EXHIBIT 3(i)
AMENDED CERTIFICATE OF INCORPORATION
of
ALCOA INTERNATIONAL HOLDINGS COMPANY
FIRST: The name of the Company is Alcoa International
Holdings Company (hereinafter the "Company").
SECOND: The address of the registered office of the Company
in the State of Delaware is 1013 Centre Road, in the City of
Wilmington, County of New Castle. The name of its registered
agent at that address is Corporation Service Company.
THIRD: The purpose of the Company is to engage in any
lawful act or activity for which a Company may be organized under
the General Corporation Law of the State of Delaware as set forth
in Title 8 of the Delaware Code of (the "GCL").
FOURTH: The total number of shares of stock which the
Company shall have authority to issue is 2,508,000 shares
consisting of 2,500,000 shares of Preferred Stock, of the par
value of $100.00 per share, in one or more series, each such
series having such rights, powers, preferences and limitations as
may be established therefor by the Board of Directors pursuant to
Article FIFTH hereof; and 8,000 shares of Common Stock, of the
par value of $1.00 per share. The holders of Common Stock shall
have 1,000 votes per share.
FIFTH: The Board of Directors is authorized, subject to
limitations prescribed by law and the provisions of this Article,
to provide for the issuance of the shares of Preferred Stock in
series, and by filing a certificate pursuant to the applicable
law of the State of Delaware, to establish from time to time the
number of shares to be included in each such series, and to fix
the designation, powers, preferences and rights of the shares of
each such series and the qualifications, limitations or
restrictions thereof.
The authority of the Board with respect to each series shall
include, but not be limited to, determination of the following:
(a) The number of shares constituting that series and the
distinctive designation of that series;
(b) The dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or
dates, and the relative rights of priority, if any, of payment of
dividends on shares of that series;
(c) Whether that series shall have voting rights, in
addition to the voting rights provided by law, and, if so, the
terms of such voting rights; provided, however, that no series
shall be granted voting rights which exceed one vote for each
$100 liquidation preference pertaining to such stock; provided
further, that if shares of Preferred Stock are purchased or
otherwise acquired by any affiliate of the Company, such
affiliate may not exercise the voting rights attached to such
shares, if any; for purposes of this paragraph (c), "affiliate"
shall mean any entity controlled by, in control of, or under
common control with the Company;
(d) Whether that series shall have conversion or exchange
privileges, and, if so, the terms and conditions of such
conversion or exchange rate in such events as the Board of
Directors shall determine;
(e) Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such
redemption, including the date or dates upon or after which they
shall be redeemable, and the amount per share payable in case of
redemption, which amount may vary under different conditions and
at different redemption dates;
(f) Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the
terms and amount of such sinking fund;
(g) The rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up
of the Company, and the relative rights or priority, if any, of
payment of shares of that series; provided, that assets of the
Company consisting of capital stock in subsidiary or affiliated
companies that are subject to rights (including but not limited
to rights of first refusal) held by other parties (except ALCOA,
as defined in Article SEVENTH) will not be distributed in any
such distribution or sold in connection with or in contemplation
of any such distribution prior to the exercise or expiration of
such rights in accordance with their terms;
(h) Any other relative rights, preferences and limitations
of that series. Dividends on outstanding shares of Preferred
Stock shall be paid or declared and set apart for payment before
any dividends shall be paid on the Common Stock with respect to
the same dividend period.
Whenever any shares of Preferred Stock are acquired by the
Company, whether by purchase, redemption, conversion or exchange
for other shares of the Company, or otherwise, they shall resume
the status of authorized and unissued Preferred Stock without
designation or series.
SIXTH: The following provisions are inserted for the
management of the business and the conduct of the affairs of the
Company, and for further definition, limitation and regulation of
the powers of the Company and of its directors and stockholders:
(1) The business and affairs of the Company shall be
managed by or under the direction of the Board of Directors.
(2) The number of directors of the Company shall be as from
time to time fixed by, or in the manner provided in, the By-Laws
of the Company. Election of directors need not be by written
ballot unless the By-Laws so provide.
(3) To the fullest extent permitted by the GCL as the same
exists or may hereafter be amended, a director of the Company
shall not be liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director. If
the GCL is amended after the filing of the Certificate to
authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director
of the Company shall be eliminated or limited to the fullest
extent permitted by the GCL, as so amended. No amendment to or
repeal of this Subsection (3) to Article SIXTH shall have any
adverse effect on any right or protection of a director of the
Company existing at the time of such amendment or repeal or with
respect to any acts or omissions of such director occurring prior
to such time. Notwithstanding anything contained in this
Certificate to the contrary, the affirmative vote of the holders
of not less than 66-2/3 percent of all votes entitled to be cast
by the holders of stock of the Company entitled to vote in the
election of directors, voting together as a single class, shall
be required to amend or repeal this Subsection (3) to Article
SIXTH or to adopt any provision inconsistent herewith.
