RESTATED
CERTIFICATE OF INCORPORATION
OF
CONSOLIDATED HYDRO, INC.
1. The existing name of the Corporation is Consolidated Hydro, Inc.
Effective upon the filing of this Restated Certificate of Incorporation, the new
name of the Corporation will be [CHI Energy, Inc.].
2. The original Certificate of Incorporation was filed with the Secretary
of State of the State of Delaware on July 18, 1985 under the name Consolidated
Hydro, Inc. and was amended by Certificates of Amendment filed with the
Secretary of State on August 23, 1985, December 26, 1985 and January 30, 1987.
In addition, a Restated Certificate of Incorporation was filed with the
Secretary of State on April 29, 1992 and was amended by Certificates of
Amendment filed with the Secretary of State on June 17, 1993 and December 12,
1996.
3. This Restated Certificate of Incorporation, which restates and further
amends the Restated Certificate of Incorporation as currently in effect, is made
and filed pursuant to the order of the United States Bankruptcy Court (the
"Bankruptcy Court"), District of Delaware, (_______________________________) No.
[_____________], and the Plan of Reorganization confirmed therein (the "Plan of
Reorganization") in connection with the reorganization of the Corporation under
Title 11 of the United States Code and in accordance with Sections 103 and 303
of the General Corporation Law of the State of Delaware.
4. This Restated Certificate of Incorporation shall become effective at
9:00 a.m. on ___________, 1997.
5. The Corporation's Restated Certificate of Incorporation, as previously
amended and as currently in effect, is hereby restated and further amended so as
to read in its entirety as follows:
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FIRST: The name of the Corporation is:
[CHI Energy, Inc.]
SECOND: The address of the Corporation's registered office in the
State of Delaware is 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 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, as from time to time amended.
FOURTH: (a) The total number of shares of capital stock which the
Corporation shall have authority to issue is 30 million shares. Of these shares,
(i) 20 million shares shall be shares of Common Stock, having a par value of
$0.01 per share (the "Common Stock"), and which shares of Common Stock shall be
divided into two classes, ____ shares of which shall be shares of Class A Common
Stock ("Class A Common Stock") and ____ shares of which shall be shares of Class
B Common Stock ("Class B Common Stock"), and (ii) 10 million shares shall be
shares of Preferred Stock, having a par value of $0.01 per share (the "Preferred
Stock").
Except as otherwise provided by applicable law or by this Restated
Certificate of Incorporation, the shares of capital stock of the Corporation,
regardless of class, may be issued by the Corporation from time to time in such
amounts, for such lawful consideration and for such corporate purpose(s) as the
Board of Directors may from time to time determine.
FIFTH: The powers, preferences and rights, and the qualifications,
limitations and restrictions of the Common Stock are as follows:
(a) Voting. With respect to all matters on which holders of Common
Stock shall be entitled to vote, except as otherwise required by applicable law,
the holders of record of outstanding shares of Class A Common Stock and the
holders of record of outstanding shares of Class B Common Stock shall vote
(together with the holders of any outstanding shares of Preferred Stock entitled
to vote with the Class A Common Stock and the Class B Common Stock) without
regard to class, and each holder of a share of Class
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A Common Stock shall be entitled to cast one vote in person or by proxy in
respect of each share of Class A Common Stock held in such holder's name, and
each holder of a share of Class B Common Stock shall be entitled to cast 1/100th
of one vote in person or by proxy in respect of each share of Class B Common
Stock held in such holder's name.
