Exhibit 3.1
FORM OF
RESTATED CERTIFICATE OF INCORPORATION
OF
ADVANTAGE PAYROLL SERVICES, INC.
A Delaware Corporation
ARTICLE I
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The name of the Corporation is Advantage Payroll Services, Inc.
ARTICLE II
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The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, County of
New Castle, Delaware 19801. The name of its registered agent at such address is
CT Corporation System.
ARTICLE III
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The nature of the business or purposes to be conducted or promoted 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.
ARTICLE IV
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Section 1. Authorized Shares. The total number of shares of capital stock
which the Corporation has authority to issue is 205,000,000 shares, consisting
of:
(a) 5,000,000 shares of Preferred Stock, par value $.01 per share
("Preferred Stock"); and
(b) 200,000,000 shares of Common Stock, par value $.01 per share
("Common Stock").
The Preferred Stock and the Common Stock shall have the rights, preferences and
limitations set forth below. Capitalized terms used but not otherwise defined in
Section 1, Section 2, Section 3 or Section 4 of this ARTICLE IV are defined in
Section 5.
Section 2. Preferred Stock. The Preferred Stock may be issued from time to
time and in one or more series. The Board of Directors of the Corporation is
authorized to determine or alter the
powers, preferences and rights, and the qualifications, limitations and
restrictions granted to or imposed upon any wholly unissued series of Preferred
Stock, and within the limitations or restrictions stated in any resolution or
resolutions of the Board of Directors originally fixing the number of shares
constituting any series of Preferred Stock, to increase or decrease (but not
below the number of shares of any such series of Preferred Stock then
outstanding) the number of shares of any such series of Preferred Stock, and to
fix the number of shares of any series of Preferred Stock. In the event that the
number of shares of any series of Preferred Stock shall be so decreased, the
shares constituting such decrease shall resume the status which such shares had
prior to the adoption of the resolution originally fixing the number of shares
of such series of Preferred Stock subject to the requirements of applicable law.
Section 3. Common Stock.
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(a) Dividends. Except as otherwise provided by the Delaware General
Corporation Law or this Restated Certificate of Incorporation (the "Restated
Certificate"), the holders of Common Stock: (i) subject to the rights of holders
of any series of Preferred Stock, shall share ratably in all dividends payable
in cash, stock or otherwise and other distributions, whether in respect of
liquidation or dissolution (voluntary or involuntary) or otherwise and (ii) are
subject to all the powers, rights, privileges, preferences and priorities of any
series of Preferred Stock as provided herein or in any resolution or resolutions
adopted by the Board of Directors pursuant to authority expressly vested in it
by the provisions of Section 2 of this ARTICLE IV.
(b) Conversion Rights. The Common Stock shall not be convertible into, or
exchangeable for, shares of any other class or classes or of any other series of
the same class of the Corporation's capital stock.
(c) Preemptive Rights. No holder of Common Stock shall have any preemptive
rights with respect to the Common Stock or any other securities of the
Corporation, or to any obligations convertible (directly or indirectly) into
securities of the Corporation whether now or hereafter authorized.
(d) Voting Rights. Except as otherwise provided by the Delaware General
Corporation Law or this Restated Certificate and subject to the rights of
holders of any series of Preferred Stock, all of the voting power of the
stockholders of the Corporation shall be vested in the holders of the Common
Stock, and each holder of Common Stock shall have one vote for each share held
by such holder on all matters voted upon by the stockholders of the Corporation.
(e) Registration or Transfer. The Corporation shall keep at the offices of
its transfer agent (or such other place as the Corporation reasonably
designates) a register for the registration of Common Stock. Upon the surrender
of any certificate representing shares of any class of Common Stock at such
place, the transfer agent shall, at the request of the registered holder of such
certificate, execute and deliver a new certificate or certificates in exchange
therefor representing in the aggregate the number of shares of such class
represented by the surrendered certificate, and the transfer agent forthwith
shall cancel such surrendered certificate. Each such new certificate will be
registered in such name and will represent such number of shares of such class
as is requested by the
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holder of the surrendered certificate and shall be substantially identical in
form to the surrendered certificate. The issuance of new certificates shall be
made without charge to the holders of the surrendered certificates for any
issuance tax in respect thereof or other cost incurred by the Corporation in
connection with such issuance.
