Exhibit 4(b)


 


 


SUPERIOR ESSEX HOLDING CORP.


 


 


CERTIFICATE OF DESIGNATION

OF

SERIES A PREFERRED STOCK


 


 


(Pursuant to Section 151 of the Delaware General

Corporation Law)


 


 


The
undersigned, an authorized officer of Superior Essex Holding Corp., a Delaware
corporation (the “Corporation”), in accordance with the provisions of
Section 103 of the Delaware General Corporation Law (the “DGCL”), does
hereby certify that, in accordance with Section 303 of the DGCL and pursuant to
the Amended Joint Plan of Reorganization of Superior Telecom Inc. and certain
of its wholly-owned subsidiaries under Chapter 11 of the United States Code, as
filed in the United States Bankruptcy Court for the District of Delaware (the
“Plan”), the following resolution was duly adopted by the Corporation on
November 7, 2003:


 


RESOLVED, that
a series of preferred stock, par value $1.00 per share (“Par Value”), of
the Corporation is hereby created and the designation, number of shares,
powers, preferences, rights, qualifications, limitations and restrictions
thereof (in addition to any provisions set forth in the Certificate of
Incorporation of the Corporation which are applicable to the preferred stock of
all classes and series) are as follows:


 


SERIES A CUMULATIVE

PREFERRED STOCK


 


Section 1.             Designation and Amount; Stated Capital.  The shares of such series shall be
designated as “Series A Preferred Stock” (the “Series A Preferred Stock”),
and the number of shares constituting the Series A Preferred Stock shall be
6,000,000.  The amount to be represented
in stated capital at all times for each share of Series A Preferred Stock shall
be $1.00.


 


Section 2.                                            Rank.  With respect to dividend and redemption
rights and rights on liquidation, winding-up and dissolution, the Series A
Preferred Stock will rank:  (i) senior
to the Common Stock, par value $.01 per share (the “Common Stock”), all
other classes of common stock (collectively referred to as “Junior Stock”)
of the Corporation established hereafter by the Board of Directors of the
Corporation (the “Board of Directors” or the “Board”) the terms
of which do not expressly provide that it ranks senior to, or on a parity with,
the Series A Preferred Stock; (ii) on a parity with each other class or series
of preferred stock of the Corporation


 

















 


established hereafter by the
board, the terms of which expressly provide that such class or series will rank
on parity with the Series A Preferred Stock as to dividend and redemption
rights and rights on liquidation, windup and dissolution of the Corporation (collectively
referred to as “Parity Stock”); and (iii) junior to each other class or
series of preferred stock of the Corporation established hereafter by the
Board, the terms of which expressly provide that such class or series will rank
senior to the Series A Preferred Stock as to dividend and redemption rights or
rights on liquidation, winding-up and dissolution of the Corporation
(collectively referred to as “Senior Stock”).  All claims of the holders of the Series A Preferred Stock,
including claims with respect to dividend payments, redemption payments,
mandatory repurchase payments or rights upon liquidation, winding-up or
dissolution, shall rank junior to the claims of the holders of any funded debt
of the Corporation and all other creditors of the Corporation.


 


Section
3.  Dividends and Distributions.


 


(a)                                  The
holders of shares of Series A Preferred Stock shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available for such purpose, cumulative dividends at the rate of 9.5% per annum
per share, and no more, which shall accrue without interest from the date of
issuance of such share and shall be payable semi-annually on May 1 and November
1 of each year prior to the Mandatory Redemption Date (as hereinafter defined)
beginning May 1, 2004 (except that if any such date is a Saturday, Sunday or
legal holiday, then such dividend shall be payable on the next day that is not
a Saturday, Sunday or legal holiday) (each a “Dividend Payment Date”), to the
holders of record as they appear on the stock books of the Corporation on such
record dates, not more than 60 nor less than 10 days preceding the Dividend
Payment Date for such dividends, as shall be fixed by the Board.
Notwithstanding the foregoing sentence, if on any Dividend Payment Date during
the first year of issuance of Series A Preferred Stock (i.e. May 1, 2004
or November 1, 2004), Superior LLC (as hereinafter defined) issues
payment-in-kind notes in lieu of cash interest on the Senior Notes (as
hereinafter defined) in accordance with the terms thereof, then the Corporation
shall issue, in lieu of cash dividends, additional shares of Series A Preferred
Stock (or fractions thereof) in respect of each share of Series A Preferred
Stock determined by dividing (i) the amount of such dividend then due in
respect of each share of Series A Preferred Stock by (ii) the Par Value.  The amount of dividends payable per share of
Series A Preferred Stock for each semi-annual dividend period shall be computed
by dividing the annual dividend amount by two. 
The amount of dividends payable for the initial dividend period and any
period shorter than a six month dividend period shall be computed on the basis
of a 360-day year of twelve 30-day months. All dividends paid with respect to
shares of Series A Preferred Stock shall be paid pro rata to the holders
entitled thereto.  Dividends on the
Series A Preferred Stock shall accrue and be cumulative (whether or not
declared and whether or not funds are legally available for the payment thereof)
from the date of issuance of such stock.


