EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
FORT HOWARD CORPORATION
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FORT HOWARD CORPORATION, a Delaware corporation, hereby certifies
as follows:
1. The name of the Corporation is Fort Howard Corporation (the
"Corporation"). The date of filing of its original Certificate of
Incorporation with the Secretary of State of the State of Delaware was October
18, 1967. The original name of the Corporation was Fort Howard Paper Company.
2. This Restated Certificate of Incorporation amends and
restates the provisions of the Certificate of Incorporation of the Corporation
and was duly adopted in accordance with the provisions of Sections 228, 242
and 245 of the General Corporation Law of the State of Delaware (the "DGCL").
3. The text of the Certificate of Incorporation is hereby
amended and restated in its entirety to read as follows:
ARTICLE I
Name
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SECTION 1.1. Name. The name of the Corporation is FORT HOWARD
CORPORATION.
ARTICLE II
Registered Office and Registered Agent
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SECTION 2.1. Office and Agent. The address of the registered
office of the Corporation in the State of Delaware is 32 Loockerman Square
Suite L-100, in the City of Dover, County of Kent, Delaware 19904. The name
of the registered agent of the Corporation at such address is The
Prentice-Hall Corporation System, Inc.
ARTICLE III
Corporate Purposes
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SECTION 3.1. Purpose. The purpose of the Corporation is to
engage in any lawful act or activity for which corporations may be organized
under the DGCL.
ARTICLE IV
Capitalization
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SECTION 4.1. Authorized Capital. Shares. The total number of
shares of all classes of capital stock that the Corporation shall have
authority to issue is 150,000,000 shares, of which (i) 100,000,000 shares
shall be common stock, par value $.01 per share ("Common Stock"), and
(ii) 50,000,000 shares shall be preferred stock, par value $.01 per share
("Preferred Stock").
SECTION 4.2. Common Stock. (a) Voting Rights. Each holder of
Common Stock shall have one vote on each matter submitted to a vote at a
meeting of stockholders for each share of Common Stock held of record by such
holder as of the record date for such meeting.
(b) Dividends and Distributions. Subject to any rights of
holders of any class or series of Preferred Stock, when, as and if dividends
or distributions are declared on outstanding shares of Common Stock, whether
payable in cash, in property or in securities of the Corporation, each holder
of outstanding shares of Common Stock shall be entitled to share ratably in
such dividends and distributions in proportion to the number of shares of
Common Stock held by such holder.
(c) Liquidation. Subject to any rights of holders of any class
or series of Preferred Stock, upon any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, each holder of
outstanding shares of Common Stock shall be entitled to share ratably in the
assets of the Corporation to be distributed among the holders of shares of
Common Stock in proportion to the number of shares of Common Stock held by
such holder.
(d) No Preemptive Rights. The holders of shares of Common Stock
shall have no preemptive or preferential rights of subscription to any shares
of any class of capital stock of the Corporation or any securities convertible
into or exchangeable for shares of any class of capital stock of the
Corporation.
SECTION 4.3. Preferred Stock. Shares of Preferred Stock of the
Corporation may be issued from time to time in one or more classes or series,
each of which class or series shall have such distinctive designation or title
as shall be fixed by the affirmative vote of a majority of the whole Board of
Directors of the Corporation (the "Board of Directors") prior to the issuance
of any shares thereof. Each such class or series of Preferred Stock shall
have such voting powers, full or limited, or no voting powers, and such
designations, preferences and relative, participating, optional or other
special rights and qualifications, limitations or restrictions, including the
dividend rate, redemption price and liquidation preference, and may be
convertible into, or exchangeable for, at the option of either the holder or
the Corporation or upon the happening of a specified event, shares of any
other class or classes or any other series of the same or any other class or
classes of capital stock, or any debt securities, of the Corporation at such
price or prices or at such rate or rates of exchange and with such adjustments
as shall be stated and expressed in this Restated Certificate of Incorporation
or in any amendment hereto or in such resolution or resolutions providing for
the issuance of such class or series of Preferred Stock as may be adopted from
time to time by the affirmative vote of a majority of the whole Board of
Directors prior to the issuance of any shares thereof pursuant to the
authority hereby expressly vested in it, all in accordance with the DGCL. The
authority of the Board of Directors with respect to each series shall also
include, but not be limited to, the determination of restrictions, if any, on
the issue or reissue of any additional shares of Preferred Stock.