(f) Replacement. Upon receipt of evidence reasonably satisfactory to the
Corporation (an affidavit of the registered holder will be satisfactory) of the
ownership and the loss, theft, destruction or mutilation of any certificate
evidencing one or more shares of any class of Common Stock, and in the case of
any such loss, theft or destruction, upon receipt of indemnity reasonably
satisfactory to the Corporation (provided that if the holder is a financial
institution or other institutional investor, its own agreement will be
satisfactory), or, in the case of any such mutilation upon surrender of such
certificate, the Corporation shall (at its expense) execute and deliver in lieu
of such certificate a new certificate of like kind representing the number of
shares of such class represented by such lost, stolen, destroyed or mutilated
certificate and dated the date of such lost, stolen, destroyed or mutilated
certificate.
(g) Notices. All notices referred to herein shall be in writing (including
facsimile, electronic mail or similar writing) and if mailed, shall be delivered
personally or by first class mail, postage prepaid, and shall be deemed to have
been given when so delivered or mailed to the Corporation at its principal
executive offices and to any stockholder at such holder's address as it appears
in the stock records of the Corporation (unless otherwise specified in a written
notice to the Corporation by such holder).
(h) Fractional Shares. In no event will holders of fractional shares be
required to accept any consideration in exchange for such shares other than
consideration which all holders of Common Stock are required to accept.
Section 4. Stock Split.
(a) Stock Split. Immediately prior to the effectiveness of the Registration
Statement on Form S-1 (Reg. No. 333-84452) (the "Effective Time"), each share of
Common Stock outstanding at the Effective Time shall be, without further action
by the Corporation or any of the holders thereof, changed and converted into a
number of shares of Common Stock equal to that number determined by multiplying
each outstanding share of Common Stock by 1.229344 (the "Stock Split Factor").
The par value of the Common Stock after such stock split shall be $.01 per
share. Each certificate then outstanding representing shares of Common Stock
shall automatically represent from and after the Effective Time that number of
shares of Common Stock equal to the number of shares shown on the face of the
certificate multiplied by the Stock Split Factor. Notwithstanding the foregoing,
in the event that the stock split would result in any holder of shares of Common
Stock holding a share of Common Stock that is not an integral multiple of one,
the effect of the stock split shall be such that the number of such holder's
shares of Common Stock issued as a result of such split with fractions of 0.50
and greater being rounded up to the next higher integral multiple of one and
fractions less than 0.50 being rounded down to the next lower integral multiple
of one. No consideration will be paid in lieu of fractions that are rounded
down.
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Section 5. Definitions.
"Affiliate" means, with respect to any Person, any other Person,
entity or investment fund controlling, controlled by or under common
control with such Person and, in the case of a Person which is a
partnership, any partner of such Person.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Public Offering" means any offering by the Corporation of its capital
stock or equity securities to the public pursuant to an effective
registration statement under the Securities Act of 1933, as then in effect,
or any comparable statement under any similar federal statute then in
force.
ARTICLE V
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The Corporation is to have perpetual existence.
ARTICLE VI
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Elections of directors need not be by written ballot unless the Bylaws of
the Corporation shall so provide.
ARTICLE VII
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The number of directors which constitute the entire Board of Directors of
the Corporation shall be designated in the Bylaws of the Corporation.
ARTICLE VIII
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In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, alter, amend or repeal
the Bylaws of the Corporation.
ARTICLE IX
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Section 1. Limitation of Liability.
(a) To the fullest extent permitted by the Delaware General Corporation Law
as it now exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than permitted prior thereto), and except
as otherwise provided in the Corporation's Bylaws, no director or officers of
the Corporation shall be liable to the Corporation or its stockholders for
monetary damages arising from a breach of fiduciary duty owed to the Corporation
or its stockholders.
