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Exhibit 3.i(e)
CERTIFICATE OF INCORPORATION
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GSL CORPORATION
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FIRST: The name of the Corporation is GSL Corporation (hereinafter
sometimes called the "Corporation").
SECOND: The address of the Corporation's registered office in the State
of Delaware is Corporation Trust Center, 1209 Orange Street, City of
Wilmington, County of New Castle, State of Delaware 19801. The name of its
registered agent at such address is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or
promoted are to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the Corporation has
authority to issue is 1,300,000 shares, consisting of:
(1) 400,000 shares of Class A Common Stock, par value $.01 per share
("Class A Common");
(2) 200,000 shares of Class B Common Stock, par value $.01 per share
("Class B Common");
(3) 200,000 shares of Class C Common Stock, par value $.01 per share
("Class C Common");
(4) 200,000 shares of Class D Common Stock, par value $.01 per share
("Class D Common" and collectively
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with the Class B Common and the Class C Common, the "Class B Securities");
(5) 150,000 shares of Class E Common Stock, par value $.01 per share
("Class E Common"); and
(6) 150,000 shares of Class F Common Stock, par value $.01 per share
("Class F Common").
Class A Common, Class B Common, Class C Common, Class D Common, Class E
Common and Class F Common are collectively referred to herein as "Common
Stock." The Class C Common and Class D Common shall be issuable only as set
forth in Parts 4, 5, 6, and 7 of Section A below.
A. COMMON STOCK
Part 1. VOTING RIGHTS.
1A. GENERALLY. Except as specifically required under the General
Corporation Law of the State of Delaware and subject to Part 9 below, the
holders of Class A Common will be entitled to one vote per share and shall
vote as on, class one all matters to be voted on by the Corporation's
stockholders, provided that no amendment to this Section A of Article Fourth
shall be effective without the concurrence of a majority of each class of
Common Stock, voting separately. Except as provided herein and as otherwise
provided by law, the holders of Class B Common, Class C Common, Class D
Common, Class E Common and Class F Common will have no voting rights.
1B. ELECTION OF DIRECTORS. The number of directors which shall constitute
the Board of Directors shall be not less than three nor more than five which
exact number shall be established in the By-laws of the Corporation and
shall initially be three. At all elections of directors, each holder of
Class A Common shall be entitled to as may votes as shall equal the number of
votes which (except for this provision as to cumulative voting) it would be
entitled to cast for the election of directors with respect to his shares of
Class A Common multiplied by the number of directors to be elected, and may
cast all such votes for a single director or may distribute them among any
two or more of the directors to be voted for as he sees fit.
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1C. VOTING RIGHTS OF CLASS B COMMON, CLASS C COMMON AND CLASS D COMMON.
In addition to the rights set forth in Part 9, the holders of Class B Common,
Class C Common and Class D Common shall be entitled to voting rights with
respect to all or any portion of its shares identical to those voting rights
of the holders of Class A Common and to be considered members of the same
class as the holders of Class A Common in the event that there is a proposal
to amend any provision of this Restated Certificate of Incorporation; provided,
however, that the voting rights conferred pursuant to this Section would not
enable any holder of Class B Securities to vote more than 50% of the aggregate
number of shares of Common Stock eligible to vote.
Part 2. DIVIDENDS.
When and as dividends are declared thereon, the holders of Common Stock
will be entitled to share equally, share for share, in such dividends.
Part 3. LIQUIDATION.
The holders of Common Stock then outstanding shall be entitled to
receive ratably all remaining assets of the Corporation to be distributed
upon any liquidation, dissolution or winding up of the Corporation.
Part 4. CLASS B COMMON AND CONVERSION.
4A. MANDATORY CONVERSION. On July 1, 1993, without any action on the part
of any holder of Class B Common, all issued and outstanding shares of Class B
Common shall be converted into shares of Class C Common as follows:
(1) If the Cumulative EBITD of the Corporation (as defined in Part
4B) for the three fiscal years ending March 27, 1993 is less the EBITD
Target A (as defined in Part 4B), each share of Class B Common issued and
outstanding on such date shall be converted into one share of Class C
Common; or
(2) If the the Cumulative EBITD of the Corporation for the three
fiscal years ending March 27, 1993 equals or exceeds EBITD Target A, each
share of Class B Common issued and outstanding on such date shall be
converted into 0.81818 shares of Class C Common.
