareholders’ meeting, to vote thereat, or to execute consents, waivers or releases, may be represented at such meeting or vote thereat, and execute consents, waivers and releases, and exercise any of his other rights, by proxy or proxies appointed by a writing signed by such person.

 

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ARTICLE II

Directors

Section 1. Number of Directors. Until changed in accordance with the provisions of this section, the number of directors of the Corporation shall be six. The number of directors may be fixed or changed at any annual meeting or at any special meeting called for that purpose by the affirmative vote of the holders of shares entitling them to exercise a majority of the voting power of the Corporation on such proposal.

Section 2. Election of Directors. Directors shall be elected at the annual meeting of shareholders, but when the annual meeting is not held or directors are not elected thereat, they may be elected at a special meeting called and held for that purpose. Such election shall be by ballot whenever requested by any shareholder entitled to vote at such election; but, unless such request is made, the election may be conducted in any manner approved at such meeting.

At each meeting of shareholders for the election of directors, the persons receiving the greatest number of votes shall be directors.

Section 3. Term of Office. Each director shall hold office until the annual meeting next succeeding his election and until his successor is elected and qualified, or until his earlier resignation, removal from office or death.

Section 4. Removal. All the directors, or all the directors of a particular class, or any individual director may be removed from office, without assigning any cause, by the vote of the holders of a majority of the voting power entitling them to elect directors in place of those to be removed, provided that unless all the directors, or all the directors of a particular class, are removed, no individual director shall be removed in case the votes of a sufficient number of shares are cast against his removal which, if cumulatively voted at an election of all the directors, or all the directors of a particular class, as the case may be, would be sufficient to elect at least one director. In case of any such removal, a new director may be elected at the same meeting for the unexpired term of each director removed.

Section 5. Vacancies. Vacancies in the Board of Directors may be filled by a majority vote of the remaining directors until an election to fill such vacancies is had. Shareholders entitled to elect directors shall have the right to fill any vacancy in the board (whether the same has

 

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been temporarily filled by the remaining directors or not) at any meeting of the shareholders called for that purpose, and any directors elected at any such meeting of shareholders shall serve until the next annual election of directors and until their successors are elected and qualified.

Section 6. Quorum and Transaction of Business. A majority of the directors in office shall constitute a quorum for the transaction of business. Whenever less than a quorum is present at the time and place appointed for any meeting of the board, a majority of those present may adjourn the meeting from time to time, until a quorum shall be present. The act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the board.

Section 7. Annual Meeting. Annual meetings of the Board of Directors shall be held immediately following annual meetings of the shareholders, or as soon thereafter as is practicable. If no annual meeting of the shareholders is held, or if directors are not elected thereat, then the annual meeting of the Board of Directors shall be held immediately following any special meeting of the shareholders at which directors are elected, or as soon thereafter as is practicable. If such annual meeting of directors is held immediately following a meeting of the shareholders, it shall be held at the same place at which such shareholders’ meeting was held.

Section 8. Regular Meetings. Regular meetings of the Board of Directors shall be held at such times and places, within or without the State of Ohio, as the Board of Directors may, by resolution or by-law, from time to time, determine. The secretary shall give notice of each such resolution or by-law to any director who was not present at the time the same was adopted, but no further notice of such regular meeting need be given.

Section 9. Special Meetings. Special meetings of the Board of Directors may be called by the chairman of the board, the president, any vice president, or any two members of the Board of Directors, and shall be held at such times and places, within or without the State of Ohio, as may be specified in such call.

Section 10. Notice of Annual or Special Meetings. Notice of the time and place of each annual or special meeting shall be given to each director by the secretary or by

 

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the person or persons calling such meeting. Such notice need not specify the purpose or purposes of the meeting and may be given in any manner or method and at such time so that the director receiving it may have reasonable opportunity to participate in the meeting. Such notice shall, in all events, be deemed to have been properly and duly given if mailed at least forty-eight (48) hours prior to the meeting and directed to the residence of each director as shown upon the secretary’s records and, in the event of a meeting to be held through the use of communications equipment, if the notice sets forth the telephone number at which each director may be reached for purposes of participation in the meeting as shown upon the secretary’s records and states that the secretary must be notified if a director desires to be reached at a different telephone number. The giving of notice shall be deemed to have been waived by any director who shall participate in such meeting and may be waived, in a writing, by any director either before or after such meeting.

Section 11. Compensation. The directors, as such, shall be entitled to receive such reasonable compensation for their services as may be fixed from time to time by resolution of the board, and expenses of attendance, if any, may be allowed for attendance at each annual, regular or special meeting of the board. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of the executive committee or of any standing or special committee may by resolution of the board be allowed such compensation for their services as the board may deem reasonable, and additional compensation may be allowed to directors for special services rendered.

Section 12. By-laws. For the government of its actions, the Board of Directors may adopt by-laws consistent with the Articles of Incorporation and these Regulations.

ARTICLE III

Committees

Section 1. Creation of Committees. The Board of Directors may from time to time, by resolution passed by a majority of the whole board, create such standing or special committees as it deems desirable, the members of which shall

 

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be elected by the Board of Directors to serve during the pleasure of the board. If the Board of Directors does not designate a chairman of any committee, such committee shall elect a chairman from its own number. Each such committee shall have such powers and perform such duties, not inconsistent with law, as may be delegated to it by the Board of Directors, other than that of filling vacancies among the directors or in any committee of the directors. Each such committee shall keep full records and accounts of its proceedings and transactions. All action by any committee shall be reported to the Board of Directors at its meeting next succeeding such action and shall be subject to control, revision and alteration by the Board of Directors, provided that no rights of third persons shall be prejudicially affected thereby. Vacancies in any committee shall be filled by the directors, and the directors may appoint one or more directors as alternate members of any committee who may take the place of any absent member or members at any meeting.

Section 2. Meetings of Committees. Subject to the provisions of these Regulations, each committee shall fix its own rules of procedure and shall meet as provided by such rules or by resolutions of the Board of Directors, and it shall also meet at the call of the president, the chairman of the committee or any two members of the committee. Unless otherwise provided by such rules or by such resolutions, the provisions of Section 10 of Article II relating to the notice required to be given of meetings of the Board of Directors shall also apply to meetings of any committee. A majority of any committee shall be necessary to constitute a quorum. Any committee may act in a writing, or by telephone with written confirmation, without a meeting, but no such action of any committee shall be effective unless concurred in by all members of the committee.

ARTICLE IV

Officers

Section 1. General Provisions. The Board of Directors shall elect a president, such number of vice presidents as the board may from time to time determine, a secretary and a treasurer and, in its discretion a chairman of the Board of Directors. The Board of Directors may from time to time create such offices and appoint such other

 

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officers, subordinate officers and assistant officers as it may determine. The president, any vice president who succeeds to the office of the president, and the chairman of the board shall be, but the other officers need not be, chosen from among the members of the Board of Directors. Any two of such offices, other than that of president and vice president, may be held by the same person, but no officer shall execute, acknowledge or verify any instrument in more than one capacity.

Section 2. Term of Office. The officers of the Corporation shall hold office during the pleasure of the Board of Directors, and, unless sooner removed by the Board of Directors, until the organization meeting of the Board of Directors following the date of their election and until their successors are chosen and qualified. The Board of Directors may remove any officer at any time, with or without cause. A vacancy in any office, however created, shall be filled by the Board of Directors.

ARTICLE V

Duties of Officers

Section 1. Chairman of the Board. The chairman of the board, if one be elected, [shall be the chief executive officer of the Corporation and shall exercise supervision over the business of the Corporation and over its several officers, subject, however, to the control of the Board of Directors.] He shall preside at all meetings of the Board of Directors and shareholders and shall have such other powers and duties as may be prescribed by the Board of Directors.

Section 2. President. The president, [shall be the chief operating officer of the Corporation.] In the absence of the chairman of the board, or if a chairman of the board shall not have been elected, shall preside at meetings of the Board of Directors and shareholders. [If a chairman of the board shall not have been elected, he shall also be chief executive officer of the corporation and have the powers and duties otherwise those of the chairman of the board.] He shall have authority to sign all certificates for shares and all deeds, mortgages, bonds, agreements, notes, and other instruments requiring his signature; and shall

 

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have all the powers and duties prescribed by Chapter 1701 of the Revised Code of Ohio and such others as the Board of Directors may from time to time assign to him.

Section 3. Vice Presidents. The vice presidents shall have such powers and duties as may from time to time be assigned to them by the Board of Directors or the president. At the request of the president, or in the case of his absence or disability, the vice president designated by the president (or in the absence of such designation, the vice president designated by the board) shall perform all the duties of the president and, when so acting, shall have all the powers of the president. The authority of vice presidents to sign in the name of the Corporation certificates for shares and deeds, mortgages, bonds, agreements, notes and other instruments shall be coordinate with like authority of the president.

Section 4. Secretary. The secretary shall keep minutes of all the proceedings of the shareholders and Board of Directors and shall make proper record of the same, which shall be attested by him; shall have authority to execute and deliver certificates as to any of such proceedings and any other records of the Corporation; shall have authority to sign all certificates for shares and all deeds, mortgages, bonds, agreements, notes and other instruments to be executed by the Corporation which require his signature; shall give notice of meetings of shareholders and directors; shall produce on request at each meeting of shareholders a certified list of shareholders arranged in alphabetical order; shall keep such books and records as may be required by law or by the Board of Directors; and, in general, shall perform all duties incident to the office of secretary and such other duties as may from time to time be assigned to him by the Board of Directors or the president.

Section 5. Treasurer. The treasurer shall have general supervision of all finances; he shall receive and have in charge all money, bills, notes, deeds, leases, mortgages and similar property belonging to the Corporation, and shall do with the same as may from time to time be required by the Board of Directors. He shall cause to be kept adequate and correct accounts of the business transactions of the Corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, stated capital and shares, together with such other accounts as may be required, and upon the expiration of his term of office shall turn over to his successor or to the Board of Directors all

 

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property, books, papers and money of the Corporation in his hands; and shall have such other powers and duties as may from time to time be assigned to him by the Board of Directors or the president.

Section 6. Assistant and Subordinate Officers. The Board of Directors may appoint such assistant and subordinate officers as it may deem desirable. Each such officer shall hold office during the pleasure of the Board of Directors, and perform such duties as the Board of Directors or the president may prescribe.

The Board of Directors may, from time to time, authorize any officer to appoint and remove subordinate officers, to prescribe their authority and duties, and to fix their compensation.

Section 7. Duties of Officers May be Delegated. In the absence of any officer of the Corporation, or for any other reason the Board of Directors may deem sufficient, the Board of Directors may delegate, for the time being, the powers or duties, or any of them, of such officers to any other officer or to any director.

ARTICLE VI

Indemnification and Insurance

Section 1. Indemnification in Non-Derivative Actions. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party, to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, other than an action by or in the right of the Corporation, by reason of the fact that he is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust, or other enterprise, against expenses, including attorneys’ fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit, or proceeding if he acted in good faith and in manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and with respect to any

 

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criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and with respect to any criminal action or proceeding, he had reasonable cause to believe that his conduct was unlawful.

Section 2. Indemnification in Derivative Actions. The Corporation shall indemnify any person who was or is a party, or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust, or other enterprise against expenses, including attorneys’ fees, actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Corporation unless, and only to the extent that the Court of Common Pleas, or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the Court of Common Pleas or such court shall deem proper.

Section 3. Indemnification as Matter of Right. To the extent that a director, trustee, officer, employee, or agent has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in Sections 1 and 2 of this Article VI, or in defense of any claim, issue, or matter therein, he shall be indemnified against expenses, including attorneys’ fees, actually and reasonably incurred by him in connection therewith.

Section 4. Determination of Conduct. Any indemnification under Sections 1 and 2 of this Article VI, unless

 

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ordered by a court, shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, trustee, officer, employee, or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in Sections 1 and 2 of this Article VI. Such determination shall be made (a) by a majority vote of a quorum consisting of directors of the Corporation who were not and are not parties to or threatened with any such action, suit, or proceeding, or (b) if such a quorum is not obtainable or if a majority vote of a quorum of disinterested directors so directs, in a written opinion by independent legal counsel, other than an attorney or a firm having associated with it an attorney who has been retained by or who has performed services for the Corporation or any person to be indemnified within the past five years, or (c) by the shareholders or (d) by the Court of Common Pleas or the court in which such action, suit, or proceeding was brought. Any determination made by the disinterested directors under Section 4(a) or by independent legal counsel under Section 4(b) of this Article VI shall be promptly communicated to the person who threatened or brought the action or suit, by or in the right of the Corporation under Section 2 of this Article VI, and within ten days after receipt of such notification, such person shall have the right to petition the Court of Common Pleas or the court in which such action or suit was brought to review the reasonableness of such determination.

Section 5. Advance Payment of Expenses. Expenses, including attorneys’ fees, incurred in defending any action, suit, or proceeding referred to in Sections 1 and 2 of this Article VI, may be paid by the Corporation in advance of the final disposition of such action, suit, or proceeding as authorized by the directors in the specific case upon receipt of an undertaking by or on behalf of the director, trustee, officer, employee, or agent to repay such amount, unless it shall ultimately be determined that he is entitled to be indemnified by the Corporation as authorized in this Article VI.

Section 6. Nonexclusivity. The indemnification provided by this Article VI shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under the Articles of Incorporation or the Code of Regulations or any agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in his official capacity and as to action in another capacity

 

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while holding such office and shall continue as to a person who has ceased to be a director, trustee, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person.

Section 7. Liability Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Article VI or of Chapter 1701 of the Ohio Revised Code.

ARTICLE VII

Certificates for Shares

Section 1. Form and Execution. Certificates for shares, certifying the number of fully paid shares owned, shall be issued to each shareholder in such form as shall be approved by the Board of Directors. Such certificates shall be signed by the president or a vice president and by the secretary or an assistant secretary or the treasurer or an assistant’ treasurer; provided, however, that if such certificates are countersigned by a transfer agent and/or registrar, the signatures of any of said officers and the seal of the Corporation upon such certificates may be facsimiles, engraved, stamped or printed. If any officer or officers, who shall have signed, or whose facsimile signature shall have been used, printed or stamped on any certificate or certificates for shares, shall cease to be such officer or officers, because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates, if authenticated by the endorsement thereon of the signature of a transfer agent or registrar, shall nevertheless be conclusively deemed to have been adopted by the Corporation by the use and delivery thereof and shall be as effective in all respects as though signed by a duly elected, qualified and authorized officer or officers, and as though the person

 

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or persons who signed such certificate or certificates, or whose facsimile signature or signatures shall have been used thereon, had not ceased to be an officer or officers of the Corporation.

Section 2. Registration of Transfer. Subject to the provisions respecting transferability contained in the Articles of Incorporation, any certificate for shares of the Corporation shall be transferable in person or by attorney upon the surrender thereof to the Corporation or any transfer agent therefor (for the class of shares represented by the certificate surrendered) properly endorsed for transfer and accompanied by such assurances as the Corporation or such transfer agent may require as to the genuineness and effectiveness of each necessary endorsement.

Section 3. Lost, Destroyed or Stolen Certificates. A new share certificate or certificates may be issued in place of any certificate theretofore issued by the Corporation which is alleged to have been lost, destroyed or wrongfully taken upon (i) the execution and delivery to the Corporation by the person claiming the certificate to have been lost, destroyed or wrongfully taken of an affidavit of that fact, specifying whether or not, at the time of such alleged loss, destruction or taking, the certificate was endorsed, and (ii) the furnishing to the Corporation of indemnity and other assurances satisfactory to the Corporation and to all transfer agents and registrars of the class of shares represented by the certificate against any and all losses, damages, costs, expenses or liabilities to which they or any of them may be subjected by reason of the issue and delivery of such new certificate or certificates or in respect of the original certificate.

Section 4. Registered Shareholders. A person in whose name shares are of record on the books of the Corporation shall conclusively be deemed the unqualified owner and holder thereof for all purposes and to have capacity to exercise all rights of ownership. Neither the Corporation nor any transfer agent of the Corporation shall be bound to recognize any equitable interest in or claim to such shares on the part of any other person, whether disclosed upon such certificate or otherwise, nor shall they be obliged to see to the execution of any trust or obligation.

 

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ARTICLE VIII

Fiscal Year

The fiscal year of the Corporation shall end on the 30th day of September in each year, or on such other date as may be fixed from time to time by the Board of Directors.

ARTICLE IX

Seal

The Board of Directors may provide a suitable seal containing the name of the Corporation. If deemed advisable by the Board of Directors, duplicate seals may be provided and kept for the purposes of the Corporation.

ARTICLE X

Amendments

This Code of Regulations may be amended, or new regulations may be adopted, at any meeting of shareholders called for such purpose by the affirmative vote of, or without a meeting by the written consent of, the holders of shares entitling them to exercise a majority of the voting power of the Corporation on such proposal.

 

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PREMIX, INC.

ACTION BY CONSENT OF SHAREHOLDER IN LIEU OF SPECIAL MEETING

The undersigned, being the sole voting shareholder of Premix, Inc., hereby approves and adopts the following resolution in writing, pursuant to the authority of Section 1701.54 of the Ohio Revised Code:

RESOLVED, that pursuant to authority as set forth in the Code of Regulations of Premix, Inc., Article II, Section 1, Number of Directors, the number of directors be increased from six to seven, with the present six Directors, Herbert B. Ailes, Ford M. Davey, George H. Kaull, Robert A. Howell, Seymour S. Feuer, and E. Terry Warren, to continue in office, and that Dr. Frank N. Kelley be elected to the remaining seventh directorship, all of said Directors to hold office until the next Annual Meeting of Shareholder.

 

DATED:		June 13,1956				SOCIETY BANK OF EASTERN OHIO, N.A.
						Trustee, as Sole Shareholder
						By:
						Title;		Trust Officer

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PREMIX, INC.

ACTION BY WRITTEN CONSENT OF VOTING SHAREHOLDER

The undersigned, being the sole voting shareholder of PREMIX, INC., hereby approves and adopts the following resolution in writing, pursuant to the authority of Section 1701.55 of the Ohio Revised Code:

RESOLVED, that the Amendments to the Amended Code of Regulations of the Corporation attached hereto as Exhibit A and incorporated herein by reference are hereby adopted to supersede and replace the existing sections of the Amended Code of Regulations where applicable.

Dated: May 17, 1990

 

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Exhibit “A”

AMENDMENTS TO AMENDED CODE OF REGULATIONS

ARTICLE IV

Officers

Section 1. General Provisions. The Board of Directors shall elect a chairman of the board, a president, no more than two corporate vice presidents, a secretary and a treasurer. The Board of Directors may from time to time create such offices and appoint such other officers, subordinate officers and assistant officers as it may determine. The president…[same as existing Code].

ARTICLE V

Duties of Officers

Section 1. Chairman of the Board. The chairman of the board shall preside at all meetings of the Board of Directors and shall have such other powers and duties as may be prescribed by the Board of Directors.

Section 1a. Vice Chairman. The vice chairman shall have such powers and duties as may be prescribed by the chairman or the Board of Directors.

Section 2. President. The president shall have such powers and duties as may be prescribed by the chairman or the Board of Directors.

Section 3. Corporate Vice Presidents. The corporate vice presidents shall have such powers and duties as may from time to time be assigned to them by the chairman, the Board of Directors or the president.

Section 4. Secretary. The secretary shall keep minutes of all the proceedings of the shareholders and Board of Directors and shall make proper record of the same, which shall be attested by him; shall have authority to execute and deliver certificates as to any of such proceedings and any other records of the Corporation; shall have authority to sign all certificates for shares and all deeds, mortgages, bonds, agreements, notes and other instruments to be executed by the Corporation which require his signature; shall give notice of meetings of shareholders and directors; shall produce on request at each meeting of shareholders a certified list of shareholders arranged in alphabetical order; shall keep such books and records as may be required by law or by the Board of Directors; and, in general, shall perform all duties incident to the office of secretary and such other duties as may from time to time be assigned to him by the Board of Directors or the president.

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Section 5. Treasurer. The treasurer shall have general supervision of all finances; he shall receive and have in charge all money, bills, notes, deeds, leases, mortgages and similar property belonging to the Corporation, and shall do with the same as may from time to time be required by the Board of Directors. He shall cause to be kept adequate and correct accounts of the business transactions of the Corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, stated capital and shares, together with such other accounts as may be required, and upon the expiration of his term of office shall turn over to his successor or to the Board of Directors all property, books, papers and money of the Corporation in his hands; and shall have such other powers and duties as may from time to time be assigned to him by the Board of Directors or the president.

Section 6. Assistant and Subordinate Officers. The Board of Directors may appoint such assistant and subordinate officers as it may deem desirable. Each such officer shall hold office during the pleasure of the Board of Directors, and perform such duties as the Board of Directors or the president may prescribe.

The Board of Directors may, from time to time, authorize any officer to appoint and remove subordinate officers, to prescribe their authority and duties, and to fix their compensation.

Section 7. Duties of Officers May be Delegated. In the absence of any officer of the Corporation, or for any other reason the Board of Directors may deem sufficient, the Board of Directors may delegate, for the time being, the powers and duties, or any of them, of such officers to any other officer or to any director.

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PREMIX, INC.

ACTION BY WRITTEN CONSENT OF VOTING SHAREHOLDER

In accordance with §1701.54 of the Revised Code of the State of Ohio, the undersigned, being the sole voting shareholder of PREMIX, INC., an Ohio corporation, hereby approves and adopts the following resolution in writing, pursuant to the authority of §1701.54 of the Ohio Revised Code:

RESOLVED, that Article I, Section 6, of the Code of Regulations of the Corporation be amended as follows:

The last sentence of the first paragraph of Section 6 is hereby deleted and the following sentence substituted:

“Said record date shall not be more than one hundred twenty (120) days preceding the date of such meeting, the date fixed for the payment of any dividend or distribution, or the date fixed for the receipt or the exercise of rights, as the case may be.”

 

September 30, 1991						SOCIETY NATIONAL BANK
				By:
						C. R. Sayre, Vice President
						and Senior Trust Officer

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AMENDED AND RESTATED

CODE OF REGULATIONS

OF

PREMIX, INC.

(Adopted August 12, 1999)

ARTICLE I

Meetings of Shareholders

Section 1. Annual Meetings. The annual meeting of shareholders shall be held on the first Tuesday of February in each year at 10:30 a.m., or at such other time and on such other date as may be fixed by the Board of Directors and stated in the notice of the meeting, for the election of directors, the consideration of reports to be laid before such meeting and the transaction of such other business as may properly come before the meeting.

Section 2. Special Meetings. Special meetings of the shareholders may be called by the Chairman of the Board, the Chief Executive Officer, the President and Chief Operating Officer or any Vice President, and shall be called by the Chairman of the Board, the Secretary or any other officer upon the written request of: (a) the directors by action at a meeting, (b) a majority of the directors acting without a meeting, or (c) the holders of shares entitling them to exercise fifty percent (50%) of the voting power of the Corporation entitled to vote thereat. Calls for such meetings shall specify the purposes thereof. No business other than that specified in the call shall be considered at any special meeting.

Section 3. Notices of Meetings. Unless waived, written notice of each annual or special meeting stating the time, place, and the purposes thereof shall be given by personal delivery or by mail to each shareholder of record entitled to vote at or entitled to notice of the meeting, not more than ten (10) days nor less than seven (7) days before any such meeting. If mailed, such notice shall be directed to the shareholder at his address as the same appears upon the records of the Corporation. Any shareholder, either before or after any meeting, may waive any notice required to be given by law or under these Regulations.

Section 4. Place of Meetings. Meetings of shareholders may be held either within or without the State of Ohio as shall be determined by the person or persons calling the meeting and shall be stated in the notice thereof.

Section 5. Quorum. The holders of shares entitling them to exercise a majority of the voting power of the Corporation present in person or by proxy shall constitute a quorum for the transaction of business to be considered at any meeting of shareholders; provided, however, that no action required by law or by the Articles of Incorporation or these Regulations to be authorized or taken by the holders of a designated proportion of the shares of any particular class or of each class may

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be authorized or taken by a lesser proportion. The act of a majority of the voting shares present or represented at a meeting at which a quorum is present shall be the act of the shareholders. The holders of a majority of the voting shares represented at a meeting, whether or not a quorum is present, may adjourn such meeting from time to time, until a quorum shall be present.

Section 6. Record Date. The Board of Directors may fix a record date for any lawful purpose, including without limiting the generality of the foregoing, the determination of shareholders entitled to (i) receive notice of or to vote at any meeting, (ii) receive payment of any dividend or distribution, (iii) receive or exercise rights of purchase of or subscription for, or exchange or conversion of, shares or other securities, subject to any contract right with respect thereto, or (iv) participate in the execution of written consents, waivers or releases. Said record date shall not be more than one hundred twenty (120) days preceding the date of such meeting, the date fixed for the payment of any dividend or distribution or the date fixed for the receipt or the exercise of rights, as the case may be.

If a record date shall not be fixed, the record date for the determination of shareholders who are entitled to notice of, or who are entitled to vote at, a meeting of shareholders, shall be the close of business on the date next preceding the day on which notice is given, or the close of business on the date next preceding the day on which the meeting is held, as the case may be.

Section 7. Proxies. A person who is entitled to attend a shareholders’ meeting, to vote thereat, or to execute consents, waivers or releases, may be represented at such meeting or vote thereat, and execute consents, waivers and releases, and exercise any of his other rights, by proxy or proxies appointed by a writing signed by such person.

ARTICLE II

Directors

Section 1. Number of Directors. Until changed in accordance with the provisions of this section, the number of directors of the Corporation, none of whom need be shareholders, shall be not less than five (5) nor more than seven (7). The number of directors may be fixed or changed from time to time by amendment to this section adopted by the shareholders or Board of Directors.

Section 2. Election of Directors. Directors shall be elected at the annual meeting of shareholders, but when the annual meeting is not held or directors are not elected thereat, they may be elected at a special meeting called and held for that purpose. Such election shall be by ballot whenever requested by any shareholder entitled to vote at such election; but, unless such request is made, the election may be conducted in any manner approved at such meeting.

At each meeting of shareholders for the election of directors, the persons receiving the greatest number of votes shall be directors.

 

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Section 3. Term of Office. Each director shall hold office until the annual meeting next succeeding his election and until his successor is elected and qualified, or until his earlier resignation, removal from office, disability or death.

Section 4. Removal. All the directors, or all the directors of a particular class, or any individual director may be removed from office, without assigning any cause, by the vote of the holders of a majority of the voting power entitling them to elect directors in place of those to be removed, provided that unless all the directors, or all the directors of a particular class, are removed, no individual director shall be removed in case the votes of a sufficient number of shares are cast against his removal which, if cumulatively voted at an election of all the directors, or all the directors of a particular class, as the case may be, would be sufficient to elect at least one director. In case of any such removal, a new director may be elected at the same meeting for the unexpired term of each director removed.

Section 5. Vacancies. Vacancies in the Board of Directors may be filled by a majority vote of the remaining directors until an election to fill such vacancies is had. Shareholders entitled to elect directors shall have the right to fill any vacancy in the board (whether the same has been temporarily filled by the remaining directors or not) at any meeting of the shareholders called for that purpose, and any directors elected at any such meeting of shareholders shall serve until the next annual election of directors and until their successors are elected and qualified.

Section 6. Quorum and Transaction of Business. A majority of the directors in office shall constitute a quorum for the transaction of business. Whenever less than a quorum is present at the time and place appointed for any meeting of the board, a majority of those present may adjourn the meeting from time to time, until a quorum shall be present. The act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board.

Section 7. Annual Meeting. Annual meetings of the Board of Directors shall be held immediately following annual meetings of the shareholders, or as soon thereafter as is practicable. If no annual meeting of the shareholders is held, or if directors are not elected thereat, then the annual meeting of the Board of Directors shall be held immediately following any special meeting of the shareholders at which directors are elected, or as soon thereafter as is practicable. If such annual meeting of directors is held immediately following a meeting of the shareholders, it shall be held at the same place at which such shareholders’ meeting was held.

Section 8. Regular Meetings. Regular meetings of the Board of Directors shall be held at such times and places, within or without the State of Ohio, as the Board of Directors may, by resolution or by-law, from time to time, determine. The Secretary or an Assistant Secretary shall give notice of each such resolution or by-law to any director who was not present at the time the same was adopted, but no further notice of such regular meeting need be given.

Section 9. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board, Chief Executive Officer, President and Chief Operating Officer or any Vice President, and shall be called by the Chairman of the Board, Secretary or any other officer upon the written request of any two (2) members of the Board of Directors. Such meetings shall be held

 

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at such times and places within or without the State of Ohio, or may be held through the use of communications equipment if all persons participating in the meeting can hear each other, as may be specified in such call.

Section 10. Notice of Annual or Special Meetings. Notice of the time and place of each annual or special meeting shall be given to each director by the Secretary or an Assistant Secretary or by the person or persons calling such meeting. Such notice need not specify the purpose or purposes of the meeting and may be given in any manner or method and at such time so that the director receiving it may have reasonable opportunity to participate in the meeting. Such notice shall, in all events, be deemed to have been properly and duly given if given at least twenty-four (24) hours prior to the meeting and directed to the address of each director as shown upon the Secretary’s records and, in the event of a meeting to be held through the use of communications equipment, if the notice sets forth the telephone number at which each director may be reached for purposes of participation in the meeting as shown upon the Secretary’s records and states that the Secretary must be notified if a director desires to be reached at a different telephone number. The giving of notice shall be deemed to have been waived by any director who shall participate in such meeting and may be waived, in a writing, by any director either before or after such meeting.

