Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF LYDALL, INC.
- - --------------------------------------------------------------------------------
Article 1. The name of the corporation is Lydall, Inc. and is sometimes
hereinafter referred to as the "Company."
Article 2. The address of the Company's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle and the name of the Company's registered agent
at such address is The Corporation Trust Company.
Article 3. The nature of the business to be transacted and the purposes to
be promoted or carried out by the Company are as follows:
To do a general manufacturing business and to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
Article 4. The designation of each class of stock, the authorized number
of shares of each such class, and the par value of each share thereof, are as
follows:
- - --------------------------------------------------------------------------------
Authorized Number
Designation of Shares Par Value
- - --------------------------------------------------------------------------------
Common Stock 30,000,000 $ .10
Preferred Stock 500,000 $ 1.00
- - --------------------------------------------------------------------------------
Article 5. The terms, limitations and relative rights and preferences of
each class of shares and series thereof and an express grant of authority to the
Board of Directors pursuant to Section 151 of the General Corporation Law of
Delaware are as follows:
a) The holders of the Common Stock shall each be entitled to one vote per
share.
Last amended 5/10/95
1
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, 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
certificate or certificates establishing the series of Preferred Stock.
Article 6.
a) The Board of Directors shall consist of not less than three (3) nor
more than fifteen (15) Directorships; the exact number of such Directorships to
be determined by resolution of the Board of Directors. Each Director shall be
elected for a term of one (1) year or until the first annual meeting thereafter
and until another shall be elected in his stead. In the event the number of
members of the Board is increased, the newly created directorships shall be
filled by a vote of the holders of a majority of the shares of the capital stock
entitled to vote in elections of Directors.
b) The affirmative vote of the holders of two-thirds (2/3) of the voting
power of all classes of stock entitled to vote in elections of Directors voting
together as a single class, with each share of Common Stock having one vote and
other shares having the number of votes to which such shares are entitled, shall
be required for the removal, with or without cause, by stockholders, of any
Director from the Board of Directors. Such affirmative vote or consent of the
stockholders shall be in addition to the vote or consent of the holders of stock
of the Company otherwise required by law or any agreement between the Company
and any national securities exchange.
Article 7. Notwithstanding any other provisions of this Certificate of
Incorporation or the By-Laws of the Company (and notwithstanding that a lesser
percentage may be specified by law or the By-Laws of the Company), no provision
of this Certificate of Incorporation shall be repealed or amended in any
respect, nor shall any new provision be added to this Certificate of
Incorporation unless such action is approved by the affirmative vote of the
holders of not less than two-thirds (2/3) of the voting power of all classes of
stock entitled to vote in elections of Directors, voting together as a single
class with each share of Common Stock having one vote and other shares having
the number of votes to which such shares are entitled.
2
Article 8. A Director of the Company shall not be personally liable to the
Company 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 Company 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 any 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 Company shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders
of the Company shall not adversely affect any right or protection of a Director
of the Company existing at the time of such repeal or modification.
Article 9.
a) Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she is or was a Director, officer, employee or
agent of the Company or is or was serving at the request of the Company 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 an
employee benefit plan (hereinafter an "indemnitee"), 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 where serving as a Director, officer,
employee or agent, shall be indemnified and held harmless by the Company to the
fullest extent authorized by the Delaware General Corporation Law, 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 the Company to provide broader
indemnification rights than permitted prior thereto), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith and such indemnification
shall continue as to an indemnitee who has ceased to be a Director, officer,
employee or agent and shall inure to the benefit of the indemnitee's heirs,
executors and administrators; provided, however, that, except as provided in
paragraph (b) hereof with respect to proceedings to enforce rights to
indemnification, the Company shall indemnify any such indemnitee in connection
with a proceeding
3
(or part thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the Board of Directors of the Company. The right to
indemnification conferred in this Article shall be a contract right and shall
include the right to be paid by the Company the expenses incurred in defending
any such proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
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 indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Company of an undertaking (hereinafter an "undertaking"), by or
on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Article or otherwise.
b) If a claim under paragraph (a) of this Article is not paid in full by
the Company within sixty days after a written claim has been received by the
Company, except in the case of a claim for an advancement of expenses, in which
case the applicable period shall be twenty days, the indemnitee may at any time
thereafter bring suit against the Company to recover the unpaid amount of the
claim. If successful in whole or in part in any such suit, or in a suit brought
by the Company to recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall be entitled to be paid also the expense of
prosecuting or defending such suit. In (i) any suit brought by the indemnitee to
enforce a right to indemnification hereunder (but not in a suit brought by the
indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and (ii) in any suit by the Company to recover an advancement of
expenses pursuant to the terms of an undertaking the Company shall be entitled
to recover such expenses upon a final adjudication that, the indemnitee has not
met the applicable standard of conduct set forth in the Delaware General
Corporation Law. Neither the failure of the Company (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification of the
indemnitee is proper in the circumstances because the indemnitee has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the indemnitee
has not met such applicable standard of conduct, shall create a presumption that
the indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any
4
suit brought by the indemnitee to enforce a right to indemnification or to any
advancement of expenses hereunder, or by the Company to recover an advancement
of expenses pursuant to the terms of an undertaking, the burden of proving that
the indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this Article or otherwise shall be on the Company.
c) The rights to indemnification and to the advancement of expenses
conferred in this Article shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, this certificate of
incorporation, by-law, agreement, vote of stockholders or disinterested
Directors or otherwise.
d) The Company may maintain insurance, at its expense, to protect itself
and any Director, officer, employee or agent of the Company or another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Company would have the power to
indemnify such person against such person against such expense, liability or
loss under the Delaware General Corporation Law.
5