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4B. DEFINITIONS.
As used in this Part 4 or in Part 5:
(1) The term "Cumulative EBITD" of the Corporation shall mean
the sum of the following (without duplication) for the Corporation and
its direct and indirect subsidiaries and NAMSCO Inc. and its direct and
indirect subsidiaries, each on a consolidated basis, determined by the
Corporation's independent certified public accountants in accordance
with generally accepted accounting principles as at March 30, 1990: (i)
net earnings (or loss) after taxes for such period, PLUS (ii) amounts
deducted from net revenues in determining such net earnings (or loss) on
account of (x) depreciation and amortization, (y) interest expense (net
of interest income) and (z) taxes on income, PLUS (iii) non-recurring
losses for such period, MINUS (iv) nonrecurring gains for such period,
PLUS (v) the average annual EBITD contribution for the last 12 fiscal
quarters immediately preceding their sale of any assets sold by the
Corporation (or any subsidiary of the corporation) after March 31, 1990
including the stock of a subsidiary.
(2) The terms "EBITD Target A," EBITD Target B" and "EBITD
Target C" shall have the meanings ascribed thereto in the Stockholders
Agreement.
4C. CANCELLATION OF CLASS B COMMON SHARES. Upon the conversion of
shares of Class B Common into shares of Class C Common as set forth in
Subpart 4A above, all shares of Class B Common issued and outstanding shall
be canceled and no further Class B Common shares shall be issued. Each holder
of a stock certificate or certificates representing share of Class B Common
outstanding immediately prior to such cancellation, upon surrender of such
certificate or certificates to the Corporation, shall be entitled to receive
a stock certificate or certificates, as the case may be, representing the
number of shares of Class C Common calculated in accordance with Subpart 4A
above for each shares of Class B Common held immediately prior to
cancellation. The issuance of certificates for Class C Common upon the
conversion of Class B Common, will be made without charge to holders of such
shares for any issuance tax in respect thereof or other costs incurred by the
Corporation in connection with such conversion and the related issuance of
Class C Common. The Corporation will not close its books against the transfer
of shares of Class
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B Common in any manner which interferes with the timely conversion of any
shares of Class B Common.
Part 5. CLASS C COMMON CONVERSION.
5A. MANDATORY CONVERSION. On July 1, 1995, without any action on the
part of any holder of Class C Common, all issued and outstanding shares of
Class C Common shall be converted into shares of Class D Common as follows:
(1) If the Cumulative EBITD of the Corporation for the five
fiscal years ending March 25, 1995 is less than EBITD Target B, each
share of Class C Common issued and outstanding on such date shall be
converted into one share of Class D Common; or
(2) If the Cumulative EBITD of the Corporation for the five
fiscal years ending March 25, 1995 equals or exceeds EBITD Target B but
is less than EBITD Target C, (a) in the event that shares of Class C
Common were issued pursuant to Subpart 4A(1) above, then each share of
Class C Common issued and outstanding on such date shall be converted
into 0.66667 shares of Class D Common and (b) in the event that shares
of Class C Common were issued pursuant to Subpart 4A(2) above, then each
share of Class C Common issued and outstanding on such date shall be
converted into 0.81481 shares of Class D Common; or
(3) If the Cumulative EBITD of the Corporation for the five
fiscal years ending March 25, 1995 equals or exceeds EBITD Target C, (a)
in the event that shares of Class C Common were issued pursuant to
Subpart 4A(1) above, then each share of Class C Common issued and
outstanding on such date shall be converted into 0.53846 shares of Class
D Common and (b) in the event that shares of Class C Common were issued
pursuant to Subpart 4A(2) above, then each share of Class C Common
issued and outstanding on such date shall be converted into 0.65812
shares of Class D Common.