Section 11. Compensation. The directors, as such, shall be entitled to receive such reasonable compensation for their services as may be fixed from time to time by resolution of the board, and expenses of attendance, if any, may be allowed for attendance at each annual, regular or special meeting of the board. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of the executive committee or of any standing or special committee may by resolution of the board be allowed such compensation for their services as the board may deem reasonable, and additional compensation may be allowed to directors for special services rendered.

Section 12. By-laws. For the government of its actions, the Board of Directors may adopt by-laws consistent with the Articles of Incorporation and these Regulations.

ARTICLE III

Committees

Section 1. Creation of Committees. The Board of Directors may from time to time, by resolution passed by a majority of the whole board, create such standing or special committees as it deems desirable, the members of which shall be elected by the Board of Directors to serve during the pleasure of the board. If the Board of Directors does not designate a chairman of any committee, such committee shall elect a chairman from its own number. Each such committee shall have such powers and perform such duties, not inconsistent with law, as may be delegated to it by the Board of Directors, other than that of filling vacancies among the directors or in any committee of the directors. Each such committee shall keep full records and accounts of its proceedings and transactions. All action by any committee shall be reported to the Board of Directors at its meeting next succeeding such action and shall be subject to control, revision and alteration by the Board of

 

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Directors, provided that no rights of third persons shall be prejudicially affected thereby. Vacancies in any committee shall be filled by the directors, and the directors may appoint one or more directors as alternate members of any committee who may take the place of any absent member or members at any meeting.

Section 2. Meetings of Committees. Subject to the provisions of these Regulations, each committee shall fix its own rules of procedure and shall meet as provided by such rules or by resolutions of the Board of Directors, and it shall also meet at the call of the President and Chief Operating Officer, the chairman of the committee or any two members of the committee. Unless otherwise provided by such rules or by such resolutions, the provisions of Section 10 of Article II relating to the notice required to be given of meetings of the Board of Directors shall also apply to meetings of any committee. A majority of any committee shall be necessary to constitute a quorum. Any committee may act in a writing, or by telephone with written confirmation, without a meeting, but no such action of any committee shall be effective unless concurred in by all members of the committee.

ARTICLE IV

Officers

Section 1. General Provisions. The Board of Directors shall elect a Chairman of the Board, a Chief Executive Officer, a President and Chief Operating Officer, one or more Vice Presidents, a Secretary and a Chief Financial Officer and Treasurer. The Board of Directors may from time to time create such offices and appoint such other officers, subordinate officers and assistant officers as it may determine. The officers, other than the Chairman of the Board, need not be chosen from among the members of the Board of Directors. Any two of such offices may be held by the same person, but no officer shall execute, acknowledge or verify any instrument in more than one capacity.

Section 2. Term of Office. The officers of the Corporation shall hold office at the pleasure of the Board of Directors, and, unless sooner removed by the Board of Directors, until the next annual meeting of the Board of Directors following the date of their election and until their successors are chosen and qualified. The Board of Directors may remove any officer at any time, with or without cause. A vacancy in any office, however created, shall be filled by the Board of Directors.

ARTICLE V

Duties of Officers

Section 1. Chairman of the Board. The Chairman of the Board shall preside at all meetings of the shareholders and the Board of Directors and shall see that all orders and resolutions of the Board of Directors are carried into effect. The Chairman of the Board shall have authority to delegate special powers and duties to specified officers, so long as such designations shall not be inconsistent with applicable laws, these Bylaws, or action of the Board of Directors. The Chairman of the Board shall also have such other powers and duties as may, from time to time, be prescribed by these bylaws or by resolution of the Board of Directors.

 

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Section 2. Chief Executive Officer. The Chief Executive Officer shall have executive management of the corporation, subject, however, to the control of the Board of Directors and Chairman of the Board and shall, in general, perform all duties incident to the office of Chief Executive Officer. The Chief Executive Officer shall have authority, subject to such rules as may be prescribed by the Board of Directors, to appoint and/or terminate the appointment of such agents and employees of the corporation as he or she shall deem necessary, to prescribe their powers, duties and compensation, and to delegate authority to them. Such agents and employees shall hold office at the discretion of the Chief Executive Officer. The Chief Executive Officer shall have such other powers and duties prescribed by these regulations or as may from time to time be assigned to him by the Board of Directors or Chairman of the Board.

Section 3. President and Chief Operating Officer. The President and Chief Operating Officer of the Corporation, subject to the control of the Board of Directors, Chairman of the Board and Chief Executive Officer, shall be the chief operating officer of the corporation and shall in general supervise and control all of the day-to-day business and affairs of the corporation. The President and Chief Operating Officer shall assist the Chief Executive Officer in the discharge of supervisory, managerial and executive duties and functions. He shall have authority to sign all certificates for shares, and all deeds, mortgages, bonds, agreements, notes, and other instruments requiring his signature; and shall have all the powers and duties prescribed by Chapter 1701 of the Revised Code of Ohio and such others as the Board of Directors, Chairman of the Board or Chief Executive Officer may from time to time assign to him.

Section 4. Vice Presidents. In absence of the President and Chief Operating Officer, or in the event of his death, inability or refusal to act, or in the event for any reason it shall be impracticable for him to act personally, the Vice President (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Board of Directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the President and Chief Operating Officer, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President and Chief Operating Officer. Any Vice President may sign, with the Secretary or Assistant Secretary, certificates for shares of the corporation; and shall perform such other duties and have such authority as from time to time may be delegated or assigned to him or her by the Board of Directors, Chairman of the Board, Chief Executive Officer or President and Chief Operating Officer. The execution of any instrument of the corporation by any Vice President shall be conclusive evidence, as to third parties, of the Vice President’s authority to act in the stead of the President and Chief Operating Officer.

Section 5. Secretary. The Secretary shall keep minutes of all the proceedings of the shareholders and Board of Directors and shall make proper record of the same, which shall be attested by him; shall have authority to execute and deliver certificates as to any of such proceedings and any other records of the Corporation; shall have authority to sign all certificates for shares and all deeds, mortgages, bonds, agreements, notes and other instruments to be executed by the Corporation which require his signature; shall give notice of meetings of shareholders and directors;

 

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shall produce on request at each meeting of shareholders a certified list of shareholders arranged in alphabetical order; shall keep such books and records as may be required by law or by the Board of Directors; and, in general, shall perform all duties incident to the office of Secretary and such other duties as may from time to time be assigned to him by the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President and Chief Operating Officer.

Section 6. Chief Financial Officer and Treasurer. The Chief Financial Officer and Treasurer shall have general supervision of all finances; he shall receive and have in charge all money, bills, notes, deeds, leases, mortgages and similar property belonging to the Corporation, and shall do with the same as may from time to time be required by the Board of Directors. He shall cause to be kept adequate and correct accounts of the business transactions of the Corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, stated capital and shares, together with such other accounts as may be required, and upon the expiration of his term of office shall turn over to his successor or to the Board of Directors all property, books, papers and money of the Corporation in his hands; and shall have such other powers and duties as may from time to time be assigned to him by the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President and Chief Operating Officer.

Section 7. Assistant and Subordinate Officers. The Board of Directors may appoint such assistant and subordinate officers as it may deem desirable. Each such officer shall hold office at the pleasure of the Board of Directors, and perform such duties as the Board of Directors, Chairman of the Board, Chief Executive Officer or President and Chief Operating Officer may prescribe.

The Board of Directors may, from time to time, authorize any officer to appoint and remove subordinate officers, to prescribe their authority and duties, and to fix their compensation.

Section 8. Duties of Officers May be Delegated. In the absence of any officer of the Corporation, or for any other reason the Board of Directors may deem sufficient, the Board of Directors may delegate, for the time being, the powers and duties, or any of them, of such officers to any other officer or to any director.

ARTICLE VI

Indemnification and Insurance

Section 1. Indemnification in Non-Derivative Actions. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party, to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, other than an action by or in the right of the Corporation, by reason of the fact that he is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust, or other enterprise, against expenses, including attorneys’ fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit, or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and

 

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with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and with respect to any criminal action or proceeding, he had reasonable cause to believe that his conduct was unlawful.

Section 2. Indemnification in Derivative Actions. The Corporation shall indemnify any person who was or is a party, or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust, or other enterprise against expenses, including attorneys’ fees, actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Corporation unless, and only to the extent that the Court of Common Pleas, or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the Court of Common Pleas or such court shall deem proper.

Section 3. Indemnification as Matter of Right. To the extent that a director, trustee, officer, employee, or agent has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in Sections 1 and 2 of this Article VI, or in defense of any claim, issue, or matter therein, he shall be indemnified against expenses, including attorneys’ fees, actually and reasonably incurred by him in connection therewith.

Section 4. Determination of Conduct. Any indemnification under Sections 1 and 2 of this Article VI, unless ordered by a court, shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, trustee, officer, employee, or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in Sections 1 and 2 of this Article VI. Such determination shall be made (a) by a majority vote of a quorum consisting of directors of the Corporation who were not and are not parties to or threatened with any such action, suit, or proceeding, or (b) if such a quorum is not obtainable or if a majority vote of a quorum of disinterested directors so directs, in a written opinion by independent legal counsel, other than an attorney or a firm having associated with it an attorney who has been retained by or who has performed services for the Corporation or any person to be indemnified within the past five years, or (c) by the shareholders or (d) by the Court of Common Pleas or the court in which such action, suit, or proceeding was brought. Any determination made by the disinterested directors under Section 4(a) or by independent legal counsel under Section 4(b) of this Article VI shall be promptly communicated to the person who threatened or brought the action or suit, by or in the right of the Corporation under Section 2 of this Article VI, and within ten days after

 

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receipt of such notification, such person shall have the right to petition the Court of Common Pleas or the court in which such action or suit was brought to review the reasonableness of such determination.

Section 5. Advance Payment of Expenses. Expenses, including attorneys’ fees, incurred in defending any action, suit, or proceeding referred to in Sections 1 and 2 of this Article VI, may be paid by the Corporation in advance of the final disposition of such action, suit, or proceeding as authorized by the directors in the specific case upon receipt of an undertaking by or on behalf of the director, trustee, officer, employee, or agent to repay such amount, unless it shall ultimately be determined that he is entitled to be indemnified by the Corporation as authorized in this Article VI.

Section 6. Nonexclusivity. The indemnification provided by this Article VI shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under the Articles of Incorporation or the Code of Regulations or any agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office and shall continue as to a person who has ceased to be a director, trustee, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person.

Section 7. Liability Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Article VI or of Chapter 1701 of the Ohio Revised Code.

ARTICLE VII

Certificates for Shares

Section 1. Form and Execution. Certificates for shares, certifying the number of fully paid shares owned, shall be issued to each shareholder in such form as shall be approved by the Board of Directors. Such certificates shall be signed by the Chairman of the Board, the Chief Executive Officer, the President and Chief Operating Officer or a Vice President and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer; provided, however, that if such certificates are countersigned by a transfer agent and/or registrar, the signatures of any of said officers and the seal of the Corporation upon such certificates may be facsimiles, engraved, stamped or printed. If any officer or officers, who shall have signed, or whose facsimile signature shall have been used, printed or stamped on any certificate or certificates for shares, shall cease to be such officer or officers, because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates, if authenticated by the endorsement thereon of the signature of a transfer agent or registrar, shall nevertheless be

 

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conclusively deemed to have been adopted by the Corporation by the use and delivery thereof and shall be as effective in all respects as though signed by a duly elected, qualified and authorized officer or officers, and as though the person or persons who signed such certificate or certificates, or whose facsimile signature or signatures shall have been used thereon, had not ceased to be an officer or officers of the Corporation.

Section 2. Registration of Transfer. Subject to the provisions respecting transferability contained in the Articles of Incorporation, any certificate for shares of the Corporation shall be transferable in person or by attorney upon the surrender thereof to the Corporation or any transfer agent therefor (for the class of shares represented by the certificate surrendered) properly endorsed for transfer and accompanied by such assurances as the Corporation or such transfer agent may require as to the genuineness and effectiveness of each necessary endorsement.

Section 3. Lost, Destroyed or Stolen Certificates. A new share certificate or certificates may be issued in place of any certificate theretofore issued by the Corporation which is alleged to have been lost, destroyed or wrongfully taken upon (i) the execution and delivery to the Corporation by the person claiming the certificate to have been lost, destroyed or wrongfully taken of an affidavit of that fact, specifying whether or not, at the time of such alleged loss, destruction or taking, the certificate was endorsed, and (ii) the furnishing to the Corporation of indemnity and other assurances satisfactory to the Corporation and to all transfer agents and registrars of the class of shares represented by the certificate against any and all losses, damages, costs, expenses or liabilities to which they or any of them may be subjected by reason of the issue and delivery of such new certificate or certificates or in respect of the original certificate.

Section 4. Registered Shareholders. A person in whose name shares are of record on the books of the Corporation shall conclusively be deemed the unqualified owner and holder thereof for all purposes and to have capacity to exercise all rights of ownership. Neither the Corporation nor any transfer agent of the Corporation shall be bound to recognize any equitable interest in or claim to such shares on the part of any other person, whether disclosed upon such certificate or otherwise, nor shall they be obliged to see to the execution of any trust or obligation.

ARTICLE VIII

Fiscal Year

The fiscal year of the Corporation shall end on the 30th day of September in each year, or on such other date as may be fixed from time to time by the Board of Directors.

 

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ARTICLE IX

Seal

The Board of Directors may provide a suitable seal containing the name of the Corporation. If deemed advisable by the Board of Directors, duplicate seals may be provided and kept for the purposes of the Corporation.

ARTICLE X

Amendments

This Code of Regulations may be amended, or new regulations may be adopted, at any meeting of shareholders called for such purpose by the affirmative vote of, or without a meeting by the written consent of, the holders of shares entitling them to exercise a majority of the voting power of the Corporation on such proposal.

 

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SECOND AMENDED AND RESTATED

CODE OF REGULATIONS

OF

PREMIX, INC.

(Adopted August 12, 2009)

ARTICLE I

Meetings of Shareholders

Section 1. Annual Meetings. The annual meeting of shareholders shall be held on the first Tuesday of February in each year at 11:00 a.m., or at such other time and on such other date as may be fixed by the Board of Directors and stated in the notice of the meeting, for the election of directors, the consideration of reports to be laid before such meeting and the transaction of such other business as may properly come before the meeting.

Section 2. Special Meetings. Special meetings of the shareholders may be called by the President or any Vice President, and shall be called by the Secretary or any other officer upon the written request of: (a) the directors by action at a meeting, (b) a majority of the directors acting without a meeting, or (c) the holders of shares entitling them to exercise fifty percent (50%) of the voting power of the Corporation entitled to vote thereat. Calls for such meetings shall specify the purposes thereof. No business other than that specified in the call shall be considered at any special meeting.

Section 3. Notices of Meetings. Written notice of each annual or special meeting stating the time, place, and the purposes thereof shall be given by personal delivery or by mail to each shareholder of record entitled to vote at or entitled to notice of the meeting, not more than ten (10) days nor less than seven (7) days before any such meeting. If mailed, such notice shall be directed to the shareholder at his address as the same appears upon the records of the Corporation. Any shareholder, either before or after any meeting, may waive any notice required to be given by law or under these Regulations.

Section 4. Place of Meetings. Meetings of shareholders may be held either within or without the State of Ohio as shall be determined by the person or persons calling the meeting and shall be stated in the notice thereof.

Section 5. Quorum. The holders of shares entitling them to exercise a majority of the voting power of the Corporation, present in person or by proxy, shall constitute a quorum for the transaction of business to be considered at such meeting; provided, however, that no action required by law or by the Articles of Incorporation or these Regulations to be authorized or taken by the holders of a designated proportion of the shares of any particular class or of each class may be authorized or taken by a lesser proportion. The act of a majority of the voting shares

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present or represented at a meeting at which a quorum is present shall be the act of the shareholders. The holders of a majority of the voting shares represented at a meeting, whether or not a quorum is present, may adjourn such meeting from time to time, until a quorum shall be present.

Section 6. Record Date. The Board of Directors may fix a record date for any lawful purpose, including without limiting the generality of the foregoing, the determination of shareholders entitled to (i) receive notice of or to vote at any meeting, (ii) receive payment of any dividend or distribution, (iii) receive or exercise rights of purchase or subscription for, or exchange or conversion of, shares or other securities, subject to any contract right with respect thereto, or (iv) participate in the execution of written consents, waivers or releases. Said record date shall not be more than ten (10) days preceding the date of such meeting, the date fixed for the payment of any dividend or distribution or the date fixed for the receipt or the exercise of rights, as the case may be.

If a record date shall not be fixed, the record date for the determination of shareholders who are entitled to notice of, or who are entitled to vote at, a meeting of shareholders, shall be the close of business on the date next preceding the day on which notice is given, or the close of business on the date next preceding the day on which the meeting is held, as the case may be.

Section 7. Proxies. A person who is entitled to attend a shareholders’ meeting, to vote thereat, or to execute consents, waivers or releases, may be represented at such meeting or vote thereat, and execute consents, waivers and releases, and exercise any of his other rights, by proxy or proxies appointed by a writing signed by such person.

ARTICLE II

Directors

Section 1. Number of Directors. Until changed in accordance with the provisions of this section, the number of directors of the Corporation, none of whom need be shareholders, shall be three (3). The number of directors may be fixed or changed from time to time by amendment to this section adopted by the shareholders or Board of Directors.

Section 2. Election of Directors. Directors shall be elected at the annual meeting of shareholders, but when the annual meeting is not held or directors are not elected thereat, they may be elected at a special meeting called and held for that purpose. Such election shall be by ballot whenever requested by any shareholder entitled to vote at such election; but, unless such request is made, the election may be conducted in any manner approved at such meeting.

At each meeting of shareholders for the election of directors, the persons receiving the greatest number of votes shall be directors.

 

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Section 3. Term of Office. Each director shall hold office until the annual meeting next succeeding his election and until his successor is elected and qualified, or until his earlier resignation, removal from office, disability or death.

Section 4. Removal. All the directors, or all the directors of a particular class, or any individual director may be removed from office, without assigning any cause, by the vote of the holders of a majority of the voting power entitling them to elect directors in place of those to be removed, provided that unless all the directors, or all the directors of a particular class, are removed, no individual director shall be removed in case the votes of a sufficient number of shares are cast against his removal which, if cumulatively voted at an election of all the directors, or all the directors of a particular class, as the case may be, would be sufficient to elect at least one director. In case of any such removal, a new director may be elected at the same meeting for the unexpired term of each director removed.

Section 5. Vacancies. Vacancies in the Board of Directors may be filled by a majority vote of the remaining directors until an election to fill such vacancies is had. Shareholders entitled to elect directors shall have the right to fill any vacancy in the board (whether the same has been temporarily filled by the remaining directors or not) at any meeting of the shareholders called for that purpose, and any director elected at any such meeting of shareholders shall serve until the next annual election of directors and until their successors are elected and qualified.

Section 6. Quorum and Transaction of Business. A majority of the whole authorized number of directors shall constitute a quorum for the transaction of business, except that a majority of the directors in office shall constitute a quorum for filling a vacancy on the board. Whenever less than a quorum is present at the time and place appointed for any meeting of the board, a majority of those present may adjourn the meeting from time to time, until a quorum shall be present. The act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the board.

Section 7. Annual Meeting. Annual meetings of the Board of Directors shall be held immediately following annual meetings of the shareholders, or as soon thereafter as is practicable. If no annual meeting of the shareholders is held, or if directors are not elected thereat, then the annual meeting of the Board of Directors shall be held immediately following any special meeting of the shareholders at which directors are elected, or as soon thereafter as is practicable. If such annual meeting of directors is held immediately following a meeting of the shareholders, it shall be held at the same place at which such shareholders’ meeting was held.

Section 8. Regular Meetings. Regular meetings of the Board of Directors shall be held at such times and places, within or without the State of Ohio, as the Board of Directors may by resolution or by-law, from time to time, determine. The Secretary or an Assistant Secretary shall give notice of each such resolution or by-law to any director who was not present at the time the same was adopted, but no further notice of such regular meeting need be given.

Section 9. Special Meetings. Special meetings of the Board of Directors may be called by the President or any Vice President, and shall be called by the Secretary or any other

 

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officer upon the written request of any two (2) members of the Board of Directors. Such meetings shall be held at such times and places within or without the State of Ohio, or may be held through the use of communications equipment if all persons participating in the meeting can hear each other, as may be specified in such call.

Section 10. Notice of Annual or Special Meetings. Notice of the time and place of each annual or special meeting shall be given to each director by the Secretary or an Assistant Secretary or by the person or persons calling such meeting. Such notice need not specify the purpose or purposes of the meeting and may be given in any manner or method and at such time so that the director receiving it may have reasonable opportunity to participate in the meeting. Such notice shall, in all events, be deemed to have been properly and duly given if given at least twenty-four (24) hours prior to the meeting and directed to the address of each director as shown upon the Secretary’s records and, in the event of a meeting to be held through the use of communications equipment, if the notice sets forth the telephone number at which each director may be reached for purposes of participation in the meeting as shown upon the Secretary’s records and states that the Secretary must be notified if a director desires to be reached at a different telephone number. The giving of notice shall be deemed to have been waived by any director who shall participate in such meeting and may be waived, in a writing, by any director either before or after such meeting.

Section 11. Compensation. The directors, as such, shall be entitled to receive such reasonable compensation for their services as may be fixed from time to time by resolution of the board, and expenses of attendance, if any, may be allowed for attendance at each annual, regular or special meeting of the board. Nothing herein contained shall be construed to preclude any directors from serving the Corporation in any other capacity and receiving compensation therefor. Members of the executive committee or of any standing or special committee may by resolution of the board be allowed such compensation for their services as the board may deem reasonable, and additional compensation may be allowed to directors for special services rendered.

Section 12. By-Laws. For the government of its actions, the Board of Directors may adopt by-laws consistent with the Articles of Incorporation and these Regulations.

ARTICLE III

Committees

Section 1. Committees. The Board of Directors may by resolution provide for such standing or special committees as it deems desirable, and discontinue the same at its pleasure. Each such committee shall have such powers and perform such duties, not inconsistent with law, as may be delegated to it by the Board of Directors. Vacancies in such committees shall be filled by the Board of Directors or as the Board of Directors may provide.

 

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ARTICLE IV

Officers

Section 1. General Provisions. The Board of Directors shall elect a President, a Secretary and a Chief Financial Officer and Treasurer. The Board of Directors may from time to time create such offices and appoint such other officers, subordinate officers and assistant officers as it may determine. The officers need not be chosen from among the members of the Board of Directors. Any two of such offices may be held by the same person, but no officer shall execute, acknowledge or verify any instrument in more than one capacity.

Section 2. Term of Office. The officers of the Corporation shall hold office at the pleasure of the Board of Directors, and, unless sooner removed by the Board of Directors, until the next annual meeting of the Board of Directors following the date of their election and until their successors are chosen and qualified. The Board of Directors may remove any officer at any time, with or without cause. A vacancy in any office, however created, shall be filled by the Board of Directors.

ARTICLE V

Duties of Officers

Section 1. President. The President of the corporation, subject to the control of the Board of Directors, shall be the chief executive officer of the corporation and shall in general supervise and control all of the business and affairs of the corporation. The President shall preside at all meetings of the shareholders and the Board of Directors and shall see that all orders and resolutions of the Board of Directors are carried into effect. The President shall have authority, subject to such rules as may be prescribed by the Board of Directors, to appoint and/or terminate the appointment of such agents and employees of the corporation as he or she shall deem necessary, to prescribe their powers, duties and compensation, and to delegate authority to them. Such agents and employees shall hold office at the discretion of the President. He shall have authority to sign all certificates for shares, and all deeds, mortgages, bonds, agreements, notes, and other instruments requiring his signature; and shall have all the powers and duties prescribed by Chapter 1701 of the Revised Code of Ohio and such others as the Board of Directors may from time to time assign to him.

Section 2. Vice Presidents. If the Board appoints a Vice President, then in absence of the President, or in the event of his death, inability or refusal to act, or in the event for any reason it shall be impracticable for him to act personally, the Vice President (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Board of Directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Any Vice President may sign, with the Secretary or Assistant Secretary, certificates for shares of the corporation; and shall perform such other duties and have such authority as from time to time may be delegated or assigned to him or her by the Board of Directors or President. The execution of any instrument of the corporation by any Vice President shall be conclusive evidence, as to third parties, of the Vice President’s authority to act in the stead of the President.

 

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Section 3. Secretary. The Secretary shall keep minutes of all the proceedings of the shareholders and Board of Directors and shall make proper record of the same, which shall be attested by him; shall have authority to execute and deliver certificates as to any of such proceedings and any other records of the Corporation; shall have authority to sign all certificates for shares and all deeds, mortgages, bonds, agreements, notes and other instruments to be executed by the Corporation which require his signature; shall give notice of meetings of shareholders and directors; shall produce on request at each meeting of shareholders a certified list of shareholders arranged in alphabetical order; shall keep such books and records as may be required by law or by the Board of Directors; and, in general, shall perform all duties incident to the office of Secretary and such other duties as may from time to time be assigned to him by the Board of Directors or President.

Section 4. Chief Financial Officer and Treasurer. The Chief Financial Officer and Treasurer shall be the chief financial officer of the Corporation, and shall have general supervision of all finances; he shall receive and have in charge all money, bills, notes, deeds, leases, mortgages and similar property belonging to the Corporation, and shall do with the same as may from time to time be required by the Board of Directors. He shall cause to be kept adequate and correct accounts of the business transactions of the Corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, stated capital and shares, together with such other accounts as may be required, and upon the expiration of his term of office shall turn over to his successor or to the Board of Directors all property, books, papers and money of the Corporation in his hands; and shall have such other powers and duties as may from time to time be assigned to him by the Board of Directors or President.

Section 5. Assistant and Subordinate Officers. The Board of Directors may appoint such assistant and subordinate officers as it may deem desirable. Each such officer shall hold office at the pleasure of the Board of Directors, and perform such duties as the Board of Directors or President may prescribe.

The Board of Directors may, from time to time, authorize any officer to appoint and remove subordinate officers, to prescribe their authority and duties, and to fix their compensation.

Section 6. Duties of Officers May be Delegated. In the absence of any officer of the Corporation, or for any other reason the Board of Directors may deem sufficient, the Board of Directors may delegate, for the time being, the powers and duties, or any of them, of such officers to any other officer or to any director.

ARTICLE VI

Indemnification and Insurance

Section 1. Indemnification in Non-Derivative Action. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party, to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal,

 

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administrative, or investigative, other than an action by or in the right of the Corporation, by reason of the fact that he is or was a director or officer of the corporation, or is or was serving at the request of the Corporation as a director, manager, trustee, officer, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust, or other enterprise, against expenses, including attorneys’ fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit, or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and with respect to any criminal action or proceeding, he had reasonable cause to believe that his conduct was unlawful.

Section 2. Indemnification in Derivative Actions. The Corporation shall indemnify any person who was or is a party, or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director, manager, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust, or other enterprise against expenses, including attorneys’ fees, actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Corporation unless, and only to the extent that the Court of Common Pleas, or the court in which such action or suit was brought shall determine upon application that, despite the adjudication, of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the Court of Common Pleas or such court shall deem proper.

Section 3. Indemnification as Matter of Right. To the extent that a director, manager, trustee, officer, employee, or agent has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in Sections 1 and 2 of this Article VI, or in defense of any claim, issue, or matter herein, he shall be indemnified against expenses, including attorneys’ fees, actually and reasonably incurred by him in connection therewith.

Section 4. Determination of Conduct. Any indemnification under Sections 1 and 2 of this Article VI, unless ordered by a court, shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, manager, trustee, officer, employee, or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in Sections I and 2 of this Article VI. Such determination shall be made (a) by a majority vote of a quorum consisting of directors of the corporation who were not and are not parties to or threatened with any such action, suit, or

 

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proceeding, or (b) if such a quorum is not obtainable or if a majority vote of a quorum of disinterested directors so directs, in a written opinion by independent legal counsel, other than an attorney or a firm having associated with it an attorney who has been retained by or who has performed services for the Corporation or any person to be indemnified within the past five years, of (c) by the shareholders or (d) by the Court of Common Pleas or the court in which such action, suit, or proceeding was brought. Any determination made by the disinterested directors under section 4(a) or by independent legal counsel under Section 4(b) of this Article VI shall be promptly communicated to the person who threatened or brought the action or suit., by or in the right of the Corporation under Section 2 of this Article VI, and within ten days after receipt of such notification, such person shall have the right to petition the Court of Common Pleas or the court in which such action or suit was brought to review the reasonableness of such determination.

Section 5. Advance Payment of Expenses. Expenses, including attorneys’ fees, incurred in defending any action suit, or proceeding referred to in Sections 1 and 2 of this Article VI, may be paid by the Corporation in advance of the final disposition of such action, suit, or proceeding as authorized by the directors in the specific case upon receipt of an undertaking by or on behalf of the director, manager, trustee, officer, employee, or agent to repay such amount, unless it shall ultimately be determined that he is entitled to be indemnified by the corporation as authorized in this Article VI.

Section 6. Nonexclusivity. The indemnification provided by this Article VI shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under the Articles of Incorporation or the Code of Regulations or any agreement, vote of shareholders or, disinterested directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office and shall continue as to a person who has ceased to be a director, manager, trustee, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person.

