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Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
UCAR GRAPH-TECH INC.
The undersigned, Karen G. Narwold, hereby certifies that:
1. She is the Secretary of the corporation mentioned herein.
2. Such corporation is a corporation duly organized and validly
existing under the General Corporation Law of the State of Delaware.
3. The name of such corporation is UCAR Graph-Tech Inc.
4. The date on which the original certificate of incorporation of
such corporation was filed with the Secretary of State of the State of Delaware
is August 30, 1999.
5. This Amended and Restated Certificate of Incorporation (i) amends
such certificate of incorporation so as, among other things, to change the name
of such corporation to Graftech Inc., to further specify the rights (and the
restrictions on the rights) of the holders of such corporation's common stock,
to increase the authorized capital stock of such corporation (including creation
of a class of preferred stock), to effect a subdivision of the outstanding
number of shares of such corporation's common stock into a greater number of
shares, to adopt provisions governing the removal of directors and the filling
of vacancies on the board of directors of such corporation, to impose certain
limitations on the amendment of such certificate of incorporation and the
by-laws of such corporation, to elect not to be governed by Section 203 of such
Law and to adopt provisions relating to resolution of certain conflicts of
interest and allocation of certain corporate opportunities, and (ii) integrates
into one instrument all of the provisions of such certificate of incorporation,
as so amended, which are effective and operative.
6. This Amended and Restated Certificate of Incorporation was duly
adopted, effective on June 28, 2000, in accordance with Sections 242, 245 and
228 of such Law and the applicable provisions of such certificate of
incorporation.
7. The provisions of such certificate of incorporation, as so
amended and restated, are as follows:
FIRST: NAME
The name of this corporation is Graftech Inc. (the "Corporation").
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SECOND: ADDRESS
The address, including street number, street, city and county, of
the registered office of the Corporation in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle. The
name of the registered agent of the Corporation in the State of Delaware at such
address is The Corporation Trust Company.
THIRD: PURPOSE
The nature of the businesses to be conducted and the purposes to
be promoted by the Corporation is engaging in any lawful act or activity for
which corporations may be organized under the General Corporation Law of the
State of Delaware (the "Law").
FOURTH: POWERS
In order to conduct its businesses and promote and accomplish its
purposes, the Corporation shall have and may exercise any and all of the powers
conferred by the Law upon corporations formed thereunder.
FIFTH: PERPETUAL EXISTENCE
The Corporation shall have perpetual existence.
SIXTH: CAPITAL STOCK
The aggregate number of shares of all classes of capital stock
which the Corporation shall have authority to issue (the "Capital Stock") is two
hundred and twenty million (220,000,000), of which two hundred million
(200,000,000) shall be common stock, par value $.01 per share (the "Common
Stock"), and twenty million (20,000,000) shall be preferred stock, par value
$.01 per share (the "Preferred Stock").
Except as provided in the next sentence, each share of common
stock, par value $.01 per share, of the Corporation outstanding immediately
prior to the time of filing of this Amended and Restated Certificate of
Incorporation with the Secretary of State of the State of Delaware (the
"Effective Time") shall, without any action by the holder thereof, at the
Effective Time, be reclassified as and subdivided into 298,500 shares of Common
Stock.
Shares of Preferred Stock may be issued in one or more series. The
number of shares included in any series of Preferred Stock and the full or
limited voting rights, if any, the cumulative or non-cumulative dividend rights,
if any, the conversion, redemption or sinking fund rights, if any, and the
priorities, preferences and relative, participating, optional and other special
rights, if any, in respect of the Preferred Stock or any series of Preferred
Stock, and the qualifications, limitations or restrictions on such series of
Preferred Stock, shall be those set forth in the resolution or resolutions
providing for the issuance of such series of Preferred Stock adopted by the
Board of Directors of the Corporation (the "Board"). The Board is vested with
full authority to adopt any and all such resolution or resolutions at any time
and from time to time. The holders of shares of Preferred Stock shall not be
entitled to receive notice of any meeting of stockholders at which they are not
entitled to vote, except as otherwise required by
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the Law or expressly set forth in the resolution or resolutions providing for
the issuance of such shares.
