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EXHIBIT 3
OAKHURST COMPANY, INC.
RESTATED AND AMENDED CERTIFICATE OF INCORPORATION
Introductory Statement
The Original Certificate of Incorporation of Oakhurst Company, Inc. (formerly
known as Oakhurst Capital, Inc. and prior to that as Hallwood Holdings
Incorporated) (the "Corporation") was filed with the Secretary of State on
April 1, 1991. Pursuant to Section 245 of the General Corporation Law, this
restated certificate of incorporation was duly auhtorized by the unanimous
written consent of the Board of Directors of the Corporation on April 28, 1995.
This restatement does not amend the Corporation's Certificate of Incorporation;
it only integrates and restates in a single document the original Certificate
of Incorporation and amendments made thereto since the original filing date
through and including the amendments approved by stockholders on August 10,
1995, as follows:
FIRST: The name of the Corporation is Oakhurst Company, Inc.
(hereinafter sometimes referred to as the "Corporation").
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, Wilmington, County of
New Castle, Delaware 19801. The name of the registered agent
at that address is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be transacted,
conducted or promoted by the Corporation is exclusively --
(a) purchasing, acquiring, owning, holding, investing in,
selling, trading and exchanging Required Assets (as
may be defined from time to time by the Board of
Directors) in accordance with the provisions of this
Certificate of Incorporation;
(b) purchasing, acquiring, owning, holding, investing in,
selling, trading and exchanging securities and other
ownership interests in any corporation or other
entity, other than a general partnership interest in
any partnership or joint venture;
(c) incurring any secured or unsecured indebtedness, and
guaranteeing or assuming any obligation or debt of
any person or entity, provided that each rating
agency, if any, that has assigned a rating to the
Company's outstanding securities shall advise the
Company in writing that its then current rating
assigned to such securities will not be adversely
affected thereby; and
(d) engaging in any other lawful act or activity which is
necessary or desirable in connection with any of the
foregoing for which a corporation may be organized
under the General Corporation Law of Delaware. The
Company shall operate in such a manner so as not to
be an investment company within the meaning of the
Investment Company Act of 1940, as amended.
FOURTH: SECTION 1. CAPITALIZATION. The total number of shares of all
classes of stock which the Corporation has authority to issue
is 15,000,000, consisting of:
(a) One million (1,000,000) shares of Preferred Stock,
par value one cent ($0.01) per share (the "Preferred
Stock"); and
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(b) Fourteen million (14,000,000) shares of Common Stock,
par value one cent ($0.01) per share (the "Common
Stock").
SECTION 2. SERIES OF PREFERRED STOCK. The Board of Directors
is authorized, subject to any limitations prescribed by law,
to provide for the issuance from time to time of the shares of
Preferred Stock in one or more series, and by adopting
resolutions to establish from time to time the number of
shares to be included in each such series, and to fix the
designation, powers, preferences, and rights of the shares of
each such series and any qualifications, limitations or
restrictions thereof. Upon adopting such resolution or
resolutions the Board of Directors shall cause a certificate
of designation setting forth such resolution or resolutions
and the number of shares of stock of such class or series as
to which such resolution or resolutions shall apply to be
executed and filed in accordance with applicable Delaware law.
The number of authorized shares of Preferred Stock may be
increased or decreased (but not below the number of shares
thereof then outstanding) by the affirmative vote of the
holders of a majority of the Common Stock, without a vote of
the holders of the Preferred Stock, or of any series thereof,
unless a vote of any such holders is required pursuant to the
certificate or certificates establishing the series of
Preferred Stock.
FIFTH: The following provisions are inserted for the management of
the business and the conduct of the affairs of the
Corporation, and for further definition, limitation and
regulation of the powers of the Corporation and of its
directors and stockholders:
SECTION 1. POWERS OF DIRECTORS. The business and affairs of
the Corporation shall be managed by or under the direction of
the Board of Directors. In addition to the powers and
authority expressly conferred upon them by statute or by this
Certificate of Incorporation or the Bylaws of the Corporation,
the directors are hereby empowered to exercise all such powers
and do all such acts and things which are not by statute or by
this Certificate of Incorporation to be exercised or done by
the stockholders of the Corporation.
