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Exhibit 3.i(ss)
CERTIFICATE OF INCORPORATION
OF
KAC HOLDINGS, INC.
FIRST: The name of the corporation is KAC HOLDINGS, INC.
SECOND: The address of its registered office in the State of Delaware
is 306 South State Street, in the City of Dover 19901, County of Kent. The name
of its registered agent at such address is United States Corporation Company.
THIRD: The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act of activity for which corporations may
be organized under the General Corporation Law of Delaware.
FOURTH: The aggregate number of shares of capital stock which the
Corporation is authorized to issue is 1,000 shares, no par value per share,
designated "Common Stock". The voting powers and the designations,
preferences, and the relative, participating, optional or other special
rights of, and the qualifications, limitations or restrictions on, the Common
Stock are as follows:
(1) As used in this Certificate of Incorporation, the following
terms shall have the following meanings:
(a) "BOARD" shall mean the Board of Directors of the
Corporation.
(b) "CORPORATION" shall mean KAC Holdings, Inc.
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(c) "SUBSIDIARY shall mean any corporation at least
50% of whose outstanding voting stock shall at the time be
owned directly or indirectly by the Corporation or by one or
more Subsidiaries.
(2) (a) Except as provided in Subsection (b), each holder of a
share of Common Stock shall be entitled to vote an all matters and
shall be entitled to one vote for each share of Common Stock held.
(b) At all stockholders' meetings at which directors
of the Corporation are to be elected, each holder of Common
Stock entitled to vote shall have as many votes as shall equal
the number of shares of Common Stock owned by him, multiplied
by the number of directors to be elected, and he may cast all
of such votes for a single director or may distribute them
among the number to be voted for, or any two or more of them
as he may see fit.
(c) The affirmative vote of the holders of not less
than 85% of the outstanding Common Stock shall be required in
order to authorize:
(i) any amendment of this Article FOURTH or of
Article SIXTH; or
(ii) any amendment to the by-laws of the
Corporation.
FIFTH: The name and mailing address of the incorporator is Norman M.
Gold, 333 West Wacker Drive, Suite 2600, Chicago, Illinois 60606.
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SIXTH: The following provisions are inserted 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 of
its directors and stockholders:
(1) The number of directors of the Corporation shall be five.
Election of directors need not be by ballot unless the by-laws so
provide.
(2) The Board shall have power without the assent or vote of
the stockholders to fix and vary the amount to be reserved for any
proper purposes; to authorize and cause to be executed mortgages and
liens upon all or any part of the property of the Corporation; to
determine the use and disposition of any surplus or net profits; and to
fix the times for the declaration and payment of dividends.
(3) The Board in its discretion may submit any contract or act
theretofore approved by the Board for approval or ratification at any
annual meeting of the stockholders or at any meeting of the
stockholders called for the purpose of considering any such act or
contract, and any contract or act that shall be approved or be ratified
by the vote of the holders of a majority of the stock of the
Corporation which is represented in person or by proxy at such meeting
and entitled to vote thereat (provided that a lawful quorum of
stockholders be there represented in person or by proxy) shall be as
valid and as binding upon the
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Corporation and upon all the stockholders as though it had been
approved or ratified by every stockholder of the Corporation, whether
or not the contract or act would otherwise be open to legal attack
because of directors' interest, or for any other reason.
(4) In addition to the powers and authorities hereinbefore or
by statute expressly conferred upon them, the Board is hereby empowered
to exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation; subject, nevertheless, to the
provisions of the statutes of Delaware, of this Certificate, and to any
by-laws from time to time made by the stockholders; provided, that no
by-laws so made shall invalidate any prior act of the directors which
would have been valid if such by-law had not been made.
(5) The stockholders shall have the sole power to adopt, alter,
amend or rescind the by-laws of the Corporation.