5B. CANCELLATION OF CLASS C COMMON SHARES. Upon the conversion of shares
of Class C Common into shares of Class D Common as set forth in subpart 5A
above, all shares of Class C Common issued and outstanding shall be canceled
and no further Class C Common shares shall be issued. Each holder of a stock
certificate or certificates representing shares of Class C Common outstanding
immediately prior to
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such cancellation, upon surrender of such certificate or certificates to the
Corporation, shall be entitled to receive a stock certificate or
certificates, as the case may be, representing the number of shares of Class
D Common calculated in accordance with Subpart 5A above for each share of
Class C Common held immediately prior to cancellation. The issuance of
certificates for Class D Common upon the conversion of Class C Common, will
be made without charge to holders of such shares for any issuance tax in
respect thereof or other costs incurred by the Corporation in connection with
such conversion and the related issuance of Class D Common. The Corporation
will not close its book against the transfer of shares of Class C Common in
any manner which interferes with the timely conversion of any shares of Class C
Common.
Part 6. ALTERNATIVE CLASS B COMMON OR CLASS C COMMON CONVERSION
6A. MANDATORY CASH OUT CONVERSION. If at any time prior to July 1, 1995,
there has been a "Cash Out" (as defined in the Senior Note Agreement), then,
without any action on the part of any holder of Class B Common or Class C
Common, all issued and outstanding shares of Class B Common or Class C Common
shall be converted into shares of Class D Common as follows:
(1) If the Time Weighted ROI is less than 23% or the Minimum Capital
Return is less than $115,500,000, then each share of Class B Common or Class
C Common issued and outstanding on the date of the Cash Out shall be
converted into one share of Class D Common;
(2) If the Time Weighted ROI is at least 23% but less than 25% and the
Minimum Capital Return is at least $115,500,000, (a) in the event that (i)
shares of Class B Common are issued and outstanding or (ii) shares of Class C
Common were issued pursuant to Subpart 4A(1) above, then each share of Class
B Common or Class C Common issued and outstanding on the date of the Cash
Out, as the case may be, shall be converted into 0.81818 shares of Class D
Common and (b) in the event that shares of Class C Common were issued
pursuant to Subpart 4A(2) above, then each share of Class C Common issued and
outstanding on the date of the Cash Out shall be converted into one share of
Class D Common;
(3) If the Time Weighted ROI is at least 25% but less than 27% and the
Minimum Capital Return is at least $130,900,000, (a) in the event that (i)
shares of Class B
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Common are issued and outstanding or (ii) shares of Class C Common were
issued pursuant to Subpart 4A(1) above, then each share of Class B Common or
Class C Common issued and outstanding on the date of the Cash Out shall be
converted into 0.66667 shares of Class D Common and (b) in the event that
shares of Class C Common were issued pursuant to Subpart 4A(2) above, then
each share of Class C Common issued and outstanding on the date of the Cash
Out, as the case may be, shall be converted into 0.81481 shares of Class D
Common; or
(4) If the Time Weighted ROI is at least 27% and the Minimum Capital
Return is at least $146,300,000, (a) in the event that (i) shares of Class B
Common are issued and outstanding or (ii) shares of Class C Common were
issued pursuant to Subpart 4A(1) above, then each share of Class B Common or
Class C Common, as the case may be, shall be converted into 0.53846 shares of
Class D Common, and (b) in the event that shares of Class C Common were
issued pursuant to Subpart 4A(2) above, then each share of Class C Common
issued and outstanding on the date of the Cash Out shall be converted into
0.65812 shares of Class D Common.
6B. DEFINITION OF TIME WEIGHTED ROI AND MINIMUM CAPITAL RETURN. The
term "Time Weighted ROI" shall mean that rate of return at which the
discounted value (compounded semi-annually) of each cash payment (including
interest, pre-payment premium and dividends) with respect to the subordinated
debt issued under the Subordinated Note Agreement, the preferred stock and
Class B Common Stock, Class C Common Stock and Class D Common Stock of NAMSCO
Inc. and the Class D Common (after giving effect to the mandatory conversion
described herein), including all payments in connection with the Cash Out
equals $77 million. The term "Minimum Capital Return" shall mean the sum of
all cash payments made with respect to (i) the principal amount of the
subordinated debt issued under the Subordinated Note Agreement (including any
prepayment premium but excluding payments of interest thereon), (ii) the
stated value of the preferred stock of NAMSCO Inc. (but excluding payments
with respect to accrued dividends added to such stated value and excluding
payments with respect to shares of preferred stock of NAMSCO Inc. issued as
dividends), (iii) the shares of Class D Common (after giving effect to the
mandatory conversion described herein) and (iv) the shares of Class B Common,
Class C Common and Class D Common of NAMSCO Inc.