(b) Dividends. Subject to the rights of the holders of any series of
outstanding Preferred Stock, and subject to applicable law, holders of shares of
Class A Common Stock and holders of shares of Class B Common Stock shall be
entitled to receive such dividends and other distributions as may be declared by
the Board of Directors from time to time out of assets or funds of the
Corporation legally available therefor; provided that if a dividend or other
distribution in respect of any Common Stock is declared or paid by the
Corporation (which declaration and payment shall be solely in the discretion of
the Board of Directors), including, but not limited to, dividends or other
distributions payable in cash, Common Stock or options, rights or warrants to
purchase Common Stock or securities exercisable or exchangeable for or
convertible into Common Stock, or other securities or property of the
Corporation, such dividend or other distribution shall be declared and paid to
the holders of Class A Common Stock and Class B Common Stock, and the holders of
shares of Class A Common Stock and the holders of shares of Class B Common Stock
shall be entitled to receive the same amount per share of any such dividends and
other distributions in cash, securities or property of the Corporation (and with
respect to dividends or distributions not in cash, in the same form); provided,
however, that nothing in this Article FIFTH shall prevent the declaration and
payment of a dividend or other distribution of shares of Class A Common Stock
(or securities exercisable or exchangeable for, or convertible into, shares of
Class A Common Stock) only to holders of Class A Common Stock concurrently with
the declaration and payment of a dividend or other distribution of shares of
Class B Common Stock (or securities exercisable or exchangeable for, or
convertible into, shares of Class B Common Stock) only to holders of Class B
Common Stock so long as, immediately following such dividend or other
distribution, the number of shares of Class A Common Stock and Class B Common
Stock then outstanding bears the same relationship to each other as did the
number of shares of Class A Common Stock and Class B Common Stock outstanding
immediately prior to such dividend or other distribution; and provided, further,
however, that nothing in this Article
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FIFTH shall prevent the declaration and payment of a dividend or other
distribution of shares of Class A Common Stock in respect of shares of Class B
Common Stock and the declaration and payment of a dividend or other distribution
of shares of Class B Common Stock in respect of shares of Class A Common Stock.
(c) Split, Subdivision, Combination or Reclassification. In the case
of any split (including by means of stock dividend), subdivision, combination or
reclassification of Class A Common Stock or Class B Common Stock, the shares of
Class A Common Stock or Class B Common Stock, as the case may be, shall also be
split (including by means of stock dividend), subdivided, combined or
reclassified so that the number of shares of Class A Common Stock and Class B
Common Stock outstanding immediately following such split, subdivision,
combination or reclassification shall bear the same relationship to each other
as did the number of shares of Class A Common Stock and Class B Common Stock
outstanding immediately prior to such split, subdivision, combination or
reclassification.
(d) Liquidation, Dissolution, Mergers, etc. In the event of any
liquidation, dissolution or winding-up (either voluntary or involuntary) of the
Corporation, the holders of Class A Common Stock and the holders of Class B
Common Stock shall be entitled to receive the assets, property and cash, as
applicable, of the Corporation available for distribution, after the
satisfaction of all obligations and debts then outstanding to creditors of the
Corporation and subject to any preference or rights of participation of any
Preferred Stock of the Corporation that may at the time be outstanding, in
proportion to the number of shares held by them, respectively, without regard to
class. In the event of any merger, consolidation, or other business combination
or extraordinary corporate transaction in which any consideration is to be
received by the holders of Class A Common Stock or the holders of Class B Common
Stock, the holders of Class A Common Stock and the holders of Class B Common
Stock shall receive the same form and amount of consideration on a per share
basis.
(e) Rights Otherwise Identical. Except as expressly set forth in this
Article FIFTH, the rights of the holders of Class A Common Stock and the rights
of the holders of Class B Common Stock shall in all respects, for all purposes
and in all circumstances be absolutely and completely identical.
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(f) Issuance of Common Stock. The Board of Directors may from time to
time authorize by resolution the issuance of any or all shares of Class A Common
Stock and Class B Common Stock herein authorized in accordance with the terms
and conditions set forth in this Restated Certificate of Incorporation for such
purposes, in such amounts, to such persons (including existing stockholders in
the form of a dividend or other pro rata distribution), corporations or
entities, and for such consideration all as the Board of Directors in its
discretion may determine and without any vote or other action by the holders of
Class A Common Stock or Class B Common Stock, except as otherwise required by
law.
