EXHIBIT 3.3
RESTATED
CERTIFICATE OF INCORPORATION
FOR
PARTECH HOLDINGS CORPORATION
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PARTECH HOLDINGS CORPORATION, a Corporation originally incorporated March
25, 1985, organized and existing under and by virtue of the general
Corporation Law of the state of Delaware,
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of Partech Holdings
Corporation on January 24, 1994, resolutions were duly adopted setting forth a
proposed Restated Certificate of Incorporation of said Corporation, declaring
said Restated Certificate to be advisable and calling a meeting of the sole
stockholder of said Corporation for consideration thereof. The resolution
setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this Corporation be
restated by changing all of the Articles thereof and filing a Restated
Certificate of Incorporation so that said Certificate shall read as follows:
PARTECH HOLDINGS CORPORATION
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RESTATED CERTIFICATE OF INCORPORATION
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Article First
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Name
The name of the Corporation is Partech Holdings Corporation.
Article Second
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Registered Office
The address of the registered office of Partech Holdings Corporation (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
its registered agent at such address is The Corporation Trust Company.
Article Third
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Purposes
The nature of the business to be conducted or promoted and the purpose of
the Corporation 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.
Article Fourth
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Capital Stock Classes
The total number of shares of all classes of capital stock which the
Corporation has the authority to issue is 51,000,000 shares. The shares are
divided into two classes as follows:
1. 1,000,000 shares of preferred stock, par value One Cent ($0.01) per
share (Preferred Stock), and
2. 50,000,000 shares of common stock, par value Five Cents ($0.05) per
share (Common Stock).
The designations of voting powers, preferences, preemptive rights, options
and other special rights and qualifications, limitations or restrictions of
the above classes of stock are as follows:
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I. Preferred Stock
1. Issuance in Series.
Shares of Preferred Stock may be issued in one or more series at such time
or times, and for such consideration or considerations as the Board of
Directors may determine. All shares of any one series of Preferred Stock will
be identical with each other in all respects, except that shares of one series
issued at different times may differ as to dates from which dividends thereon
may be cumulative. All series will rank equally and be identical in all
respects, except as permitted by the following provisions of paragraph 2 of
this Division I.
2. Authority of the Board with Respect to Series.
The Board of Directors is authorized, at any time and from time to time,
to provide for the issuance of shares of Preferred Stock in one or more series
with such designations, preferences and relative, participating, optional or
other special rights and qualifications, limitations or restrictions thereof
as are stated and expressed in the resolution or resolutions providing for the
issue thereof adopted by the Board of Directors, and if not restricted by this
Certificate of Incorporation or any amendment thereto including, but not
limited to, determination of any of the following:
(a) the distinctive serial designation and the number of shares
constituting a series;
(b) the dividend rate or rates, whether dividends are cumulative and, if
so, from which date, the payment date or dates for dividends, and the
participating or other special rights, if any, with respect to dividends;
(c) the voting powers, full or limited, if any, of the shares of the
series;
(d) whether the shares are redeemable and, if so, the price or prices at
which, and the terms and conditions under which, the shares may be redeemed;
(e) the amount or amounts payable upon the shares in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation prior to any payment or distribution of the assets of the
Corporation to any class or classes of stock of the Corporation ranking junior
to the Preferred Stock;
(f) whether the shares are entitled to the benefit of a sinking or
retirement fund to be applied to the purchase or redemption of shares of a
series and, if so entitled, the amount of the fund and the manner of its
application, including the price or prices at which the shares may be redeemed
or purchased through the application of the fund;
(g) whether the shares are 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 of stock of the Corporation and, if so convertible or
exchangeable, the conversion price or prices, or the rates of exchange, and
the adjustments thereof, if any, at which the conversion or exchange may be
made, and any other terms and conditions of the conversion or exchange; and
(h) any other preferences, privileges and powers and relative
participating, optional or other special rights, and qualifications,
limitations or restrictions of a series, as the Board of Directors may deem
advisable and as are not inconsistent with the provisions of this Certificate
of Incorporation.
3. Dividends.
Before any dividends on any class or classes of stock of the Corporation
ranking junior to the Preferred Stock may be declared or paid or set apart for
payment, the holders of shares of Preferred Stock of each series are entitled
to such cash dividends, but only when and as declared by the Board of
Directors out of funds legally available therefor, as they may be entitled to
in accordance with the resolution or resolutions adopted by the Board of
Directors providing for the issue of the series, payable on such dates in each
year as may be fixed in the resolution or resolutions. The term "class or
classes of stock of the Corporation ranking junior to the Preferred Stock"
means the Common Stock and any other class or classes of stock of the
Corporation hereafter authorized which rank junior to the Preferred Stock as
to dividends or upon liquidation.
