1
Exhibit 3.1
(Restated as of January 27, 1995)
- ---------------------------------
RESTATED CERTIFICATE OF INCORPORATION
OF
NEW YORK BANCORP INC.
FIRST: The name of the Corporation is New York Bancorp Inc.
-----
(hereinafter sometimes referred to as the "Corporation").
SECOND: The address of the registered office of the Corporation in
------
the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle. The name of the registered agent at
that address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful
-----
act or activity for which a corporation may be organized under the General
Corporation Law of Delaware.
FOURTH:
------
A. The total number of shares of all classes of stock which
the Corporation shall have authority to issue is thirty-two million
(32,000,000), consisting of:
(a) two million (2,000,000) shares of Preferred
Stock, par value one cent ($.01) per share (the "Preferred Stock"); and
(b) thirty million (30,000,000) shares of Common Stock,
par value one cent ($.01) per share (the "Common Stock").
2
January 1994
B. The Board of Directors is authorized, subject to any
limitations prescribed by law, to provide for the issuance of the shares of
preferred Stock in series, and by filing a certificate pursuant to the
applicable law of the State of Delaware (such certificate being hereinafter
referred to as a "Preferred Stock Designation"), to establish from time to time
the number of shares to be included in each such series, and to fix the
designation, powers, preferences, and rights of the shares of each such
series and any qualifications, limitations or restrictions thereof. The
number of authorized shares of Preferred Stock may be increased or decreased
(but not below the number of shares thereof then outstanding) by the affirmative
vote of the holders of a majority of the Common Stock, without a vote of the
holders of the Preferred Stock, or of any series thereof, unless a vote of any
such holders is required pursuant to the terms of any Preferred Stock
Designation.
FIFTH: The following provisions are inserted for the management of
------
the business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(a) The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors. In addition
to the powers and authority expressly conferred upon them by Statute or by
this Certificate of Incorporation or the By-laws of the
2
3
January 1994
Corporation, the directors are hereby empowered to exercise all such
powers and do all such acts and things as may be exercised or done by the
Corporation.
(b) The directors of the Corporation need not be
elected by written ballot unless the By-laws so provide.
(c) Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual or
special meeting of stockholders of the Corporation and may not be effected
by any consent in writing by such stockholders.
(d) Special meetings of stockholders of the Corporation
may be called only by the Board of Directors pursuant to a resolution
adopted by a majority of the total number of authorized directors (whether
or not there exist any vacancies in previously authorized directorships at
the time any such resolution is presented to the Board for adoption)(the
"Whole Board").
SIXTH:
------
A. The number of directors shall be fixed from time to time
exclusively by the Board of Directors pursuant to a resolution adopted by a
majority of the Whole Board. The directors shall be divided into three classes,
as nearly equal in number as reasonably possible, with the term of office of the
first class to expire at the 1988 annual meeting of stockholders, the term of
office of the second class to expire at the 1989
3
4
January 1994
annual meeting of stockholders and the term of office of the third class to
expire at the 1990 annual meeting of stockholders. At each annual meeting
of stockholders following such initial classification and election,
directors elected to succeed those directors whose terms expire shall be
elected for a term of office to expire at the third succeeding annual meeting
of stockholders after their election.
B. Subject to the rights of the holders of any series
of Preferred Stock then outstanding, newly created directorships resulting from
any increase in the authorized number of directors or any vacancies in the Board
of Directors resulting from death, resignation, retirement, disqualification,
removal from office or other cause may be filled only by a majority vote of the
directors then in office, though less than a quorum, and directors so chosen
shall hold office for a term expiring at the annual meeting of stockholders at
which the term of office of the class to which they have been elected expires.
No decrease in the number of directors constituting the Board of Directors
shall shorten the term of any incumbent director.
C. Advance notice of stockholder nominations for the
election of directors and of business to be brought by stockholders before any
meeting of the stockholders of the Corporation shall be given in the manner
provided in the ByLaws of the Corporation.
4
5
January 1994
D. Subject to the rights of the holders of any series
of Preferred Stock then outstanding, any directors, or the entire Board of
Directors, may be removed from office at any time, but only for cause and only
by the affirmative vote of the holders of at least 80 percent of the voting
power of all of the then-outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class. "Cause" shall be defined as breach of fiduciary duty involving
personal dishonesty, intentional failure to perform stated duties as a director
which results in substantial loss to the company or willful violation of any
law, rule, regulation or final cease and desist order which results in
substantial loss to the Corporation.
