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Exhibit 3.7
RESTATED CERTIFICATE OF INCORPORATION
OF
ANKER GROUP, INC.
The name of the corporation is ANKER GROUP, INC. and the name under which
the corporation was originally incorporated was Vebe International, Inc. The
original Certificate of Incorporation of the corporation was filed with the
Secretary of State of the State of Delaware on September 1, 1978; Restated
Certificates of Incorporation were filed with the Secretary of State on November
21, 1980, February 23, 1983, June 29, 1990 and December 31, 1990; and
Certificates of Amendment of Restated Certificate of Incorporation were filed
with the Secretary of State on April 1, 1991 and December 31, 1991. This Fifth
Restated Certificate of Incorporation was duly adopted by the directors and by
the stockholders of the corporation in accordance with the provisions of
Sections 245 and 242 of the General Corporation Law of the State of Delaware.
1. The name of the corporation is ANKER GROUP, INC.
2. The address of the corporation's registered office in the State of
Delaware is No. 1209 Orange Street, in the City of Wilmington, County of New
Castle. The name of its registered agent at such address is The Corporation
Trust Company.
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3. 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 Delaware.
4. The total number of shares of all classes of capital stock which the
corporation is authorized to issue shall be 13,200 shares, which shall consist
of six classes as follows: a) 500 shares of Class A Common Stock having a par
value of $100 per share, b) 500 shares of Class B Common Stock having a par
value of $100 per share, c) 200 shares of Class A preferred stock having a par
value of $1.00 per share, d) 10,000 shares of Class B Preferred Stock having a
par value of $2,500.00 per share, e) 1,000 shares of Class C Preferred Stock
having a par value of $13,000 per share, and f) 1,000 shares of Class D
Preferred Stock having a par value of $7,000 per share.
4.1 The Class A Preferred Stock shall have the following powers,
preferences and other rights and the following qualifications, limitations and
restrictions:
(A) Voting. Except as otherwise provided by law, the holders of the
Class A Preferred Stock shall have no voting rights on matters put to a
vote of the stockholders of the corporation.
(B) Dividends. The holders of record of the Class A Preferred Stock
shall be entitled to receive, as and when declared by the directors,
dividends as follows: From and after January 1, 1991, fixed cumulative
preferential dividends at the rate of nine and nine-tenths percent (9.9%)
per annum on the Liquidation Value of the Class A Preferred Stock and no
more, such dividends to accrue whether or not declared and be cumulative
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from said date and to be payable annually on December 31 of each year.
Such dividends shall be cumulative and no dividend shall be declared, paid
or set apart for payment upon the Class B Preferred Stock, the Class C
Preferred Stock, the Class D Preferred Stock or the Common Stock of the
corporation unless all then unpaid and accumulated dividends on the Class
A Preferred Stock up to and including the dividend payment of the last
completed period for which such dividends shall be payable shall have been
declared and paid or set apart for payment. Dividends on account of
arrearages for any past dividend may be declared and paid at any time
without reference to any regular dividend payment date.
(C) Liquidation. In the event of the liquidation, dissolution or
winding-up of the corporation or other distribution of assets of the
corporation among stockholders for the purpose of winding up its affairs,
the holders of the Class A Preferred Stock shall, before any amount shall
be paid to or any property or assets of the corporation distributed among
the holders of the Class B Preferred Stock, the Class C Preferred Stock,
the Class D Preferred Stock or the Common Stock of the corporation, be
entitled to receive a sum equal to $10,000.00 per share (the "Liquidation
Value of the Class A Preferred Stock") together with all accrued and
unpaid dividends (which for such purpose shall be calculated as if such
dividends were accruing from day to day for the period from the expiration
of the last period for which dividends have been paid up to and including
the date of distribution). After payment to the holders of the Class A
Preferred Stock of the amounts so payable to them, they shall not be
entitled to share in any further distribution of the property or assets of
the corporation. In the event the amounts above provided for cannot be
paid in full as above provided in respect of the Class A Preferred Stock
then outstanding, the holders of shares of Class A Preferred Stock then
outstanding shall share ratably in any amounts available for such
payments.
