RESTATED
CERTIFICATE OF INCORPORATION
OF
TEMTEX INDUSTRIES, INC.
TEMTEX INDUSTRIES, INC. was originally incorporated under the
name MONNFIELD INDUSTRIES, INC., and its original certificate of
incorporation was filed with the Secretary of State of Delaware
on August 18, 1969. The following Restated Certificate of
Incorporation has been duly adopted by the stockholders of TEMTEX
INDUSTRIES, INC. in accordance with the provisions of Section 242
and 245(c) of the General Corporation Law of Delaware and
restates, integrates and further amends the provisions of the
corporation's certificate of incorporation as heretofore amended
or supplemented.
FIRST. The name of the corporation is TEMTEX INDUSTRIES,
INC.
SECOND. The address of its registered office in the State of
Delaware is Corporation Trust Center, No. 1209 Orange Street, in
the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust
Company.
THIRD. The nature of the business of the corporation is, or
the objects or purposes to be transacted, promoted or carried on
by it are:
1. To engage in any lawful act or activity for which
corporations may be organized under the General
Corporation Law of Delaware;
2. To manufacture, purchase or otherwise acquire, invest
in, own, mortgage, pledge, sell, assign and transfer or
otherwise dispose of, trade, deal in and deal with
goods, wares, and merchandise and personal property of
every class and description;
3. To acquire, and pay for in cash, stock or bonds of this
corporation or otherwise, the good will, rights, assets
and properties, and to undertake and assume the whole or
any part of the obligations or liabilities of any
person, firm, association, or corporation;
4. To acquire, hold, use, sell, assign, lease, grant
licenses in respect of, mortgage or otherwise dispose of
letters patent of the United States or any foreign
country, patent rights, licenses and privileges,
inventions, improvements and processes, copyrights,
trademarks and trade names, relating to or useful in
connection with any business of this corporation;
5. To acquire by purchase, subscription or otherwise, and
to receive, hold, own, guarantee, sell, assign,
exchange, transfer, mortgage, pledge or otherwise
dispose of
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or deal in and with any of the shares of capital stock,
or any voting trust certificates in respect of the
capital stock, scrip, warrants, bonds, debentures,
notes, trust receipts, and other securities,
obligations, choses in action and evidences of
indebtedness or interest issued or created by any
corporation, joint stock company, syndicates,
associations, firms, trusts or other persons, public or
private, or by the government of the United States of
America, or by any foreign government, or by any state,
territory, province, municipality or other political
subdivision, or by any governmental agency, and as owner
thereof to possess and exercise all the rights, powers
and privileges of ownership, including the right to
execute the consents and vote thereon, and to do any and
all acts and things necessary or advisable for the
preservation, protection, improvement and enhancement in
value thereof;
6. To borrow or raise moneys for any of the purposes of
the corporation and, from time to time without limit as
to amount, to draw, make, accept, endorse, execute and
issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures and other negotiable or non-
negotiable instruments and evidences of indebtedness,
and to secure the payment of any thereof and of the
interest thereon by mortgage upon or pledge, conveyance
or assignment in trust of the whole or any part of the
property of the corporation, whether at the time owned
or thereafter acquired, and to sell, pledge or otherwise
dispose of such bonds or other obligations of the
corporation for its corporate purposes;
7. To purchase, receive, take by grant, gift, devise,
bequest, or otherwise, lease or otherwise acquire, own,
hold, improve, employ, use or otherwise deal in and with
real or personal property, or any interest therein,
wherever situated, and to sell, assign, lease, exchange,
transfer or otherwise dispose of, or mortgage or pledge,
all or any of the corporation's property and assets, or
any interest therein, wherever situated;
8. To enter into, make, perform and carry out contracts of
every kind for any lawful purpose without limit as to
amount, with any person, firm, association or
corporation, municipality, county, parish, state,
territory, government (foreign or domestic) or other
municipal or governmental subdivision;
9. To enter into any joint venture, partnership, limited
or general, and as limited or general partner or both,
and to enter into any other arrangement for sharing
profits, union of interests, unitization or farm-out
agreements, reciprocal concession, or cooperation, with
any corporation, association, partnership, syndicate,
entity, person or governmental, municipal or public
authority, domestic or foreign, in the carrying on of
any business which the corporation is authorized to
carry on or any business or transaction deemed
necessary, convenient or incidental to carrying out any
of the purposes of the corporation;
10. To engage in research and development and to perform
engineering and scientific services of every character
and description;
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11. To organize or cause to be organized under the laws of
the State of Delaware, or any other state in the United
States of America, or of the District of Columbia, or of
any territory, dependency, colony or possession of the
United States of America, or of any foreign country, a
corporation or corporations for the purpose of
transacting, promoting or carrying on any or all of the
objects or purposes for which this corporation is
organized, and to cause any such corporation to be
dissolved, woundup, liquidated, merged or consolidated;
12. To engage in any mercantile, manufacturing or trading
business and to manufacture, buy, process sell,
distribute and generally deal in and with goods, wares
and merchandise and other property of every kind and
description;
13. In general, to possess and exercise all of the powers
and privileges granted by the General
Corporation Law of Delaware or by any other law of
Delaware, or by this certificate of incorporation,
together with any powers incidental thereto, so far as
such powers or privileges are necessary or convenient to
the conduct, promotion or attainment of the business or
purposes of the corporation;
14. The business and purposes specified in the foregoing
clauses shall, except where otherwise expressed, be in
nowise limited or restricted by reference to, or
inference from, the terms of any other clause in this
certificate of incorporation, but the business and
purposes specified in each of the foregoing clauses of
this Article shall be regarded as independent business
and purposes.