SECTION 2. WRITTEN BALLOT. All elections of directors shall
be by vote of stockholders entitled to vote thereon made by
written ballot at a meeting called for such purpose pursuant
to Delaware law. In no case shall a director be elected or
removed by written consent of stockholders without a meeting.
Notwithstanding the preceding, vacancies and newly created
directorships may be filled by directors then in office
pursuant to the provisions of Delaware law and Section 3 of
Article SEVENTH below.
SECTION 3. STOCKHOLDERS MUST MEET TO ACT. Any action
required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or
special meeting of stockholders of the Corporation and may not
be effected by any written consent by such stockholders
without a meeting.
SECTION 4. CALL OF SPECIAL MEETING OF STOCKHOLDERS. Special
meetings of stockholders of the Corporation may be called only
by the Board of Directors pursuant to a resolution adopted by
a majority of the total number of authorized directors
(whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is
presented to the Board for adoption).
SECTION 5. ARRANGEMENT BETWEEN CORPORATION AND ITS CREDITORS.
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
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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, of this
Corporation, as the case may be, and also on this Corporation.
SIXTH: SECTION 1. CERTAIN RESTRICTIONS ON THE TRANSFER OF STOCK. In
order to preserve the net operating loss carryovers, capital
loss carryovers, and business credit carryovers (the "Tax
Benefits") to which the Corporation is entitled pursuant to
the Internal Revenue Code of 1986, as amended, or any
successor statute (collectively, the "Code") and the
regulations thereunder, the following restrictions shall apply
until June 30, 1999, unless the Board of Directors shall fix
an earlier or later date in accordance with Section 6 of this
Article SIXTH (such date is sometimes referred to herein as
the "Expiration Date"):
(a) From and after the date of the adoption of this
Article SIXTH, no person other than the Corporation
shall transfer any shares of stock of the Corporation
(other than stock described in Section 1504(a)(4) of
the Code or any successor statute, or stock that is
not so described solely because it is entitled to
vote as a result of dividend arrearages) to any
person to the extent that such transfer, if
effective, would cause (x) the Ownership Interest
Percentage of the transferee or any other person to
exceed four and one-half (4.5%) percent, or (y) any
increase in the Ownership Interest Percentage of the
transferee or any other person if the Ownership
Interest Percentage of such transferee or of such
other person exceeded four and one-half (4.5%)
percent before such transfer. For purposes of this
Article SIXTH, (i) "person" shall mean any
individual, corporation, estate, trust, association,
company, partnership, joint venture, or similar
organization; (ii) a person's Ownership Interest
Percentage shall be the sum of such person's direct
ownership interest in the Corporation and/or in Steel
City Products, Inc. (formerly known as Hallwood
Industries Incorporated), a Delaware corporation
("SCPI"), as determined under Treasury Regulation
Section 1.382-2T(f)(8) or any successor regulation
and such person's indirect ownership interest in the
Corporation and/or in SCPI as determined under
Treasury Regulation Section 1.382-2T(f)(15) or any
successor regulation, except that, for purposes of
determining a person's direct ownership interest in
the Corporation or in SCPI any ownership interest
held by such person inthe Corporation or in SCPI
respectively, described in Treasury Regulation
Section 1.382-2T(f)(18)(iii)(A) or any successor
regulation shall be treated as stock of the
Corporation or of SCPI as the case may be, and for
purposes of determining
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ARTICLE SIXTH, SECTION 1. - continued
a person's indirect ownership interest in the
Corporation or in SCPI Treasury Regulations Sections
1.382-2T(g)(2), 1.382-2T(g)(3), 1.3822T(h)(2)(iii)
and 1.382-2T(h)(6)(iii) or any successor regulations
shall not apply and any stock that would be
attributed to such person pursuant to the option
attribution rule of Treasury Regulation Section
1.382-2T(h)(4) or any successor regulation, if to do
so would result in an ownership change, shall be
attributed to such person without regard to whether
such attribution results in an ownership change;
(iii) "transfer" shall mean any means of conveying
legal or beneficial ownership of shares of stock of
the Corporation, whether such means is direct or
indirect, voluntary or involuntary, including,
without limitation, the granting of options with
respect to shares of stock or the transfer of
ownership of any entity that owns shares of stock of
the Corporation, and "transferee" shall mean any
person to whom stock of the Corporation is
transferred.
