EXHIBIT 3.61
AMENDED CERTIFICATE
OF
INCORPORATION
OF
SUPERIOR COMMUNICATIONS OF KENTUCKY, INC.
Pursuant to Section 241 of Title 8 of
the Delaware Code of 1953, as Amended
SUPERIOR COMMUNICATIONS OF KENTUCKY, INC., (the "Corporation") a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware (the "DGCL"), DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation have adopted a
resolution declaring advisable the following amendment to the Certificate of
Incorporation of the Corporation:
RESOLVED, that the Certificate of Incorporation of the Corporation be
amended in its entirety to read as follows:
I. NAME. The name of the corporation is "Superior Communications of
Kentucky, Inc." (hereinafter referred to as the "Corporation").
II. ADDRESS. The address of the Corporation's registered office in the
State of Delaware is 1013 Centre Road, Wilmington, New Castle County,
Delaware 19805. The name of its registered agent at such address is The
Corporation Service Company.
III. PURPOSE. The purpose of Corporation is to engage in any lawful acts or
activities for which corporations may be organized under the General
Corporation Law of the State of Delaware and to possess and employ all
powers and privileges now or hereafter granted or available under the laws
of the State of Delaware to such corporations.
IV. AUTHORIZED CAPITAL. The total number of shares of stock which the
corporation shall have authority to issue is 1000 shares of Common Stock of
the par value of $0.001 per share.
V. INCORPORATOR: The name and mailing address of the incorporator are: John
C. Rodney, Kirkpatrick & Lockhart, 1500 Oliver Building, Pittsburgh, PA
15222.
VI. EXISTENCE: The corporation is to have perpetual existence.
VII. BY-LAWS: In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to adopt, amend
or repeal the By- laws of the corporation.
VIII. MEETINGS OF STOCKHOLDERS: Meetings of stockholders may be held within
or without the State of Delaware, as the by-laws may provide. The books of
the corporation may be kept (subject to any provision contained in the
statutes) outside the State of Delaware at such place or places as may be
designated from time to time by the board of directors or in the by-laws of
the corporation. Elections of directors need not be by written ballot
unless the by-laws of the corporation shall so provide.
IX. AMENDMENT: 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 conferred
upon stockholders herein are granted subject to this reservation.
X. INDEMNIFICATION. The Corporation shall indemnify, to the fullest extent
now or hereafter permitted by law, each director or officer of the
Corporation or its Subsidiaries who is made a party or is threatened to be
made a party to any threatened, pending, or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was an authorized representative of the
Corporation, against all expenses (including attorney's fees and
disbursements), judgments, fines (including excise taxes and penalties) and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding. Expenses (including
attorneys' fees) incurred in defending an action, suit, or proceeding may
be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding, to the fullest extent and under the
circumstances permitted by Delaware law. The Corporation may purchase and
maintain insurance on behalf of any person who is or was a director,
officer, employee, fiduciary, or agent of the Corporation or its
Subsidiaries against any liability asserted against and incurred by such
person in any such capacity or arising out of such person's position,
whether or not the Corporation would have the power to indemnify against
such liability under the provisions of this Article VII. The rights
conferred by this Article shall not be exclusive of any other rights to
which those indemnified may be entitled under this Certificate of
Incorporation, any by-law, agreement, vote of stockholders or disinterested
directors, statute, or otherwise, and shall inure to the benefit of their
heirs, executors, and administrators. The provisions of this Article shall
not be deemed to preclude the Corporation from indemnifying other persons
from similar or other expenses and liabilities as the Board of Directors or
the stockholders may determine in a specific instance or by resolution of
general application. Any repeal or modification of this Article by the
stockholders of the Corporation shall not adversely affect any right or
protection existing at the time of such repeal or modification to which any
person may be entitled under this Article. For the purposes of this
Article, the term "authorized representative" shall mean a director or
officer of the Corporation or
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of any subsidiary of the Corporation or person who is or was, at the
request of the Corporation, serving another corporation, partnership, joint
venture, trust, association, or other entity as a director, officer, or
partner, or in any position of similar managerial or fiduciary position, or
as an employee or agent.