SEVENTH: The Board of Directors is expressly empowered to
--------
adopt, amend or repeal By-laws of the Corporation. Any adoption, amendment or
repeal of the By-laws of the Corporation by the Board of Directors shall require
the approval of a majority of the Whole Board. The stockholders shall also have
power to adopt, amend or repeal the By-laws of the Corporation. In addition to
any vote of the holders of any class or series of stock of this Corporation
required by law or by this Certificate of Incorporation, the affirmative vote of
the holders of at least 80 percent of the voting power of all of the
then-outstanding shares of the capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a
5
6
January 1994
single class, shall be required to adopt, amend or repeal any provisions
of the By-laws of the Corporation.
EIGHTH:
-------
A. In addition to any affirmative vote required by law
or this Certificate of Incorporation, and except as otherwise expressly provided
in this Section:
1. any merger or consolidation of the Corporation or
any Subsidiary (as hereinafter defined) with (i) any Interested
Stockholder (as hereinafter defined) or (ii) any other corporation
(whether or not itself an Interested Stockholder) which is, or after
such merger or consolidation would be, an Affiliate (as hereinafter
defined) of an Interested Stockholder; or
2. any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series of
transactions) to or with any Interested Stockholder, or any Affiliate
of any Interested Stockholder, or 25% or more of the combined assets
of the Corporation and its Subsidiaries; or
3. the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in exchange
for cash, securities or other property (or a combination thereof)
having an aggregate Fair Market Value (as
6
7
January 1994
hereinafter defined) equaling or exceeding 25% of the combined assets
of the Corporation and its Subsidiaries except pursuant to an
employee benefit plan of the Corporation or any Subsidiary thereof; or
4. the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by or on behalf
of an Interested Stockholder or any Affiliate of any Interested
Stockholder; or
5. any reclassification of securities (including any
reverse stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any other transaction (whether or not with or into or
otherwise involving an Interested Stockholder) which has the effect,
directly or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder or any Affiliate of any
Interested Stockholder;
shall require the affirmative vote of the holders of at least 80% of the voting
power of the then outstanding shares of stock of the Corporation entitled to
vote in the election of directors (the "Voting Stock"), voting together as a
single class. Such affirmative vote shall be required notwithstanding the fact
that no vote may be required, or that a lesser
7
8
January 1994
percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
The term "Business Combination" as used in this Article EIGHTH
shall mean any transaction which is referred to in any one or more of paragraphs
1 through 5 of Section A of this Article EIGHTH.
B. The provisions of Section A of this Article
EIGHTH shall not be applicable to any particular Business Combination, and
such Business Combination shall require only the affirmative vote of the
majority of the outstanding shares of capital stock entitled to vote, or such
vote as is required by law, if all of the conditions specified in either of the
following paragraphs 1 and 2 are met:
1. The Business Combination shall have been
approved by a majority of the Disinterested Directors (as hereinafter
defined).
2. All of the following conditions shall have been
met:
(a) The aggregate amount of the cash and the
Fair Market Value as of the date of the consummation of the
Business Combination of consideration other than cash to be
received per share by the holders of Common Stock in such Business
Combination shall at least be equal to the higher of the following:
I. (if applicable) the Highest Per Share price
(as hereinafter defined), including any brokerage
8
9
January 1994
commission, transfer taxes and soliciting dealers' fees, paid by
the Interested Stockholder for any shares of Common Stock
acquired by it (X) within the two-year period immediately prior
to the first public announcement of the proposal of the Business
Combination (the "Announcement Date"), or (Y) in the transaction
in which it became an Interested Stockholder, whichever is
higher; and
II. the Fair Market Value per share of Common
Stock on the Announcement Date or on the date on which the
Interested Stockholder became an Interested Stockholder (such
latter date is referred to in this Article EIGHTH as the
"Determination Date"), whichever is higher.
(b) The aggregate amount of the cash and the
Fair Market Value as of the date of the consummation of the Business
Combination of consideration other than cash to be received per share
by holders of shares of any class of outstanding Voting Stock other
than Common Stock shall be at least equal to the highest of the
following (it being intended that the requirements of this
subparagraph (b) shall be required to be met with respect to every
such class of outstanding Voting Stock, whether or not the Interested
Stockholder has previously acquired any shares of a particular class
of Voting Stock):
9
10
January 1994
I. (if applicable) the Highest Per Share Price
(as hereinafter defined), including any brokerage commissions,
transfer taxes and soliciting dealers' fees, paid by the Interested
Stockholder for any shares of such class of Voting Stock acquired by
it (X) within the two-year period immediately prior to the
Announcement Date, or (Y) in the transaction in which it became an
Interested Stockholder, whichever is higher;
II. (if applicable) the highest preferential
amount per share to which the holders of shares of such class of
Voting Stock are entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation; and
III. the Fair Market Value per share of such
class of Voting Stock on the Announcement Date or on the
Determination Date, whichever is higher.