6C. CANCELLATION OF CLASS B COMMON OR CLASS C COMMON SHARES. Upon the
conversion of shares of Class B
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Common or Class C Common into shares of Class D Common as set forth in
Subpart 6A above, all shares of Class B Common or Class C Common issued and
outstanding shall be canceled and no further Class B Common or Class C Common
shares shall be issued. Each holder of a stock certificate or certificates
representing shares of Class B Common or Class C Common outstanding
immediately prior to such cancellation, upon surrender of such certificate or
certificates to the Corporation, shall be entitled to receive a stock
certificate or certificates, as the case may be, representing the number of
shares of Class D Common calculated in accordance with Subpart 6A above for
each share of Class B Common or Class C Common held immediately prior to
cancellation. The issuance of certificates for Class D Common upon the
conversion of Class B Common or Class C Common, will be made without charge
to holders of such shares for any issuance tax in respect thereof or other
costs incurred by the Corporation in connection with such conversion and the
related issuance of Class D Common. The Corporation will not close its book
against the transfer of shares of Class B Common or Class C Common in any
manner which interferes with the timely conversion of any shares of Class B
Common or Class C Common.
Part 7. ANTI-DILUTION PROTECTION
7A. Notwithstanding anything to the contrary contained in Part 4, Part
5 or Part 6 above, in the event that the Corporation shall issue shares of
Class A Common, Class E Common or Class F Common other than First Refusal
Securities (as defined in the Stockholders Agreement), or shares issued with
the prior written consent of a majority of the Class B Securities, the
conversion ratios contained Part 4, Part 5 and Part 6 shall be adjusted so
that, after any such conversion
(1) the holders of Class C Common shall hold, in the aggregate, no less
than
(a) 50% of the outstanding Common Stock of the Corporation if such
conversion occurs pursuant to Subpart 4A(1), or
(b) 45% of the outstanding Common Stock of the Corporation if such
conversion occurs pursuant to Subpart 4A(2); and
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(2) the holders of Class D Common shall hold, in the aggregate, no less
than
(a) 50% of the outstanding Common Stock of the Corporation if such
conversion occurs pursuant to Subpart 4A(1) and either (i)
Subpart 5A(1) or (ii) Subpart 6A(1), or
(b) 45% of the outstanding Common Stock of the Corporation if such
conversion occurs pursuant to (i) Subpart 4A(2) and either (A)
Subpart 5A(1) or (B) Subpart 6A(1) or (ii) Subpart 6A(2), or
(c) 40% of the outstanding Common Stock of the Corporation if such
conversion occurs pursuant to (i) Subpart 5A(2) or (ii)
Subpart 6A(3), or
(d) 35% of the outstanding Common Stock of the Corporation if such
conversion occurs pursuant to (i) Subpart 5A(3) or (ii)
Subpart 6A(4).
7B. After July 1, 1995, in the event that the Corporation shall issue
such shares of Class A Common, Class E Common or Class F Common other than
First Refusal Securities or shares issued with the prior written consent of a
majority of the Class B Securities, the Corporation shall issue such shares
of Class D Common, pro rata to the holders thereof to maintain the percentage
of the issued and outstanding Common Stock represented by the issued and
outstanding Class D Common. In the event that shares of Class D Common are
issued pursuant to this Subpart 7B and, as a result of a "determination" as
defined in Section 1313(a) of the Internal Revenue Code of 1986, as amended
(the "Code"), any holder is treated as receiving a distribution pursuant to
Code Section 301, then the Corporation shall hold such holder harmless from
such distribution on an after-tax basis.
Part 8. CONVERSION OF CLASS E COMMON AND CLASS F COMMON.