XI. LIABILITY. 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, provided, however, that this provision shall
not limit 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) for violations of Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director
derived any improper personal benefit. If the Delaware General Corporation
Law hereafter is amended to further eliminate or limit the liability of a
director, then a director of the Corporation, in addition to the
circumstances in which a director is not personally liable as set forth in
the preceding sentence, shall not be liable to the fullest extent permitted
by the amended Delaware General Corporation Law. Any repeal or modification
of this Article VIII 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.
XII. TRANSACTIONS WITH DIRECTORS, ETC. The Corporation shall have
authority, to the fullest extent now or hereafter permitted by the General
Corporation Law of the State of Delaware, or by any other applicable law,
to enter into any contract or transaction with one or more of its directors
or officers, or with any corporation, partnership, joint venture, trust,
association, or other entity in which one or more of its directors or
officers are directors or officers, or have a financial interest,
notwithstanding such relationships and notwithstanding the fact that the
director or officer is present at or participates in the meeting of the
board of directors or committee thereof which authorizes the contract or
transaction.
XIII. COMPROMISE OR ARRANGEMENT. 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 of the
stockholders or class of stockholders of this Corporation, as the case may
be, agree to any
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compromise or arrangement and to any reorganization of this Corporation as
a 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.
XIV. SECTION 203. The Corporation shall not be subject to the provisions of
Section 203 of the Delaware General Corporation Law.
SECOND: That no stock of the Corporation has been issued.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by Albert M. Holtz, its Chairman.
Attest: SUPERIOR COMMUNICATIONS
OF KENTUCKY, INC.
/s/ John C. Rodney By /s/ Albert M. Holtz
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John C. Rodney Albert M. Holtz
Asst. Secretary Chairman
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CERTIFICATE OF INCORPORATION
OF
SUPERIOR COMMUNICATIONS OF KENTUCKY, INC.
I. NAME. The name of the corporation is Superior Communications of Kentucky,
Inc, (hereinafter referred to as the "Corporation").
II. ADDRESS. The address of the Corporation's registered office in the State of
Delaware is 1013 Centre Road, Wilmington, New Castle County, Delaware 19805. The
name of its registered agent at such address is The Corporation Service Company.
III. PURPOSE. The purpose of Corporation is to engage in any lawful acts or
activities for which corporations may be organized under the General Corporation
Law of the State of Delaware and to possess and employ all powers and privileges
now or hereafter granted or available under the laws of the State of Delaware to
such corporations.
IV. AUTHORIZED CAPITAL.
A. CAPITAL STOCK. The total number of shares of all classes of stock which
the Corporation shall have the authority to issue is 130,000 of which (a) 10,000
shares shall be Class A Common Stock, par value $.001 per share (the "Class A
Common"), (b) 100,000 shares shall be Class B Common Stock, par value $.001 per
share (the "Class B Common"), and (c) 20,000 shares shall be Preferred Stock,
par value $.001 per share (the "Preferred Stock").
B CLASS A COMMON. The powers, designations, preferences and relative
participating, optional or other special rights and the qualifications,
limitations and restrictions of the Class A Common are as follows:
1. VOTING RIGHTS. Except as otherwise required by law, and subject to
the voting rights of the Class B Common or such voting rights which may be
granted to any other class of common stock or any series of preferred stock,
each holder of Class A Common shall be entitled the number of votes per share
for each of the Class A Common standing in each holder's name on the records of
the Corporation on each matter submitted to a vote of the stockholders as
determined in accordance with the following formula:
VS = (AP (TVS - TAS) ) / ( (1-AP) TAS)
WHERE:
VS = The total number of votes per share of outstanding Class A
Common;
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TVS = The total number of outstanding shares of the
Corporation's Class A and Class B Common;
AP = 17.5% or, if the IRR Test is met, 20%, as reduced by the
percentage of the outstanding Class A Common converted to
Class B Common (if any) as set forth in paragraph IV(B)(4)
hereto; and
TAS = The total number of outstanding shares of the
Corporation's Class A Common.
