RESTATED
CERTIFICATE OF INCORPORATION
OF
JEVIC TRANSPORTATION, INC.
FIRST: The name of the Corporation is
JEVIC TRANSPORTATION, INC.
SECOND: The Corporation's registered office is located at 600 Creek Road,
Delanco, NJ 08075. The Corporation's registered agent at such address is Harry
J. Muhlschlegel.
THIRD: The nature of the business, or objects or purposes to be
transacted, promoted or carried on, are: to engage in any lawful act or activity
within the purposes for which corporations may be organized under the New Jersey
Business Corporation Act, N.J.S. ss.14A:1-1 et seq. (the "New Jersey Act").
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have the authority to issue is 60,000,000, of which 50,000,000
shares having no par value are to be of a class designated Common Equity,
consisting of 40,000,000 shares of a series designated Common Stock and
10,000,000 shares of a series designated Class A Common Stock, subject to the
provisions of paragraph 3.4 below, and 10,000,000 shares having no par value are
to be of a class designated Preferred Stock.
Immediately upon the acceptance for filing by the Secretary of State
of the State of New Jersey of this Restated Certificate of Incorporation,
without further action on the part of the Board of Directors or shareholders of
the Corporation, each issued and outstanding share of Class A Common Stock of
the Corporation shall be automatically reclassified as and converted into 34,291
shares of Class A Common Stock and each issued and outstanding share of Common
Stock of the Corporation shall automatically reclassified as and converted into
34,291 shares of Common Stock (the "Reclassification").
The following is a statement of the relative rights, preferences and
limitations of the shares of each class of stock of the Corporation. In this
Article Fourth, any reference to a section or paragraph, without further
attribution, within a provision relating to a particular class of stock is
intended to refer solely to the specified section or paragraph of the other
provisions relating to the same class of stock.
-1-
COMMON EQUITY
1. Dividends.
1.1. After the payment or setting apart for payment of any
dividends or distributions to be made to holders of any outstanding Preferred
Stock, the holders of shares of the Common Stock and Class A Common Stock shall
be entitled to receive such dividends and distributions, payable in cash or
otherwise, as may be declared thereon by the Board of Directors from time to
time out of assets or funds of the Corporation legally available therefor,
provided that all such dividends or distributions shall be paid or made in equal
amounts, share for share, to the holders of the Common Stock and Class A Common
Stock as if a single class, except that (a) in the event that any dividend shall
be declared in shares of Common Stock or Class A Common Stock, such dividend
shall be declared at the same rate per share on Common Stock and Class A Common
Stock, but the dividend payable on shares of Common Stock shall be payable in
shares of Common Stock, and the dividend payable on shares of Class A Common
Stock shall be payable in shares of Class A Common Stock; and (b) any dividend
described in paragraph 1.2 below may be paid as therein described. If the
Corporation shall in any manner split, subdivide or combine the outstanding
shares of Common Stock or Class A Common Stock, the outstanding shares of the
other such class of stock shall be split, subdivided or combined in the same
manner proportionately and on the same basis per share.
1.2. In the event the Corporation shall distribute to the
holders of the shares of Common Stock and Class A Common Stock the common stock
or substantially equivalent equity securities of any subsidiary of the
Corporation, the Board of Directors shall have power, but shall not be
obligated, to capitalize or recapitalize such subsidiary with classes of common
equity having the powers, designations, preferences, and relative,
participating, optional, or other special rights and qualifications,
limitations, and restrictions thereof, corresponding, respectively, insofar as
practicable, to those of the Common Stock and the Class A Common Stock, and the
Board of Directors of the Corporation shall have the power, but shall not be
obligated, to distribute to the holders of shares of the Common Stock, the
shares of the subsidiary with rights corresponding to those of the Common Stock,
and to distribute to the holders of shares of the Class A Common Stock, the
shares of the subsidiary with rights corresponding to those of the Class A
Common Stock; provided, that holders of shares of Common Stock and holders of
shares of Class A Common Stock shall respectively receive the same number of
shares of such subsidiary per share of Common Stock and per share of Class A
Common Stock held.
