Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
CHARTER STEEL, INC.
I, THE UNDERSIGNED, in order to form a corporation for the
purposes hereinafter stated, under and pursuant to the provisions of the
General Corporation Law of the State of Delaware, do hereby certify as
follows:
FIRST: The name of the corporation is Charter Steel, Inc.
SECOND: The registered office of the corporation is to be
located at 229 South State Street, in the City of Dover, in the County of
Kent, in the State of Delaware. The name of its registered agent at that
address is The Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the corporation is to engage in any lawful
act or activity for which a corporation may be organized under the General
Corporation Law of the State of Delaware.
Without limiting in any manner the scope and generality of the
foregoing, it is hereby provided that the corporation shall have the power
to do all and everything necessary suitable and proper for the
accomplishment of any of the purposes or the attainment of any of the
objects or the furtherance of any of the powers of which a corporation may
be organized under the General Corporation Law of the State of Delaware,
either alone or in association with other corporations, firms or
individuals, and to do every other act or acts, thing or things incidental
or appurtenant to or growing out of or connected with the corporation's
business or powers or any part or parts thereof, provided the same be not
inconsistent with said General Corporation Law; and shall have the power to
conduct and carry on its business, or any part thereof, and to have one or
more offices, and to exercise any or all of its corporate powers and
rights, in the State of Delaware, and in the various other states,
territories, colonies and dependencies of the United States, in the
District of Columbia, and in all or any foreign countries.
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FOURTH: The total number of shares of stock which the
corporation is authorized to issue is One Thousand (1,000) shares of Common
Stock, par value of $.01 per share.
FIFTH: The name and address of the sole incorporator are as
follows:
Name Address
Marilynn K. Beatty 488 Madison Avenue
New York, New York 10022
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 its directors and stockholders:
1. The number of directors of the corporation shall be such
as from time to time shall be fixed by, or in the manner provided in
the by-laws. Election of directors need not be by ballot unless the
by-laws so provide.
2. The Board of Directors shall have power without the
assent or vote of the stockholders:
(a) To make, alter, amend, change, add or repeal all the
by-laws of the corporation; to fix and vary the amount to be
reserved for any proper purpose, 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 declare dividends; to fix
the record date and the date for the payment of any dividends;
and
(b) To determine from time to time whether and to what
extent, and at what times and places, and under what conditions
and regulations, the accounts and books of the corporation (other
than the stock ledger) or any of them, shall be open to the
inspection of the stockholders.
3. The directors in their discretion may submit any contract
or act for approval or ratification by the written consent of the
stockholders, or at any annual meeting of the stockholders or at any
special meeting of
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the stockholders called for the purpose of considering any such act or
contract, and any contract or act that shall be approved or ratified
by the written consent or vote of the holders of a majority of the
stock of the corporation (which in the case of a meeting is
represented in person or by proxy at such meeting, provided a lawful
quorum of stockholders be there represented in person or by proxy)
shall be as valid and as binding upon the corporation and upon all the
stockholders as though it had been approved or ratified by every
stockholder of the corportion, whether or not the contract or act
would otherwise be open to legal attack because of the directors'
interest, or for any other reason.
4. In addtion to the powers and authorities herinbefore or
by statute expressly conferred upon them, the directors are hereby
empowered to exercise all such powers and do all such acts and things
as may be exercised or done by the corporation; 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, however, that no by-laws so made shall invalidate any prior
act of the directors which would have been valid if such by-laws had
not been made.
5. No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for any breach of
fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal
benefit.
SEVENTH: The corporation shall, to the full extent permitted by
Section 145 of the General Corporation Law of the State of Delaware, as
amended from time to time, indemnify all persons whom it may indemnify
pursuant thereto.
EIGHTH: Whenever a compromise or arrangement is proposed between
the corporation and its creditors or any class of them and/or between the
corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the applicaiton
in a summary way of the corporation or any creditor or stockholders thereof
or on the application of any receiver or receivers
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appointed for the 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 the 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 stockholders or class
of stockholders of the 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 the corporation, as the case
may be, agree to any compromise or arrangement and the said reorganization
of the 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 the corporation, as the case may
be, and also on the corporation.