SIXTH: Shares of Class B Common Stock shall automatically be converted
by the Corporation into shares of Class A Common Stock, as follows:
(a) Conversion of Existing Shares of Class B Common Stock into Shares
of Class A Common Stock. Each share of Class B Common Stock automatically shall
be converted, on a share-for-share basis, into one duly authorized, validly
issued, fully paid and nonassessable share of Class A Common Stock, upon
consummation of any transfer, assignment or similar disposition of such Class B
Common Stock. No share of Class A Common Stock shall be converted into a share
of Class B Common Stock.
(b) Exchange of Certificates Evidencing Class B Common Stock for
Certificates Evidencing Class A Common Stock. Promptly (and in no event later
than five days) following the consummation of any transfer, assignment or
similar disposition described in subparagraph (a) of this Article SIXTH such
that shares of Class B Common Stock automatically are converted into shares of
Class A Common Stock (an "Event of Conversion"), the record holder of such
shares of Class B Common Stock so converted shall surrender the certificate (or
certificates) therefor, duly endorsed in blank or accompanied by proper
instruments of transfer, at the principal office of the Corporation or of any
transfer agent for the Class A Common Stock, and, together with such surrender,
shall deliver written notice to the Corporation, at such office: (i) stating
that an Event of Conversion has occurred, (ii) specifying the Event of
Conversion, (iii) identifying the number of shares of Class B Common Stock that
automatically have been so converted, and (iv) setting forth the name or names
(with addresses) and denominations in which the certificate (or certificates)
for shares of
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Class A Common Stock shall be issued (including instructions for delivery
thereof). Delivery of such notice together with the certificate (or
certificates) formerly representing the Class B Common Stock shall obligate the
Corporation to promptly (and in any case not later than 20 business days after
receipt of such notice) issue a certificate (or certificates) formerly
representing such shares of Class A Common Stock. Thereupon, the Corporation or
its transfer agent shall issue and deliver at such stated address to such holder
or to the transferee of shares of Class B Common Stock so converted a
certificate (or certificates) for the number of Class A Common Stock to which
such holder or transferee is entitled, registered in the name of such holder,
the designee of such holder or transferee as specified in such notice.
An Event of Conversion shall be deemed to have occurred as of 5:00
p.m., Eastern time, on the date on which the transaction(s) resulting in the
occurrence of an Event of Conversion have been consummated (such time being the
"Conversion Time"). The person entitled to receive the shares of Class A Common
Stock issuable upon such conversion shall be treated for all purposes by the
Corporation as the record holder of such shares of Class A Common Stock at and
as of the Conversion Time, and the right of such person as a holder of Class B
Common Stock shall cease and terminate at and as of the Conversion Time, in each
case without regard to any failure by the holder to deliver the certificates or
the notice required by this subparagraph (b).
(c) Reclassifications; Recapitalizations, etc. In the event of a
reclassification, recapitalization or other similar transaction as a result of
which the shares of Class A Common Stock are converted into another security,
then a holder of Class B Common Stock shall be entitled to receive upon the
occurrence of an Event of Conversion the amount of such other security into
which the Class A Common Stock has been converted that such holder would have
received if such Event of Conversion had occurred immediately prior to the
record date or effective time, as applicable, of such reclassification or other
similar transaction.
(d) Unconverted Shares; Notice Required. In the event of the automatic
conversion of fewer than all the shares of Class B Common Stock evidenced by a
certificate surrendered to the Corporation in accordance with the procedures of
this Article SIXTH, the Corporation shall
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execute and deliver to, upon the written order of, the holder of such
unconverted shares, without charge to such holder, a new certificate evidencing
the number of shares of Class B Common Stock not converted.
(e) Retired Shares. Shares of Class B Common Stock that automatically
are converted into shares of Class A Common Stock as provided herein shall be
retired and canceled, and shall have the status of authorized but unissued
shares of Class B Common Stock.