 


(b)                                 (i)  So long as any shares of the Series A
Preferred Stock are outstanding, the Corporation shall not, without the prior
written consent of the holders of a majority of the shares of outstanding
Series A Preferred Stock, make any payment on account of, or set apart for
payment money for a sinking or other similar fund for, the purchase, redemption
or retirement of, any Junior Stock or any warrants, rights, calls or options
exercisable for or convertible into any Junior Stock, whether directly or
indirectly, and whether in cash, obligations or shares of capital


 


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stock of the Corporation or
other property (other than dividends or distributions payable in additional
shares of Junior Stock to holders of Junior Stock).


 


(ii)                                  So long as any shares
of the Series A Preferred Stock are outstanding, the Corporation shall not
permit any corporation or other entity directly or indirectly controlled by the
Corporation to purchase or redeem any Junior Stock or any warrants, rights,
calls or options exercisable for or convertible into any Junior Stock.


 


(iii)                               The Corporation shall
not declare, pay or set apart for payment any dividend or make any distribution
or payment on any Junior Stock or Parity Stock, whether directly or indirectly
and whether in cash, obligations or shares of the Corporation or other property
(other than dividends or distributions payable in additional shares of Junior
Stock), unless prior to or at the time of such declaration, payment, setting
apart for payment or distribution, as the case may be, the Corporation shall
have paid all accrued and unpaid dividends on the outstanding shares of Series
A Preferred Stock.


 


(iv)                              So long as any shares of
Series A Preferred Stock remain outstanding, the Corporation shall not make any
payment on account of, or set apart for payment money for a sinking or other
similar fund for, the purchase, redemption or retirement of, any Parity Stock,
or any warrants, rights, calls or options exercisable for or convertible into
any Parity Stock, whether directly or indirectly, and whether in cash,
obligations or shares of the Corporation or other property (other than payments
solely of Junior Stock), and shall not permit any corporation or other entity
directly or indirectly controlled by the Corporation to purchase or redeem any
Parity Stock, or any warrants, rights, calls or options exercisable for or
convertible into any Parity Stock, unless prior to or at the time of such
payment or setting apart for payment, the Corporation shall have repurchased,
redeemed or retired shares of Series A Preferred Stock on a pro rata basis, in
proportion to the respective Liquidation Preferences (as defined in the
applicable Certificate of Designations) of the Series A Preferred Stock and the
Parity Stock as to which such sinking fund or similar fund payment, or such
purchase, redemption or retirement, is being effected.


 


(v)                                 Notwithstanding
anything to the contrary in this Section 3, the Corporation may at any time and
from time to time declare and pay or cause to be paid dividends or make other
distributions to Superior Essex Inc. or any successor thereto in such amounts
sufficient to pay all costs and expenses in connection with Superior Essex Inc.
(or such successor) being a publicly traded company (including, without
limitation, fees and expenses of the directors thereof, professionals and
regulatory compliance) at such times as shall be determined by the Board of
Directors.


 


(c)                                  If at any time any
dividend on any Senior Stock shall be in default, in whole or in part, no
dividend shall be paid or declared and set apart for payment on the Series A
Preferred Stock unless and until all accrued and unpaid dividends with respect
to the Senior Stock shall have been paid or declared and set apart for payment,
without interest.


