AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
KT HOLDING COMPANY
KT Holding Company (the "Corporation"), a corporation organized
and existing under the General Corporation Law of the State of Delaware
(the "GCL"), does hereby certify as follows:
(a) The name of the Corporation is KT Holding Company.
(b) The name under which the Corporation was originally
incorporated was KT Holding Company. The original Certificate of
Incorporation of the Corporation was filed with the office of the Secretary
of State of the State of Delaware on November 17, 1999.
(c) This Amended and Restated Certificate of Incorporation was
duly adopted in accordance with Sections 242 and 245 of the GCL.
(d) This Amended and Restated Certificate of Incorporation
restates and integrates and further amends the Certificate of Incorporation
of the Corporation.
(e) The text of the Certificate of Incorporation is amended and
restated in its entirety as follows:
FIRST: The name of the Corporation is Knight/Trimark Group, Inc.
(hereinafter the "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 of its registered agent at that address is The
Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General
Corporation Law of the State of Delaware (the "GCL").
FOURTH: (a) Authorized Capital Stock. The total number of shares of
stock which the Corporation shall have authority to issue is 240,000,000
shares of capital stock, consisting of (i) 200,000,000 shares of class A
common stock, par value $.01 per share (the "Class A Common Stock"), (ii)
20,000,000 shares of Class B common stock, par value $.01 per share (the
"Class B Common Stock" and, together with the Class A Common Stock, the
"Common Stock"), and (iii) 20,000,000 shares of preferred stock, par value
$.01 per share (the "Preferred Stock").
(b) Common Stock. The powers, preferences and rights, and the
qualifications, limitations and restrictions, of each class of the
Common Stock are as follows:
(1) Ranking. Except as otherwise expressly provided in this
Certificate of Incorporation, the powers, preferences and rights
of the holders of Class A Common Stock and holders of Class B
Common Stock, and the qualifications, limitations and
restrictions thereof, shall be in all respects identical.
(2) Voting Rights of Class A Common Stock. Except as otherwise
expressly required by law or provided in this Certificate of
Incorporation, and subject to any voting rights provided to
holders of Preferred Stock at any time outstanding, the holders
of any outstanding shares of Class A Common Stock shall vote
together as a single class on all matters with respect to which
stockholders are entitled to vote under applicable law, this
Certificate of Incorporation or the By-Laws of the Corporation,
or upon which a vote of stockholders is otherwise duly called for
by the Corporation. At each annual or special meeting of
stockholders, each holder of record of shares of Class A Common
Stock on the relevant record date shall be entitled to cast one
vote in person or by proxy for each share of the Class A Common
Stock standing in such holder's name on the stock transfer
records of the Corporation.
(3) Voting Rights of Class B Common Stock. Except as otherwise
expressly required by law, holders of Class B Common Stock shall
have no voting rights.
(4) No Cumulative Voting. The holders of shares of Class A
Common Stock shall not have cumulative voting rights.