8A. In connection with, or the reasonable expectation of, (i) any
public offering or public sale of Class A Common (including a registered
offering and a sale pursuant to Rule 144 issued by the Securities and Exchange
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Commission or any similar rule then in force), (ii) the sale to any person or
group of persons (as defined in Section 13(d)(3) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) of securities possessing in the
aggregate the ordinary voting power to elect a majority of the Corporation's
directors, which sale has been approved by the Corporation's board of
directors, (iii) the sale to any person or group of persons (as defined in
Section 13(d)(3) of the Exchange Act) (provided such person or group of
persons immediately after such sale owns or has the right to acquire not more
than 2 percent of the Class A Common then outstanding), (iv) the sale to any
person or group of persons that possess or will possess in the aggregate the
ordinary voting power to elect a majority of the Corporation's directors
(excluding the shares of Class E Common and Class F Common being converted);
or (v) any merger or consolidation pursuant to which any person or group of
persons will possess in the aggregate the ordinary voting power to elect a
majority of the Corporation's directors, which merger or consolidation has
been approved by the Corporation's board of directors, each record holder of
Class E Common or Class F Common is entitled to convert into the same number
of shares of Class A Common any or all of such holder's shares of Class E
Common or Class F Common actually being distributed to the public, sold to an
underwriter, broker-dealer or market maker for actual sale to the public or
sold to the third-party purchaser. The Corporation will at all times reserve
and keep available out of its authorized but unissued shares of Class A
Common, solely for issue upon such exchanges, the number of shares deemed
sufficient by the Corporation for such purposes.
8B. (i) Each conversion of shares of Class E Common or Class F Common
into shares of Class A Common will be effected by the surrender of the
certificate or certificates representing the shares to be converted at the
principal office of the Corporation at any time during normal business hours,
together with a written notice by the holder of such Class E Common or Class
F Common stating that such holder desires to convert the shares, or a stated
number of the shares, of such Class E Common or Class F Common represented by
such certificate or certificates into shares of Class A Common. Such
conversion will be deemed to have been effected as of the close of business
on the date on which such certificate or certificates have been surrendered
and such notice has been received, and at such time the rights of the holder
of the converted Class E Common or Class F Common as such holder will cease
and the person or persons in whose name or names the certificate or
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certificates for shares of Class A Common are to be issued upon such
conversion will be deemed to have become the holder or holders of record of
the shares of Class A Common represented thereby.
(ii) Promptly after such surrender and the receipt of such
written notice, the Corporation will issue and deliver in accordance with the
surrendering holder's instructions (a) the certificate or certificates for the
Class A Common issuable upon such conversion and (b) a certificate
representing any Class E Common or Class F Common which was represented by
the certificate or certificates delivered to the Corporation in connection
with such conversion but which was not converted.
(iii) The issuance of certificates for Class A Common upon
conversion of Class E Common or Class F Common will be made without charge to
the holders of such shares for an issuance tax in respect thereof or other
cost incurred by the Corporation in connection with such conversion and the
related issuance of Class A Common.
(iv) The Corporation will not close its books against the
transfer of shares of Common Stock in any manner which would interfere with
the timely conversion of any shares of Common Stock.
Part 9. ADDITIONAL VOTING RIGHTS OF CLASS B COMMON, CLASS C COMMON,
CLASS D COMMON AND CLASS F COMMON.
9A. Upon the occurrence of a Conversion Event, each Institutional
Holder, within a period of 60 days after the occurrence of such Conversion
Event, or within 60 days after the acquisition of Class B Common, Class C
Common, Class D Common or Class F Common by any transferee, such transferee,
at its option, upon written notice given in accordance with this Subpart 9A,
shall be entitled to voting rights with respect to all or any portion of its
shares identical to those voting rights of the holders of Class A Common and
to be considered members of the same class as the holders of Class A Common
in all matters. Notice of the exercise of the option conferred pursuant to
this Subpart 9A shall be given to the Board of Directors of the Corporation
not less than 10 days prior to the date of the first stockholders' vote in
which the holder of Class B Common, Class C Common, Class D Common or Class F
Common exercising such option desires, but would not otherwise be able, to
participate provided a notice thereof has been duly delivered in accordance
with paragraph 9L of the Stockholders Agreement. The allocation of voting
rights to
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shares of Class B Common, Class C Common, Class D Common, or Class F Common
pursuant to this option shall be irrevocable.