(b) Any transfer of shares of stock of the Corporation
that would otherwise be prohibited pursuant to the
preceding subparagraph shall nonetheless be permitted
if information relating to a specific proposed
transaction is presented to the Board of Directors of
the Corporation and the Board determines that such
transaction will not jeopardize the Tax Benefits,
based upon an opinion to that effect of legal counsel
selected by the Board of Directors of the
Corporation. Nothing in this subparagraph shall be
construed to limit or restrict the Board of Directors
in the exercise of its fiduciary duties under
applicable law.
SECTION 2. ATTEMPTED TRANSFER IN VIOLATION OF TRANSFER
RESTRICTIONS.
(a) Unless approval of the Board of Directors is obtained
as provided in Section l(b) of this Article SIXTH,
any attempted or purported transfer of shares of
stock of the Corporation in excess of the shares that
could be transferred to the transferee without
restriction under Section 1(a) of this Article SIXTH
is not and shall not be effective to transfer
ownership of such excess shares (the "Prohibited
Shares") to the purported acquiror thereof (the
"Purported Acquiror"), who shall not be entitled to
any rights as a shareholder of the Corporation with
respect to the Prohibited Shares (including, without
limitation, the right to vote or to receive dividends
with respect thereto). All rights with respect to
the Prohibited Shares shall remain the property of
the person who initially purported to transfer the
Prohibited Shares (the "Initial Transferor") to the
Purported Acquiror until such time as the Prohibited
Shares are resold as set forth in Section 2(a) or
Section 2(b) of this Article SIXTH. The Purported
Acquiror, by acquiring ownership of any shares of
stock of the Corporation whether or not they are
Prohibited Shares, shall be deemed to have consented
to all the provisions of this Article SIXTH, and to
have agreed to act as provided in the following
Section 2(b).
(b) Upon demand by the Corporation, the Purported
Acquiror shall transfer any certificate or other
evidence of purported ownership of the Prohibited
Shares within the Purported Acquiror's possession or
control, along with any dividends or other
distributions paid by the Corporation with respect to
the Prohibited Shares that were received by the
Purported Acquiror (the "Prohibited Distributions"),
to an agent designated by the Corporation (the
"Agent"). If the Purported Acquiror has sold the
Prohibited Shares to a bona fide purchaser (as
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ARTICLE SIXTH, SECTION 2. - continued
such term is defined in Section 8-302 of the Uniform
Commercial Code as adopted by the State of Delaware)
in an arm's-length transaction after purportedly
acquiring them, the Purported Acquiror shall be
deemed to have sold the Prohibited Shares as agent
for the Initial Transferor, and in lieu of
transferring the Prohibited Shares and Prohibited
Distributions to the Agent, shall transfer to the
Agent the Prohibited Distributions and the proceeds
of such sale (the "Resale Proceeds") except to the
extent that the Agent grants written permission to
the Purported Acquiror to retain a portion of the
Resale Proceeds not exceeding the amount that would
have been payable by the Agent to the Purported
Acquiror pursuant to the following Section 2(c) if
the Prohibited Shares had been sold by the Agent
rather than by the Purported Acquiror. Any purported
transfer of the Prohibited Shares by the Purported
Acquiror other than a transfer described in one of
the two preceding sentences shall not be effective to
transfer any ownership of the Prohibited Shares.
(c) The Agent shall sell in an arm's length transaction
(to the extent possible, on the principal national
securities exchange, if any, on which the
Corporation's stock is listed) any Prohibited Shares
transferred to the Agent by the Purported Acquiror,
and the proceeds of such sale (the "Sales Proceeds"),
or the Resale Proceeds, if applicable, shall be
allocated to the Purported Acquiror up to the
following amount: (i) where applicable, the
purported purchase price paid or value of
consideration surrendered by the Purported Acquiror
for the Prohibited Shares, or (ii) where the
purported transfer of the Prohibited Shares to the
Purported Acquiror was by gift, inheritance, or any
similar purported transfer, the fair market value of
the Prohibited Shares at the time of such purported
transfer. Subject to the succeeding provisions of
this subparagraph, any Resale Proceeds or Sales
Proceeds in excess of the amount allocable to the
Purported Acquiror pursuant to the preceding
sentence, together with any Prohibited Distributions,
shall be the property of the Initial Transferor. If
the identity of the Initial Transferor cannot be
determined by the Agent through inquiry made to the
Purported Acquiror, the Agent shall publish
appropriate notice (in the Wall Street Journal, if
possible) for seven (7) consecutive business days in
an attempt to identify the Initial Transferor in
order to transmit any Resale Proceeds or Sales
Proceeds or Prohibited Distributions due to the
Initial Transferor pursuant to this subparagraph.