(5) Dividends; Stock Splits. Subject to the rights of the
holders of Preferred Stock, and subject to any other provisions
of this Certificate of Incorporation, as it may be amended from
time to time, holders of shares of Class A Common Stock and
shares of Class B Common Stock shall be entitled to receive such
dividends and other distributions in cash, stock or property of
the Corporation when, as and if declared thereon by the Board of
Directors from time to time out of assets or funds of the
Corporation legally available therefor. Holders of Class B
Common Stock shall in no event receive dividends or distributions
in the form of Class A Common Stock or other voting securities or
rights, options or warrants to purchase Class A Common Stock or
other voting securities. If, at any time, a dividend or other
distribution in cash or other property (other than dividends or
other distributions payable in shares of Class A Common Stock or
other voting securities of the Corporation or shares of Class B
Common Stock, or rights, options or warrants to purchase shares
of Class A Common Stock or other voting securities of the
Corporation or to purchase shares of Class B Common Stock or
securities convertible into or exchangeable for shares of Class A
Common Stock or other voting securities of the Corporation or
shares of Class B Common Stock) is declared or paid on the shares
of Class A Common Stock or shares of Class B Common Stock, a like
dividend or other distribution in cash or other property shall
also be declared or paid, as the case may be, on shares of Class
B Common Stock or shares of Class A Common Stock, as the case may
be, in an equal amount per share. If, at any time, a dividend or
other distribution payable in shares of Class A Common Stock or
other voting securities of the Corporation or shares of Class B
Common Stock, or rights, options or warrants to purchase shares
of Class A Common Stock or other voting securities of the
Corporation or to purchase shares of Class B Common Stock, or
securities convertible into or exchangeable for shares of Class A
Common Stock or other voting securities of the Corporation is
paid or declared on shares of Class A Common Stock, a like
dividend or other distribution shall also be paid or declared, as
the case may be, on shares of Class B Common Stock, in an equal
amount per share; provided, that, for this purpose, if shares of
Class A Common Stock or other voting securities of the
Corporation, or rights, options or warrants to purchase shares of
Class A Common Stock or other voting securities of the
Corporation or securities convertible into or exchangeable for
shares of Class A Common Stock or other voting securities of the
Corporation, are paid on shares of Class A Common Stock, and
shares of Class B Common Stock or non-voting securities identical
in all other respects to the other voting securities paid on the
shares of Class A Common Stock or rights, options or warrants to
purchase shares of Class B Common Stock or such other non-voting
securities or securities convertible into or exchangeable for
shares of Class B Common Stock or such other non-voting
securities, are paid on shares of Class B Common Stock, in an
equal amount per share of Class A Common Stock and Class B Common
Stock, such dividend or other distribution shall be deemed to be
a like dividend or other distribution. In the case of any split,
subdivision, combination or reclassification of shares of Class A
Common Stock or Class B Common Stock, the shares of Class B
Common Stock or Class A Common Stock, as the case may be, shall
also be split, subdivided, combined or reclassified so that the
number of shares of Class A Common Stock and Class B Common Stock
outstanding immediately following such split, subdivision,
combination or reclassification shall bear the same relationship
to each other as did the number of shares of Class A Common Stock
and Class B Common Stock outstanding immediately prior to such
split, subdivision, combination or reclassification.
(6) Liquidation, Dissolution, etc. In the event of any
liquidation, dissolution or winding up (either voluntary or
involuntary) of the Corporation, the holders of shares of Class A
Common Stock and the holders of shares of Class B Common Stock
shall be entitled to receive the assets and funds of the
Corporation available for distribution after payments to
creditors and to the holders of any Preferred Stock of the
Corporation that may at the time be outstanding, in proportion to
the number of shares held by them, respectively, without regard
to class.
(7) Merger, etc. In the event of a merger or consolidation of
the Corporation with or into another entity (whether or not the
Corporation is the surviving entity), the holders of each share
of Class A Common Stock and Class B Common Stock shall be
entitled to receive the same per share consideration without
regard to class.
(8) No Preemptive or Subscription Rights. No holder of shares
of Class A Common Stock or Class B Common Stock shall be entitled
to preemptive or subscription rights.
(9) Power to Issue, Sell and Purchase Shares. Subject to the
requirements of applicable law, the Corporation shall have the
power to issue and sell all or any part of any shares of any
class of stock herein or hereafter authorized to such persons,
and for such consideration, as the Board of Directors shall from
time to time, in its discretion, determine, whether or not
greater consideration could be received upon the issue or sale of
the same number of shares of another class, and as otherwise
permitted by law. Subject to the requirements of applicable law,
the Corporation shall have the power to purchase any shares of
any class of stock herein or hereafter authorized from such
persons, and for such consideration, as the Board of Directors
shall from time to time, in its discretion, determine, whether or
not less consideration could be paid upon the purchase of the
same number of shares of another class, and as otherwise
permitted by law.