9B. For purposes of this Section A of Article Fourth, the following
terms shall have the following meaning:
"CONVERSION EVENT" means any of the following events (as reasonably
determined by any Institutional Holder in a written notice to the Corporation):
(i) the Corporation shall have registered any of its shares of
Capital Stock under the Securities Act of 1933, as amended (the "Securities
Act"), for the purpose of offering such shares to the public, either on its
own behalf or on behalf of one or more of the holders of such shares;
(ii) more than thirty percent (30%) of the aggregate voting power
of all then outstanding shares of Class A Common (including securities
convertible or exchangeable by their terms into Class A Common) and all
other securities of the Corporation with similar general voting rights
(including securities convertible or exchangeable by their terms into such
securities and any shares of Class B Common, Class C Common, Class D Common
or Class F Common granted voting rights pursuant to this Part 9) shall be
held (a) by any person other than a Designated Stockholder (as defined below)
or (b) by any two or more persons who "act as a partnership, limited
partnership, syndicate or other group for the purpose of acquiring, holding
or disposing of securities" of the Corporation within the meaning of Section
13(d)(3) of the Exchange Act (other than a partnership, limited partnership,
syndicate or other group a majority of the voting power of which may be
exercised by Designated Stockholders). For the purposes of this paragraph, a
"Designated Stockholder" means Messrs. D. George Harris, Anthony J.
Petrocelli, Richard J. Donahue and Mark C. Demetree and CMIHI or any
Affiliate of such stockholders;
(iii) the Corporation shall merge or consolidate with any Person
(other than pursuant to transactions involving the merger of the Corporation
with any wholly-owned subsidiary) or shall sell all or substantially all of
the Corporation's assets or earning power to another person;
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(iv) holders of Class B Common, Class C Common, Class D Common or
Class F Common shall at any time beneficially own, directly or indirectly, on
a fully-diluted basis, less than twenty percent (20%) of the outstanding
shares of Common Stock on a fully-diluted basis;
(v) the Corporation has suffered an event of default, and such
event of default has not been waived or cured, under any agreement pursuant
to which the Corporation or any of its Subsidiaries has incurred indebtedness
for borrowed money; or
(vi) the Corporation or any of its Subsidiaries has failed to make
payment when due on any indebtedness for borrowed money pursuant to any debt
instrument held by Prudential, and such failure to pay has not been waived or
cured.
"CMIHI" means Chase Manhattan Investment Holdings, Inc. and its
affiliates.
"FIRST PLAZA" means First Plaza Group Trust and its affiliates.
"INSTITUTIONAL HOLDER" means Prudential, so long as Prudential
shall hold any security of the Corporation, First Plaza so long as First
Plaza shall hold any security of the Corporation, and each other Person which
shall hold shares of Class B Securities representing fifteen percent (15%) or
more of the shares of such class at the time outstanding (other than a Person
which acquired all of the securities in a public offering registered under
the Securities Act of 1933 or as the direct or indirect transferee of
securities so acquired).
"PRUDENTIAL" shall mean The Prudential Insurance Company of America
and its affiliates.
"SENIOR NOTE AGREEMENT" means the Senior Secured Note Agreement
dated as of March 28, 1990 among Sifto Canada Inc. and the other parties
named therein and the agreements entered into in connection therewith, as the
same may be amended, endorsed, supplemented or otherwise modified from time
to time.
"STOCKHOLDERS AGREEMENT" means the Stockholders Agreement dated as
of September 26, 1991 among the Corporation and its stockholders.
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"SUBORDINATED NOTE AGREEMENT" means the Subordinated Note Agreement
dated as of March 28, 1990 among North American Salt Company and the other
parties named therein as the same may be amended, endorsed, supplemented or
otherwise modified from time to time.
B. ISSUANCE OF STOCK
Part 1. Except as otherwise provided in this Certificate of
Incorporation, the Board of Directors shall have authority to authorize the
issuance, from time to time, without any vote or other action by the
stockholders, of any or all shares of stock of the Corporation of any class
or series at any time authorized, and any securities convertible into or
exchangeable for any such shares, and any options, rights or warrants to
purchase or acquire any such shares, in each case to such persons and on such
terms (including as a dividend or distribution on or with respect to, or in
connection with a split or combination of, the outstanding shares of stock of
the same or any other class or series) as the Board of Directors from time to
time in its discretion lawfully may determine. Shares so issued shall be
fully paid stock, and the holders of such stock shall not be liable to any
further call or assessments thereon.