Section 7. Liability Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, manager, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, non-profit or for profit, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Article VI or of Chapter 1701 of the Ohio Revised Code.

ARTICLE VII

Certificates for Shares

Section 1. Form and Execution. Certificates for shares, certifying the number of fully paid shares owned, shall be issued to each shareholder in such form as shall be approved by the Board of Directors. Such certificates shall be signed by the President or a Vice President and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer; provided,

 

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however that if such certificates are countersigned by a transfer agent and/or registrar, the signatures of any of said officers and the seal of the Corporation upon such certificates may be facsimiles, engraved, stamped or printed. If any officer or officers, who shall have signed, or whose facsimile signature shall have been used, printed or stamped on any certificate or certificates for shares, shall cease to be such officer or officers, because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the corporation, such certificate or certificates, if authenticated by the endorsement thereon of the signature of a transfer agent or registrar, shall nevertheless be conclusively deemed to have been adopted by the Corporation by the use and delivery thereof and shall be as effective in all respects as though signed by a duly elected, qualified and authorized officer or officers, and as though the person or persons who signed such certificate or certificates, or whose facsimile signature or signatures shall have been used thereon, had not ceased to be an officer or officers of the Corporation.

Section 2. Registration of Transfer. Any certificate for shares of the Corporation shall be transferable in person or by attorney upon the surrender thereof to the Corporation or any transfer agent therefor (for the class of shares represented by the certificate surrendered) properly endorsed for transfer and accompanied by such assurances as the Corporation or such transfer agent may require as to the genuineness and effectiveness of each necessary endorsement.

Section 3. Lost, Destroyed or Stolen Certificates. A new share certificate or certificates may be issued in place of any certificate theretofore issued by the Corporation which is alleged to have been lost, destroyed or wrongfully taken upon (i) the execution and delivery to the Corporation by the person claiming the certificate to have been lost, destroyed or wrongfully taken of an affidavit of that fact, specifying whether or not, at the time of such alleged loss, destruction or taking, the certificate was endorsed, and (ii) the furnishing to the Corporation of indemnity and other assurances satisfactory to the Corporation and to all transfer agents and registrars of the class of shares represented by the certificate against any and all losses, damages, costs, expenses, or liabilities to which they or any of them may be subjected by reason of the issue and delivery of such new certificate or certificates or in respect of the original certificate.

Section 4. Registered Shareholders. A person in whose name shares are of record on the books of the Corporation shall conclusively be deemed the unqualified owner and holder thereof for all purposes and to have capacity to exercise all rights of ownership. Neither the Corporation nor any transfer agent of the Corporation shall be bound to recognize any equitable interest In or claim to such shares on the part of any other person, whether disclosed upon such certificate or otherwise, nor shall they be obliged to see to the execution of any trust or obligation.

ARTICLE VIII

Fiscal Year

The fiscal year of the corporation shall end on the 30th day of September in each year, or on such other date as may be fixed from time to time by the Board of Directors.

 

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ARTICLE IX

Seal

The Board of Directors may provide a suitable seal containing the name of the Corporation. If deemed advisable by the Board of Directors, duplicate seals may be provided and kept for the purposes of the Corporation.

ARTICLE X

Amendments

This Code of Regulations may be amended, or new regulations may be adopted, at any meeting of shareholders called for such purpose by the affirmative vote of, or without a meeting by the written consent of, the holders of shares entitling them to exercise a majority of the voting power of the Corporation on such proposal.

 

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Exhibit 3.35

 

		Delaware		PAGE 1
		The First State

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE OF “PREMIX HOLDING COMPANY”, FILED IN THIS OFFICE ON THE FIFTH DAY OF NOVEMBER, A.D. 2014, AT 11:20 O’CLOCK A.M.

A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS.

 

				Jeffrey W. Bullock, Secretary of State
3035182    8100   141372220				AUTHENTICATION: 1836759
				DATE: 11-05-14
You may verify this certificate online at corp.delaware.gov/authver.shtml

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		State of Delaware
		Secretary of State
		Division of Corporations
		Delivered 11:24 AM 11/05/2014
		FILED 11:20 AM 11/05/2014
		SRV 141372220 – 3035182 FILE

CERTIFICATE OF SECOND AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

PREMIX HOLDING COMPANY

***********

Adopted in accordance with the provisions of Section 242 and Section 245 of

the General Corporation Law of the State of Delaware

***********

The undersigned, being the duly elected Corporate Controller, Secretary and Treasurer of Premix Holding Company, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”), does hereby certify as follows:

1. The Corporation filed its original Certificate of Incorporation with the Delaware Secretary of State on April 27, 1999, under the name PMX Holding Company.

2. The Board of Directors of the Corporation, pursuant to unanimous written consent, adopted the resolutions set forth below proposing the amendment and restatement to the Certificate of Incorporation of the Corporation (as amended and restated, the “Restatement”):

“RESOLVED, that the Certificate of Incorporation of the Corporation be, and it hereby is, amended and restated, in its entirety, in accordance with the provisions of Section 242 and Section 245 of the General Corporation Law of the State of Delaware as set forth on Exhibit A attached hereto and made a part hereof.”

3. The Restatement was duly adopted in accordance with Section 242 and Section 245 of the General Corporation Law of the State of Delaware by the Board of Directors of the Corporation.

4. The Restatement was duly adopted in accordance with Section 228 and Section 242 of the General Corporation Law of the State of Delaware by the sole stockholder of the Corporation.

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IN WITNESS WHEREOF, the undersigned does hereby certify, under penalty of perjury, that this Certificate of Second Amended and Restated Certificate of Incorporation is the act and deed of the Corporation, and the facts stated herein are true, and accordingly has hereunto set his hand on this 5th day of November, 2014.

 

 

{Premix Holding Company -		S-1
Second A&R Certificate of Incorporation}

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Exhibit A

SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

PREMIX HOLDING COMPANY

ARTICLE ONE

The name of the corporation is Premix Holding Company.

ARTICLE TWO

The address of the corporation’s registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company.

ARTICLE THREE

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 the State of Delaware.

ARTICLE FOUR

The total number of shares of stock which the corporation has authority to issue is two thousand (2,000) shares of Common Stock, par value $0,001 per share.

ARTICLE FIVE

The corporation is to have perpetual existence.

ARTICLE SIX

In furtherance and not in limitation of the powers conferred by statute, the board of directors of the corporation is expressly authorized to make, alter or repeal the by-laws of the corporation.

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ARTICLE SEVEN

Meetings of stockholders may be held within or without the State of Delaware, as the by-laws of the corporation may provide. The books of the corporation may be kept 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 by-laws of the corporation. Election of directors need not be by written ballot unless the by-laws of the corporation so provide.

ARTICLE EIGHT

To the fullest extent permitted by the General Corporation Law of the State of Delaware 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 a breach of fiduciary duty as a director. Any repeal or modification of this ARTICLE EIGHT shall not adversely affect any right or protection of a director of the corporation existing at the time of such repeal or modification.

ARTICLE NINE

The corporation expressly elects not to be governed by Section 203 of the General Corporation Law of the State of Delaware.

ARTICLE TEN

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 herein and by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation.

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Exhibit 3.36

SECOND AMENDED AND RESTATED BY-LAWS

OF

PREMIX HOLDING COMPANY

A Delaware corporation

(Adopted as of November 5, 2014)

ARTICLE I

OFFICES

Section 1 Registered Office. The registered office of the corporation in the State of Delaware shall be located at Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware 19801. The name of the corporation’s registered agent at such address shall be The Corporation Trust Company. The registered office and/or registered agent of the corporation may be changed from time to time by action of the board of directors.

Section 2 Other Offices. The corporation may also have offices at such other places, both within and without the State of Delaware, as the board of directors may from time to time determine or the business of the corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

Section 1 Annual Meetings. An annual meeting of the stockholders shall be held each year within one hundred twenty (120) days after the close of the immediately preceding fiscal year of the corporation for the purpose of electing directors and conducting such other proper business as may come before the meeting. The date, time and place, if any, and/or the means of remote communication, of the annual meeting shall be determined by the president of the corporation; provided, however, that if the president does not act, the board of directors shall determine the date, time and place, if any, and/or the means of remote communication, of such meeting. No annual meeting of stockholders need be held if not required by the corporation’s certificate of incorporation or by the General Corporation Law of the State of Delaware.

Section 2 Special Meetings. Special meetings of stockholders may be called for any purpose (including, without limitation, the filling of board vacancies and newly created directorships) and may be held at such time and place, within or without the State of Delaware, and/or by means of remote communication, as shall be stated in a written notice of meeting or in a duly executed waiver of notice thereof. Such meetings may be called at any time by the board of directors or the president and shall be called by the president upon the written request of holders of shares entitled to cast not less than a majority of the votes at the meeting, which written request shall state the purpose or purposes of the meeting and shall be delivered to the president. The date, time and place, if any, and/or remote communication, of any special meeting of stockholders shall be determined by the board of directors of the corporation. On such written request, the president shall fix a date and time for such meeting within 10 days after receipt of a request for such meeting in such written request.

Section 3 Place of Meetings. The board of directors may designate any place, either within or without the State of Delaware, and/or by means of remote communication, as the place of meeting for

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any annual meeting or for any special meeting called by the board of directors. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal executive office of the corporation.

Section 4 Notice. Whenever stockholders are required or permitted to take any action at a meeting, written or printed notice stating the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of special meetings, the purpose or purposes, of such meeting, shall be given to each stockholder entitled to vote at such meeting and to each director not less than 10 nor more than 60 days before the date of the meeting. All such notices shall be delivered, either personally, by mail, or by a form of electronic transmission consented to by the stockholder to whom the notice is given, by or at the direction of the board of directors, the president or the secretary, and if mailed, such notice shall be deemed to be delivered when deposited in the United States mail, postage prepaid, addressed to the stockholder at his, her or its address as the same appears on the records of the corporation. If given by electronic transmission, such notice shall be deemed to be delivered (a) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; (b) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (c) if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (1) such posting and (2) the giving of such separate notice; and (3) if by any other form of electronic transmission, when directed to the stockholder. Any such consent shall be revocable by the stockholder by written notice to the corporation. Any such consent shall be deemed revoked if (1) the corporation is unable to deliver by electronic transmission two consecutive notices given by the corporation in accordance with such consent and (2) such inability becomes known to the secretary or an assistant secretary of the corporation or to the transfer agent. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened.

Section 5 Stockholders List. The officer who has charge of the stock ledger of the corporation shall make, at least 10 days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at such meeting arranged in alphabetical order, showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, and/or (ii) during ordinary business hours, at the principal place of business of the corporation. In the event that the corporation determines to make the list available on an electronic network, the corporation may take reasonable steps to ensure that such information is available only to stockholders of the corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.

Section 6 Quorum. The holders of a majority of the issued and outstanding shares of capital stock, entitled to vote thereon, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders, except as otherwise provided by statute or by the corporation’s certificate of incorporation. If a quorum is not present, the holders of a majority of the shares present in person or represented by proxy at the meeting, and entitled to vote at the meeting, may adjourn the meeting to another time and/or place.

 

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Section 7 Adjourned Meetings. When a meeting is adjourned to another time and place, notice need not be given of the adjourned meeting if the time, place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

Section 8 Vote Required. When a quorum is present, the affirmative vote of the majority of votes represented by shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders, unless the question is one upon which by express provisions of an applicable law or of the corporation’s certificate of incorporation a different vote is required, in which case such express provision shall govern and control the decision of such question.

Section 9 Voting Rights. Except as otherwise provided by the General Corporation Law of the State of Delaware or by the corporation’s certificate of incorporation or any amendments thereto and subject to Section 3 of Article VI hereof, every stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of common stock held by such stockholder.

Section 10 Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally. Any proxy is suspended when the person executing the proxy is present at a meeting of stockholders and elects to vote, except that when such proxy is coupled with an interest and the fact of the interest appears on the face of the proxy, the agent named in the proxy shall have all voting and other rights referred to in the proxy, notwithstanding the presence of the person executing the proxy. At each meeting of the stockholders, and before any voting commences, all proxies filed at or before the meeting shall be submitted to and examined by the secretary or a person designated by the secretary, and no shares may be represented or voted under a proxy that has been found to be invalid or irregular.

Section 11 Action by Written Consent Unless otherwise provided in the corporation’s certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken and bearing the dates of signature of the stockholders who signed the consent or consents, shall be 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 and shall be delivered to the corporation by delivery to its registered office in the state of Delaware, or the corporation’s principal place of business, or an officer or agent of the corporation having custody of the book or books in which proceedings of meetings of the stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested or by reputable overnight courier service. All consents properly delivered in accordance with this section shall be deemed to be recorded when so delivered. No written consent shall be effective to take the corporate action referred to therein unless, within 60 days after the earliest dated consent delivered to the corporation as required by this section, written consents signed by the holders of a sufficient number of

 

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shares to take such corporate action are so recorded. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Any action taken pursuant to such written consent or consents of the stockholders shall have the same force and effect as if taken by the stockholders at a meeting thereof.

Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used; provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing.

Section 12 Action by Facsimile, Email or Other Electronic Transmission Consent. A facsimile, email or other electronic transmission by a stockholder or proxyholder (or by any person authorized to act on such person’s behalf) of a proxy or a written consent to an action to be taken (including the delivery of such a document in the .pdf, .tif, .gif, .peg or similar format attached to an email message) shall be deemed to be written, signed, dated and delivered to the corporation for the purposes of this Article; provided that any such facsimile, email or other electronic transmission sets forth or is delivered with information from which the corporation can determine (A) that the facsimile, email or other electronic transmission was transmitted by the stockholder or proxyholder or by a person authorized to act for the stockholder or proxyholder and (B) the date on which such stockholder or proxyholder or authorized person transmitted such facsimile, email or other electronic transmission. The date on which such facsimile, email or other electronic transmission is transmitted shall be deemed to be the date on which such consent or proxy was signed. Any such facsimile, email or other electronic transmission of a consent or proxy shall be treated in all respects as an original executed consent or proxy and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of the board of directors or the Secretary of the corporation, each stockholder, proxyholder or other authorized person who delivered a consent or proxy by facsimile, email or other electronic transmission shall re-execute the original form thereof and deliver such original to the corporation at its registered office in the State of Delaware, its principal place of business or to an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. No consent given by facsimile, email or other electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper form shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded.

ARTICLE III

DIRECTORS

Section 1 General Powers. The business and affairs of the corporation shall be managed by or under the direction of the board of directors.

Section 2 Number, Election and Term of Office. The number of directors which shall constitute the board shall be four (4). Thereafter, the number of directors shall be established from time to time by resolution of the board or of the stockholders. The directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote in the election of directors. The directors shall be elected in this manner at the annual meeting of the stockholders, except as otherwise provided in Section 4 of this Article III. Each director elected shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.

 

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Section 3 Removal and Resignation. Any director or the entire board of directors may be removed at any time, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors. Whenever the holders of any class or series are entitled to elect one or more directors by the provisions of the corporation’s certificate of incorporation, the provisions of this section shall apply, in respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole. Any director may resign at any time upon notice given in writing or by electronic transmission to the corporation.

Section 4 Vacancies. Except as otherwise provided in the corporation’s certificate of incorporation, board vacancies and newly created directorships resulting from any increase in the authorized number of directors shall be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director. Each director so chosen shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as herein provided. Notwithstanding the foregoing, any such vacancy shall automatically reduce the authorized number of directors pro tanto, until such time as the holders of outstanding shares of capital stock who are entitled to elect the director whose office is vacant shall have exercised their right to elect a director to fill such vacancy, whereupon the authorized number of directors shall be automatically increased pro tanto. Each director so chosen shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as herein provided.

Section 5 Annual Meetings. The annual meeting of each newly elected board of directors shall be held without notice (other than notice under these by-laws) immediately after, and at the same place, if any, as the annual meeting of stockholders.

Section 6 Other Meetings and Notice. Regular meetings, other than the annual meeting, of the board of directors may be held without notice at such time and at such place, if any, as shall from time to time be determined by resolution of the board of directors and promptly communicated to all directors then in office. Special meetings of the board of directors may be called by or at the request of the president or any director on at least 24 hours notice to each director, either personally, by telephone, by mail or by electronic transmission.

Section 7 Quorum, Required Vote and Adjournment. A majority of the total number of directors then in office authorized shall constitute a quorum for the transaction of business. The vote of a majority directors present at a meeting at which a quorum is present shall be the act of the board of directors. If a quorum shall not be present at any meeting of the board of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

Section 8 Committees. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation, which to the extent provided in such resolution or these by-laws shall have and may exercise the powers of the board of directors in the management and affairs of the corporation, except as otherwise limited by law. The board of directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required.

Section 9 Committee Rules. Each committee of the board of directors may fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may otherwise be

 

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provided by a resolution of the board of directors designating such committee. Unless otherwise provided in such a resolution, the presence of a majority of the members of the committee then in office shall be necessary to constitute a quorum. In the event that a member and that member’s alternate, if alternates are designated by the board of directors as provided in Section 8 of this Article III, of such committee is or are absent or disqualified, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of any such absent or disqualified member.

Section 10 Communications Equipment. Members of the board of directors or any committee thereof may participate in and act at any meeting of such board or committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in the meeting pursuant to this section shall constitute presence in person at the meeting.

Section 11 Waiver of Notice and Presumption of Assent. Any member of the board of directors or any committee thereof who is present at a meeting shall be conclusively presumed to have waived notice of such meeting, except when such member attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Such member shall be conclusively presumed to have assented to any action taken unless his or her dissent shall be entered in the minutes of the meeting or unless his or her written dissent to such action shall be filed with the person acting as the secretary of the meeting before the adjournment thereof or shall be forwarded by registered mail to the secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to any member who voted in favor of such action.

Section 12 Action by Written Consent. Unless otherwise restricted by the corporation’s certificate of incorporation, any action required or permitted to be taken at any meeting of the board of directors, or of any committee thereof, may be taken without a meeting if all members of the board or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the board, or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

ARTICLE IV

OFFICERS

Section 1 Number. The officers of the corporation shall be elected by the board of directors and shall consist of a president, one or more vice-presidents, a secretary, and such other officers and assistant officers as may be deemed necessary or desirable by the board of directors. Any number of offices may be held by the same person. In its discretion, the board of directors may choose not to fill any office for any period as it may deem advisable.

Section 2 Election and Term of Office. The officers of the corporation shall be elected annually by the board of directors at its first meeting held after each annual meeting of stockholders or as soon thereafter as conveniently may be. Vacancies may be filled or new offices created and filled at any meeting of the board of directors. Each officer shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.

Section 3 Removal. Any officer or agent elected by the board of directors may be removed by the board of directors whenever in its judgment the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed.

 

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Section 4 Vacancies. Any vacancy occurring in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the board of directors for the unexpired portion of the term by the board of directors then in office.

Section 5 Compensation. Compensation of all officers shall be fixed by the board of directors, and no officer shall be prevented from receiving such compensation by virtue of his or her also being a director of the corporation.

Section 6 The President. The president shall be the chief executive officer of the corporation; in the absence of the chairman of the board, shall preside at all meetings of the stockholders and board of directors at which he is present; subject to the powers of the board of directors, shall have general charge of the business, affairs and property of the corporation, and control over its officers, agents and employees; and shall see that all orders and resolutions of the board of directors are carried into effect. The president shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. The president shall have such other powers and perform such other duties as may be prescribed by the board of directors or as may be provided in these by-laws.

Section 7 Vice-presidents. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, act with all of the powers and be subject to all the restrictions of the president. The vice-presidents shall also perform such other duties and have such other powers as the board of directors, the president or these by-laws may, from time to time, prescribe.

Section 8 Secretary and Assistant Secretaries. The secretary shall attend all meetings of the board of directors, all meetings of the committees thereof and all meetings of the stockholders and record all the proceedings of the meetings in a book or books to be kept for that purpose. Under the president’s supervision, the secretary shall give, or cause to be given, all notices required to be given by these by-laws or by law, shall have such powers and perform such duties as the board of directors, the president or these by-laws may, from time to time, prescribe, and shall have custody of the corporate seal of the corporation. The secretary, or an assistant secretary, shall have authority to affix the corporate seal to any instrument requiring it and when so affixed, it may be attested by his or her signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his or her signature. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors, the president, or secretary may, from time to time, prescribe.

Section 9 Treasurer and Assistant Treasurer. The treasurer shall have the custody of the corporate funds and securities; shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation; shall deposit all monies and other valuable effects in the name and to the credit of the corporation as may be ordered by the board of directors; shall cause the funds of the corporation to be disbursed when such disbursements have been duly authorized, taking proper vouchers for such disbursements; and shall render to the president and the board of directors, at its regular meeting or when the board of directors so requires, an account of the corporation; shall have such powers and perform such duties as the board of directors, the president or these by-laws may, from time to time,

 

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prescribe. If required by the board of directors, the treasurer shall give the corporation a bond (which shall be rendered every six years) in such sums and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of the office of treasurer and for the restoration to the corporation, in case of death, resignation, retirement, or removal from office, of all books, papers, vouchers, money, and other property of whatever kind in the possession or under the control of the treasurer belonging to the corporation. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer. The assistant treasurers shall perform such other duties and have such other powers as the board of directors, the president or treasurer may, from time to time, prescribe.

Section 10 Other Officers, Assistant Officers and Agents. Officers, assistant officers and agents, if any, other than those whose duties are provided for in these by-laws, shall have such authority and perform such duties as may from time to time be prescribed by resolution of the board of directors.

Section 11 Absence or Disability of Officers. In the case of the absence or disability of any officer of the corporation and of any person hereby authorized to act in such officer’s place during such officer’s absence or disability, the board of directors may by resolution delegate the powers and duties of such officer to any other officer or to any director, or to any other person whom it may select.

ARTICLE V

INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS

Section 1 Nature of Indemnity. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether brought by or in the right of the corporation or any of its subsidiaries and whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), or any appeal of such proceeding, by reason of or arising out of the fact that such person, or any other person for whom such person is the legal representative, is or was a director or officer of the corporation or is or was serving at the request of the corporation as a director, officer, manager, general partner, employee, fiduciary, or agent of another corporation or of a partnership, limited liability company, joint venture, trust or other enterprise, shall be indemnified and held harmless by the corporation to the fullest extent which it is empowered to do so by the General Corporation Law of the State of Delaware, 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) against all expense, liability and loss (including attorneys’ fees actually and reasonably incurred by such person in connection with such proceeding), and such indemnification shall inure to the benefit of his or her heirs, executors and administrators; provided that, except as provided in Section 2 of this Article V, the corporation shall indemnify any such person seeking indemnification in connection with a proceeding initiated by such person only if such proceeding was authorized by the board of directors of the corporation. The right to indemnification conferred in this Article V shall be a contract right and, subject to Sections 2 and 5 hereof, shall include the right to be paid by the corporation the expenses incurred in defending any such proceeding in advance of its final disposition. The corporation may, by action of its board of directors, provide indemnification to employees and agents of the corporation with the same scope and effect as the foregoing indemnification of directors and officers.

Section 2 Procedure for Indemnification of Directors and Officers. Any indemnification of a director or officer of the corporation provided for under Section 1 of this Article V or advance of expenses provided for under Section 5 of this Article V shall be made promptly, and in any event within 30 days, upon the written request of the director or officer. If a determination by the corporation that the director or officer is entitled to indemnification pursuant to this Article V is required, and the corporation

 

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fails to respond within 60 days to a written request for indemnity, the corporation shall be deemed to have approved the request. If the corporation wrongfully denies a written request for indemnification or advancing of expenses, in whole or in part, or if payment in full pursuant to such request is not properly made within 30 days, the right to indemnification or advances as granted by this Article V shall be enforceable by the director or officer in any court of competent jurisdiction. Such person’s costs and expenses incurred in connection with successfully establishing his or her right to indemnification, in whole or in part, in any such action shall also be indemnified by the corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any, has been tendered to the corporation) that the claimant has not met the standards of conduct which make it permissible under the General Corporation Law of the State of Delaware for the corporation to indemnify the claimant for the amount claimed, but the burden of such defense shall be on the corporation. Neither the failure of the corporation (including its board of directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the corporation (including its board of directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

Section 3 Article Not Exclusive. The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article V shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the corporation’s certificate of incorporation, by-law, agreement, vote of stockholders or disinterested directors or otherwise.

Section 4 Insurance. The corporation may purchase and maintain insurance on its own behalf and on behalf of any person who is or was a director, officer, employee, fiduciary, or agent of the corporation or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, whether or not the corporation would have the power to indemnify such person against such liability under this Article V.

Section 5 Expenses. Expenses incurred by any person described in Section 1 of this Article V in defending a proceeding shall be paid by the corporation in advance of such proceeding’s final disposition unless otherwise determined by the board of directors in the specific case upon receipt of an undertaking by or on behalf of the director or officer or other person to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the board of directors deems appropriate.

Section 6 Employees and Agents. Persons who are not covered by the foregoing provisions of this Article V and who are or were employees or agents of the corporation, or who are or were serving at the request of the corporation as employees or agents of another corporation, partnership, joint venture, trust or other enterprise, may be indemnified, and may be advanced expenses, to the extent authorized at any time or from time to time by the board of directors.

Section 7 Contract Rights. The provisions of this Article V shall be deemed to be a vested contract right between the corporation and each director and officer who serves in any such capacity at any time while this Article V and the relevant provisions of the General Corporation Law of the State of Delaware or other applicable law are in effect. Such contract right shall vest for each director and officer

 

9

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at the time such person is elected or appointed to such position, and no repeal or modification of this Article V or any such law shall affect any such vested rights or obligations of any current or former director or officer with respect to any state of facts or proceeding regardless of when occurring.

Section 8 Merger or Consolidation. For purposes of this Article V, references to “the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Article V with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued.

ARTICLE VI

CERTIFICATES OF STOCK

Section 1 Form. Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in the name of the corporation by the president or a vice-president and the secretary or an assistant secretary of the corporation, certifying the number of shares owned by such holder in the corporation. If such a certificate is countersigned (1) by a transfer agent or an assistant transfer agent other than the corporation or its employee or (2) by a registrar, other than the corporation or its employee, the signature of any such president, vice-president, secretary, or assistant secretary may be facsimiles. In case any officer or officers who have signed, or whose facsimile signature or signatures have been used on, any such certificate or certificates shall cease to be such officer or officers of the corporation whether because of death, resignation or otherwise before such certificate or certificates have been delivered by the corporation, such certificate or certificates may nevertheless be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon had not ceased to be such officer or officers of the corporation. All certificates for shares shall be consecutively numbered or otherwise identified. The name of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the books of the corporation. Shares of stock of the corporation shall only be transferred on the books of the corporation by the holder of record thereof or by such holder’s attorney duly authorized in writing, upon surrender to the corporation of the certificate or certificates for such shares endorsed by the appropriate person or persons, with such evidence of the authenticity of such endorsement, transfer, authorization, and other matters as the corporation may reasonably require, and accompanied by all necessary stock transfer stamps. In that event, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate or certificates, and record the transaction on its books. The board of directors may appoint a bank or trust company organized under the laws of the United States or any state thereof to act as its transfer agent or registrar, or both in connection with the transfer of any class or series of securities of the corporation.

Section 2 Lost Certificates. The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates previously issued by the corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or destroyed. When authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen, or destroyed certificate or certificates, or his or her legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against the corporation on account of the loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

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Section 3 Fixing a Record Date for Stockholder Meetings. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. If no record date is fixed by the board of directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be the close of business on the next day preceding the day on which notice is given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided that the board of directors may fix a new record date for the adjourned meeting.

Section 4 Fixing a Record Date for Action by Written Consent. In order that the corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which date shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the board of directors. If no record date has been fixed by the board of directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is required by statute, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the board of directors and prior action by the board of directors is required by statute, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action.

Section 5 Fixing a Record Date for Other Purposes. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment or any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purposes of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto.

Section 6 Registered Stockholders. Prior to the surrender to the corporation of the certificate or certificates for a share or shares of stock with a request to record the transfer of such share or shares, the corporation may treat the registered owner as the person entitled to receive dividends, to vote, to receive notifications, and otherwise to exercise all the rights and powers of an owner. The corporation shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof.

Section 7 Subscriptions for Stock. Unless otherwise provided for in the subscription agreement, subscriptions for shares shall be paid in full at such time, or in such installments and at such times, as shall be determined by the board of directors. Any call made by the board of directors for payment on subscriptions shall be uniform as to all shares of the same class or as to all shares of the same series. In case of default in the payment of any installment or call when such payment is due, the corporation may proceed to collect the amount due in the same manner as any debt due the corporation.

 

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ARTICLE VII

GENERAL PROVISIONS

Section 1 Dividends. Dividends upon the capital stock of the corporation, subject to the provisions of the corporation’s certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the corporation’s certificate of incorporation. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or any other purpose and the directors may modify or abolish any such reserve in the manner in which it was created.

Section 2 Checks, Drafts or Orders. All checks, drafts, or other orders for the payment of money by or to the corporation and all notes and other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such manner, as shall be determined by resolution of the board of directors or a duly authorized committee thereof.

Section 3 Contracts. The board of directors may authorize any officer or officers, or any agent or agents, of the corporation to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances.

Section 4 Loans. The corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or of its subsidiary, including any officer or employee who is a director of the corporation or its subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to benefit the corporation. The loan, guaranty or other assistance may be with or without interest, and may be unsecured, or secured in such manner as the board of directors shall approve, including, without limitation, a pledge of shares of stock of the corporation. Nothing in this section contained shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute.