The Agent may also take, but is not required to take,
other reasonable actions to attempt to identify the
Initial Transferor. If after ninety (90) days
following the final publication of such notice the
initial Transferor has not been identified, any
amounts due to the Initial Transferor pursuant to
this subparagraph may be paid over to a court or
governmental agency, if applicable law permits, or
otherwise shall be transferred to any entity
designated by the Corporation that is described in
Section 501(c)(3) of the Code. In no event shall any
such amounts due to the Initial Transferor inure to
the benefit of the Corporation or the Agent, but such
amounts may be used to cover expenses (including but
not limited to the expenses of publication) incurred
by the Agent in attempting to identify the Initial
Transferor.
SECTION 3. PROMPT ENFORCEMENT AGAINST PURPORTED ACQUIROR.
Within forty-five (45) days of learning of a purported
transfer of Prohibited Shares to a Purported Acquiror, the
Corporation through its Secretary shall demand that the
Purported Acquiror surrender to the Agent the certificates
representing the Prohibited Shares, or any Resale
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ARTICLE SIXTH, SECTION 3. - continued
Proceeds, and any Prohibited Distributions, and if such
surrender is not made by the Purported Acquiror within
forty-five (45) days from the date of such demand the
Corporation shall (unless otherwise directed by the Board of
Directors) institute legal proceedings to compel such
transfer; provided, however, that nothing in this Section 3
shall preclude the Corporation in its discretion from
immediately bringing legal proceedings without a prior demand,
and also provided that failure of the Corporation to act
within the time periods set out in this Section 3 shall not
constitute a waiver of any right of the Corporation to compel
any transfer required by Section 2(a) of this Article SIXTH.
SECTION 4. ADDITIONAL ACTIONS TO PREVENT VIOLATION OR
ATTEMPTED VIOLATION. Upon a determination by the Board of
Directors that there has been or is threatened a purported
transfer of Prohibited Shares to a Purported Acquiror, the
Board of Directors may take such action in addition to any
action required or permitted by the preceding Section as it
deems advisable to give effect to the provisions of this
Article SIXTH, including, without limitation, refusing to give
effect on the books of this Corporation to such purported
transfer or instituting proceedings to enjoin such purported
transfer.
SECTION 5. OBLIGATION TO PROVIDE INFORMATION. The
Corporation may require as a condition to the registration of
the transfer of any shares of its stock that the proposed
transferee furnish to the Corporation all information
reasonably requested by the Corporation with respect to all
the proposed transferee's direct or indirect ownership
interests in, or options to acquire, stock of the Corporation.
SECTION 6. FURTHER ACTIONS.
(a) Nothing contained in this Article SIXTH shall limit
the authority of the Board of Directors to take such
other action to the extent permitted by law as it
deems necessary or advisable to protect the
Corporation and the interests of the holders of its
securities in preserving the Tax Benefits. The Board
of Directors may, to the extent permitted by law,
from time to time establish, modify, amend or
rescind, by Bylaw, resolution or otherwise,
regulations and procedures not inconsistent with the
provisions of this Article SIXTH for determining
whether any acquisition of the Corporation's stock
would jeopardize the Corporation's ability to
preserve and use the Tax Benefits, and for the
orderly application, administration and
implementation of the provisions of this Article
SIXTH. Such procedures and regulations shall be kept
on file with the Secretary of the Corporation and,
upon request, shall be made available for inspection
and mailed to any holder of the Corporation's stock.
