Exhibit 3.3
CERTIFICATE OF INCORPORATION
OF
ATHENS BRICK COMPANY
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First. The name of this corporation is ATHENS BRICK COMPANY.
Second. Its principal office in the State of Delaware is to be located
at 100 West Tenth Street, in the City of Wilmington, County of New Castle, and
its resident agent is The Corporation Trust Company, 100 West Tenth Street,
Wilmington, Delaware.
Third. The nature of the business of the corporation and the objects
and purposes to be transacted, promoted and carried on are as follows:
1. To transact any manufacturing or mining business and to purchase
and sell goods, wares and merchandise used for such business; to engage in the
business of producing, mining, manufacturing, storing, transporting, buying and
selling of building materials of all kinds; including any and all raw materials
used in the production or manufacture thereof; to contract for the erection,
construction or repair of any building, structure or improvement, public or
private, and to erect, construct or repair same or any part thereof, and to
acquire, own, and prepare for use, any materials for such purposes.
2. To purchase or otherwise acquire and to hold, own, mortgage, or
otherwise, lien, pledge, lease, sell, assign, exchange, transfer or in any
manner dispose
of, and to invest, deal and trade in and with goods, wares, merchandise and
personal property of any and every class and description within or without the
State of Delaware.
3. To purchase, take, own, hold, deal in, mortgage or otherwise lien,
and to lease, sell, exchange, convey, transfer, or in any manner whatever,
dispose of real property, within or without the State of Delaware.
4. To acquire by purchase, subscription, or otherwise, and to own,
hold for investment or otherwise, and to use, sell, assign, transfer, mortgage,
pledge, exchange, or otherwise dispose of stock, bonds, debentures, notes,
scrip, securities, evidences of indebtedness, contracts or obligations of any
corporations, associations or trust estates, domestic or foreign, or of any firm
or individual, or of the United States, or any state, territory, or dependency
of the United States, or any foreign country, or any municipality, or local
authority, within or without the United States, and also to issue in exchange
therefor, stocks, bonds or other securities or evidences of indebtedness of the
corporation, and while the owner or holder of any such property, to receive,
collect and dispose of the interest, dividends and income on or from such
property, and to possess and exercise in respect thereto, all of the rights,
powers and privileges of ownership, including all voting power thereon.
5. To aid in any manner, any corporation, association or trust estate,
domestic or foreign, or any firm or individual, any shares of stock in which, or
any bonds, debentures, notes, securities, evidences of indebtedness, contracts,
or obligations of which are held by or for it, directly or indirectly, or in
which or in the welfare of which it shall have any interest, and to do any acts
designed to
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protect, preserve, improve, or enhance the value of any property at any time
held or controlled by it, or in which it may be at any time interested, directly
or indirectly, or through other corporations, or otherwise; and to organize or
promote or facilitate the organization of subsidiary companies.
6. To acquire the good will, rights and property, and to undertake the
whole, or any part of the assets and liabilities of any firm, person,
association or corporation; to pay for the same in cash, the stock of this
company, bonds, or otherwise; to hold or in any manner to dispose of the whole
or any part of the property so purchased; to conduct in any lawful manner the
whole or any part of any business so acquired; and to exercise all the powers
necessary or convenient in and about the conduct and management of such
business.
7. To borrow money for any of the purposes of the corporation, and to
draw, make, accept, endorse, discount, execute, issue, sell, pledge, or
otherwise dispose of promissory notes, drafts, bills of exchange, warrants,
bonds, debentures and other negotiable or non-negotiable, transferable or
non-transferable instruments and evidences of indebtedness, and to secure the
payment thereof and the interest thereon by mortgage or pledge, conveyance or
assignment, in trust of the whole or any part of the property of the corporation
at the time owned, or thereafter acquired.
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8. To guarantee the payment of dividends upon any capital stock, and
to endorse or otherwise guarantee the principal or interest or both of any
bonds, debentures, notes, scrip, or other obligations, or evidences of
indebtedness, or the performance of any contract or obligation of any other
corporation, trust estate or association, domestic or foreign, or of any firm
or individual in which it may have a lawful interest, and in so far and to the
extent that such guaranty may be permitted by law.
9. To own, purchase, lease, or otherwise acquire lands and/or sand,
gravel, clay, shale, stone, dirt, timber and other substances, mineral and
timber rights in land, and to produce therefrom coal, oil, gas, minerals and
other substances, to develop such lands or rights in lands by operating mines
and other facilities thereon, and to market and sell products therefrom.
10. To purchase or otherwise acquire, apply for, register, hold, use,
sell, or in any manner dispose of and to grant licenses or other rights in and
in any manner deal with patents, inventions, improvements, processes, formulas,
trade marks, trade names, rights and licenses secured under letters, patents,
copyrights, or otherwise.
11. To purchase it otherwise acquire shares of its own stock and
options to purchase shares of its own stock (so far as may be permitted by
law), and its bonds,debentures, notes, scrip, or other securities, or evidences
of indebtedness, and to cancel or to hold, transfer, or reissue the same to such
persons, firms, corporations, or associations, and upon such terms and
conditions as the Board of
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Directors may, in its discretion, determine, without offering any thereof on
the same terms, or on any terms, to the stockholders then of record, or to
any class of stockholders.