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(b) Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
Section 2. Right to Indemnification. Each person who was or is made a party
or is threatened to be made a party to or is otherwise involved (including
involvement as a witness) in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding"), by reason of the
fact that he or she is or was a director or officer of the Corporation or, while
a director or officer of the Corporation, is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan (an "Indemnitee"), whether the basis of
such Proceeding is alleged action in an official capacity as a director or
officer or in any other capacity while serving as a director or officer, shall
be indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than permitted prior thereto), against all expense, liability and loss
(including attorneys' fees, judgments, fines, excise exercise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such
Indemnitee in connection therewith and such indemnification shall continue as to
an Indemnitee who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the Indemnitee's heirs, executors and
administrators; provided, however, that, except as provided in Section 3 of this
ARTICLE IX with respect to Proceedings to enforce rights to indemnification, the
Corporation shall indemnify any such Indemnitee in connection with a Proceeding
(or part thereof) initiated by such Indemnitee only if such Proceeding (or part
thereof) was authorized by the Board of Directors of the Corporation. The right
to indemnification conferred in this Section 2 of this ARTICLE IX shall be a
contract right and shall include the obligation of the Corporation to pay the
expenses incurred in defending any such Proceeding in advance of its final
disposition (an "Advance of Expenses"); provided, however, that, if and to the
extent that the Delaware General Corporation Law requires, an Advance of
Expenses incurred by an Indemnitee in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such Indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking (an
"Undertaking"), by or on behalf of such Indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (a "Final Adjudication") that such
Indemnitee is not entitled to be indemnified for such expenses under this
Section 2 or otherwise. The Corporation may, by action of its Board of
Directors, provide indemnification to employees and agents of the Corporation
with the same or lesser scope and effect as the foregoing indemnification of
directors and officers.
Section 3. Procedure for Indemnification. Any indemnification of a director
or officer of the Corporation or Advance of Expenses under Section 2 of this
ARTICLE IX shall be made promptly, and in any event within forty-five days (or,
in the case of an Advance of Expenses, twenty days), upon the written request of
the director or officer. If a determination by the Corporation that the director
or officer is entitled to indemnification pursuant to this ARTICLE IX is
required, and the Corporation fails to respond within sixty days to a written
request for indemnity, the Corporation
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shall be deemed to have approved the request. If the Corporation denies a
written request for indemnification or Advance of Expenses, in whole or in part,
or if payment in full pursuant to such request is not made within forty-five
days (or, in the case of an Advance of Expenses, twenty days), the right to
indemnification or advances as granted by this ARTICLE IX shall be enforceable
by the director or officer in any court of competent jurisdiction. Such person's
costs and expenses incurred in connection with successfully establishing his or
her right to indemnification, in whole or in part, in any such action shall also
be indemnified by the Corporation. It shall be a defense to any such action
(other than an action brought to enforce a claim for the Advance of Expenses
where the undertaking required pursuant to Section 2 of this ARTICLE IX, if any,
has been tendered to the Corporation) that the claimant has not met the
standards of conduct which make it permissible under the Delaware General
Corporation Law for the Corporation to indemnify the claimant for the amount
claimed, but the burden of such defense shall be on the Corporation. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the Delaware General Corporation Law, nor an actual determination
by the Corporation (including its Board of Directors, independent legal counsel
or its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct. The procedure for
indemnification of other employees and agents for whom indemnification is
provided pursuant to Section 2 of this ARTICLE IX shall be the same procedure
set forth in this Section 3 for directors or officers, unless otherwise set
forth in the action of the Board of Directors providing indemnification for such
employee or agent.
Section 4. Insurance. The Corporation may purchase and maintain insurance
on its own behalf and on behalf of any person who is or was a director, officer,
employee or agent of the Corporation 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 against any expense,
liability or loss asserted against him or her and incurred by him or her in any
such capacity, whether or not the Corporation would have the power to indemnify
such person against such expenses, liability or loss under the Delaware General
Corporation Law.