(D) Mandatory Redemption. On December 31, 1996, (the "Class A
Redemption Date"), the corporation shall, out of funds legally available
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therefor, redeem the Class A Preferred Stock in whole at a redemption
price equal to $10,000 per share together with all accrued and unpaid
dividends (which for such purpose shall be calculated as if such dividends
were accruing from day to day for the period from the expiration of the
last period for which dividends have been paid up to and including the
date of redemption); provided, however, that if, as of the Class A
Redemption Date, the corporation shall not have funds legally available
therefor sufficient to redeem all shares of Class A Preferred Stock then
outstanding, then the corporation shall redeem on such date such number of
shares of Class A Preferred Stock as it shall have funds legally available
therefor and the remainder of the shares of Class A Preferred Stock
outstanding after such redemption shall be redeemed promptly from time to
time as the corporation shall have funds legally available therefore. In
the event that less than all of the shares of Class A Preferred Stock then
outstanding are to be redeemed, the shares shall be redeemed pro rata. On
and after the Redemption Date and until the corporation shall have
redeemed all of the shares of the Class A Preferred Stock in accordance
with this Section 4.1(D), no dividend shall be declared, paid or set apart
for payment upon the Class B Preferred Stock, the Class C Preferred Stock,
the Class D Preferred Stock or the Common Stock of the corporation.
4.2 The Class B Preferred Stock shall have the following powers,
preferences and other rights and the following qualification, limitations and
restrictions:
(A) Voting. Except as otherwise provided by law, the holders of the
Class B Preferred Stock shall have no voting rights on matters put to a
vote of the stockholders of the corporation.
(B) Dividends. The holders of record of the Class B Preferred Stock
shall be entitled to receive, if, as and when declared by the directors,
dividends as follows: From and after the date of issuance of the Class B
Preferred Stock, fixed non-cumulative preferential dividends at the rate
of five percent (5%) per annum on the Liquidation Value of the Class B
Preferred Stock
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and no more. No dividend shall be declared, paid or set apart for payment
upon the Class C Preferred Stock, the Class D Preferred Stock or the
Common Stock of the corporation in any calendar year unless dividends on
the Class B Preferred Stock for such full calendar year shall have been
declared and paid or set apart for payment.
(C) Liquidation. In the event of the liquidation, dissolution or
winding-up of the corporation or other distribution of assets of the
corporation among stockholders for the purpose of winding up its affairs,
the holders of the Class B Preferred Stock shall, before any amount shall
be paid to or any property or assets of the corporation distributed among
the holders of the Class C Preferred Stock, the Class D Preferred Stock or
the Common Stock of the corporation, be entitled to receive a sum equal to
$2,500.00 per share (the "Liquidation Value of the Class B Preferred
Stock") together with any declared but unpaid dividends. After payment to
the holders of the Class B Preferred Stock of the amounts so payable to
them, they shall not be entitled to share in any further distribution of
the property or assets of the corporation. In the event the amounts above
provided for cannot be paid in full as above provided in respect of the
Class B Preferred Stock then outstanding, the holders of shares of Class B
Preferred Stock then outstanding shall share ratably in any amounts
available for such payments.
4.3 The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions, in respect of each class of Common
Stock are as follows:
(A) Voting Rights. Each share of Common Stock of each class shall
entitle the holder to one vote. Except in the election or removal of
directors or as otherwise provided by law or elsewhere in this Certificate
or in the by-laws of the corporation, on each matter submitted to
stockholders for their approval the affirmative vote of a majority of all
outstanding shares, without regard to class, shall be required for
approval.