Part 2. STOCK SPLITS; ADJUSTMENTS, ETC.
If the Corporation shall in any manner subdivide or combine the
outstanding shares of one class of Common Stock, the outstanding shares of
the other classes of Common Stock shall be proportionately subdivided or
combined, as the case may be. In the event that the Corporation shall make a
rights offering to holders of shares of one class of Common Stock of the
Corporation, the Corporation shall simultaneously make another such rights
offering to the holders of shares of the other classes of Common Stock on the
same terms.
FIFTH: The name and mailing address of the incorporator is as follows;
James M. Curtis
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza, 24 Whitehall Street
New York, New York 10004-1490
SIXTH: The following additional provisions are inserted for the
management of the business and for the conduct of the affairs of the
Corporation, and for the
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creation, definition, limitation and regulation of the powers of the
Corporation, the directors and the stockholders:
1. Election of directors need not be by written ballot. The Board of
Directors shall have power to make, alter, amend and repeal the By-Laws of
the Corporation and to fix the compensation of directors for services in any
capacity.
2. Any corporate action, with respect to which the vote of the
stockholders at a meeting thereof is required or permitted by any provision
of the General Corporation Law of the State of Delaware or of the Certificate
of Incorporation or the By-Laws of the Corporation, is authorized to be taken
and may be taken without that vote and meeting, and that vote and meeting may
be dispensed with, with the written consent of the holders of a majority (or,
if with respect to a particular corporate action where the General
Corporation Law of the State of Delaware or the Certificate of Incorporation
or the By-Laws of the Corporation specifies a greater percentage, by the
holders of that greater percentage) of the stock that would have been
entitled to vote upon that action if a meeting were held. Prompt notice shall
be given to all stockholders of the taking of any corporate action pursuant
to the provisions of this paragraph 2 unless that action has been consented
to in writing by the holders of all of the stock that would have been
entitled to vote upon that action if a meeting were held.
3. 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 (a) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (b) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (c) under Section 174 of the General Corporation
Law of the State of Delaware or (d) for any transaction from which the
director derived an improper personal benefit.
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.
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4. The Corporation shall not be governed by Section 203 of the General
Corporation Law of the State of Delaware.
SEVENTH: The Corporation shall indemnify any person who was or is a
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, including an action by or in the right of the Corporation,
by reason of the fact that he, or the person whose legal representative he
is, (1) is or was a stockholder, director, officer, employee or agent of the
Corporation (including the incorporator thereof), or (2) 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,
or (3) is or was a director, officer or employee of the Corporation serving
at the request of the Corporation as a fiduciary of an employee benefit plan
or trust maintained for the benefit of employees of the Corporation or
employees of any such other enterprise, partnership, joint venture, trust, or
other enterprise, against judgments, fines, penalties, amounts paid in
settlement, and expenses, including attorneys' fees, actually and reasonably
incurred by him and the person whose legal representative he is, in
connection with such action, suit or proceeding, or any appeal therein, to
the fullest extent permitted by law.
Expenses which may be indemnifiable under this Section incurred in
defending an action, suit or proceedings may be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding as
authorized by the Board of Directors upon agreement by or on behalf of the
stockholder, director, officer, employee or agent, or his legal
representative, to repay such amount if he is later found not entitled to be
indemnified by the Corporation as authorized in this Article Seventh.
The Corporation shall not indemnify any stockholder, director, officer,
employee or agent against judgments, fines, amounts paid in settlement and
expenses, including attorneys' fees, to an extent greater than that
authorized by this Article Seventh but the Corporation may procure insurance
providing greater indemnification and may share the premium cost with any
stockholder, director, officer, employee or agent on such basis as may be
agreed upon.
<Page>
-17-
IN WITNESS WHEREOF, I, the undersigned, being the incorporator named
above, have hereunto set my hand and seal this 18th day of September, 1991.