Section 5. Service for Subsidiaries. Any person serving as a director,
officer, employee or agent of another corporation, partnership, limited
liability company, joint venture or other enterprise, at least 50% of whose
equity interests are owned by the Corporation (a "Subsidiary" for this ARTICLE
IX) shall be conclusively presumed to be serving in such capacity at the request
of the Corporation.
Section 6. Reliance. Persons who after the date of the adoption of this
provision become or remain directors or officers of the Corporation or who,
while a director or officer of the Corporation, become or remain a director,
officer, employee or agent of a Subsidiary, shall be conclusively presumed to
have relied on the rights to indemnity, Advance of Expenses and other rights
contained in this ARTICLE IX in entering into or continuing such service. The
rights to indemnification and to the Advance of Expenses conferred in this
ARTICLE IX shall apply to claims
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made against an Indemnitee arising out of acts or omissions which occurred or
occur both prior and subsequent to the adoption hereof.
Section 7. Non-Exclusivity of Rights. The rights to indemnification and to
the Advance of Expenses conferred in this ARTICLE IX shall not be exclusive of
any other right which any person may have or hereafter acquire under this
Restated Certificate or under any statute, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 8. Merger or Consolidation. For purposes of this ARTICLE IX,
references to the "Corporation" shall include, in addition to the resulting
Corporation, any constituent Corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent Corporation, or is or
was serving at the request of such constituent Corporation as a director,
officer, employee or agent of another Corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this ARTICLE
IX with respect to the resulting or surviving Corporation as he or she would
have with respect to such constituent Corporation if its separate existence had
continued.
ARTICLE X
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Section 1. Classification of Directors. At each annual meeting of
stockholders, directors of the Corporation shall be elected to hold office until
the expiration of the term for which they are elected, and until their
successors have been duly elected and qualified; except that if any such
election shall be not so held, such election shall take place at stockholders'
meeting called and held in accordance with the Delaware General Corporation Law.
The directors of the Corporation shall be divided into three classes as nearly
equal in size as is practicable, hereby designated Class I, Class II and Class
III. The term of office of the initial Class I directors shall expire at the
next succeeding annual meeting of stockholders, the term of office of the
initial Class II directors shall expire at the second succeeding annual meeting
of stockholders and the term of office of the initial Class III directors shall
expire at the third succeeding annual meeting of the stockholders. For the
purposes hereof, the initial Class I, Class II and Class III directors shall be
those directors elected by the stockholders of the Corporation in connection
with the adoption of this Restated Certificate. At each annual meeting after the
first annual meeting of stockholders, directors to replace those of a Class
whose terms expire at such annual meeting shall be elected to hold office until
the third succeeding annual meeting and until their respective successors shall
have been duly elected and qualified. If the number of directors is hereafter
changed, any newly created directorships or decrease in directorships shall be
so apportioned among the classes as to make all classes as nearly equal in
number as practicable.
Section 2. Vacancies. Vacancies occurring on the Board of Directors for any
reason may be filled by vote of a majority of the remaining members of the Board
of Directors, although less than a quorum, at any meeting of the Board of
Directors. A person so elected by the Board of Directors to fill a vacancy shall
hold office until the next succeeding annual meeting of stockholders of the
Corporation and until his or her successor shall have been duly elected and
qualified.
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ARTICLE XI
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Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside of 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 Bylaws of the Corporation.
ARTICLE XII
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Beginning immediately following the consummation of the Corporation's
initial Public Offering of its Common Stock pursuant to an effective
registration statement under the Securities Act: (i) the stockholders of the
Corporation may not take any action by written consent in lieu of a meeting, and
must take any actions at a duly called annual or special meeting of stockholders
and the power of stockholders to consent in writing without a meeting is
specifically denied and (ii) special meetings of stockholders of the Corporation
may be called only by the Board of Directors pursuant to a resolution adopted by
the affirmative vote of the majority of the total number of directors then in
office.