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(B) Election or Removal of Directors. There shall be two classes of
directors, Class A Directors and Class B Directors. In the election of
directors, the holders of the outstanding Class A Common Stock shall be
entitled as a class to nominate and elect the Class A Directors and the
holders of the outstanding Class B Common Stock shall be entitled as a
class to nominate and elect the Class B Directors. Only the holders of
Class A Common Stock shall be entitled to remove a Class A Director and
fill a vacancy caused by the removal, death or resignation of a Class A
Director and only the holders of Class B Common Stock shall be entitled to
remove a Class B Director and fill a vacancy caused by the removal, death
or resignation of a Class B Director. In any election of directors or any
action by the stockholders to remove a director or to fill a vacancy on
the board of directors, each share of Common Stock shall entitle the
holder to a number of votes equal to the number of directors to be
elected; such stockholder may cast all of such votes for a single director
or may distribute them among the directors to be voted for as such
stockholder may see fit.
(C) Convertibility of Common Stock. Shares of Common Stock of the
corporation shall be convertible from one class of Common Stock to another
at the request of the holder or holders thereof and with the approval of
the board of directors or stockholders as provided herein.
4.4 The Class C Preferred Stock shall have the following powers,
preferences and other rights and the following qualifications, limitations and
restrictions:
(A) Voting. Except as otherwise provided by law, the holders of the
Class C Preferred Stock shall have no voting rights on matters put to a
vote of the stockholders of the corporation.
(B) Dividends and Special Dividends. (i) The holders of record of
the Class C Preferred Stock shall be entitled to receive, as and when
declared by the directors, dividends as follows: From and after January 1,
1996, cumulative preferential
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dividends in an amount equal to four percent (4%) of the Excess Gross
Realization from Area A Coal (as hereinafter defined) during the
immediately preceding calendar year, or during so much of such calendar
year as such holders' shares of Class C Preferred Stock were outstanding,
and no more, such dividends to accrue whether or not declared and be
cumulative from said date and to be payable annually no latter than
February 15 of each year or, if February 15 is not a day when banks are
open for business in Pittsburgh, Pennsylvania, the next succeeding
business day. Such dividends shall be cumulative and no dividend shall be
declared, paid or set apart for payment upon the Common Stock of the
corporation unless all then unpaid and accumulated dividends on the Class
C Preferred Stock up to and including the dividend payment of the last
completed period for which such dividends shall be payable shall have been
declared and paid or set apart for payment. Dividends on account of
arrearages for any past dividend may be declared and paid at any time
without reference to any regular dividend payment date.
(ii) As used in this section 4.4, the following terms shall
have the following meanings: Excess Gross Realization from Area A Coal
during a calendar year means Gross Realization from Area A Coal in excess
of 1.35 million tons during such calendar year. Gross Realization from
Area A Coal means the aggregate sale price obtained by the Area A Mining
Companies (as hereinafter defined), f.o.b. rail or truck at the loading
point, for all Area A Coal produced and sold by the Area A Mining
Companies and the sale of which was accrued on the books of the Area A
Mining Companies during such calendar year. Area A Coal means coal which
as been produced from the reserves identified as Area A in that certain
Area A Designation Agreement made as of the 28th day of December, 1995,
between the corporation and Heather Glen Resources, Inc., a West Virginia
corporation (the "Area A Designation Agreement") and which are owned,
leased or subleased by the corporation or any Subsidiary (as hereinafter
defined) at the Time of Designation as defined in the Area A Designation
Agreement. A copy of the Area A Designation Agreement is on file in the
office of the Secretary of the corporation and shall be made
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available without charge to any stockholder of record of the corporation
upon request. As used in this Article 4, Subsidiary means a corporation,
limited liability company, partnership or other entity which is, directly
or indirectly, majority owned by the corporation.
(iii) As used in this section 4.4, Area A Mining Companies
means one or more of the following: (a) the corporation or a Subsidiary
where the corporation or such Subsidiary owns, leases or subleases coal
reserves in Area A and is engaged in the extraction of such coal, whether
directly through the conduct of mining operations or indirectly through
the employment of contract miners, and (b) a person or entity other than
the corporation or a Subsidiary which leases or subleases coal reserves in
Area A from the corporation or a Subsidiary, extracts such coal and sells
it to the corporation or a Subsidiary.
