1
EXHIBIT 3.1
(In restated form, reflecting amendments through December 30, 1994)
CERTIFICATE OF INCORPORATION
OF
TRANS-RESOURCES, INC.
(Pursuant to the General Corporation Law
of the State of Delaware)
FIRST: The name of the Corporation is Trans-Resources, Inc.
SECOND: The registered office of the Corporation in the State of
Delaware is located at c/o United Corporate Services, Inc., 15 East North
Street, in the City of Dover, County of Kent. The name and address of its
registered agent is United Corporate Services, Inc. at such address.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: The total number of shares of capital stock which may be issued
by the Corporation is 103,000 shares, of which 3,000 shares shall be Common
Stock, of the par value of One Cent ($.01) per share ("Common Stock"), and
100,000 shares shall be Redeemable Preferred Stock, of the par value of One
Dollar ($1.00) per share ("Preferred Stock").
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions of the shares of each class of
stock are as follows:
PREFERRED STOCK
1.1 (a) Holders of shares of Preferred Stock shall be entitled to
receive, when and as declared by the Board of Directors, out of funds
available for payment of dividends thereon, preferential cumulative dividends
at the rate of $8.50 per share per annum and no more, payable in cash
quarterly on the first business day of January, April, July, and October in
each
E-4
2
year. Dividends commenced accruing on October 1, 1994 and the first dividend
shall be payable January 1, 1995.
(b) The dividends on the Preferred Stock shall be payable before any
dividend (except dividends payable solely in shares of Common Stock) or other
distribution on any shares of Common Stock or any other class of stock at any
time ranking junior to the Preferred Stock shall be declared or paid or set
aside for payment, so that if in any year dividends, as specified in the next
preceding paragraph, shall not have been paid thereon, the deficiency shall be
payable before any dividend (except dividends payable solely in shares of
Common Stock) or other distribution on any shares of the Common Stock or other
class of stock at any time ranking junior to the Preferred Stock shall be
declared or paid or set aside for payment.
1.2 (a) Preferred Stock shall be redeemable, in whole or in part, pro-
rata, at the option of the Corporation expressed by a resolution of the Board
of Directors, at any time and from time to time at a redemption price of
$79.60 per share plus an amount equal to cumulative dividends, accrued and
unpaid thereon up to the date fixed for redemption and the dividend accruing
on such redemption date (hereinafter referred to as the "redemption price").
(b) Notice of every redemption of Preferred Stock, in the form
approved by the Board of Directors, shall be given by mailing such notice not
less than 30 nor more than 60 days prior to the date fixed for such redemption
to each holder of record of shares so to be redeemed at his address as shown
by the records of the Corporation. Each such notice shall specify the date
fixed for redemption and the place where payment of the redemption price is to
be made upon surrender for cancellation of the certificates representing
shares called for redemption. Failure to mail such notice or any defect
therein or in the mailing thereof shall not affect the validity of the
proceeding for such redemption except as to the holder to whom the Corporation
has failed to mail such notice or except as to the holder whose notice was
defective. Any notice which was mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the holder
receives the notice.
(c) At any time after notice of redemption shall have been duly
given as above provided, the Corporation may deposit the redemption price in
trust with a bank or trust company doing business in the Borough of Manhattan,
the City of New York, State of New York, and having a capital, surplus and
undivided profits aggregating at least $100,000,000, named in such notice, for
payment on or before the date fixed for redemption in respect of the shares
called for redemption. Any interest accrued on funds which are deposited as
aforesaid shall be paid to the Corporation
-2-
3
from time to time and the holders of shares to be redeemed shall have no claim
to any such interest.
(d) If notice shall have been duly given as hereinabove provided on
and after the date fixed for redemption (unless the Corporation shall default
in making payment of the redemption price) all shares so called for redemption
shall no longer be deemed outstanding and all rights with respect to such
shares including but not limited to the right to receive dividends thereon,
shall cease and terminate notwithstanding that any certificate for such shares
so called for redemption shall not have been surrendered for cancellation, and
the holders of such shares so called for redemption shall cease to be
stockholders and shall have no interest or claim against the Corporation
except the right to receive the redemption price, without interest, upon
surrender of their certificates for cancellation.