ARTICLE XIII
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Section 1. Certain Acknowledgments. In recognition and anticipation that
(i) the directors, officers and/or employees of Willis Stein & Partners,
L.P. ("Willis Stein") may serve as directors and/or officers of the Corporation,
(ii) Willis Stein and Affiliated Companies thereof engage and may continue to
engage in the same or similar activities or related lines of business as those
in which the Corporation, directly or indirectly, may engage and/or other
business activities that overlap with or compete with those in which the
Corporation, directly or indirectly, may engage, and (iii) that the Corporation
and Affiliated Companies thereof will engage in material business transactions
with Willis Stein and Affiliated Companies thereof and that the Corporation is
expected to benefit therefrom, the provisions of this Article XIII are set forth
to regulate and define the conduct of certain affairs of the Corporation as they
may involve Willis Stein or Affiliated Companies and its officers, directors and
employees and the powers, rights, duties and liabilities of the Corporation and
its officers, directors, employees and stockholders in connection therewith.
Section 2. Competition and Corporate Opportunities. Neither Willis Stein
nor any of its Affiliated Companies shall have any duty to refrain from engaging
directly or indirectly in the same or similar business activities or lines of
business as the Corporation or any of its Affiliated Companies, and neither
Willis Stein nor any officer or director thereof (except as provided in Section
3 below) shall be liable to the Corporation or its stockholders for breach of
any fiduciary duty solely by reason of any such activities of Willis Stein or
any of its Affiliated Companies. In the event that Willis Stein or any of its
Affiliated Companies acquires knowledge of a potential transaction or matter
which may be a corporate opportunity for itself and the Corporation or any of
its Affiliated Companies, neither Willis Stein or any of its Affiliated
Companies shall have any duty to communicate or offer such corporate opportunity
to the Corporation or any of its Affiliated Companies and shall not be liable to
the Corporation or its stockholders for breach of any fiduciary duty as a
stockholder of the Corporation solely by reason of the fact that Willis Stein or
any of its
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Affiliated Companies pursues or acquires such corporate opportunity for itself,
directs such corporate opportunity to another person, or does not communicate
information regarding such corporate opportunity to the Corporation.
Section 3. Allocation of Corporate Opportunities. In the event that a
director or officer of the Corporation who is also a director or officer of
Willis Stein acquires knowledge of a potential transaction or matter which may
be a corporate opportunity for the Corporation or any of its Affiliated
Companies and Willis Stein or any of its Affiliated Companies, such director or
officer of the Corporation shall have fully satisfied and fulfilled the
fiduciary duty of such director or officer to the Corporation and its
stockholders with respect to such corporate opportunity, if such director or
officer acts in a manner consistent with the following policy:
(a) A corporate opportunity offered to any person who is a director or
officer of the Corporation, and who is also a director or officer of Willis
Stein, shall belong to the Corporation if such opportunity is expressly
offered to such person in writing solely in his or her capacity as a
director or officer of the Corporation.
(b) Otherwise, such corporate opportunity shall belong to Willis
Stein.
Section 4. Certain Matters Deemed Not Corporate Opportunities. In addition
to and notwithstanding the foregoing provisions of this ARTICLE XIII, a
corporate opportunity shall not be deemed to belong to the Corporation if it is
a business opportunity that the Corporation is not permitted to undertake under
the terms of ARTICLE III or that the Corporation is not financially able or
contractually permitted or legally able to undertake, or that is, from its
nature, not in the line of the Corporation's business or is of no practical
advantage to it or that is one in which the Corporation has no interest or
reasonable expectancy.
