CERTIFICATE OF ADOPTION
OF
AMENDMENT TO ARTICLES OF INCORPORATION
OF
EAGLE-PICHER INDUSTRIES, INC.
James A. Ralston, Vice President, General Counsel and Secretary of
Eagle-Picher Industries, Inc., an Ohio corporation, with its principal office
located in Cincinnati, Hamilton County, Ohio (the "Corporation"), does hereby
certify that the following resolution was duly adopted pursuant to Sections
1701.71 and 1701.54 of the Ohio General Corporation Law by the written consent
of the Corporation's sole shareholder dated December 12, 1997:
"RESOLVED, that the Amended and Restated Articles of Incorporation of
the Corporation (the "Articles") be amended to delete Article Sixth
thereof, and that the proper officers of the Corporation be and hereby are
authorized and directed to execute and file with the Secretary of State of
the State of Ohio, in the name of the Corporation, a Certificate of
Amendment to the Articles (and any documents ancillary thereto) setting
forth this Resolution."
IN WITNESS WHEREOF, James A. Ralston, Vice President, General Counsel
and Secretary of Eagle-Picher Industries, Inc. has hereunto subscribed his
name this 2nd day of February, 1998.
/s/ James A. Ralston
----------------------------
James A. Ralston
Vice President, General Counsel
and Secretary
CERTIFICATE OF REORGANIZATION
OF
EAGLE-PICHER INDUSTRIES, INC.
The undersigned, Thomas E. Petry, Chairman of the Board and Chief
Executive Officer, and James A. Ralston, Vice President, General Counsel and
Secretary, of Eagle-Picher Industries, Inc. (the "Corporation"), do hereby
certify that: (1) the Corporation is the Debtor in that certain Chapter 11 case
identified as Consolidated Case No. 1-91-00100 in the United States Bankruptcy
Court for the Southern District of Ohio, Western Division (the "Case"), (2) in
the Case, the Corporation has filed a Consolidated Plan of Reorganization that
provides for the adoption of Amended and Restated Articles of Incorporation for
the Corporation in the form set forth as Exhibit A to this Certificate, (3) the
Consolidated Plan of Reorganization, including the Amended and Restated Articles
of Incorporation that are Exhibit A hereto, was confirmed by the order of the
United States District Court for the Southern District of Ohio, Western
Division, and the United States Bankruptcy Court for the Southern District of
Ohio, Western Division, entered on November 18, 1996, and (4) such order remains
in full force and effect at the date hereof.
The Amended and Restated Articles of Incorporation annexed hereto may be
certified by the office of the Secretary of State of Ohio separately from this
Certificate of Reorganization.
IN WITNESS WHEREOF, the undersigned Chairman of the Board and Chief
Executive Officer and Vice President, General Counsel and Secretary of
Eagle-Picher Industries, Inc., have executed this Certificate of Reorganization
this 29th day of November, 1996.
/s/ THOMAS E. PETRY
-----------------------------------
Name: Thomas E. Petry
Title: Chairman of the Board
and Chief Executive
Officer
/s/ JAMES A. RALSTON
-----------------------------------
Name: James A. Ralston
Title: Vice President, General
Counsel and Secretary
EXHIBIT A
CERTIFICATE OF AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
EAGLE-PICHER INDUSTRIES, INC.
The undersigned, Thomas E. Petry, Chairman of the Board and Chief
Executive Officer, and James A. Ralston, Vice President, General Counsel and
Secretary, of Eagle-Picher Industries, Inc. (the "Corporation"), do hereby
certify that in connection with a Plan of Reorganization confirmed by the
United States District Court for the Southern District of Ohio, Western
Division, and the United States Bankruptcy Court for the Southern District
of Ohio, Western Division, in the chapter 11 case of the Corporation (the
"Plan"), the Articles of the Corporation were amended and restated, pursuant
to such Plan and the authority granted by Section 1701.75 of the Ohio Revised
Code ("O.R.C."), to read as follows:
FIRST: The name of the Corporation is Eagle-Picher Industries, Inc.
SECOND: The place in Ohio where the principal office of the Corporation is
to be located is Cincinnati, Hamilton County, Ohio.
THIRD: The purpose for which the Corporation is formed is to engage in any
lawful act or activity for which corporations may be formed under Sections
1701.01 to 1701.98 inclusive, of the O.R.C.
FOURTH: (a) All shares of the Corporation that are authorized for issuance
immediately prior to the time as of which these Amended and Restated Articles of
Incorporation become effective (the "Effective Time") are hereby canceled. As of
the Effective Time, the number of shares that the Corporation is authorized to
have outstanding is 20,000,000 common shares, without par value (the "Common
Stock").
(b) Pursuant to the requirements of Section 1123(a)(6) of the Bankruptcy
Code, the Corporation shall not issue nonvoting equity securities, subject,
however, to further amendment of these Amended and Restated Articles of
Incorporation as and to the extent permitted by applicable law.
FIFTH: The Corporation, by action of its Board of Directors, may purchase
its own shares at any time and from time-to-time to the extent permitted by law.