Section 5 Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the board of directors.

Section 6 Corporate Seal. The board of directors shall provide a corporate seal which shall be in the form of a circle and shall have inscribed thereon the name of the corporation and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

Section 7 Voting Securities Owned By Corporation. Voting securities in any other corporation or other entity (such as a limited liability company, limited partnership or trust) held by the corporation shall be voted as directed by the board of directors, unless the board of directors specifically confers authority to vote with respect thereto, which authority may be general or confined to specific instances, upon some other person or officer. Any person authorized to vote securities shall have the power to appoint proxies, with general power of substitution.

Section 8 Inspection of Books and Records. Any stockholder of record, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the corporation’s stock ledger, a list

 

12

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of its stockholders, and its other books and records, and to make copies or extracts therefrom. A proper purpose shall mean any purpose reasonably related to such person’s interest as a stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the corporation at its registered office in the State of Delaware or at its principal place of business.

Section 9 Exclusive Jurisdiction. The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the corporation to the corporation or the corporation’s stockholders, (iii) any action asserting a claim against the corporation arising pursuant to any provision of the General Corporation Law of the State of Delaware or the corporation’s certificate of incorporation or by-laws or (iv) any action asserting a claim against the corporation governed by the internal affairs doctrine.

Section 10 Section Headings. Section headings in these by-laws are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein.

Section 11 Inconsistent Provisions. In the event that any provision of these by-laws is or becomes inconsistent with any provision of the corporation’s certificate of incorporation, the General Corporation Law of the State of Delaware or any other applicable law, the provision of these by-laws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect.

ARTICLE VIII

AMENDMENTS

These by-laws may be amended, altered, or repealed and new by-laws adopted at any meeting of the board of directors by a majority vote. The fact that the power to adopt, amend, alter, or repeal the by-laws has been conferred upon the board of directors shall not divest the stockholders of the same powers.

 

13

Exhibit 3.37

 

INDIANA SECRETARY OF STATE

BUSINESS SERVICES DIVISION

CORPORATIONS CERTIFIED COPIES

INDIANA SECRETARY OF STATE

BUSINESS SERVICES DIVISION

302 West Washington Street, Room E018

Indianapolis, IN 46204

http://www.sos.in.gov

April 22, 2015

 

Company Requested:		THE MATRIXX GROUP, INCORPORATED
Control Number:		198412-300

 

Date		Transaction		# Pages
12/10/1984		Articles of Incorporation		9
04/16/1997		Articles of Amendment		3
03/09/2007		Articles of Merger		15
12/21/2010		Articles of Merger		8
12/28/2011		Articles of Merger		4
01/06/2012		Articles of Correction		7
05/08/2014		Certificate of Assumed Business Name		2
05/08/2014		Certificate of Assumed Business Name		2

 

		State of Indiana Office of the Secretary of State   I hereby certify that this is a true and complete copy of this 50 page document filed in this office.   Dated: April 22, 2015 Certification Number: 2015042231707
Connie Lawson
Secretary of State

 

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Replas, Incorporated		- 3 -		Articles of Incorporation

 

indemnification shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any provision of the Articles of Incorporation, By-Laws, resolution, or other authorization heretofore or hereafter adopted, after notice, by a majority vote of all the voting shares then issued and outstanding; and provided further that expenses incurred in defending any action, suit, or proceeding, civil or criminal, may be paid by the Corporation in advance of the final disposition of such action, suit, or proceeding notwithstanding any provisions of this article to the contrary upon receipt of an undertaking by or on behalf of the director, officer, employee, or agent to repay the amount paid by the Corporation if it shall ultimately be determined that the director, officer, employee, or agent is not entitled to indemnification as provided in this section;

(j) To purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this section;

(k) To pay pensions and establish pension plans, pension trusts, profit sharing and retirement plans, stock bonus plans, stock option plans and other incentive plans for any or all of its directors, officers and employees;

(1) To make By-Laws for the government and regulation of its affairs;

(m) To cease doing business and to dissolve and surrender its corporate franchise;

(n) To be a promotor, partner, member, associate, or manager of any partnership, joint venture, trust, or other enterprise;

(o) To do all acts and things necessary, convenient or expedient to carry out the purposes for which it is formed;

(p) To purchase, own and/or hold and to sell and transfer (but not to vote) shares of its own capital stock to the extent permitted by The Indiana General Corporation Act, and this power includes the power to purchase the Corporation’s own shares to the extent of unreserved and unrestricted capital surplus available thereof;

 

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Replas, Incorporated		- 4 -		Articles of Incorporation

 

(q) To carry on, engage in and/or conduct any business or businesses or do any act or acts which a natural person or persons might do and which are necessary, convenient or expedient to accomplish the purposes for which this corporation is formed and such as are not repugnant to law; but this corporation shall not be deemed to possess the power of carrying on the business of receiving deposits of money, bullion or foreign coins, or of issuing bills, notes or other evidences of debts for circulation as money, and this corporation shall not engage in the business of rural loan and savings associations, credit unions nor conduct a banking, railroad, insurance, surety, trust, safe deposit, mortgage guarantee or building and loan business;

(r) The foregoing clauses shall be construed as powers as well as purposes, and the matters expressed in each clause shall, except if otherwise expressly provided, be in no wise limited by reference to or inference from the terms of any other clause, but shall be regarded as independent powers and purposes; and the enumeration of specific powers and purposes shall not be construed to limit or restrict in any manner the meaning of general terms or the general powers of the Corporation, nor shall the expression of any one thing be deemed to exclude another not expressed, although it be of like nature. The Corporation shall be authorized to exercise and enjoy all other powers, rights and privileges granted by an Act of the General Assembly of the State of Indiana, entitled “The Indiana General Corporation Act,” and all the powers conferred by all acts heretofore or hereafter amendatory of or supplemental to the said Act or the said laws; and the enumeration of certain powers as herein specified is not intended as exclusive of, or as a waiver of any of the powers, rights or privileges granted or conferred by the said Act or the said laws now or hereafter in force; provided, however, that the Corporation shall not in any state, territory, district, possession or county carry on any business or exercise any powers which a corporation organized under the laws thereof could not carry on or exercise.

ARTICLE III

Period of Existence

The period which the Corporation shall continue is perpetual.

ARTICLE IV

Resident Agent and Principal Office

Section 1. Resident Agent. The name and address of the Corporation’s Resident Agent for service of process is Raymond E. Wright, 719 Mels Drive, Evansville, Indiana 47722.

 

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Replas, Incorporated		- 5 -		Articles of Incorporation

 

Section 2. Principal Office. The post office address of the principal office of the Corporation is 719 Mels Drive, Evansville, Indiana 47712.

ARTICLE V

Authorized Shares

Section 1. Number of Shares. The total number of shares which the Corporation is to have authority to issue is 1,000.

 

A.

The number of authorized shares which the Corporation designates as having par value is -0- with a par value of $-0-.

 

B.

The number of authorized shares which the Corporation designates as without par value is 1,000.

Section 2. Terms of Shares.

One Thousand (1,000) shares, without par value, of the capital stock of this corporation shall be known as common stock.

The One Thousand (1,000) shares of common stock shall have and possess full voting powers. The certificates of the common stock shall be in the form and language as authorized by law and as approved by the Board of Directors of this corporation.

Shares of the capital stock of this corporation may be issued by the Corporation for such an amount of consideration as may be fixed from time to time by the Board of Directors, and may be paid, in whole or in part, in money, in other property, tangible or intangible, or in labor actually performed for or services actually rendered to the Corporation, or for any other good and valid consideration.

ARTICLE VI

Requirements Prior to Doing Business

The Corporation will not commence business until consideration of the value of at least One Thousand Dollars ($1,000) has been received for the issuance of shares.

ARTICLE VII

Directors

Section 1. Number of Directors. The initial Board of Directors is composed of one member. The number of directors may be from time to time fixed by the By-Laws of the Corporation at any number. In the absence of a By-Law fixing the number of directors, the number shall be the lesser of three or its number of beneficial shareholders of record of the Corporation.

 

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Replas, Incorporated		- 6 -		Articles of Incorporation

 

Section 2. Names and Post Office Addresses of the Directors. The name and post office address of the initial Board of Directors of the Corporation are:

 

Name		Number and Street		City		State		ZIP
Raymond E. Wright		719 Mels Drive		Evansville		IN		47712

Section 3. Qualifications of Directors (if any).

Directors need not be shareholders of the Corporation.

A majority of the Directors at any time shall be citizens of the United States.

All Directors shall be of lawful age.

ARTICLE VIII

Incorporator

The name and post office address of the incorporator of the Corporation are:

 

Name		Number and Street		City		State		ZIP
Raymond E. Wright		719 Mels Drive		Evansville		IN		47712

ARTICLE IX

Provisions for Regulation of Business

and Conduct of Affairs of Corporation

(“Powers” of the Corporation, its directors, or shareholders)

Section 1. Meetings of Shareholders. Meetings of the shareholders of the Corporation shall be held at such place within or without the State of Indiana as may be specified in the respective notices or waivers of notice thereof.

Section 2. Action Without Shareholders Meeting. Any action required to be taken at a meeting of the shareholders of the Corporation, or any action which may be taken at a meeting of the shareholders, may be taken without a meeting if, prior to such action, a consent in writing setting forth the action so taken shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof and such written consent is filed with the minutes of the proceedings of the shareholders. Such consent shall have the same effect as a unanimous vote of shareholders and may be stated as such in any articles or documents filed with the Secretary of State under the Act.

 

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Replas, Incorporated		- 7 -		Articles of Incorporation

 

Section 3. Meetings of Directors. Meetings of the Directors of the Corporation shall be held at such place within or without the State of Indiana as may be specified in the respective notices or waivers of notice thereof.

Section 4. Action Without Board Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if, prior to such action, a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of the proceedings of the Board or committee.

Section 5. Code of By-Laws. The Board of Directors of the Corporation shall have the power, without assent or vote of the shareholders, to make, alter, amend or repeal the Code of By-Laws of the Corporation, but the affirmative vote of a majority of the members of the Board of Directors for the time being shall be necessary to make such Code or to effect any alteration, amendment or repeal thereof.

Section 6. Additional Powers of Directors. In addition to the powers and authorities hereinabove or by statute expressly conferred, the Board of Directors is hereby authorized to exercise all such powers and do all such acts and things as may be exercised or done by a corporation organized and existing under the provisions of the Act.

Section 7. Amendment of Articles of Incorporation. The Corporation reserves the right to alter, amend or repeal any provision contained in these Articles of Incorporation in the manner now or hereafter prescribed by the provisions of the Act, or any other pertinent enactment of the General Assembly of the State of Indiana, and all rights and powers conferred hereby on shareholders, directors, and officers of the Corporation are subject to such reserved rights.

Section 8. Wasting Assets. In the event the Corporation may at any time or from time to time own wasting assets intended for sale in the ordinary course of business, such as coal or ore mines or oil or gas wells, or holds property having a limited life, such as a lease for a term of years, or patents, the depletion of such assets by sale or lapse of time need not be deducted in the computation of earned surplus available for dividends, and the Corporation may pay dividends without deduction of such depletion, subject, however, to the rights of shareholders of different classes and subject to the rights of creditors.

IN WITNESS WHEREOF, The undersigned, being the sole incorporator designated in Article VIII, executes these Articles of Incorporation and certifies to the truth of the facts stated this 5th day of December, 1984.

 

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Replas, Incorporated		- 8 -		Articles of Incorporation

 

 

STATE OF INDIANA		)
		)		SS:
COUNTY OF VANDERBURGH		)

I, the undersigned, a Notary Public duly commissioned to take acknowledgments and administer oaths in the State of Indiana, certify that Raymond E. Wright, being the sole incorporator referred to in Article VIII of the foregoing Articles of Incorporation, personally appeared before me; acknowledged the execution thereof; and swore to the truth of the facts therein stated.

WITNESS My hand and Notarial Seal this 5th day of December, 1984.

 

				Notary Public
My commission expires:				Alan N. Shovers
May 2, 1985				(Printed Signature)
My county of residence is: Vanderburgh County, Indiana.

THIS INSTRUMENT Was prepared by Alan N. Shovers, Attorney at Law, 305 Union Federal Building, Post Office Box 3646, Evansville, Indiana 47735-3646.

 

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198412 - 300

ARTICLES OF AMENDMENT

OF THE

ARTICLES OF INCORPORATION

OF

REPLAS, INCORPORATED

The undersigned officers of Replas, Incorporated (hereinafter referred to as the “Corporation”) existing pursuant to the provisions of the Indiana Business Corporation Law desiring to give notice of corporate action effectuating amendment of certain provisions of its Articles of Incorporation, certify the following facts:

ARTICLE I

Amendment

Section 1. Date of Incorporation. The date of incorporation of the Corporation is December 10, 1984.

Section 2. Name. The name of the Corporation following this amendment to the Articles of Incorporation is The Matrixx Group, Incorporated.

Section 3. Amendment Text. The exact text of Article I of the Articles of Incorporation is now as follows:

The name of the Corporation is The Matrixx Group, Incorporated.

Furthermore, the Corporation will conduct business as The Matrixx Group,

Replas and Matrixx Performance Resins.

Section 4. Date of Adoption. The date of adoption of this Article of Amendment is April 1, 1997.

ARTICLE II

Manner of Adoption and Vote

Section 1. Board Approval. This amendment was approved by the Board of Directors and shareholder action was not required.

ARTICLE III

Compliance with Legal Requirements

The manner of the adoption of the Articles of Amendment and the vote by which they were adopted constitute full legal compliance with the provisions of the Act, the Articles of Incorporated, and By-Law of the Corporation.

 

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Replas, Incorporated		- 2 -		Articles of Amendment

 

IN WITNESS WHEREOF, The undersigned, being duly sworn officers of the Corporation, executes these Articles of Amendment to the Articles of Incorporation and certify to the truth of the facts stated this 1st day of April, 1997.

 

Raymond E. Wright				Michael E. Wright
President				Treasurer

 

STATE OF INDIANA		)
		)		SS:
COUNTY OF VANDERBURGH		)

I, the undersigned, a Notary Public duly commissioned to take acknowledgments and administer oaths in the State of Indiana, certify that Raymond E. Wright and Michael E. Wright. duly sworn officers of the Corporation, personally appeared before me; acknowledged the execution thereof; and swore to the truth of the facts therein stated.

WITNESS My hand and Notarial Seal this 1st day of April, 1997.

 

				Notary Public
My Commission expires:				Sonia L. Townsend
Oct. 24, 1998				(Printed Signature)
My county of residence is: Vanderburgh County, Indiana

 

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.
Indiana Secretary of State Packet: 198412-300 Filing Date: 03/09/2007 Effective Date: 03/09/2007
ARTICLES OF CROSS-SPECIES MERGER
Resulting in the Formation of a Corporation
State Form 51584 (1-04) Approved by State Board of Accounts, 2007
INSTRUCTIONS: Use 8 1/2“ by 11” white paper for attachments Present original and one copy to the address in upper right corner of this form. Please TYPE or PRINT.
Please visit Our office on the web at www.sos.in.gov.
TODD ROKITA
SECRETARY OF STATE CORPORATE DIVISION 302 W. Washington Street, Rm. E018 Indianapolis, IN 46204 Telephone: (317)232 6576
Indiana Code 23-1-18-3 FILING FEE: $30.00
ARTICLES OF CROSS-SPECIES MERGER OF
CITADEL PLASTICS, LLC AND PLASTIC PROCESSING OF EVANSVILLE, INCORPORATED 2.007022200028
(hereinafter “Non-surviving Business Entity” (“Entities”) and/or “Non-surviving Corporation(s)”)
INTO
THE MATRIXX. GROUP, INCORPORATED
1996050115
(hereinafter “Surviving Corporation”)
198412-300
ARTICLE I: PLAN OF CROSS-SPECIES MERGER
Please set forth the Plan of Cross-Species Merger, attach herewith, and designate it as “Exhibit A.” The Plan of Cross-Species Merger must state the
following:
. The name of each Non-surviving Corporation Incorporated In Indiana and the name and jurisdiction of formation, organization, or incorporation of each Non-surviving Business Entity;
The name of Surviving Corporation;
The terms and conditions of the merger;
. The manner and basis of converting the shares or rights thereof of Non-surviving Corporation and/or the interests, obligations, shares, other
securities, or rights thereof of Non-surviving Business Entity (Entities) and/or Non-surviving Corporations) into the shares, obligations, assets, other securities, or rights thereof of Surviving Corporation;
Any amendments to or restatements of the Articles of Incorporation of Surviving Corporation; and
All statements required to be set forth in the plan of merger by the laws under which each Non-surviving Business Entity is formed, organized, or incorporated;
All information required by the Articles of Incorporation (Indiana Code 23-1-21-2) if there are no corporations that are parties to the merger; and
Any amendments to, or a restatement of the Articles of Incorporation of Surviving Corporation, If one or more corporations are parties to the merger and if Surviving Corporation is an Indiana Corporation
The relevant Indiana Code sections for the Plan of Merger are as follows;
23-1-40-8(c)(4) If a corporation Is a party to the merger;
23-18-7-9(c)(4) If a limited liability company Is party to the merger;
23-4-1-53(c)(4) if a limited liability partnership is a party to the merger; and
• 23-16-3-13(c)(4) if a limited partnership is a party to the merger.
ARTICLE II; SURVIVING CORPORATION
If Surviving Corporation is an Indiana corporation, please complete Section 1 of this Article. If Surviving Corporation is a foreign corporation, please complete Section 2 of this Article.
(Please complete this section If Surviving Corporation Is an Indiana corporation.)
The surviving corporation is a domestic corporation existing pursuant to the provisions of the Indiana Business Corporation Law Incorporated on December 10, 1984
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The Indiana Secretary of State filing office certifies that this copy is on file in this office.
Indiana Secretary of State Packet: 198412-300 Filing Date: 03/09/2007 Effective Date: 03/09/2007
(Please complete this section if Surviving Corporation is Incorporated outside of Indiana.)
The surviving corporation is a foreign corporation Incorporated under the laws of the State of and Is [] qualified [] not qualified (please designate which) to do business in Indiana.
If the surviving corporation is qualified to do business In Indiana, the date of qualification Is
(If Application for Certificate of Authority to do business In Indiana is filed concurrently herewith, please state “Upon approval of Application for Certificate of Authority”.)
ARTICLE III: NON-SURVIVING BUSINESS ENTITIES
(Please list any non-surviving corporations [If any] In this merger).
The name, state of Incorporation, and the date of Incorporation or qualification (If applicable) respectively, of each Indiana domestic corporation and Indiana qualified foreign corporation which is party to the merger are as follows:
Name of Non-surviving Corporation
Plastic Processing of Evansville,
Incorporated
State of Domicile
Date of incorporation or qualification in Indiana
Indiana
April 24, 1996
Name of Non-surviving Corporation
State of Domicile
Date of incorporation or qualification In Indiana
Name of Non-surviving Corporation
State of Domicile
Date of incorporation or qualification in Indiana
(Please list my Non-surviving Business Entities that are not a corporation[if any] in this merger).
The name, business entity type, state of organization, and date of organization of any Indiana or foreign business entity that is a party to the merger and qualified to do business In Indiana (if applicable).
Name
Citadel Plastics, LLC
Type of business entity
limited liability company
State of Domicile
Indiana
Date of organization or qualification
February 21, 2007
Name
Type of business entity
State of Domicile
Date of organization or qualification
Name
Type of business entity
State of Domicile
Date of organization or qualification
Page 15 of 51
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The Indiana Secretary of State filing office certifies that this copy is on file in this office.
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ARTICLE IV: MANNER OF ADOPTION AND VOTE OF SURVIVING CORPORATION
(Please complete either Section 1 or Section 2).
[] Shareholder vote not required.
The merger / share exchange was adopted by the Incorporators or board of directors without shareholder action and shareholder action was not required.
Vote of shareholders is required (Please select either A or B)
The designation (i.e. common, preferred, or any classification where different classes of stack exist), number of outstanding shares, number of votes entitled to be cast by each voting group entitled to vote separately on the merger / share exchange, and the number votes each voting group represented at the meeting are set forth below:
A.
Unanimous written consent executed on March 8,
2007 and signed by all shareholders entitled to vote.
B. Vote of shareholders during a meeting called by the Board of Directors.
TOTAL
A
B
C
DESIGNATION OF EACH VOTING GROUP (i.e. preferred and common)
NUMBER OF OUTSTANDING SHARES
NUMBER OF VOTES ENTITLED TO BE CAST
NUMBER OF VOTES REPRESENTED AT MEETING
SHARES VOTED IN FAVOR
SHARES VOTED AGAINST
ARTICLE V: MANNER OF ADOPTION AND VOTE OF NON-SURVIVING CORPORATION (if applicable)
Please complete this Article if a corporation is party to the merger. (Select either A or B):
The designation (i.e. common, preferred, or any classification where different classes of stock exist), number of outstanding shares, number of votes entitled to be cast by each voting group entitled to vote separately on the merger / share exchange, and the number of votes of each voting group represented at the meeting is set forth below:
A [x] Unanimous consent executed on March 8, 2007 and signed by all shareholders entitled to vote. B Vote of shareholders during a meeting called by the Board of Directors.
TOTAL
A
B
C
DESIGNATION OF EACH VOTING GROUP (i. e. preferred and common)
NUMBER OF OUTSTANDING SHARES
NUMBER OF VOTES ENTITLED TO BE CAST
NUMBER OF VOTES REPRESENTED AT MEETING
SHARES VOTED IN FAVOR
SHARES VOTED AGAINST
Page 16 of 51
Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.
Indiana Secretary of State
Packet: 198412-300
Filing Date: 03/09/2007
Effective Date: 03/09/2007
ARTICLE VI: SIGNATURE
In Witness Whereof, the undersigned, being a duly authorized representative of Surviving Corporation, executes these Articles of Cross-Species Merger and
verifies, subject to penalty of perjury, that the statements contained herein are true, and that each business entity that is a party to this merger has approved
the plan of merger according to Indiana law or according to the laws of the State In which the business entity was organized or incorporated, this
8th day of March, 2007.
Signature
Printed name
Paul Peterson
Title
Secretary
Page 17 of 51
Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.

 

		Indiana Secretary of State
		Packet: 198412-300
		Filing Date: 03/09/2007
		Effective Date: 03/09/2007

 

PLAN OF MERGER

This Plan of Merger (“Plan of Merger”) is made and entered into this 8th day of March, 2007 by and among The Matrixx Group, Incorporated, an Indiana corporation (the “Surviving Company”), Citadel Plastics, LLC, an Indiana limited liability company (“Citadel Plastics”) and Plastic Processing of Evansville, Inc., an Indiana corporation (“Plastic Processing” and together with Citadel Plastics the “Merged Companies”).

WHEREAS, the Board of Directors and the sole Shareholder of the Surviving Company, the Board of Directors and sole Shareholder of Plastic Processing and the sole Member of Citadel Plastics deem it advisable and in the best interests of the parties hereto, that the Merged Companies be merged into the Surviving Company under the laws of the State of Indiana pursuant to the provisions of Section 23-1-40-8 of the Indiana Business Corporation Law.

NOW, THEREFORE, in consideration of the promises and of the mutual agreements contained herein, the parties hereto agree to merge upon the terms and conditions stated below:

1. The parties hereto agree that the Merged Companies will be merged into the Surviving Company (the “Merger”). The separate existence of the Merged Companies will cease, and the existence of the Surviving Company will continue unaffected and unimpaired by the Merger, with all rights, privileges, immunities and powers, and subject to all the duties and liabilities, of a corporation formed under the laws of the State of Indiana.

2. The mode of effecting the Merger will be as follows:

(a) At the Effective Date (as defined below), each membership unit of Citadel Plastics which is issued and outstanding on the Effective Date of the Merger, and all rights in respect thereof, shall be converted into the right to receive one (1) share of common stock, no par value, of the Surviving Company.

(b) At the Effective Date, each issued and outstanding share of common stock of Plastic Processing which is issued and outstanding on the Effective Date of the Merger, and all rights in respect thereof, shall be converted into the right to receive one (1) share of common stock, no par value, of the Surviving Company.

(c) At the Effective Date, each issued and outstanding share of common stock, no par value, of the Surviving Company shall remain outstanding and unchanged as a result of the Merger.

(d) The Merger will become effective upon the filing of Articles of Cross Species Merger with the Secretary of State of the State of Indiana (the “Effective Date”).

 

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.

 

		Indiana Secretary of State
		Packet: 198412-300
		Filing Date: 03/09/2007
		Effective Date: 03/09/2007

 

(e) Upon the Effective Date of the Merger, all the property, rights, privileges, franchises, patents, trademarks, licenses, registrations and other assets of every kind and description of the Merged Companies shall be transferred to, vested in, and devolve upon, the Surviving Company without further act or deed and all property, rights, and every other interest of the Surviving Company and the Merged Companies shall be as effectively the property of the Surviving Company as they were of the Surviving Company and the Merged Companies, respectively. The Merged Companies hereby agree from time to time, as and when requested by the Surviving Company or by its successors or assigns, to execute and deliver or cause to be executed and delivered all such deeds and instruments and to take or cause to be taken such further or other action as the Surviving Company may deem necessary or desirable in order to vest in and confirm to the Surviving Company title to and possession of any property of the Merged Companies acquired or to be acquired by reason of or as a result of the Merger herein provided for and otherwise to carry out the intent and purposes hereof and the proper Member and Board of Directors of the Merged Companies and the Board of Directors of the Surviving Company are fully authorized in the name of the Merged Companies and the Surviving Company, respectively to take any and all such action.

(f) All debts, liabilities and duties of the Surviving Company and Merged Companies will attach to the Surviving Company, and may be enforced against the Surviving Company to the same extent as if said debts, liabilities and duties had been incurred or contracted by Surviving Company.

3. The By-Laws of the Surviving Company as they exist on the Effective Date of this Plan of Merger shall be amended and restated to read as set forth on Exhibit A attached hereto.

4. The Articles of Incorporation of the Surviving Company as they exist on the Effective Date of this Plan of Merger shall be and remain the Articles of Incorporation of the Surviving Company until the same shall be altered, amended or repealed as therein provided.

5. The Board of Directors of the Surviving Company and the Board of Directors and Member of the Merged Companies shall have the power in their discretion to abandon the Merger provided for herein prior to the filing of the Articles of Cross-Species Merger or other appropriate certificate with the office of the Secretary of State of the State of Indiana.

 

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.

 

		Indiana Secretary of State
		Packet: 198412-300
		Filing Date: 03/09/2007
		Effective Date: 03/09/2007

 

6. This Plan of Merger will be governed by and construed in accordance with the internal laws of the State of Indiana.

IN WITNESS WHEREOF, the parties hereto have caused their respective names to be signed hereto by their officers, duly authorized by their respective Board of Directors, Shareholders and Member, as the case may be.

 

 

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.

 

		Indiana Secretary of State
		Packet: 198412-300
		Filing Date: 03/09/2007
		Effective Date: 03/09/2007

 

EXHIBIT A

AMENDED AND RESTATED

BY-LAWS

OF

THE MATRIXX GROUP, INCORPORATED

ARTICLE 1

Identification

Section 1.01 Name. The name of the corporation is The Matrixx Group, Incorporated (hereinafter referred to as the “corporation”).

Section 1.02 Principal Office and Resident Agent. The post-office address of the principal office of the corporation is 719 Mels Avenue, Evansville, Indiana 47712; and the name and post-office address of its Resident Agent in charge of such office is Raymond E. Wright, 719 Mels Avenue, Evansville, Indiana 47712. The corporation may also have offices at such other places both within and without the State of Indiana as the Board of Directors may from time to time determine or the business of the corporation may require.

Section 1.03 Seal. The seal of the corporation shall be circular in form and mounted upon a metal die, suitable for impressing the same upon paper. About the upper periphery of the seal shall appear the words “The Matrixx Group, Incorporated” and about the lower periphery thereof, the word “Indiana.” In the center of the seal shall appear the words “Corporate Seal.”

Section 1.04 Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the Board of Directors.

ARTICLE 2

Shares of Stock

Section 2.01 Consideration for Shares. The Board of Directors shall cause the corporation to issue the shares of stock of the corporation for such consideration as has been fixed by such Board pursuant to the provisions of the Articles of Incorporation.

Section 2.02 Payment for Shares. Subject to the provisions of the Articles of Incorporation, the consideration for the issuance of shares of stock of the corporation may be paid, in whole or in part, in money, in other property, tangible or intangible, or in labor actually performed for, or services actually rendered to, the corporations provided, however, that the part of the surplus of the corporation which is transferred to stated capital upon the issuance of shares as a share dividend shall be deemed to be the consideration for the issuance of such shares. When payment of the consideration for which a share was authorized to be issued shall have been received by the corporation, or when surplus shall have been transferred to stated capital upon the issuance of a share dividend, such share shall be declared and taken to be fully paid and not liable to any further call or assessment, and the holder thereof shall not be liable for any further transaction. The judgment of the Board of Directors as to the value of such property, labor or services received as consideration, or the value placed by the Board of Directors upon the corporate assets in the event of a share dividend, shall be conclusive. Promissory notes, uncertified checks, or future services shall not be accepted in payment or part payment of any of the shares of the corporation.

 

 

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.

