RESTATED CERTIFICATE OF INCORPORATION
OF
UNITED INDUSTRIAL CORPORATION
Pursuant to the laws of the State of Delaware (particularly
Chapter 1, Title 8 of the Delaware Code, identified and referred to as the
"General Corporation Law of Delaware"), the undersigned, Bernard Fein and Howard
M. Bloch, being respectively the President and Secretary of UNITED INDUSTRIAL
CORPORATION, a corporation organized and existing under the laws of the State of
Delaware, do hereby certify as follows:
1. The name of the corporation is United Industrial
Corporation (the "Corporation") and the name under which the Corporation was
originally incorporated is Topp Industries Corporation.
2. The original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
September 14, 1959.
3. This Restated Certificate of Incorporation only restates
and integrates and does not further amend the provisions of the Certificate of
Incorporation of the Corporation as heretofore amended or supplemented and there
is no discrepancy between those provisions and the provisions of this Restated
Certificate of Incorporation.
4. The text of the Certificate of Incorporation as amended or
supplemented heretofore is hereby restated without further amendments or changes
to read as herein set forth in full:
"First. The name of the Corporation is United Industrial
Corporation.
Second. The address of the registered office of the
Corporation in the State of Delaware is 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name and address of the registered agent
of the Corporation in the State of Delaware is The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801.
Third. The nature of the business, or objects or purposes to
be transacted, promoted or carried on are:
A. To manufacture, purchase or otherwise acquire,
invest in, own, mortgage, pledge, sell, assign and transfer or
otherwise dispose of, trade, deal in and deal with aircraft
component parts and goods, wares and merchandise and personal
property of every class and description.
B. To conduct researches, investigations and
examinations of businesses and enterprises of every kind and
description throughout the world with the aim of securing
information and particulars for the investment and employment
of capital.
C. To undertake and transact all kinds of business
relating to the gathering and distribution of financial and
investment information and statistics throughout the world.
D. To carry on the general business of managing and
operating businesses, investment companies, plants,
properties, investments, real estate and tangible and
intangible personal property of every class and description in
any of the States, districts, territories or colonies of the
United States, and in any and all foreign countries, subject
to the laws of such State, district, territory, colony or
country.
E. To maintain executive and operating personnel for
the purpose of advising and assisting others in accordance
with the purposes hereof.
F. To furnish plans and programs, to propose policies
and generally to advise and assist under contracts, or
otherwise, others in the management of their businesses,
plants, properties, investments, real estate and tangible and
intangible personal property of every class and description.
G. To conduct investigations in the fields of business,
engineering, mechanics and inventions, and to make reports
thereon.
H. To engage in consultant and advisory work in
connection with the organization, financing, management,
operation and reorganization of industrial and commercial
enterprises.
I. To manage and to provide management for and to
conduct, operate and supervise all or part of any and every
kind of business and to contract or arrange with any
corporation, association, partnership or individual for the
management, conduct, operation and supervision of all kinds of
businesses.
J. To acquire, and pay for in cash, stock or bonds of
this Corporation or otherwise, the good will, rights, assets
and property, and to undertake or assume the whole or any part
of the obligations or liabilities of any person, firm,
association or corporation.
K. To apply for, obtain, register, purchase, lease or
otherwise acquire, and to hold, use, pledge, lease, sell,
assign, or otherwise dispose of formulae, secret processes,
distinctive marks, improvements, processes, trade names,
trade-marks, copyrights, patents, licenses, concessions and
the like, whether used in connection with or secured under
Letters Patent of or issued by any country or authority; and
to issue, exercise, develop and grant licenses in respect
thereof or otherwise turn the same to account.
L. To acquire by purchase, subscription or otherwise,
and to receive, hold, own, guarantee, sell, assign, exchange,
transfer, mortgage, pledge or otherwise dispose of or deal in
and with any of the shares of the capital stock, or any voting
certificates in respect of the shares of capital stock, scrip,
warrants, rights, bonds, debentures, notes, trust receipts,
and other securities, obligations, choses in action and
evidences of indebtedness or interest issued or created by any
corporations, joint stock companies, syndicates, associations,
firms, trusts or persons, public or private, or by the
government of the United States of America, or by any foreign
government, or by any state, territory, province, municipality
or other political subdivision or by any governmental agency,
and as owner thereof to possess and exercise all the rights,
powers and privileges of ownership, including the right to
execute consents and vote thereon, and to do any and all acts
and things necessary or advisable for the preservation,
protection, improvement and enhancement in value thereof.