The number 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 shares
of Common Stock then outstanding, without a vote of the holders of shares of
Preferred Stock, except to the extent that a vote of the holders of shares of
Preferred Stock then outstanding is required pursuant to the resolution or
resolutions providing for the issuance of such shares.
The powers, privileges and rights pertaining to shares of Common
Stock then outstanding shall be subject to the powers, privileges, preferences
and rights pertaining to shares of Preferred Stock then outstanding.
The holders of shares of Common Stock then outstanding shall be
entitled to one vote for each such share upon any and all matters presented for
a vote to the stockholders on which the holders of shares of Common Stock then
outstanding are entitled to vote. Except as otherwise required by the Law or the
resolution or resolutions providing for the issuance of shares of one or more
series of Preferred Stock, the holders of shares of Common Stock then
outstanding shall have the exclusive right to vote for the election of directors
and on all other matters required or permitted to be presented for a vote to the
stockholders; provided, however, that the holders of shares of Common Stock then
outstanding, as such, shall not be entitled to vote on any amendment of this
Certificate of Incorporation that both (i) relates solely to the number of, or
the powers, privileges, preferences or rights pertaining to, one or more series
of Preferred Stock and (ii) does not affect either the number of authorized
shares of Preferred Stock or the powers, privileges and rights pertaining to the
Common Stock so long as the holders of shares of such series of Preferred Stock
then outstanding are entitled, separately or together with the holders of any
shares of any other series of Preferred Stock then outstanding, to vote thereon
pursuant to the resolution or resolutions providing for the issuance of such
shares or the Law.
SEVENTH: DIRECTORS
The business and affairs of the Corporation shall be managed by or
under the direction of the Board. Subject to any limitations which may be set
forth in the By-Laws and subject to the right, if any, of holders of shares of
Preferred Stock then outstanding to elect additional directors expressly set
forth in the resolution or resolutions providing for the issuance of such
shares, the number of directors constituting the Whole Board (as defined herein)
shall consist of that number of directors as may be fixed from time to time and
at any time solely by a resolution or resolutions adopted by the affirmative
vote of a majority of the Whole Board as constituted prior to such vote, except
that such number shall not be less than one (1) and shall not be more than
fifteen (15). As used herein, "Whole Board" means the total number of directors
which the Corporation would have if there were no vacancies on the Board at the
time of the relevant vote.
Except as otherwise provided herein, the Whole Board shall consist
of a single class of directors and the term of office of such class of directors
shall be one (1) year, commencing at the annual meeting of stockholders at which
directors of that class are elected
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and continuing until the successor directors of that class are elected at the
next annual meeting of stockholders.
Commencing at the first annual meeting of stockholders after the
time at which the Principal Stockholder (as defined herein) ceases to directly
or indirectly hold or own a majority of the shares of Common Stock then
outstanding, the Whole Board shall be divided into three (3) classes, consisting
of such directors as the Board, pursuant to a resolution or resolutions adopted
by the affirmative vote of a majority of the Whole Board, shall determine so
long as the number of directors in each class is as nearly equal as practicable.
Except as otherwise provided herein, from and after such time, the term of
office of each class of directors shall be three (3) years, commencing at the
annual meeting of stockholders at which directors of that class are elected and
continuing until the successor directors of that class are elected at the third
following annual meeting of stockholders. Notwithstanding the preceding
sentence, at the first annual meeting of stockholders at which, but for this
sentence, directors would be elected for three (3) year terms, the term of
office of the first such class of directors shall expire at the first annual
meeting of stockholders following such time, of the second such class of
directors shall expire at the second annual meeting of stockholders following
such time, and of the third such class of directors shall expire at the third
annual meeting of stockholders following such time.