 

		Indiana Secretary of State
		Packet: 198412-300
		Filing Date: 03/09/2007
		Effective Date: 03/09/2007

 

Section 2.03 Certificates for Shares. Each holder of shares of stock of the corporation shall be entitled to a certificate signed by the president or vice president and the secretary of the corporation with the seal of the corporation thereunto affixed, certifying the number of shares owned by him in the corporation, The stock certificates to represent the shares of the capital stock of this corporation shall be in such form, not inconsistent with the laws of the State of Indiana, as may be adopted by the Board of Directors.

Section 2.04 Transfer of Shares. The shares of the corporation shall be transferable on the books of the corporation upon surrender of the certificate or certificates representing the same, properly endorsed by the registered holder or by his duly authorized attorney, such endorsement or endorsements to be witnessed by one witness. The requirement for witnessing may be waived in writing upon the form of endorsement by the president of the corporation.

Section 2.05 Equitable Interests in Shares Need Not Be Recognized. The corporation and its officers shall be entitled to treat the holder of record of any share or shares of stock of the corporation as the holder in fact thereof and accordingly shall not be required to recognize any equitable or other claim to or interest in such shares or shares on the part of any other person or persons, whether or not express notice thereof shall have been given the corporation, save as expressly provided to the contrary by the laws of the State of Indiana, the Articles of Incorporation of the corporation, or these By-Laws.

ARTICLE 3

Meetings of Shareholders

Section 3.01 Place of Meetings. All meetings of shareholders of the corporation shall be held at such place, within or without the State of Indiana, as may be specified in the respective notices, or waivers of notice thereof, or proxies to represent shareholders thereat.

Section 3.02 Annual Meeting. The annual meeting of the shareholders for the election of directors, and for the transaction of such other business as may properly come before the meeting, shall be held in the month of April of each year on such day, place and time as may be fixed by the Board of Directors. If for any reason the annual meeting of the shareholders shall not be held at a time and place herein provided, the same may be held at any time thereafter, or the business to be transacted at such annual meeting may be transacted at any special meeting called for that purpose.

Section 3.03 Special Meetings. Special meetings of the shareholders may be called by the president, by the Board of Directors, or by shareholders holding not less than one-fourth (1/4) of all the shares of stock outstanding.

Section 3.04 Notice of Meetings. A written or printed notice, stating the place, day and hour of the meeting, and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered or mailed by the secretary, or by the officers or persons calling the meeting, to each holder of the shares of the corporation at the time entitled to vote at such address as appears upon the records of the corporation at least ten days before the date of the meeting. Notice of any such meeting may be waived in writing by any shareholder if the waiver sets forth in reasonable detail the purpose or purposes for which the meeting is called and the time and place thereof. Attendance at any meeting, in person or by proxy, shall constitute a waiver of notice of such meeting.

 

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.

 

		Indiana Secretary of State
		Packet: 198412-300
		Filing Date: 03/09/2007
		Effective Date: 03/09/2007

 

Section 3.05 Vote by Consent in Writing. Any action required by the Indiana General Corporation Act, as amended, to be taken at a meeting of the shareholders of the corporation, or any action which may be taken at a meeting of the shareholders, may be taken without a meeting if, prior to such action, a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof and such written consent is filed with the minutes of the proceedings of the shareholders.

Section 3.06 Voting at Meetings.

(a) Voting Rights. Except as otherwise provided by law or by the provisions of the Articles of Incorporation, every holder of the shares of stock of the corporation shall have the right at all meetings of the shareholders of the corporation to one vote for each share of stock standing in his name on the books of the corporation.

(b) Proxies. A shareholder may vote either in person, by proxy executed in writing by the shareholder, or by a duly authorized attorney-in-fact. No proxy shall be valid after eleven months from the date of its execution unless a longer time is expressly provided therein.

(c) Quorum. Unless otherwise provided by the Articles of Incorporation, at any meeting of shareholders a majority of the shares of stock outstanding and entitled to vote, represented in person or by proxy, shall constitute a quorum.

ARTICLE 4

Board of Directors

Section 4.01 Number. The number of directors which shall constitute the whole board shall not be less than one (1) and not more than ten (10). Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the Board of Directors, or by the shareholders at the annual meeting. The directors shall be elected at the annual meeting of shareholders, and each director elected shall hold office until his successor is elected and qualified. The first Board of Directors shall hold office until the next annual meeting of shareholders.

Section 4.02 Annual Meeting. The Board of Directors shall meet each year immediately after the annual meeting of the shareholders at the place where such meeting of the shareholders has been held for the purpose of organization, election of officers, and consideration of any business that may be brought before the meeting. No notice shall be necessary for the holding of this annual meeting of the Board specifically called in the manner provided in Section 4.03 of this Article.

Section 4.03 Other Meetings. Other meetings of the Board of Directors may be held upon the call of the president, or of two or more members of the Board of Directors, at any place within or without the State of Indiana upon 48 hours notice, specifying the time, place, and general purposes of the meeting, given to each director, either personally, by mailing or by telegram. At any meeting at which all directors are present, notice of the time, place, and purposes thereof shall be deemed waived; and similar notice may likewise be waived by absent directors, either by written instrument or by telegram.

 

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.

 

		Indiana Secretary of State
		Packet: 198412-300
		Filing Date: 03/09/2007
		Effective Date: 03/09/2007

 

Section 4.04 Vote by Consent in Writing. Any action required or permitted to be taken at any meeting of the Board of Directors, or any committee thereof, may be taken without a meeting if prior to such action a written consent to such action is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or committee.

Section 4.05 Quorum. At any meeting of the Board of Directors, the presence of a majority of the members of the Board of Directors then qualified and acting shall constitute a quorum for the transaction of any business, except the filling of vacancies in the Board of Directors.

Section 4.06 Vacancies. In case of any vacancy in the Board of Directors through death, resignation, removal or other cause, the remaining directors, by the affirmative vote of a majority thereof, may elect a successor to fill such vacancy until the next annual meeting of stockholders and until his successor is elected and qualified.

ARTICLE 5

The Officers of the Corporation

Section 5.01 Officers. The officers of the corporation shall consist of a president, a vice president, a secretary and a treasurer. Any two or more offices may be held by the same person, except that the duties of the president and secretary shall not be performed by the same person. The Board of Directors, by resolution, may create and define the duties of other offices in the corporation and may elect or appoint persons to fill such offices.

Section 5.02 Vacancies. Whenever any vacancies shall occur in any office by death, resignation, increase in the number of offices of the corporation, or otherwise, the same shall be filled by the Board of Directors, and the officer so elected shall hold office until his successor is chosen and qualified.

Section 5.03 The President. The president shall preside at all meetings of shareholders and directors; discharge all the duties which devolve upon a presiding officer; and perform such other duties as these By-Laws provide or the Board of Directors may prescribe.

The president shall have full authority to execute proxies on behalf of the corporation; to vote stock owned by it in any other corporation; and to execute, with the secretary, powers of attorney to appoint other corporations, partnerships, or individuals the agent of the corporation, all subject to the provisions of the Indiana General Corporation Act of 1929, as amended, the Articles of Incorporation and these By-Laws.

Section 5.04 The Vice President. The vice president shall perform all duties incumbent upon the president during the absence or disability of the president and perform such other duties as these By-Laws may require or the Board of Directors may prescribe.

Section 5.05 The Secretary. The secretary shall have the custody and care of the corporate seal, records, minutes and stock books of the corporation. He or she shall attend all

 

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.

 

		Indiana Secretary of State
		Packet: 198412-300
		Filing Date: 03/09/2007
		Effective Date: 03/09/2007

 

meetings of the shareholders and of the Board of Directors; shall keep, or cause to be kept in a book provided for the purpose, a true and complete record of the proceedings of such meetings; and shall perform a like duty for all standing committees appointed by the Board of Directors when required. He or she shall attend to the giving and serving all notices of the corporation; shall file and take charge of all papers and documents belonging to the corporation; and shall perform such other duties as these By-Laws may require or the Board of Directors may prescribe.

Section 5.06 The Treasurer. The treasurer shall keep correct and complete records of account, showing accurately at all times the financial condition of the corporation. He or she shall be the legal custodian of all monies, notes, securities and other valuables which may from time to time come into the possession of the corporation. He or she shall immediately deposit all funds of the corporation coming into his or her hands in some reliable bank or other depository to be designated by the Board of Directors and shall keep such bank account in the name of the corporation. He or she shall furnish at meetings of the Board of Directors, or whenever requested, a statement of the financial condition of the corporation and shall perform such other duties as these By-Laws may require or the Board of Directors may prescribe. The treasurer may be required to furnish bond in such amount as shall be determined by the Board of Directors.

Section 5.07 Delegation of Authority. In case of the absence of any officer of the corporation, or for any other reason that the Board of Directors may deem sufficient, the Board of Directors may delegate the powers or duties of such officer to any other officer or to any director, for the time being, provided a majority of the entire Board of Directors concurs therein.

ARTICLE 6

Executive Committee

Section 6.01 Committees. The Board of Directors, by resolution adopted by a majority of the number of directors fixed by these By-laws or otherwise, may create one or more committees and appoint members of the board to serve on them. Each committee may have one or more members, who serve at the pleasure of the Board of Directors. Such committee shall have and exercise all of the authority of the Board of Directors in the management of the corporation, except as otherwise required by law. Vacancies in the membership of committee shall be filled by the Board of Directors at a regular or special meeting of the Board of Directors. The executive committee shall keep regular minutes of its proceedings and report the same to the board when required.

ARTICLE 7

Notices

Section 7.01 Notice Required. Whenever, under the provisions of the statutes or of the Articles of Incorporation or of these By-Laws, notice is required to be given to any director or shareholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or shareholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram.

 

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Page 25 of 51		Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.

 

		Indiana Secretary of State
		Packet: 198412-300
		Filing Date: 03/09/2007
		Effective Date: 03/09/2007

 

Section 7.02 Waiver of Notice. Whenever any notice whatever is required to be given under the provisions of the statutes or under the provisions of the Articles of Incorporation or these By-Laws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice.

ARTICLE 8

Corporate Books

Section 8.01 Place of Keeping, In General. Except as otherwise provided by the laws of the State of Indiana, by the Articles of Incorporation of the corporation, or by these By-Laws, the books and records of the corporation may be kept at such place or places, within or without the State of Indiana, as the Board of Directors may from time to time by resolution determine.

Section 8.02 Stock Register or Transfer Book. The original or duplicate stock register or transfer book or, in case a stock registrar or transfer agent shall be employed by the corporation, either within or without the State of Indiana, a complete and accurate shareholders list, alphabetically arranged, giving the names and addresses of all shareholders and the number of shares held by each, shall be kept at the principal office of the corporation in the State of Indiana.

ARTICLE 9

Contracts, Checks, Notes, Dividends, Etc.

Section 9.01 In General. All contracts and agreements authorized by the Board of Directors, and all checks, drafts, notes, bonds, bills of exchange, land orders for the payment of money, shall, unless otherwise directed by the Board of Directors or unless otherwise required by law, be signed by any two of the following officers who are different persons: president, vice president, treasurer, secretary, or assistant secretary. The Board of Directors may, however, authorize any one of such officers to sign checks, drafts, and orders for the payment of money singly and without necessity of countersignature, and may designate employees of the corporation, other than those named above, who may execute drafts, checks and orders for the payment of money in the name of the corporation in its behalf.

Section 9.02 Dividends. Subject to the provisions of the Articles of Incorporation relating thereto, if any, dividends may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property or in shares of stock, subject to any provisions of the Articles of Incorporation. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors, from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created.

 

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Page 26 of 51		Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.

 

		Indiana Secretary of State
		Packet: 198412-300
		Filing Date: 03/09/2007
		Effective Date: 03/09/2007

 

ARTICLE 10

Indemnification of Directors and Officers

Section 10.01 Indemnification. In General. The corporation shall indemnify any person made a party to any action, suit or proceeding by reason of the fact that he or she, his or her testator or intestate, is or was a director, officer or employee of the corporation, or of any corporation which he or she served as such at the request of the corporation, against the reasonable expenses, including attorneys’ fees actually and reasonably incurred by him or her in connection with the defense of such action, suit or proceedings, or in connection with any appeal therein, to the fullest extent provided by Indiana law. The corporation may also reimburse to any such director, officer or employee the reasonable costs of settlement of any such action, suit or proceeding, if it shall be found by a majority of a committee composed of the directors not involved in the matter in controversy (whether or not a quorum) that it is to the interests of the corporation that such settlement be made and that such director, officer or employee was not guilty of negligence or misconduct. Such rights of indemnification and reimbursement shall not be deemed exclusive of any other rights to which such director, officer or employee may be entitled apart from the provisions of this Article.

ARTICLE 11

Disallowed Salary, Etc.

Section 11.01 In General. Any payments made to an officer of the corporation, such as a salary, commission, bonus, interest, rent or travel and entertainment expense incurred by such officer, which shall be disallowed, in whole or in part, as a deductible corporate expense by the Internal Revenue Service, shall be reimbursed by such officer to the corporation to the full extent of such disallowance. The Board of Directors shall have the duty to enforce payment of such amount disallowed. Reimbursement may take the form of proportionate amounts being withheld from future compensation of such officer in lieu of a lump sum payment at the discretion of the Board of Directors.

ARTICLE 12

Amendments

Section 12.01 In General. These By-Laws may be altered, amended, or repealed or new By-Laws may be adopted only by the affirmative vote of a majority of the Board of Directors at any regular or special meeting of the board, unless otherwise provided by the Articles of Incorporation or By-Laws.

 

7

 

Page 27 of 51		Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.

 

		Indiana Secretary of State
		Packet: 198412-300
		Filing Date: 03/09/2007
		Effective Date: 03/09/2007

 

State of Indiana

Office of the Secretary of State

CERTIFICATE OF MERGER

of

THE MATRIXX GROUP, INCORPORATED

I, TODD ROKITA, Secretary of State of Indiana, hereby certify that Articles of Merger of the above For-Profit Domestic Corporation have been presented to me at my office, accompanied by the fees prescribed by law and that the documentation presented conforms to law as prescribed by the provisions of the Indiana Business Corporation Law.

The following non-surviving entity(s):

CITADEL PLASTICS, LLC

a(n) Domestic Limited Liability Company (LLC)

PLASTIC PROCESSING OF EVANSVILLE, INCORPORATED

a(n) For-Profit Domestic Corporation

merged with and into the surviving entity:

THE MATRIXX GROUP, INCORPORATED

NOW, THEREFORE, with this document I certify that said transaction will become effective Friday, March 09, 2007.

 

		In Witness Whereof, I have caused to be affixed my signature and the seal of the State of Indiana, at the City of Indianapolis, March 9, 2007.     TODD ROKITA, SECRETARY OF STATE   198412-300 / 2007030929919

 

 

Page 28 of 51		Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.
Indiana Secretary of State Packet: 198412-300 Filing Date: 12/21/2010 Effective Date: 12/21/2010
ARTICLES OF CROSS-SPECIES MERGER Resulting in the Formation of a Corporation
State Form 51584 (1-04)
Approved by State Board of Accounts, 2004
INSTRUCTIONS: Use 8 1/2” x 11” white paper for attachments.
Present original and one copy to the address in upper right corner of this form. Please TYPE or PRINT.
Please visit our office on the web at www.sos.In.gov.
TODD ROKITA SECRETARY OF STATE CORPORATE DIVISION 302 W. Washington Street Rm. E018 Indianapolis, IN 46204 Telephone: (317) 232-6676
Indiana Code 23-1-18-3 FILING FEE: $30.00
Citadel Canada LLC
ARTICLES OF CROSS-SPECIES MERGER OF
(hereinafter Non-surviving Business Entity” (“Entities”) and/or “Non-surviving Corporation(s)”)
INTO
The Matrixx Group, Incorporated
(hereinafter “Surviving Corporation”)
ARTICLE I: PLAN OF CROSS-SPECIES MERGER
Please set forth the Plan of Cross-Species Merger, attach herewith, and designate it as “Exhibit A.” The Plan of Cross-Species Merger must state the following:

•

The name of each Non-surviving Corporation incorporated In Indiana and the name and jurisdiction of formation, organization, or incorporation of each Non-surviving Business Entity;

•

The name of Surviving Corporation;

•

The terms and conditions of the merger;

•

The manner and basis of converting the shares or rights thereof of Non-surviving Corporation and/or the interests, obligations, shares, other securities, or rights thereof of Non-surviving Business Entity (Entities) and/or Non-surviving Corporation(s) into the shares, obligations, assets, other securities, or rights thereof of Surviving Corporation;

•

Any amendments to or restatements of the Articles of Incorporation of Surviving Corporation; and

•

All statements required to be set forth in the plan of merger by the laws under which each Non-surviving Business Entity is formed, organized, or incorporated;

•

All information required by the Articles of Incorporation (Indiana Code 23-1-21-2) if there are no corporations that are parties to the merger; and

•

Any amendments to, or a restatement of the Articles of Incorporation of Surviving Corporation, if one or more corporations are parties to the merger and if Surviving Corporation is an Indiana Corporation.

The relevant Indiana Code sections for the Plan of Merger are as follows:

•

23-1-40-8(c)(4) if a corporation is a party to the merger;

•

23-18-7-9(c)(4) if a limited liability company is party to the merger;

•

23-4-1-53(c)(4) if a limited liability partnership is a party to the merger; and

•

23-16-3-13(c)(4) if a limited partnership is a party to the merger.

ARTICLE II: SURVIVING CORPORATION
If Surviving Corporation is an Indiana corporation, please complete Section 1 of this Article. If Surviving Corporation is a foreign corporation, please complete Section 2 of this Article.
(Please complete this section if Surviving Corporation is an Indiana corporation.)
The surviving corporation is a domestic corporation existing pursuant to the provisions of the Indiana Business Corporation Law Incorporated on December 10, 1984.
Page 29 of 51
Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.
Indiana Secretary of State Packet: 198412-300 Filing Date: 12/21/2010 Effective Date: 12/21/2010
(Please complete this section if Surviving Corporation is incorporated outside of Indiana.)
The surviving corporation is a foreign corporation incorporated under the laws of the State of and is ☐ qualified ☐ not qualified (please designate which) to do business in Indiana.
If the surviving corporation is qualified to do business in Indiana, the date of qualification is.

•

(If Application for Certificate of Authority to do business in Indiana is filed concurrently herewith, please state “Upon approval of Application for Certificate of Authority”.)

ARTICLE III: NON-SURVIVING BUSINESS ENTITIES
(Please list any non-surviving corporations [If any] in this merger).
The name, state of incorporation, and the date of incorporation or qualification (if applicable) respectively, of each Indiana domestic corporation and Indiana qualified foreign corporation which is party to the merger are as follows:
Name of Non-surviving Corporation
State of Domicile
Date of Incorporation or qualification in Indiana
Name of Non-surviving Corporation
State of Domicile
Date of Incorporation or qualification in Indiana
Name of Non-surviving Corporation
State of Domicile
Date of Incorporation or qualification in Indiana
(Please list any Non-surviving Business Entities that are not a corporation[If any] in this merger).
The name, business entity type, state of organization, and date of organization of any Indiana or foreign business entity that is a party to the merger and qualified to do business in Indiana (if applicable).
Name
Type of business entity
Citadel Canada LLC
limited liability company
State of Domicile
Date of organization or qualification
Delaware
July 9, 2009 (in DE)(not qualified in IN)
Name
Type of business entity
State of Domicile
Date of organization or qualification
Name
Type of business entity
State of Domicile
Date of organization or qualification
Page 30 of 51
Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.
Indiana Secretary of State Packet: 198412-300 Filing Date: 12/21/2010 Effective Date: 12/21/2010
ARTICLE IV: MANNER OF ADOPTION AND VOTE OF SURVIVING CORPORATION
(Please complete either Section 1 or Section 2).
☐ Shareholder vote not required.
• The merger / share exchange was adopted by the incorporators or board of directors without shareholder action and shareholder action was not required.
☐ Vote of shareholders is required (Please select either A or B)
The designation (i.e. common, preferred, or any classification where different classes of stock exist), number of outstanding shares, number of votes entitled to be cast by each voting group entitled to vote separately on the merger / share exchange, and the number votes each voting group represented at the meeting are set forth below:
A. ☒ Unanimous written consent executed on December 15, 2010 and signed by all shareholders entitled to vote.
OR
B. ☐ Vote of shareholders during a meeting called by the Board of Directors.
TOTAL A B C
DESIGNATION OF EACH VOTING GROUP (i.e. preferred and common) common
NUMBER OF OUTSTANDING SHARES 241
NUMBER OF VOTES ENTITLED TO BE CAST 241
NUMBER OF VOTES REPRESENTED AT MEETING 241
SHARES VOTED IN FAVOR 241
SHARES VOTED AGAINST 0
ARTICLE V: MANNER OF ADOPTION AND VOTE OF NON-SURVIVING CORPORATION (If applicable)
Please complete this Article If a corporation is party to the merger. (Select either A or B)
The designation (i.e. common, preferred, or any classification where different classes of stock exist), number of outstanding shares, number of votes entitled to be cast by each voting group entitled to vote separately on the merger / share exchange, and the number of votes of each voting group represented at the meeting is set forth below:
A. ☐ Unanimous consent executed on , 20 and signed by all shareholders entitled to vote.
B. ☐ Vote of shareholders during a meeting called by the Board of Directors.
TOTAL A B C
DESIGNATION OF EACH VOTING GROUP (i.e. preferred and common)
NUMBER OF OUTSTANDING SHARES
NUMBER OF VOTES ENTITLED TO BE CAST
NUMBER OF VOTES REPRESENTED AT MEETING
SHARES VOTED IN FAVOR
SHARES VOTED AGAINST
Page 31 of 51
Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.
Indiana Secretary of State Packet: 198412-300 Filing Date: 12/21/2010 Effective Date: 12/21/2010
ARTICLE VI: SIGNATURE
In Witness Whereof, the undersigned, being a duly authorized representative of Surviving Corporation, executes these Articles of Cross-Species Merger and verifies, subject to penalty of perjury, that the statements contained herein are true, and that each business entity that is a party to this merger has approved the plan of merger according to Indiana law or according to the laws of the State in which the business entity was organized or incorporated, this
15th day of Dec. , 2010.
Signature
Printed name
Matthew D. McDonald
Title
Vice President
Page 32 of 51
Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.

 

		Indiana Secretary of State
		Packet: 198412-300
		Filing Date: 12/21/2010
		Effective Date: 12/21/2010

 

AGREEMENT AND PLAN OF PLAN OF MERGER

This Agreement and Plan of Merger (“Plan of Merger”) is made and entered into this 15^th day of December 2010, by and among The Matrixx Group, Incorporated, an Indiana corporation (the “Surviving Company”) and Citadel Canada LLC, a Delaware limited liability company (the “Merged Company”).

WHEREAS, the Board of Directors and the sole shareholder of the Surviving Company and the sole Member and Board of Managers of the Merged Company deem it advisable and in the best interests of the parties hereto, that the Merged Company be merged into the Surviving Company under the laws of the State of Indiana pursuant to the provision of Section 23-1-40-8 of the Indiana Business Corporation Law.

NOW, THEREFORE, in consideration of the promises of the mutual agreements contained herein, the Parties here to agree to merge upon the terms and conditions stated below:

1. The parties hereto agree that the Merged Company will be merged into the Surviving Company (the “Merger”). The separate existence of the Merged Company will cease, and the existence of the Surviving Company will continue unaffected and unimpaired by the Merger, with all rights, privileges, immunities and powers, and subject to all the duties and liabilities, of a corporation formed under the laws of the State of Indiana.

2. The mode of effecting the Merger will be as follows:

(a) At the Effective Date (as defined below), each membership unit of the Merged Company which is issued and outstanding on the Effective Date of the Merger, and all rights in respect thereof, shall be converted into the right to receive one (1) share of common stock, no par value, of the Surviving Company.

(b) At the Effective Date, each issued and outstanding share of common stock, no par value, of the Surviving Company shall remain outstanding and unchanged as a result of the Merger.

(c) The Merger will become effective upon filing of the Articles of Cross-Species Merger with the Secretary of State of the State of Indiana and the Certificate of Merger with the Secretary of State of the State of Delaware (the “Effective Date”).

(d) Upon the Effective Date of the Merger, all the property, rights, privileges, franchises, patents, trademarks, licenses, registrations and other assets of every kind and description of the Merged Company shall be transferred to, vested and devolve upon, the Surviving Company without further acct or deed and all property, rights and every other interest of the Surviving Company and the Merged Company shall be as effectively the property of the Surviving Company as they were of the Surviving Company and the Merged Company, respectively. The Merged Company hereby agrees from time to time, as and when requested by the Surviving Company or by its successors or assigns, to execute and deliver or cause to be executed and delivered all such deeds and instruments and to take a cause to be taken such further or other action as the Surviving Company title to and possession of any property of the Merged Company acquired or to be acquired by reason of or as a result of the Merger herein

 

Page 33 of 51		Certification Number: 2015042231707

---

The Indiana Secretary of State filing office certifies that this copy is on file in this office.

 

		Indiana Secretary of State
		Packet: 198412-300
		Filing Date: 12/21/2010
		Effective Date: 12/21/2010

 

provided for and otherwise to carry out the intent and purposes hereof and the proper Member and Board of Managers of the Merged Company and the Board of Directors of the Surviving Company are fully authorized in the name of the Merged Company and the Surviving Company, respectively to take any and all such action.

(e) All debts, liabilities and duties of the Surviving Company and Merged Company will attach to the Surviving Company, and may be enforced against the Surviving Company to the same extent as if said debts, liabilities and duties had been incurred or contracted by Surviving Company.

3. The By-Laws of the Surviving Company as they exist on the Effective Date of this Plan of Merger shall and remain the By-Laws of the Surviving Company until the same shall be altered, amended or repealed as therein provided.

4. The Articles of Incorporation of the Surviving Company as they exist on the Effective Date of this Plan of Merger shall be and remain the Articles of Incorporation of the Surviving Company until the same shall be altered, amended or repeated as therein provided.

5. The Board of Directors of the Surviving Company and the Board of Managers and Member of the Merged Company shall have the power in their discretion to abandon the Merger provided for herein prior to the filing of the Articles of Cross-Species Merger or other appropriate certificate with the office of the Secretary of State of the State of Indiana and the Certificate of Merger of other appropriate certificate with the office of the Secretary of State of the State of Delaware.

6. This Plan of Merger will be governed by and construed in accordance with the internal laws of the State of Indiana.

 

- 2 -

 

Page 34 of 51		Certification Number: 2015042231707

---

The Indiana Secretary of State filing office certifies that this copy is on file in this office.

 

		Indiana Secretary of State
		Packet: 198412-300
		Filing Date: 12/21/2010
		Effective Date: 12/21/2010

 

IN WITNESS WHEREOF, the parties hereto have caused their respective names to be signed hereto by their officer, duly authorized by their respective Board of Directors, Shareholders, Member or Board of Managers, as the case may be.

 

 

- 3 -

 

Page 35 of 51		Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.

 

State of Indiana

Office of the Secretary of State

CERTIFICATE OF MERGER

of

THE MATRIXX GROUP, INCORPORATED

I, TODD ROKITA, Secretary of State of Indiana, hereby certify that Articles of Merger of the above For-Profit Domestic Corporation have been presented to me at my office, accompanied by the fees prescribed by law and that the documentation presented conforms to law as prescribed by the provisions of the Indiana Business Corporation Law.

The following non-surviving entity(s):

CITADEL CANADA LLC

a(n) Delaware Non-Qualified Foreign Corporation

merged with and into the surviving entity:

THE MATRIXX GROUP, INCORPORATED

 

		Indiana Secretary of State
		Packet: 198412-300
		Filing Date: 12/21/2010
		Effective Date: 12/21/2010

NOW, THEREFORE, with this document I certify that said transaction will become effective Tuesday, December 21, 2010.