M. To promote, cause to be organized, finance and aid
by loan, subsidy, guaranty or otherwise, any corporation,
association, partnership, syndicate, entity, person, or
governmental, municipal or public authority, domestic or
foreign, located in or organized under the laws of any
authority in any part of the world, any security of which is
held directly or indirectly by or for the Corporation, or in
the business, financing or welfare of which the Corporation
shall have any interest; and in connection therewith to
guarantee or become surety for the performance of any
undertaking or obligation of any of the foregoing, and to
guarantee by endorsement or otherwise the payment of the
principal of, or interest or dividends on, any such security,
and generally to do any acts or things designed to protect,
preserve, improve, or enhance the value of any such security.
N. To have one or more offices, to carry on all or any
of its operations and business and without restriction or
limit as to amount to purchase or otherwise acquire, hold,
own, mortgage, sell, convey or otherwise dispose of, real and
personal property of every class and description in any of the
states, districts, territories or colonies of the United
States, and in any and all foreign countries, subject to the
laws of such state, district, territory, colony or country.
O. To enter into any lawful arrangement for sharing
profits, union of interest, reciprocal concession or
cooperation with any corporation, association, partnership,
syndicate, entity, person, or governmental, municipal or
public authority, domestic or foreign, located in or organized
under the laws of any authority in any part of the world, in
the carrying on of any business which the Corporation is
authorized to carry on, or any business or transaction deemed
necessary, convenient or incidental to carrying out any of the
purposes of the Corporation.
P. To enter into, make and perform contracts of every
kind and description with any person, firm, association,
corporation, municipality, county, state, body politic or
government or colony or dependency thereof.
Q. To borrow or raise moneys for any of the purposes of
the Corporation and, from time to time without limit as to
amount, to draw, make, accept, endorse, execute and issue
promissory notes, drafts, bills of exchange, warrants, bonds,
debentures and other negotiable or non-negotiable instruments
and evidences of indebtedness, and to secure the payment of
any thereof and of the interest thereon by mortgage upon or
pledge, conveyance or assignment in trust of the whole or any
part of the property of the Corporation, whether at the time
owned or thereafter acquired, and to sell, pledge or otherwise
dispose of such bonds or other obligations of the Corporation
for its corporate purposes.
R. To lend money, either without any collateral
security or on the security of real or personal property.
S. To make any guaranty respecting securities,
indebtedness, dividends, interest, contracts or other
obligations so far as the same may be permitted to be done
under the laws of the State of Delaware.
T. To purchase or otherwise acquire, hold, sell,
pledge, transfer or otherwise dispose of, and to reissue or
cancel the shares of its own capital stock or any securities
or other obligations of the Corporation in the manner and to
the extent now or hereafter permitted by the laws of the State
of Delaware.
U. To do everything necessary, proper, advisable or
convenient for the accomplishment of any of the purposes or
the attainment of any of the objects or the furtherance of any
of the powers herein set forth and to do every other act and
thing incidental thereto or connected therewith, provided the
same be not forbidden by the laws of the State of Delaware.
V. In general, to carry on any business and to have and
exercise all of the powers conferred by the laws of the State
of Delaware; and to do any and all the acts and things herein
set forth to the same extent as natural persons could do, and
in any part of the world, as principal, factor, agent,
contractor, trustee or otherwise, either alone or in
syndicates or otherwise in conjunction with any person,
entity, syndicate, partnership, association or corporation,
governmental, municipal, or public authority, domestic or
foreign; to establish and maintain offices and agencies and to
exercise all or any of its corporate powers and rights
throughout the world.
The foregoing clauses shall be construed as powers as well as
objects and purposes, and the matters expressed in each clause shall, unless
herein otherwise expressly provided, be in nowise limited by reference to or
inference from the terms of any other clause, but shall be regarded as
independent objects, purposes and powers; and the enumeration of specific
objects, purposes and powers shall not be construed to limit or restrict in any
manner the meaning of general terms or the general powers of the Corporation;
nor shall the expression of one thing be deemed to exclude another not
expressed, although it be of like nature.
Fourth. The total number of shares of all classes of stock
which the Corporation shall have authority to issue is fifteen million
(15,000,000) shares, all of which shall be Common Stock, par value one dollar
($1.00) per share.
A. At all meetings of stockholders held for the election of
directors, voting shall be cumulative. Each holder of a share of stock shall be
entitled to cast as many votes as shall equal the number of votes to which his
shares would (except for this provision as to cumulative voting) be entitled in
voting for the election of directors multiplied by the number of directors for
whose election such shares are entitled to be voted, and such holder may cast
all of such votes for a single director or may distribute them among the number
to be voted for, or for any two or more of them, as he may see fit.