12. To acquire, buy, hold, own, sell, lease, exchange, trade and
otherwise deal in any and all kinds of manufactured articles, raw materials,
minerals, oil, gases, liquids, animal and plant products, and any other goods,
wares and merchandise, articles, substances and things whatsoever, and generally
to carry on the business of storekeepers, merchants, factors, traders,
importers and exporters.
13. To manufacture, improve, repair and work upon minerals, metals,
wood, chemicals, animal and plant products or any other substances, or any of
the products and by-products thereof, or any article or thing into the
manufacture of which any of the foregoing may enter.
14. To do any and all things necessary and proper for the
accomplishment of the objects herein enumerated or necessary or incidental to
the protection and benefit of the corporation, and in general to carry on any
lawful business necessary or incidental to the attainment of the purposes of the
corporation, whether such business is similar in nature to the objects and
powers hereinabove set forth or otherwise.
15. To do any and all of the things herein set forth as principal,
agent, contractor, trustee, or otherwise, alone or in company with others.
16. To have one or more offices and to conduct any or all of its
operations and business and to promote its objects, within or without the State
of Delaware, without restriction as to p1ace or amount.
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The objects and purposes specified hereinabove shall be regarded as
independent objects and purposes, and except where otherwise expressed, shall be
in no way limited, nor restricted by reference to, or reference from the terms
of any other clause or paragraph of this Certificate of Incorporation.
The foregoing shall be construed both as objects and powers and the
enumeration thereof shall not be held to limit or restrict in any manner the
general powers conferred on this corporation by the laws of the State of
Delaware.
Fourth. The total number of shares of stock which this corporation is
authorized to issue is One Thousand (1,000) shares of common stock, of the par
value of One Dollar ($1.00) each, amounting to One Thousand Dollars ($1,000.00).
No holder of any stock of the corporation shall be entitled as of
right to purchase or subscribe for any part of stock of the corporation,
authorized by this certificate or of any additional stock of any class to be
issued by reason of any increase of the authorized stock of the corporation, or
of any bonds, certificates of indebtedness, debentures or other securities
convertible into stock of the corporation, but any stock authorized by this
certificate or any such additional authorized issue of new stock or of
securities convertible into stock may be issued and disposed of by the Board of
Directors to such persons, firms, corporations or associations for such
consideration and upon such terms and in such manner as the Board of Directors
may in their discretion determine without offering any thereof on the same terms
or on any terms to the stockholders then of record or to any class of
stockholders.
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The corporation shall be entitled to treat the person in whose name
any share, right or option is registered as the owner thereof for all purposes
and shall not be bound to recognize any equitable or other claim to or interest
in such share, right or option on the part of any other person, whether or not
the corporation shall have notice thereof, save as may be expressly provided by
the laws of the State of Delaware.
A director shall be fully protected in relying in good faith upon the
books of account of the corporation or statements prepared by any of its
officials as to the value and amount of the assets, liabilities and/or net
profits of the corporation, or any other facts pertinent to the existence and
amount of surplus or other funds from which dividends might properly be declared
and paid.
Without action by the stockholders, the shares of stock may be issued
by the corporation from time to time for such consideration as may be fixed from
time to time by the Board of Directors thereof, and any and all such shares so
issued, the full consideration for which has been paid or delivered, shall be
deemed fully paid stock and not liable to any further call or assessment
thereon, and the holder of such shares shall not be liable for any further call
or assessment thereon, or for any other payment thereon.
Fifth. The minimum amount of capital with which it will commence
business is One Thousand and No/1OO Dollars ($1,000.00).
Sixth. The name and place of residence of each of the incorporators
are as follows:
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NAME RESIDENCE
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B. J. Consono Wilmington, Delaware
F. J. Obara, Jr. Wilmington, Delaware
A. D. Grier Wilmington, Delaware
Seventh. This corporation is to have perpetual existence.
Eighth. The private property of the stockholders shall not be subject
to the payment of corporate debts to any extent whatever.
Ninth. All corporate powers shall be exercised by the Board of
Directors, except as otherwise provided by statute or by this Certificate of
Incorporation.
The Directors of the corporation shall be elected by the stockholders
of the corporation at the time and in the manner specified in the By-laws of the
corporation; such election of directors need not be by ballot.
Tenth. In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware, the Board of Directors is expressly
authorized:
1. To fix, determine and vary from time to time the amount to be
maintained as surplus and the amount or amounts to be set apart as working
capital.
2. To set apart out of any of the funds of the corporation available
for dividends, a reserve or reserves for any proper purposes and/or to abolish
any such reserve in the manner in which it was created.
3. To make, amend, alter, change, add to, or repeal By-laws for the
corporation without any action on the part of the stockholders. The By-laws made
by the directors may be amended, altered, changed, added to or repealed by the
stockholders.