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SIXTH: The shares of the Corporation's Common Stock, other rights or
options to purchase shares of the Corporation's Common Stock and any other
interests that would be treated as "stock" of the Corporation under Section 382
of the Internal Revenue Code (collectively, the "Corporate Securities") are
subject to the following restrictions:
1. During the period beginning on the Effective Time and ending
twenty-five (25) months thereafter, any attempted sale, purchase, transfer,
assignment, conveyance, pledge or other disposition of any share or shares of
Corporate Securities ("Transfer") to any person or entity or to any group of
persons or entities acting in concert ("Transferee") who directly or indirectly
owns, or is treated as owning (within the meaning of the attribution rules
applicable under Section 382 of the Internal Revenue Code ("Own")), 4.75% or
more of any class of Corporate Securities, or after giving effect to the
Transfer, would directly or indirectly Own more than 4.75% of the outstanding
shares of any class of Corporate Securities, shall be void AB INITIO and shall
not be effective to Transfer any of such shares to the extent the Transfer
increases the Transferee's direct or indirect ownership of the Corporate
Securities above 4.75% of the total outstanding shares of such class of
Corporate Securities; provided, however, that the foregoing restriction shall
not apply to the original issuance of 10,000,000 shares of the Corporation's
Common Stock pursuant to the Plan. Similarly, any Transfer by a transferor who
directly or indirectly Owns 5% or more of the outstanding shares of any class
of Corporate Securities shall be void AB INITIO and shall not be effective
to Transfer any of such shares to the purported Transferee.
2. (a) If the Board of Directors of the Corporation determines that a
Transfer of Corporate Securities constitutes a Transfer prohibited by Section 1
hereof (a "Prohibited Transfer"), then upon written demand made by any officer
of the Corporation, the purported Transferee shall transfer or cause to be
transferred any certificate or other evidence of ownership of Corporate
Securities that are the subject of the Prohibited Transfer ("Prohibited
Securities"), together with any dividends or other distributions that were
received by the Transferee from the Corporation with respect to such Prohibited
Securities ("Prohibited Distributions"), to an agent designated by the Board of
Directors of the Corporation (the "Agent"). The Agent shall then sell to a buyer
or buyers the Prohibited Securities so transferred to it. If, before receiving
the demand of the Corporation to transfer the Prohibited Securities to the
Agent, the purported Transferee has resold the Prohibited Securities, the
purported Transferee shall be deemed to have sold the Prohibited Securities for
and on behalf of the Agent and, in lieu of transferring the Prohibited
Securities to the Agent, shall transfer to the Agent any Prohibited
Distributions and the proceeds of such sale. If the purported Transferee fails
to surrender the Prohibited Securities or the proceeds of a sale
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thereof, together with any Prohibited Distributions, to the Agent within thirty
(30) business days from the date on which the Corporation makes its demand for
surrender hereunder, the Corporation shall institute legal proceedings to compel
the surrender. The costs of any such proceeding in which the court shall compel
such surrender or award damages shall be borne by the purported Transferee.
(b) Upon the receipt of the proceeds of any sale of Prohibited Securities
by the Agent or, upon the receipt from the purported Transferee thereof of the
proceeds from any previous sale of such Prohibited Securities by such
Transferee, the amount so received shall be applied by the Agent as follows: (i)
first, to the payment of the reasonable expenses of the Agent incurred in
connection with the performance of its duties hereunder; (ii) second, to the
purported Transferee up to the amount paid by the purported Transferee for the
Prohibited Securities, which amount shall be determined by the Board of
Directors of the Corporation in its sole discretion; and (iii) third, to one or
more organizations that shall then be qualified under Section 501(c)(3) of the
Internal Revenue Code as selected by the Board of Directors of the Corporation.
3. Neither the Corporation nor any transfer agent or other person on its
behalf shall effect a Prohibited Transfer on the stock record books of the
Corporation and the purported Transferee thereof shall not be recognized as a
shareholder of the Corporation for any purpose whatsoever in respect of the
Prohibited Securities. Until the Prohibited Securities are acquired by another
person in a Transfer that is not a Prohibited Transfer, the purported Transferee
shall not be entitled with respect to such Prohibited Securities to any rights
of shareholders of the Corporation, including, without limitation, the right to
vote such Prohibited Securities and to receive dividend distributions, whether
liquidating or otherwise, in respect thereof, if any. Once the Prohibited
Securities have been acquired in a Transfer that is not a Prohibited Transfer,
the Corporate Securities shall cease to be Prohibited Securities.
4. All certificates evidencing any Corporate Securities issued by the
Corporation after the Effective Time, shall bear a conspicuous legend reading
substantially as follows:
THE TRANSFER OF THE SECURITIES REPRESENTED HEREBY IS SUBJECT TO
RESTRICTION PURSUANT TO THE AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF REORGANIZED EAGLE-PICHER, WHICH RESTRICTION IS REPRINTED IN ITS
ENTIRETY ON THE BACK OF THIS CERTIFICATE.
With respect to any Corporate Securities that are not evidenced by a
certificate, but are uncertificated securities, the foregoing legend shall be
set forth in the initial transaction statement
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required for restrictions on transfer by Section 1308.11 of the O.R.C.
5. Notwithstanding any other provisions of these Amended and Restated
Articles of Incorporation or the Regulations of the Corporation (and
notwithstanding the fact that a lesser percentage may be specified by law, these
Amended and Restated Articles of Incorporation or the Regulations), the
affirmative vote of the holders of 80% or more of the outstanding shares, voting
together as a single class, shall be required to amend or repeal, or adopt any
provisions inconsistent with this Article Sixth; provided, however, that
shareholder action without a meeting shall require the unanimous written consent
of all shareholders entitled to vote thereon.
SEVENTH: These Amended and Restated Articles of Incorporation supersede
and take the place of all prior Articles of Incorporation of the Corporation.
IN WITNESS WHEREOF, the undersigned Chairman of the Board and Chief
Executive Officer and Vice President, General Counsel and Secretary of
Eagle-Picher Industries, Inc. have executed this Certificate this 29th day of
November, 1996.
EAGLE-PICHER INDUSTRIES, INC.
By /s/ THOMAS E. PETRY
-----------------------------
Name: Thomas E. Petry
Title: Chairman of the Board
and Chief Executive
Officer
/s/ JAMES A. RALSTON
-------------------------------
Name: James A. Ralston
Title: Vice President, General
Counsel and Secretary
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