B. No holder of shares of any class of stock of the
Corporation shall be entitled, as such, to any preemptive rights to subscribe
for the purchase of or to receive any part of any issue of shares or of bonds,
notes, debentures or other securities convertible into shares of the Corporation
whether now or hereafter authorized or issued; and the Corporation shall have
the right from time to time, without offering the same to the holders of shares
of any class then outstanding, to issue and sell shares of any class or any such
bonds, notes, debentures or other securities convertible into shares, to such
person or persons as the Board of Directors shall from time to time determine.
As used in this Paragraph B, the expression "securities convertible into shares"
shall be deemed to include all bonds, notes, debentures or other evidences of
indebtedness to which are attached, or with which are issued, warrants or other
instruments evidencing the right to purchase or otherwise acquire shares of any
class of stock of the Corporation.
C. The number of directors of the Corporation shall be fixed
by the by-laws and may be altered from time to time as may be provided therein,
but in no event shall the number of directors of the Corporation be less than
five nor more than twenty. At the annual election of directors to be held at the
annual meeting of stockholders in 1970, the directors to be elected by the
holders of all classes of stock entitled to vote therein shall be divided into
three classes, as nearly equal in number as may be, the term of office of each
class to expire at the third annual meeting of stockholders held after the
election of each class except that at the annual meeting of stockholders in 1970
the term of office of those of the first class shall expire at the first annual
meeting of stockholders after their election and the term of office of those of
the second class shall expire at the second annual meeting of stockholders after
their election. At each annual election held after such classification and
election to be held in 1970, each director shall be elected to a term of office
to expire at such future annual meeting of stockholders as is appropriate for
the class of directors to which he is elected. Any vacancies created in the
Board of Directors may be filled in accordance with the provisions of Section
223 of the General Corporation Law of Delaware. The affirmative vote of the
holders of not less than eighty percent (80%) of the outstanding shares of stock
of the Corporation entitled to vote shall be required to amend, alter or repeal
any of the provisions of this Paragraph C.
Fifth. The Corporation is to have perpetual existence.
Sixth. The private property of the stockholders shall not be
subject to the payment of corporate debts to any extent whatever.
Seventh. For the management of the business and for the
conduct of the affairs of the Corporation it is further provided:
A. In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized:
1. To make, alter or repeal the by-laws of the
Corporation, but any by-laws so made, altered or amended by
the Board of Directors may be altered, amended and repealed by
either the Board of Directors or the stockholders of the
Corporation.
2. To authorize and cause to be executed mortgages and
liens upon the real and personal property of the Corporation.
3. By resolution passed by a majority of the whole
Board, to designate one or more committees, each committee to
consist of two or more of the directors of the Corporation,
which, to the extent provided in the resolution or in the
by-laws of the Corporation, shall have and may exercise the
powers of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may
require it. Such committee or committees shall have such name
or names as may be stated in the by-laws of the Corporation or
as may be determined from time to time by resolution adopted
by the Board of Directors.
4. To fix and determine and vary from time to time the
amount of working capital and reserve funds of the
Corporation; to determine whether any and, if any, what part
of the net profits of the Corporation or of its surplus or of
its net assets in excess of its capital shall be declared in
dividends and paid to the stockholders, and to direct and
determine the use and disposition of any such net profits or
of any such surplus or of any such net assets in excess of
capital.
5. To set apart out of any of the funds of the
Corporation available for dividends on any class of stock of
the Corporation a reserve or reserves of any proper purpose
and to abolish any such reserve in the manner in which it was
created.
6. To determine, from time to time, whether and to what
extent, and at what times and places and under what conditions
and regulations, the accounts and books of the Corporation
(other than the stock ledger) or any of them shall be open to
the inspection of the stockholders, and no stockholder shall
have any right to inspect any account, book or document of the
Corporation, except as conferred by the laws of the State of
Delaware, unless authorized by resolution of the Board of
Directors of the Corporation.