(c) The consideration to be received by holders
of a particular class of outstanding Voting Stock (including Common
Stock) shall be in cash or in the same form as the Interested
Stockholder has previously paid for shares of such class of Voting
Stock. If the Interested Stockholder has paid for shares of any class
of Voting Stock with varying forms of consideration, the form of
consideration for such class of Voting Stock shall be either cash or
the form used to acquire the largest number
10
11
January 1994
of shares of such class of Voting Stock previously acquired by it.
The price determined in accordance with subparagraph B.2 of this
Article EIGHTH shall be subject to appropriate adjustment in the
event of any stock dividend, stock split, combination of shares or
similar event.
(d) After such interested Stockholder has become
an Interested Stockholder and prior to the consummation of such
Business Combination:(i) except as approved by a majority of the
Disinterested Directors, there shall have been no failure to declare
and pay at the regular date therefor any full quarterly dividends
(whether or not cumulative) on any outstanding stock having
preference over the Common Stock as to dividends or liquidation;
(ii) there shall have been (X) no reduction in the annual rate of
dividends paid on the Common Stock (except as necessary to reflect
any subdivision of the Common Stock), except as approved by a
majority of the Disinterested Directors, and (Y) an increase in such
annual rate of dividends as necessary to reflect any reclassification
(including any reverse stock split), recapitalization, reorganization
or any similar transaction which has the effect of reducing the
number of outstanding shares of the Common Stock, unless the failure
to so increase such annual rate is approved by a majority of the
Disinterested Directors, and (iii) such Interested
11
12
January 1994
Stockholder shall have not become the beneficial owner of any
additional shares of Voting Stock except as part of the transaction
which results in such Interested Stockholder becoming an Interested
Stockholder.
(e) After such Interested Stockholder has
become an Interested Stockholder, such Interested Stockholder shall
not have received the benefit, directly or indirectly (except
proportionately as a stockholder), of any loans, advances,
guarantees, pledges or other financial assistance or any tax credits
or other tax advantages provided by the Corporation, whether in
anticipation of or in connection with such Business Combination or
otherwise.
(f) A proxy or information statement describing
the proposed Business Combination and complying with the requirements
of the Securities Exchange Act of 1934 and the rules and regulations
thereunder (or any subsequent provisions replacing such Act, rules or
regulations) shall be mailed to stockholders of the Corporation at
least 30 days prior to the consummation of such Business Combination
(whether or not such proxy or information statement is required to be
mailed pursuant to such Act or subsequent provisions).
C. For the purposes of this Article EIGHTH:
1. A "Person" shall include an individual, a group
acting in concert, a corporation, a partnership, an
12
13
January 1994
association, a joint venture, a pool, a joint stock company, a trust,
an unincorporated organization or similar company, a syndicate or any
other group formed for the purpose of acquiring, holding or disposing
of securities.
2. "Interested Stockholder" shall mean any person
(other than the Corporation or any Holding Company or Subsidiary
thereof) who or which:
(a) is the beneficial owner, directly or
indirectly, of more than 10% of the voting power of the outstanding
Voting Stock ; or
(b) is an Affiliate of the Corporation and at
any time within the two-year period immediately prior to the date in
question was the beneficial owner, directly or indirectly, of 10% or
more of the voting power of the then outstanding Voting Stock ; or
(c) is an assignee of or has otherwise succeeded
to any shares of Voting Stock which were at any time within the
two-year period immediately prior to the date in question beneficially
owned by any Interested Stockholder, if such assignment or succession
shall have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning of the
Securities Act of 1933.
3. A person shall be a "beneficial owner" of any
Voting Stock:
13
14
January 1994
(a) which such person or any of its Affiliates
or Associates (as hereinafter defined) beneficially owns, directly or
indirectly; or
(b) which such person or any of its Affiliates
or Associates has (i) the right to acquire (whether such right is
exercisable immediately or only after the passage of time), pursuant
to any agreement, arrangement or understanding or upon the exercise of
conversion rights, warrants or options, or otherwise, or (ii) the
right to vote pursuant to any agreement, arrangement or understanding;
or
(c) which are beneficially owned, directly or
indirectly by any other person with which such person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purposes of acquiring, holding, voting or
disposing of any shares of Voting Stock.