(iv) The holders of record of the Class C Preferred Stock
shall be entitled to receive, as and when declared by the directors,
special dividends as follows: In the event that a Mineral Property
Transfer (as hereinafter defined) occurs, a special dividend shall be
payable in an amount calculated as hereinafter set forth, and no more,
each such special dividend to accrue and be cumulative from the date of
the Mineral Property Transfer or Subsequent Payment (as hereinafter
defined) giving rise thereto and to be payable, except as otherwise
provided in this paragraph with respect to a Subsequent Payment, no later
than forty-five (45) days following the date of such Mineral Property
Transfer. As used in this paragraph 4.4(b)(iv), the term Mineral Property
Transfer means a sale, lease, sublease or other transfer by the
corporation or a Subsidiary to a transferee other than the corporation or
a Subsidiary of Mineral Property (as hereinafter defined) for an aggregate
consideration greater than $500,000. As used in this paragraph 4.4(b)(iv),
the term Mineral Property means mineral property in Upshur County
designated as Mineral Property in the Area A Designation Agreement. Each
special dividend payable in the event of a Mineral Property Transfer shall
be calculated by dividing the total acreage of Mineral Property at the
Time of Designation
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(consisting of 28,051 acres) into the number of acres of Mineral Property
transferred pursuant to such Mineral Property Transfer, and multiplying
the result by the Sales Price (as hereinafter defined). As used in this
paragraph 4.4(B)(iv), Sales Price means the consideration paid to the
corporation or a Subsidiary in consideration for such Mineral Property
Transfer. In the event that all or any portion of the consideration
received for Mineral Property is not monetary, the Sales Price shall
include the Fair Market Value of such non-monetary consideration. In the
event that Mineral Property is leased or subleased by the corporation or a
subsidiary and any portion of the consideration to the corporation or such
Subsidiary is payable as lease payments, royalties or otherwise over the
term of the lease or sublease ("Subsequent Payments"), then in such event,
unless the corporation determines that the aggregate Subsequent Payments
for such Mineral Property will exceed $500,000, the corporation or such
Subsidiary shall obtain from an independent surveyor or appraiser an
estimate of the Subsequent Payments for such Mineral Property, and in the
further event that the corporation or such subsidiary or such independent
surveyor or appraiser determines that the consideration including the
aggregate Subsequent Payments for such Mineral Property will exceed
$500,000, then the special dividend with respect to any portion of the
Sales Price which constitutes a Subsequent Payment shall be payable within
sixty (60) days after the end of the calendar year in which each such
Subsequent Payment was received and shall be calculated by dividing the
total acreage of Mineral Property at the Time of Designation (consisting
of 28,051 acres) into the number of acres of Mineral Property transferred
in consideration for such Subsequent Payment, and multiplying the result
by each such Subsequent Payment. As used in this paragraph 4.4(B)(iv), the
term Fair Market Value means the monetary amount which would be obtained
in an arm's-length free market transaction. Any such special dividend
shall be cumulative and no dividend shall be declared, paid or set apart
for payment upon the Common Stock of the corporation unless all then
unpaid and accumulated special dividends on the Class C Preferred Stock
shall have been declared and paid or set apart for payment.