The holders of the Class A Common and Class B Common shall vote together as one
class on all matters which require a vote of the Corporation's stockholders;
provided, however, that the Class A Common shall vote as a single class with
respect to (i) any amendment to this Certificate of Incorporation as provided in
paragraph IV(H) hereof or (ii) any merger or consolidation of the Corporation
with or into another entity or entities, or any recapitalization or
reorganization, in which shares of Class A Common would receive or be exchanged
for consideration different on a per share basis (assuming conversion of all of
Class A Common into the percentage of total outstanding Class B Common equal to
AP) than the consideration received with respect to or in exchange for the
shares of Class B Common or would otherwise be treated differently from shares
of Class B Common (assuming such conversion) in connection with such
transaction.
2. DIVIDENDS. Subject to the preference rights of the holders of
Preferred Stock, the holders of Class A Common shall be entitled to receive
when, as, and if declared by the Board of Directors of the Corporation, out of
funds legally available therefor, the percentage of all dividends payable in
cash, stock, or otherwise equal to AP. Such dividends shall be divided pro rata
among all the shares of Class A Common outstanding on the record date for such
dividend.
3. DISTRIBUTIONS UPON LIQUIDATION. Upon any liquidation, dissolution,
or winding up of the Corporation, whether voluntary or involuntary, and after
any preferred stock, bonds, debentures, or other obligations of the Corporation
shall have been paid in full the amounts to which they shall be entitled (if
any), or a sum sufficient for such payment in full shall have been set aside,
the percentage of the remaining net assets of the Corporation equal to AP shall
be distributed pro rata to the holders of the Class A Common in accordance with
their respective rights and interests and the percentage of the remaining assets
equal to 1-AP shall be delivered to the holders of the class B Common, to the
exclusion of holders of any preferred stock, bonds, debentures, or other
obligations of the Corporation.
4. CONVERSION. Class A Common shall be convertible at the option of
each holder to Class B Common at the rate of VS Shares of Class B Common for
each share of Class A Common. Upon each such conversion, AP shall be reduced by
the percentage of the outstanding Class A Common so converted.
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C. CLASS B COMMON. The powers, designations, preferences and relative
participating, optional or other special rights and the qualifications,
limitations and restrictions of the Class B Common are as follows:
1. VOTING RIGHTS. Except as otherwise required by law, and subject to
the voting rights of the Class A Common or such voting rights as may be granted
to any other class of Common Stock or any series of preferred stock, each holder
of Class B Common shall be entitled to one vote per share for each share of the
Class B Common standing in each holder's name on the records of the Corporation
on each matter submitted to a vote of the stockholders. The holders of the Class
A Common and Class B Common shall vote together as one class on all matters
which require a vote of the Corporation's stockholders; provided, however, that
the Class B Common shall vote as a single class with respect to (i) any
amendment to this Certificate of Incorporation as provided in paragraph IV(H)
hereof or (ii) any merger or consolidation of the Corporation with or into
another entity or entities, or any recapitalization or reorganization, in which
shares of Class B Common would receive or be exchanged for consideration
different on a per share basis than the consideration received with respect to
or in exchange for the shares of Class A Common (assuming conversion of the
Class A common into the percentage of the outstanding shares of total Class B
Common equal to AP) or would otherwise be treated differently from shares of the
Class A Common (assuming such conversion) in connection with such transaction.