4. For the purpose of determining whether a person
is an Interested Stockholder pursuant to paragraph 2 of this
Section C, the number of shares of Voting Stock deemed to be
outstanding shall include shares deemed owned through application of
Paragraph 3 of this Section C but shall not include any other shares
of Voting Stock which may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
14
15
January 1994
5. "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule l2b-2 of the
General Rules and Regulations under the Securities Exchange Act of
1934, as in effect on January 1, 1987.
6. "Subsidiary" means any corporation of which a
majority of any class of equity security is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Interested Stockholder set forth in
paragraph 2 of this Section C, the term "Subsidiary" shall mean only
a corporation of which a majority of each class of equity security is
owned, directly or indirectly, by the Corporation.
7. "Disinterested Director" means any member of
the Board of Directors who is unaffiliated with the Interested
Stockholder and was a member of the Board of Directors prior to the
time that the Interested Stockholder became an Interested Stockholder,
and any successor of a Disinterested Director who is unaffiliated with
the Interested Stockholder and is recommended to succeed a
Disinterested Director by a majority of Disinterested Directors then
on the Board of Directors.
8. "Fair Market Value" means: (a) in the case of
stock, the highest closing sales price of the stock during the 30-day
period immediately preceding the date in question of a share of such
stock on the National
15
16
January 1994
Association of Securities Dealers Automated Quotation System or any
system then in use, or, if such stock is admitted to trading on a
principal United States securities exchange registered under the
Securities Exchange Act of 1934, Fair Market Value shall be the
highest sale price reported during the 30-day period preceding the
date in question. If no such quotations are available, the Fair Market
Value on the date in question of a share of such stock as determined
by the Board of Directors in good faith, in each case with respect to
any class of stock, appropriately adjusted far any dividend or
distribution in shares of such stock or any combination or
reclassification of outstanding shares of such stock into a smaller
number of shares of such stock, and (b) in the case of property other
than cash or stock, the Fair Market Value of such property on the date
in question as determined by the Board of Directors in good faith.
9. Reference to "Highest Per Share Price" shall in
each case with respect to any class of stock reflect an appropriate
adjustment for any dividend or distribution in shares of such stock or
any stock split or reclassification of outstanding shares of such
stock into a greater number of shares of such stock or any combination
or reclassification of outstanding shares of such stock into a smaller
number of shares of such stock.
16
17
January 1994
10. In the event of any Business Combination in
which the Corporation survives, the phrase "other consideration to be
received" as used in Subparagraphs (a) and (b) of Paragraph 2 of
Section B of this Article EIGHTH shall include the shares of Common
Stock and/or the shares of any other class of outstanding Voting Stock
retained by the holders of such shares.
D. A majority of the Directors of the Corporation shall
have the power and duty to determine for the purposes of this Article EIGHTH, on
the basis of information known to them after reasonable inquiry, (a) whether a
person is an Interested Stockholder; (b) the number of shares of Voting Stock
beneficially owned by any person; (c) whether a person is an Affiliate or
Associate of another; and (d) whether the assets which are the subject of any
Business Combination have, or the consideration to be received for the issuance
or transfer of securities by the Corporation or any Subsidiary in any Business
Combination has an aggregate Fair Market Value equaling or exceeding 25% of the
combined assets of the Corporation and its Subsidiaries. A majority of the
Directors shall have the further power to interpret all of the terms and
provisions of this Article EIGHTH.
E. Nothing contained in this Article EIGHTH shall be
construed to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
17
18
January 1994
F. Notwithstanding any other provisions of this
Certificate of Incorporation or any provision of law which might otherwise
permit a lesser vote or no vote, but in addition to any affirmative vote of the
holders of any particular class or series of the Voting Stock required by law,
this Certificate of Incorporation or any Preferred Stock Designation, the
affirmative vote of the holders of at least 80 percent of the voting power of
all of the then-outstanding shares of the Voting Stock, voting together as a
single class, shall be required to alter, amend or repeal this Article EIGHTH.