(f) Reservation. The Corporation shall reserve and keep available, out
of its authorized and unissued shares of Class A Common Stock, for the purposes
of effecting conversions pursuant to this Article SIXTH, such number of duly
authorized shares of Class A Common Stock as shall from time to time be
sufficient to effect the conversion, in full, of all outstanding shares of Class
B Common Stock; provided, however, 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 which are held in the treasury of
the Corporation. All the shares of Class A Common Stock so issuable shall, when
so issued, be duly authorized, validly issued, fully paid and nonassessable, and
free and clear from any and all liens, security interests, pledges,
hypothecations, encumbrances and charges whatsoever. The Corporation shall take
all actions as may be necessary to ensure that all such shares of Class A Common
Stock may be so issued without violation of any applicable law or regulation, or
of any requirements of any national securities exchange upon which the shares of
Class A Common Stock are or may be listed, or of any inter-dealer quotation
system of a registered national securities association upon which the shares of
Class A Common Stock are or may be listed or included for quotation.
SEVENTH: Preferred Stock may be issued in one or more series as may be
determined from time to time by the Board of Directors. Authority is hereby
expressly granted to the Board of Directors to authorize the issuance of one or
more series of Preferred Stock, and, subject to Article NINTH, to fix by
resolution or resolutions providing for the issue of each such series the voting
powers, designations, preferences, and relative, participating, optional,
redemption, conversion, exchange or other special rights, qualifications,
limitations or restrictions of such series,
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and the number of shares in each series, to the full extent now or hereafter
permitted by applicable law.
EIGHTH: The Common Stock shall be subject to the express terms of the
Preferred Stock and any series thereof. Except as otherwise provided by
applicable law or by the resolution or resolutions adopted by the Board of
Directors designating the relative rights, powers, options and preferences of a
series of Preferred Stock, the Common Stock shall have the exclusive right to
vote for the election of directors of the Corporation and for all other
purposes, and holders of Preferred Stock shall not be entitled to receive notice
of any meeting of the Corporation's stockholders at which they are not entitled
to vote. The Corporation shall be entitled to treat the person in whose name any
share of its stock is registered as the owner thereof for all purposes and shall
not be bound to recognize any equitable or other right or claim to, or interest
in, such share on the part of any other person, whether or not the Corporation
shall have notice thereof, except as expressly provided by applicable law.
NINTH: The Corporation shall not create, designate, authorize or cause
to be issued any class or series of nonvoting stock. For purposes of this
Article NINTH, any class or series of stock, including any series of Preferred
Stock, that has only such voting rights as are mandated by the General
Corporation Law of the State of Delaware, shall be deemed to be nonvoting stock
subject to the restrictions of this Article NINTH.
TENTH: In furtherance and not in limitation of the powers conferred by
law, subject to any limitations contained elsewhere in this Restated Certificate
of Incorporation, the Board of Directors may adopt, repeal, alter or amend the
By-laws of the Corporation by vote of a majority of the entire Board of
Directors (measured as if there were no vacancies). Notwithstanding any other
provisions of this Restated Certificate of Incorporation or any Preferred Stock
Designation (as defined below) or any provision of law, which might otherwise
permit a lesser vote or no vote, but in addition to any requirements of law and
any other provisions of this Restated Certificate of Incorporation or any
Preferred Stock Designation, the Corporation's stockholders may not adopt,
amend, alter or repeal any provision of the By-laws of the Corporation, except
by the affirmative vote of the holders of not less than 66-2/3% in voting power
of the then outstanding Voting
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Shares (as defined below), voting together as a single class.
ELEVENTH: (a) A director of the Corporation shall not be personally
liable either to the Corporation or to any stockholder for monetary damages for
breach of fiduciary duty as a director, except to the extent such exemption from
liability or limitation thereof is not permitted under the General Corporation
Law of the State of Delaware as amended from time to time. Neither amendment nor
repeal of this subparagraph (a) nor the adoption of any provision of this
Restated Certificate of Incorporation inconsistent with this subparagraph (a)
shall eliminate or reduce the effect of this subparagraph (a) in respect of any
matter occurring, or any cause of action, suit or claim that, but for this
subparagraph (a), would accrue or arise, prior to such amendment, repeal or
adoption of an inconsistent provision.