2. DIVIDENDS. Subject to the preference rights of the holders of
Preferred Stock, holders of Class B Common shall be entitled to receive when,
as, and if declared by the Board of Directors of the Corporation, out of funds
legally available therefor, the percentage of all dividends payable in cash,
stock, or otherwise equal to 1-AP. Such dividends shall be divided pro rata
among all the shares of Class B Common outstanding on the record date for such
dividend.
3. DISTRIBUTIONS UPON LIQUIDATION. Upon any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, and after any
preferred stock, bonds, debentures, or other obligations of the Corporation
shall have been paid in full the amounts to which they shall be entitled (if
any) , or a sum sufficient for such payment in full shall have been set aside,
the holders of the Class B Common shall be distributed a percentage of the
remaining assets equal to 1-AP, such assets to be distributed pro rata to such
holders of Class B Common in accordance with their respective rights and
interests, and the percentage of the remaining assets equal to AP shall be
delivered to the holders of Class A Common, to the exclusion of the holders of
any preferred stock, bonds, debentures, or other obligations of the Corporation.
4. PREFERRED STOCK. The powers, designations, preferences and relative
participating, optional or other special rights and the qualifications,
limitations and restrictions of the Preferred Stock are as follows:
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1. DIVIDENDS.
A. GENERAL OBLIGATION. The holders of the Preferred Stock
shall be entitled to receive when, as, and if declared by the Board of Directors
of the Corporation, out of funds legally available therefor, preferential
dividends on each share of the Preferred Stock (a "Share") at the rate of 12%
per annum of the Liquidation Preference thereof from and including the date of
issuance of such Share to and including the date on which the Liquidation
Preference of such Share is paid (the "Dividend Preference"). Such dividends
will accrue cumulatively on an annual basis whether or not they have been
declared and whether or not there are profits, surplus or other funds of the
Corporation legally available for the payment of dividends. Such preferential
dividends shall be payable upon the liquidation, dissolution and winding up of
the Corporation in each case when and as declared by the Board of Directors and
to the extent permitted by Delaware law. The date on which the Corporation
initially issues any Share will be deemed to be its "date of issuance"
regardless of the number of times transfer of such Share is made on the stock
records maintained by or for the Corporation and regardless of the number of
certificates which may be issued to evidence such Share. No dividends in cash or
property (other than dividends payable to the holders of the Class A Common or
Class B Common in shares of Class A Common or Class B Common) will be paid on
Junior Securities unless all of the Dividend Preference accrued on the Preferred
Stock have been paid. Following satisfaction of the Dividend Preference, the
holders of the Preferred Stock shall be entitled to no additional dividends.
B. DIVIDEND REFERENCE DATES. To the extent not paid on
each December 31 (the "Dividend Reference Date"), beginning on December 31,
1993, all of the Dividend Preference dividends which have accrued on each Share
outstanding during the twelve-month period (or other period in the case of the
initial Dividend Reference Date) ending upon each such Dividend Reference Date
will be added to the Liquidation Preference of such Share and will remain part
thereof until such dividends are paid.
C. DISTRIBUTION OF PARTIAL DIVIDEND PAYMENTS. If at any
time the Corporation pays to the holders of Preferred Stock less than the total
amount of the Dividend Preference dividends then accrued with respect to the
Preferred Stock, such payment will be distributed ratably among the holders of
such Preferred Stock based upon the aggregate accrued but unpaid Dividend
Preference on the shares of Preferred Stock hold by each such holder.
2. VOTING RIGHTS. Except as otherwise required by law, the Preferred
Stock shall have no voting rights.
