EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
NBH, INC.
NBH, Inc., a corporation organized and existing under the laws of the State
of Delaware (the "Corporation"), hereby certifies as follows:
1. This Restated Certificate of Incorporation has been duly adopted in
accordance with the provisions of Sections 241 and 245 of the General
Corporation Law of the State of Delaware by the Board of Directors of the
Corporation without a vote of the stockholders of the Corporation. The
Corporation has not received any payment for any of its stock.
2. The text of the Restated Certificate of Incorporation as heretofore
amended or supplemented is hereby restated to read in its entirety as follows:
FIRST: The name of the Corporation is NBH, Inc.
SECOND: The registered office of the Corporation in the State of Delaware
is located at No. 1209 Orange Street in the City of Wilmington, County of New
Castle. The name and address of its registered agent is The Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware
19801.
THIRD: 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 the State of Delaware.
FOURTH: The total number of shares of all classes of stock that the
Corporation is authorized to issue is 57,650,000, of which 1,650,000 shares
shall be Class A Common Stock, 55,000,000 shall be Class B Common Stock, and
1,000,000 shares shall be Preferred Stock. Shares of Preferred Stock shall have
no par value. Each share of Class A Common Stock shall have a par value of
$5.00. Each share of Class B Common Stock shall have a par value of $0.1667.
The Class A Common Stock and the Class B Common Stock shall sometimes
hereinafter be referred to collectively as the "Common Stock."
1. Preferred Stock. The Board of Directors is authorized, subject to
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limitations prescribed by law and the limitation on authorized Preferred
Stock stated above in this Article FOURTH, to provide for the issuance of
shares of Preferred Stock in one or more 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 any
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 of Directors with respect to each series of
Preferred Stock 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 class voting rights provided by law, and, if so, the terms of such
voting rights;
(d) Whether that series shall have conversion privileges, and, if
so, the terms and conditions of such conversion, including provision
for adjustment of the conversion 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
Corporation, and the relative rights of priority, if any, of payment
of shares of that series; and
(h) Any other absolute or relative rights, preferences or
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 or
declared and set apart for payment on shares of Common Stock with respect
to the same dividend period.
The Preferred Stock shall be preferred over the Common Stock as to
assets, and in the event of any liquidation or dissolution or winding up of
the Corporation (whether voluntary or involuntary), the holders of the
Preferred Stock shall be entitled to receive out of the assets of the
Corporation available for distribution to its shareholders, whether from
capital, surplus or earnings, the amount specified for each particular
series, together with any dividends accrued or in arrears, for every share
of their holdings of Preferred Stock before any distribution of the assets
shall be made to the holders of Common Stock, and shall be entitled to no
other or further distribution. If upon any voluntary or
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involuntary liquidation, dissolution or winding up of the Corporation, the
assets available for distribution to holders of shares of Preferred Stock
of all series shall be insufficient to pay such holders the full
preferential amount to which they are entitled, then such assets shall be
distributed ratably among the shares of all series of Preferred Stock in
accordance with the respective preferential amounts (including unpaid
cumulative dividends, if any, as provided by the Board of Directors)
payable with respect thereto.
Neither the consolidation nor merger of the Corporation with or into
any other corporation, nor any sale, lease, exchange or conveyance of all
or any part of the property, assets or business of the Corporation shall be
deemed to be a liquidation, dissolution or winding up of the Corporation
within the meaning of this Article FOURTH.
2. Class A Common Stock and Class B Common Stock. The powers,
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preferences, and rights of the Class A Common Stock and Class B Common
Stock, and the qualifications, limitations and restrictions thereof, are
fixed as follows:
A. Issuance; Payment and Assessability. The shares of Class A
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Common Stock and Class B Common Stock may be issued by the Corporation
from time to time for such consideration, having a value not less than
par value, as may be fixed from time to time by the Board of Directors
of the Corporation. Any and all shares of Class A Common Stock and
Class B Common Stock so issued for which the consideration so fixed
has been paid or delivered to the Corporation shall be deemed fully
paid stock and shall not be liable to any further call or assessment
thereon, and the holders of said shares shall not be liable for any
further payments in respect of such shares.
B. Dividends; Distributions; Stock Splits. Holders of Class A
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Common Stock shall be entitled to such dividends or other
distributions (including liquidating distributions) per share, whether
in cash, in kind, in stock (including a stock split) or by any other
means, when and as may be declared by the Board of Directors of the
Corporation out of assets or funds of the Corporation legally
available therefor. Holders of Class B Common Stock shall be entitled
to dividends or other distributions (including liquidating
distributions) per share, whether in cash, in kind, in stock
(including a stock split), or by any other means, equal to one-
thirtieth (1/30th) of the amount per share declared by the Board of
Directors of the Corporation for each share of Class A Common Stock,
and such dividends or distributions with respect to the Class B Common
Stock shall be paid in the same form and at the same time as dividends
or distributions with respect to the Class A Common Stock; provided,
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however, that, in the event of a stock split or stock dividend,
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holders of Class A Common Stock shall receive shares of Class A Common
Stock and holders of Class B Common Stock shall receive shares of
Class B Common Stock, unless otherwise specifically designated by
resolution of the Board of Directors.
C. Voting. Each holder of Class A Common Stock shall be
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entitled to one (1) vote for each share of Class A Common Stock
standing in his name on the
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books of the Corporation. Each holder of Class B Common Stock shall be
entitled to one-two-hundredth (1/200th) of one vote for eachshare of
Class B Common Stock standing in his name on the books of the
Corporation. Unless otherwise required by the Delaware General
Corporation Law, the Class A Common Stock and the Class B Common Stock
shall vote as a single class with respect to all matters submitted to
a vote of shareholders of the Corporation.
