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EXHIBIT 3.1
FORM OF
CERTIFICATE OF INCORPORATION
OF
DITECH FUNDING CORPORATION
ARTICLE I
NAME OF CORPORATION
The name of this Corporation is DiTech Funding Corporation.
ARTICLE II
REGISTERED OFFICE
The address of the registered office of the Corporation in the State of
Delaware is at [National Registered Agents, Inc., 9 East Loockerman Street, in
the City of Dover 19901, County of Kent], and the name of its registered agent
at that 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 General Corporation
Law of Delaware.
ARTICLE IV
AUTHORIZED CAPITAL STOCK
SECTION 1. Number of Authorized Shares. The total number of shares of
all classes of stock that the Corporation shall have authority to issue is
______ million (_____________) shares, consisting of _____ million (_________)
shares of common stock, $0.001 par value per share (the "Common Stock"), and ___
million (___________) shares of preferred stock, $0.001 par value per share (the
"Preferred Stock").
SECTION 2. Common Stock. The Common Stock shall consist solely of two
classes designated "Class A Common Stock" and "Class B Common Stock." The
authorized number of shares of Class A Common Stock shall be _______ million
(__,000,000) and the authorized number of shares of Class B Common Stock shall
be _____ million (__,000,000). The Board of Directors of the Corporation may
authorize the issuance of shares of Class A Common Stock and shares of Class B
Common Stock from time to time subject to the foregoing. Shares of Common Stock
that are redeemed, purchased or otherwise acquired by the Corporation may be
reissued except as otherwise
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provided by law. The Board of Directors shall have no power to alter the rights
with respect to Class A Common Stock or Class B Common Stock.
SECTION 3. Dividends and Distributions. Subject to the preferences
applicable to Preferred Stock outstanding at any time, the holders of shares of
Class A Common Stock and the holders of shares of Class B Common Stock shall be
entitled to receive such dividends, payable in cash or otherwise, as may be
declared thereon by the Board of Directors from time to time out of assets or
funds of the Corporation legally available therefor, provided that the holders
of shares of Class A Common Stock and shares of Class B Common Stock shall be
entitled to share equally, on a per share basis, in such dividends, subject to
the limitations described below. If dividends or other distributions are
declared that are payable in shares of Class A Common Stock or shares of Class B
Common Stock, including distributions pursuant to stock subdivisions or
combinations of Class A Common Stock or Class B Common Stock which occur after
the first date upon which the Corporation has issued shares of both Class A
Common Stock and Class B Common Stock, only shares of Class A Common Stock shall
be distributed with respect to Class A Common Stock and only shares of Class B
Common Stock shall be distributed with respect to Class B Common Stock, unless
the Board of Directors of the Corporation determines in its discretion that it
is more desirable to distribute shares of Class A Common Stock with respect to
Class B Common Stock, in which case shares of Class A Common Stock shall be
distributed with respect to Class B Common Stock, provided that the number of
shares of Class A Common Stock that shall be distributed with respect to Class B
Common Stock shall be equal to the number of shares of Class B Common Stock that
otherwise would have been distributed. If the Corporation shall in any manner
subdivide or combine the outstanding shares of Class A Common Stock or Class B
Common Stock, the outstanding shares of the other such series of Common Stock
shall be proportionately subdivided or combined in the same manner and on the
same basis as the outstanding shares of Class A Common Stock or Class B Common
Stock, as the case may be, which have been subdivided or combined.
SECTION 4. Voting Rights. The holders of shares of Class A Common Stock
and of Class B Common Stock shall have the following voting rights:
A. Each share of Class A Common Stock shall entitle the holder thereof
to one vote on all matters submitted to a vote of the stockholders of the
Corporation.
B. Each share of Class B Common Stock shall entitle the holder thereof
to four votes on all matters submitted to a vote of the stockholders of the
Corporation.