(4) In addition to the powers and authority hereinbefore or
by statute expressly conferred upon them, the directors are
hereby empowered to exercise all such powers and do all such acts
and things as may be exercised or done by the Company, subject,
nevertheless, to the provisions of the GCL, this Certificate of
Incorporation, and any By-Laws adopted by the stockholders;
provided, however, that no By-Laws hereafter adopted by the
stockholders shall invalidate any prior act of the directors
which would have been valid if such By-Laws had not been adopted.
SEVENTH: In anticipation that (i) ALCOA will be and will
remain a substantial stockholder in the Company, (ii) the COMPANY
and ALCOA may engage in the same or similar activities or lines
of business and have an interest in the same areas of corporate
opportunities, (iii) the COMPANY and ALCOA may enter into
contracts or otherwise transact business with each other and that
the Company may derive benefits therefrom and (iv) the Company
may from time to time enter into contractual, corporate or
business relations with one or more of its directors or one or
more corporations, partnerships, associations or other
organizations in which one or more of its directors have a
financial interest (collectively, "Related Entities"), and in
recognition of the benefits to be derived by the COMPANY through
its continued contractual, corporate and business relations with
ALCOA (including service of officers and directors of Alcoa as
officers and directors of the Company), the provisions of this
Article SEVENTH are set forth to regulate and define the conduct
of certain affairs, contractual relationships and other business
relations of the COMPANY as they may involve ALCOA, Related
Entity and the respective officers and directors of the Company
and Alcoa, and the powers, rights, duties and liabilities of the
Company and its officers, directors and stockholders in
connection therewith. The following provisions of this Article
SEVENTH are in addition to, and not in limitation of, the
provisions of the GCL and the other provisions of this
Certificate:
(1) ALCOA shall have no duty to refrain from (i)
engaging in the same or similar activities or lines of
business as the COMPANY, (ii) doing business with any
customer of the COMPANY, or (iii) employing or otherwise engaging
any officer, director or employee of the COMPANY and neither
Alcoa nor any officer or director thereof (except as provided
in Subsection (2) below) shall be liable to the Company or its
stockholders for breach of any fiduciary duty by reason of any
such activities of ALCOA or of such person's participation
therein. In the event that ALCOA acquires knowledge of a
potential transaction or matter which may be a corporate
opportunity for both ALCOA and the COMPANY, ALCOA shall have no
duty to communicate or offer such corporate opportunity to the
COMPANY and shall not be liable to the Company or its stockholders
for breach of any fiduciary duty as a stockholder of the Company
by reason of the fact that ALCOA pursues or acquires such
corporate opportunity for itself, directs such corporate
opportunity to another person, or does not communicate information
regarding such corporate opportunity to the COMPANY.
(2) In the event that a director or officer of the
Company who is also a director or officer of Alcoa requires
knowledge of a potential transaction or matter which may be a
corporate opportunity for both the COMPANY and ALCOA, such
director or officer of the Company (a) shall have fully satisfied
and fulfilled the fiduciary duty of such director or officer to the
Company and its stockholders with respect to such corporate
opportunity, (b) shall not be liable to the Company or its
stockholders for breach of any fiduciary duty by reason of the
fact that ALCOA pursues or acquires such corporate opportunity
for itself or directs such corporate opportunity to another person
or does not communicate information regarding such corporate
opportunity to the COMPANY, (c) shall be deemed to have acted in
good faith and in a manner such person reasonably believes to be
in and not opposed to the best interests of the Company and
(d) shall be deemed not to have breached his duty of loyalty to the
Company or its stockholders and not to have derived an improper
personal benefit therefrom, if such director or officer acts in
a manner consistent with the following policy:
When a corporate opportunity is offered to an
officer and/or director of the Company who is also an officer
and/or director of Alcoa in writing, solely in his or her
designated capacity with one of the two companies, such
opportunity shall belong to whichever corporation was so
designated. Otherwise, (i) a corporate opportunity offered
to any person who is an officer or officer and director of the
Company, and who is also a director of Alcoa shall belong to
the COMPANY, (ii) a corporate opportunity offered to a person
who is a director of the Company and who is also an officer
and/or director of Alcoa shall belong to ALCOA, (iii) a corporate
opportunity offered to any person who is an officer, but not a
director, of both the Company and Alcoa shall belong to ALCOA,
(iv) a corporate opportunity offered to any person who is an
officer and director of both the Company and Alcoa shall belong
to ALCOA, and (v) a corporate opportunity offered to any person
who is an officer or an officer and director of the Company and
who is also an officer or an officer and director of Alcoa shall
belong to ALCOA.