7. From time to time, to the extent now or hereafter
permitted by the laws of the State of Delaware, to sell,
lease, exchange, or otherwise dispose of any part of the
property and assets of this Corporation which the Board of
Directors deems it expedient and for the best interests of the
Corporation to dispose of, or disadvantageous to continue to
own, without assent of the stockholders by vote or otherwise;
and, pursuant to the written consent of the holders of a
majority of the shares of stock issued and outstanding having
voting power, or pursuant to the affirmative vote of the
holders of a majority of stock issued and outstanding having
voting power, given at a stockholders' meeting duly called for
that purpose, the Board of Directors shall have power and
authority, at any meeting, to sell, lease or exchange all of
the property and assets of the Corporation, including its
good-will and its corporate franchises, upon such terms and
conditions as the Board of Directors deems expedient and for
the best interests of the Corporation.
8. To remove at any time, for cause or without cause,
any officer or employee of the Corporation, or to confer such
power on any Committee or officer; provided, however, that any
officer elected or appointed by the Board of Directors may be
removed only by the affirmative vote of a majority of the
Board of Directors then in office.
9. To establish bonus, profit-sharing or other types of
incentive or compensation plans for the employees (including
officers) of the Corporation and to fix the amount of profits
to be distributed or shared and to determine the persons to
participate in any such plans and the amounts of their
respective participations.
B. No director or officer of this Corporation shall, in the
absence of fraud and after disclosure, be disqualified by his office from
dealing or contracting with this Corporation either as vendor, purchaser or
otherwise, nor, in the absence of fraud, shall any transaction or contract of
this Corporation be void or voidable or affected by reason of the fact that any
such director or officer, or in any firm of which any such director or officer
is a member or an employee or any corporation of which any such director or
officer is an officer, director, stockholder or employee, has any interest in
such transaction or contract, whether or not adverse to the interest of the
Corporation, even though the vote of the director or directors or officer or
officers having such interest shall have been necessary to obligate the
Corporation upon such contract or transaction; and no director or directors or
officer or officers having such interest shall be liable to the Corporation or
to any stockholder or creditor thereof or to any other person for any loss
incurred by it under or by reason of any such contract or transaction; or shall
any such director or directors or officer or officers be accountable for any
gains or profits realized thereon.
C. Any contract, transaction or act of the Corporation or of
the Board of Directors or any Committee which shall be approved, ratified or
adopted by a majority of quorum of the stockholders entitled to vote at any
annual meeting or at any special meeting called for such purpose, shall be as
valid and binding as though ratified by every stockholder of the Corporation,
provided, however, that the fact that any such contract, transaction or act
shall not have been so approved, ratified or adopted, shall not be deemed in any
way to invalidate the same or to deprive the Corporation, its directors or
officers, of their right to proceed with such contract, transaction or action.
D. The Corporation shall indemnify any and all of its
directors or officers or former directors or officers or any person who may have
served at its request as a director or officer of another corporation in which
the Corporation owns shares of capital stock or of which it is a creditor
against expenses actually and necessarily incurred by them in connection with
the defense of any action, suit or proceeding in which they, or any of them, are
made parties, or a party, by reason of being or having been directors or
officers or a director or officer of the Corporation, or of such other
corporation, except in relation to matters as to which any such director or
officer or former director or officer or person shall be adjudged in such
action, suit or proceeding to be liable for negligence or misconduct in the
performance of duty. Such indemnification shall not be deemed exclusive of any
other rights to which those indemnified may be entitled under any by-law,
agreement, vote of stockholders, or otherwise. The Corporation shall have the
right to intervene in and to defend all such actions, suits or proceedings
brought against any such director or officer or former director or officer or
person. Whenever in this paragraph a director or officer or former director or
officer or a person is referred to, such reference shall be inclusive of his
heirs, executors and administrators.
E. Each director of the Corporation and each member of any
committee designated by the Board of Directors shall, in the performance of his
duties, be fully protected in relying in good faith upon the books of account or
reports made to the Corporation by any of its officials, or by an independent
certified public accountant, or by an appraiser, selected with reasonable care
by the Board of Directors or by any such committee, or in relying in good faith
upon other records of the Corporation.
F. At all meetings of stockholders the voting for the election
of directors may be viva voce, but any qualified voter may demand a stock vote
whereupon such stock vote shall be taken by ballot, each of which shall state
the name of the stockholder voting and the number of shares voted by him, and if
such ballot be cast by proxy, it shall also state the name of such proxy.
This Corporation may by its by-laws confer powers on the Board
of Directors in addition to the foregoing and in addition to the powers and
authorities expressly conferred by law.
Eighth. Whenever a compromise or arrangement is proposed
between this Corporation and its creditors or any class of them and/or between
this Corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the application in a
summary way of this Corporation or of any creditor or stockholder thereof, or on
the application of any receiver or receivers appointed for this Corporation
under the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
Ninth. Meetings of stockholders and directors may be held
outside the State of Delaware, if the by-laws so provide. The books of the
Corporation may be kept (subject to any provision contained in the statutes)
outside the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the by-laws of the Corporation.