NINTH: The corporation reserves the right to amend, alter,
change or repeal an provision contained in this certificate of
incorporation in the manner now or hereafter prescribed by law, and all
rights and powers conferred herein on stockholders, directors and officers
are subject to this reserved power.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 7th
day of November, 1986.
/s/Marilynn K. Beatty
------------------------
Marilynn K. Beatty
Sole Incorporator
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
CHARTER STEEL, INC.
It is hereby certified that:
1. The name of the corporation (herein called the "Corporation")
is Charter Steel, Inc.
2. The Certificate of Incorporation of the Corporation is hereby
amended by striking Article "FOURTH" thereof and by substituting in lieu of
said Article the following new Article:
"FOURTH: The total number of shares of stock which the
Corporation is authorized to issue is Twenty thousand (20,000) shares of
Common Stock, par value of $.01 per share.
3. The amendment of the Certificate of Incorporation herein
certified has been duly adopted in accordance with the provisions of
Section 241 of the General Corporation Law of the State of Delaware by
unanimous written consent of the sole Incorporator dated December 12, 1986,
said amendment having been duly adopted by the sole Incorporator prior to
the election of any directors of the Corporation and prior to the receipt
of any payment for any of the Corporation's stock.
IN WITNESS WHEREOF, Charter Steel, Inc. has caused this
Certificate to be signed by its sole Incorporator this 12th day of
December, 1986.
CHARTER STEEL, INC.
/s/Marilynn K. Beatty
------------------------
Marilynn K. Beatty
Sole Incorporator
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
CHARTER STEEL, INC.
It is hereby certified that:
1. The name of the corporation (herein called the "Corporation")
is Charter Steel, Inc.
2. The Certificate of Incorporation of the Corporation is hereby
amended by striking Article "FOURTH" thereof and by substituting in lieu of
said Article the following new Article:
"FOURTH: The total number of shares of stock which the
corporation is authorized to issue is Forty thousand (40,000) shares
of Common Stock of which (a) twenty thousand (20,000) shall be
designated Class A Common Stock with a par value of $.01 per share and
shall entitle the holders thereof to one (1) vote per share, and (b)
twenty thousand (20,000) shall be designated class B Common Stock with
a par value of $.01 per share and shall not entitle the holders
thereof to any voting rights with respect thereto. Every reference in
the General Corporation Law of the State of Delaware, this Certificate
of Incorporation or by the By-Laws of the corporation to a majority or
other proportion or percentage of capital stock shall refer to a
majority or other proportion or percentage of the aggregate votes of
the outstanding shares of Class A Common Stock. In every other
respect, the rights and privileges of the shares of Class A Common
Stock and Class B Common Stock shall be identical. A holder or shares
of Class B Common Stock other than the initial holder thereof, shall
have the right at any time and from time to time upon notice to the
corporation to convert such shares into shares of Class A Common Stock
on the basis of one share of Class A Common Stock for each share of
Class B Common stock so converted. Shares of Class B Common Stock
which shall have been converted into shares of Class A Common Stock
shall thereafter not be issued by the
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corporation. At such time as all shares of Class B Common Stock shall
have been converted into shares of Class A Common Stock, then (i) no
shares of Class B Common Stock shall thereafter be issued by the
corporation; (ii) the Class A common Stock shall thereafter be
designated "Common Stock"; and (iii) the total number of shares of
capital stock which the corporation shall thereafter be authorized to
issue shall be changed to 40,000 shares of Common Stock, without
designation as to class."
3. The amendment of the Certificate of Incorporation herein
certified has been duly adopted in accordance with the provisions of
Section 241 of the General Corporation Law of the State of Delaware by
unanimous written consent of the sole Incorporator dated December 19, 1986,
said amendment having been duly adopted by the sole Incorporator prior to
the election of any directors of the Corporation and prior to the receipt
of any payment for any of the Corporation's stock.
IN WITNESS WHEREOF, CHARTER STEEL, INC. has caused this
Certificate to be signed by its sole Incorporator this 19th day of
December, 1986.
CHARTER STEEL, INC.
/s/Marilynn K. Beatty
------------------------
Marilynn K. Beatty
Sole Incorporator
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
CHARTER STEEL, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the
"Corporation") is Charter Steel, Inc.