C. The holders of shares of Class A Common Stock and the holders of
shares of Class B Common Stock shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation, except (i) as otherwise
required by applicable law and (ii) in the case of a proposed issuance of shares
of Class B Common Stock, which issuance shall require the affirmative vote of
the holders of a majority of the outstanding shares of Class B Common Stock.
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SECTION 5. Transfer of Class B Stock.
(A). Except as provided in Section 5(B) hereof, no person holding shares
of Class B Common Stock or any beneficial interest therein (a "Class B Holder")
may voluntarily or involuntarily transfer (including without limitation the
power to vote such Class B Shares by proxy or otherwise except for proxies given
to any Permitted Transferee of the Class B Holder), sell, assign, devise or
bequeath any of such Class B Holder's interest in his Class B Shares, and the
Corporation and the transfer agent for the Class B Common Stock, if any (the
"Transfer Agent"), shall not register the transfer of such shares of Class B
Common Stock, whether by sale, grant of proxy, assignment, gift, devise,
bequest, appointment or otherwise, except to a "Permitted Transferee" of such
Class B Holder, which term shall include the Corporation and shall have the
following additional meanings in the following cases:
(i) In the case of a Class B Holder who is a natural person
holding record and beneficial ownership of the shares of Class B
Common Stock in question, "Permitted Transferee" means: (a) the
spouse of such Class B Holder (the "Spouse"); (b) a lineal
descendant, or the spouse of such lineal descendant
(collectively, "Descendants"), of such Class B Holder or of the
Spouse; (c) the trustee of a trust (including a voting trust) for
the benefit of such Class B Holder, the Spouse, other
Descendants, or an organization contributions to which are
deductible for federal income, estate or gift tax purposes (a
"Charitable Organization"), and for the benefit of no other
person; provided that such trust may grant a general or special
power of appointment to the Spouse or to the Descendants and may
permit trust assets to be used to pay taxes, legacies and other
obligations of the trust or of the estate of such Class B Holder
payable by reason of the death of such Class B Holder or the
death of the Spouse or a Descendant, and that such trust (subject
to the grant of a power of appointment as provided above) must
prohibit transfer of shares of Class B Common Stock or a
beneficial interest therein to persons other than Permitted
Transferees as defined in subparagraph (ii) of this Section 5(A)
(a "Trust"); (d) a Charitable Organization established by such
Class B Holder or a Descendant; (e) an Individual Retirement
Account, as defined in Section 408(a) of the Internal Revenue
Code, of which such Class B Holder is a participant or
beneficiary, provided that such Class B Holder is vested with the
power to direct the investment of funds deposited into such
Individual Retirement Account and to control the voting of
securities held by such Individual Retirement Account (an "IRA");
(f) a pension, profit sharing, stock bonus or other type of plan
or trust of which such Class B Holder is a participant or
beneficiary and which satisfies the requirements for
qualification under Section 401 of the Internal Revenue Code,
provided that such Class B Holder is vested with the power to
direct the investment of funds deposited into such plan or trust
and to control the voting of securities held by such plan or
trust, (a "Plan"); (g) a corporation all of the outstanding
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capital stock of which is owned by, or a partnership all of the
partners of which are, such Class B Holder, his or her Spouse,
his or her Descendants, any Permitted Transferee of the Class B
Holder and/or any other Class B Holder or its Permitted
Transferee determined pursuant to this subparagraph (i) of this
Section 5(A), provided that if any share (or any interest in any
share) of capital stock of such a corporation (or of any survivor
of a merger or consolidation of such corporation), or any
partnership interest in such a partnership, is acquired by any
person who is not within such class of persons, all shares of
Class B Common Stock then held by such corporation or
partnership, as the case may be, shall be deemed without further
act on anyone's part to be converted into shares of Class A
Common Stock and stock certificates formerly representing such
shares of Class B Common Stock shall thereupon and thereafter be
deemed to represent the like number of shares of Class A Common
Stock in the manner set forth in Section 6(B) hereof; (h) another
Class B Holder or such Class B Holder's Permitted Transferee
determined pursuant to this subparagraph (i) of this Section
5(A); and (i) in the event of the death of such Class B Holder,
such Class B Holder's estate.