/s/ James M. Curtis
--------------------------------------
Incorporator
<Page>
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED that on this 18th day of September, 1991,
personally came before me Daniel S. Margetanski, a Notary Public in and for
the County and State aforesaid, James M. Curtis, parties to the foregoing
Certificate of Incorporation, known to me personally to be such, and
acknowledged that it is the act and deed of each of them and that the facts
stated therein are true.
GIVEN under my hand and seal of office the day and year aforesaid.
/s/ Daniel S. Margetanski
---------------------------------------------
NOTARY PUBLIC
DANIEL S. MARGETANSKI
Notary Public, State of New York
No. 31-4965489
Qualified in New York County
Commission Expires April 23, 1992
<Page>
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
GSL CORPORATION
*****
Adopted in accordance with the provisions
of Section 242 of the General Corporation Law
of the State of Delaware
*****
Rose Marie Williams, being the Secretary of GSL Corporation, a corporation
duly organized and existing under and by virtue of the General Corporation
Law of the State of Delaware (the "Corporation"), does hereby certify as
follows:
FIRST: That the Certificate of Incorporation of the Corporation be, and
hereby is, amended by deleting Paragraph 1B of Part One of Section A of
Article Fourth in its entirety and substituting in lieu thereof a new
Paragraph 1B of Part One of Section A of Article Fourth to read as follows:
"FOURTH:
A. COMMON STOCK
Part 1. VOTING RIGHTS.
1B. ELECTION OF DIRECTORS. The number of directors which
shall constitute the Board of Directors shall be not less than
one nor more than three which exact number shall be
established in the By-Laws of the Corporation."
SECOND: That the Board of Directors of the Corporation approved the
foregoing amendment by unanimous written consent pursuant to the provisions
of Section 141(f) and 242 of the General Corporation Law of the State of
Delaware and directed that such
<Page>
amendment be submitted to the stockholders of the Corporation entitled to
vote thereon for their consideration, approval and adoption thereof.
THIRD: That the stockholders entitled to vote thereon approved the
foregoing amendment by written consent in accordance with Section 228 and 242
of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned does hereby certify under penalties
of perjury that this Certificate of Amendment to the Certificate of
Incorporation of the Corporation is the act and deed of the undersigned and
the facts stated herein are true and accordingly has hereunto set her hand
this 12th day of January, 2001.
/s/ Rose Marie Williams
-----------------------
GSL Corporation, a Delaware corporation
By: Rose Marie Williams
Its: Secretary
<Page>
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
GSL CORPORATION
*****
Adopted in accordance with the provisions
of Section 242 of the General Corporation Law
of the State of Delaware
*****
Rose Marie Williams, being the Secretary of GSL Corporation, a
corporation duly organized and existing under and by virtue of the General
Corporation Law of the State of Delaware (the "Corporation"), does hereby
certify as follows:
FIRST: That the Certificate of Incorporation of the Corporation be, and
hereby is, amended by deleting Paragraph 1B of Part One of Section A of
Article Fourth in its entirety and substituting in lieu thereof a new
Paragraph 1B of Part One of Section A of Article Fourth to read as follows:
The number of directors which shall constitute the
Board of Directors shall be not less than one nor more
than three which exact number shall be
established in the By-Laws of the Corporation.
SECOND: That the Board of Directors of the Corporation approved the
foregoing amendment by unanimous written consent pursuant to the provisions
of Section 141(f) and 242 of the General Corporation Law of the State of
Delaware and directed that such
<Page>
amendment be submitted to the stockholders of the Corporation entitled to
vote thereon for their consideration, approval and adoption thereof.
THIRD: That the stockholders entitled to vote thereon approved the
foregoing amendment by written consent in accordance with Section 228 and 242
of the General Corporation Law of the State of Delaware.
*****
<Page>
IN WITNESS WHEREOF, the undersigned does hereby certify under penalties
of perjury that this Certificate of Amendment to the Certificate of
Incorporation of the Corporation is the act and deed of the undersigned and
the facts stated herein are true and accordingly has hereunto set her hand
this ____ day of January, 2001.
/s/ Rose Marie Williams
---------------------------------------
GSL Corporation, a Delaware corporation
By: Rose Marie Williams
Its: Secretary