(3) If any contract, agreement, arrangement or transaction
between the COMPANY and ALCOA involves a corporate opportunity
and is approved in accordance with the procedures set forth in
Subparagraph (4) of this Article SEVENTH, Alcoa and its officers
and directors shall have fully satisfied and fulfilled their
fiduciary duties to the Company and its stockholders with respect
thereto under this Article SEVENTH. Any such contract,
agreement, arrangement or transaction involving a corporate
opportunity not so approved shall not by reason thereof result in
any breach of any fiduciary duty, but shall be governed by the
other provisions of this Article SEVENTH, this Certificate, the
By-Laws, the GCL and by law.
(4) No contract, agreement, arrangement or transaction
between the COMPANY and ALCOA or between the COMPANY and one or more
of the directors or officers of the Company, Alcoa or any Related
Entity or between the COMPANY and any Related Entity shall be void
or voidable for the reason that ALCOA, any Related Entity or one or
more of the officers or directors of the Company, Alcoa or any
Related Entities are parties thereto, or because any such directors
or officers are present at or participate in the meeting of the
Board of Directors or committee thereof which authorizes the
contract, agreement, arrangement or transaction, or because his,
her or their votes are counted for such purpose, and Alcoa, any
Related Entity and such directors and officers (a) shall have
fully satisfied and fulfilled their fiduciary duties to the
Company and its stockholders with respect thereto, (b) shall not be
liable to the Company or its stockholders for any breach of
fiduciary duty by reason of any entering into, performance or
consummation of any such contract, agreement, arrangement or
transaction, (c) shall, in the case of officers and directors of
the Company, be deemed to have acted in good faith and in a manner
such person reasonably believes to be in and not opposed to
the best interests of the Company and (d) shall, in the case of
officers and directors of the Company, be deemed not to have
breached their duties of loyalty to the Company and its
stockholders and not to have derived an improper personal benefit
therefrom, if:
(i) The material facts as to the contract, agreement,
arrangement or transaction are disclosed or are known to the Board of
Directors or the committee thereof which authorizes the contract,
agreement, arrangement or transaction, and the Board of Directors or
such committee in good faith authorizes the contract, agreement,
arrangement or transaction by the affirmative vote of a majority of
the disinterested directors, even though the disinterested directors
be less than a quorum; or
(ii) The material facts as to the contract, agreement,
arrangement or transaction are disclosed or are known to the holders
of capital stock entitled to vote thereon, and the contract,
agreement, arrangement or transaction is specifically approved in
good faith by vote of the holders of a majority of the voting power
of the stock of the Company entitled to vote thereon.
(5) Contracts, agreements, arrangements or transactions entered
into by the COMPANY or any Related Entity with ALCOA or any Related
Entity that confer or execute equal benefits on or to the parties are
deemed to be arms length and the officers and directors of the
Company that approve and execute such contracts, agreements,
arrangements or transaction shall be deemed to have acted in good
faith and in and not opposed to the best interests of the Company.
(6) Directors of the Company who are also directors or
officers of Alcoa or any Related Entity may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract, agreement, arrangement
or transaction.
(7) Any person purchasing or otherwise acquiring any
interest in shares of the stock of the Company shall be deemed to
have notice of and to have consented to the provisions of this
Article SEVENTH.
