Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
JFL-EEC MERGER SUB CO.
The undersigned, Keith Oster, Secretary of JFL-EEC Merger Sub Co., a
corporation existing under the laws of the State of Delaware (the
"Corporation"), does hereby certify as follows:
1. The present name of the Corporation is JFL-EEC Merger Sub Co. The
name under which the Corporation was originally incorporated is JFL-EEC
Merger Sub Co. The original Certificate of Incorporation was filed with the
Secretary of State of the State of Delaware on December 29, 1997.
2. In accordance with Sections 242 and 245 of the General Corporation
Law of the State of Delaware, the Corporation duly adopted this Amended and
Restated Certificate of Incorporation pursuant to resolutions of its Board of
Directors and its stockholders.
3. The duly adopted Amended and Restated Certificate of Incorporation
is as follows:
ARTICLE I
Name
SECTION 1.01 The name of the Corporation incorporated pursuant to
Delaware General Corporation Law is JFL-EEC Merger Sub Co. (the
"Corporation").
ARTICLE II
Registered Office; Registered Agent
SECTION 2.01 The address of the Corporation's registered office in the
State of Delaware is to be located at 9 East Loockerman Street, City of
Dover, County of Kent. The name of its registered agent at such address is
National Registered Agents, Inc.
ARTICLE III
Purpose of the Corporation
SECTION 3.01 The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware.
ARTICLE IV
Capital; Shareholders
SECTION 4.01 The total number of shares of stock which the Corporation
shall have authority to issue is five million fifty thousand (5,050,000)
shares of capital stock, consisting of:
(A) Five million shares (5,000,000) of common stock, par value $0.01
per share, ("Common Stock"), entitled to vote at any annual or special
meeting of the stockholders of the Corporation. Each share of Common Stock
shall have one (1) vote on any and all matters that may come before the
stockholders of the Corporation at any annual or special meeting.
(B) Fifty thousand (50,000) shares of preferred stock, par value $0.01
per share ("Preferred Stock"). The Board of Directors is authorized, subject
to limitations prescribed by law, to provide for the issuance of the shares
of Preferred Stock in one or more series, and by filing a certificate
pursuant to the applicable law of the State of Delaware, to establish from
time to time the number of shares to be included in each such series, and to
fix the designation, powers, preferences and rights of the shares of each
such series and the qualifications, limitations or restrictions thereof. The
number of shares of authorized shares of Preferred Stock may be increased or
decreased (but not below the number of shares thereof then outstanding) by
the affirmative vote of the holders of a majority of the Common Stock,
without a vote of the holders of the Preferred Stock, or of any series
thereof, unless a vote of any such holders is required pursuant to the
certificate or certificates establishing the series of Preferred Stock.
The authority of the Board of Directors with respect to each such series
shall include, but not be limited to, determination of the following:
(1) The number of shares constituting that series and the distinctive
designation of that series;
(2) The dividend rate on the shares of that series, whether dividends
shall be cumulative, and, if so, from which date or dates, and the relative
rights of priority, if any, of payment of dividends on shares of that
series;
(3) Whether that series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting rights;
(4) Whether that series shall have conversion privileges, and, if so,
the terms and conditions of such conversion, including provisions for
adjustment of the conversion rate in such events as the Board of Directors
shall determine;
(5) Whether or not the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption, including, the
date or dates upon or after which they shall be redeemable, and the amount
per share payable in case of redemption, which amount may vary under
different conditions and at different redemption dates;
(6) Whether that series shall have a sinking fund for the redemption
or purchase of shares of that series, and, if so, the terms and amount of
such sinking fund;
(7) The rights of the shares of that series in the event of a
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, and the relative rights of priority, if any, of payment of
shares of that series;
(8) Any other relative rights, preferences and limitations of that
series.
2
ARTICLE V
Board of Directors
SECTION 5.01 The number of directors of the Corporation shall be fixed
and may be altered from time to time as provided in the Bylaws of the
Corporation. Election of directors need not be by written ballot.
ARTICLE VI
Bylaws
SECTION 6.01 The Board of Directors may adopt, amend or repeal the
Bylaws of this Corporation.
ARTICLE VII
Limitation on Liability
SECTION 7.01 A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, except for liability (i) for any breach of
the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts of omissions not in good faith or which involve intentional
misconduct or knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit. If the Delaware General
Corporation Law is hereafter amended to authorize the further elimination or
limitation of the liability of directors, then the liability of the directors
of the Corporation, in addition to the limitation on personal liability
provided herein, shall be limited to the fullest extent permitted by the
amended Delaware General Corporation Law. Any appeal or modification of this
paragraph by the stockholders of the Corporation shall be prospective only,
and shall not adversely affect any limitation on the personal liability of a
director of the Corporation at the time of such repeal or modification.
ARTICLE VIII
Indemnification
SECTION 8.01 The Corporation shall indemnify all persons to the extent
and in the manner permitted by the provisions of the laws of the State of
Delaware, as amended from time to time, subject to any permissible expansion
or limitation of such indemnification as may be set forth in Bylaws of the
Corporation or any stockholder's or directors' resolution or by contract.
The provisions of this Article shall also be applicable to the personal
representative and estate of the persons who may be indemnified pursuant to
the laws of the State of Delaware.
3
This Amended and Restated Certificate of Incorporation is executed this
26th day of January 1998 and shall be effective at 5:00 p.m. Eastern Standard
Time on the date of filing with the Secretary of State of Delaware.
/s/ Keith Oster
---------------------------------------
Keith Oster, Secretary
4