 


(d)                                 Except as set forth in
the last sentence of Section 3(b)(iii) above, whenever dividends on the Series
A Preferred Stock are in arrears, the Corporation shall not declare dividends
on or make any other distribution in respect of any Parity Stock, except
dividends paid on a pro rata basis on the Series A Preferred Stock and all
other capital stock


 


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ranking on a parity as to dividends and on which dividends are payable
in arrears, in proportion to the respective amounts of dividends in arrears
upon all such outstanding shares of Series A Preferred Stock and such other
series of capital stock.  Any reference
to “distribution” contained in this Section 3 shall not be deemed to
include any distribution made in connection with any liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary.


 


Section 4. 
Liquidation Preference. 
In the event of a liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of Series A
Preferred Stock shall be entitled to receive out of the assets of the
Corporation, whether such assets constitute stated capital or surplus of any
nature, a sum equal to (i) the Par Value per share and (ii) an amount in cash
equal to the dividends accrued and unpaid thereon (whether or not declared) to
the date of such final distribution to such holders.  After the liquidation preferences of the Senior Stock are fully
met, the entire assets of the Corporation available for distribution shall be
distributed ratably among the holders of the Series A Preferred Stock and any
Parity Stock in proportion to the respective preferential amounts to which each
is entitled (but only to the extent of such preferential amounts).  After payment in full of the liquidation
preference as provided in this Section 4, the holders of such shares shall not
be entitled to any further participation in any distribution of assets by the
Corporation.  Neither a consolidation or
merger of the Corporation with another corporation or other entity nor a sale
or transfer of all or part of the Corporation’s assets for cash, securities or
other property will be considered a liquidation, dissolution or winding up of
the Corporation.


 


Section 5. 
Redemption; No Sinking Fund.


 


(a)                                  Except
as provided in this Section 5 and in Section 6, the Corporation may not redeem
the Series A Preferred Stock and the shares of Series A Preferred Stock shall
not be subject to the operation of a purchase, retirement or sinking fund.


 


(b)                                 Prior
to the tenth anniversary hereof (the “Mandatory Redemption Date”) the
Corporation may redeem for cash all or any portion of the shares of Series A
Preferred Stock then outstanding.  Any
Series A Preferred Stock that shall remain outstanding on the Mandatory
Redemption Date shall be redeemed on or as of such date as hereinafter
provided. Notwithstanding anything in this Section 5(b) to the contrary, the
Corporation shall only effect any such redemption to the extent of funds
legally available therefor and subject to the prior payment in full of all
other obligations (other than with respect to Junior Stock and Parity Stock)
that are then due or become due as a result of such redemption.


 


(c)                                  In
the event of a Change of Control (as hereinafter defined) the Corporation shall
redeem the Series A Preferred Stock in accordance with the provisions of
Sections 5(f) and 6.


 


(d)                                 Not
more than 60 nor less than 30 days prior to any redemption date, notice by
first class mail, postage prepaid, shall be given to the holders of record of
the Series A Preferred Stock to be redeemed, addressed to such holders at their
last addresses as shown on the books of the Corporation.  Each such notice of redemption shall specify
the date fixed for redemption which shall be no later than 30 days following
such notice, the place or places of


 


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payment, that payment in an
amount equal to the sum of (i) the Par Value and (ii) the accrued and unpaid
dividends to the date fixed for redemption (collectively, the “Redemption
Price”) of each share of Series A Preferred Stock to be so redeemed will be
made upon presentation and surrender of each such share of Series A Preferred
Stock to be so redeemed, and that on and after the redemption date, dividends
will cease to accrue on all such shares to be so redeemed.


 


(e)                                  Any
notice which is mailed as herein provided shall be deemed to have been duly
given, to any holder of the Series A Preferred Stock upon receipt by such
holder of such notice; and failure to give such notice by mail, or any defect
in such notice, to the holders of any shares designated for redemption shall
not affect the validity of the proceedings for the redemption of any other
shares of Series A Preferred Stock.  On
or after the date fixed for redemption as stated in such notice, each holder of
the shares called for redemption shall surrender the certificate (or
certificates) evidencing such shares to the Corporation at the place designated
in such notice and shall thereupon be entitled to receive payment of the
Redemption Price.  If fewer than all the
shares represented by any such surrendered certificate (or certificates) are
redeemed, a new certificate shall be issued representing the unredeemed shares.