(6) The affirmative vote of not less than four of the directors
shall be required in order to authorize the taking of any of the
following actions by the Corporation:
(a) The disposition by the Corporation of a material
portion of its assets or of the business of a Subsidiary
(whether through a sale of assets, sale of stock, merger or
otherwise) unless the entire business of the Corporation and
all of the Corporation's Subsidiaries is being disposed of in
the transaction;
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(b) the termination of employment or modification of
employment terms of any executive officer Of any Subsidiary;
(c) the issuance of any additional shares of Common
Stock or securities convertible into, or warrants for the
issuance of Common Stock; or
(d) any amendment to this Certificate of
Incorporation; or
(e) The termination or any amendment of any
shareholders' agreement involving subsidiaries of the
Corporation.
SEVENTH: The election of directors need not be by written ballot.
EIGHTH: 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 of 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 the provisions of Section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors and/or of
the stockholdes or class of stockholders of
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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.
THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, does hereunto set his hand and seal this 6th day of January,
1986.
/s/ Norman M. Gold
--------------------------------
Norman M. Gold
Sole incorporator
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CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
KAC HOLDINGS, INC.
KAC HOLDINGS, INC., a corporation duly organized and existing by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said Corporation, by unanimous
written consent of its members, filed with the minutes of the board, adopted
a resolution proposing and declaring advisable the following amendment to the
Certificate of Incorporation.
RESOLVED: That the Certificate of Incorporation of KAC Holdings,
Inc. be amended by changing the Article thereof numbered FOURTH so
that, as amended such Article shall be and read as follows:
"FOURTH: The total number of shares of all classes of stock which
the Corporation shall have authority to issue is 601,000 shares,
consisting of: 600,000 shares of Preferred Stock, par value of
$100.00 per share and 1,000 shares of Common Stock, having no par value.
(1) As used in this Certificate of Incorporation, the following
terms shall have the following meanings:
(a) "BOARD" shall mean the Board of Directors of the
Corporation.
(b) "CORPORATION" shall mean KAC Holdings, Inc.
(c) "SUBSIDIARY" shall mean any corporation at least 50% of
whose outstanding voting stock shall at the time be owned directly or
indirectly by the Corporation or by one or more Subsidiaries.
(2) The Preferred Stock may be issued from time to time in one or
more series with such distinctive serial designations and
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(a) may have such voting powers, full or limited, greater
than, less than or equal to those of the Common Stock, or may be without
voting powers and may have such sinking fund provisions;
(b) may be subject to redemption at such time or times and at
such prices;
(c) may be entitled to receive such dividends (which may be
cumulative or non-cumulative, compounding or non-compounding) at such
rate or rates, on such conditions, and at such times, and payable in
preference to, or in such relation to, the dividends payable on any
other class or classes or series of stock;
(d) may have such rights and preferences upon dissolution of,
or upon any distribution of the assets of, the Corporation;
(e) may be made convertible into, or exchangeable for, shares
of any other class or classes or of any other series of the same or any
other class or classes or series of stock of the Corporation, at such
price or prices or at such rates of exchange, and with such
adjustments; and
(f) shall have such other designations, preferences and
relative, participating, optional or other special rights,
qualifications, limitations or restrictions thereof;
as shall hereafter be stated and expressed in the resolution or resolutions
providing for the issue of such Preferred Stock from time to time adopted by
the Board of Directors of the Corporation pursuant to authority so to do
which is hereby vested in the Board of Directors of the Corporation.
(3) (a) Except as provided in Subsection (b), each holder of a
share of Common Stock shall be entitled to vote on all matters and shall be
entitled to one vote for each share of Common Stock held.
(b) At all stockholders' meetings at which directors of the
Corporation are to be elected, each holder of Common Stock entitled
to vote shall have as many votes as shall equal the number of shares of
Common Stock owned by him, multiplied by the number of directors to be
elected, and he may cast all of such votes for a single director or
may distribute them among the number to be voted for, or any two
or more of them as he may see fit.
(c) The affirmative vote of the holders of not less than 85%
of the outstanding Common Stock shall be required in order to
authorize:
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(i) any amendment of this Article FOURTH or of
Article SIXTH; or
(ii) any amendment to the by-laws of the Corporation."