ARTICLE V
Compromise or Arrangement
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SECTION 5.1. Compromise or Arrangement. 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 the DGCL
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
the DGCL, 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 a 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,
if sanctioned by the court to which the said application has been made, shall
be binding on all the creditors or the members of the class of creditors,
and/or on all the stockholders or the members of the class of stockholders, of
the Corporation, as the case may be, and also on the Corporation.
ARTICLE VI
Indemnification
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SECTION 6.1. Indemnification. (a) General. 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, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, to the full extent authorized or permitted by law, as now or
hereafter in effect, 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
or 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, had reasonable cause to believe that his conduct was unlawful.
(b) 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, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, to the full extent authorized or permitted by law, as now or
hereafter in effect, 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;
provided, however, 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 of the State of Delaware 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.
(c) Successful Defense. To the extent that a director, officer,
employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) above, 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.
(d) Proceedings Initiated by any Person. Notwithstanding
anything to the contrary contained in subsections (a) or (b) above, except for
proceedings to enforce rights to indemnification, the Corporation shall not be
obligated to indemnify any person in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or part thereof) was
authorized in advance, or unanimously consented to, by the Board of Directors.
(e) Procedure. Any indemnification under subsections (a) and
(b) above (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 has met the applicable standard of conduct set forth in subsections
(a) and (b) above. Such determination shall be made (i) by a majority vote of
the directors who are not parties to such action, suit or proceeding even
though less than a quorum, or (ii) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or
(iii) by the stockholders.
(f) Advancement of Expenses. Expenses (including attorneys'
fees) incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall 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 such director or
officer to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Corporation pursuant to this Article VI
or as otherwise authorized by law. Such expenses (including attorneys' fees)
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
(g) Rights Not Exclusive. The indemnification and advancement
of expenses provided by, or granted pursuant to, the other subsections of this
Article VI 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, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
(h) 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 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 the DGCL.
(i) Definition of "Corporation". For purposes of this Article
VI, 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, 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 VI with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if
its separate existence had continued.
(j) Certain Other Definitions. For purposes of this Article VI,
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "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
service by, such director, officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests
of the Corporation", as referred to in this Article VI.
(k) Continuation of Rights. The indemnification and advancement
of expenses provided by, or granted pursuant to, this Article VI shall, unless
otherwise provided when authorized or ratified, 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.
(l) Repeal or Modification. Any repeal or modification of this
Article VI by the stockholders of the Corporation shall not adversely affect
any rights to indemnification and to advancement of expenses that any person
may have at the time of such repeal or modification with respect to any acts
or omissions occurring prior to such repeal or modification.
ARTICLE VII
Liability of a Director
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SECTION 7.1. Director Liability. (a) A director of the
Corporation shall not 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 DGCL, or (iv) for any transaction from which
the director derived any improper personal benefit.
(b) If the DGCL is amended hereafter to authorize the further
elimination or limitation of the liability of directors, then the liability of
a director of the Corporation shall be eliminated or limited to the fullest
extent authorized by the DGCL, as so amended, without further action by either
the Board of Directors or the stockholders of the Corporation.
(c) Any repeal or modification of this Article VII shall not
adversely affect any right or protection of a director of the Corporation
existing hereunder with respect to any act or omission occurring prior to or
at the time of such repeal or modification.
ARTICLE VIII
Management of the Affairs of the Corporation
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SECTION 8.1. Management of the Affairs of the Corporation. (a)
The business and affairs of the Corporation shall be managed by the Board of
Directors, which may exercise all the powers of the Corporation and do all
such lawful acts and things that are not conferred upon or reserved to the
stockholders by law, by this Restated Certificate of Incorporation or by the
restated by-laws of the Corporation (the "By-Laws").