 

		In Witness Whereof, I have caused to be affixed my signature and the seal of the State of Indiana, at the City of Indianapolis, December 21, 2010.     TODD ROKITA, SECRETARY OF STATE   198412-300 / 20101 22255956

 

Page 36 of 51		Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.
Indiana Secretary of State Packet: 198412-300 Filing Date: 12/28/2011 Effective Date: 12/31/2011
ARTICLES OF MERGER
State Form 39036 (R8/2-11)
Approved by State Board of Accounts, 1995
APPROVED
AND
FILED
IND. SECRETARY OF STATE
INSTRUCTIONS: Use 8 1/2” x 11” white paper for attachments.
Present original and one (1) copy to the address in upper right corner of this form. Please TYPE or PRINT.
Please visit our office on the web at www.sos.in.gov.
CHARLES P. WHITE SECRETARY OF STATE CORPORATIONS DIVISION
302 W. Washington Street, Room E018 Indianapolis, Indiana 46204 Telephone: (317) 232-6576
Indiana Code 23-1-40-1 et. seq. FILING FEE: $90.00
ARTICLES OF MERGER / SHARE EXCHANGE
OF
Matrixx - QTR, Inc.
(hereinafter “the nonsurviving corporation(s)”)
INTO
The Matrixx Group, Incorporated
(hereinafter “the surviving corporation”)
Effective date: December 31, 2011
ARTICLE I - SURVIVING CORPORATION
SECTION 1:
The name of the corporation surviving the merger is The Matrixx Group, Incorporated    
and such name ☐ has ☒ has not (designate which) been changed as a result of the merger,
SECTION 2:
a. The surviving corporation is a domestic corporation existing pursuant to the provisions of the Indiana Business Corporation law incorporated on (month, day, year) December 10, 1984
b. The surviving corporation is a foreign corporation incorporated under the laws of the State of and
☐ qualified ☐ not qualified (designate which) to do business in Indiana.
If the surviving corporation is qualified to do business in Indiana, state the date of qualification (month, day, year):    
(If Application for Certificate of Authority is filed concurrently herewith state “Upon approval of Application for Certificate of Authority”)
ARTICLE II - NONSURVIVING CORPORATION (S)
The name, state of incorporation, and date of incorporation or qualification (if applicable) respectively, of each Indiana domestic corporation
and Indiana qualified foreign corporation, other than the survivor, which is party to the merger are as follows:
Name of Corporation
Matrixx - QTR, Inc.
State of Domicile
Date of Incorporation or qualification in Indiana, if applicable (month, day, year)
Delaware
June 30, 2010
Name of Corporation
State of Domicile
Date of Incorporation or qualification in Indiana, if applicable (month, day, year)
Name of Corporation
State of Domicile
Date of Incorporation or qualification in Indiana, if applicable (month, day, year)
ARTICLE III - PLAN OF MERGER OR SHARE EXCHANGE
The Plan of Merger or Share Exchange, containing such information as required by Indiana Code 23-1-40-1 (b), is set forth in “Exhibit A”, attached hereto and made a part hereof.
Page 1 of 2
Page 37 of 51
Certification Number: 2015042231707

---

The Indiana Secretary of State filing office certifies that this copy is on file in this office.
Indiana Secretary of State Packet: 198412-300 Filing Date: 12/28/2011 Effective Date: 12/31/2011
ARTICLE IV - MANNER OF ADOPTION AND VOTE OF SURVIVING CORPORATION (Must complete Section 1 or 2)
SECTION 1: ☒ Shareholder vote not required.
The merger / share exchange was adopted by the incorporators or board of directors without shareholder action and shareholder action was not required.
SECTION 2: ☐ Vote of shareholders (Select either A or B)
The designation (i.e., common, preferred or any classification where different classes of stock exist), number of outstanding shares, number of votes entitled to be cast by each voting group entitled to vote separately on the merger / share exchange and the number of votes of each voting group represented at the meeting is set forth below:
A. Unanimous written consent executed on                      20     and signed by all shareholders entitled to vote.
B. Vote of shareholders during a meeting called by the Board of Directors.
TOTAL A B C
DESIGNATION OF EACH VOTING GROUP (i.e., preferred and common)
NUMBER OF OUTSTANDING SHARES
NUMBER OF VOTES ENTITLED TO BE CAST
NUMBER OF VOTES REPRESENTED AT MEETING
SHARES VOTED IN FAVOR
SHARES VOTED AGAINST
ARTICLE V - MANNER OF ADOPTION AND VOTE OF NONSURVIVING CORPORATION (Must complete Section 1 or 2)
SECTION 1: ☒
Shareholder vote not required.
The merger / share exchange was adopted by the incorporators or board of directors without shareholder action and shareholder action was not required.
SECTION 2: ☐ Vote of shareholders (Select either A or B)
The designation (i.e., common, preferred or any classification where, different classes of stock exist), number of outstanding shares, number of votes entitled to be cast by each voting group entitled to vote separately on the merger / share exchange and the number of votes of each voting group represented at the meeting is set forth below:
A. Unanimous written consent executed on                         20     and signed by all shareholders entitled to vote.
B. Vote of shareholders during a meeting called by the Board of Directors.
TOTAL A B C
DESIGNATION OF EACH VOTING GROUP (i.e., preferred and common)
NUMBER OF OUTSTANDING SHARES
NUMBER OF VOTES ENTITLED TO BE CAST
NUMBER OF VOTES REPRESENTED AT MEETING
SHARES VOTED IN FAVOR
SHARES VOTED AGAINST
In Witness Whereof, the undersigned being the Secretary of the surviving corporation
Officer or Chairman of Board
executes these Articles of Merger / Share Exchange and verifies, subject to penalties of perjury that the statements contained herein are true. this 28th day of December 2011.
Signature Printed name
Paul H. Peterson Page 2 of 2
Page 38 of 51 Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.

 

		Indiana Secretary of State
		Packet: 198412-300
		Filing Date: 12/28/2011
		Effective Date: 12/31/2011

 

EXHIBIT A

THE PLAN OF MERGER

The Plan of Merger (the “Plan”), is by and between Matrixx-QTR, Inc., a Delaware corporation (the “Terminating Corporation”) and The Matrixx Group, Incorporated, an Indiana corporation (the “Surviving Corporation”). The Terminating Corporation and Surviving Corporation are sometimes referred to collectively as the “Parties”.

The Surviving Corporation owns all of the outstanding shares of the Terminating Corporation; and

The Board of Directors of the Surviving Corporation has determined that it is in the best interests of the Parties to merge the Terminating Corporation into the Surviving Corporation (the “Merger”) in order to create a single corporation organized under the laws of the State of Indiana. The Board of Directors of Surviving Corporation approved the Plan as of December 28, 2011.

The Terminating Corporation shall be merged into the Surviving Corporation, in accordance with, and pursuant to the laws of the State of Indiana and as permitted under the laws of the State of Delaware.

The Merger shall become effective on December 31, 2011 (the “Effective Date”). The Surviving Corporation may at any time after the Effective Date, take any action (including executing and delivering any document) in the name of and on behalf of either the Surviving Corporation or the Terminating Corporation in order to carry out and effectuate the transactions contemplated by this Plan.

As of the Effective Date, by virtue of the Merger and without any further action on the part of the Surviving Corporation or the Terminating Corporation, each share of Common Stock of the Terminating Corporation outstanding immediately prior to the Effective Date shall be surrendered and cancelled and no payment shall be made in connection therewith.

 

Page 39 of 51		Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.

 

State of Indiana

Office of the Secretary of State

CERTIFICATE OF MERGER

of

THE MATRIXX GROUP, INCORPORATED

I, CHARLES P. WHITE, Secretary of State of Indiana, hereby certify that Articles of Merger of the above For-Profit Domestic Corporation have been presented to me at my office, accompanied by the fees prescribed by law and that the documentation presented conforms to law as prescribed by the provisions of the Indiana Business Corporation Law.

The following non-surviving entity(s):

MATRIXX-QTR, INC.

a(n) Delaware For-Profit Foreign Corporation qualified in Indiana

merged with and into the surviving entity:

THE MATRIXX GROUP, INCORPORATED

 

		Indiana Secretary of State
		Packet: 198412-300
		Filing Date: 12/28/2011
		Effective Date: 12/31/2011

NOW, THEREFORE, with this document I certify that said transaction will become effective Saturday, December 31, 2011.

 

		In Witness Whereof, I have caused to be affixed my signature and the seal of the State of Indiana, at the City of Indianapolis, December 28, 2011.     CHARLES P. WHITE, SECRETARY OF STATE
		198412-300 / 2011122960575

 

Page 40 of 51		Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.
Indiana Secretary of State Packet: 198412-300 Filing Date: 01/06/2012 Effective Date: 01/06/2012 ARTICLES OF CORRECTION
State Form 26235 (R5 / 2-11)
Approved by State Board of Accounts 1995
INSTRUCTIONS: APPROVED AND FILED
1. Use 8 1/2” x 11” white paper for attachments.
2. Present original and one (1) copy to address in upper right corner of this form.
3. Please TYPE or PRINT.
4. Please visit our office on the web at www.sos.In.gov.
CHARLES P. WHITE SECRETARY OF STATE CORPORATIONS DIVISION
302 W. Washington St., Rm. E018 Indianapolis, IN 46204 Telephone: (317) 232-6576
Indiana Code 23-1-18-5
FILING FEE: $30.00
ARTICLES OF CORRECTION OF Articles of Merger Name of Corporation The Matrixx Group, Incorporated
This is a ☒ Domestic corporation ☐ Foreign corporation incorporated or authorized to transact business in Indiana on
1. The Articles of Correction are filed to correct: (Describe document to be corrected and date filed or attach incorrect document.)
Articles of Merger filed 12/28/2011; effective 12/31/2011 - attached
2. These Articles of Correction are filed to correct:
☒ an incorrect statement and / or ☐ a defect in the execution, attestation, seal, verification or acknowledgement
3. The incorrect statement(s) is (are) as follows: [If necessary, attach additional sheet(s).]
On page 1 of Articles of Merger just below name of surviving corporation Articles stated (incorrectly) effective date of December 31, 2011
The first sentence of Paragraph 5 of the Plan of Merger attached as Exhibit A to Articles of Merger stated (incorrectly) an effective
date of December 31, 2011.
4. The statement(s) is (are) incorrect, or the manner of execution was defective for the following reason(s): [If necessary, attach additional sheet(s).]
The wrong effective date was listed on Articles of Merger and on Plan of Merger attached to Articles of Merger.
(Continued on the reverse side)
Page 41 of 51 Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.
Indiana Secretary of State Packet: 198412-300 Filing Date: 01/06/2012 Effective Date: 01/06/2012
5. The following is (are) the corrected statement(s) and / or the corrected execution(s): [If necessary, attach additional sheet(s).]
Effective date on page 1 of Articles of Merger is changed to: “Effective date: January 26, 2012”     
Sentence 1 of Paragraph 5 of Plan of Merger (attached as Exhibit A to Articles of Merger) is deleted and replaced with the following:
“The Merger shall become effective on January 26, 2012 (the “Effective Date”).”
In Witness Whereof, the undersigned being the
Secretary
(Title)
of said Corporation executes these Articles of Correction and verifies, subject to penalties of perjury, that the facts contained herein are true, this 4th day of January     , 2012.
Signature
Printed name Paul H. Peterson
Page 42 of 51
Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.

 

		Indiana Secretary of State
		Packet: 198412-300
		Filing Date: 01/06/2012
		Effective Date: 01/06/2012

 

State of Indiana Office of the Secretary of State   CERTIFICATE OF MERGER of THE MATRIXX GROUP, INCORPORATE
I, CHARLES P. WHITE, Secretary of State of Indiana, hereby certify that Articles of Merger of the above For-Profit Domestic Corporation have been presented to me at my office, accompanied by the fees prescribed by law and that the documentation presented conforms to law as prescribed by the provisions of the Indiana Business Corporation Law.   The following non-surviving entity(s):   MATRIXX-QTR, INC. a(n) Delaware For-Profit Foreign Corporation qualified in Indiana   merged with and into the surviving entity: THE MATRIXX GROUP, INCORPORATED

NOW, THEREFORE, with this document I certify that said transaction will become effective Saturday, December 31, 2011.

 

		In Witness Whereof, I have caused to be affixed my signature and the seal of the State of Indiana, at the City of Indianapolis, December 28, 2011.     CHARLES P. WHITE, SECRETARY OF STATE   198412-300 / 2011122960575

 

Page 43 of 51		Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.
Indiana Secretary of State Packet: 138412-300 Filing Date: 01/06/2012 Effective Date: 01/06/2012
ARTICLES OF MERGER
State Form 39036 (R8 /2-11)
Approved by State Board of Accounts, 1995
APPROVED
FILED
INSTRUCTIONS: Use 8 1/2“ x 11” white paper for attachments.
CHARLES P. WHITE SECRETARY OF STATE CORPORATIONS DIVISION
302 W. Washington Street, Room E018 Indianapolis, Indiana 46204 Telephone: (317) 232-6576
Present original and one (1) copy to the address in upper right corner of this form.
Please TYPE or PRINT.
Please visit our office an the web at wvw.sos.in.gov.
Indiana Code 23-1-40-1 et. seq, FILING FEE: $90.00
ARTICLES OF MERGER / SHARE EXCHANGE OF
Matrixx - QTR, Inc. (hereinafter “the nonsurviving corporation(s)”) INTO
The Matrixx Group, Incorporated
(hereinafter “surviving corporation”) Effective date: December 31, 2011 ARTICLE 1 - SURVIVING CORPORATION Section 1:
The name, of the corporation surviving the merger is The Matrixx Group, Incorporated
and such name ☐ has ☒ has not (designate which) been changed as a result of the merger.
a. The surviving Corporation is a domestic corporation existing pursuant to the provisions of the Indiana Business Corporation Law incorporated on (month, day, year) December 10, 1984
b. The surviving Corporation is a foreign corporation incorporated under the laws of the State of
☐ qualified ☐ not qualified (designate which) to do business in Indiana.
If the surviving corporation is qualified to do business in Indiana, state the date of qualification (month, day, year):     .
(If Application for Certificate of Authority is filed concurrently herewith state “Upon approval of Application for Certificate of Authority.*) and ARTICLE II - NONSURVIVING CORPORATION (S)
The name, state of incorporation, and date of incorporation or qualification (if applicable) respectively, of each Indiana domestic corporation and Indiana qualified foreign corporation, other than the survivor, which is party to the merger are as follows;     
Name of Corporation Matrixx - QTR, Inc. State of Domicile Delaware
Date of incorporation or qualification in Indian, if applicable (month, day, year)
June 30, 2010 Name of Corporation State of Domicile
Date of incorporation or qualification in Indiana, if applicable (month, day, year) Name of Corporation
Date or incorporation or qualification in Indiana, if applicable (month, day, year)
ARTICLE III - PLAN OF MERGER OR SHARE EXCHANGE
The Plan of Merger or Share Exchange, containing such information as required by Indiana Code 23-1-40-1 (b), is set forth in “Exhibit A”, attached hereto and made a part hereof.
Page 1 of 2 Page 44 of 51 Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.
Indiana Secretary of State Packet: 198412-300 Filing Date: 01/06/2012 Effective Date: 01/06/2012
ARTICLE IV - MANNER OF ADOPTION AND VOTE OF SURVIVING CORPORATION (Must Complete Section 1 or 2)
SECTION 1: ☒ Shareholder vote not required.
The merger / share exchange was adopted by the incorporators or board of directors without shareholder action and shareholder action was not required.
SECTION 2: ☐ Vote of shareholders (Select either A or B)
The designation (i.e., common, preferred or any classification where different classes of stock exist), number of outstanding shares, number of votes entitled to be cast by each voting group entitled to vote separately on the merger / share exchange and the number of votes of each voting group represented at the meeting is set forth below:
A. Unanimous written consent executed on 20 and signed by all shareholders entitled to vote.
B. Vote of shareholders during a meeting called by the Board of Directors.
TOTAL A B C
DESIGNATION OF EACH VOTING GROUP (i.e. preferred and common)
NUMBER OF OUTSTANDING SHARES
NUMBER OF VOTES ENTITLED TO BE CAST
NUMBER OF VOTES REPRESENTED AT MEETING
SHARES VOTES IN FAVOR
SHARES VOTED AGAINST
ARTICLE V - MANNER OF ADOPTION AND VOTE OF NONSURVIVING CORPORATION (Must complete Section 1 or 2)
SECTION 1: ☒ Shareholder vote not required.
The merger / share exchange was adopted by the incorporators or board of directors without shareholder action and shareholder action was not required.
SECTION 2: ☐ Vote of shareholders (Select either A or B)
The designation (i.e., common, preferred or any classification where different classes of stock exist), number of outstanding shares, number of votes entitled to be cast by each voting group entitled to vote separately on the merger / share exchange and the number of votes of each voting group represented at the meeting is set forth below:
A. Unanimous written consent executed on 20 and signed by all shareholders entitled to vote.
B. Vote of shareholders during a meeting called by the Board Of Directors.
TOTAL A B C DESIGNATION OF EACH VOTING GROUP (i.e., preferred and common)
NUMBER OF OUTSTANDING SHARES
NUMBER OF VOTES ENTITLED TO BE CAST
NUMBER OF VOTES REPRESENTED AT MEET1NG
SHARES VOTED IN FAVOR
SHARES VOTED AGAINST
In Witness Whereof, the undersigned being the Secretary of the surviving corporation executes these Articles of Merger / Share Exchange and verifies, subject to penalties of perjury that the statements contained herein are true. this 28th day of December, 2011
Signature Printed name Paul H. Peterson
Page 2 of 2 Page 45 of 51 Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.

 

		Indiana Secretary of State
		Packet: 198412-300
		Filing Date: 01/06/2012
		Effective Date: 01/06/2012

 

EXHIBIT A

THE PLAN OF MERGER

The Plan of Merger (the “Plan”), is by and between Matrixx-QTR, Inc., a Delaware corporation (the “Terminating Corporation”) and The Matrixx Group, Incorporated, an Indiana corporation (the “Surviving Corporation”). The Terminating Corporation and Surviving Corporation are sometimes referred to collectively as the “Parties”.

The Surviving Corporation owns all of the outstanding shares of the Terminating Corporation; and

The Board of Directors of the Surviving Corporation has determined that it is in the best interests of the Parties to merge the Terminating Corporation into the Surviving Corporation (the “Merger”) in order to create a single corporation organized under the laws of the State of Indiana. The Board of Directors of Surviving Corporation approved the Plan as of December 28, 2011.

The Terminating Corporation shall be merged into the Surviving Corporation, in accordance with, and pursuant to the laws of the State of Indiana and as permitted under the laws of the State of Delaware.

The Merger shall become effective on December 31, 2011 (the “Effective Date”). The Surviving Corporation may at any time after the Effective Date, take any action (including executing and delivering any document) in the name of and on behalf of either the Surviving Corporation or the Terminating Corporation in order to carry out and effectuate the transactions contemplated by this Plan.

As of the Effective Date, by virtue of the Merger and without any further action on the part of the Surviving Corporation or the Terminating Corporation, each share of Common Stock of the Terminating Corporation outstanding immediately prior to the Effective Date shall be surrendered and cancelled and no payment shall be made in connection therewith.

 

Page 46 of 51		Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.

 

State of Indiana

Office of the Secretary of State

CERTIFICATE OF CORRECTION

of

THE MATRIXX GROUP, INCORPORATED

I, CHARLES P. WHITE, Secretary of State of Indiana, hereby certify that Articles of Correction of the above For-Profit Domestic Corporation have been presented to me at my office, accompanied by the fees prescribed by law and that the documentation presented conforms to law as prescribed by the provisions of the Indiana Business Corporation Law.

 

				Indiana Secretary of State Packet: 198412-300 Filing Date: 01/06/2012 Effective Date: 01/06/2012

NOW, THEREFORE, with this document I certify that said transaction will become effective Friday, January 06, 2012.

 

		In Witness Whereof, I have caused to be affixed my signature and the seal of the State of Indiana, at the City of Indianapolis, January 6, 2012.
		CHARLES P. WHITE, SECRETARY OF STATE

198412-300 / 2012010963309

 

Page 47 of 51		Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.

 

State of Indiana

Office of the Secretary of State

CERTIFICATE OF ASSUMED BUSINESS NAME

of

THE MATRIXX GROUP, INCORPORATED

I, Connie Lawson, Secretary of State of Indiana, hereby certify that Certificate of Assumed Business Name of the above For-Profit Domestic Corporation has been presented to me at my office, accompanied by the fees prescribed by law and that the documentation presented conforms to law as prescribed by the provisions of the Indiana Business Corporation Law.

Following said transaction the entity named above will be doing business under the assumed business name(s) of:

CITADEL PLASTICS

NOW, THEREFORE, with this document I certify that said transaction will become effective Thursday, May 08, 2014.

 

		In Witness Whereof, I have caused to be affixed my signature and the seal of the State of Indiana, at the City of Indianapolis, May 08, 2014
		CONNIE LAWSON, SECRETARY OF STATE

 

Page 48 of 51		Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.

 

RECEIVED 05/08/2014 09:54 AM		APPROVED AND FILED CONNIE LAWSON INDIANA SECRETARY OF STATE 5/8/2014 10:02 AM

CERTIFICATE OF ASSUMED BUSINESS NAME

 

Pursuant to the provisions of the Indiana Business Corporation Law.

ENTITY NAME

 

THE MATRIXX GROUP, INCORPORATED

Creation Date: 12/10/1984

15000 HIGHWAY 41 N, EVANSVILLE, IN 47725

ASSUMED BUSINESS NAME

 

CITADEL PLASTICS

GENERAL INFORMATION

 

Effective Date: 5/8/2014

Electronic Signature: MICHAEL E. WRIGHT

Signator’s Title: MANAGER

 

 

Page 1 of 1		Control Number 198412-300 / DCN 2014050821329
Transaction Id TA14050800048

 

Page 49 of 51		Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.

 

State of Indiana

Office of the Secretary of State

CERTIFICATE OF ASSUMED BUSINESS NAME

of

THE MATRIXX GROUP, INCORPORATED

I, Connie Lawson, Secretary of State of Indiana, hereby certify that Certificate of Assumed Business Name of the above For-Profit Domestic Corporation has been presented to me at my office, accompanied by the fees prescribed by law and that the documentation presented conforms to law as prescribed by the provisions of the Indiana Business Corporation Law.

Following said transaction the entity named above will be doing business under the assumed business name(s) of:

CITADEL THERMOPLASTICS

NOW, THEREFORE, with this document I certify that said transaction will become effective Thursday, May 08, 2014.

 

		In Witness Whereof, I have caused to be affixed my signature and the seal of the State of Indiana, at the City of Indianapolis, May 08, 2014
		CONNIE LAWSON, SECRETARY OF STATE

 

Page 50 of 51		Certification Number: 2015042231707

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The Indiana Secretary of State filing office certifies that this copy is on file in this office.

 

RECEIVED 05/08/2014 10:03 AM		APPROVED AND FILED CONNIE LAWSON INDIANA SECRETARY OF STATE 5/8/2014 10:04 AM

CERTIFICATE OF ASSUMED BUSINESS NAME

 

Pursuant to the provisions of the Indiana Business Corporation Law.

ENTITY NAME

 

THE MATRIXX GROUP, INCORPORATED

Creation Date: 12/10/1984

15000 HIGHWAY 41 N, EVANSVILLE, IN 47725

ASSUMED BUSINESS NAME

 

CITADEL THERMOPLASTICS

GENERAL INFORMATION

 

Effective Date: 5/8/2014

Electronic Signature: MICHAEL E. WRIGHT

Signator’s Title: MANAGER

 

 

Page 1 of 1		Control Number 198412-300 / DCN 2014050821334
Transaction Id TA14050800056

 

Page 51 of 51		Certification Number: 2015042231707

Exhibit 3.38

 

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Exhibit 3.39

 

CERTIFICATE OF INCORPORATION

OF

W ACQUISITION CORP.

(Title 14A: 2-7 New Jersey Business Corporation Act)

This is to certify that there is hereby organized a corporation under and by virtue of the above-noted statute of the New Jersey Statutes.

1. The name of the corporation shall be W Acquisition Corp.

2. The purpose for which this corporation is organized shall be to engage in any activity within the purposes for which corporations may be organized under NJSA 14A: 1-1, et seq.

3. The name of the registered agent shall be The Corporation Trust Company.

4. The registered office shall be 820 Bear Tavern Road, West Trenton, New Jersey 08628.

5. The aggregate number of shares which the corporation shall have authority to issue shall be eight hundred fifty (850) shares of common stock, no par value, all of one class.

6. The first Board of Directors shall consist of two (2) Directors as set forth below:

 

Name		Address
Asher O. Pacholder		ICO, Inc.
Sylvia A. Pacholder		100 Glenborough Drive, Suite 250 Houston, Texas 77067

7. The names and addresses of the Incorporators are as follows:

 

Name		Address
Kimberley S. Smith		1800 Provident Tower One East Fourth Street Cincinnati, Ohio 45202
Laura L. Warren		1800 Provident Tower One East Fourth Street Cincinnati, Ohio 45202

8. The duration of the corporation is perpetual.

 

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9. No holder of any shares of this corporation shall have any pre-emptive rights to subscribe for or to purchase any shares of this corporation of any class whether such shares or such class be now or hereafter authorized or to purchase or subscribe for security convertible into or exchangeable for shares of any class or to which shall be attached or appertained any warrants or rights entitling the holder thereof to purchase or subscribe for shares of any class.

10. The effective date of incorporation shall be the date of filing of this Certificate of Incorporation.

IN WITNESS WHEREOF, each individual incorporator, being over eighteen (18) years of age, has signed this Certificate this 5th day of December 1995.

 

295246 1

 

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		New Jersey Department of State Division of Commercial Recording Certificate of Amendment to the Certificate of Incorporation (For Use by Domestic Profit Corporations)

“Federal Employer Identification No.”

Pursuant to the provisions of Section 14A:9-2 (4) and Section l4A:9-4 (3), Corporations, General, of the New Jersey Statutes, the undersigned corporation executes the following Certificate of Amendment to its Certificate of Incorporation:

 

1.	The name of the corporation is: W Acquisition Corp.

 

2.	The following amendment to the Certificate of Incorporation was approved by the directors and thereafter duly adopted by the shareholders of the corporation on the 16th day of April, 1996:

Resolved, that Article 5 of the Certificate of Incorporation be amended to read as follows:

“5. The aggregate number of shares which the Corporation shall have authority to issue shall be Five Million (5,000,000) shares of common stock, no par value, all of one class.”

 

3.	The number of shares outstanding at the time of the adoption of the amendment was 850.

The total number of shares entitled to vote thereon was 850.

If the shares of any class or series of shares are entitled to vote thereon as a class, set forth below the designation and number if outstanding shares entitled to vote thereon of each such class or series. (Omit if not applicable).

 

4.	The number of shares voting for and against such amendment is as follows: (If the shares of any class or series are entitled to vote as a class, set forth the number of shares of each such class and series voting for and against the amendment, respectively).

 

Number of Shares Voting for Amendment		Number of Shares Voting Against Amendment
850		0

 

5.	If the amendment provides for an exchange, reclassification or cancellation of issued shares, set forth a statement of the manner in which the same shall be effected. (Omit if not applicable).

 

6.	Other provisions: (Omit if not applicable).

 

				W ACQUISITION CORP.
						(Corporate Name)
				By:
						(Signature)
Dated this 16th day of April, 1996.				Dr. Asher O. Pacholder, Chairman of the Board
				(Type Name and Title)

May be executed by the Chairman of the Board, or the President, or a Vice President of the Corporation.

The purpose of this form is to simplify the filing requirements of the Secretary of State and does not replace the need for competent legal advice.

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		New Jersey Department of State Division of Commercial Recording Certificate of Amendment to the Certificate of Incorporation (For Use by Domestic Profit Corporations)

“Federal Employer Identification No.”

Pursuant to the provisions of Section 14A:9-2 (4) and Section 14A:9-4 (3), Corporations, General, of the New Jersey Statutes, the undersigned corporation executes the following Certificate of Amendment to its Certificate of Incorporation:

 

1.	The name of the corporation is: Wedco Technology, Inc.

 

2.	The following amendment to the Certificate of Incorporation was approved by the directors and thereafter duly adopted by the shareholders of the corporation on the 30th day of April, 1996:

Resolved, that Article 11 of the Certificate of Incorporation be amended to read as follows:

“11. The President, Chairman of the Board, Chief Executive Officer, Chief Operating Officer, or any person who shall hold any other office, position or title having similar functions or authority to the functions of Chairman of the Board, Chief Executive Officer, President or Chief Operating Officer, or who shall have equivalent operating authority of the corporation, shall be elected by a unanimous vote of the Board of Directors of the corporation.”

 

3.	The number of shares outstanding at the time of the adoption of the amendment was 5,000,000.

The total number of shares entitled to vote thereon was 5,000,000.

If the shares of any class or series of shares are entitled to vote thereon as a class, set forth below the designation and number if outstanding shares entitled to vote thereon of each such class or series. (Omit if not applicable).

 

4.	The number of shares voting for and against such amendment is as follows: (If the shares of any class or series are entitled to vote as a class, set forth the number of shares of each such class and series voting for and against the amendment, respectively).

 

Number of Shares Voting for Amendment		Number of Shares Voting Against Amendment
5,000,000		0

 

5.	If the amendment provides for an exchange, reclassification or cancellation of issued shares, set forth a statement of the manner in which the same shall be effected. (Omit if not applicable).

 

6.	Other provisions: (Omit if not applicable).

 

				WEDCO TECHNOLOGY, INC.
				(Corporate Name)
				By:
						(Signature)
Dated this 30th day of April, 1996.				Dr. Asher O. Pacholder, Chairman of the Board
				(Type Name and Title)

May be executed by the Chairman of the Board, or the President, or a Vice President of the Corporation.

The purpose of this form is to simplify the filing requirements of the Secretary of State and does not replace the need for competent legal advice.

 

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FORM C 319
EMH
State of New Jersey
Department of State
I, the Secretary of State of the State of New Jersey, do hereby Certify that the foregoing is a true copy of
Certificate of Incorporation, Amendments and Merger thereto of:
WEDCO TECHNOLOGY, INC. ( FORMERLY W ACQUISITION CORP.)
as the same is taken from and compared with the original
Filed in this office on the dates set forth on each instrument. and now remaining on file and of record in my office
In Testimony Whereof,
I have hereunto set my hand and affixed my Official Seal
at Trenton, this 13th day of February .A.G.
1997
Lonna R. Hooks
Secretary of State

Exhibit 3.40

BY-LAWS

OF

W ACQUISITION CORP.

ARTICLE I

Fiscal Year

Unless otherwise designated by the Board of Directors, the first fiscal year of the Corporation after the adoption of these By-Laws shall end the 31st day of December, 1995. Subsequently, the fiscal year of the Corporation shall commence on the 1st day of January, 1996, or be such other period as the Board of Directors may designate.

ARTICLE II

Shareholders

Section 1. Meetings of the Shareholders.