(b) Without limiting the generality of the foregoing, the
Board of Directors may (i) accelerate or extend the
Expiration Date, (ii) modify the Ownership Interest
Percentage in the Corporation specified in the first
sentence of Section 1(a) of this Article SIXTH, or
(iii) modify the definitions of any terms set forth
in this Article SIXTH; provided that the Board of
Directors shall determine in writing that such
acceleration, extension, change or modification is in
the best interests of the Corporation and its
stockholders and, based upon an opinion of counsel of
the Corporation, that such acceleration, extension,
change or modification is reasonably necessary or
desirable to preserve the Tax Benefits under the Code
and the regulations thereunder or that the
continuation of these restrictions is no
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ARTICLE SIXTH, SECTION 6. - continued
longer reasonably necessary for the preservation of
the Tax Benefits, which determination shall be filed
with the Secretary of the Corporation and mailed by
the Secretary to all stockholders of this Corporation
within ten (10) days after the date of any such
determination.
SECTION 7. SEVERABILITY. Any provision in this Article SIXTH
which is prohibited or unenforceable under Delaware law shall
be ineffective to the extent of such prohibition or
un-enforceability without invalidating the remaining
provisions of this Article SIXTH and of this Certificate of
Incorporation.
SEVENTH: SECTION 1. NUMBER OF DIRECTOR. The number of directors of
the Corporation which shall constitute the entire Board of
Directors shall be such number as is initially fixed by the
Incorporator and thereafter as fixed from time to time
exclusively by the Board of Directors pursuant to a resolution
adopted by a majority of the total number of authorized
directors (whether or not there exist any vacancies in
previously authorized directorships at the time any such
resolution is presented to the Board for adoption).
SECTION 2. CLASSIFICATION OF DIRECTORS. At the first annual
meeting of stockholders of the Corporation, the directors
shall be divided into three classes, as nearly equal in number
as reasonably possible, with the initial term of office of
directors of the first class to expire at the second annual
meeting of stockholders of the Corporation, the initial term
of office of directors of the second class to expire at the
third annual meeting of stockholders of the Corporation, and
the initial term of office of directors of the third class to
expire at the fourth annual meeting of stockholders of the
Corporation. At each annual meeting of stockholders following
such initial classification and election, directors shall be
chosen for a full term of three years, to succeed those
directors whose terms expire. All directors shall hold office
until the expiration of their respective terms and until their
respective successors are elected, except in the case of
death, resignation or removal of any director.
SECTION 3. FILLING VACANCIES ON THE BOARD. Subject to the
rights of the holders of any series of Preferred Stock then
outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any
vacancies in the Board of Directors resulting from death,
resignation, retirement, removal from office, disqualification
or other cause may be filled only by a majority vote of the
directors then in office, though less than a quorum, and
directors so chosen shall hold office for a term expiring at
the annual meeting of stockholders at which the term of office
of the class to which they have been elected expires. No
decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
SECTION 4. REMOVAL OF DIRECTORS. Subject to the rights of
the holders of any series of Preferred Stock then outstanding,
any directors, or the entire Board of Directors, may be
removed from office at any time, but only for cause, and only
by the affirmative vote of the holders of at least
three-quarters of the voting power of all of the then
outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors,
voting together as a single class by ballot at a meeting of
stockholders duly called for such purpose.
EIGHTH: POWER TO AMEND BYLAWS. The Board of Directors is expressly
empowered to adopt, amend or repeal Bylaws of the Corporation.
Any adoption, amendment or repeal of the Bylaws of the
Corporation by the Board of Directors shall require the
approval of a
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majority of the total number of authorized directors (whether
or not there exist any vacancies in previously authorized
directorships at the time any resolution providing for
adoption, amendment or repeal is presented to the Board). The
stockholders shall also have power to adopt, amend or repeal
the Bylaws of the Corporation. In addition to any vote of the
holders of any class or series of stock of this Corporation
required by law or by this Certificate of Incorporation, the
affirmative vote of the holders of at least seventy-five (75)
percent of the combined voting power of the outstanding shares
of stock of all classes and series of the Corporation entitled
to vote generally in the election of directors, voting
together as a single class, shall be required to adopt, amend
or repeal any provisions of the Bylaws of the Corporation.