(ii) In the case of a Class B Holder holding the shares of
Class B Common Stock in question as trustee of an IRA, a Plan or
a Trust other than a Trust described in subparagraph (iii) of
this Section 5(A), "Permitted Transferee" means: (a) any
participant in or beneficiary of such IRA, such Plan or such
Trust, or the person who transferred such shares of Class B
Common Stock to such IRA, such Plan or such Trust, and (b) a
Permitted Transferee of any such person or persons determined
pursuant to subparagraph (i) of this Section 5(A).
(iii) In the case of a Class B Holder holding the shares of
Class B Common Stock in question as trustee pursuant to a Trust
which was irrevocable on the Record Date (as defined below),
"Permitted Transferee" means any person as of the Record Date to
whom or for whose benefit principal may be distributed either
during or at the end of the term of such Trust whether by power
of appointment or otherwise. For purposes of this Certificate of
Incorporation, there shall be one "Record Date," which date shall
be the date that is the record date for determining the persons
to whom the Class B Common Stock is first distributed by the
Corporation.
(iv) In the case of a Class B Holder holding record (but not
beneficial) ownership of the shares of Class B Common Stock in
question as nominee for the person who was the beneficial owner
thereof on the Record Date, "Permitted Transferee" means such
beneficial owner and a Permitted Transferee of such beneficial
owner determined pursuant to subparagraph (i), (ii), (iii), (v)
or (vi) of this Section 5(A), as the case may be.
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(v) In the case of a Class B Holder that is a partnership
holding record and beneficial ownership of the shares of Class B
Common Stock in question, "Permitted Transferee" means any
partner of such partnership, provided that such partner was a
partner in the partnership at the time it first became a Class B
Holder, or any Permitted Transferee of such partner determined
pursuant to subparagraph (i) of this Section 5(A).
(vi) In the case of a Class B Holder that is a corporation,
other than a Charitable Organization described in clause (d) of
subparagraph (i) of this Section 5(A), holding record and
beneficial ownership of the shares of Class B Common Stock in
question (a "Corporate Holder"), "Permitted Transferee" means (a)
any stockholder of such Corporate Holder, provided that such
stockholder was a stockholder of the Corporate Holder at the time
it first became a Class B Holder, or any Permitted Transferee of
any such stockholder determined pursuant to subparagraph (i) of
this Section 5(A); and (b) the survivor (the "Survivor") of a
merger or consolidation of such Corporate Holder, so long as such
Survivor is controlled, directly or indirectly, by those
stockholders of the Corporate Holder who were stockholders of the
Corporate Holder at the time the Corporate Holder first became a
Class B Holder or any Permitted Transferees of such stockholders
determined pursuant to subparagraph (i) of this Section 5(A).
(vii) In the case of a Class B Holder that is the estate of a
deceased Class B Holder, or that is the estate of a bankrupt or
insolvent Class B Holder, and provided such deceased, bankrupt or
insolvent Class B Holder, as the case may be, held record and
beneficial ownership of the shares of Class B Common Stock in
question, "Permitted Transferee" means a Permitted Transferee of
such deceased, bankrupt or insolvent Class B Holder as determined
pursuant to subparagraphs (i), (v) or (vi) of this Section 5(A),
as the case may be.
(viii) In the case of any Class B Holder who desires to make a
bona fide gift, "Permitted Transferee" means any other Class B
Holder or its Permitted Transferee determined pursuant to
subparagraph (i) of this Section 5(A).
(ix) In the case of any Class B Holder, "Permitted Transferee"
means any person or entity that will hold record (but not
beneficial) ownership of the shares of Class B Stock in question
as nominee for the Class B Holder or its Permitted Transferee
determined pursuant to subparagraph (i), (ii), (iii), (v) or (vi)
of this Section 5(A), as the case may be.