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given unanimous written consent to said amendment in
accordance with the provisions of Section 228 of the General Corporation Law
of the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Sections 242 and 228 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said KAC HOLDINGS, INC. has caused this
certificate to be signed by Jay D. Proops, its Vice President, and Norman M.
Gold, its Assistant Secretary, this 23rd day of October, 1987.
KAC HOLDINGS, INC.
By: /s/ Jay D. Proops
-------------------------------
Jay D. Proops, Vice President
Attested by:
/s/ Norman M. Gold
- -----------------------
Norman M. Gold,
Assistant Secretary
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CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
KAC HOLDINGS, INC.
KAC HOLDINGS, INC., a Delaware corporation (the "Corporation"),
organized and existing under and by virtue of the General Corporation Law of
the State of Delaware, DOES HEREBY CERTIFY AS FOLLOWS:
FIRST: That the Board of Directors of said Corporation, by unanimous
written consent of its members, filed with the minutes of the board, adopted
resolutions proposing and declaring advisable the following amendments to the
Certificate of Incorporation:
(i) That Article FIRST of the Certificate of Incorporation is hereby
amended in its entirety to read as follows:"
FIRST: The name of the corporation is The Vigoro Corporation."
(ii) That the first sentence of Article FOURTH of the Certificate of
Incorporation is amended to read as follows:
"The total number of shares of all classes of stock which the
corporation shall have authority to issue is 50,600,000 consisting
of 600,000 shares of Preferred Stock, $100.00 par value per share,
and 50,000,000 shares of Common Stock, $.01 par value per share."
(iii) No other provisions of the Certificate of Incorporation are
amended by this Certificate.
SECOND: Immediately following the filing of this Certificate, each
issued and outstanding share of Common Stock, no par value, of the
corporation ("Old Common") shall be exchanged for and converted into one share
of Common Stock, $.01 par value per share, of the corporation ("New Common");
and each certificate representing Old Common shall be deemed to represent the
New Common issued by virtue of this section in exchange for the Old Common,
without further action by either the corporation or the stockholders.
THIRD: That in lieu of a meeting and vote of stockholders, the
stockholders have given unanimous written consent to said amendment in
accordance with the provisions of Section 228 of the General Corporation Law
of the State of Delaware.
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FOURTH: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Section 242 and 228 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said KAC HOLDINGS, INC. has caused this Certificate
to be signed by Joseph P. Sullivan, its President and Jay D. Proops, its
Secretary, this 20th day of March, 1991.
KAC HOLDINGS, INC.
By /s/ JOSEPH P. SULLIVAN
-------------------------------------
Joseph P. Sullivan, President
ATTEST:
/s/ JAY D. PROOPS
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Jay D. Proops, Secretary
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CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
THE VIGORO CORPORATION
THE VIGORO CORPORATION, a Delaware corporation (the "Corporation"),
organized and existing under and by virtue of the Delaware General
Corporation Law, DOES HEREBY CERTIFY AS FOLLOWS:
FIRST: That the Board of Directors of the Corporation, by unanimous
written consent of its members, filed with the minutes of the board, adopted
resolutions proposing and declaring advisable the following amendments to the
Certificate of Incorporation:
(i) That Article THIRD of the Certificate of Incorporation is hereby
amended in its entirety to read as follows:
"THIRD: The nature of the business or purposes to be conducted
or promoted is to engage in any business in which the Corporation
was engaged on March 21, 1991, in producing, manufacturing and
distributing any products sold by the Corporation on March 21, 1991
and in producing, manufacturing, distributing and selling any
related products, components, derivatives and services and engaging
in any similar or related businesses and any lawful act or activity
related thereto."
(ii) That Paragraph (3) of Article FOURTH of the Certificate of
Incorporation is hereby amended in its entirety to read as follows:
"(3) Subject to the provisions of this Article FOURTH and of the
Delaware General Corporation Law, the holders of Common stock shall
have one vote per share of common stock on all matters on which
holders of Common stock are entitled to vote.