Except as otherwise provided in the By-Laws, the election of
directors is not required to be conducted by written ballot.
Except for the right, if any, of holders of shares of Preferred
Stock then outstanding to remove one or more directors expressly set forth in
the resolution or resolutions providing for the issuance of such shares and
except as otherwise required by the Law, (i) so long as the Principal
Stockholder directly or indirectly holds or owns a majority of the shares of
Common Stock then outstanding, any or all of the directors may be removed with
or without cause by the affirmative vote of the holders of a majority of the
shares of Common Stock then outstanding and (ii) commencing at the first time at
which the Principal Stockholder ceases to directly or indirectly hold or own a
majority of the shares of Common Stock then outstanding, directors can be
removed only for cause and only upon the affirmative vote of holders of at least
67% of the shares of Common Stock then outstanding.
Except for the right, if any, of holders of shares of Preferred
Stock then outstanding to fill such vacancies expressly set forth in the
resolution or resolutions providing for the issuance of such shares and except
as otherwise required by the Law, any vacancies on the Board resulting from an
increase in the authorized number of directors, from death, resignation,
retirement, disqualification or removal of a director or from any other event
shall be filled (and, subject to the following proviso, shall only be filled) by
the affirmative vote of a majority of the directors then in office (even though
they constitute less than a quorum), unless no directors are then in office in
which event (but only in which event) such vacancies can be filled by the
stockholders; provided, however, that the By-laws may provide that the
affirmative vote of a greater number of the directors may be required to fill
such vacancies; and provided further, that, notwithstanding anything to the
contrary contained in this paragraph, so long as the Principal Stockholder holds
or owns directly or indirectly a majority of the shares of Common Stock then
outstanding, the holders of a majority of the shares of Common Stock then
outstanding shall also
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have the right to fill such vacancies. A director elected to fill such a vacancy
shall hold office for the remainder of the full term of the class of directors
of which such director is a member.
Each director shall serve in office until his or her successor
shall be elected and qualified (which may be such director, if he or she is
re-elected) or his or her earlier death, resignation or removal. No decrease in
the authorized number of directors shall shorten the term of any incumbent
director.
In connection with managing the business and affairs of the
Corporation, including determining whether and to what extent any action may be
in the best interests of the Corporation or the stockholders, approving or
disapproving any action or determining whether to make any recommendation and
what recommendation to make to stockholders with respect to any matter, each
director and the Board (and any committee of the Board) may, to the fullest
extent permitted by law, consider: (i) the long-term and short-term interests of
the employees, suppliers, creditors and customers of the Corporation and its
subsidiaries; (ii) the long-term and short-term interests of the communities in
which the Corporation and its subsidiaries conduct any business or other
activities; and (iii) the long-term and short-term interests of the Corporation,
its subsidiaries and the stockholders, including the possibility that such
interests may best be served by the continued independence of the Corporation.
EIGHTH: VOTING
Except as otherwise permitted with respect to actions required or
permitted to be taken solely by holders of shares of Preferred Stock then
outstanding as expressly set forth in the resolution or resolutions providing
for the issuance of such shares, any and all actions required or permitted to be
taken by the stockholders must be taken at a duly called and convened meeting of
stockholders and cannot be taken by consent in writing; provided, however, that
any action required or permitted to be taken by the stockholders may be taken by
consent in writing so long as at the time such consent is given (i) the
Principal Stockholder directly or indirectly holds or owns a majority of the
shares of Common Stock then outstanding or (ii) the Principal Stockholder
directly or indirectly holds or owns at least 20% of the shares of Common Stock
then outstanding and the Principal Stockholder gives the first valid consent in
writing to such action. References herein to a vote of one or more stockholders
shall include consent in writing of stockholders permitted (but only those
permitted) by this paragraph.