3. LIQUIDATION. Upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of Preferred Stock
will be entitled to be paid, before any distribution or payment is made upon any
Junior Securities, an amount in cash equal to the aggregate Liquidation
Preference of all Shares outstanding. If upon any such
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liquidation, dissolution or winding up of the Corporation, the Corporation's
assets to be distributed among the holders of the Preferred Stock are
insufficient to permit payment to such holders of the Liquidation Preference
amount which they are entitled to be paid, then the entire assets to be
distributed to Preferred Stock will be distributed ratably among such holders
based upon the aggregate Liquidation Preference (plus declared and unpaid
dividends) of the Preferred Stock held by each of such holders. Neither the
consolidation or merger of the Corporation into or with any other corporation or
corporations, nor the sale or transfer by the Corporation of all or any part of
its assets, nor the reduction of the Capital Stock of the Corporation, will be
deemed to be a liquidation, dissolution or winding up of the Corporation within
the meaning of this paragraph IV(D) (3).
E. REGISTRATION OF TRANSFER The Corporation will keep at its principal
office a register for the registration of each of its classes of Capital Stock.
Upon the surrender of any certificate representing any class of stock at such
place, the Corporation will, at the request of the record holder of such
certificate, execute and deliver (at the Corporation's expense), a new
certificate or certificates in exchange therefor representing in the aggregate
the number of shares represented by the surrendered certificate. Each such new
certificate will be registered in such name and will represent such number of
shares as is requested by the holder of the surrendered certificate and will be
substantially identical in form to the surrendered certificate, and, with
respect to the Preferred Stock, dividends will continue to accrue on Preferred
Stock represented by such new certificate from the date to which dividends have
previously been paid on such Preferred Stock represented by the surrendered
Certificate.
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 shares of any class of Capital 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 an institutional investor its
own agreement will be satisfactory), or, in the case of any such mutilation upon
surrender of such certificate, the Corporation will (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, and, with respect to the Preferred Stock, dividends will
continue to accrue on the Preferred Stock represented by such new certificate
from the date on which dividends have previously been paid on such lost, stolen,
destroyed or mutilated certificate.
G. DEFINITIONS.
"AP" shall have the meaning set forth in Paragraph IV (B) (1) hereof.
"Capital Stock" shall mean all shares of all classes of the Corporation's
capital stock, and any Stock into which such Capital Stock may hereafter be
changed.
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"Common Stock" shall mean all shares of all classes of the Corporation's
Common Stock, par value $.001 per share, and any Stock into which such Stock may
hereafter be changed.
"Corporation" shall mean SCG, Inc., a Delaware corporation, and all
successor corporations thereof.
"Initial Public Offering" shall mean the first public, offering of the
Corporation's Common Stock, which offering is effected pursuant to a
registration statement filed with the Securities and Exchange Commission under
the Securities Act.
"The IRR Test" shall be met on the first day, if ever, that the Rate is 25%
or more. The Rate is the annual interest rate which, when used to calculate the
net present value of the Cash Inflows and the Cash Outflows as of the date of
determination, causes, such net amount to equal zero. As used in this
definition, "Cash Inflows" shall include, without duplication, (i) all cash
payments received by PF1 on or prior to the date of determination with respect
to Capital Stock acquired with PF1's initial investment in the Corporation (the
"PF1 Investment"), whether such payments are received from the Corporation or
any third party and whether such payments are received as interest, dividends,
proceeds with respect to sale or redemption of such securities, upon a
liquidation of the Corporation or otherwise, (ii) the fair market value of all
noncash consideration received by PF1 in connection with sale of any Capital
Stock acquired by PF1 pursuant to the PF1 Investment, and (iii) if Market
Liquidity exists on the date of determination, the Public Market Price on the
date of determination of any shares of Capital Stock acquired (directly or
indirectly) with the PF1 Investment and held by PF1 on the date of
determination. As used in this definition, "Cash Outflows" shall include the sum
of all cash payments and investments made by PF1 to and in the Corporation to
purchase Capital Stock acquired with the PF1 Investment. For this purpose, PF1
shall be deemed to have invested $1,412,500 on the date that Preferred Stock is
first issued to it. For purposes of the net present value calculations set forth
herein, the dates of each payment or investment specified above will be deemed
to have occurred as of the beginning of the fiscal month during which such
payment or investment is received or made.