2. The Certificate of Incorporation of the Corporation
is hereby amended by striking out Article "FIRST" thereof and
by substituting in lieu of said Article, the following new
Article:
"FIRST: The name of the Corporation is Steel of West
Virginia, Inc."
3. The Certificate of Incorporation of the Corporation
is hereby amended by striking out Article "FOURTH" thereof and
by substituting in lieu of said Article, the following new
Article:
"FOURTH: The total number of shares of capital
stock that may be issued by the Corporation is Eight Million
Five Hundred Thousand (8,500,000.) shares of which (a)
8,000,000. shares shall be common stock, par value $0.1 per
share, which shall be designated Common Stock ("Voting Common
Shares"), and (b) 500,000 shares shall be common stock,
par value $.01 per share, which shall be designated Non-voting
Common Stock ("Non-voting Common Shares") (the Voting Common
Shares and Non-voting Common Shares shall hereinafter
collectively be referred to as "Common Shares"). Each of
the currently outstanding shares of Class A Common Stock, par
value $.01 per share, shall be automatically converted and
split into three hundred forty (340) Voting Common Shares and
the currently outstanding shares of Class B Common Stock, par
Value $.01 per share, shall be automatically converted and
split into three hundred forty (340) Non-voting Common Shares;
with the result that (i) the 9,280 currently outstanding
shares of Class A Common Stock shall be converted and split
into a total of 3,156,200 shares of Common Stock and (ii) the
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720 currently outstanding shares of Class B Common Stock shall
be converted and split into a total of 244,800 shares of Non-
voting Common Stock. No fractional Common Shares of scrip
representing fractional shares shall be issued upon such
automatic conversion, but in lieu thereof, there shall be paid
an amount in cash at the rate of $1.382 per share.
The designations, rights, powers and preferences of, and
the qualifications, limitations and restrictions on, the
shares of each such series of Common Shares of the Corporation
are as follows:
1. Dividends. Dividends may be paid upon the
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outstanding Common Shares (on a pro rata basis among all such
shares outstanding as of the record date fixed by the Board of
Directors for the relevant dividend) from time to time when
and as declared by the Board of Directors out of any funds
legally available therefor.
2. Liquidation. Upon any liquidation, dissolution or
-----------
winding up of the affairs of the Corporation, the then holders
of record of the outstanding Common Shares shall be entitled
to receive pro rata any and all assets of the Corporation re-
maining available for distribution.
3. Voting Rights. Except as otherwise provided by the
-------------
Delaware General Corporation Law or any other applicable
statute or by any express provision of this Certificate:
(a) the holders of record of Voting Common Shares
shall be entitled to one vote for each share for the election
of directors and upon all other matters submitted to a vote of
the stockholders of the Corporation:
(b) the holders of record of Non-voting Common
Shares shall not be entitled to notice of, or to attend or
vote at, any annual or special meeting of the stockholders of
the Corporation.
Except as other wise provided in this Section 3 or in
Sections 4, 5 and 6 below, Common Shares of each series shall
have the identical rights, powers and preferences and be sub-
ject to the identical qualifications, limitations and
restrictions.
4. Optional Conversion of Non-voting Common Shares into
----------------------------------------------------
Voting Common Shares
--------------------
(a) Each holder of one or more Non-voting Common
Shares shall have the right, at that holder's option, to con-
vert those Non-voting Common Shares into Voting Common Shares
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at the rate of one Non-voting Common Share for one Voting Com-
mon Share, subject to and in accordance with the terms and
conditions of this Section 4; provided, however, that no such
--------- --------
holder of Non-voting Common Shares that is a Regulated Person
shall be entitled to effect any such conversion thereof if the
conversion would cause that holder to be in violation of any
rules or regulations of the Board of Governors of the Federal
Reserve System as shall be in effect and applicable to that
holder at the time of the proposed conversion (the "Bank
Regulations"). For the purposes hereof, the term "Regulated
Person" shall mean an entity that is subject to regulation by
the Board of Governors of the Federal Reserve System. In
connection with any such conversion of Non-voting Common
Shares, the holder proposing to effect that conversion shall
provide to the Corporation, together with the notice of
conversion required pursuant to Section 4(c) below, a
certificate confirming either that it is not a Regulated
Person or that the conversion would not cause it to be in
violation of the Bank Regulations, together with such
supporting information as the Corporation shall reasonably
require to confirm the accuracy of that certificate.