Except as otherwise permitted with respect to meetings consisting
solely of holders of shares of Preferred Stock then outstanding as expressly set
forth in the resolution or resolutions providing for the issuance of such
shares, special meetings of stockholders can be called only (a) by or at the
direction of the Board pursuant to a resolution or resolutions adopted by the
affirmative vote of a majority of the Whole Board, (b) by or at the direction of
the Principal Stockholder or a director nominated or designated by the Principal
Stockholder so long as the request to call the meeting is made at a time when
the Principal Stockholder directly or indirectly holds or owns more than 20% of
the shares of Common Stock then outstanding, (c) by or at the direction of a
committee of the Board which has been expressly authorized by the Board pursuant
to a resolution or resolutions adopted by the affirmative vote of a majority of
the Whole Board to call special meetings of stockholders or (d) by the chairman
of the board, chief executive officer or president of the Corporation.
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As used herein, "Principal Stockholder" means (i) UCAR
International Inc. and each of its wholly-owned or majority-owned subsidiaries
(other than the Corporation and direct or indirect subsidiaries and controlled
affiliates of the Corporation) and (ii) each of their initial and subsequent
transferees (including any and all secured lenders to whom Capital Stock is
transferred as a result of a foreclosure on collateral following on the
occurrence of an event of default under the relevant loan or credit agreements
and related documents or otherwise in discharge or satisfaction of indebtedness)
whom the immediately preceding Principal Stockholder designates as such so long
as the transferee so designated and its wholly-owned and majority-owned
subsidiaries directly or indirectly holds or owns more than 20% of the shares of
Common Stock then outstanding. If one or more series of Preferred Stock are then
outstanding and holders of shares thereof are then entitled to vote for the
election of one or more directors (assuming that a meeting of stockholders for
such purpose was then being duly held), then references herein to the direct or
indirect ownership or holding by the Principal Stockholder of more than a
specified percentage or amount of the shares of Common Stock then outstanding
shall also be deemed to refer to the direct or indirect ownership or holding of
such specified percentage or amount of the shares of Capital Stock, the holders
of which are then entitled to vote for the election of one or more directors
(assuming that a meeting of stockholders for such purpose was then being duly
held), then outstanding to the extent (but only to the extent) such deemed
reference would increase or expand the voting power of the Principal
Stockholder. Persons who would constitute Principal Stockholders shall not cease
to be such solely because Capital Stock is held or owned for their account by
nominees or collateral or other agents.
NINTH: BY-LAWS
Subject to the next paragraph, references to the "By-Laws" shall
mean, and the By-Laws of the Corporation shall be, those which become effective
at the Effective Time.
All or any part of the By-Laws may be amended or repealed and new
By-Laws may be adopted at any time and from time to time either (i) if at the
time of such vote the Principal Stockholder holds or owns directly or indirectly
a majority of the shares of Common Stock then outstanding, by the affirmative
vote of holders of a majority of the shares of Common Stock then outstanding or
by the Board pursuant to a resolution or resolutions adopted by the affirmative
vote of a majority of the Whole Board or (ii) if at any other time, by the
affirmative vote of holders of 67% of the shares of Common Stock then
outstanding or by the Board pursuant to a resolution or resolutions adopted by
the affirmative vote of a majority of the Whole Board (unless the affirmative
vote of a greater number of directors is required by the By-Laws, in which case
such greater number shall be required), but, in each case mentioned in this
clause (ii), subject to the limitations set forth in the By-Laws; provided,
however, that at a time described in this clause (ii) the affirmative vote of
holders of more than 67% of the shares of Common Stock then outstanding shall be
required to amend or repeal, or adopt any provision inconsistent with, Sections
3, 8 (as it pertains to stockholder proposals and nominations for directors) or
9(e) of Article I, Sections 1, 2 or 3 of Article II, or Article X of the
By-Laws.