4. Reacquired Shares.
Shares of Preferred Stock which have been issued and reacquired in any
manner by the Corporation (excluding,
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until the Corporation elects to retire them, shares which are held as treasury
shares but including shares redeemed, shares purchased and retired and shares
which have been converted into shares of Common Stock) will have the status of
authorized and unissued shares of Preferred Stock and may be reissued.
5. Voting Rights.
Unless and except to the extent otherwise required by law or provided in
the resolution or resolutions of the Board of Directors creating any series of
Preferred Stock pursuant to this Division I, the holders of the Preferred
Stock shall have no voting power with respect to any matter whatsoever. In no
event shall the Preferred Stock be entitled to more than one vote in respect
of each share of stock except as may be required by law or by this Certificate
of Incorporation.
II. Common Stock
1. Dividends.
Subject to the preferential rights of the Preferred Stock, the holders of
the Common Stock are entitled to receive, to the extent permitted by law, such
dividends as may be declared from time to time by the Board of Directors.
2. Liquidation.
In the event of the voluntary or involuntary liquidation, dissolution,
distribution of assets or winding up of the Corporation, after distribution in
full of the preferential amounts, if any, to be distributed to the holders of
shares of Preferred Stock, holders of Common Stock shall be entitled to
receive all of the remaining assets of the Corporation of whatever kind
available for distribution to stockholders ratably in proportion to the number
of shares of Common Stock held by them respectively. The Board of Directors
may distribute in kind to the holders of Common Stock such remaining assets of
the Corporation or may sell, transfer or otherwise dispose of all or any part
of such remaining assets to any other Corporation, trust or other entity and
receive payment therefor in cash, stock or obligations of such other
Corporation, trust or other entity, or any combination thereof, and may sell
all or any part of the consideration so received and distribute any balance
thereof in kind to holders of Common Stock. The merger or consolidation of the
Corporation into or with any other corporation, or the merger of any other
corporation into it, or any purchase or redemption of shares of stock of the
Corporation of any class, shall not be deemed to be a dissolution, liquidation
or winding up of the Corporation for the purpose of this paragraph.
3. Voting Rights.
Except as may be otherwise required by law or this Certificate of
Incorporation, each holder of Common Stock has one vote in respect of each
share of stock held by him of record on the books of the Corporation on all
matters voted upon by the stockholders. The shareholder shall not have
cumulative voting rights.
III. Stock Rights and Options
The Board of Directors, in their discretion and without the approval of
the shareholders, may from time to time create and issue, rights or options
entitling the holders thereof to purchase shares of stock of any class or
classes from the Corporation subject to the limitations set forth below. Such
rights or options are to be evidenced by or in such instrument or instruments
as shall be approved by the Board of Directors.
The Directors shall approve the terms upon which, including the time
(which may be limited or unlimited in duration) within which, and the price at
which any such shares may be purchased from the Corporation upon the exercise
of any such right or option. In no event shall the total rights or options
effect more than 50% of the authorized shares, nor can they be at prices less
than 10% of the sales or bid price averaged over the 30 day period immediately
prior to the sale. Rights or options may be granted at such less favorable
terms as shall be stated in a resolution adopted by the Board of Directors
providing for the creation and issuance of such rights or options. In the
absence of actual fraud in the transaction, the judgement of the Board of
Directors as the consideration for the issuance of such rights or options and
the sufficiency thereof shall be conclusive.
In case the shares of stock of the Corporation to be issued upon the
exercise of such rights or options shall be shares having a par value, the
price to be received therefor shall not be less than the par value thereof. In
case the shares of stock to be issued shall be shares of stock without par
value, the consideration therefor shall be determined in the manner provided
in Section 153 of the Delaware General Corporation Law.
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IV. Other Provisions
1. Preemptive Rights.
No stockholder of either preferred or common shares shall have any
preemptive right to subscribe to an additional issue of stock of any class or
series or to any stock rights, options, warrants, debentures or other
securities of the Corporation convertible into such stock.
2. Changes in Authorized Capital Stock.
Subject to the protective conditions and restriction of any outstanding
Preferred Stock, any amendment to this Certificate of Incorporation which
increases or decreases the authorized capital stock of any class or classes
may be adopted by the affirmative vote of the holders of a majority of the
outstanding shares of the voting stock of the Corporation.