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(C) Liquidation. In the event of the liquidation, dissolution or
winding-up of the corporation or other distribution of assets of the
corporation among stockholders for the purpose of winding up its affairs,
the holders of the Class C Preferred Stock shall, before any amount shall
be paid to or any property or assets of the corporation distributed among
the holders of the Common Stock of the corporation, be entitled to receive
a sum equal to $13,000 per share less the aggregate amount of any special
dividends previously paid on such share pursuant to paragraph 4.4(B)(iv)
of this Article 4 (the "Class C Liquidation Value") together with all
accrued and unpaid dividends (which for such purpose shall be calculated
from the expiration of the last period for which dividends have been paid
up to and including the date of distribution of the Class C Liquidation
Value, and paid within 45 days following the date of distribution of the
Class C Liquidation Value) other than special dividends payable pursuant
to paragraph 4.4(B)(iv) of this Article 4. After payment to the holders of
the Class C Preferred Stock of the amounts so payable to them, they shall
not be entitled to share in any further distribution of the property or
assets of the corporation. In the event the amounts above provided for
cannot be paid in full as above provided in respect of the Class C
Preferred Stock then outstanding, the holders of shares of Class C
Preferred Stock then outstanding shall share ratably in any amounts
available for such payments.
(D) Redemption. In the event the corporation elects at any time to
redeem shares of the Class C Preferred Stock, the corporation shall redeem
the shares at a price equal to the Class C Liquidation Value together with
all accrued and unpaid dividends (which for such purpose shall be
calculated from the expiration of the last period for which dividends have
been paid up to and including the date of distribution of the Class C
Liquidation Value, and paid within 45 days following the date of
distribution of the Class C Liquidation Value) other than special
dividends payable pursuant to paragraph 4.4(B)(iv) of this
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Article 4. The holders of shares of the Class C Preferred Stock shall not
have the right at any time to require the redemption of such shares.
4.5 The Class D Preferred Stock shall have the following powers,
preferences and other rights and the following qualifications, limitations and
restrictions:
(A) Voting. Except as otherwise provided by law, the holders of the
Class D Preferred Stock shall have no voting rights on matters put to a
vote of the stockholders of the corporation.
(B) Dividends. (i) The holders of record of the Class D Preferred
Stock shall be entitled to receive, as and when declared by the directors,
dividends as follows: For a period of fifteen years from and after
[January 1, 1996], cumulative preferential dividends in an amount equal to
two and one-half percent (2-1/2%), and thereafter cumulative preferential
dividends in an amount equal to one and one-half percent (1-1/2%), of the
Gross Realization from Area F Coal (as hereinafter defined) during the
immediately preceding calendar quarter, or during so much of such calendar
quarter as such holders' shares of Class D Preferred Stock were
outstanding, and no more, such dividends to accrue whether or not declared
and be cumulative from said date and to be payable quarterly. Such
dividends shall be cumulative and no dividend shall be declared, paid or
set apart for payment upon the Class C Preferred Stock or the Common Stock
of the corporation unless all then unpaid and accumulated dividends on the
Class D Preferred Stock up to and including the dividend payment of the
last completed period for which such dividends shall be payable shall have
been declared and paid or set apart for payment. Dividends on account of
arrearages for any past dividend may be declared and paid at any time
without reference to any regular dividend payment date.
(ii) As used in this section 4.5, the following terms shall
have the following meanings: Gross Realization from Area F Coal during a
calendar quarter means the aggregate sale price obtained by the Area F
Mining Companies (as
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hereinafter defined), f.o.b. rail or truck at the loading point, for all
Area F Coal produced and sold by the Area F Mining Companies and the sale
of which was accrued on the books of the Area F Mining Companies during
such calendar quarter. Area F Coal means coal which has been produced from
the reserves owned, leased or subleased by the corporation or any
Subsidiary in Upshur and Randolph Counties, West Virginia, identified as
Area F in that certain Area F Designation Agreement made as of the 28th of
December, 1995, between the corporation and Melrose Coal Company, Inc., a
West Virginia corporation (the "Area F Designation Agreement"). A copy of
the Area F Designation Agreement is on file in the office of the Secretary
of the corporation and shall be made available without charge to any
stockholder of record of the corporation upon request. Area F Mining
Companies means one or more of the following: (a) the corporation or a
Subsidiary where the corporation or such Subsidiary owns, leases or
subleases coal reserves in Area F and is engaged in the extraction of such
coal, whether directly through the conduct of mining operations or
indirectly through the employment of contract miners, and (b) a person or
entity other than the corporation or a Subsidiary which leases or
subleases coal reserves in Area F from the corporation or a Subsidiary,
extracts such coal and sells it to the corporation or a Subsidiary.