(8) For purposes of this Article SEVENTH:
(a) A director of the Company who is Chairman of
the Board of Directors of the Company or chairman of a committee
thereof shall not be deemed to be an officer of the Company by
reason of holding such position (without regard to whether such
position is deemed an office of the Company under the By-Laws of
the Company), unless such person is a full-time employee of the
Company; and
(b) "ALCOA" shall include Aluminum Company of
America and all its successors by way of merger, consolidation
or sale of all or substantially all of its assets, and all
subsidiary corporations and all partnerships, joint ventures,
associations and other entities in which Aluminum Company of
America owns (directly or indirectly) fifty percent or more of the
outstanding voting stock, voting power, partnership interests or
similar ownership interests, but shall not include the COMPANY;
(c) "Alcoa" shall include Aluminum Company of
America and all its successors by way of merger, consolidation
or sale of all or substantially all of its assets;
(d) The "COMPANY" shall include the Company and
all subsidiary corporations and all partnerships, joint ventures,
associations and other entities in which the Company owns (directly
or indirectly) fifty percent or more of the outstanding voting
stock, voting power, partnership interests or similar ownership
interests; and any contract, agreement, arrangement or transaction
with any such entity, or with any officer or director thereof,
shall be deemed to be a contract, agreement, arrangement or
transaction with the COMPANY; and
(e) "Corporate opportunities" shall include, but
not be limited to, business opportunities which the COMPANY and
ALCOA, as the case may be, are financially able to undertake,
which are, from their nature, in the line of the COMPANY's or
ALCOA's business and are of practical advantage to them, which are
ones in which the COMPANY or ALCOA, as the case may be, have an
interest or a reasonable expectancy, and as to which by embracing
the opportunity, the self-interest of the Company or Alcoa or the
officer or director, as the case may be, will be brought into
conflict.
(9) Notwithstanding anything in this Certificate to the
contrary and in addition to any vote of the Board of Directors
required by this Certificate, the affirmative vote of at least
66-2/3% of all votes entitled to be cast by the holders of stock of
the Company entitled to vote in the election of directors, voting
together as a single class, shall be required to alter, amend or
repeal, or adopt any provision inconsistent with, any provision
of this Article SEVENTH. Neither the alteration, amendment or
repeal of this Article SEVENTH, nor the adoption of any provision
inconsistent with this Article SEVENTH, shall eliminate or reduce
the effect of this Article SEVENTH in respect of any matter
occurring, or any cause of action, suit or claim that, but for
this Article SEVENTH would accrue or arise, prior to such
alteration, amendment, repeal or adoption.
(10) Any Contract or business relation which does not comply
with the rules set forth in this Article SEVENTH shall not by
reason thereof be deemed void or voidable or result in any breach
of any fiduciary duty, but shall be governed by the provisions of
this Certificate, the By-Laws, the GCL and by law.
EIGHTH: In the event of a Change in Control, the holders of
Preferred Stock, by the affirmative vote of a majority of the
outstanding shares of Preferred Stock entitled to vote in the
election of directors, voting together as a single class, may
require the Company to redeem such Preferred Stock at redemption
price per share in cash equal to the liquidation preference plus
an amount equal to all unpaid dividends thereon, including all
accrued dividends, whether or not declared through the redemption
date. Within five Business Days following the occurrence of a
Change in Control, the Company shall notify the holders of such
Preferred Stock of the Change in Control.
(1) For purposes of this Article EIGHTH:
(a) "Change in Control" shall mean the acquisition by
any person or group of persons of (i) beneficial ownership of a
majority of the voting power of the outstanding voting stock of the
Company or Alcoa, or (ii) all or substantially all of the assets of
the Company or Alcoa; and
(b) "Alcoa" shall mean Aluminum Company of America and
all its successors by way of merger, consolidation or sale of all
or substantially all of its assets.
(c) "Business Day" shall mean a day on which the New York
Stock Exchange is open for trading and which is not a Saturday,
Sunday or other day on which commercial banks in The City of
New York, New York are authorized or required by law to close.
(2) Notwithstanding the availability of any other remedies,
whether at law or in equity, the remedies provided to the holders
of Preferred Stock in this Article EIGHTH shall be the sole and
exclusive remedies arising upon the failure of the Company to
comply with the provisions of this Article EIGHTH; provided,
however, that this paragraph (2) shall not prohibit any such
holder from taking any action to prevent such failure prior to
its occurrence.
(3) Notwithstanding anything in this Certificate to the
contrary and in addition to any vote of the Board of Directors
required by this Certificate, an 85% Vote shall be required to
alter, amend or repeal, or adopt any provision inconsistent with,
any provision of this Article EIGHTH. "85% Vote" shall mean the
affirmative vote of at least 85% of all votes entitled to be cast by
the holders of stock of the Company entitled to vote in the election
of directors, voting together as a single class; provided, however,
that the affirmative vote of votes entitled to be cast by the
holders of Preferred Stock entitled to vote in the election of
directors, if any, must constitute at least 10% of the total votes
entitled to be cast. Neither the alteration, amendment or repeal
of this Article EIGHTH, nor the adoption of any provision
inconsistent with this Article EIGHTH, shall eliminate or reduce
the effect of this Article EIGHTH in respect of any matter
occurring, or any cause of action, suit or claim that, but for this
Article EIGHTH would accrue or arise, prior to such alteration,
amendment, repeal or adoption.