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(iii) That the first sentence of Paragraph (1) of Article SIXTH of the
Certificate of Incorporation is hereby amended in its entirety to
read as follows:
"The number of directors of the Corporation shall be determined in
accordance with the By-Laws."
(iv) That Paragraph (5) of Article SIXTH of the Certificate of
Incorporation is hereby amended in its entirety to read as follows:
"(5) In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to adopt,
amend or repeal the By-laws of the Corporation."
(v) That the first line of Paragraph (6) of Article SIXTH of the
Certificate of Incorporation is hereby amended by replacing the
word "four" with the phrase "eighty percent".
(vi) That the Certificate of Incorporation is hereby amended by the
addition of Article NINTH:
"NINTH: (a) The Corporation shall indemnify (i) any person who
was a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment
in its favor by reason of the fact that such person 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 or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including
attorneys' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit,
and (ii) any person who was or is party or is threatened to be made
a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director, officer, employee
or agent of the Corporation or who is or was serving at the request
of the Corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably
incurred by him in connection with any such action, suit or
proceeding, in each case to the fullest extent permissible under
Section 145 of the Delaware General Corporation Law, as amended from
time to time, or the indemnification provisions of any successor
statute.
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(b) The foregoing provisions of this Article NINTH shall be deemed
to be a contract between the Corporation and each director and
officer who serves in such capacity at any time while this Article
NINTH is in effect, and any repeal or modification thereof shall
not affect any rights or obligations then existing with respect to
any state of facts then or therefore existing or any action, suit
or proceeding theretofore or thereafter brought based in whole or
in part upon any such state of facts. The foregoing rights of
indemnification shall not be deemed exclusive of any other rights
to which any director or officer may be entitled apart from the
provisions of this Article NINTH. The Board of Directors in its
discretion shall have power on behalf of the Corporation to enter
into agreements with respect to the indemnification of
any person, other than a director or officer, made a party to any
action, suit or proceeding by reason of the fact that he, his
testator or intestate, is or was an employee, agent or otherwise
acting on behalf of the Corporation or serving at the request of
the Corporation as a director, officer employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise."
(vii) That the Certificate of Incorporation is hereby amended by the
addition of Article TENTH:
"TENTH: A director of the 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 any improper personal benefit. If the Delaware
General Corporation Law is amended after this Amendment to
Certificate of Incorporation becomes effective 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.
Any repeal or modification of the provisions of this Article
TENTH by the stockholders of the Corporation shall be prospective
only, and shall not adversely affect any limitation on the personal
liability of a director of the Corporation with respect to any act
or omission occurring prior to the effective
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date of such appeal or modification. In the event that any of the
provisions of this Article TENTH (including any provision within a
single sentence) is held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable, the remaining provisions
are severable and shall remain enforceable to the fullest extent
permitted by law."
(vii) That the Certificate of Incorporation is hereby amended by the
addition of Article ELEVENTH:
"ELEVENTH: A. For purposes of this Article ELEVENTH:
(1) The term "Act" means the Securities Exchange Act of 1934, as
amended.
(2) The term "Equity Security" means an equity security (within the
meaning ascribed to such term in Section 3(a)(11) of the Act)
of the Corporation which is registered pursuant to Section 12
of the Act.
(3) The term "Fair Market Value" means, in the case of
any Equity Security, the average of the last closing sale
price per share on the 30 most recent trading days on which a
sale of such Equity Security occurred preceding the earlier of
the date of any purchase subject to Section B of this Article
ELEVENTH, or the date of any agreement in respect thereof
(such earlier date, the "Valuation Date"), as quoted on the
principal United States securities exchange registered under
the Act on which the security is listed, or, if not so listed
or admitted to trading on any United States securities
exchange, as reported on the NASDAQ National Market System, or
if not so reported thereon, as the same shall be reported by
the National Quotation Bureau Incorporated, or if no such
quotations are available, the fair market value on the
Valuation Date of such security as determined by the Board of
Directors in good faith.