Article Fifth
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Board of Directors
1. Powers of the Board.
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors by a majority vote of the entire Board is expressly
authorized:
(a) to make, alter or repeal the Bylaws of the Corporation and to revise,
alter, amend or repeal the Certificate of Incorporation subject only to
approval by stockholders, if expressly required by statute;
(b) to authorize and cause to be executed mortgages and liens upon part
or all of the real and personal property of the Corporation;
(c) to set apart out of any of the funds of the Corporation available for
dividends a reserve or reserves for any proper purpose as the Board of
Directors, in its sole discretion may determine and to abolish any reserve in
the manner in which it was created;
(d) to designate an Executive Committee of the Corporation;
(e) unless a majority vote of the stockholders is required by law, to
sell, lease or exchange all or substantially all of the property and assets of
the Corporation, including its goodwill and its corporate franchises, upon
such terms and conditions and for such consideration, which may consist in
whole or in part of money or property including shares of stock in, and/or
other securities of, any other corporation or corporations, as the Board of
Directors shall deem expedient and for the best interests of the Corporation;
(f) to authorize and issue bonds and debentures and to determine the
terms and conditions, interest rates, discount rates, conversion rates,
redemption schedules, duration and all other matters relating to or arising
out of the issuances of bonds and debentures, whether or not convertible to
common stock, provided that such conversion of bonds or debentures to stock
when added to the issued and outstanding stock and treasury stock does not
exceed the authorized shares of the Corporation.
2. Terms and Number of Board Members.
The number of members of the Board of Directors will be fixed from time to
time by the Board of Directors, but (subject to vacancies) in no event may
there be less than two Directors nor more than eleven. Each director shall
serve until the next annual meeting of stockholders or until his successor is
elected. Election of Directors need not be by written ballot.
If any vacancy occurs in the Board of Directors during a term, the
remaining Directors, by affirmative vote of a majority thereof, may elect a
director to fill the vacancy until the next annual meeting of stockholders.
3. Cumulative Voting.
At all elections of Directors of the Corporation, each stockholder
entitled generally to vote for the election of
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Directors shall be entitled to vote one vote for each share owned by the
stockholder for each position. The stockholder shall not have rights for
cumulative voting.
4. Board Action By Consent.
Any Corporate action upon which a vote of Board members is required or
permitted may be taken without a meeting or a formal vote of the Board with
the written consent of the Board members. Such action may be taken by the
written consent of no less than a majority of all the Directors. In no case
shall the written consent be by less than the minimum percent of the Directors
vote required by statute for the proposed corporate action. Prompt notice must
be given to all Board members of the result of the vote on any action taken
without a meeting.
Article Sixth
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Records
The books of the Corporation may be kept (subject to any provisions
contained in the statutes of the State of Delaware) outside the state of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the Bylaws of the Corporation.
Article Seventh
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Certain Contracts
No contract or transaction between the Corporation and one or more of its
Directors or officers, or between the Corporation and any other Corporation,
partnership, association, or other organization in which one or more of its
Directors or officers are Directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in a meeting of the Board or
committee thereof which authorizes the contract or transaction, or solely
because his or their votes are counted for such purpose. It is understood that
some of the business conducted by the Corporation and its subsidiaries involve
the officers and others including subsidiaries and affiliates serving as
general partners, limited partners, trustees, or in joint ventures. Such acts
or action is permitted if:
1. The material facts as to the Director's or officer's interest and as
to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee in good
faith authorizes the contract or transaction by a vote sufficient for such
purpose; or, if required
2. The material facts as to his interest and as to the contract or
transaction are disclosed or are known to stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in a good
faith by vote of the stockholders; or
3. The contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof, or the stockholders. Interested Directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
Article Eighth
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Indemnification
The following provisions are included for the purpose of ensuring that
control and management of the Corporation remains with loyal citizens of the
United States and/or corporations formed under the laws of the United States
or any of the states of the United States, as required by the Communications
Act of 1934, as the same may be amended from time to time:
(a) The Corporation shall not issue to (i) a person who is a citizen of a
country other than the United States; (ii) any entity organized under
the laws of a government other than the government of the United
States or any state, territory, or possession of the United States;
(iii) a government other than the government of the Untied States or
of any state, territory, or possession of the United States; or (iv) a
representative of, or an individual or entity controlled by, any of
the foregoing (individually, an "Alien"; collectively, "Aliens") in
excess of 25% of the total number of shares of capital stock of the
Corporation outstanding at any time and shall not permit the transfer
on the books of the Corporation of any capital stock to any Alien that
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would result in the total number of shares of such capital stock held
by Aliens to exceed such 25% limit.