NINTH: The Board of Directors of the Corporation, when
------
evaluating any offer of another Person (as defined in Article EIGHTH hereof) to
(A) make a tender or exchange offer for any equity security of the Corporation,
(B) merge or consolidate the Corporation with another corporation or entity or
(C) purchase or otherwise acquire all or substantially all of the properties and
assets of the Corporation, shall, in connection with the exercise of its
judgment in determining what is in the best interest of the Corporation and its
stockholders, give due consideration to all relevant factors, including, without
limitation, the social and economic effect of acceptance of such offer on the
Corporation's present and future customers and employees and those of its
Subsidiaries (as defined in Article EIGHTH hereof ); on the communities in which
the Corporation and its Subsidiaries operate or are located; on the ability of
the Corporation to fulfill its corporate objectives as a bank holding
18
19
January 1994
company and on the ability of its subsidiary bank to fulfill the objectives of
a federally-chartered stock form savings bank under applicable statutes and
regulations.
TENTH: A. Each person who was or is made a party or is
------
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
("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 this
Corporation or is or was serving at the request of this Corporation as a
director, officer, employee 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 an 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 this Corporation to the fullest extent
authorized by the General Corporation Law of Delaware, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits this Corporation to provide broader indemnification
rights than said Law permitted this Corporation to provide prior to such
amendment) against all expenses, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement)
19
20
January 1994
reasonably incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that this Corporation shall
-----------------
indemnify any such person seeking indemnity in connection with an action, suit
or proceeding (or part thereof) initiated by such person only if such action,
suit or proceeding (or part thereof) was authorized by the Board of Directors
of this Corporation. Such right shall be a contract right and shall include the
right to be paid by this Corporation 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 in his or her
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 only upon delivery to
this 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 Article or
otherwise.
B. If a claim under Section A is not paid in full by
this Corporation within ninety (90) days after a written claim has been received
by this Corporation, the claimant may at
20
21
January 1994
any time thereafter bring suit against this Corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant shall
be entitled to be paid also the expense of prosecuting such claim. It shall be
a defense to any such action (other than an action brought to enforce a claim
for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any, has been tendered to this
Corporation) that the claimant has not met the standards of conduct which make
it permissible under the General Corporation Law of Delaware for this
Corporation to indemnify the claimant for the amount claimed, but the burden of
proving such defense shall be on this Corporation. Neither the failure of this
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
General Corporation Law of Delaware, nor an actual determination by this
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that claimant has not
met the applicable standard of conduct.
C. The rights conferred on any person by Sections A and B
shall not be exclusive of any other right which such person may have or
hereafter acquire under any statute,
21
22
January 1994
provision of this Certificate of Incorporation, By-law of this Corporation,
agreement, vote of stockholders or disinterested directors or otherwise.
D. This Corporation may maintain insurance, at its
expense, to protect itself and any such director, officer, employee or agent of
this Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any such expense, liability or loss, whether or not
this Corporation would have the power to indemnify such person against such
expense, liability or loss under the Delaware General Corporation Law.
ELEVENTH: A director of this Corporation shall not be personally
---------
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (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 Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit. If the Delaware General Corporation Law is amended
after approval by the stockholders of this article to authorize corporate
action further eliminating or limiting the personal liability of directors,
then the liability of a director of the corporation shall be eliminated or
limited to the fullest extent permitted by the Delaware General Corporation Law,
as so amended.
22
23
January 1994
Any repeal or modification of the foregoing paragraph by the
stockholders of the corporation shall not adversely affect any right or
protection of a director of the corporation existing at the time of such repeal
or modification.
TWELFTH: The Corporation reserves the right to amend or repeal
--------
any provision contained in this Certificate of Incorporation in the manner
prescribed by the laws of the State of Delaware and all rights conferred upon
stockholders are granted subject to this reservation; provided, however, that,
-----------------
notwithstanding any other provision of this Certificate of Incorporation or any
provision of law which might otherwise permit a lesser vote or no vote, but in
addition to any vote of the holders of any class or series of the stock of this
Corporation required by law or by this Certificate of Incorporation, the
affirmative vote of the holders of at least 80% of the voting power of all of
the then-outstanding shares of the capital stock of the Corporation entitled to
vote generally in the election of directors, voting together as a single class,
shall be required to amend or repeal this Article TWELFTH, clauses (c) or (d) of
Article FIFTH, Article SIXTH, Article SEVENTH, Article EIGHTH or Article TENTH.
THIRTEENTH: The name and mailing address of the sole incorporator are
-----------
as follows:
Name Mailing Address
- ---- ---------------
John F. Grossbauer 12th & Market Streets
Wilmington, Delaware 19801
23