TENTH: EXCULPATION
A director shall not be personally liable to the Corporation or
the stockholders for monetary damages for breach of fiduciary duty as a
director, except (i) for any breach of the
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duty of loyalty of such director to the Corporation or such holders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Law and (iv) for any
transaction from which such director derives an improper personal benefit. If
the Law is hereafter amended to authorize corporate action further eliminating
or limiting the personal liability of directors, then the liability of a
director shall be eliminated or limited to the fullest extent permitted by the
Law, as so amended. No repeal or modification of this Article Tenth shall
adversely affect any right of or protection afforded to a director prior to such
repeal or modification.
ELEVENTH: SECTION 203
The Corporation shall not be subject to Section 203 of the Law;
provided, however, that the Corporation shall, without further action by the
Board or the stockholders, become subject to Section 203 of the Law immediately
after the first time that the Principal Stockholder ceases to directly or
indirectly hold or own a majority of the then outstanding shares of Common
Stock.
TWELFTH: CERTAIN TRANSACTIONS, OPPORTUNITIES AND CONFLICTS OF INTEREST
As used herein, the "Company" means the Corporation, its
wholly-owned and majority-owned subsidiaries and its controlled affiliates and
"UCAR" means UCAR International Inc., its wholly-owned and majority-owned
subsidiaries and its controlled affiliates other than the Company.
All stockholders and creditors of the Company shall be deemed to
have notice of the fact that (i) UCAR is currently the sole stockholder and is
expected to be the controlling stockholder after the initial public offering of
Common Stock, (ii) even after UCAR ceases to be the controlling stockholder it
may remain a significant stockholder, (iii) directors, officers and employees of
UCAR may serve as directors, officers or employees of the Company, and vice
versa, (iv) the Company has acquired businesses and assets, and assumed
liabilities, from UCAR and (v) UCAR and the Company engage and are expected to
continue to engage in similar, related, complementary, overlapping or
competitive businesses and have been and are expected to continue to be
suppliers of products and services, and lessors and licensors of property and
technology, to each other. All stockholders and creditors of the Company shall
be deemed to have notice of and to have consented to this Article TWELFTH.
The Company may from time to time and at any time (i) consummate
transactions with, buy services or products from, sell services or products to,
acquire businesses or assets from, assume liabilities of and employ and elect
(as its directors and officers) directors, officers and employees of UCAR and
refrain from engaging in any activity or pursuing any opportunity (including any
acquisition, development or other corporate opportunity) that is or may be
engaged in or pursued by UCAR and (ii) execute, deliver and perform agreements
relating thereto, including modifications or supplements to pre-existing
agreements and agreements regarding allocation, pursuit and non-pursuit of
opportunities, limiting or prohibiting competition, allocating time and efforts
of common officers and employees, and entering, not entering or ceasing to
engage in businesses or activities (individually and collectively, a "UCAR
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Transaction"). Except as otherwise expressly provided in this Article TWELFTH,
no UCAR Transaction shall be (i) void or voidable or (ii) considered contrary to
(1) any fiduciary duty that UCAR may owe to the Company or any stockholder or
creditor of the Company by reason of the fact that UCAR is or was a principal,
majority or controlling stockholder of the Corporation or has or had the power
or right, as a stockholder, by contract, through business dealings or
relationships or otherwise, to elect any or all of the directors of the
Corporation or to control or influence the management or direction of the
business or affairs of the Company or (2) any fiduciary duty of any director or
officer of the Company who is also a director, officer or employee of UCAR or
owns or holds capital stock, options or other securities of UCAR, to the Company
or any stockholder or creditor of the Company, if any of the following
conditions set forth in clauses (A) through (D) below shall have been satisfied:
(A) such UCAR Transaction shall have been initiated or, if
earlier, the agreement thereto was executed before the Company ceased to be a
wholly-owned subsidiary of UCAR; or
(B) such UCAR Transaction shall have been approved (i) by the
affirmative vote of a majority of the directors (even though less than a quorum)
who are not Interested Persons (as defined herein) in respect of such UCAR
Transaction, (ii) by a committee of the Board constituted solely of directors
who are not Interested Persons in respect of such UCAR Transaction or (iii) by
an officer or employee of the Company who is not an Interested Person in respect
of such UCAR Transaction and to whom the authority to approve such UCAR
Transaction has been delegated, either generally or in the specific instance,
either by the same affirmative vote required by clause (i) or (ii) of this
clause (B) or, in the case of an employee, to whom such authority has been
delegated, either generally or in the specific instance, by an officer to whom
authority to approve such UCAR Transaction has been so delegated; provided,
however, that, before approval of such UCAR Transaction, the material facts of
the relationship between the Company and UCAR and the material terms and facts
as to such UCAR Transaction were disclosed to or were known by such directors,
committee, officer or employee; or
(C) such UCAR Transaction was fair to the Company as of the time
it was initiated or, if earlier, the agreement relating thereto was executed; or
(D) such UCAR Transaction was approved by the affirmative vote of
the holders of a majority of the shares of Capital Stock entitled to vote
thereon who do vote thereon, exclusive of UCAR and any Interested Person in
respect of such UCAR Transaction.