(10) Conversion. At any time and from time to time each holder
of Class A Common Stock shall be entitled to convert any or all
of such holder's shares into the same number of shares of Class B
Common Stock, and each holder of Class B Common Stock shall be
entitled to convert any or all of such holder's shares into the
same number of shares of Class A Common Stock; provided, however,
that, notwithstanding anything to the contrary contained in this
paragraph, no person subject to the provisions of Regulation Y
shall, and no person shall permit any of its Regulation Y
Affiliates to, convert any shares of Class B Common Stock into
shares of Class A Common Stock, if after giving effect to such
conversion, such person would own or control or have owned or
controlled shares of Class A Common Stock, including all shares
of Class A Common Stock held by such person while such person was
subject to Regulation Y, representing 5% or more of the
outstanding Class A Common Stock; provided, further, that any
person subject to Regulation Y shall, and any such person shall
permit any of its Regulation Y Affiliates to, transfer Class B
Common Stock only to an unaffiliated third party (a) in a widely
dispersed public offering, (b) to one or more investors, in one
or more transactions, none of whom, after such purchase would
hold more than 2% of the voting securities of the Corporation
then outstanding assuming that the Class B Common Stock being
transferred to such investor has been fully converted by such
investor, (c) to any person that already controls the Corporation
prior to such transfer, (d) in a transaction that complies with
Rule 144 (or any successor thereto) of the Securities Act of
1933, as amended, or (e) in any other transaction approved in
advance by the Federal Reserve System. "Regulation Y Affiliate"
shall mean, with respect to any person subject to Regulation Y,
(i) if such person is a bank holding company, any company
directly or indirectly Controlled by such Bank Holding Company,
and (ii) otherwise, the bank holding company that Controls such
person and any company (other than such Person) directly or
indirectly Controlled by such bank holding company. "Regulation
Y" shall mean Regulation Y promulgated by the Board of Governors
of the Federal Reserve System or any successor regulation.
(c) Preferred Stock. The Board of Directors is hereby expressly
authorized to provide for the issuance of all or any shares of the
Preferred Stock in one or more classes or series, and to fix for each
such class or series such voting powers, full or limited, or no voting
powers, and such designations, preferences and relative,
participating, optional or other special rights and such
qualifications, limitations or restrictions thereof, as shall be
stated and expressed in the resolution or resolutions adopted by the
Board of Directors providing for the issuance of such class or series,
including, without limitation, the authority to provide that any such
class or series may be (i) subject to redemption at such time or times
and at such price or prices; (ii) entitled to receive dividends (which
may be cumulative or noncumulative) at such rates, on such conditions,
and at such times, and payable in preference to, or in such relation
to, the dividends payable on any other class or classes or any other
series; (iii) entitled to such rights upon the dissolution of, or upon
any distribution of the assets of, the Corporation; or (iv)
convertible into, or exchangeable for, shares of any other class or
classes of stock, or of any other series of the same or any other
class or classes of stock, of the Corporation at such price or prices
or at such rates of exchange and with such adjustments; all as may be
stated in such resolution or resolutions.
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:
(a) The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors.
(b) The number of directors of the Corporation shall be as from time
to time fixed by, or in the manner provided in, the By-Laws of the
Corporation. Election of directors need not be by written ballot
unless the By-Laws so provide.
(c) A director shall hold office until the annual meeting for the
year in which his or her term expires and until his or her successor
shall be elected and shall qualify, subject, however, to prior death,
resignation, retirement, disqualification or removal from office.
(d) Subject to the terms of any one or more classes or series of
Preferred Stock, any vacancy on the Board of Directors that results
from an increase in the number of directors may be filled by a
majority of the Board of Directors then in office, provided that a
quorum is present, and any other vacancy occurring on the Board of
Directors may be filled by a majority of the Board of Directors then
in office, even if less than a quorum, or by a sole remaining
director. Any director elected to fill a vacancy not resulting from
an increase in the number of directors shall have the same remaining
term as that of his predecessor. Subject to the rights, if any, of
the holders of shares of Preferred Stock then outstanding, any or all
of the directors of the Corporation may be removed from office at any
time, but only for cause and only by the affirmative vote of the
holders of at least a majority of the voting power of the
Corporation's then outstanding capital stock entitled to vote
generally in the election of directors. Notwithstanding the
foregoing, whenever the holders of any one or more classes or series
of Preferred Stock issued by the Corporation shall have the right,
voting separately by class or series, to elect directors at an annual
or special meeting of stockholders, the election, term of office,
filling of vacancies and other features of such directorships shall be
governed by the terms of this Certificate of Incorporation applicable
thereto, and such directors so elected shall not be divided into
classes pursuant to this Article FIFTH unless expressly provided by
such terms.