Section 5. Agreements and Transactions with Willis Stein. In the event that
Willis Stein or any of its Affiliated Companies enters into an agreement or
transaction with the Corporation or any of its Affiliated Companies, a director
or officer of the Corporation who is also a director or officer of Willis Stein
shall have fully satisfied and fulfilled the fiduciary duty of such director or
officer to the Corporation and its stockholders with respect to such agreement
or transaction, if:
(a) The agreement or transaction was approved, after being made aware
of the material facts of the relationship between each of the Corporation
or an Affiliated Company thereof and Willis Stein or an Affiliated Company
thereof and the material terms and facts of the agreement or transaction,
by (i) an affirmative vote of a majority of the members of the Board of
Directors of the Corporation who are not persons or entities with a
material financial interest in the agreement or transaction ("Interested
Persons"), (ii) an affirmative vote of a majority of the members of a
committee of the Board of Directors of the Corporation consisting of
members who are not Interested Persons or (iii) one or more of the
Corporation's officers or employees who are not Interested Persons and who
were authorized by the Board of Directors of the Corporation or committee
thereof in the manner set forth in (i) and (ii) above.
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(b) The agreement or transaction was fair to the Corporation at the
time the agreement or transaction was entered into by the Corporation; or
(c) The agreement or transaction was approved by an affirmative vote
of a majority of the shares of the Corporation's Common Stock entitled to
vote, excluding Willis Stein, any Affiliated Company or Interested Person.
Section 6. Certain Definitions. For purposes of this ARTICLE XIII,
"Affiliated Company" shall mean in respect of Willis Stein, any company which is
controlled by Willis Stein (other than the Corporation and any company that is
controlled by the Corporation), and in respect of the Corporation shall mean any
company controlled by the Corporation.
Section 7. Termination. The provisions of this Article shall have no
further force or effect for Willis Stein at such time as Willis Stein and any
company controlling, controlled by or under common control with Willis Stein
shall first cease to be the owner, in the aggregate, of Common Stock
representing five percent (5%) or more of the votes entitled to be cast by the
holders of all the then outstanding shares of Common Stock; provided, however,
that such termination shall not terminate the effect of such provisions with
respect to (i) any agreement between the Corporation or an Affiliated Company
thereof and Willis Stein or an Affiliated Company thereof that was entered into
before such time or any transaction entered into in the performance of such
agreement, whether entered into before or after such time, or (ii) any
transaction or agreement entered into between the Corporation or an Affiliated
Company thereof and Willis Stein or an Affiliated Company thereof.
Section 8. Amendment of this Article. Notwithstanding anything to the
contrary elsewhere contained in this Restated Certificate, the affirmative vote
of the holders of at least 80% of the voting power of all shares of Common Stock
then outstanding, voting together as a single class, shall be required to alter,
amend or repeal, or to adopt any provision inconsistent with, this Article.
Section 9. Deemed Notice. Any person or entity purchasing or otherwise
acquiring any interest in any shares of the Corporation shall be deemed to have
notice or and to have consented to the provisions of this ARTICLE XIII.
ARTICLE XIV
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Notwithstanding any other provisions of this Restated Certificate or any
provision of law which might otherwise permit a lesser vote or no vote, but in
addition to any affirmative vote of the holders of the capital stock required by
law or this Restated Certificate, the affirmative vote of the holders of at
least two-thirds (2/3) of the combined voting power of all of the then
outstanding shares of the Corporation eligible to be cast in the election of
directors shall be required to alter, amend or repeal ARTICLES IV, IX, X or XII
hereof, or this ARTICLE XIV, or any provision thereof or hereof.
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ARTICLE XV
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The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Restated Certificate, in the manner now or hereafter
prescribed by statute or in this Restated Certificate, and all rights conferred
upon stockholders herein are granted subject to this reservation.
ARTICLE XVI
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The Corporation expressly elects to be governed by Section 203 of the
Delaware General Corporation Law. Notwithstanding the terms of Section 203 of
the Delaware General Corporation Law, Willis Stein shall not be deemed at any
time and without regard to the percentage of voting stock of the Corporation
owned by Willis Stein to be an "interested stockholder" as such term is defined
in Section 203(c)(5) of the Delaware General Corporation Law.
* * * * * *
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