(e) In order to facilitate the redemption of any shares of
Preferred Stock, the Board of Directors is authorized to cause the transfer
books of the Corporation to be closed as to the shares to be redeemed.
1.3 In the event of any liquidation, dissolution or winding up of the
corporation, whether voluntary or involuntary, after payment or provision for
payment of the debts and other liabilities of the Corporation, the holders of
shares of Preferred Stock then outstanding shall be entitled to receive, out
of the net assets of the Corporation $79.60 per share plus an amount
equivalent to the dividends accrued and unpaid thereon to the date of final
distribution, before any distribution shall be made to the holders of shares
of Common Stock or any other stock ranking junior to the Preferred Stock. If,
upon any liquidation, dissolution or winding up, the assets of the Corporation
distributable among the holders of the Preferred Stock shall be insufficient
to pay in full the preferential amount aforesaid, then such assets or the
proceeds thereof shall be distributable among the holders of the Preferred
Stock ratably in accordance with the sums which would be payable on such
distribution if all sums payable were discharged in full. The holders of
Preferred Stock shall not be entitled to receive any amounts with respect
thereto upon any liquidation, dissolution or winding up of the Corporation
other than the amounts referred to in this paragraph. Neither the merger nor
the consolidation of the Corporation, nor the sale, lease or conveyance of all
or part of its property and business as an entirety, shall be deemed to be a
liquidation, dissolution or winding up of the affairs of the Corporation
within the meaning of this paragraph.
-3-
4
1.4 The holders of shares of Preferred Stock shall have no voting rights
whatsoever, except for any voting rights to which they may be entitled under
the laws of the State of Delaware, and except as follows: so long as any
shares of the Preferred Stock remain outstanding, the Corporation will not,
either directly or indirectly or through merger or consolidation with any
other corporation, without the affirmative vote of the holders of at least a
majority in number of shares of the Preferred Stock and parity stock
possessing like voting rights which have vested and are exercisable then
outstanding, (a) create any series or class of stock ranking prior or pari
passu to the Preferred Stock either as to dividends or upon liquidation or
increase the authorized number of shares of any series or class of stock
ranking prior or pari passu with the Preferred Stock either as to dividends or
upon liquidation, (b) amend, alter or repeal any of the provisions of the
Certificate of Incorporation so as to affect adversely the preferences,
special rights or powers of the Preferred Stock, or (c) authorize any
reclassification of the Preferred Stock.
COMMON STOCK
2.1 Subject to all the rights of the Preferred Stock, dividends may be
paid upon the Common Stock as and when declared by the Board of Directors out
of any funds legally available therefor.
2.2 Upon any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, after payment shall have been made in full
to the holders of Preferred Stock the holders of the Common Stock shall be
entitled to receive any and all assets remaining to be paid or distributed.
2.3 Except as otherwise provided by statute or by any express provision
of this Certificate, all rights to vote and all voting power shall be
exclusively vested in the Common Stock and the holders thereof shall be
entitled to one vote for each share for the election of directors and upon all
other matters.
GENERAL
3.1 A director shall be fully protected in relying in good faith upon
the books of account of the Corporation or statements prepared by any of its
officials as to the value and amount of the assets, liabilities and/or net
profits of the Corporation, or any other facts pertinent to the existence and
amount of surplus or other funds from which dividends might properly be
declared and paid.
3.2 The Corporation shall be entitled to treat the person in whose name
any share, right or option is registered as the owner thereof, for all
purposes, and shall not be bound to
-4-
5
recognize any equitable or other claim to or interest in such share, right or
option on the part of any other person, whether or not the Corporation shall
have notice thereof, save as may be expressly provided by the laws of the
State of Delaware.
3.3 The minimum amount of capital with which the Corporation will
commence business is One Thousand Dollars ($1,000).
FIFTH: The Corporation is to have perpetual existence.