(C) Liquidation. In the event of the liquidation, dissolution or
winding-up of the corporation or other distribution of assets of the
corporation among stockholders for the purpose of winding up its affairs,
the holders of the Class D Preferred Stock shall, before any amount shall
be paid to or any property or assets of the corporation distributed among
the holders of the Class C Preferred Stock or the Common Stock of the
corporation, be entitled to receive a sum equal to $7,000 per share (the
"Class D Liquidation Value") together with all accrued and unpaid
dividends (which for such purpose shall be calculated from the expiration
of the last period for which dividends have been paid up to and including
the date of distribution of the Class D Liquidation Value, and paid within
45 days following the date of distribution of the Class D Liquidation
Value). After payment to the holders of the Class D
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Preferred Stock of the amounts so payable to them, they shall not be
entitled to share in any further distribution of the property or assets of
the corporation. In the event the amounts above provided for cannot be
paid in full as above provided in respect of the Class D Preferred Stock
then outstanding, the holders of shares of Class D Preferred stock then
outstanding shall share ratably in any amounts available for such
payments.
(D) Redemption and Mandatory Redemption. (i) In the event the
corporation elects at any time to redeem shares of the Class D Preferred
Stock, the corporation shall redeem the shares at a price equal to the
Class D Liquidation Value together with all accrued and unpaid dividends
(which for such purpose shall be calculated from the expiration of the
last period for which dividends have been paid up to and including the
date of distribution of the Class D Liquidation Value, and paid within 45
days following the date of distribution of the Class D Liquidation Value).
(ii) In the event that on or before December 31, 2005, the
corporation shall not have paid dividends and special dividends in respect
of the Class D Preferred Stock in an aggregate amount of $5,000,000 or
more, then the corporation, if so requested by a holder of Class D
Preferred Stock in a written notice received by the corporation no later
than January 31, 2006, shall, out of funds legally available therefor,
redeem such stockholder's shares of Class D Preferred Stock over a period
of five years by redeeming twenty percent (20%) of such stockholder's
shares of Class D Preferred Stock on or before December 31, 2006 and
December 31 of each of the next four succeeding years (the "Class D
Redemption Dates") at a redemption price equal to the Class D Liquidation
Value together with all accrued and unpaid dividends (which for such
purpose shall be calculated from the expiration of the last period for
which dividends have been paid up to and including the date of
distribution of the Class D Liquidation Value, and paid within 45 days
following the date of distribution of the Class D Liquidation Value);
provided, however, that if, as of any Class D Redemption Date the
corporation shall not have funds legally available therefor sufficient to
redeem all shares of Class D Preferred Stock to be redeemed on such date,
then the corporation
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shall redeem on such date such number of shares of Class D Preferred Stock
to be redeemed as it shall have funds legally available therefor and the
remainder of the share of Class D Preferred Stock which were to have been
redeemed shall be redeemed promptly from time to time as the corporation
shall have funds legally available therefor. On and after any Class D
Redemption Date and until the corporation shall have redeemed all of the
shares of the Class D Preferred Stock to be redeemed on such date in
accordance with this paragraph 4.5(D)(ii), no dividend shall be declared,
paid or set apart for payment upon the Class C Preferred Stock or the
Common Stock of the corporation. No fractional shares shall be redeemed.