(4) The term "Person" shall mean any individual, corporation,
partnership, joint venture or other entity and shall include
any group comprised of such Person and any other Person with
whom such Person or any Affiliate or Associate of such Person
has any agreement, arrangement or understanding, directly or
indirectly, for the purpose of acquiring, holding, voting or
disposing, of Voting Stock, and any other Person who is a
member of such group.
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(5) The term "Five Percent Holder" shall mean and include any
Person which, together with such Person's Affiliates and
Associates, is (a) the Beneficial Owner of an aggregate of
five percent or more of the outstanding shares of any class
of Voting Stock of the Corporation, (b) any Affiliate or
Associate of any such Person, (c) was such a Beneficial Owner
at any time within the two-year period immediately prior to
the Valuation Date, or (d) is a purchaser or assignee of, or
has otherwise succeeded to, any Voting Stock which was at any
time within the two-year period immediately prior to the
Valuation Date owned by any such Beneficial Owner, if such
purchase, 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.
(6) The terms "Affiliate" and "Associate" shall have the meanings
ascribed to them in Rule 12b-2 of the General Rules and
Regulations under the Act.
(7) The term "Beneficial Owner" shall mean any Person who (i)
beneficially owns shares of Voting Stock within the meaning
of Rule 13d-3 of the General Rules and Regulations under the
Act or (ii) has the right to acquire Voting Stock (whether or
not such right is exercisable immediately) pursuant to any
agreement, contract, arrangement or understanding, or upon
the exercise of conversion rights, exchange rights, warrants or
options, or otherwise.
(8) The term "Voting Stock" shall mean all of the outstanding
shares of the Corporation's Common Stock, and the outstanding
shares of any class or series of stock entitled to vote on
each matter on which the holders of such Common Stock shall be
entitled to vote, and each reference to a vote or a proportion
of shares of Voting Stock shall refer to such proportion of
the votes entitled to be cast by all such shares.
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(9) In any determination whether a Person is a Five Percent
Holder for purposes of this Article ELEVENTH, the shares of
the relevant class of securities owned by such Person and the
aggregate amount of shares of the relevant class then
outstanding shall include all such securities deemed owned by
such Person and its Affiliates and Associates through
application of Paragraph A(7)(ii) of this Article ELEVENTH
but there shall not be included in the aggregate amount of
shares of the relevant class of securities then outstanding,
any other securities of such class which may be issuable to
any other Person pursuant to any agreement, contract,
arrangement or understanding, or upon exercise of conversion
rights, exchange rights, warrants or options, or otherwise.
B. Any direct or indirect purchase or other acquisition by the
Corporation of any Equity Security of any class or series from
any Five Percent Holder, if such Five Percent Holder has been
the Beneficial Owner of such security for less than two years
prior to the earlier of the date of such purchase or any
agreement in respect thereof, at a price in excess of the
Fair Market Value thereof, shall, except as hereinafter
expressly provided, require prior to the consummation thereof
of the affirmative vote of the holders of at least a majority
of the aggregate voting power of the Voting Stock, excluding
Voting Stock of which such Five Percent Holder is the
Beneficial Owner, voting together as a single class;
provided, however, that the foregoing majority voting
requirement shall not be applicable with respect to (i) any
purchase or other acquisition of an Equity Security made as
part of a tender or exchange offer by the Corporation to
purchase Equity Securities of the same class made on the same
terms to all holders of such securities and complying with
the applicable requirements of the Act and the rules and
regulations thereunder (or any successor provisions to the
Act, or such rules or regulations), (ii) a purchase program
effected on the open market approved by the Board of Directors
of the Corporation and not the result of a
privately-negotiated transaction, (iii) any optional or
required purchase, acquisition, exchange or redemption of an
Equity Security pursuant to the terms of such security, or
(iv) any purchase or acquisition approved by a disinterested
majority of the Board of Directors. Unless such majority
voting requirement is
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expressly inapplicable pursuant to the terms of the
immediately preceding provision, such affirmative vote shall
be required notwithstanding the fact that no vote may be
required not withstanding the fact that no vote may be
required or that a lesser percentage may be specified, by law
or any agreement with any national securities exchange, or
otherwise, and shall be in addition to any affirmative vote
of stockholders required by any provision of law, any other
provision of this Certificate of Incorporation or the By-Laws
of this Corporation, or any policy adopted by the Board of
Directors of this Corporation. In determining whether a Five
Percent Holder has been a Beneficial Owner of such security
for the time periods as above described, all periods of time
prior to the date of calculation when such Five Percent
Holder has been an Affiliate of a Five Percent Holder shall
be included.