(b) Election of directors of the Corporation need not be by
written ballot, unless required by the By-Laws.
(c) The following provisions are inserted for the limitation and
regulation of the powers of the Corporation and of its directors and
stockholders:
(1) The By-Laws, or any of them, may be altered, amended or
repealed, or new by-laws may be made, but only to the extent any such
alteration, amendment, repeal or new by-law is not inconsistent with any
provision of this Restated Certificate of Incorporation, either by a
majority of the whole Board of Directors or by the stockholders of the
Corporation upon the affirmative vote of the holders of at least a 80%
of the outstanding capital stock entitled to vote thereon.
(2) The Board of Directors of the Corporation shall consist of
not less than three (3) and not more than fifteen (15) directors, the
exact number of directors to be determined as set forth in, or in the
manner provided in, the By-Laws. The directors shall be divided into
three classes, designated Class I, Class II and Class III. Each class
shall consist, as nearly as may be possible, of one-third of the total
number of directors constituting the entire Board of Directors. The
term of the initial Class I directors shall terminate on the date of the
1996 annual meeting of stockholders; the term of the initial Class II
directors shall terminate on the date of the 1997 annual meeting of
stockholders; and the term of the initial Class III directors shall
terminate on the date of the 1998 annual meeting of stockholders. At
each annual meeting of stockholders, beginning with the 1996 annual
meeting of stockholders, successors to the class of directors whose term
expires at that annual meeting shall be elected for a three-year term.
If the number of directors is changed, any increase or decrease shall be
apportioned among the classes so as to maintain the number of directors
in each class as nearly equal as possible, but in no case will a
decrease in the number of directors shorten the term of any incumbent
director. A director shall hold office until the annual meeting for the
year in which his term expires and until his successor shall be elected
and shall qualify, subject, however, to prior death, resignation,
retirement, disqualification or removal from office. The term of a
director elected by stockholders to fill a newly created directorship or
other vacancy shall expire at the same time as the terms of the other
directors of the class for which the new directorship is created or in
which the vacancy occurred. Any vacancy on the Board of Directors that
results from an increase in the number of directors and any other
vacancy occurring on the Board of Directors, howsoever resulting, may be
filled only by a majority of the directors then in office, even if less
than a quorum, or by a sole remaining director. Any director so elected
by the Board of Directors to fill a vacancy shall hold office for a term
that shall coincide with the term of the class to which such director
shall have been elected.
Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of Preferred Stock issued by the Corporation
shall have the right, voting separately by class or series, to elect
directors at an annual or special meeting of stockholders, the election,
term of office, filling of vacancies and other features of such
directorships shall be governed by the terms of this Restated
Certificate of Incorporation or the resolution or resolutions adopted by
the Board of Directors pursuant to Section 4.3 hereof applicable
thereto, and such directors so elected shall not be divided into classes
pursuant to this Section 8.1(c) unless expressly provided by such terms.