Tenth. The Board of Directors may from time to time offer for
subscription, or otherwise issue or sell, or grant options for the subscription
to or purchase of, any or all of the authorized stock of the Corporation not
then issued or which may have been issued and reacquired as Treasury stock by
the Corporation, except as provided in Article FOURTH, and any or all of any
increased stock of any class that may hereafter be authorized, for such
consideration as the directors may determine. The Board of Directors may, at the
time of such issue and sale, or at the time of granting of such options, specify
in amount or value the part of the consideration received on such issue and sale
over and above the par value of such stock, which shall be capital, and which
shall be surplus, respectively. Bonds, debentures, certificates of indebtedness,
or other securities may be issued, sold or disposed of pursuant to resolution of
the Board of Directors, for such consideration and upon such terms and
conditions as may be deemed advisable by the Board of Directors in the exercise
of its discretion.
Eleventh. If so determined by the Board of Directors, the
Corporation may from time to time receive money and/or other property as a
contribution to surplus, which contribution may consist of an undivided part of
moneys and/or other property, for another undivided part of which money and/or
other property, bonds, debentures, obligations and/or shares of stock, with
and/or without par value, of any class or classes of the Corporation are issued.
Against any surplus there may be charged from time to time any losses incurred
by the Corporation or any items of debt or stock discount and expense. Such
surplus may also be reduced from time to time by dividends or by transfer to
capital or to some other appropriate account, and the amount of capital may be
increased from time to time by the capitalization of surplus or net profits
without the issuance of additional shares.
Twelfth. A. The affirmative vote of the holders of not less
than eighty percent (80%) of the outstanding shares of stock of the Corporation
entitled to vote shall be required to authorize, adopt or approve:
1. any agreement for the merger or consolidation of the
Corporation or any subsidiary (as hereinafter defined) with or
into any Related Person (as hereinafter defined) or any
subsidiary of a Related Person;
2. any sale, lease, transfer, exchange, mortgage,
pledge or other disposition, directly or indirectly, to any
Related Person or any subsidiary of a Related Person of all or
substantially all of the assets of the Corporation or any
subsidiary of the Corporation, or any portion of such assets
having a fair market value at the time of the proposed
transaction equal to or greater than fifty percent (50%) of
the then fair market value of the total assets of the
Corporation or of such subsidiary of the Corporation; or
3. the issuance or delivery by the Corporation or any
subsidiary of the Corporation of any voting securities of the
Corporation or such subsidiary having a fair market value at
the time of such transaction of $1,000,000 or more in exchange
or payment for securities, property or other assets of any
Related Person. For the purposes hereof, the term Related
Person shall mean a person (as hereinafter defined) who or
which, either alone or together with his or its affiliates (as
hereinafter defined) and associates (as hereinafter defined),
is, as of the date the proposed transaction is approved by the
Board of Directors of the Corporation or such subsidiary, the
beneficial owner (as hereinafter defined) of five percent (5%)
or more of the outstanding securities of the Corporation
entitled at the time to vote for the election of directors,
but the term Related Person shall specifically exclude any
corporation a majority of the outstanding voting securities of
which is, at the time, owned of record or beneficially by the
Corporation or any one or more of its subsidiaries. In making
the foregoing determination, the outstanding securities of the
Corporation shall not include shares owned by the Corporation
or any of its subsidiaries or shares or other voting
securities which may be issuable pursuant to any agreement or
upon the exercise of any conversion rights, warrants or
options.