2. Rights on Liquidation. In the event of any liquidation, dissolution
or winding-up of the Corporation, whether voluntary or involuntary, after the
payment or setting apart for payment to the holders of any outstanding Preferred
Stock of the full preferential amounts to which such holders are entitled, all
of the remaining assets of the Corporation shall belong to and be distributable
in equal amounts per share to the holders of the Common Stock and the holders of
Class A Common Stock, as if such classes constituted a single class. For
purposes of this paragraph 2, a consolidation or merger of the Corporation with
any other corporation, or the sale,
-2-
transfer or lease of all or substantially all its assets shall not constitute or
be deemed a liquidation, dissolution or winding-up of the Corporation.
3. Conversion of Class A Common Stock.
3.1. The holders of Class A Common Stock shall have the right,
at their option, to convert any or all such shares into shares of Common Stock
of the Corporation on the following terms and conditions:
(i) Each share of Class A Common Stock shall be
convertible, at any time, at the office of any transfer agent for shares of
Common Stock of the Corporation, and at such other place or places, if any, as
the Board of Directors may determine, into one fully paid and nonassessable
share of Common Stock of the Corporation upon surrender at such office or other
place of the certificate or certificates representing the shares of Class A
Common Stock so to be converted. In no event, upon conversion of any shares of
Class A Common Stock into shares of Common Stock, shall any allowance or
adjustment be made in respect of dividends on the Class A Common Stock or the
Common Stock.
(ii) Shares of Class A Common Stock shall be deemed to
have been converted and the person converting the same shall become a holder of
shares of Common Stock for the purpose of receiving dividends and for all other
purposes whatsoever as of the date when the certificate or certificates for the
shares of Class A Common Stock to be converted are surrendered to the
Corporation as provided in paragraph 3.1(v).
(iii) A number of shares of Common Stock sufficient to
provide, upon the basis hereinbefore set forth, for the conversion of all shares
of the Class A Common Stock outstanding shall at all times be reserved by the
Corporation for the exercise of the conversion rights of the holders of shares
of the Class A Common Stock.
(iv) If the Corporation shall, at any time, be
consolidated or merged with, or shall sell its property as an entirety or
substantially as an entirety to, any other corporation or corporations, or in
the event of any recapitalization or reclassification of its shares after the
date hereof, proper provisions shall be made as a part of the terms of each such
consolidation, merger, sale, recapitalization or reclassification so that the
holder of any shares of the Class A Common Stock outstanding immediately prior
to such consolidation, merger, sale, recapitalization or reclassification shall
thereafter be entitled to and only entitled to conversion rights upon the terms
and with respect to such securities of the consolidated, merged or purchasing
corporation, or with respect to such securities issued upon such
recapitalization or reclassification, as such holder would have been entitled to
receive upon such consolidation, merger, sale, recapitalization or
reclassification if such holder had exercised the conversion privilege
immediately prior thereto. The provisions of this paragraph 3.1(iv) shall
similarly apply to successive consolidations, mergers, sales, recapitalizations
or reclassifications.
-3-
(v) Before any holder of Class A Common Stock shall be
entitled to convert the same into Common Stock, such holder shall surrender its
certificate or certificates for such Class A Common Stock to the Corporation at
the office of a transfer agent for the Common Stock, or at such other place or
places, if any, as the Board of Directors may determine, duly endorsed or
accompanied if appropriate by duly executed instruments of transfer and shall
give written notice to the Corporation at said office or place that he elects so
to convert the shares of Class A Common Stock represented by the certificate or
certificates so surrendered. Unless the Common Stock is to be issued in the name
of the registered owner of the certificates surrendered, the holder shall state
in writing the name or names in which it wishes the certificate or certificates
for Common Stock to be issued, and shall furnish all requisite stock transfer
and stock issuance tax stamps, or funds therefor. The Corporation shall as soon
as practicable after such deposit of certificates for Class A Common Stock,
accompanied by the written notice above prescribed, issue and deliver, at the
office or place at which such certificates were deposited, to the person for
whose account Class A Common Stock was so surrendered, or to such person's
nominee or nominees, certificates for the number of full shares of Common Stock
to which he shall be entitled as aforesaid.