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(B). Notwithstanding anything to the contrary set forth herein, any
Class B Holder may pledge such Holder's shares of Class B Common Stock to a
pledgee pursuant to a bona fide pledge of such shares as collateral security for
indebtedness due to the pledgee, provided that such shares shall not be
transferred to, registered in the name of or voted by the pledgee and shall
remain subject to this Section 5. In the event of foreclosure or other similar
action by the pledgee, such pledged shares of Class B Common Stock may only be
transferred to a Permitted Transferee of the pledgor or converted into shares of
Class A Common Stock, as the pledgee may elect.
(C). For purposes of this Section 5:
(i) The relationship of any person that is derived by or
through legal adoption shall be considered a natural
relationship.
(ii) Each joint owner of shares (if a Permitted Transferee) or
owner of a community property interest in shares (if a Permitted
Transferee) of Class B Common Stock shall be considered a "Class
B Holder" of such shares.
(iii) A minor for whom shares of Class B Common Stock are held
pursuant to a Uniform Transfer to Minors Act or similar law shall
be considered a Class B Holder of such shares.
(iv) Unless otherwise specified, the term "person" means and
includes natural persons, corporations, partnerships,
unincorporated associations, firms, joint ventures, trusts and
all other entities.
(D). Except as otherwise provided in Section 6(B), any purported
transfer of shares of Class B Common Stock not permitted hereunder shall be void
and of no effect, and the purported transferee shall have no rights as a
stockholder of the Corporation and no other rights against or with respect to
the Corporation. The Corporation may, as a condition to the transfer or the
registration of transfer of shares of Class B Common Stock to a purported
Permitted Transferee, require the furnishing of such affidavits or other proof
as it deems necessary to establish that such transferee is a Permitted
Transferee. Each certificate representing shares of Class B Common Stock shall
be endorsed with a legend that states that shares of Class B Common Stock are
not transferable other than to certain transferees and are subject to certain
restrictions as set forth in the Certificate of Incorporation filed by the
Corporation with the Secretary of State of the State of Delaware.
SECTION 6. Conversion and Exchange of Class B Common Stock.
(A). Each share of Class B Common Stock, at the option of its holder,
may at any time be converted into one (1) fully paid and nonassessable share of
Class A Common Stock. Such right shall be exercised by the surrender of the
certificate representing such share of Class B Common Stock to be converted to
the Corporation at
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any time during normal business hours at the principal executive offices of the
Corporation or at the office of the Transfer Agent, accompanied by a written
notice of the election by the holder thereof to convert and (if so required by
the Corporation or the Transfer Agent) by instruments of transfer, in form
satisfactory to the Corporation and to the Transfer Agent, duly executed by such
holder or such holder's duly authorized attorney, and transfer tax stamps or
funds therefor, if required pursuant to Section 6(F).
(B). If the beneficial ownership (as determined under Rule 13d-3
promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended) of any share or any interest in any share of
Class B Common Stock changes, voluntarily or involuntarily, such that each new
beneficial owner of such share is not a "Permitted Transferee" (as defined in
Section 5(A) hereof) of the beneficial owner of such share of Class B Common
Stock immediately prior to such change in beneficial ownership, then each such
share shall thereupon be converted automatically into one (1) fully paid and
nonassessable share of Class A Common Stock. A determination by the Secretary of
the Corporation that a change in beneficial ownership requires conversion under
this paragraph shall be conclusive. Upon making such determination, the
Secretary of the Corporation shall promptly request of the holder of record of
each such share that each such holder promptly deliver, and each such holder
shall promptly deliver, the certificate representing each such share to the
Corporation for documentation of such conversion, together with instruments of
transfer, in form satisfactory to the Corporation and Transfer Agent, duly
executed by such holder or such holder's duly authorized attorney, and together
with transfer tax stamps or funds therefor, if required pursuant to Section
6(F).