(e) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are hereby
empowered to exercise all such powers and do all such acts and things
as may be exercised or done by the Corporation, subject, nevertheless,
to the provisions of the GCL, this Certificate of Incorporation, and
any By-Laws adopted by the stockholders; provided, however, that no
By-Laws hereafter adopted by the stockholders shall invalidate any
prior act of the directors which would have been valid if such By-Laws
had not been adopted.
SIXTH: No director shall be personally liable to the Corporation or any of
its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent such exemption from liability or limitation
thereof is not permitted under the GCL as the same exists or may hereafter
be amended. If the GCL is amended hereafter to authorize the further
elimination or limitation of the liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the
fullest extent authorized by the GCL, as so amended. Any repeal or
modification of this Article SIXTH 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 with
respect to acts or omissions occurring prior to such repeal or
modification.
SEVENTH: The Corporation shall indemnify its directors and officers to the
fullest extent authorized or permitted by law, as now or hereafter in
effect, and such right to indemnification shall continue as to a person who
has ceased to be a director or officer of the Corporation and shall inure
to the benefit of his or her heirs, executors and personal and legal
representatives; provided, however, that, except for proceedings to enforce
rights to indemnification, the Corporation shall not be obligated to
indemnify any director or officer (or his or her heirs, executors or
personal or legal representatives) in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or part thereof)
was authorized or consented to by the Board of Directors. The right to
indemnification conferred by this Article SEVENTH shall include the right
to be paid by the Corporation the expenses incurred in defending or
otherwise participating in any proceeding in advance of its final
disposition.
The Corporation may, to the extent authorized from time to time by the
Board of Directors, provide rights to indemnification and to the
advancement of expenses to employees and agents of the Corporation similar
to those conferred in this Article SEVENTH to directors and officers of the
Corporation.
The rights to indemnification and to the advancement of expenses
conferred in this Article SEVENTH shall not be exclusive of any other right
which any person may have or hereafter acquire under this Certificate of
Incorporation, the By-Laws of the Corporation, any statute, agreement, vote
of stockholders or disinterested directors or otherwise.
Any repeal or modification of this Article SEVENTH by the stockholders
of the Corporation shall not adversely affect any rights to indemnification
and to the advancement of expenses of a director or officer of the
Corporation existing at the time of such repeal or modification with
respect to any acts or omissions occurring prior to such repeal or
modification.
EIGHTH: Meetings of stockholders may be held within or without the State
of Delaware, as the By-Laws may provide. The books of the Corporation may
be kept (subject to any provision contained in the GCL) 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.
NINTH: 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 consent
in writing by such stockholders unless all of the stockholders entitled to
vote thereon consent thereto in writing.
TENTH: In furtherance and not in limitation of the powers conferred upon
it by the laws of the State of Delaware, the Board of Directors shall have
the power to adopt, amend, alter or repeal the Corporation's By-Laws. The
affirmative vote of at least a majority of the entire Board of Directors
shall be required to adopt, amend, alter or repeal the Corporation's By-
Laws. The Corporation's By-Laws also may be adopted, amended, altered or
repealed by the affirmative vote of the holders of at least a majority of
the voting power of the shares entitled to vote at an election of
directors.
ELEVENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by statute and all rights herein
conferred upon stockholders are granted subject to such reservation.
IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Certificate of Incorporation to be executed on its behalf this 6th
day of January, 2000.
KT HOLDING COMPANY
By: /s/ Michael T. Dorsey
-------------------------------------
Name: Michael T. Dorsey
Title: Senior Vice President, General
Counsel and Secretary