D. Conversion. Each share of Class A Common Stock may, at the
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option of the holder of record thereof and without payment of any
consideration, be converted into thirty (30) fully paid and
nonassessable shares of Class B Common Stock. Any such conversion may
be effected by any holder of Class A Common Stock surrendering such
holder's certificate or certificates for the Class A Common Stock to
be converted, duly endorsed, at the office of the Corporation or any
transfer agent for the Class A Common Stock, together with a written
notice to the Corporation that such holder elects to convert all or a
specified whole number of shares of Class A Common Stock and stating
the name or names in which such holder desires the certificate or
certificates for the Class B Common Stock to be issued. If so
required by the Corporation, any certificate for shares surrendered
for conversion shall be accompanied by instruments of transfer, in
form satisfactory to the Corporation, duly executed by the holder of
such shares or the duly authorized representative of such holder.
Promptly thereafter, the Corporation shall issue and deliver or cause
to be issued and delivered to such holder or such holder's nominee or
nominees, a certificate or certificates for the number of shares of
Class B Common Stock to which such holder shall be entitled as herein
provided. Such conversion shall be deemed to have been made at the
close of business on the date of receipt by the Corporation or any
such transfer agent of such certificate or certificates for Class A
Common Stock and such notice, and the person or persons entitled to
receive the Class B Common Stock issuable on such conversion shall be
treated for all purposes as the record holder or holders of such Class
B Common Stock on that date.
The issuance of certificates for shares of Class B Common Stock
issuable upon the conversion of shares of Class A Common Stock shall be
made without charge to the converting holder; provided, however, that if
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any certificate is to be issued in a name other than that of the record
holder of the shares being converted, the Corporation shall not be required
to issue or deliver any such certificate unless and until the person
requesting the issuance thereof shall have paid to the Corporation the
amount of any tax that may be payable with respect to any transfer involved
in the issuance and delivery of such certificate or has established to the
satisfaction of the Corporation that such tax has been paid.
The Corporation covenants that it will at all times reserve and keep
available, solely for the purpose of issuance upon conversion of the
outstanding shares of Class A
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Common Stock, a number of shares of Class B Common Stock equal to thirty
(30) times the number of shares of Class A Common Stock then outstanding,
in addition to the number of shares of Class B Common Stock then
outstanding; provided, however, that nothing herein shall be construed to
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preclude the Corporation from satisfying its obligation to issue shares of
Class B Common Stock upon conversion of Class A Common Stock by delivery of
purchased or redeemed shares of Class B Common Stock which are held in the
treasury of the Corporation.
FIFTH: The following additional provisions are in furtherance and not
limitation of any power, privilege or purpose conferred or permitted by law,
this certificate or the by-laws:
1. Except as may be otherwise expressly required by law, or the provisions
of this Certificate or the by-laws, the Board of Directors of the
Corporation shall have and may exercise, transact, manage, promote and
carry on all of the powers, authorities, businesses, objectives and
purposes of the Corporation.
2. The election of directors need not be by ballot unless the by-laws so
require.
3. The Board of Directors of the Corporation is authorized and empowered to
make, alter, amend and repeal the by-laws of the Corporation in any
manner not inconsistent with the laws of the State of Delaware.
4. The Board of Directors may fix from time to time the compensation of its
members.
5. The Corporation may indemnify or insure or both indemnify and insure any
person who is or was a director, officer, employee or agent of the
Corporation or, at its request, of another corporation, partnership,
joint venture, trust or other enterprise, to the full extent provided or
permitted by its by-laws, as from time to time amended, and to the full
extent to which those indemnified may now or hereafter be entitled under
any law, agreement, vote of stockholders or disinterested directors or
otherwise.
SIXTH: No contract or other transaction between the Corporation and any
other corporation, and no act of the Corporation shall in any way be affected or
invalidated by the fact that any of the directors of the Corporation are
pecuniarily or otherwise interested in or are directors or officers of such
other corporation. Any director individually, or any firm of which such
director may be a member, may be a party to or may be pecuniarily or otherwise
interested in any contract or transaction of the Corporation, provided that the
fact that he or such firm is so interested shall be disclosed or shall have been
known to the Board of Directors, or a majority thereof; and any director of the
Corporation, who is also a director or officer of such other corporation, or is
so interested, may be counted in determining the existence of a quorum at any
meeting of the Board of Directors of the Corporation which shall authorize such
contract or transaction, and may vote thereat to authorize any such contract or
transaction, with like force and effect, as if he were not such director or
officer of such other corporation or not so interested,
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SEVENTH: Any action which would otherwise be required or permitted to be
taken by the vote of stockholders at a meeting thereof may instead be taken by
the written consent of stockholders who would be entitled to vote upon such
action if such a meeting were held having not less than the percentage of the
total number of votes which would have been required to take such action at such
a meeting.
EIGHTH: No director of this Corporation shall have personal liability to
the Corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director. The foregoing provision shall not eliminate or
limit the liability of a director (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 General Corporation Law of the State of
Delaware or (iv) for any transaction from which the director derived an improper
personal benefit. In the event that the General Corporation Law of the State of
Delaware is amended after approval of this Article by the stockholders so as to
authorize corporate action further eliminating or limiting the liability of
directors, the liability of a director of this Corporation shall thereupon be
eliminated or limited to the fullest extent permitted by the General Corporation
Law of the State of Delaware, as so amended from time to time. The provisions
of this Article shall not be deemed to limit or preclude indemnification of a
director by the Corporation for any liability of a director which has not been
eliminated by the provisions of this Article.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation has been
executed by the Corporation this 10th day of August, 1998.
NBH, Inc.
By:/s/ Marc D. Hamburg
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Marc D. Hamburg
Vice President
Attest:
/s/ Jerry W. Hufton
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Jerry W. Hufton
Assistant Secretary
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