NINTH: Without Approval of Shareholders, the Company will
not, and will not permit its subsidiaries to, tell, transfer or
otherwise dispose of in one or more transactions, except in the
ordinary course of business, assets having an aggregate book
value of more than 50% of the Consolidated Assets of the Company.
The provisions of this Article NINTH shall not apply to sales,
transfers or other dispositions of assets by the Company or one
of its subsidiaries to another such subsidiary or to the Company.
The provisions of this Article NINTH shall expire and shall be of
no further force and effect after June 30, 1992.
(1) For purposes of this Article NINTH:
(a) "Consolidated Assets" of the Company shall
mean the total of all assets of the Company and its Consolidated
Subsidiaries (as defined in Article TENTH) which in accordance
with United States generally accepted accounting principles would
be included in determining total assets as shown on the balance
sheet of the Company for the latest fiscal year prior to the date
as of which Consolidated Assets are to be determined; and
(b) "Approval of Sha eholders" shall mean an 85%
Vote (as defined in Article EIGHTH).
(2) Notwithstanding anything in this Certificate to
the contrary and in addition to any vote of the Board of Directors
required by this Certificate, an 85% Vote shall be required to
alter, amend or repeal, or adopt any provision inconsistent with,
any provision of this Article NINTH. Neither the alteration,
amendment or repeal of this Article NINTH, nor the adoption of any
provision inconsistent with this Article NINTH, shall eliminate or
reduce the effect of this Article NINTH in respect of any matter
occurring, or any cause of action, suit or claim that, but for this
Article NINTH would accrue or arise, prior to such alteration,
amendment, repeal or adoption.
TENTH: The aggregate principal amount of (i) the
Indebtedness of the Company and its Consolidated Subsidiaries,
after eliminating intercompany items, plus (ii) all other
liabilities of the Company and its Consolidated Subsidiaries,
after eliminating intercompany items, in respeet of any guaranty
or endorsement (except negotiable instruments for deposit or
collection or similar transactions in the normal course of
business) of the Indebtedness of any person, firm or corporation
(other than the Company or a Consolidated Subsidiary), shall not
exceed one hundred fifty percent (150%) of the Consolidated Net
Worth of the Company.
(1) For purposes of this Article TENTH:
(a) "Indebtedness" shall include all obligations for
borrowed money, obligations (other than accounts payable and
other similar items arising in the normal course of business) for
the deferred payment of the purchase price of property, and lease
obligations which in accordance with United States generally
accepted accounting principles would be included in determining
total liabilities as shown on the liability side of the balance
sheet of the respective company on the date as of which
Indebtedness is to be determined; and
(b) "Consolidated Subsidiaries" means and includes
only those subsidiaries whose acc unts are consolidated with the
accounts of the Company in accordance with the Company's policy of
consolidated as in effect from time to time and as reflected in the
Company's audited statements;
(c) "Consolidated Net Worth" means the sum of
(i) consolidated shareholders' equity, (ii) consolidated minority
interests, and (iii) preferred stocks not included in shareholders'
equity, determined in accordance with United States generally
accepted accounting principles.
(2) Notwithstanding anything in this Certificate to
the contrary and in addition to any vote of the Board of Directors
required by this Certificate, an 85% Vote (as defined in
Article EIGHTH) shall be required to alter, amend or repeal, or
adopt any provision inconsistent with, any provision of this
Article TENTH.
Neither the alteration, amendment or repeal of this
Article TENTH, nor the adoption of any provision inconsistent
with this Article TENTH, shall eliminate or reduce the effect of
this Article TENTH in respect of any matter occurring, or any
cause of action, suit or claim that, but for this Article TENTH
would accrue or arise, prior to such alteration, amendment, repeal
or adoption.
ELEVENTH: Meetings of stockholders may be held within or
without the State of Delaware, as the By-Laws may provide. The
books of the Company may be kept (subject to any provision
contained in the GCL) 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 Company.
TWELFTH: The Company reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are
granted subject to this reservation. Except as provided in this
Certificate or as otherwise provided by law, the affirmative vote
of a majority of all votes entitled to be cast by the holders of
stock of the Company entitled to vote generally in the election
of directors voting together as a single class shall be required
to alter, amend, change or repeal any provision contained in this
Certificate of Incorporation.