3.2. All outstanding shares of Class A Common Stock shall
automatically, without any act or deed on the part of the Corporation or any
other person, be converted into shares of Common Stock on a share-for-share
basis (i) at any time after the date hereof when the total number of shares of
Class A Common Stock outstanding and reserved for issuance upon exercise of
options, warrants or other securities convertible into or exchangeable for
shares of Class A Common Stock is less than 1,000,000; (ii) if at any time the
Board of Directors, in its sole discretion, determines that there has been a
material adverse change in the liquidity, marketability, or market value of the
outstanding Common Stock due to a delisting of the Common Stock from a national
securities exchange or a national over-the-counter listing or due to
requirements under applicable state securities laws in any such case
attributable to the existence of the Class A Common Stock; or (iii) if the Board
of Directors, in its sole discretion, elects to effect a conversion in
connection with its approval of any sale or lease of all or substantially all of
the Corporation's assets or any merger, consolidation, liquidation or
dissolution of the Corporation. In the event of any such automatic conversion,
each stock certificate theretofore representing Class A Common Stock will
thereafter represent the same number of shares of Common Stock.
3.3. The provisions of this paragraph 3 shall be in addition
to the provisions of paragraphs 5.1(i)(A)(3), 5.1(ii) and 5.1(iv), which require
automatic conversion of Class A Common Stock in the circumstances provided
therein.
3.4. Shares of the Class A Common Stock converted into Common
Stock as provided in paragraph 3.1 shall resume the status of authorized but
unissued shares of Class A Common Stock. Upon any automatic conversion of Class
A Common Stock into Common Stock pursuant to paragraph 3.2 or paragraph 5, the
Class A Common Stock shall no longer be authorized for issuance.
-4-
4. Voting.
4.1. Except as otherwise provided by the laws of the State of
New Jersey or by this Article Fourth, each share of Common Stock shall entitle
the holder thereof to one vote.
4.2. Except as otherwise provided by the laws of the State of
New Jersey or by this Article Fourth, each share of Class A Common Stock shall
entitle the holder thereof to two votes. Except as otherwise provided herein or
required by law, holders of Common Stock and Class A Common Stock shall at all
times vote on all matters (including the election of directors) together as one
class and together with the holders of any other series or class of stock of the
Corporation accorded such class voting right.
4.3. The affirmative vote of the holders of a majority of the
outstanding shares of Common Stock and of Class A Common Stock, each voting
separately as a class, shall be required to:
(i) authorize additional shares of Class A Common Stock;
or
(ii) adopt any other amendment hereof that alters or
changes the designations or powers or the preferences, qualifications,
limitations, restrictions or the relative or special rights of either the Common
Stock or the Class A Common Stock so as to affect holders of shares of such
class adversely.
5. Limitations on Transfer and Issuance of Class A Common Stock.
5.1.