(C). If, on the record date for any annual meeting of stockholders, the
number of shares of Class B Common Stock then outstanding is less than ten
percent (10%) of the aggregate number of shares of Class B Common Stock and
Class A Common Stock then outstanding, as determined by the Secretary of the
Corporation, each share of Class B Common Stock then issued or outstanding shall
thereupon be converted automatically into one (1) fully paid and nonassessable
share of Class A Common Stock, and each share of Class B Common Stock then
authorized but unissued shall thereupon automatically be deemed an authorized
but unissued share of Class A Common Stock. Upon making such determination, the
Secretary of the Corporation shall promptly request of each holder of record of
shares of Class B Common Stock that each such holder promptly deliver, and each
such holder shall promptly deliver, all certificates that prior to such
determination represented all shares of Class B Common Stock held by such holder
to the Corporation for documentation of such conversion, together with
instruments of transfer in form satisfactory to the Corporation and Transfer
Agent, duly executed by such holder or such holder's duly authorized attorney,
and together with transfer tax stamps or funds therefor, if required pursuant to
Section 6(F).
(D). As promptly as practicable following the surrender for conversion
of a certificate representing shares of Class B Common Stock in the manner
provided in paragraphs A, B or C, as applicable, of this Section 6 and the
payment in cash of any
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amount required by the provisions of Section 6(F), the Corporation will deliver
or cause to be delivered at the office of the Transfer Agent to or upon the
written order of the holder of such certificate, a certificate or certificates
representing the number of full shares of Class A Common Stock issuable upon
such conversion, issued in such name or names as such holder may direct. In the
case of a conversion under Section 6(A), such conversion shall be deemed to have
been made immediately prior to the close of business on the date of the
surrender of the certificate representing shares of Class B Common Stock. In the
case of a conversion under Section 6(B), such conversion shall be deemed to have
been made on the date that the beneficial ownership of such share has changed as
set forth in Section 6(B). In the case of a conversion under Section 6(C), such
conversion shall be deemed to have occurred on the record date for such annual
meeting on which the condition set forth in Section 6(C) is determined by the
Secretary of the Corporation to have occurred. Upon the date any conversion
under Section 6(A) is made, all rights of the holder of such shares as such
holder shall cease, and the person or persons in whose name or names the
certificate or certificates representing the shares of Class A Common Stock are
to be issued shall be treated for all purposes as having become the record
holder or holders of such shares of Class A Common Stock; provided, however,
that any such surrender and payment on any date when the stock transfer books of
the Corporation shall be closed shall constitute the person or persons in whose
name or names the certificate or certificates representing shares of Class A
Common Stock are to be issued as the record holder or holders thereof for all
purposes immediately prior to the close of business on the next succeeding day
on which stock transfer books are open. Upon the date any conversion under
Section 6(B) is made, all rights of the holder of such share as such holder
shall cease, and the new beneficial owner or owners of such shares shall be
treated for all purposes as having become the record holder or holders of such
shares of Class A Common Stock. Upon the date any conversion under Section 6(C)
is made, all rights of the holders of shares of Class B Common Stock as holders
of Class B Common Stock shall cease, and such holders shall be treated for all
purposes as having become the record holders of such shares of Class A Common
Stock at such time.
(E). The Corporation covenants that it will at all times reserve and
keep available, solely for the purpose of issue upon conversion of the
outstanding shares of Class B Common Stock, such number of shares of Class A
Common Stock as shall be issuable upon the conversion of all such outstanding
shares of Class B Common Stock, provided that nothing contained herein shall be
construed to preclude the Corporation from satisfying its obligations in respect
of the conversion of the outstanding shares of Class B Common Stock by delivery
of purchased shares of Class A Common Stock that are held in the treasury of the
Corporation. The Corporation covenants that if any shares of Class A Common
Stock required to be reserved for purposes of conversion hereunder require
registration with or approval of any governmental authority under any federal or
state law before such shares of Class A Common Stock may be issued upon
conversion, the Corporation will cause such shares to be duly registered or
approved, as the case may be. The Corporation will endeavor to list the shares
of Class A Common Stock required to be delivered upon conversion prior to such
delivery upon each national securities exchange or automated quotation system
upon which the outstanding Class A Common
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Stock is listed at the time of such delivery. The Corporation covenants that all
shares of Class A Common Stock that shall be issued upon conversion of the
shares of fully paid and nonassessable Class B Common Stock will, upon issue, be
fully paid and nonassessable.