(b) Non-voting Common Shares shall be convertible into
fully paid and non-assessable Voting Common Shares at the rate
herein specified, without payment or adjustment for any
dividends declared and unpaid on the Non-voting Common Shares
surrendered for conversion to the date of conversion. Any
such declared and unpaid dividends shall constitute a debt of
the Corporation, payable without interest to the converting
holder on the date fixed by the Board of Directors as the
record date for such dividend.
(c) To convert some or all of his Non-voting Common
Shares into Voting Common Shares, the holder thereof shall
surrender to the Corporation the certificate(s) evidencing
those Non-voting Common Shares, duly endorsed to the Corpora-
tion or in blank, and shall give written notice to the
Corporation that he elects to convert the same into Voting
Common Shares and the name(s) in which the holder wishes the
certificate(s) evidencing the shares issuable upon such
conversion to be issued. As soon as reasonable practicable
thereafter, the Corporation shall deliver to that holder, or
to his nominee(s), one or more certificates evidencing the
number of shares to which the holder shall be entitled as
aforesaid. Non-voting Common Shares shall be deemed to have
been converted as of the date of surrender thereof for
conversion as aforesaid, and the person(s) entitled to receive
the shares issuable upon such conversion shall be treated for
all purposes as the record holder(s) of those shares on that
date, and each such share shall be deemed outstanding on that
date.
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(d) The issuance of certificates evidencing Voting Common
Shares upon Conversion of Non-voting Common Shares shall be made without
charge to the converting holder for any tax in respect of the issuance of
such certificates; provided, however, that the Corporation shall not be
--------- ---------
required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery upon any such conversion of any
certificate representing shares in a name other than that of the holder of
the Non-Voting Common Shares so converted, and the Corporation shall not be
required to issue or deliver such certificates unless or until the
person(s) requesting the issuance thereof shall have established to the
satisfaction of the Corporation that such tax has been paid.
(e) The Corporation shall at all times reserve and keep
available out of its authorized but unissued Voting Common Shares, solely
for the purpose of effecting the conversion of Non-voting Common Shares
pursuant to this Section 4 and Section 5 below, the full number of whole
Voting Common Shares then deliverable upon the conversion of all of the
Non-voting Common Shares convertible into Voting Common Shares at the time
outstanding.
5. Automatic Conversion of Non-voting Common Shares into
-----------------------------------------------------
Voting Common Shares.
- --------------------
(a) Non-voting Common Shares shall be automatically
converted, on a one-for-one basis, into fully paid and nonassessable Voting
Common Shares (i) upon the sale of any such shares pursuant to a public
offering registered under the Securities Act of 1933 (the "Act"), (ii) upon
the sale of any such shares in a broker's transaction or a transaction
directly with a market maker within the meaning of Rule 144 under the Act
(a"Permitted Sale") or (iii) with respect to the shares of andy holder of
Non-voting Common Shares, act such time as the total number of Voting
Common Shares and Non-voting Common Shares of such holder would represent
less than 5% of the total number of Voting Common Shares outstanding,
taking into account the number of Voting Common Shares which will be held
upon the conversion of the Non-voting Common Shares to Voting Common
Shares. Each of the events described in clauses (i), (ii), and (iii)
herein shall hereinafter be referred to as a "Conversion Event".
(b) Upon the occurrence of a Conversion Event,
holders of Non-voting Common Shares shall surrender for cancellation to the
Corporation the certificate(s) which, immediately prior to a Conversion
Event, represented outstanding Non-voting Common Shares and, in the case of
a Permitted Sale, a certificate confirming that such shares were obtained
in a
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Permitted Sale, together with such supporting information as the
Corporation shall reasonably require to confirm the accuracy of the
certificate. As soon as reasonably practicable after the surrender of said
certificate(s), the Corporation shall deliver to the holder of such
certificate(s), or to his nominee(s), one or more certificates evidencing
the number of Voting Common Shares into which those Non-Voting Common
Shares shall have been automatically converted as a result of such
Conversion Event. No payment or adjustment shall be made for any
dividends declared and unpaid on the Non-voting Common Shares surrendered
to the date of such Conversion Event. Any such declared and unpaid
dividends shall constitute a debt of the Corporation, payable without
interest to the holder of the converted Non-voting Common Shares on the
date fixed by the Board of Directors as the record date for such dividend.