(i) No person holding any share of Class A Common Stock
may transfer, and the Corporation shall not register the transfer of such share
of Class A Common Stock or any interest therein, whether by sale, assignment,
gift, bequest, appointment or otherwise, except to a "Permitted Transferee" of
such person. The term "Permitted Transferee" shall mean only,
(A) In the case of a holder of Class A Common
Stock (a "Holder") who is a natural person and the holder of
record and beneficial owner of shares subject to a proposed
transfer, "Permitted Transferee" means: (1) the Holder, the
spouse of such Holder, any lineal descendant of a
grandparent of such Holder, or any spouse of such lineal
descendant (herein collectively referred to as "such
Holder's Family Members"); (2) the trustee of a trust solely
for the benefit of such Holder or such Holder's Family
Members, provided that such trust may also grant a general
or special power of appointment to one or more of such
Holder's Family Members and may permit trust assets to be
used to pay taxes,
-5-
legacies and other obligations of the trust or of the
estates of one or more of such Holder's Family Members
payable by reason of the death of any of such Family
Members; (3) a corporation if all of the outstanding capital
stock of such corporation is beneficially owned by, or a
partnership if all of the partners are and all of the
partnership interests are beneficially owned by, the Holder
and his Permitted Transferees determined under this
paragraph 5.1(i)(A), provided that if by reason of any
change in the ownership of such stock or partners or
partnership interests, such corporation or partnership would
no longer qualify as a Permitted Transferee of such Holder
or his Permitted Transferees, all shares of Class A Common
Stock then held by such corporation or partnership shall
immediately and automatically, without further act or deed
on the part of the Corporation or any other person, be
converted into shares of Common Stock on a share-for-share
basis, and stock certificates formerly representing such
shares of Class A Common Stock shall thereupon and
thereafter be deemed to represent the like number of shares
of Common Stock; (4) an organization established by the
Holder or such Holder's Family Members, contributions to
which are deductible for federal income, estate or gift tax
purposes; or (5) the executor, administrator or personal
representative of the estate of such Holder or the guardian
or conservator of such Holder adjudged disabled by a court
of competent jurisdiction, acting in his capacity as such.
(B) In the case of a Holder holding the shares
subject to a proposed transfer as trustee pursuant to a
trust (other than a trust described in paragraph 5.1(i)(C)
below), "Permitted Transferee" means (1) the person who
established such trust and (2) any Permitted Transferee of
such person determined pursuant to paragraph 5.1(i)(A)
above.
(C) In the case of a Holder holding shares subject
to a proposed transfer as trustee pursuant to a trust which
was irrevocable on the date hereof, "Permitted Transferee"
means (1) any person to whom or for whose benefit principal
may be distributed either during or at the end of the term
of such trust whether by power of appointment or otherwise
(excluding beneficiaries of any employee benefit plan) and
(2) any Permitted Transferee of any such person determined
pursuant to paragraph 5.1(i)(A) above.
(D) In the case of a Holder which is a corporation
or partnership, "Permitted Transferee" means (1) any person
who transferred to such corporation or partnership the
shares that are the subject of the proposed transfer and (2)
any Permitted Transferee of any such person determined under
paragraph 5.1(i)(A) above.
(E) In the case of a Holder who is the executor,
administrator or personal representative of the estate of a
deceased Holder, guardian or conservator
-6-
of the estate of a disabled Holder or who is a trustee of
the estate of a bankrupt or insolvent Holder, and provided
such deceased, disabled, bankrupt or insolvent Holder, as
the case may be, was the record and beneficial owner of the
shares subject to a proposed transfer, "Permitted
Transferee" means a Permitted Transferee of such deceased,
disabled, bankrupt or insolvent Holder as determined
pursuant to paragraph 5.1(i)(A) or (D) above, as the case
may be.
(ii) Notwithstanding anything to the contrary set forth
herein, any holder of Class A Common Stock may pledge his shares of Class A
Common Stock to a pledgee which is not a Permitted Transferee pursuant to a bona
fide pledge of such shares as collateral security for indebtedness due to the
pledgee, provided that such shares may not be transferred to or registered in
the name of the pledgee unless such pledgee is a Permitted Transferee. In the
event of foreclosure or other similar action by the pledgee, such pledged shares
of Class A Common Stock shall automatically, without any act or deed on the part
of the Corporation or any other person, be converted into shares of Common Stock
on a share-for-share basis, unless within five business days after such
foreclosure or similar event such pledged shares are returned to the pledgor or
transferred to a Permitted Transferee of the pledgor.