(F). The issuance of certificates for shares of Class A Common Stock
upon conversion of shares of Class B Common Stock shall be made without charge
for any stamp or other similar tax in respect of such issuance. However, if any
such certificate is to be issued in a name other than that of the holder of the
share or shares of Class B Common Stock converted, then the person or persons
requesting the issuance thereof shall pay to the Corporation the amount of any
tax that may be payable in respect of any transfer involved in such issuance or
shall establish to the satisfaction of the Corporation that such tax has been
paid.
SECTION 7. Preferred Stock. The Board of Directors of the Corporation
may by resolution authorize the issuance of shares of Preferred Stock from time
to time in one or more series. Shares of Preferred Stock that are redeemed,
purchased or otherwise acquired by the Corporation may be reissued except as
otherwise provided by law. The Board of Directors is hereby authorized to fix or
alter the designations, powers and preferences, and relative, participating,
optional or other rights, if any, and qualifications, limitations or
restrictions thereof, including, without limitation, dividend rights (and
whether dividends are cumulative), conversion rights, if any, voting rights
(including the number of votes, if any, per share, as well as the number of
members, if any, of the Board of Directors or the percentage of members, if any,
of the Board of Directors each class or series of Preferred Stock may be
entitled to elect), rights and terms of redemption (including sinking fund
provisions, if any), redemption price and liquidation preferences of any wholly
unissued series of Preferred Stock, and the number of shares constituting any
such series and the designation thereof, and to increase or decrease the number
of shares of any such series subsequent to the issuance of shares of such
series, but not below the number of shares of such series then outstanding.
SECTION 8. Distributions Upon Liquidation. In the event of any
dissolution, liquidation or winding up of the affairs of the Corporation in
accordance with applicable law, whether voluntary or involuntary, after payment
or provision for payment of the debts and other liabilities of the Corporation,
the holders of each series of Preferred Stock, if any, shall be entitled to
receive, out of the net assets of the Corporation, an amount for each share of
such series of Preferred Stock equal to the amount fixed and determined by the
Board of Directors in the resolution or resolutions creating such series and
providing for the issuance of such shares, plus an amount equal to all dividends
accrued and unpaid on shares of such series to the date fixed for distribution,
and no more, before any of the assets of the Corporation shall be distributed or
paid over to the holders of Common Stock. After payment in full of said amounts
to the holders of Preferred Stock of all series, the remaining assets and funds
of the Corporation shall be divided among and paid to the holders of shares of
Common Stock (and any series of Preferred Stock having rights to participate
with the holders of Common Stock in any
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such distribution) on a pro rata basis in accordance with their respective
interests. If, upon such dissolution, liquidation or winding up, the assets of
the Corporation distributable as aforesaid among the holders of Preferred Stock
of all series shall be insufficient to permit full payment to them of said
preferential amounts, then such assets shall be distributed ratably among such
holders of Preferred Stock in proportion to the respective total amounts that
they shall be entitled to receive as provided in this Section 8 (unless such
series are, by their terms, entitled to different distribution preferences).
ARTICLE V
MEETINGS OF STOCKHOLDERS
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in Delaware General Corporation Law) 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 Bylaws of the Corporation.
ARTICLE VI
NUMBER AND ELECTION OF DIRECTORS
The number of directors of the Corporation shall be fixed from time to
time by or in the manner provided in the bylaws of the Corporation or amendment
thereof duly adopted by the Board of Directors or by the stockholders of the
Corporation. Elections of directors need not be by written ballot unless the
bylaws of the Corporation shall so provide.