SIXTH: (a) The number of Directors of the Corporation which shall
constitute the whole Board of Directors shall be such as from time to time
shall be fixed by or in the manner provided in the By-Laws but in no case
shall the number be less than one. Except as may otherwise be required by
law, vacancies in the board of directors and newly created directorships
resulting from any increase in the authorized number of Directors may be
filled by a majority of the Directors then in office, though less than a
quorum.
(b) All corporate powers of the Corporation shall be exercised
by the Board of Directors except as otherwise provided herein or by law. In
furtherance and not in limitation of the powers conferred by statute and by
law the Board of Directors is expressly authorized:
(1) To fix, determine and vary from time to time the amount to be
maintained as surplus and the amount or amounts to be set apart as working
capital.
(2) To set apart out of any of the funds of the Corporation legally
available for dividends a reserve or reserves for any proper purposes and/or
to abolish any such reserve or reserves in the manner in which created.
(3) To make, amend, alter, change, add to or repeal By-Laws of the
Corporation, without any action on the part of the stockholders.
(4) To authorize and cause to be executed mortgages and liens, with
or without limit as to amount, upon the real or personal property of the
Corporation.
(5) From time to time to determine, whether and to what extent, at
what time and place and under what conditions and regulations the accounts and
books of the Corporation, or any of them, shall be open to the inspection of
any stockholder, and no stockholder shall have any right to inspect any
account or book or document of the Corporation except as conferred by statute
or By-Laws or as authorized by resolution of the stockholders or Board of
Directors.
-5-
6
(6) To authorize the payment of compensation to the Directors for
service to the Corporation, including fees and expenses for attendance at
meetings of the Board of Directors, the Executive Committee and other
committees and/or salaries for serving as such directors or committee members,
and to determine the amount of such compensation.
(7) From time to time to formulate, establish, promote and carry
out, and to amend, alter, change, revise, recall, repeal or abolish, a plan or
plans for the participation by all or any of the employees, including
Directors and officers, of the Corporation, or of any corporation, company,
association, trust or organization in which or in the welfare of which the
Corporation has any interest, and those actively engaged in the conduct of the
Corporation's business, in the profits, gains or business of the Corporation
or of any branch or division thereof, as part of the Corporation's legitimate
expenses and for the furnishing to such employee, Directors, officers or
persons, or any of them, at the Corporation's expense, or medical services,
insurance against accident, sickness or death, pensions during old age,
disability or unemployment, education, housing, social services, recreation or
other similar aids for their relief or general welfare, in such manner and
upon such terms and conditions as the Board of Directors shall determine.
(8) From time to time to formulate, establish and carry out, and to
amend, alter, change, revise, recall, repeal or abolish, a plan or plans
providing for the purchase of shares of stock of the Corporation by, or for
the granting of options or other rights to purchase shares of stock of the
Corporation to, or for the issuance of shares of stock of the Corporation to,
all or any of the officers and other employees of the Corporation, upon such
terms and conditions and for such consideration as the Board of Directors may
determine in good faith to be fair and reasonable.
(9) By a majority of the whole Board to designate one or more
committees, each committee to consist of one or more of the Directors of the
Corporation. The Board may designate one or more Directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee. The By-Laws may provide that in the absence or
disqualification of any member of such committee or committees, the member or
members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any
such absent or disqualified members. Any such committee, to the extent
provided in the resolution or in the By-Laws of the Corporation, shall have
and may exercise the powers of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers
-6-
7
which may require it; but no such committee shall have the power or authority
in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the
sale, lease or exchange of all or substantially all of the Corporation's
property and assets, recommending to the stockholders a dissolution of the
Corporation or a revocation of a dissolution, or amending the By-Laws of the
Corporation; and, unless the resolution or By-laws expressly so provide, no
such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
SEVENTH: (a) No contract or transaction between the Corporation and one
or more of its Directors, or between a 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 such
Directors or officers are present at or participate in the meeting or
committee thereof which authorized the contract or transaction, or solely
because his or their votes are counted for such purpose; provided that the
material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of Directors
or the committee, or a majority of such members thereof as shall be present at
any meeting thereof at which action upon any such contract or transaction
shall be taken, and the Board of Directors or committee authorized the
contract or transaction by the affirmative votes of the disinterested
directors, even though the disinterested directors be less than a quorum. In
any case described in this Section, any common or interested Director may be
counted in determining the existence of a quorum at any meeting of the Board
of Directors or any committee which shall authorize any such contract or
transaction and may vote thereat to authorize any such contract or
transaction. Any Director of the Corporation may vote upon any contract or
other transaction between the Corporation and any subsidiary or affiliated
corporation without regard to the fact that he is also a Director of such
subsidiary or affiliated corporation.