The Voting Common Shares into which the Non-voting Common Shares shall be
converted as a result of a Conversion Event shall be deemed to have been
issued at the time of the Conversion Event.
6. Automatic Conversion of Voting Common Shares into Non-voting
------------------------------------------------------------
Common Shares
- -------------
(a) In the event that the amount of Voting Common Shares
held by Regulated Person is in an amount equal to or greater than 5% of
the total number of Voting Common Shares outstanding, an amount of such
Regulated Person's Voting Common Shares sufficient to bring such Regulated
Person's holdings of Voting Common Shares to less than 5% shall be
automatically converted, on a one-for-one basis, into fully paid and non-
assessable Non-voting Common Shares which event shall hereinafter be
referred to as a "Subsequent Conversion Event.": and
(b) Upon such occurrence of a Subsequent Conversion Event,
holders of Voting Common Shares shall surrender for cancellation to the
Corporation the certificate(s) which, immediately prior to a Subsequent
Conversion Event, represented outstanding Voting Common Shares together with
such supporting information as the Corporation shall reasonably require to
confirm the accuracy of the certificate. As soon as reasonably practicable
after the surrender of said certificate(s), the Corporation shall deliver
to the holder of such certificate(s), or to his nominee(s), one or more
certificates evidencing the number of Non-voting Common Shares into which
those Voting Common Shares shall have been automatically converted pursuant
to Section 6 (a) hereof. No payment or adjustment shall be made for any
dividends declared and unpaid on the Voting Common Shares surrendered to
the date of such Subsequent Conversion Event. Any such declared and unpaid
dividends shall constitute a debt of the Corporation, payable
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without interest to the holder of the converted Voting Common Shares on the
date fixed by the Board of Directors as the record date for such dividend.
The Non-voting Common Shares into which the Voting Common Shares shall be
converted pursuant to Section 6 (a) hereof as a result of a Subsequent
Conversion Event shall be deemed to have been issued at the time of the
Subsequent Conversion Event."
4. The amendment of the Certificate of Incorporation herein
certified has been duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware by
unanimous written consent of the Board of Directors and by written consent
of the holders of a majority of the outstanding stock of the Corporation
pursuant to Section 228(c) of the General Business law, written notice of
the adoption of the amendments herein having been given to those
stockholders who have not consented in written notice of the adoption of
the amendments herein having been given to those stockholders who have not
consented in writing thereto.
IN WITNESS WHEREOF, Charter Steel, Inc. has caused this certificate
to be signed by its Chairman of the Board and attested by its Secretary
this 24 th day of August, 1987.
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CHARTER STEEL, INC>
By: /s/ Patricia R. Merrick
-------------------------
Patricia R. Merrick
Chairman of the Board
ATTEST
/s/ Eric M. Mencher
- ----------------------
Eric M. Mencher
Assistant Secretary
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
STEEL OF WEST VIRGINIA, INC.
The undersigned corporation, in order to amend its Certificate of
Incorporation, hereby certifies as follows:
FIRST: The name of the corporation is:
Steel of West Virginia, Inc.
SECOND: The corporation hereby amends its Certificate of Incorporation as
follows:
Paragraph FOURTH of the Certificate of Incorporation, relating to the capital
stock of the corporation is hereby amended to read, in its entirety, as follows:
FOURTH: The total number of shares of capital stock that the corporation
shall have authority to issue is twelve million (12,000,000) shares of Common
Stock, par value $.01 per share.
THIRD: The amendment effected herein was authorized by vote of a majority of
stockholders at the annual meeting of stockholders of the corporation pursuant
to Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, we hereunto sign our names and affirm that the statements
made herein are true under the penalties of perjury, this 16th day of
November, 1995.
By: /s/ Timothy R. Duke
---------------------------
Name: Timothy R. Duke
Title: Vice President
ATTESTED AND ACKNOWLEDGED:
/s/ Stephen A. Albert
- ---------------------------
Name: Stephen A. Albert
Title: Secretary