(iii) For purposes of this paragraph 5.1:
(A) The relationship of any person that is derived
by or through legal adoption shall be considered a natural
one.
(B) Each joint owner of shares of Class A Common
Stock shall be considered a Holder of such shares.
(C) A minor for whom shares of Class A Common
Stock are held pursuant to a Uniform Gifts to Minors Act or
similar law shall be considered a Holder of such shares.
(D) Unless otherwise specified, the term "person"
means both natural persons and legal entities.
(iv) Any purported transfer of Class A Common Stock other
than to a Permitted Transferee shall automatically, without any further act or
deed on the part of the Corporation or any other person, result in the
conversion of such shares into shares of Common Stock on a share-for-share
basis, effective on the date of such purported transfer. The Corporation may, as
a condition to transfer or registration of transfer of shares of Class A Common
Stock to a purported Permitted Transferee, require that the record holder
establish to the satisfaction of the Corporation, by filing with the transfer
agent an appropriate affidavit or certificate or such other proof as the
Corporation shall deem necessary, that such transferee is a Permitted
Transferee.
-7-
5.2. Anything in this Article Fourth to the contrary
notwithstanding, no share of Class A Common Stock may be held of record but not
beneficially by a broker or dealer in securities, a bank or voting trustee or a
nominee of any such, or otherwise held of record but not beneficially by a
nominee of the beneficial owner of such share (any such form of holding being
referred to herein as holding in "street" or nominee name).
5.3. The Corporation shall note on the certificates
representing the shares of Class A Common Stock that there are restrictions on
transfer and registration of transfer imposed by paragraphs 5.1 and 5.2.
5.4. (i) For purposes of this paragraph 5, "beneficial
ownership" shall mean possession of the power to vote or to direct the vote and
to dispose of or to direct the disposition of the share of Class A Common Stock
in question, and a "beneficial owner" of a share of Class A Common Stock shall
be the person having beneficial ownership thereof.
(ii) The Board of Directors may, from time to time,
establish practices and procedures and promulgate rules and regulations, in
addition to those set forth in this Article Fourth, and amend or revoke any
such, regarding the evidence necessary to establish entitlement of any
transferee or purported transferee of Class A Common Stock to be registered as
such. Should the transferee or purported transferee of any share wish to contest
any decision of the Corporation on the question whether the transferee or
purported transferee has established entitlement to be registered as a
transferee of Class A Common Stock, then the Board of Directors shall in its
sole discretion make the final determination.
6. Other Matters.
6.1. In case the Corporation shall at any time issue to the
holders of its shares of Common Stock as such options or rights to subscribe for
shares of Common Stock (including shares held in the Corporation's treasury) or
any other security (whether of the Corporation or otherwise), the Corporation
shall issue such options or rights to the holders of the Class A Common Stock in
the respective amounts equal to the amounts that such holders would have been
entitled to receive had their respective shares of Class A Common Stock been
converted into Common Stock on the day prior to the date for the determination
of the holders of Common Stock entitled to receive such options or rights.
6.2. In any distribution of stock of any other corporation or
any merger, consolidation, reorganization or other business combination
involving the Company, the consideration to be received per share by holders of
either Common Stock or Class A Common Stock shall be identical to that received
by holders of the other class of Common Equity.