(3) Only persons who are nominated in accordance with the
following procedures shall be eligible for election as directors of the
Corporation, except as may be otherwise provided in this Restated
Certificate of Incorporation with respect to the right of holders of
Preferred Stock of the Corporation to nominate and elect a specified
number of directors in certain circumstances. Nomination of persons for
election to the Board of Directors may be made at any annual meeting of
stockholders, or at any special meeting of stockholders called for the
purpose of electing directors, (a) by or at the direction of the Board
of Directors (or any duly authorized committee thereof) or (b) by any
stockholder of the Corporation (i) who is a stockholder of record on the
date of the giving of the notice provided for in this Section 8.1(c)(3)
and on the record date for the determination of stockholders entitled to
vote at such meeting and (ii) who complies with the notice procedures
set forth in this Section 8.1(c)(3). In addition to any other
applicable requirements, for a nomination to be made by a stockholder,
such stockholder must have given timely notice thereof in proper written
form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices
of the Corporation (a) in the case of an annual meeting, not less than
60 days nor more than 90 days prior to the anniversary date of the
immediately preceding annual meeting of stockholders; provided, however,
that in the event that the annual meeting is called for a date that is
not within 30 days before or after such anniversary date, notice by the
stockholder in order to be timely must be so received not later than the
close of business on the tenth day following the day on which such
notice of the date of the annual meeting is mailed or such public
disclosure of the date of the annual meeting is made, whichever first
occurs, or (b) in the case of a special meeting of stockholders called
for the purpose of electing directors, not later than the close of
business on the tenth day following the day on which notice of the date
of the special meeting is mailed or public disclosure of the date of the
special meeting is made, whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth (a) as to each person whom the stockholder
proposes to nominate for election as a director, (i) the name, age,
business address and residence address of the person, (ii) the principal
occupation or employment of the person, (iii) the class or series and
number of shares of capital stock of the Corporation which are owned
beneficially or of record by the person and (iv) any other information
relating to the person that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section
14 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations promulgated thereunder; and (b) as
to the stockholder giving the notice, (i) the name and record address of
such stockholder, (ii) the class or series and number of shares of
capital stock of the Corporation which are owned beneficially or of
record by such stockholder, together with evidence reasonably
satisfactory to the Secretary of such beneficial ownership, (iii) a
description of all arrangements or understandings between such
stockholder and each proposed nominee and any other person or persons
(including their names) pursuant to which the nomination(s) are to be
made by such stockholder, (iv) a representation that such stockholder
intends to appear in person or by proxy at the meeting to nominate the
persons named in its notice and (v) any other information relating to
such stockholder that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section
14 of the Exchange Act and the rules and regulations promulgated
thereunder. Such notice must be accompanied by a written consent of
each proposed nominee to being named as a nominee and to serve as a
director if elected.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth
in this Section 8.1(c)(3). If the chairman of the meeting determines
that a nomination was not made in accordance with the foregoing
procedures, the chairman of the meeting shall declare to the meeting
that the nomination was defective and such defective nomination shall be
disregarded.
(4) Subject to the rights, if any, of the holders of shares of
Preferred Stock then outstanding, any or all of the directors of the
Corporation may be removed from office at any time by the stockholders
of the Corporation, but only for cause and only by the affirmative vote
of the holders of a majority of the outstanding shares of the
Corporation then entitled to vote generally in the election of
directors, considered for purposes of this paragraph as one class.
(5) Any action required or permitted to be taken at any annual
or special meeting of stockholders may be taken only upon the vote of
the stockholders at an annual or special meeting duly announced and
called, as provided in the By-Laws, and may not be taken by a written
consent of the stockholders pursuant to the DGCL.
(6) Special meetings of the stockholders of the Corporation for
any purpose or purposes may be called at any time by a majority of the
members of the Board of Directors or the Chief Executive Officer of the
Corporation. Special meetings of the stockholders of the Corporation
may not be called by any other person or persons.
ARTICLE IX
Amendments
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SECTION 9.1. Amendments. Notwithstanding anything contained in
this Restated Certificate of Incorporation to the contrary, the affirmative
vote of the holders of at least 80% of the outstanding shares of capital stock
of the Corporation entitled to vote thereon shall be required to amend,
repeal, or adopt any provision inconsistent with, Section 4.3 of Article IV,
Section 8.1(c) of Article VIII or this Article IX of this Restated Certificate
of Incorporation.
ARTICLE X
Private Property
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SECTION 10.1. Private Property. The private property of the
stockholders of the Corporation shall not be subject to the payment of
corporate debts to any extent whatsoever."
This Restated Certificate of Incorporation shall become effective
at 9:00 a.m. (E.S.T.), March 16, 1995.
IN WITNESS WHEREOF, FORT HOWARD CORPORATION has caused this
certificate to be signed by James W. Nellen II, its Vice President and
Secretary and attested by Cheryl A. Thomson, its Assistant Secretary, this
15th day of March 1995.
FORT HOWARD CORPORATION
By: /s/ James W. Nellen II
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Name: James W. Nellen II
ATTEST:
/s/ Cheryl A. Thomson
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Name: Cheryl A. Thomson