FOURTH. The total number of shares of all classes of stock
which the corporation shall have authority to issue is Eleven
Million (11,000,000), of which Ten Million (10,000,000) shares of
the par value of Twenty Cents ($0.20) each are to be of a class
designated "Common Stock", and One Million (1,000,000) shares of
the par value of One Dollar ($1.00) each are to be of a class
designated "Series Preferred Stock". The Series Preferred Stock
may be issued from time to time as a class without series, or if
so determined by the Board of Directors of this corporation,
either in whole or in part in one or more series. There is
hereby expressly vested in the Board of Directors of this
corporation authority to fix and determine by resolution the
voting powers, designations, preferences and relative,
participating, optional or other rights, if any, and the
qualifications, limitations, or restrictions thereof, if any,
including specifically but not limited to the dividend rights,
conversion rights, redemption rights and liquidation preferences,
if any, of any wholly unissued series of Series Preferred Stock
(or of the entire class of Series Preferred Stock if none of such
shares has been issued), the number of shares constituting any
such series and the terms and conditions of the issue thereof, a
certificate setting forth a copy of each such resolution or
resolutions and the number of shares of stock of each such class
or series to be executed, acknowledged,
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filed and recorded and to become effective in accordance with the
provisions of the Delaware General Corporation Law. Unless
otherwise provided in any such resolution or resolutions, the
number of shares of stock of any such class or series so set
forth in such resolution or resolutions may thereafter be
increased or decreased (but not below the number of shares
thereof then outstanding), by a certificate likewise executed,
acknowledged, filed and recorded setting forth a statement that a
specified increase or decrease therein had been authorized and
directed by a resolution or resolutions likewise adopted by the
Board of Directors of this corporation. In case the number of
shares shall be decreased, the number of shares so specified in
the certificate shall resume the status which they had prior to
the adoption of the first resolution or resolutions.
No stockholder of this corporation shall by reason of his
holding shares of any class have any pre-emptive or preferential
right to purchase or subscribe to any shares of any class of this
corporation, now or hereafter to be authorized, or any notes,
debentures, bonds, or other securities convertible into or
carrying options or warrants to purchase shares of any class, now
or hereafter to be authorized, whether or not the issuance of any
such shares, or such notes, debentures, bonds or other
securities, would adversely affect the dividend or voting rights
of such stockholders, other than such rights, if any, as the
Board of Directors in its discretion may, from time to time,
grant, and at such price as the Board of Directors in its
discretion may fix; and the Board of Directors may issue shares
of any class of this corporation, or any notes, debentures,
bonds, or other securities convertible into or carrying options
or warrants to purchase shares of any class, without offering any
such shares of any class, either in whole or in part, to the
existing stockholders of any class.
FIFTH. The corporation is to have perpetual existence.
SIXTH. In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly
authorized:
1. To make, alter or repeal the bylaws of the corporation;
2. To authorize and cause to be executed mortgages and
liens upon the real and personal property of the
corporation;
3. To set apart out of any of the funds of the corporation
available for dividends a reserve or reserves for any
proper purpose, and to abolish any such reserve in the
manner in which it was created;
4. By a majority of the whole board, to designate one or
more committees, each committee to consist of two or
more of the directors of the corporation; the board may
designate one or more directors as alternate members of
any committee, who may replace any absent or
disqualified member at any meeting of the committee; any
such committee, to the extent provided in the resolution
or in the bylaws of the corporation, shall have and may
exercise the powers of the Board of Directors in the
management of the business and affairs of the
corporation, and may authorize the seal of the
corporation to be affixed to all papers which may
require it; provided, however, the bylaws may provide
that in the absence or disqualification of any member of
such committee or committees, the member or members
thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board of
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Directors to act at the meeting in the place of any such
absent or disqualified member;
5. When and as authorized by the affirmative vote of the
holders of a majority of the stock issued and
outstanding having voting power given at a stockholders
meeting duly called upon such notice as is required by
statute, or when authorized by the written consent of
the holders of a majority of the voting stock issued and
outstanding, to sell, lease or exchange all or
substantially all of the property and assets of the
corporation, including its good will and its corporate
franchises, upon such terms and conditions and for such
consideration, which may consist in whole or in part of
money or property, including shares of stock in, and/or
other securities of, any other corporation or
corporations, as its Board of Directors shall deem
expedient and for the best interests of the corporation.