(iii) The corporation shall, out of funds legally available
therefor, redeem any shares of the Class D Preferred Stock which are
issued and outstanding on December 31, 2010, over a period of five years
by redeeming twenty percent (20%) of the shares held by each holder of
Class D Preferred Stock on or before December 31, 2011 and December 31 of
each of the next four succeeding years (the "Class D Final Redemption
Dates") at a redemption price equal to the Class D Liquidation Value
together with all accrued and unpaid dividends (which for such purpose
shall be calculated from the expiration of the last period for which
dividends have been paid up to and including the date of distribution of
the Class D Liquidation Value, and paid within 45 days following the date
of distribution of the Class D Liquidation Value); provided, however, that
if, as of any Class D Final Redemption Date the corporation shall not have
funds legally available therefor sufficient to redeem all shares of Class
D Preferred Stock to be redeemed on such date, then the corporation shall
redeem on such date such number of shares of Class D Preferred Stock to be
redeemed as it shall have funds legally available therefor and the
remainder of the shares of Class D Preferred Stock which were to have been
redeemed shall be redeemed promptly from time to time as the corporation
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shall have funds legally available therefor. On and after any Class D
Final Redemption Date and until the corporation shall have redeemed all of
the shares of the Class D Preferred Stock to be redeemed on such date in
accordance with this paragraph 4.5(D)(ii), no dividend shall be declared,
paid or set apart for payment upon the Class C Preferred Stock or the
Common Stock of the corporation. No fractional shares shall be redeemed.
(iv) The holders of shares of the Class D Preferred Stock
shall not have the right at any time to require the redemption of such
shares, except as provided in paragraphs 4.5(D)(ii) and 4.5(D)(iii) of
this Article 4.
5. The corporation is to have perpetual existence.
6. To the full extent permitted by law, the corporation shall (a)
indemnify any person or such person's heirs, distributees, next of kin,
successors, appointees, executors, administrators, legal representatives or
assigns who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative by reason of the fact that such person
is or was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, domestic or foreign, against expenses, attorneys' fees, court costs,
judgments, fines, amounts paid in settlement and other losses actually and
reasonably incurred by such person in connection with such action, suit or
proceeding and (b) advance expenses incurred by an
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officer or director in defending such civil or criminal action, suit or
proceeding to the full extent authorized or permitted by the laws of the State
of Delaware upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such
director or officer is not entitled to be indemnified by the corporation as
authorized by Section 145 of the Delaware General Corporation Law.
7. A director shall have no personal liability to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director;
however, the foregoing provision shall not eliminate the liability of a director
(i) for 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.
8. Meetings 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
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the corporation. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
9. On any matter requiring approval of the board of directors, each Class
A Director shall be entitled to cast a number of votes equal to the number of
outstanding shares of Class A Common Stock divided by the number of Class A
Directors then on the board of directors and each Class B Director shall be
entitled to cast a number of votes equal to the number of outstanding shares of
Class B Common Stock divided by the number of Class B Directors then on the
board of directors. Fractional votes shall be permitted. A director shall not
split his vote, but shall vote all of his votes the same way on any single
matter. Except as otherwise provided by law or by this certificate or the
by-laws of the corporation, approval of any matter submitted to the board of
directors shall require a number of affirmative votes at least equal to a
majority of the number of outstanding shares of Common Stock of the corporation,
without regard to class.
10. Any action taken by the board of directors or the stockholders of the
corporation to amend this Fifth Restated Certificate of Incorporation, or merge
or consolidate with another corporation, or dissolve, shall require a number of
affirmative votes equal to more than two-thirds of the
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number of outstanding shares of Common Stock of the corporation, without regard
to class, or the affirmative vote of the holders of more than two-thirds of the
outstanding Common Stock of the corporation, without regard to class.
11. The by-laws of the corporation currently in effect may be amended or
repealed by a resolution of the board of directors passed by a number of
affirmative votes equal to more than two-thirds of the number of outstanding
shares of Common Stock of the corporation.
IN WITNESS WHEREOF, said Vebe International, Inc. has caused this Fifth
Restated Certificate of Incorporation to be signed by John J. Faltis, its
President, and attested by Bruce Sparks, its Secretary, this 28th day of
December, 1995.
ANKER GROUP, INC.
By: /s/ John J. Faltis
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John J. Faltis, President
ATTEST:
/s/ Bruce Sparks
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Bruce Sparks, Secretary