 


(f)                                    On
and after each date fixed for redemption under Section 5(b) or 6(a)
notwithstanding that the certificates evidencing any shares so called for
redemption shall not have been surrendered, the dividends with respect to the
shares so called shall cease to accrue after the date fixed for redemption, the
shares shall no longer be deemed outstanding, the holders thereof shall cease
to be holders with respect to such redeemed shares, and all rights whatsoever
with respect to such shares so called for redemption (except the right of the
holders to receive the Redemption Price, without interest, upon surrender of
their certificates therefor) shall terminate. 
Any monies deposited by the Corporation pursuant to the foregoing
provision and unclaimed at the end of one year from the date fixed for
redemption shall, to the extent permitted by law, be returned to the
Corporation, after which the holders of shares of Series A Preferred Stock so
called for redemption shall look only to the Corporation for the payment
thereof.  In the case of the redemption
of less than all of the then outstanding shares of Series A Preferred Stock,
the Corporation shall designate by lot, or in such other manner as the Board
may determine, the shares to be redeemed, or shall effect such redemption pro
rata.


 


(g)                                 If
at any time the Corporation does not pay amounts sufficient to redeem all
Series A Preferred Stock required to be redeemed by the Corporation on the
Mandatory Redemption Date or the Change of Control Redemption Date (as defined
in Section 6(a)), then such funds which are paid shall be applied to redeem
such shares of Series A Preferred Stock as the Corporation may select pro rata
or by lot or in such other manner as the Board of Directors may determine.


 


Section 6.                                            Redemption
upon Change of Control.


 


(a)                                  In
the event of a Change of Control, the Corporation will, to the extent of funds
legally available therefor and subject to the prior payment in full of all other
obligations (with respect to Senior Stock) that are then due or become due as a
result of such Change of Control, redeem (the “Change of Control Redemption”)
all of the then outstanding shares of Series A Preferred Stock in an amount
equal to the Redemption Price.  At least
30 days prior to


 


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the occurence of any Change of
Control, notice by first class mail, postage prepaid, shall be given to the
holders of record of the Series A Preferred Stock, addressed to such holders at
their last addresses as shown on the books of the Corporation.  Such notice shall state:  (A) that a Change of Control shall occur and
that the Corporation shall redeem all of their shares of Series A Preferred
Stock at a purchase price in cash equal to the Redemption Price on the date
specified in such notice as the date of redemption (the “Change of Control
Redemption Date”), which date shall be the date of the closing of the
transaction that constitutes a Change of Control; (B) that payment will be made
upon presentation and surrender of the shares of Series A Preferred Stock; and
(C) that on and after the Change of Control Redemption Date, dividends will
cease to accrue on such shares so redeemed.


 


(b)                                 Any
notice of a Change of Control Redemption which is mailed as herein provided
shall be conclusively presumed to have been duly given, whether or not the
holder of the Series A Preferred Stock receives such notice; and failure to
give such notice by mail, or any defect in such notice, to the holders of any
shares shall not affect the validity of the proceedings for the redemption of
any other shares of Series A Preferred Stock. 
On or within 20 business days after the Change of Control Redemption
Date, as stated in such notice of a Change of Control Redemption, each holder
of shares of Series A Preferred Stock shall surrender the certificate (or
certificates) evidencing such shares to the Corporation at the place designated
in such notice and shall thereupon be entitled to receive payment of the
Redemption Price.


 


(c)                                  As
used herein, the following terms shall have the following meanings:


 


(i)                                     “Affiliate”
of any specified Person means any other Person which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is under
common control with, such specified Person. For the purposes of this
definition, “control” (including, with correlative meanings, the terms “controlling,”
“controlled by,” and “under common control with”), as used with
respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise; provided that beneficial ownership of 30% or more of the voting
securities of the Corporation shall be deemed to be control solely for purposes
of this Certificate of Designation of Series A Preferred Stock.