1.1 Annual Meetings. The Annual Meeting of the Shareholders of this Corporation, for the election of the Board of Directors and the transaction of such other business as may properly be brought before such meeting, shall be held at noon on the first Tuesday of April of each year or such other time and at such place as designated by the Board of Directors. The First Annual Meeting shall be held in 1996. If the Annual Meeting is not held or if Directors are not elected thereat, a special meeting may be called and held for that purpose.

1.2 Special Meetings. Special meetings of the Shareholders may be held on any business day when called by the Chairman of the Board, the President, a majority of Directors, or persons holding not less than ten percent of all shares entitled to vote at a meeting. Calls for special business shall be considered at any such meeting other than that specified in the call therefor.

1.3 Place of Meetings. Any meeting of Shareholders may be held at such place within or without the State of New Jersey as may be designated in the Notice of said meeting.

1.4 Notice of Meeting and Waiver of Notice

1.4.1 Notice. Written notice of the time, place and purposes of any meeting of Shareholders shall be given to each Shareholder entitled thereto not less than ten (10) days nor more than sixty (60) days before the date fixed for the meeting and as prescribed by law. Such notice shall be given either by personal delivery or mail to the Shareholders at their respective addresses as they appear upon the records of the Corporation. Notice

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shall be deemed to have been given on the day mailed. If any meeting is adjourned to another time or place, no notice as to such adjourned meeting need be given other than by announcement at the meeting at which such an adjournment is taken. No business shall be transacted at any such adjourned meeting except as might have been lawfully transacted at the meeting at which such adjournment was taken.

1.4.2 Notice to Joint Owners. All notices with respect to any shares to which persons are entitled by joint or common ownership may be given to that one of such persons who is named first upon the books of this Corporation, and notice so given shall be sufficient notice to all the holders of such shares.

1.4.3 Waiver. Notice of any meeting may be waived in writing by any Shareholder either before or after any meeting, or by attendance at such meeting without protest to its commencement.

1.5 Shareholders Entitled to Notice and to Vote. If a record date shall not be fixed, the record date for the determination of Shareholders entitled to notice of or to vote at any meeting of Shareholders shall be the close of business on the twentieth (20th) day prior to the date of the meeting and only Shareholders of record at such record date shall be entitled to notice of and to vote at such meeting.

1.6 Quorum and Voting. The holders of shares entitling them to exercise a majority of the voting power of the Corporation, present in person or by proxy, shall constitute a quorum for any meeting. The Shareholders present in person or by proxy, whether or not a quorum be present, may adjourn the meeting from time to time without notice other than by announcement at the meeting.

In any other matter brought before any meeting of Shareholders, the affirmative vote of the holders of shares representing a majority of the votes actually cast shall be the act of the Shareholders provided, however, that no action required by law, the Articles, or these Regulations to be authorized or taken by the holders of a designated proportion of the shares of the Corporation may be authorized or taken by a lesser proportion.

1.7 Organization of Meetings.

1.7.1 Presiding Officer. The Chairman of the Board, or in his absence, the President, or in the absence of both of them, a Vice President of the Corporation, shall call all meetings of the Shareholders to order and shall act as Chairman thereof; if all are absent, the Shareholders shall elect a Chairman.

1.7.2 Minutes. The Secretary of the Corporation, or in his absence, an Assistant Secretary, or, in the absence of both, a person appointed by the Chairman of the meeting, shall act as Secretary of the meeting and shall keep and make a record of the proceedings thereat.

 

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1.8 Order of Business. The order of business at all meetings of the Shareholders, unless waived or otherwise changed by the Chairman of the meeting or the Board of Directors, shall be as follows:

1.8.1 Call meeting to order.

1.8.2 Selection of Chairman and/or Secretary, if necessary.

1.8.3 Proof of notice of meeting and presentment of affidavit thereof.

1.8.4 Roll call, including filing of proxies with Secretary.

1.8.5 Upon appropriate demand, appointment of inspectors of election.

1.8.6 Reading, correction and approval of previously unapproved minutes.

1.8.7 Reports of officers and committees.

1.8.8 If an annual meeting, or meeting called for that purpose, election of Directors.

1.8.9 Unfinished business, if an adjourned meeting.

1.8.10 Consideration in sequence of all other matters set forth in the call for and written notice of the meeting.

1.8.11 Any new business other than that set forth in the notice of the meeting which shall have been submitted to the Secretary of the Corporation in writing at least fifteen (15) days prior to the date of the meeting.

1.8.12 Adjournment.

1.9 Voting. Except as provided by statute or in the Articles, every Shareholder entitled to vote shall be entitled to cast one vote on each proposal submitted to the meeting for each share held of record on the record date for the determination of the Shareholders entitled to vote at the meeting. At any meeting at which a quorum is present, all questions and business which may come before the meeting shall be determined by a majority of votes cast, except whon a greater proportion is required by law, the Articles, or these By-Laws.

 

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1.10 Proxies. A person who is entitled to attend a Shareholders’ meeting, to vote thereat, or to execute consents, waivers and releases, may be represented at such meeting or vote thereat, and execute consents, waivers, and releases and exercise any of his rights, by proxy or proxies appointed by a writing signed by such person, or by his duly authorized attorney which may be transmitted physically, or by mail, by facsimile or other electronic medium.

1.11 List of Shareholders. At any meeting of Shareholders a list of Shareholders, alphabetically arranged, showing the number and classes of shares held by each on the record date applicable to such meeting, shall be produced on the request of any Shareholder.

Section 2. Action of Shareholders Without a Meeting.

Any action which may be taken at a meeting of Shareholders may be taken without a meeting if authorized by a writing or writings signed by all of the holders of shares who would be entitled to notice of a meeting for such purpose, which writing or writings shall be filed or entered upon the records of the Corporation.

ARTICLE III

Directors

Section 1. General Powers.

The authority of this Corporation shall be exercised by or under the direction of the Board of Directors, except where the law, the Articles or these By-Laws require action to be authorized or taken by the Shareholders.

Section 2. Election, Number and Qualification of Directors.

2.1 Election. The Directors shall be elected at the annual meeting of the Shareholders, or if not so elected, at a special meeting of Shareholders called for that purpose. Only persons nominated by an officer, director or in writing by a shareholder at least fifteen (15) days prior to the meeting at which directors are to be elected shall be eligible for election.

2.2 Number. The Board of Directors shall consist of three (3) members. The number of Directors may be changed by action of the Directors at a meeting called for that purpose, at which a quorum is present, by a majority vote of the Directors present at the meeting. The Directors then in office may fill any Director’s office that is created by an increase in the number of Directors. The number of Directors elected shall be deemed to be the number of Directors fixed unless otherwise fixed by resolution adopted at the meeting at which such Directors are elected.

 

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2.3 Qualifications. Directors shall be at least eighteen (18) years of age and need not be United States citizens or residents of this state or Shareholders of the Corporation unless the Articles or these By-Laws so require.

2.4 Shareholders Agreement. Upon consummation of the transactions contemplated by that certain Merger Agreement dated December 8, 1995 among the Corporation, ICO, Inc. and Wedco Technology, Inc., the election of the Board of Directors shall be subject to the terms of Willoughby International Stockholders Agreement dated [April 30, 1996] among ICO, Inc. and its holders of common stock.

Section 3. Term of Office of Directors.

3.1 Term. Each Director shall hold office until the next annual meeting of the Shareholders and until his successor has been elected or until his earlier resignation, removal from office, or death. Directors shall be subject to removal as provided by statute or by other lawful procedures and nothing herein shall be construed to prevent the removal of any or all Directors in accordance therewith.

3.2 Resignation. A resignation from the Board of Directors shall be deemed to take effect immediately upon its being received by any incumbent corporate officer other than an officer who is also the resigning Director, unless some other time is specified therein.

3.3 Vacancy. In the event of any vacancy in the Board of Directors for any cause, the remaining Directors, though less than a majority of the whole Board, may fill any such vacancy for the unexpired term.

Section 4. Meetings of Directors.

4.1 Regular Meetings. A regular meeting of the Board of Directors shall be held immediately following the adjournment of the meeting of Shareholders at which Directors are elected. The holding of such Shareholders’ meeting shall constitute notice of such Directors’ meeting and such meeting shall be held without further notice. Other regular meetings shall be held at such other tunes and places as may be fixed by the Directors.

4.2 Special Meetings. Special meetings of the Board of Directors may be held at any time upon call of the Chairman of the Board, the President, any Vice President, or any two Directors.

4.3 Place of Meeting. Any meeting of Directors may be held at such place within or without the State of New Jersey as may be designated in the notice of said meeting.

4.4 Notice of Meeting and Waiver of Notice. Notice of the time and place of any regular or special meeting of the Board of Directors shall be given to each Director by personal delivery, telephone, facsimile transmission or mail at least forty-eight (48) hours before the meeting, which notice need not specify the purpose of the meeting.

 

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Section 5. Quorum and Voting.

At any meeting of Directors, not less than one-half of the whole authorized number of Directors is necessary to constitute a quorum for such meeting, except that a majority of the remaining Directors in office constitutes a quorum for filling a vacancy in the Board. At. any meeting at which a quorum is present, all acts, questions, and business which may come before the meeting shall be determined by a majority of votes cast by the Directors present at such meeting, unless the vote of a greater number is required by the Articles or By-Laws.

Section 6. Committees.

6.1 Appointment. The Board of Directors may from time to time appoint certain of its members to act as a committee or committees in the intervals between meetings of the Board and may delegate to such committee or committees power to be exercised under the control and direction of the Board. Each committee shall be composed of at least three (3) Directors unless a lesser number is allowed by law. Each such committee and each member thereof shall servo at the pleasure of the Board.

6.2 Executive Committee. In particular, the Board of Directors may create from its membership and define the powers and duties of an Executive Committee. During the intervals between meetings of the Board of Directors, the Executive Committee shall possess and may exercise all of the powers of the Board of Directors in the management and control and the business of the Corporation to the extent permitted by law. All action taken by the Executive Committee shall be reported to the Board of Directors at its first meeting thereafter.

6.3 Committee Action. Unless otherwise provided by the Board of Directors, a majority of the members of any committee appointed by the Board of Directors pursuant to this Section shall constitute a quorum at any meeting thereof and the act of a majority of the members present at a meeting at which a quorum is present shall be the act of such committee. Action may be taken by any such committee without a meeting by a writing signed by all its members. Any such committee shall prescribe its own rules for calling and holding meetings and its method of procedure, subject to any rules prescribed by the Board of Directors, and shall keep a written record of all action taken by it.

Section 7. Action of Directors Without a Meeting.

Any action which May be taken at a meeting of Directors or any committee thereof may be taken without a meeting if authorized by a writing or writings signed by all the Directors or all of the members of the particular committee, which writing or writings shall be filed or entered upon the records of the Corporation.

 

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Section 8. Compensation of Directors.

The Board of Directors may allow compensation to directors for performance of their duties and for attendance at meetings or for any special services, may allow compensation to members of any committee, and may reimburse any Director for his expenses in connection with attending any Board or committee meeting.

Section 9. Relationship with Corporation.

Directors shall not be barred from providing professional or other services to the Corporation. No contract, action or transaction shall be void or voidable with respect to the Corporation for the reason that it is between or affects the Corporation and one or more of its Directors, or between or affects the Corporation and any other person in which one or more of its Directors are directors, trustees or officers or have a financial or personal interest, or for the reason that one or more interested Directors participate in or vote at the meeting of the Directors or committee thereof that authorizes such contract, action or transaction, if in any such case any of the following apply:

9.1 the material facts as to the Director’s relationship or interest and as to the contract, action or transaction are disclosed or are known to the Directors or the committee and the Directors or committee, in good faith, reasonably justified by such facts, authorize the contract, action or transaction by the affirmative vote of a majority of the disinterested Directors, even though the disinterested Directors constitute less than a quorum;

9.2 the material facts as to the Director’s relationship or interest and as to the contract, action or transaction are disclosed or are known to the shareholders entitled to vote thereon and the contract, action or transaction is specifically approved at a meeting of the shareholders held for such purpose by the affirmative vote of the holders of shares entitling them to exercise a majority of the voting power of the Corporation held by persons not interested in the contract, action or transaction; or

9.3 the contract, action or transaction is fair as to the Corporation as of the time it is authorized or approved by the Directors, a committee thereof or the Shareholders.

 

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Section 10. Attendance at Meetings of Persons Who Are Not Directors

Unless waived by a majority of Directors in attendance, not less than twenty-four (24) hours before any regular or special meeting of the Board of Directors, any Director who desires the presence at such meeting of a person who is not a Director shall so notify all other Directors, request the presence of such person at the meeting, and state the reason in writing. Such person will not be permitted to attend the Directors’ meeting unless a majority of the Directors in attendance vote to admit such person to the meeting. Such vote shall constitute the first order of business for any such meeting of the Board of Directors. Such right to attend, whether granted by waiver or vote, may be revoked at any time during any such meeting by the vote of a majority of the Directors in attendance.

ARTICLE IV

Officers

Section 1. General Provisions.

The Board of Directors shall elect a President, a Secretary and a Treasurer, and may elect a Chairman of the Board, one or more Vice Presidents, and such other officers and assistant officers as the Board may from time-to-time deem necessary. In addition, the President nr Chairman of the Board may elect officers and assistant officers (other than the President or Chairman) as he or she may from time to time deem necessary. The Chairman of the Board, if any, shall be a Director, but none of the other officers need be a Director. Any two or more offices may be held by the same person, but no officer shall execute, acknowledge or verify any instrument in more than one capacity if such instrument is required to be executed, acknowledged or verified by two or more officers.

Section 2. Powers and Duties.

All officers, as between themselves and the Corporation, shall respectively have such authority and perform such duties as are customarily incident to their respective offices, and as may be specified from time to time by the Board of Directors, regardless of whether such authority and duties are customarily incident to such office. In the absence of any officer of the Corporation, or for any other reason the Board of Directors may deem sufficient, the powers or duties of such officer, or any of them may be delegated, to any other officer or to any Director. The President and Chairman of the Board, in addition to the authority to elect such other officers (other than the President or Chairman) as provided above, shall have the authority to prescribe their authority, duties and compensation and shall have the authority to remove such officers.

 

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Section 3. Term of Office and Removal.

3.1 Term. Each officer of the Corporation shall hold office at the pleasure of the Board of Directors, and unless sooner removed by the Board of Directors, until the meeting of the Board of Directors following the date of election of Directors and until his successor is elected and qualified.

3.2 Removal. The Board of Directors may remove any officer at any time with or without cause by the affirmative vote of a majority of Directors in office.

Section 4. Compensation of Officers.

Unless compensation is otherwise determined by a majority of the Directors at a regular or special meeting of the Board of Directors or unless such determination is delegated by the Board of Directors to another officer or officers, the President of the Corporation from time to time shall determine the compensation to be paid to all officers and other employees for services rendered to the Corporation.

ARTICLE V

Indemnification

Section 1. Right of Indemnification.

To the full extent permitted by the New Jersey Business Corporation Act, the Corporation shall indemnify each person who is made or threatened to be made a party to any proceeding, whether brought by or in the right of the Corporation, by reason of the fact that such person is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee or agent of any other corporation, partnership, joint venture, trust or other enterprise, and such persons, their executors and administrators, shall be indemnified by the Corporation against all costs and expenses actually and reasonably incurred by such person concerning, or in connection with, the defense of any claim asserted or suit or proceeding brought against such person by reason of that person’s conduct, actions or inaction in such capacity at the time of incurring such costs or expenses, except costs and expenses incurred in relation to matters as to which such person shall have been willfully derelict in the performance of such person’s duty. Such costs and expenses shall include the cost of reasonable settlements (with or without suit), judgments, attorneys’ fees, costs of suit, fines and penalties and other liabilities (other than amounts paid by any such person to this Corporation or any subsidiary thereof). To the extent any of the indemnification provisions set forth in this Article prove to be ineffective for any reason in furnishing the indemnification provided, each of the persons named above shall be indemnified by the Corporation to the full extent authorized by the New Jersey Business Corporation Act.

 

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Section 2. Definition of Performance.

For the purposes of this Article, a Director, officer or member of a committee shall conclusively be deemed not to have been willfully derelict in the performance of such person’s duty as such Director, officer or member of committee:

2.1 Determination by Suit. In a matter which shall have been the subject of a suit or proceeding in which such person was a party which is disposed of by adjudication on the merits, unless such person shall have been finally adjudged in such suit or proceeding to have been willfully derelict in the performance of that person’s duty as such Director, officer or member of a committee; or

2.2 Determination by Committee. In a matter not falling within Section 2.1 above, a majority of disinterested members of the Board of Directors or a majority of a committee of disinterested Shareholders of the Corporation, selected as hereinafter provided, shall determine that such person was not willfully derelict. Such determination shall be made by the disinterested members of the Board of Directors except where such members shall determine that such matter should be referred to said committee of disinterested Shareholders.

Section 3. Selection of Committee.

The selection of a committee of Shareholders provided above may be made by the majority vote of the disinterested Directors or, if there be no disinterested Director or Directors, by the chief executive officer of the Corporation. A Director or Shareholder shall be deemed disinterested in a matter if such person has no interest therein other than as a Director or Shareholder of the Corporation, as the case may be. The Corporation shall pay the fees and expenses of the Shareholders or Directors, as the case may be, incurred in connection with making a determination as above provided.

Section 4. Non-Committee Determination.

If a Director, officer or member of a committee shall be found by some other method not to have been willfully derelict in the performance of such person’s duty as such Director, officer or member of a committee, then such determination as to dereliction shall not be questioned on the ground that it was made otherwise than as provided above.

Section 5. Indemnification by Law.

The foregoing right of indemnification shall be in addition to any rights to which any such person may otherwise be entitled as a matter of law.

 

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Section 6. Miscellaneous.

The right of indemnification conferred hereby shall be extended to any threatened action, suit or proceeding, and the failure to institute it shall be deemed its final determination. Advances may be made by the Corporation against costs, expenses and fees, as and upon the terms, determined by the Board of Directors.

ARTICLE VI

Amendments

These By-Laws may be amended by the affirmative vote or the written consent of the Shareholders entitled to exercise a majority of the voting power on such proposal. If an amendment is adopted by written consent, the Secretary shall mail a copy of such amendment to each Shareholder who would be entitled to vote thereon and did not participate in the adoption thereof. These By-Laws may also be amended by the affirmative vote of a majority of the Directors to the extent permitted by New Jersey law at the time of such amendment.

295876.2

 

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Exhibit 5.1

 

NORTH POINT • 901 LAKESIDE AVENUE • CLEVELAND, OHIO 44114.1190

TELEPHONE: +1.216.586.3939 • FACSIMILE: +1.216.579.0212

October 27, 2016

A. Schulman, Inc.

3637 Ridgewood Road

Fairlawn, Ohio 44333

 

Re:		Registration Statement on Form S-4 Filed by A. Schulman, Inc.
		Relating to the Exchange Offer (as defined below)

Ladies and Gentlemen:

We have acted as counsel to A. Schulman, Inc., a Delaware corporation (the “Company”), and the A. Schulman Guarantors (as defined below) in connection with the Registration Statement on Form S-4 to which this opinion has been filed as an exhibit (the “Registration Statement”). The Registration Statement relates to the proposed issuance and exchange (the “Exchange Offer”) of up to $375,000,000 aggregate principal amount of 6.875% Senior Notes due 2023 of the Company (the “Exchange Notes”) for an equal principal amount of 6.875% Senior Notes due 2023 of the Company outstanding on the date hereof (the “Outstanding Notes”). The Outstanding Notes have been, and the Exchange Notes will be, issued pursuant to an indenture, dated as of May 26, 2015, as amended, supplemented or otherwise modified from time to time (the “Indenture”), by and among the Company, the guarantors listed on Annex A hereto (each, a “Covered Guarantor” and, collectively, the “Covered Guarantors”), the guarantors listed on Annex B hereto (each, an “Other Guarantor” and, collectively, the “Other Guarantors”; such Other Guarantors and the Covered Guarantors are collectively referred to as the “A. Schulman Guarantors”) and U.S. Bank National Association, as trustee (the “Trustee”). The Outstanding Notes are, and the Exchange Notes will be, guaranteed (each, a “Guarantee”) on a joint and several basis by the A. Schulman Guarantors.

In connection with the opinions expressed herein, we have examined such documents, records and matters of law as we have deemed relevant or necessary for purposes of such opinions.

Based on the foregoing, and subject to the further limitations, qualifications and assumptions set forth herein, we are of the opinion that:

1. The Exchange Notes, when they are executed by the Company, authenticated by the Trustee in accordance with the Indenture and issued and delivered in exchange for the Outstanding Notes in accordance with the terms of the Exchange Offer, will constitute valid and binding obligations of the Company.

 

ALKHOBAR • AMSTERDAM • ATLANTA • BEIJING • BOSTON • BRISBANE • BRUSSELS • CHICAGO • CLEVELAND • COLUMBUS • DALLAS DETROIT • DUBAI • DÜSSELDORF • FRANKFURT • HONG KONG • HOUSTON • IRVINE • JEDDAH • LONDON • LOS ANGELES • MADRID MEXICO CITY • MIAMI • MILAN • MINNEAPOLIS • MOSCOW • MUNICH • NEW YORK • PARIS • PERTH • PITTSBURGH • RIYADH SAN DIEGO • SAN FRANCISCO • SÃO PAULO • SHANGHAI • SILICON VALLEY • SINGAPORE • SYDNEY • TAIPEI • TOKYO • WASHINGTON

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A. Schulman, Inc.

October 27, 2016

Page 2

 

2. The Guarantee of the Exchange Notes (each, an “Exchange Guarantee”) of each Covered Guarantor, when it is issued and delivered in exchange for the Guarantee of the Outstanding Notes (each, an “Outstanding Guarantee”) of that Covered Guarantor in accordance with the terms of the Exchange Offer, will constitute a valid and binding obligation of that Covered Guarantor.

3. The Exchange Guarantee of each Other Guarantor, when it is issued and delivered in exchange for the Outstanding Guarantee of that Other Guarantor in accordance with the terms of the Exchange Offer, will constitute a valid and binding obligation of that Other Guarantor.

The opinions set forth above are subject to the following limitations, qualifications and assumptions:

For purposes of the opinions expressed herein, we have assumed that (i) the Trustee has authorized, executed and delivered the Indenture and that the Indenture is a valid, binding and enforceable obligation of the Trustee and (ii) the Outstanding Notes have been duly authenticated by the Trustee in accordance with the Indenture.

For the purposes of our opinion set forth in paragraph 3 above, we have further assumed that (a) each of the Other Guarantors is a corporation existing and in good standing under the laws of its jurisdiction of incorporation as listed opposite such Other Guarantor’s name on Annex B hereto (each, a “Jurisdiction”); (b) the Indenture and the Exchange Guarantees (i) have been authorized by all necessary corporate action of each of the Other Guarantors and (ii) have been executed and delivered by each of the Other Guarantors under the laws of the applicable Jurisdiction; and (c) the execution, delivery, performance and compliance with the terms and provisions of the Indenture and the Exchange Guarantees by each of the Other Guarantors do not violate or conflict with the laws of the applicable Jurisdiction, the provisions of its articles of incorporation, bylaws or other similar formation or organizational documents, as applicable, or any rule, regulation, order, decree, judgment, instrument or agreement binding upon or applicable to such Other Guarantor or its properties.

The opinions expressed herein are limited by (i) bankruptcy, insolvency, reorganization, fraudulent transfer and fraudulent conveyance, voidable preference, moratorium or other similar laws, and related regulations and judicial doctrines from time to time in effect relating to or affecting creditors’ rights and remedies generally, and (ii) general equitable principles and public policy considerations, whether such principles and considerations are considered in a proceeding at law or in equity.

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A. Schulman, Inc.

October 27, 2016

Page 3

 

As to facts material to the opinions and assumptions expressed herein, we have relied upon oral or written statements and representations of officers and other representatives of the Company and the A. Schulman Guarantors. The opinions expressed herein are limited to (i) the laws of the State of New York, (ii) the laws of the State of Ohio, (iii) the laws of the State of Texas, (iv) the laws of the State of Illinois and (v) the General Corporation Law of the State of Delaware and the Delaware Limited Liability Company Act, in each case as currently in effect, and we express no opinion as to the effect of the laws of any other jurisdiction.

We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the reference to Jones Day under the caption “Legal Matters” in the prospectus constituting a part of such Registration Statement. In giving such consent, we do not hereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act of 1933 or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.

Very truly yours,

/s/ Jones Day

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ANNEX A

 

Name of Covered Guarantor		State of Incorporation or Organization
Bayshore Industrial, L.L.C.		Texas
Bulk Molding Compounds, Inc.		Illinois
Citadel Intermediate Holdings, LLC		Delaware
Citadel Plastics Holdings, Inc.		Delaware
HGGC Citadel Plastics Holdings, Inc.		Delaware
HGGC Citadel Plastics Intermediate Holdings, Inc.		Delaware
HPC Holdings, LLC		Delaware
ICO Global Services, Inc.		Delaware
ICO P&O, Inc.		Delaware
ICO Polymers, Inc.		Delaware
ICO-Schulman, LLC		Texas
ICO Technology, Inc.		Delaware
LPI Holding Company		Delaware
Lucent Polymers Inc.		Delaware
Premix Holding Company		Delaware
Premix, Inc.		Ohio

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ANNEX B

 

Name of Other Guarantor		State of Incorporation
ICO Polymers North America, Inc.		New Jersey
The Matrixx Group, Incorporated		Indiana
Wedco Technology, Inc.		New Jersey

Exhibit 5.2

October 27, 2016

A. Schulman, Inc.

3637 Ridgewood Road

Fairlawn, Ohio 44333

Re – Registration Statement on Form S-4

Ladies and Gentlemen:

We have acted as special Indiana counsel to The Matrixx Group, Incorporated, an Indiana corporation (“TMG”), in connection with the Registration Statement of A. Schulman, Inc. (“Registrant”) on Form S-4 filed with the Securities and Exchange Commission (the “Commission”) on October 27, 2016 (the “Registration Statement”), relating to the registration under the Securities Act of 1933, as amended (the “Securities Act”), of 6.875% Senior Notes due 2023 in the aggregate principal amount of $375,000,000 (the “Notes”), which Notes are issued in accordance with the Indenture dated as of May 26, 2015 (the “Base Indenture” and, as supplemented by the First Supplemental Indenture (as defined below) and the Second Supplemental Indenture, dated as of August 31, 2016, the “Indenture”), entered into by and among the Registrant, the guarantors party thereto and U.S. Bank National Association, as trustee (the “Trustee”) and are guaranteed by TMG and other affiliates of the Registrant pursuant to the Note Guarantees (as defined in the Indenture) pursuant the First Supplemental Indenture, dated as of June 1, 2015 (the “First Supplemental Indenture”), entered into by and among the Registrant, TMG, the other guarantors party thereto and the Trustee (which Note Guarantee with respect to TMG is referred to herein as the “Indiana Guarantee”).

In connection with the preparation and rendering of the opinion set forth herein, we have reviewed, examined and relied upon the accuracy of, among other things, copies, certified or otherwise identified to our satisfaction, of the following documents:

 

a)

The Base Indenture;

 

b)

The First Supplement Indenture;

 

c)

The Registration Statement;

 

d)

A Certificate of Existence with respect to TMG issued by the Indiana Secretary of State on October 24, 2016 (“Certificate of Existence”);

 

e)

The Omnibus Officer’s Certificate dated October 27, 2016 (“Omnibus Officer’s

 

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Page 2

 

Certificate”); and

 

f)

Such other documents, certificates, and records as we have deemed necessary or appropriate as a basis for the opinion set forth herein.

As to certain matters of fact, we have relied upon certificates and other assurances of officers and other authorized representatives of TMG (including the Omnibus Officer’s Certificate), without independent verification of such factual matters.

Based on and subject to the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that:

 

1.

TMG is validly existing as a corporation under the laws of the State of Indiana.

 

2.

TMG has all requisite corporate power and authority to execute, deliver and perform its obligations under the Indiana Guarantee.

 

3.

TMG has taken all necessary corporate action to approve the Indiana Guarantee and to authorize the execution and delivery thereof in connection with joinder to the Base Indenture pursuant to the First Supplemental Indenture.

Our opinions set forth above are subject to the qualifications that: (i) the enforceability of the Indiana Guarantee may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance and similar laws relating to or affecting the enforcement of creditors’ rights; (ii) the enforceability of equitable rights and remedies provided for in the Indiana Guarantee is subject to judicial discretion, and the enforceability of such agreement may be limited by general principles of equity; (iii) the enforceability of the Indiana Guarantee may be limited by public policy; and (iv) certain remedial, waiver and other provisions of the Indiana Guarantee may be unenforceable.

We have assumed the following: (i) the Notes are enforceable and the indebtedness evidenced thereby is valid and binding under applicable law, (ii) the Registrant has received the consideration contemplated in connection with issuance of the Notes, (iii) TMG has received sufficient consideration for the giving of the Indiana Guarantee, (iv) the representations of or with respect to TMG in the Indenture are true and accurate in all material respects, (v) the TMG Resolutions contained in the Omnibus Officer’s Certificate have not been rescinded or withdrawn and continue to be in full force without amendment or revision of any kind, and (vi) the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as copies.

Our opinion in paragraph 1 is based solely on the Certificate of Existence.

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Page 3

 

The foregoing opinions are limited to the internal laws of the State of Indiana, and we are expressing no opinion as to the effect of the laws of any other jurisdiction. 