ARTICLE VII
STOCKHOLDER ACTION BY WRITTEN CONSENT
Any election of directors or other action by the stockholders of the
Corporation may be effected at an annual or special meeting of stockholders or,
if the Board of Directors has approved such action, by written consent in lieu
of such a meeting. The record date with respect to the determination of
stockholders entitled to consent in writing to any action approved by the Board
of Directors shall be the first date on which a signed written consent setting
forth the action to be taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office in 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. Any
action by written consent shall be deemed effective, provided the Board of
Directors has earlier approved such action, as of the day on which written
consents signed by stockholders having the minimum number of votes that would be
necessary to authorize such action at a meeting at which all shares entitled to
vote thereon were present and voted are delivered to the Corporation by delivery
to its registered office in Delaware, its principal place of
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business, or an officer or agent of the Corporation having custody of the books
in which proceedings of meetings of stockholders are recorded. Any delivery
under this Article VII to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested.
ARTICLE VIII
LIABILITY AND INDEMNIFICATION
To the fullest extent permitted by the Delaware General Corporation Law,
as the same exists or may hereafter be amended (provided that the effect of any
such amendment shall be prospective only) (the "Delaware Law"), a director of
the Corporation shall not be liable to the Corporation or its stockholders for
monetary damages for breach of his or her fiduciary duty as a director. The
Corporation shall indemnify, in the manner and to the fullest extent permitted
by the Delaware Law (but in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than permitted prior thereto), any person (or the estate of any person)
who is or was a party to, or is threatened to be made a party to, any
threatened, pending or completed action, suit or proceeding, whether or not by
or in the right of the Corporation, and whether civil, criminal, administrative,
investigative or otherwise, 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 or officer of another corporation, partnership,
joint venture, trust or other enterprise. The Corporation may, to the fullest
extent permitted by the Delaware Law, purchase and maintain insurance on behalf
of any such person against any liability which may be asserted against such
person. The Corporation may create a trust fund, grant a security interest or
use other means (including without limitation a letter of credit) to ensure the
payment of such sums as may become necessary or desirable to effect the
indemnification as provided herein. To the fullest extent permitted by the
Delaware Law, the indemnification provided herein shall include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement and
any such expenses 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 the person seeking indemnification to repay such amounts if it
is ultimately determined that he or she is not entitled to be indemnified. The
indemnification provided herein shall not be deemed to limit the right of the
Corporation to indemnify any other person for any such expenses to the fullest
extent permitted by the Delaware Law, nor shall it be deemed exclusive of any
other rights to which any person seeking indemnification from the Corporation
may be entitled under any agreement, the Corporation's Bylaws, vote of
stockholders or disinterested directors, or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office. The Corporation may, but only to the extent that the Board of
Directors may (but shall not be obligated to) authorize from time to time, grant
rights to indemnification and to the advancement of expenses to any employee or
agent of the Corporation to the fullest extent of the provisions of this Article
VIII as
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they apply to the indemnification and advancement of expenses of directors and
officers of the Corporation.
ARTICLE IX
AMENDMENT OF CORPORATE DOCUMENTS
SECTION 1. Certificate of Incorporation. The Corporation reserves the
right to alter, amend, repeal or rescind any provision contained in this
Certificate of Incorporation in any manner now or hereafter prescribed by law,
and all rights conferred on stockholders herein are granted subject to this
reservation.
SECTION 2. Bylaws. In furtherance and not in limitation of the powers
conferred by the Delaware Law, the Board of Directors shall have the power to
make, alter, amend, repeal or rescind the Bylaws of the Corporation, subject to
the power of the stockholders to alter, amend, repeal or rescind any Bylaw made
by the Board of Directors.
ARTICLE X
CREDITOR COMPROMISE OR ARRANGEMENT
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
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 this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this 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 this 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 this 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 this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this 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 this Corporation, as the case may be,
and also on this Corporation.
ARTICLE XI
INCORPORATOR
The name and mailing address of the incorporator of the Corporation is:
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THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation to do business both within and without the
State of Delaware, and in pursuance of the Delaware General Corporation Law,
does make and file this Certificate.
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