"Junior Securities" means all of the Corporation's equity securities other
than the Preferred Stock.
"Liquidation Preference" of any Share of Preferred Stock as of any
particular date will be equal to $1000.00 plus any unpaid Dividend Preference
dividends on such Share added to the Liquidation Preference of such Share on any
Dividend Preference Date and not thereafter paid; and, in the event of any
liquidation, dissolution or winding up of the Corporation or the redemption of
such Share, unpaid dividends on such Share, regardless of whether they have
become payable, will be added to the Liquidation Preference of such Share on the
payment date in any liquidation, dissolution or winding up, or on the Redemption
Date, as the case may be, accrued to the close of business on such payment date
or Redemption Date.
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"Market Liquidity" shall be deemed to exist after the earlier of the date
(i) which is the later of (A) 90 days following the effective date of an Initial
Public Offering or (B) the date on which any lock-up agreement required by the
Company's underwriters with respect to PF1's shares of Common Stock expires
following such Initial Public Offering or (ii) PF1 has sold more than 50% of its
holdings of the Corporation's Common Stock held immediately prior to the Initial
Public Offering (based on Capital Stock acquired with its initial investment in
the Corporation), if, and so long as, a Public Market exists for the Common
Stock.
"Person" means an individual, a partnership, a corporation, an association,
a joint stock company, a limited liability company, a trust, a joint venture, an
unincorporated organization and a governmental entity or any department, agency
or political subdivision thereof.
"PF1" shall mean Pennsylvania Fund #1, a Pennsylvania limited partnership,
or any successor or Affiliate thereof. For purposes of this definition,
"Affiliate" shall mean any Person directly or indirectly controlling, controlled
by or under common control with, PF1.
"Property" shall mean any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Public Market" for the Common Stock of the Corporation shall mean such
Common Stock is traded on a national exchange, the NASDAQ National Market System
or any registered interdealer quotation system involving at least three
registered market makers.
"Public Market Price" shall mean the weekly average trading price of the
Common Stock in the Public Market over the ten trading days immediately
preceding the date upon which the determination of whether a "Public Market"
exists is made.
"Sale" shall mean the occurrence of either (i) the sale of all, or
substantially all, of the consolidated assets of the Corporation or outstanding
capital stock of the Corporation by means of a sale or liquidation, or (ii) a
merger or reorganization in which the Corporation is not the surviving
corporation (unless more than 50% of the capital stock of such corporation is
held by Persons who are stockholders of the Corporation as of the date hereof)
"Securities Act" means the Securities Act of 1933, as amended, or any
similar law then in force.
"Subsidiary" means any corporation of which the shares of stock having a
majority of the general voting power in electing the Board of Directors are, at
the time as of which any determination is being made, owned by the Corporation
either directly or indirectly through Subsidiaries.
H. AMENDMENT AND WAIVER. No amendment to or modification of this
Certificate of Incorporation, nor any waiver of any right of the holders of any
class of the Corporation's
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Capital Stock hereunder, will be binding or effective without the prior written
consent of the holders of 70% of the shares of each class of the Corporation's
Capital Stock outstanding at the time such action is taken.
I. NOTICES. Except as otherwise expressly provided, all notices referred to
herein will be in writing and will be sent by registered or certified mail,
return receipt requested, postage prepaid, or by telex, facsimile transmission,
or receipted air courier, and will be deemed to have been given when so sent (i)
to the Corporation, at its principal executive offices and (ii) to any
stockholder, at such holder's address as it appears in the stock records of the
Corporation (unless otherwise indicated by any such holder)
V. DIRECTORS
A. NUMBER. The number of directors of the Corporation shall be fixed from
time to time in the manner provided in the by-laws and may be increased or
decreased from time to time in the manner provided in the by-laws.
B. ELECTION. Election of directors need not be by written ballot except and
to the extent provided in the by-laws of the Corporation.