SEVENTH. No contract or other transaction between the
corporation and any other corporation and no other act of this
corporation with relation to any other corporation shall, in the
absence of fraud, in any way be invalidated or otherwise affected
by the fact that any one or more of the directors of the
corporation are pecuniarily or otherwise interested in, or are
directors or officers of, such other corporations. Any director
of the corporation individually, or any firm or association of
which any 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
individually or as a member of such firm or association is such a
party or so interested shall be disclosed or shall have been
known to the Board of Directors or a majority of such members
thereof as shall be present at any meeting of the Board of
Directors at which action upon such contract or transaction shall
be taken; and any director of the corporation who is also a
director or officer of such other corporation or who is such a
party or so interested as may be counted in determining the
existence of a quorum at any meeting of the Board of Directors
which shall authorize any such contract or corporate transaction,
and may vote thereat t0 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. Any director of the corporation may vote upon any
contract or any other transaction between the corporation and any
subsidiary or affiliated corporation without regard to the fact
that he is also a director of such subsidiary or affiliated
corporation.
Any contract, transaction, act of the corporation or of the
directors, which shall be ratified at any annual meeting of the
stockholders of the corporation, or at any special meeting called
for such purpose, shall, insofar as permitted by law or by the
certificate of incorporation of the corporation, be as valid and
as binding as though ratified by every stockholder of the
corporation; provided, however, that any failure of the
stockholders to approve or ratify any such contract, transaction
or act, when and if submitted, shall not be deemed in any way to
invalidate the same or deprive the corporation, its directors,
officers or employees, of its or their right to proceed with such
contract, transaction or act.
EIGHTH. Each person who was or is made a party or is
threatened to be made a party to or is involved in any
threatened, pending or completed action, suit or proceeding,
whether civil,
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criminal, administrative or investigative (a "proceeding"), by
reason of the fact that he or a person for whom he is the legal
representative 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, trustee, or agent
of another corporation or of a partnership, joint venture, trust
or other enterprise (including service with respect to employee
benefit plans) whether the basis of such proceeding is alleged
action in his official capacity as a director, officer, employee
or agent, or in any other capacity while serving as a director,
officer, employee or agent, shall be indemnified and held
harmless by the corporation to the fullest extent permitted by
the Delaware General Corporation Law against all expenses,
liability and loss (including attorneys' fees, judgments, fines,
special excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such person in
connection therewith. Such right shall be a contract right and
shall include the right to require advancement by the corporation
of attorneys' fees and other expenses incurred in defending any
such proceeding in advance of its final disposition; provided,
however, that the payment of such expenses incurred by a director
or officer of the corporation in his capacity as a director or
officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including,
without limitation, service to an employee benefit plan) in
advance of the final disposition of such proceeding, shall be
made by the corporation only upon delivery to the corporation of
an undertaking, by or on behalf of such director or officer, to
repay all amounts so advanced if it should be determined
ultimately that such director or officer is not entitled to be
indemnified under this section or otherwise.
The indemnification and advancement of expenses provided by
this Article EIGHTH shall not be deemed exclusive of any other
rights to which a person seeking indemnification may be entitled
under any bylaw, 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, and shall 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.
The corporation shall have power to 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, trustee or agent of another corporation, partnership,
joint venture, trust or other enterprise (including service with
respect to employee benefit plans) 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 this Article EIGHTH.
NINTH. 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 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
provisions of Section 279 of Title 8
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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.
TENTH. 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 the statutes) 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.
Elections of directors need not be by written ballot unless the
bylaws of the corporation shall so provide.
ELEVENTH. No director of this corporation shall be
personally liable to the corporation or its shareholders for
monetary damages for breach of fiduciary duty as a director,
except for liability (i) for breach of the director's duty of
loyalty to the corporation or its shareholders, (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. If the General Corporation Law of the State of
Delaware hereafter is amended to authorize the further limitation
of the liability of directors, then the liability of a director
of this corporation, in addition to the limitation on personal
liability provided herein, shall be limited to the fullest extent
permitted by the amended General Corporation Law of the State
of Delaware. Any repeal or modification of this Article ELEVENTH
by the shareholders of this corporation shall be prospective
only, and shall not adversely affect any limitation on the
personal liability of a director of the corporation existing at
the time of such repeal or modification.
THE UNDERSIGNED, being the President of TEMTEX INDUSTRIES,
INC. does hereby make this Restated Certificate of Incorporation
declaring and certifying that the facts herein stated are true,
and accordingly has hereunto set his hand this 18 day of
February, 1987.
_________________________
E. R. Buford, President
TEMTEX INDUSTRIES, INC.
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ATTEST:
__________________________
Secretary
TEMTEX INDUSTRIES, INC.
THE STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME, the undersigned, a Notary Public in and for said
County and State, on this day personally appeared E. R. BUFORD,
known to me to be the person and officer whose name is subscribed
to the foregoing instrument and acknowledged to me that the same
was the act of the said TEMTEX INDUSTRIES, INC., a Delaware
corporation, and that he executed the same as the act of such
corporation for the purposes and considerations therein
expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 18th day of
February, 1987.
___________________________________
Notary Public in and for
the State Texas
Gay Sherbert
Notary's Name (Printed)
My Commission Expires: 9/20/88
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