(b) Each person who was or is made a party or is threatened to be made
a party to or is involved in any manner in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
or a person of whom he or she is the legal representative is or was a director
or officer of the Corporation or a director or elected officer of a Subsidiary,
shall be indemnified and held harmless by the Corporation in accordance with and
to the fullest extent permitted from time to time by the General Corporation law
of the State of Delaware as the same exists or may hereafter be amended (but, if
permitted by applicable law, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment) or any other applicable laws as presently or hereafter in
effect, and such indemnification shall continue as to a person who has ceased to
be a director or officer and shall inure to the benefit of his or her heirs,
executors and administrators; provided however, that the Corporation shall
indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of Directors or is a proceeding to
enforce such person's claim to indemnification pursuant to the rights granted by
this Article ELEVENTH. The Corporation shall pay the expenses incurred by such
person in defending any such
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proceeding in advance of its final disposition upon receipt (unless the
Corporation upon authorization of the Board of Directors waives such requirement
to the extent permitted by applicable law) of an undertaking by or on behalf of
such person to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the Corporation as authorized in
this Article ELEVENTH or otherwise.
(c) The rights to indemnification and advancement of expenses provided
by, or granted pursuant to, this Article ELEVENTH shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
provision of the this Restated Certificate of Incorporation, provision of the
By-laws, agreement, vote of stockholders or Disinterested Directors or
otherwise. No repeal, modification or amendment of, or adoption of any provision
inconsistent with, this Article ELEVENTH, nor, to the fullest extent permitted
by applicable law, any modification of law, shall adversely affect any right or
protection of any person granted pursuant hereto with respect to any events that
occurred prior to the time of such repeal, amendment, adoption or modification.
(d) The Corporation may maintain insurance, at its expense, to protect
itself and any person who is or was a director, officer, partner, member,
employee, trustee or agent of the Corporation, or a Subsidiary (as defined
below) or of another corporation, partnership, limited liability company, joint
venture, trust or other enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the General Corporation law of the
State of Delaware.
(e) The Corporation may, to the extent authorized from time to time by
the Board of Directors, grant rights to indemnification, and rights to be paid
by the Corporation the expenses incurred in defending any proceeding in advance
of its final disposition, to any person who is or was an employee or agent
(other than a director or officer) of the Corporation or a Subsidiary and to any
person who is or was serving at the request of the Corporation or a Subsidiary
as a director, officer, partner, member, employee, trustee or agent of another
corporation, partnership, limited liability company, joint venture, trust or
other enterprise, including service with respect to employee benefit plans
maintained or sponsored by the Corporation or a Subsidiary, to the fullest
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extent of the provisions of this Article ELEVENTH with respect to the
indemnification of and advancement of expenses to directors and officers of the
Corporation.
(f) If any provision or provisions of this Article ELEVENTH shall be
held invalid, illegal or unenforceable for any reason whatsoever: (1) the
validity, the legality and enforceability of the remaining provisions of this
Article ELEVENTH (including, without limitation, each portion of any
subparagraph or clause of this Article ELEVENTH containing any such provision
held to be invalid, illegal or unenforceable, that is not itself held to be
invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby; and (2) to the fullest extent possible, the provisions of this Article
ELEVENTH (including, without limitation, each such portion of any subparagraph
of this Article ELEVENTH containing any such provision held to be invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
(g) Any notice, request or other communication required or permitted
to be given to the Corporation under this Article ELEVENTH shall be in writing
and either delivered in person or sent by telecopy, telex, telegram, overnight
mail or courier service, or certified or registered mail, postage prepaid,
return receipt requested, to the Secretary of the Corporation and shall be
effective only upon receipt by the Secretary.