In rendering the foregoing opinions, we are not passing upon, and assume no responsibility for, any disclosure in the Registration Statement or Prospectus or other offering material regarding the Registrant, TMG or any of their affiliates, the Notes or their offering and sale, or the Note Guarantees.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. We also consent to the reference to our firm under the heading “Legal Matters” in the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act, or the rules or regulations of the Commission promulgated thereunder.

Sincerely,

/s/Krieg DeVault LLP

Krieg DeVault LLP

Exhibit 5.3

 

October 27, 2016

A. Schulman, Inc.

3637 Ridgewood Road

Fairlawn, Ohio 44333

Ladies and Gentlemen:

We have acted as special New Jersey counsel to ICO Polymers North America, Inc., a New Jersey corporation, and Wedco Technology, Inc., a New Jersey corporation (each, a “New Jersey Guarantor” and together, the “New Jersey Guarantors”), in connection with the Registration Statement on Form S-4 (the “Registration Statement”) being filed by A. Schulman, Inc., a Delaware corporation (the “Company”), the New Jersey Guarantors and the other registrant guarantors named therein with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”)relating to the issuance by the Company of up to $375,000,000 aggregate principal amount of 6.875% Senior Notes due 2023 (the “Exchange Notes”) and the issuance by the New Jersey Guarantors and the other guarantors of guarantees (the “Guarantees”) with respect to the Exchange Notes. The Company will offer the Exchange Notes and the Guarantees in exchange for up to $375,000,000 aggregate principal amount of its outstanding 6.875% Senior Notes due 2023 (the “Outstanding Notes”) and the related guarantees.

The Outstanding Notes have been, and the Exchange Notes will be, issued pursuant to an Indenture dated May 26, 2015, among the Company, the guarantors named therein (including the New Jersey Guarantors) and U.S. ank National Association, as trustee (the “Trustee”), as supplemented by a First Supplemental Indenture, dated as of June 1, 2015, and a Second Supplemental Indenture, dated as of August 31, 2016 (as so supplemented, the “Indenture”). The terms of the Guarantees are contained in the Indenture. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Indenture. The Exchange Notes and the Guarantees will be registered under the Securities Act pursuant to the Registration Statement.

This opinion is furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.

In arriving at the opinion expressed below:

(a) We have examined and relied on the copy of the Indenture submitted to us by your counsel.

(b) We have (i) examined a copy of an Omnibus Officer’s Certificate dated October 27, 2016 and the attachments thereto (the “Officer’s Certificate”), including a copy of each New Jersey Guarantor’s Articles of Incorporation and by-laws (collectively, the “Organizational Documents”) and any amendments thereto and resolutions duly adopted by the respective governing bodies, and committees thereof, as applicable, of the

 

GREENBERG TRAURIG, LLP ● ATTORNEYS AT LAW ● WWW.GTLAW.COM

500 Campus Drive, Suite 400, Florham Park, New Jersey 07932 ● Tel: 973.360.7900 ● Fax 973.301.8410

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October 27, 2016

Page 2

 

Company and of each New Jersey Guarantor (the “Resolutions”); and (ii) relied upon the truth of the certifications set forth in each such Officer’s Certificate. We have assumed that the Resolutions have not been in any way amended, modified, revoked or rescinded since their adoption and remain in full force and effect as of the date hereof.

(c) We have assumed in the case of each corporation, limited liability company, partnership or other organization that is identified as the sole shareholder of each New Jersey Guarantor, that (i) such shareholder is validly existing, in good standing in the state or other jurisdiction where it is organized, and is qualified or otherwise authorized to conduct business in any state or jurisdiction where such qualification or authorization is required, (ii) that each such shareholder has the corporate or other organizational power and authority to take such actions as may be required to authorize the corporation of which it is the sole shareholder to execute the applicable Guarantee and deliver the applicable Guarantee and to authorize any actions necessary to cause such shareholder, and the corporation of which it is a shareholder, to timely and fully perform each of such corporation’s duties and commitments under the applicable Guarantee, (iii) that all such actions have actually been taken and fully effectuated by such shareholder, and (iv) without limiting the foregoing, that the affirmative vote or other consent to the execution and delivery of the applicable Guarantee by each of the New Jersey Guarantors has been obtained from each shareholder whose affirmative vote or consent is required for such action.

(d) We have assumed that the Indenture has been executed and delivered by the parties thereto in the same form as the copy on which we are relying.

(e) We have assumed the genuineness of all signatures, the authenticity of the documents, certificates (and each exhibit attached thereto) and all other writings submitted to us as originals, the conformity to original writings of all copies submitted to us as certified or photostatic copies, the delivery of fully executed originals of the Indenture by each party thereto to the other party(ies), the legal capacity of all natural persons executing the documents, certificates and other writings (or copies thereof) submitted to us, and the accuracy of the Officer’s Certificate, without any further investigation.

(f) As to questions of fact material to our opinions, we have relied upon and assumed the correctness of certificates by public officials and resolutions, certificates and statements by representatives of the New Jersey Guarantors and the factual representations and warranties set forth in the Indenture, all without investigation.

(g) We have assumed that the Exchange Notes and the Indenture are the Company’s valid and legally binding obligations and that the Indenture is the valid and legally binding obligation of the Company, the guarantors named therein (excluding the New Jersey Guarantors) and the Trustee.

 

Greenberg Traurig, LLP ● Attorneys at Law ● WWW.GTLAW.COM

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October 27, 2016

Page 3

 

References in this opinion letter to the “State” means the State of New Jersey. We express no opinion with respect to any law other than the law of the State.

Based on the foregoing, and subject to the qualifications, assumptions and exceptions herein contained, and the laws of the State currently in effect, we are of the opinion that:

1. Each New Jersey Guarantor is a corporation validly existing and in good standing under the laws of the State.

2. Each New Jersey Guarantor has the corporate power and authority to execute and deliver the Indenture and to perform its obligations thereunder.

3. Each New Jersey Guarantor has duly authorized, executed and delivered the Indenture.

4. Each New Jersey Guarantor’s Guarantee has been duly authorized by such New Jersey Guarantor, duly executed and issued by such New Jersey Guarantor’s execution of the Indenture and is the valid and binding obligation of such New Jersey Guarantor.

5. The execution and delivery by each New Jersey Guarantor of the Indenture does not (a) conflict with or violate any provision of such New Jersey Guarantor’s Organizational Documents or (b) conflict with or violate any State law, rule, or regulation applicable to such New Jersey Guarantor.

The opinions set forth in this letter are further subject to the following assumptions, qualifications and limitations:

(i) Our opinions in paragraph 1 above are based solely on a good standing certificate of the applicable New Jersey Guarantor issued by the State.

(ii) This opinion letter is not to be construed as a guaranty.

(iii) This opinion letter is limited to the matters expressly set forth herein, and no opinion is to be implied or may be inferred beyond the matters expressly so stated. We have assumed compliance with and give no opinion as to all federal securities laws.

(iv) We have been retained to act as special New Jersey counsel to the New Jersey Guarantors in connection with the Guarantees. We are not general counsel to the Company or the New Jersey Guarantors and are not generally informed as to their business affairs.

(v) This opinion letter covers only law that a lawyer in the State exercising customary professional diligence would reasonably be expected to recognize as being applicable to the New Jersey Guarantors, the Indenture, and the Guarantees.

 

Greenberg Traurig, LLP ● Attorneys at Law ● WWW.GTLAW.COM

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October 27, 2016

Page 4

 

We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus included in the Registration Statement.

Very Truly Yours

/s/ Greenberg Traurig, LLP                

GREENBERG TRAURIG, LLP

 

Greenberg Traurig, LLP ● Attorneys at Law ● WWW.GTLAW.COM

Exhibit 12.1

A. SCHULMAN, INC.

Calculation of Ratio of Earnings to Fixed Charges

(Amounts in Thousands, Except Ratios)

 

		Twelve months ended August 31,
		2016				2015				2014				2013				2012
Pretax income from continuing operations before adjustment for income or loss from equity investees		$	(365,945	)		$	28,446			$	72,422			$	53,732			$	66,827
Fixed charges (from below)			62,015				47,396				14,036				11,890				11,818
Undistributed income (loss) from equity investees			(560	)			(16	)			(90	)			—				—
Earnings (loss)		$	(304,490	)		$	75,826			$	86,368			$	65,622			$	78,645
Interest expense (a)			54,548				41,363				8,503				7,657				8,351
Interest portion of rental expense (b)			7,467				6,033				5,533				4,233				3,467
Total fixed charges		$	62,015			$	47,396			$	14,036			$	11,890			$	11,818
Ratio of earnings to fixed charges			(c	)			1.60				6.15				5.52				6.65

 

(a)

Includes amortization of deferred financing costs in all periods and bridge financing fees in 2015. The Company’s policy is to classify interest expense recognized on uncertain tax positions as income tax expense. The Company has excluded interest expense recognized on uncertain tax positions from the Ratio of Earnings to Fixed Charges. Capitalized interest is not considered material.

(b)	Interest portion of rental expense is estimated to equal 1/3 of such expense, which is considered a reasonable approximation of the interest factor.

(c)	Earnings were not sufficient to cover fixed charges for the period, which included goodwill and long-lived asset impairment charges of $401,667. The earnings shortfall was $366,505.

Exhibit 23.1

Consent

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-4 of our report dated October 26, 2016 relating to the financial statements, financial statement schedule and the effectiveness of internal control over financial reporting, which appears in A. Schulman, Inc.’s Annual Report on Form 10-K for the year ended August 31, 2016. We also consent to the reference to us under the heading “Experts” in such Registration Statement.

/s/ PricewaterhouseCoopers LLP

Cleveland, Ohio

October 27, 2016

Exhibit 24.1

A. Schulman, Inc.

Limited Power of Attorney

Registration Statement on Form S-4

KNOW ALL MEN BY THESE PRESENTS, that the individuals whose signatures appear below constitute and appoint Joseph M. Gingo, Joseph J. Levanduski and Andrean R. Horton, and each of them, with full power to act without the other, his true and lawful attorneys-in-fact and agents with full and several power of substitution and resubstitution, for him and his name, place and stead, in any and all capacities, to sign this Registration Statement on Form S-4 and any and all amendments (including post-effective amendments and other amendment and supplements thereto) to this Registration Statement on Form S-4, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, 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 might or could do in person, and hereby ratifies and confirms all that each of said attorneys-in-fact and agents or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof.

IN WITNESS WHEREOF, we have hereunto set our hands effective as of the 27th day of October, 2016.

 

/s/ Joseph M. Gingo		Chairman, President, and Chief Executive Officer
Joseph M. Gingo		(Director and Principal Executive Officer)
/s/ Joseph J. Levanduski		Executive Vice President, Chief Financial Officer
Joseph J. Levanduski		(Principal Financial Officer)
/s/ Kristopher R. Westbrooks		Vice President, Chief Accounting Officer, and Corporate Controller
Kristopher R. Westbrooks		(Principal Accounting Officer)
/s/ Eugene R. Allspach		Director
Eugene R. Allspach
/s/ David G. Birney		Director
David G. Birney
/s/ Gregory T. Barmore		Director
Gregory T. Barmore
/s/ Lee D. Meyer		Director
Lee D. Meyer
/s/ James A. Mitarotonda		Director
James A. Mitarotonda
/s/ Ernest J. Novak, Jr.		Director
Ernest J. Novak, Jr.
/s/ Dr. Irvin D. Reid		Director
Dr. Irvin D. Reid

Exhibit 25.1

 

 

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM T-1

 

 

STATEMENT OF ELIGIBILITY UNDER

THE TRUST INDENTURE ACT OF 1939 OF A

CORPORATION DESIGNATED TO ACT AS TRUSTEE

Check if an Application to Determine Eligibility of

a Trustee Pursuant to Section 305(b)(2)

 

 

U.S. BANK NATIONAL ASSOCIATION

(Exact name of Trustee as specified in its charter)

31-0841368

I.R.S. Employer Identification No.

 

800 Nicollet Mall Minneapolis, Minnesota		55402
(Address of principal executive offices)		(Zip Code)

Holly Pattison

U.S. Bank National Association

1350 Euclid Avenue

Cleveland OH 44114

(216) 623-5976

(Name, address and telephone number of agent for service)

A. Schulman, Inc.

(Issuer with respect to the Securities)

 

Delaware		34-0514850
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

 

3637 Ridgewood Road, Fairlawn, Ohio		44333
(Address of Principal Executive Offices)		(Zip Code)

6.875% Senior Notes Due 2023

(Title of the Indenture Securities)

 

 

 

---

FORM T-1

 

Item 1.

GENERAL INFORMATION. Furnish the following information as to the Trustee.

a) Name and address of each examining or supervising authority to which it is subject.

Office of the Comptroller of the Currency

400 7^th Street, SW

Washington, D.C. 20219

b) Whether it is authorized to exercise corporate trust powers.

Yes

 

Item 2.

AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation.

None

 

Items 3-15

Items 3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee.

 

Item 16.

LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification.

 

1.

A copy of the Articles of Association of the Trustee.*

 

2.

A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2.

 

3.

A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3.

 

4.

A copy of the existing bylaws of the Trustee.**

 

5.

A copy of each Indenture referred to in Item 4. Not applicable.

 

6.

The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6.

 

7.

Report of Condition of the Trustee as of June 30, 2016 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7.

* Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005.

 

2

---

** Incorporated by reference to Exhibit 25.1 to registration statement on form S-3ASR, Registration Number 333-199863 filed on November 5, 2014.

[Signature page follows]

 

3

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SIGNATURE

Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Cleveland, State of Ohio on the 27 of October, 2016.

 

---

Exhibit 2

 

 

2

---

Exhibit 3

 

 

3

---

Exhibit 6

CONSENT

In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.

Dated: October 27, 2016

 

 

4

---

Exhibit 7

U.S. Bank National Association

Statement of Financial Condition

As of 6/30/2016

($000’s)

 

		6/30/2016
Assets
Cash and Balances Due From		$	14,010,590
Depository Institutions
Securities			108,246,267
Federal Funds			68,244
Loans & Lease Financing Receivables			268,104,901
Fixed Assets			5,866,910
Intangible Assets			12,591,165
Other Assets			24,574,630
Total Assets		$	433,462,707
Liabilities
Deposits		$	327,848,275
Fed Funds			1,179,456
Treasury Demand Notes			0
Trading Liabilities			2,172,890
Other Borrowed Money			40,280,996
Acceptances			0
Subordinated Notes and Debentures			3,800,000
Other Liabilities			13,036,463
Total Liabilities		$	388,318,080
Equity
Common and Preferred Stock			18,200
Surplus			14,266,915
Undivided Profits			30,049,363
Minority Interest in Subsidiaries			810,149
Total Equity Capital		$	45,144,627
Total Liabilities and Equity Capital		$	433,462,707

 

5

Exhibit 99.1

 

A. SCHULMAN, INC.

LETTER OF TRANSMITTAL

Offer to Exchange Up to $375,000,000

Aggregate Principal Amount of Newly

Issued 6.875% Senior Notes due 2023

(CUSIP No. 808194 AB0)

For

a Like Principal Amount of Outstanding

Restricted 6.875% Senior Notes due 2023

Issued on May 26, 2015

(CUSIP Nos. 808194 AA2, U8067L AA1)

THE EXCHANGE OFFER WILL EXPIRE AT 9:00 A.M. NEW YORK CITY TIME ON                     , 2016, UNLESS EXTENDED (SUCH DATE, AS THE SAME MAY BE EXTENDED, THE “EXPIRATION DATE”). ORIGINAL NOTES TENDERED IN THE EXCHANGE OFFER MAY BE WITHDRAWN AT ANY TIME PRIOR TO THE EXPIRATION DATE.

The Prospectus, dated                     , 2016 (the “Prospectus”), and this corresponding Letter of Transmittal, relate to the offer of A. Schulman, Inc. (the “Company”) to exchange (the “Exchange Offer”) up to $375,000,000 aggregate principal amount of its 6.875% Senior Notes due 2023 (the “New Notes”), which will be issued in a transaction registered under the Securities Act of 1933 (the “Securities Act”), for a like principal amount of the Company’s outstanding restricted 6.875% Senior Notes due 2023 (the “Original Notes”).

The Original Notes were issued pursuant to an indenture (as amended and supplemented through the date hereof the “Indenture”), dated May 26, 2015, by and among the Company, certain of the Company’s subsidiaries constituting guarantors and U.S. Bank National Association, as trustee (the “Trustee”).

Capitalized terms used but not defined in this Letter of Transmittal have the meanings assigned to them in the Prospectus. All terms and conditions contained in, or otherwise referred to in, the Prospectus are deemed to be incorporated in, and form a part of, this Letter of Transmittal. Therefore you are urged to read carefully the Prospectus and the items referred to therein. The terms and conditions contained in the Prospectus, together with the terms and conditions governing this Letter of Transmittal and the instructions herein, are collectively referred to herein as the “terms and conditions.”

The Exchange Agent for the Exchange Offer is:

U.S. BANK NATIONAL ASSOCIATION

Questions relating to the procedure for tendering, as well as requests for additional copies of the Prospectus or this Letter of Transmittal, should be directed to the Exchange Agent addressed as follows:

 

By Registered or Certified Mail, Overnight Courier or Hand Delivery		By Facsimile Transmission		For Information
U.S. Bank National Association 111 Filmore Avenue St. Paul, Minnesota 55107-1402 Attn: Corporate Actions		651-466-7367		800-934-6802

---

This Letter of Transmittal is to be used by Holders of the Original Notes. Tender of Original Notes is to be made using the Automated Tender Offer Program (“ATOP”) of The Depository Trust Company (“DTC”) pursuant to the procedures set forth in the Prospectus under the caption “The Exchange Offer—Procedures for tendering Original Notes.” DTC participants that are accepting the Exchange Offer must transmit their acceptance to DTC, which will verify the acceptance and execute a book-entry delivery to the Exchange Agent’s DTC account. DTC will then send a computer-generated message known as an “agent’s message” to the Exchange Agent for its acceptance. For you to validly tender your Original Notes in the Exchange Offer, the Exchange Agent must receive, prior to the Expiration Date, an agent’s message under the ATOP procedures that confirms that:

 

•

DTC has received your instructions to tender your Original Notes; and

 

•

you agree to be bound by the terms and conditions of this Letter of Transmittal.

By using the ATOP procedures to tender Original Notes, you will not be required to deliver this Letter of Transmittal to the Exchange Agent. However, you will be bound by its terms and conditions, and you will be deemed to have made the acknowledgments and the representations and warranties it contains, just as if you had signed it. The tender of Original Notes by you pursuant to the procedures set forth in this Letter of Transmittal and the Prospectus will constitute an agreement between you and us in accordance with the terms and subject to the conditions set forth in this Letter of Transmittal and the Prospectus. If you have questions or need help, or if you would like additional copies of the Prospectus and this Letter of Transmittal, you should contact the Exchange Agent at its telephone number or address set forth above.

The Exchange Notes will be issued in full exchange for Original Notes in the Exchange Offer, if consummated, on the exchange date and will be delivered in book-entry form.

As used in this Letter of Transmittal, the term “Holder” means any person in whose name Original Notes are held of record by DTC and who desires to deliver such notes by book-entry transfer at DTC.

---

Please read the accompanying instructions carefully.

Ladies and Gentlemen:

According to the terms and conditions of the Exchange Offer, I hereby tender to the Company the principal amount of Original Notes credited by me to the Exchange Agent’s account at DTC using ATOP. At the time these Original Notes are accepted by the Company and exchanged for the same principal amount of Exchange Notes, I will sell, assign and transfer to the Company all right, title and interest in and to the Original Notes I have tendered. I am aware that the Exchange Agent also acts as the agent of the Company. Upon agreement to the terms and conditions of this document pursuant to an agent’s message, I irrevocably constitute and appoint the Exchange Agent as my agent and attorney-in-fact for the tendered Original Notes with full power of substitution to:

 

•

cause the Original Notes to be assigned, transferred and exchanged;

 

•

transfer ownership of the Original Notes on the account books maintained by DTC, to the Company and deliver all accompanying evidences of transfer and authenticity to the Company; and

 

•

present the Original Notes for transfer on the books of the Company, receive all benefits and exercise all rights of beneficial ownership of these Original Notes according to the terms and conditions of the Exchange Offer. The power of attorney granted in this paragraph is irrevocable and coupled with an interest.

With respect to the Original Notes, I represent and warrant that I have full power and authority to tender, exchange, assign and transfer the Original Notes that I am tendering and to acquire Exchange Notes issuable upon the exchange of the tendered Original Notes. I represent and warrant that the Company will acquire good and unencumbered title to such Original Notes, free and clear of all liens, restrictions, other than restrictions on transfer, charges and encumbrances, and that such Original Notes are not and will not be subject to any adverse claim at the time the Company acquires them. I further represent that:

 

•

I am not an “affiliate” (as defined in Rule 405 under the Securities Act) of the Company or its subsidiaries, or, if I am an affiliate of the Company or its subsidiaries, I will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable;

 

•

any Exchange Notes I will acquire in exchange for the Original Notes I have tendered will be acquired in the ordinary course of business;

 

•

I have not entered into, engaged in, do not intend to engage in, and have no arrangement or understanding with any person to engage in, a distribution of any Exchange Notes issued to me;

 

•

I am not a broker-dealer who purchased the Original Notes for resale pursuant to an exemption under the Securities Act tendering Original Notes acquired directly from the Company for my own account; and

 

•

I am not restricted by any law or policy of the U.S. Securities and Exchange Commission (the “SEC”) from trading the Exchange Notes acquired in the Exchange Offer.

I understand that the Exchange Offer is being made in reliance on interpretations contained in letters issued to third parties by the staff of the SEC. These letters provide that the Exchange Notes issued in exchange for the Original Notes in the Exchange Offer may be offered for resale, resold, and otherwise transferred by a Holder of Exchange Notes, unless that person is an “affiliate” of the Company within the meaning of Rule 405 under the Securities Act, without compliance with the registration and prospectus delivery provisions of the Securities Act. The Exchange Notes must be acquired in the ordinary course of the Holder’s business and the Holder must not be engaging in, must not intend to engage in, and must not have any arrangement or understanding with any person to participate in, a distribution of the Exchange Notes.

If I am a broker-dealer that will receive Exchange Notes for my own account in exchange for Original Notes that were acquired as a result of market-making activities or other trading activities, I acknowledge that I will deliver the Prospectus in connection with any resale of the Exchange Notes. However, by this acknowledgment and by delivering the Prospectus, I will not be deemed to admit that I am an “underwriter” within the meaning of the Securities Act.

---

Upon request, I will execute and deliver any additional documents deemed by the Exchange Agent or the Company to be necessary or desirable to complete the exchange, assignment and transfer of the Original Notes I have tendered.

I understand that the Company will be deemed to have accepted validly tendered Original Notes when and if the Company gives written notice of acceptance to the Exchange Agent and such acceptance will constitute performance in full by the Company of its obligations under the applicable registration rights agreement, except in the limited circumstances defined in such agreement.

If, for any reason, any tendered Original Notes are not accepted for exchange in the Exchange Offer, the unaccepted Original Notes will be returned without expense to the tendering Holder. Such non-exchanged Original Notes will be credited to an account maintained with DTC. These actions will occur as promptly as practicable after the expiration or termination of the Exchange Offer.

All authority granted or agreed to be granted by this Letter of Transmittal will survive my death, bankruptcy or incapacity, and every obligation under this Letter of Transmittal is binding upon my heirs, legal representatives, successors, assigns, executors, administrators and trustees in bankruptcy.

I understand that tenders of Original Notes according to the procedures described in the Prospectus under the heading “The Exchange Offer—Procedures for tendering Original Notes” and in the instructions included in this Letter of Transmittal constitute a binding agreement between myself and the Company subject to the terms and conditions of the Exchange Offer.

 

By crediting the Original Notes to the Exchange Agent’s account at DTC using ATOP and by complying with applicable ATOP procedures with respect to the Exchange Offer, the participant in DTC confirms on behalf of itself and the beneficial owners of such Original Notes all provisions of this Letter of Transmittal (including all representations and warranties) applicable to it and such beneficial owner.

---

INSTRUCTIONS FORMING PART OF

THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER

1. BOOK-ENTRY CONFIRMATIONS. Any confirmation of a book-entry transfer to the Exchange Agent’s account at DTC of Original Notes tendered by book-entry transfer, as well as an agent’s message, and any other documents required by this Letter of Transmittal, must be received by the Exchange Agent at its address set forth on the cover page of this Letter of Transmittal prior to 9:00 a.m., New York City time, on the Expiration Date.

THE COMPANY WILL NOT ACCEPT ANY ALTERNATIVE, CONDITIONAL OR CONTINGENT TENDERS. EACH TENDERING HOLDER BY DELIVERY OF AN AGENT’S MESSAGE WAIVES ANY RIGHT TO RECEIVE ANY NOTICE OF THE ACCEPTANCE OF SUCH TENDER.

2. VALIDITY OF TENDERS. The Company has the sole right to decide any questions about the validity, form, eligibility, time of receipt, acceptance or withdrawal of tendered Original Notes, and its decision will be final and binding. The Company’s interpretation of the terms and conditions of the Exchange Offer, including the instructions contained in this Letter of Transmittal and in the Prospectus, will be final and binding on all parties.

The Company has the absolute right to reject any or all of the tendered Original Notes if:

 

•

the Original Notes are not properly tendered; or

 

•

in the opinion of counsel, the acceptance of those Original Notes would be unlawful.

The Company may also decide to waive any conditions of the Exchange Offer or any defects or irregularities of tenders of Original Notes and accept such Original Notes for exchange whether or not similar defects or irregularities are waived in the case of other Holders. Any defect or irregularity in the tender of Original Notes that is not waived by the Company must be cured within the period of time set by the Company.

It is your responsibility to identify and cure any defect or irregularity in the tender of your Original Notes. Your tender of Original Notes will not be considered to have been made until any defect or irregularity is cured or waived. Neither the Company, the Exchange Agent nor any other person is required to notify you that your tender was defective or irregular, and no one will be liable for any failure to notify you of such a defect or irregularity in your tender of Original Notes. Tenders of the Original Notes will not be deemed made until such defects or irregularities have been cured or waived. Any Original Notes received by the Exchange Agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned to the tendering Holder as soon as practicable after the Expiration Date of the Exchange Offer.

3. PARTIAL TENDERS. Tenders of Original Notes pursuant to the Exchange Offer will be accepted only in principal amounts equal to $2,000 and integral multiples of $1,000. Any untendered Original Notes and any Exchange Notes issued in exchange for tendered and accepted Original Notes will be credited to accounts at DTC.

4. TRANSFER TAXES. The Company will pay all transfer taxes, if any, applicable to the exchange of Original Notes in the Exchange Offer. However, transfer taxes will be payable by you (or by the tendering Holder if you are delivering this letter on behalf of a tendering Holder) if a transfer tax is imposed for any reason other than the exchange of Original Notes according to the Exchange Offer. If satisfactory evidence of the payment of those taxes or an exemption from payment is not submitted with this Letter of Transmittal or at the time the related agent’s message is delivered, the amount of those transfer taxes will be billed directly to the tendering Holder. Until those transfer taxes are paid, the Company will not be required to deliver any Exchange Notes required to be delivered to, or at the direction of, such tendering Holder.

Except as provided in this Instruction 4, it is not necessary for transfer tax stamps to be attached to the Original Notes listed in this Letter of Transmittal.

5. WAIVER OF CONDITIONS. The Company may choose, at any time and for any reason, to waive or, subject to certain requirements, amend or modify certain of the conditions to the Exchange Offer. The conditions applicable to tenders of Original Notes in the Exchange Offer are described in the Prospectus under the heading “The Exchange Offer—Conditions to the Exchange Offer.”

---

6. WITHDRAWAL RIGHTS. Original Notes tendered pursuant to the Exchange Offer may be withdrawn at any time prior to the Expiration Date. For a withdrawal to be effective, a written letter or facsimile transmission notice of withdrawal must be received by the Exchange Agent at its address set forth in this Letter of Transmittal not later than 9:00 a.m., New York City time, on the Expiration Date. Any notice of withdrawal must specify the name and number of the account at DTC to be credited with withdrawn Original Notes and otherwise comply with the ATOP procedures. The Exchange Agent will return properly withdrawn Original Notes promptly following receipt of notice of withdrawal. Properly withdrawn Original Notes may be retendered by following the procedures described in the Prospectus under the heading “The Exchange Offer—Procedures for tendering Original Notes” at any time on or prior to 9:00 a.m., New York City time, on the Expiration Date. All questions as to the validity of notices of withdrawals, including time of receipt, will be determined by the Company, and will be final and binding on all parties.

7. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. If you have questions, need assistance or would like to receive additional copies of the Prospectus or this Letter of Transmittal, you should contact the Exchange Agent at the address listed on the cover page of this document. You may also contact your broker, dealer, commercial bank, trust company or other nominee for assistance concerning the Exchange Offer.

IMPORTANT: BY USING THE ATOP PROCEDURES TO TENDER ORIGINAL NOTES, YOU WILL NOT BE REQUIRED TO DELIVER THIS LETTER OF TRANSMITTAL TO THE EXCHANGE AGENT. HOWEVER, YOU WILL BE BOUND BY ITS TERMS AND CONDITIONS, AND YOU WILL BE DEEMED TO HAVE MADE THE ACKNOWLEDGMENTS AND THE REPRESENTATIONS AND WARRANTIES IT CONTAINS, JUST AS IF YOU HAD SIGNED IT.