(b) No person shall be liable to the Corporation for any loss or
damage suffered by it on account of any action taken or omitted to be taken by
him as a Director or officer of the Corporation in good faith, if such person
(i) exercised or used the same degree of care and skill as a prudent man would
have exercised or used under the circumstances in the conduct of his own
affairs, or (ii) took, or omitted to take, such action in reliance upon advice
of counsel for the Corporation or upon statements made or information
furnished by officers or employees of the Corporation which he had reasonable
grounds to believe or upon the Corporation's books of accounts, financial
statements, or other reports prepared by an officer of employee of the
Corpor-
-7-
8
ation or by an independent public accountant or firm of independent
pubic accountants, or by an appraiser.
(c) Any contract, transaction or act of the Corporation or of the
Board of Directors which shall be ratified by a majority of a quorum of the
stockholders entitled to vote at any annual meeting or at any special meeting
called for that purpose shall be as valid and binding as though ratified by
every stockholder of the Corporation; provided, however, that any failure of
the stockholders to approve or ratify such contract, transaction or act when
and if submitted to them shall not be deemed in any way to invalidate the same
or to deprive the Corporation, its Directors or officers of their right to
proceed with such contract, transaction or act.
(d) Each Director, officer and employee, past or present, of the
Corporation, and each person who serves or may have served at the request of
the Corporation as a Director, Trustee, officer or employee of another
corporation, association, trust or other entity and their respective heirs,
administrators and executors, shall be indemnified by the Corporation in
accordance with, and to the fullest extent permitted by, the provisions of the
General Corporation Law of the State of Delaware as it may from time to time
be amended. Each agent of the Corporation and each person who serves or may
have served at the request of the Corporation as an agent of another
corporation, or as an employee or agent of any partnership, joint venture,
trust or other enterprise may, in the discretion of the Board of Directors, be
indemnified by the Corporation to the same extent as provided herein with
respect to Directors, officers and employees of the Corporation. The
provisions of this paragraph (d) shall apply to any member of any Committee
appointed by the Board of Directors as fully as though such person shall have
been an officer or Director of the Corporation.
(e) A Director of this Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (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.
(f) The provisions of this Article Seventh shall be in addition to
and not in limitation of any other rights, indemnities, or limitations of
liability to which any Director or officer may be entitled, as a matter of law
or under any By-Law, agreement, vote of stockholders or otherwise.
-8-
9
EIGHTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this 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 this 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 this 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
this Corporation, as the case may be, agree to any compromise or arrangement
and to any reorganization of this Corporation as 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 this Corporation, as the
case may be, and also on this Corporation.
NINTH: Meeting of stockholders may be held within or without the State
of Delaware, as the By-Laws may provide. The books of the Corporation may be
kept (subject to any provision contained in the statutes) 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 By-Laws of the Corporation. Elections of
Directors need not be by written ballot unless the By-Laws of the Corporation
shall so provide.
TENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in the Certificate of Incorporation, in the
manner now or hereafter prescribed by statute and this Certificate of
Incorporation, and all rights conferred upon officers, Directors and
stockholders herein are granted subject to this reservation.
ELEVENTH: The name and address of the incorporator are as follows:
Name Address
---- -------
B.J. Consono 100 West Tenth St., Wilm., DE 19899
W.J. Reif 100 West Tenth St., Wilm., DE 19899
J.L. Rivera 100 West Tenth St., Wilm., DE 19899
-9-