TWELFTH: For the management of the business and for the conduct of the
affairs of the Corporation, and for further definition, limitation and
regulation of the powers of the Corporation and its directors and stockholders:
(a) Except as otherwise fixed by or pursuant to provisions hereof
relating to the rights of the holders of any class or series of Capital Stock
having a preference over Common Stock as to dividends or upon liquidation to
elect additional directors under specified circumstances, the number of
directors of the Corporation initially shall be fixed at 7 directors, the exact
number to be fixed from time to time by the affirmative vote of the holders of a
majority of the voting power of the outstanding Voting Shares.
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(b) Except as otherwise fixed by or pursuant to provisions hereof
relating to the rights of the holders of any class or series of Capital Stock
having a preference over Common Stock as to dividends or upon liquidation to
elect additional directors under specified circumstances, newly created
directorships resulting from any increase in the number of directors and any
vacancies on the Board of Directors resulting from death, resignation,
disqualification or other cause shall be filled either (i) by the affirmative
vote of a majority of the remaining directors then in office, even if
constituting less than a quorum of the Board of Directors, or (ii) by action of
the holders of a majority of the voting power of the outstanding Voting Shares,
and any vacancies on the Board of Directors resulting from the removal of any
director (or directors) shall be filled by action of the holders of a majority
of the voting power of the outstanding Voting Shares. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of
the term in which the new directorship was created or the vacancy occurred and
until such director's successor shall have been duly elected and qualified. No
decrease in the number of directors constituting the entire Board of Directors
shall shorten the term of any incumbent director.
(c) Any or all of the directors may be removed, with or without cause,
by the holders of a majority of the voting power of the outstanding Voting
Shares.
THIRTEENTH: Any action required or permitted to be taken by the
Corporation's stockholders must be effected either (i) at a duly called annual
or special meeting of such holders or (ii) without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of record of the issued and outstanding
Capital Stock of the Corporation having at least that number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted, and the writing or writings are
filed with the permanent records of the Corporation, such action to be effective
immediately upon delivery of such consent to the Corporation or as provided by
law. Prompt notice of the taking of corporate action without a meeting by less
than unanimous written consent shall be given as required by applicable law. At
any annual or special meeting of the Corporation's stockholders, only such
business shall be conducted as properly shall have been brought before such
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meeting in the manner provided by the By-laws of the
Corporation.
FOURTEENTH: Notwithstanding any other provision of this Restated
Certificate of Incorporation, any Preferred Stock Designation (as defined
below), or any provision of law, which might otherwise permit a lesser vote or
no vote, but in addition to any requirements of law, any other provisions of
this Restated Certificate of Incorporation or any Preferred Stock Designation,
the affirmative vote of the holders of not less than 66-2/3% of the voting power
of the outstanding Voting Shares, voting together as a single class, shall be
required to alter, amend or repeal this Restated Certificate of Incorporation.
FIFTEENTH: For purposes of this Restated Certificate of Incorporation,
the following capitalized terms shall have the following respective meanings:
(a) "Preferred Stock Designation" means a certificate filed with the
Secretary of State of the State of Delaware to evidence the designation of any
series of Preferred Stock of the Corporation established by resolution of the
Board of Directors pursuant to authority granted in this Restated Certificate of
Incorporation.
(b) "Voting Shares" means all shares of capital stock of the
Corporation entitled to vote generally in the election of directors.
(c) "Capital Stock" means any and all shares of corporate stock.
(d) "Disinterested Director" means a director of the Corporation who
is not and was not a party to the proceeding or matter in respect of which
indemnification is sought by the claimant.
(e) "Subsidiary" means a corporation, a majority of the capital stock
of which is owned directly or indirectly by the Corporation, other than
directors' qualifying shares.
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IN WITNESS WHEREOF, Consolidated Hydro, Inc. has caused this Restated
Certificate of Incorporation to be signed by [________], its [_______], and
attested by [_______], its [_______], this [__] day of [______], 1997.
CONSOLIDATED HYDRO, INC.
By:_________________________________
Name:
Title:
Attest:
____________________________
Name:
Title:
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