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4. To authorize and cause to be executed mortgages and liens without
limit as to amount upon the real and personal property of the corporation,
including after-acquired property.
5. From time to time to determine whether and to what extent and at
what times and places and under what conditions and regulations the books and
accounts of this corporation or any of them other than the stock ledger, shall
be open to the inspection of the stockholders, and no stockholder shall have any
right to inspect any account or book or document of the corporation, except as
conferred by law or authorized by resolution of the directors or of the
stockholders.
6. To authorize the payment of compensation to the directors for
services to the corporation, including fees for attendance at meetings of the
Board of Directors, of the Executive Committee, and of other Committees, and to
determine the amount of such compensation and fees.
7. To sell, lease or exchange all of its property and assets,
including its good will and its corporate franchises upon such terms and
conditions and for such consideration which may be in whole or in part shares of
stock in and/or other securities of any other corporation or corporations when
and as authorized by the affirmative vote of the holders of a majority of the
stock issued and outstanding having voting power given at a stockholders'
meeting duly called for that purpose or when authorized by the written consent
of the holders of a majority of the voting stock issued and outstanding.
8. This corporation may in its By-laws confer powers additional to the
foregoing upon the directors, in addition to the powers and authorities
expressly conferred upon them by law.
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Eleventh. A director of the corporation shall not be disqualified by
his office from dealing or contracting with the corporation, either as a vendor,
purchaser or otherwise, nor shall any transaction or contract of the corporation
be void or voidable by reason of the fact that any director or any firm of which
any director is a member or any corporation of which any director is a
shareholder, officer or director is in any way interested in such transaction or
contract, provided that such transaction or contract is or shall be authorized,
ratified or approved either (1) by a vote of a majority of a quorum of the Board
of Directors or of the Executive Committee without counting in such majority or
quorum any director so interested, or member of a firm so interested, or a
shareholder, officer or director of a corporation so interested, or (2) by the
written consent or by the vote at any stockholders' meeting of the holders of
record of a majority of all the outstanding shares of stock of the corporation
entitled to vote, nor shall any director be liable to account to the corporation
for any profits realized by or from or through any such transaction or contract
of the corporation authorized, ratified or approved as aforesaid by reason of
the fact that he or any firm of which he is a member, or any corporation of
which he is a shareholder, officer or director was interested in such
transaction or contract. Nothing herein contained shall create liability in the
events above described or prevent the authorization, ratification or approval of
such transactions or contracts in any other manner permitted by law.
Any contract, transaction or act of the corporation or of the Board of
Directors which shall be ratified by a quorum of the stockholders entitled to
vote at any annual
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meeting or at any special meeting called for that purpose shall be as valid and
binding as though ratified by every stockholder of the corporation; provided,
however, that any failure of the stockholders to approve or ratify such
contracts, transaction or act when and if submitted, 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.
It is hereby expressly provided that the directors and officers and
former directors and officers of the corporation shall be fully protected and
indemnified against any personal liability to others that may arise by reason of
any of their actions taken in good faith on behalf or for the benefit of the
corporation to the full extent permitted by the laws of the State of Delaware.
Twelfth. Upon the written consent or vote of the holders of a majority
in aggregate number of the shares of stock of the corporation then outstanding
and entitled to vote, every statute of the State of Delaware (a) increasing,
diminishing or in any way affecting the rights, powers, or privileges of
stockholders of corporations organized under the general laws of said State, or
(b) giving effect to the action taken by any part, less than all, of the
stockholders of any such corporation, shall be binding upon the corporation and
every stockholder thereof to the same extent as if such statute had been in
force at the date of the making, filing and recording of this Certificate of
Incorporation of the corporation.
Thirteenth. If the By-laws so provide, the stockholders, and
directors shall have power to hold their meetings, to have an office or offices
and to keep the books of
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this corporation (subject to the provisions of the statute), outside the State
of Delawars, at such places as may from time to time be designated by the
By-laws or by resolution of the directors.
Fourteenth. This 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 law, and all rights conferred on
officers, directors and stockholders herein are granted subject to this
reservation.
We, the undersigned, being all of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make and file this Certificate of
Incorporation hereby declaring and certifying that the facts herein stated are
true, and accordingly hereunto have set our respective hands and seals this 9th
day of November, A. D. 1966.
/s/ Illegible [SEAL]
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/s/ Illegible [SEAL]
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/s/ Illegible [SEAL]
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THE STATE OF DELAWARE )
) 88.
COUNTY OF NEW CASTLE )
BE IT REMEMBERED that on this 9th day of November, 1966, personally
appeared before me the subscriber, a Notary Public for the State and County
aforesaid, B. J. Consono, F. J. Obara, Jr. and A. D. Grier, all the parties to
the foregoing Certificate of Incorporation, known to me personally to be such
and severally acknowledged the said Certificate to be their act and deed
respectively, and that the facts therein stated were truly set forth.
GIVEN UNDER MY HAND AND SEAL OF OFFICE the day and year aforesaid.
/s/ Illegible
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Notary Public
[SEAL]