VI. BY-LAWS. In furtherance of and not in limitation of the powers conferred by
statute and subject to the provisions of this Certificate of Incorporation, the
Board of Directors of the Corporation is expressly authorized to make, alter, or
repeal the by-laws of the Corporation, but such authorization shall not divest
the stockholders of the power, nor limit their power, to adopt, amend, or repeal
by-laws.
VII. INDEMNIFICATION. The Corporation shall indemnify, to the fullest extent now
or hereafter permitted by law, each director or officer of the Corporation or
its Subsidiaries who is made a party or is threatened to be made a party to any
threatened, pending, or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was an authorized representative of the Corporation, against all expenses
(including attorney's fees and disbursements) , judgments, fines (including
excise taxes and penalties) and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding.
Expenses (including attorneys' fees) incurred in defending an action, suit, or
proceeding may be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding, to the fullest extent and under the
circumstances permitted by Delaware law. The Corporation may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee, fiduciary, or agent of the Corporation or its Subsidiaries against any
liability asserted against and incurred by such person in any such capacity or
arising out of such person's position, whether or not the Corporation would have
the power to indemnify against such liability under the provisions of this
Article V11. The rights conferred by this Article shall not be exclusive of any
other rights to which those indemnified may be entitled under this Certificate
of Incorporation, any by-law, agreement, vote of
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stockholders or disinterested directors, statute, or otherwise and shall inure
to the benefit of their heirs, executors, and administrators. The provisions of
this Article shall not be deemed to preclude the Corporation from indemnifying
other persons from similar or other expenses and liabilities as the Board of
Directors or the stockholders may determine in a specific instance or by
resolution of general application. Any repeal or modification of this Article by
the stockholders of the Corporation shall not adversely affect any right or
protection existing at the time of such repeal or modification to which any
person may be entitled under this Article. For the purposes of this Article, the
term "authorized representative" shall mean a director or officer of the
Corporation or of any subsidiary of the Corporation or person who is or was, at
the request of the Corporation, serving another corporation, partnership, joint
venture, trust, association, or other entity as a director, officer, or partner,
or in any position of similar managerial or fiduciary position, or as an
employee or agent.
VIII. LIABILITY. 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, provided, however, that this provision shall not limit
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) for
violations of Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived any improper personal benefit.
If the Delaware General Corporation Law hereafter is amended to further
eliminate or limit the liability of a director, then a director of the
Corporation, in addition to the circumstances in which a director is not
personally liable as set forth in the preceding sentence, shall not be liable to
the fullest extent permitted by the amended Delaware General Corporation Law.
Any repeal or modification of this Article VIII 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.
IX. TRANSACTIONS WITH DIRECTORS, ETC. The Corporation shall have authority, to
the fullest extent now or hereafter permitted by the General Corporation Law of
the State of Delaware, or by any other applicable law, to enter into any
contract or transaction with any corporation, partnership, joint venture, trust,
association, or other entity in which one or more of its directors or officers
are directors or officers, or have a financial interest, notwithstanding such
relationships and notwithstanding the fact that the director or officer is
present at or participates in the meeting of the board of directors or committee
thereof which authorizes the contract or transactions
X. COMPROMISE OR ARRANGEMENT. 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
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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
of the stockholders or class of stockholders of this Corporation, as this case
may be, agree to any compromise or arrangement and to any reorganization of this
Corporation as a 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.
XI. SECTION 203. The Corporation shall not be subject to the provisions of
Section 203 of the Delaware General Corporation Law.
XXI. INCORPORATOR. The name and address of the incorporator are:
John C. Rodney
1500 Oliver Building
Pittsburgh, PA 15222
I, the undersigned, the sole incorporator of the Corporation, have
accordingly hereunto set my hand.
Executed this 3rd day of December, 1993.
/s/ John C. Rodney
-----------------------
John C. Rodney
Incorporator
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