B. As used in this Article TWELFTH, the following terms
shall have the meanings set forth below:
1. an "affiliate" of a specified person shall mean any
person who or which directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is
under common control with, the specified person;
2. an "associate" of a specified person shall mean (i)
any person of which such specified person is an officer,
director, partner or the beneficial owner, directly or
indirectly, of ten percent (10%) or more of any class of
equity securities, (ii) any trust or other estate in which
such specified person has a substantial or beneficial interest
or as to which such specified person serves as trustee or in a
similar fiduciary capacity, (iii) any relative or spouse of
such specified person, or any relative of such spouse, who has
the same home as such specified person or who is a director or
officer of such specified person or any corporation which
controls or is controlled by such specified person, or (iv)
any other member or partner of or in a partnership, limited
partnership, syndicate or other group of which the specified
person is a member or partner and which is acting together for
the purpose of acquiring, holding or disposing of securities
of the Corporation;
3. any specified person shall be deemed to be the
"beneficial owner" of securities of the Corporation which (i)
such specified person or any of its affiliates or associates
owns, directly or indirectly, whether of record or not, (ii)
such specified person or any of his or its affiliates or
associates has the right to acquire pursuant to any agreement,
upon the exercise of conversion rights, warrants or options,
or otherwise, or (iii) are beneficially owned, directly or
indirectly (including securities deemed owned through
application of clauses (i) and (ii) above), by any other
person with whom or which such specified person or any of his
or its affiliates or associates has any agreement, arrangement
or understanding for the purpose of acquiring, holding, voting
or disposing of securities of the Corporation;
4. the term "person" shall include a natural person,
corporation, trust, partnership, joint venture, association or
other entity; and
5. a "subsidiary" of a specified person shall mean a
corporation of which fifty percent (50%) or more of the
outstanding voting securities are owned, directly or
indirectly, with power to vote by such specified person or a
subsidiary of such specified person.
C. The Board of Directors of the Corporation shall have the
power and duty to determine, for purposes of this Article TWELFTH, on the basis
of information known to such Board:
1. the fair market value of any assets of the
Corporation or any subsidiary thereof proposed to be disposed
of in a transaction of the character referred to in paragraph
(1)(b) of this Article TWELFTH and the fair market value of
the total assets of the Corporation or such subsidiary;
2. whether any person referred to in paragraph (1) of
this Article TWELFTH owns beneficially five percent (5%) or
more of the outstanding securities of the Corporation entitled
to vote for the election of directors;
3. the fair market value of any voting securities
issuable or deliverable by the Corporation or any subsidiary
thereof in a transaction of the character referred to in
paragraph (1)(c) of this Article TWELFTH; and
4. whether any person is an affiliate or associate of
any other person.
Any such determination shall be conclusive and binding for all
purposes of this Article TWELFTH.
D. The affirmative vote of the holders of not less than eighty
percent (80%) of the outstanding shares of stock of the Corporation entitled to
vote shall be required to amend, alter or repeal any of the provisions of this
Article TWELFTH.
Thirteenth. The Corporation reserves the right to create any
additional preferred or special stocks or to amend, alter, change or repeal any
provisions contained in this instrument, or any amendment of the provisions
thereof, in the manner now or hereafter provided by the laws of the State of
Delaware, and all rights of the stockholders of the Corporation, except as in
this instrument otherwise provided, are granted subject to these reservations.
Fourteenth. No director shall be personally liable to the
Corporation or any stockholder for monetary damages for breach of fiduciary duty
as a director, except for any matter in respect of which such director shall be
liable under Section 174 of Title 8 of the Delaware Code (relating to the
Delaware General Corporation Law) or any amendment thereto or successor
provision thereto or shall be liable by reason that, in addition to any and all
other requirements for such liability, he (i) shall have breached his duty of
loyalty to the Corporation or its stockholders, (ii) shall not have acted in
good faith or, in failing to act, shall not have acted in good faith, (iii)
shall have acted in a manner involving intentional misconduct or a knowing
violation of law or, in failing to act, shall have acted in a manner involving
intentional misconduct or a knowing violation of law or (iv) shall have derived
an improper personal benefit. Neither the amendment nor repeal of this Article
FOURTEENTH, nor the adoption of any provision of the Certificate of
Incorporation inconsistent with this Article FOURTEENTH, shall eliminate or
reduce the effect of this Article FOURTEENTH, in respect of any matter
occurring, or any cause of action, suit or claim that, but for this Article
FOURTEENTH, would accrue or arise, prior to such amendment, repeal or adoption
of an inconsistent provision."
5. This Restated Certificate of Incorporation was duly adopted
by the Board of Directors of the Corporation in accordance with Section 245 of
the General Corporation Law of Delaware.
6. This Restated Certificate of Incorporation shall be
effective upon filing with the Secretary of State of the State of Delaware
pursuant to Section 103 of the General Corporation Law of Delaware.
IN WITNESS WHEREOF, UNITED INDUSTRIAL CORPORATION has caused
this Restated Certificate of Incorporation to be signed by Bernard Fein, its
President, and attested by Howard M. Bloch, its Secretary, this 13th day of
October, 1993.
UNITED INDUSTRIAL CORPORATION
By: /s/ Bernard Fein
------------------------------
Bernard Fein
President
Attest:
By: /s/ Howard M. Bloch
-------------------------------
Howard M. Bloch
Secretary