PREFERRED STOCK
-8-
The Preferred Stock may be issued from time to time in one or
more series. The Board of Directors is hereby authorized to provide for the
issuance of shares of Preferred Stock in series and, by filing a certificate
pursuant to the applicable law of the State of New Jersey (hereinafter referred
to as a "Preferred Stock Designation"), to establish from time to time the
number of shares to be included in each such series, and to fix the designation,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations and restrictions thereof. The authority of the Board
of Directors with respect to each series shall include, but not be limited to,
determination of the following:
(i) the designation of the series, which may be by
distinguishing number, letter or title;
(ii) the number of shares of the series, which number the
Board of Directors may thereafter (except where otherwise provided in the
Preferred Stock Designation) increase or decrease (but not below the number of
shares thereof then outstanding);
(iii) whether dividends, if any, shall be cumulative or
noncumulative and the dividend rate of the series;
(iv) the dates at which dividends, if any, shall be
payable;
(v) the redemption rights and price or prices, if any,
for shares of the series;
(vi) the terms and amount of any sinking fund provided
for the purchase or redemption of shares of the series;
(vii) the amounts payable on shares of the series in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Corporation;
(viii) whether the shares of the series shall be
convertible into shares of any other class or series, or any other security, of
the Corporation or any other corporation, and, if so, the specification of such
other class or series or such other security, the conversion price or prices or
rate or rates, any adjustments thereof, the date or dates as of which such
shares shall be convertible and all other terms and conditions upon which such
conversion may be made;
(ix) restrictions on the issuance of shares of the same
series or of any other class or series; and
(x) the voting rights, if any, of the holders of shares
of the series.
Except as may be provided in this Certificate of Incorporation or in
a Preferred Stock Designation, the Common Stock and the Class A Common Stock
shall have the exclusive
-9-
right to vote for the election of directors and for all other purposes, and
holders of Preferred Stock shall not be entitled to receive notice of any
meeting of shareholders at which they are not entitled to vote. The number of
authorized shares of Preferred Stock may be increased or decreased (but not
below the number of shares thereof then outstanding) by the affirmative vote of
the votes entitled to be cast by the holders of a majority of the outstanding
Common Stock and Class A Common Stock, voting as one class, without a vote of
the holders of the Preferred Stock, or of any series thereof, unless a vote of
any such holders is required pursuant to any Preferred Stock Designation.
The Corporation shall be entitled to treat the person in whose name
any share of its stock is registered as the owner thereof for all purposes and
shall not be bound to recognize any equitable or other claim to, or interest in,
such share on the part of any other person, whether or not the Corporation shall
have notice thereof, except as expressly provided by applicable law.
FIFTH: Subject to the rights of the holders of any series of Preferred
Stock to elect directors under specified circumstances, the number of directors
of the Corporation shall be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by a majority of the whole Board, but
shall not be less than one or greater than nine. A director need not be a
shareholder.
The directors, other than those who may be elected by the holders of
any series of Preferred Stock or any other series or class of stock, as provided
herein or in any Preferred Stock Designation, shall be divided into three
classes, as nearly equal in number as possible. One class of directors shall be
initially elected for a term expiring at the annual meeting of shareholders to
be held in 1998, another class shall be initially elected for a term expiring at
the annual meeting of shareholders to be held in 1999, and another class shall
be initially elected for a term expiring at the annual meeting of shareholders
to be held in 2000. Members of each class shall hold office until their
successors are elected and shall have qualified. At each annual meeting of the
shareholders of the Corporation, commencing with the 1998 annual meeting, the
successors of the class of directors whose term expires at that meeting shall be
elected by a plurality vote of all votes cast at such meeting to hold office for
a term expiring at the annual meeting of shareholders held in the third year
following the year of their election. No decrease in the number of authorized
directors constituting the whole Board of Directors shall shorten the term of
any incumbent director.
Subject to the rights of the holders of any series of Preferred
Stock, and unless the Board of Directors otherwise determines, newly created
directorships resulting from any increase in the authorized number of directors
or any vacancies on the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause may be filled
only by a majority vote of the directors then in office, though less than a
quorum, and shall not be filled by the shareholders unless there are no
directors remaining on the Board of Directors. Any director so chosen (a
"vacancy director") shall be a director of the same class as the director
-10-
whose vacancy he or she fills. Such vacancy director shall hold office until the
next annual meeting of shareholders and until his or her successor shall have
been elected and qualified. The shareholders shall thereupon elect a director to
fill the vacancy having been temporarily filled by the vacancy director, which
individual may include the incumbent vacancy director. The director so elected
shall be a director of the same class as the vacancy director and shall serve
until the annual meeting of shareholders at which the term of office of such
class expires and until such director's successor shall have been duly elected
and qualified.