NINTH: The Corporation shall maintain a separate office and separate
corporate records and books of accounts. The Corporation
shall not commingle its assets or funds with those of any
other corporations or other entities.
TENTH: SECTION 1. ELIMINATION OF CERTAIN LIABILITY OF DIRECTORS. A
director of the 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.
SECTION 2. INDEMNIFICATION AND INSURANCE.
(a) Right to Indemnification. Each person who was or is
made a party or is threatened to be made a party to
or is involved in any action, suit or proceeding,
whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason
of the fact that he or she, or a person of whom he or
she is the legal representative, is or was a director
or officer, of the Corporation or 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
employee benefit plans, whether the basis of such
proceeding is alleged action in an official capacity
as a director, officer, employee or agent or in any
other capacity while serving as a director, officer,
employee or agent, 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 said law
permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid or to be
paid in settlement) reasonably incurred or suffered
by such person in connection therewith and such
indemnification shall continue as to a person who has
ceased to be a director, officer, employee or agent
and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however,
that, except as provided in subparagraph (b) hereof,
the Corporation shall indemnify any such person
seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person
only if such proceeding (or part thereof) was
authorized by the Board of Directors of the
Corporation. The right to indemnification conferred
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ARTICLE TENTH, SECTION 2. - continued
in this Section shall be a contract right and shall
include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however
that, if the Delaware General Corporation Law
requires, the payment of such expenses incurred by a
director or officer 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 person while
a director or officer, including, without limitation,
service to an employee benefit plan) in advance of
the final disposition of a proceeding, shall be made
only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or
officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or
officer is not entitled to be indemnified under this
Section or otherwise. The Corporation may, by action
of its Board of Directors, provide indemnification to
employees and agents of the Corporation with the same
scope and effect as the foregoing indemnification of
directors and officers
(b) Right of Claimant to Bring Suit. If a claim under
subparagraph (a) of this Section is not paid in full
by the Corporation within thirty (30) days after a
written claim has been received by the Corporation,
the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount
of the claim and, if successful in whole or in part,
the claimant shall be entitled to be paid also the
expense of prosecuting such claim. It shall be a
defense to any such action (other than an action
brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final
disposition where the required undertaking, if any is
required, 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
proving 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 or conduct, shall be
a defense to the action or create a presumption that
the claimant has no met the applicable standard of
conduct.
(c) Non-Exclusivity of Rights. The right to
indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final
disposition conferred in this Section shall not be
exclusive of any other right which any person may
have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, bylaw,
agreement, vote of stockholders or disinterested
directors or otherwise.
(d) Insurance. The Corporation may maintain insurance,
at its expense, to protect itself and any director,
officer, employee or agent of the Corporation or
another corporation, partnership, joint venture,
trust or other enterprise against any such expense,
liability or loss, whether or not the Corporation
would have the power
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ARTICLE TENTH, SECTION 2. - continued
to indemnify such person against such expense,
liability or loss under the Delaware General
Corporation Law.
ELEVENTH: FUTURE AMENDMENTS. The Corporation reserves the right to
amend or repeal any provision contained in this Certificate of
Incorporation in the manner prescribed by the laws of the
State of Delaware and all rights conferred upon stockholders
are granted subject to this reservation; provided, however,
that, notwithstanding any other provisions of this Certificate
of Incorporation or any provision of law which might otherwise
permit a lesser vote or no vote, but in addition to any vote
of the holders of any class or series of the stock of this
Corporation required by law or by this Certificate of
Incorporation, the affirmative vote of the holders of at least
seventy-five (75%) percent of the combined voting power of the
outstanding shares of stock of all classes and series of the
Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be
required to amend, repeal or adopt any provision inconsistent
with Article FIFTH, SIXTH, SEVENTH, EIGHTH, TENTH, or this
Article ELEVENTH.
IN WITNESS WHEREOF, the undersigned, have executed this Restated Certificate of
Incorporation hereby declaring and certifying that this is the act and deed of
the Corporation and that the facts herein stated are true, and accordingly, we
have hereunto set our hands this day 25th day of September 1995.
/s/ Maarten D. Hemsley Attest: /s/ Roger M. Barzun
- - ------------------------------------- ----------------------------
Maarten D. Hemsley Roger M. Barzun
Chairman Secretary
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