(b) No Alien or Aliens shall be entitled to vote or direct or control the
vote of more than 25% of (i) the total number of shares of capital
stock of the Corporation outstanding and entitled to vote at any time
and from time to time, or (ii) the total voting power of all shares of
capital stock of the Corporation outstanding and entitled to vote at
any time and from time to time.
(c) No Alien shall be qualified to act as an officer of the Corporation,
and no more than one-fourth of the total number of directors of the
Corporation at any time and from time to time may be Alien.
(d) The Board of Directors of the Corporation shall have all powers
necessary to implement the provisions of this ARTICLE EIGHTH.
1. The Corporation, its subsidiaries and affiliates shall jointly and
severally indemnify and hold any person harmless if any person was or
is threatened to be made a party to any threatened, pending, or
completed action, suit or proceeding, whether civil, criminal,
administrative, or investigative by reason of the fact that the person
is or was a Director or officer 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. The Corporation shall indemnify and hold
the person harmless and undertakes to pay the current costs until
resolved against expenses (including attorneys' fees) judgements,
fines, and amounts paid in settlements actually incurred by the person
in connection with such action, suit, or proceeding and, with respect
to any criminal action or proceeding.
2. The Corporation shall indemnify any person, if the person was or is
threatened to be made a party to any threatened, pending, or completed
action or suit by or in the right of or in the name of the Corporation
to procure a judgement in its favor by reason of the fact that the
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 incurred by the person
in connection with the defense or settlement of such negotiation
action or suit.
3. Expenses incurred by any person in defending a civil or criminal
action, suit or proceeding shall be paid by the Corporation upon
request in advance of the final disposition of such action, suit or
proceeding.
4. The indemnification provided hereby shall not be deemed exclusive of
all rights to which any person may be entitled under any Bylaw,
agreement, vote of stockholders or disinterested Directors or
otherwise, both as to action in any person's official capacity and as
to action in another capacity while holding such office, and shall
continue to any person as a person who has ceased to be a Director,
officer or agent as to claims arising during or as a result of the
service to the Corporation and shall inure to the benefit of the
person's heirs, executors and administrators.
5. The Corporation may, purchase and maintain insurance on behalf of each
Director and officer while serving as a Director or officer of the
Corporation or while 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 any
liability asserted against any person and incurred by any person in
any such capacity, or arising out of the status as such.
6. References to the Corporation shall include, in addition to the
resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power
and authority to indemnify its directors, officers, and employees or
agents so that any person who is or was a director, officer, employee
or agent of such constituent corporation, or who is or was serving at
the request of such constituent corporation as a director or officer,
of another corporation, partnership, joint venture, trust, or other
enterprise, shall stand in the same position with respect to the
resulting or surviving corporation as the person would have with
respect to such constituent corporation as if its separate existence
had continued.
7. References to "fines" shall include any excise taxes and penalties
assessed to any person with respect to any function; and references to
"serving at the request of the Corporation" shall include any service
as a director or officer of the corporation which imposes duties on,
or involves services by the person. This indemnity shall cover each
person for all responsibilities for the Corporation as a Director or
officer or as a
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representative including periods on or prior to the effective date of
this Agreement.
The above right of indemnity shall extend to a person whether or not
the Corporation would have the power to indemnify the person against
such liability under Delaware Corporation law and may not be altered,
amended, or rescinded except by Court order or the advance written
consent of the person.
Article Ninth
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Stockholder Action by Consent
Any action of the Corporation upon which a vote of stockholders is
required or permitted may be taken without a meeting or vote of
stockholders with the written consent of stockholders having not less
than one-third of the shares entitled to vote at a stockholder
meeting; provided, that in no case shall the written consent be by
holders having less than the minimum percent of the vote required by
statute for the proposed corporate action and provided that prompt
notice be given to all stockholders of the result of the vote
authorizing the taking of corporate action without a meeting.
Article Tenth
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Amendment
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights
conferred upon stockholders herein are granted subject to this
reservation.
This Restated Certificate of Incorporation was duly proposed by the
Board of Directors and adopted by the sole stockholder in pursuance
with Sections 242 and 245 of the General Corporation Law of the state
of Delaware.
The capital of said Corporation will not be reduced under or by reason
of this Restated Certificate of Incorporation.
IN WITNESS WHEREOF, said PARTECH HOLDINGS CORPORATION has caused this
certificate to be signed by John E. Rayl its President, and Thomas E.
Reynolds, its Secretary, this 25th day of January, 1994.
PARTECH HOLDINGS CORPORATION
By: /s/ JOHN E. RAYL
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John E. Rayl, President
Attest: /s/ THOMAS E. REYNOLDS
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Thomas E. Reynolds, Secretary
(Seal)
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