Subject to the rights of the holders of any series of Preferred
Stock or any other series or class of stock, as provided herein or in any
Preferred Stock Designation, to elect additional directors under specific
circumstances, any director may be removed from office at any time, but only for
cause and only by the affirmative vote of the holders of at least 80 percent
(80%) of the voting power of the then outstanding capital stock of the
Corporation entitled to vote generally in the election of directors (the "Voting
Stock"), voting together as a single class.
No director of the Corporation shall be personally liable to the
Corporation or its shareholders for damages for breach of any duty owed to the
Corporation or its shareholders as a director, except for any breach of duty
based on an act or omission (i) in breach of the director's duty of loyalty to
the Corporation or its shareholders, (ii) not in good faith or involving a
knowing violation of law or (iii) resulting in receipt by such director of an
improper personal benefit. As used in this paragraph, an act or omission in
breach of a director's duty of loyalty means an act or omission which that
person know or believes to be contrary to the best interests of the Corporation
or its shareholders in connection with a matter in which he has a material
conflict of interest. This paragraph shall not eliminate or limit the liability
of a director for any act or omission occurring prior to the effective date of
its adoption. No repeal or modification of this paragraph, directly or by
adoption of an inconsistent provision of this Certificate of Incorporation, by
the shareholders of the Corporation shall be effective with respect to any cause
of action, suit, claim or other matter that, but for this paragraph, would
accrue or arise prior to such repeal or modification. If the New Jersey Act is
amended after the filing of the Restated Certificate of Incorporation of which
this Article is a part to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of a director
of the Corporation shall be eliminated or limited to the fullest extent
permitted by the New Jersey Act as so amended.
SIXTH: Election of directors need not be by written ballot unless a
shareholder demands election by ballot at the election and before voting begins.
SEVENTH: Any action required or permitted to be taken by the shareholders
shall be taken only at an annual or special meeting of such shareholders or by
unanimous written consent pursuant to ss.14A:5-6(1) of the New Jersey Act (or
any successor provision), and specifically
-11-
shall not be taken upon the written consent of less than all shareholders
pursuant to ss.14A:5-6(2) of the New Jersey Act (or any successor provision).
Special meetings of the shareholders for any purpose or purposes shall be called
only by the Chairman of the Board or the President of the Corporation or upon a
resolution adopted by a majority of the entire Board of Directors of the
Corporation.
EIGHTH:
1. Amendment of Certificate of Incorporation. From time to time any of
the provisions of the Certificate of Incorporation may be amended, altered or
repealed, and other provisions authorized by the New Jersey Act may be added or
inserted, and all rights at any time conferred upon the shareholders of the
Corporation by its Certificate of Incorporation are granted subject to the
provisions of this Article Eighth. Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 80% of the voting power of the then outstanding Voting
Stock, voting together as a single class, shall be required to amend or repeal
Article Fifth, Article Seventh or this Article Eighth or adopt any provision
inconsistent with any of the foregoing articles.
2. By-laws. The Board of Directors is expressly authorized to make,
alter, amend and repeal the by-laws of the Corporation, in any manner not
inconsistent with the laws of the State of New Jersey or the Certificate of
Incorporation, subject to the power of the holders of the Capital Stock to alter
or repeal the by-laws made by the Board of Directors.
NINTH: The names and addresses of the directors constituting the current
Board of Directors of the Corporation are as follows:
Harry J. Muhlschlegel Karen B. Muhlschlegel Paul J. Karvois
4 Stags Leap Court 4 Stags Leap Court 12 Glenforest Drive
Tabernacle, NJ 08088 Tabernacle, NJ 08088 Voorhees, NJ 08043
-12-