C. The Board of Directors shall have the power to interpret all
the provisions of this Article ELEVENTH and their application
to a particular transaction, including, without limitation,
the power to determine (i) whether a Person is a Five Percent
Holder, (ii) the number of shares of Voting Stock or other
Equity Securities of which any Person and its Affiliates and
Associates are the Beneficial Owners, (iii) whether a Person
is an Affiliate or Associate of another, and (iv) what is
Fair Market Value and whether a price is above Fair Market
Value as of a given date. Any such determination made by the
Board of Directors shall be conclusive and binding to the
fullest extent permitted by law.
D. The provisions set forth in this Article ELEVENTH may not be
amended, altered, changed or repealed in any respect and no
provision inconsistent herewith shall be adopted unless such
action is approved by the affirmative vote of the holders of
at least 80 percent of the aggregate voting power of the Voting
Stock of the Corporation at any annual meeting of
shareholders or at any special meeting duly called for that
purpose, provided notice of such amendment, alteration,
change or repeal or adoption be included in the notice of the
special meeting; provided, however, that if there is a Five
Percent Holder who has been the Beneficial Owner of Voting
Stock for less than two
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years prior to the date of the vote, such action must also be
approved by the affirmative vote of the holders of at least
80 percent of the aggregate voting power of the Voting Stock
excluding Voting Stock of which any such Five Percent Holder
is the Beneficial Owner."
(ix) No other provisions of the Certificate of Incorporation are
amended by this Certificate.
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given unanimous written consent to said amendment in
accordance with the provisions of Section 228 of the Delaware General
Corporation Law.
THIRD: That the aforesaid amendment was duly adopted in accordance with the
applicable provisions of Section 242 and 228 of the Delaware General
Corporation Law.
IN WITNESS WHEREOF, The Vigoro Corporation has caused this Certificate to
be signed by Jay D. Proops, its President and by Karen E. Nyman, its
Assistant Secretary, this 25th day of March, 1991.
THE VIGORO CORPORATION
By: /s/ Jay D. Proops
--------------------------------
Jay D. Proops, President
ATTEST:
/s/ Karen E. Nyman
- ----------------------------
Karen E. Nyman,
Assistant Secretary
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CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
THE VIGORO CORPORATION
THE VIGORO CORPORATION, a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY AS FOLLOWS:
1. That the Board of Directors of the Corporation, at a meeting duly
called and held on September 29, 1994, at which a quorum was present, adopted
resolutions proposing and declaring advisable the following amendment to the
Certificate of Incorporation:
That ARTICLE THIRD of the Certificate of Incorporation be
amended in its entirety to read as follows:
"THIRD: The nature of the business or purposes to be
conducted or promoted 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 the
same may be amended from time to time."
2. That the stockholders of the Corporation, at a meeting duly
called and held pursuant to proper notice on November 10, 1994, at which a
quorum was present and voting, gave their consent, by at least a majority
vote of the outstanding stock entitled to vote, to the adoption of the
foregoing amendment in accordance with the provisions of Section 242 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, The Vigoro Corporation has caused this
Certificate of Amendment to be signed by Karen E. Nyman, its Vice President,
this 11th day of November, 1994.
THE VIGORO CORPORATION
By: /s/ Karen E. Nyman
--------------------------------
Karen E. Nyman
Vice President