 


(ii)                                  “Change
of Control” means the occurrence of one or more of the following events at
any time following the issuance of the Series A Preferred Stock: (i) any sale,
lease, exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of Superior LLC to any
Person or group of related Persons for purposes of Section 13(d) of the
Exchange Act (a “Group”), together with any Affiliates of such person or Group
(which may include any holders of Senior Notes) thereof; (ii) the approval by
the holders of voting securities of Superior Essex Inc. (as hereinafter
defined) of any plan or proposal for the liquidation or dissolution of Superior
Essex Inc.; (iii) any holder of Senior Notes becomes the owner, directly or
indirectly, beneficially or of record, of shares representing more than (A) 50%
of the aggregate ordinary voting power represented by the issued and
outstanding voting securities of Superior Essex Inc. or (B) 50% of the
aggregate ordinary voting power


 


6

















 


represented by
the issued and outstanding voting stock of Superior LLC (other than the
Corporation); (iv) any other Person or Group shall become the owner, directly
or indirectly, beneficially or of record, of shares representing more than (A)
50% of aggregate ordinary voting power represented by the issued and
outstanding voting securities of Superior Essex Inc. or (B) 50% of the
aggregate ordinary voting power represented by the issued and outstanding
voting stock of Superior LLC (other than the Corporation); or (v) the first day
within any two-year period on which a majority of the members of the Board of
Directors of Superior Essex Inc. or Superior LLC are not Continuing Directors.


 


 


(iii)                               “Continuing
Directors” means, as of any date of determination, any member of the Board
of Directors of Superior Essex Inc. or Superior LLC, as the case may be, who
(i) was a member of such Board of Directors on the effective date of the Plan
or (ii) was nominated for election or elected to such Board of Directors with,
or whose election to such Board of Directors was approved by, the affirmative
vote of a majority of the directors who were members of such Board of Directors
at the time of such nomination or election.


 


(iv)                              “Person”
or “person” means any individual, corporation, partnership, limited
liability company or partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government (including any agency
or political subdivision thereof).


 


(v)                                 
“Senior Notes” mean collectively the promissory notes issued pursuant to
that certain Indenture dated as of the
effective date of the Plan, among Superior LLC, a, as Issuer, Superior
Essex Inc., a Delaware limited liability company, the guarantors and Bank of
New York, a New York banking corporation, as trustee.


 


(vi)                              “Superior
Essex Inc.” means Superior Essex Inc., a Delaware corporation and parent
company of the Corporation.


 


(vii)                         “Superior
LLC” means Superior Essex Communications LLC, a Delaware limited liability
company and wholly owned subsidiary of the Corporation.


 


Section 7.                                            Voting
Rights.


 


(a)                                  Each
share of Series A Preferred Stock issued and outstanding shall have one
vote.  The holders of Series A Preferred
Stock and the holders of Common Stock shall vote together as a single class
upon all matters submitted to stockholders for a vote; provided, however,
that holders of Series A Preferred Stock shall not be entitled to vote
generally for directors of the Corporation other than pursuant to Section 7(b)
below.


 


(b)                                 Notwithstanding
anything to the contrary contained herein, if the Corporation shall fail to
make all or any portion of the dividend payments then due to be paid for six
consecutive Dividend Payment Dates (the “Triggering Date”), then the holders of
a


 


7

















 


majority of the shares of
Series A Preferred Stock, voting together as a single class, shall have the
right to elect one director of the Corporation for each term succeeding the
Triggering Date until the Corporation has fully paid all cumulative and unpaid
dividends in respect of the Series A Preferred Stock.


 


(c)                                  Unless
otherwise provided by law, the vote or written consent of the holders of at
least a majority of the then outstanding shares of Series A Preferred Stock
shall be necessary for effecting or validating the following actions:


 


i.                                          any
amendment, alteration or change to the rights, preferences, privileges or
powers of Series A Preferred Stock in any manner that adversely affects the
holders of the shares of such series generally;


 


ii.                                       any
increase or decrease in the total number of authorized or, except as otherwise
expressly provided for herein, issued shares of Series A Preferred Stock;


 


iii.                                    any
redemption, acquisition or other purchase of any share of Common Stock or
Preferred Stock of the Corporation, unless, in the case of any Preferred Stock,
such redemption, acquisition or purchase is required by the terms of such
Preferred Stock; or


 


iv.                                   any
arrangement or contract to do any of the foregoing.


 


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IN WITNESS
WHEREOF, Superior Essex Holding Corp. has caused this certificate to be signed
by a duly authorized officer this 7th day of November, 2003.


 


	
   

  	
  SUPERIOR
  ESSEX HOLDING CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ David S. Aldridge

  	
   

  
	
   

  	
   

  	
  Name: David
  S. Aldridge

  
	
   

  	
   

  	
  Title: Vice
  President

  



 


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