UCAR shall not have or be under any fiduciary duty to refrain from
entering into any UCAR Transaction that satisfies the conditions in any of
clauses (A) through (D) above and no director, officer or employee of the
Company who is also a director, officer or employee of UCAR or a holder or owner
of capital stock, options or other securities of UCAR shall have or be under any
fiduciary duty to refrain from acting on behalf of the Company in respect of any
such UCAR Transaction. The failure of any UCAR Transaction to satisfy the
conditions of all or any of clauses (A) through (D) above shall not, by itself,
cause such UCAR Transaction to constitute any breach of any fiduciary duty to
the Company or any stockholder or creditor of the Company.
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In addition, neither UCAR nor any director, officer or employee of
UCAR shall have or be under any fiduciary duty to not acquire, develop or engage
in any business, product, service or activity (including the hiring or retention
on an exclusive or non-exclusive basis of any employee, consultant or other
agent or representative) or to refer to the Company, or to refrain from
pursuing, any corporate or other opportunity with respect thereto, even if it is
or could be similar, related, complementary, overlapping or competitive with any
then current or prospective business, product, service or activity of the
Company.
Further, neither UCAR nor any director, officer or employee of
UCAR shall have or be under any fiduciary duty as a controlling or other
stockholder, in connection with any matter which may be submitted for a vote to
the stockholders, any tender or exchange offer or any proxy solicitation which
may be directed to the stockholders or any merger, consolidation or other
transaction which may be approved by the stockholders, to (i) attend, in person
or by proxy, any meeting of stockholders, (ii) vote for or against, or abstain
from voting, on any matter, give or refrain from giving any proxy, (iii) tender
Capital Stock, or refrain from tendering Capital Stock, in any tender or
exchange offer, (iv) sell or transfer, or refrain from selling or transferring,
any Capital Stock, or (v) exercise or refrain from exercising any appraisal,
dissenters or similar rights.
Moreover, neither UCAR nor any directors, officers or employees of
UCAR shall have or be under any fiduciary duty, as a controlling or other
stockholder, to sell or transfer, or refrain from selling or transferring, any
or all of the Capital Stock owned by it, him or her at any time or from time to
time or to permit or encourage other stockholders to participate in any manner
or obtain any benefits from any such sale or transfer.
Directors who are not also directors, officers or employees of
UCAR at the time of the vote thereon shall have the right, by the affirmative
vote of a majority thereof, to expand, either generally or in specific
instances, the types of UCAR Transactions and other events and circumstances
within the scope of this Article TWELFTH and to expand the methods for approving
the same.
As used herein, "Interested Person" in respect of a UCAR
Transaction means any director, officer or employee of UCAR and any other person
who has a material financial interest in UCAR or in such UCAR Transaction;
provided, however, that no such financial interest shall be considered material
(i) by reason of the fact that such person or such person's family members,
affiliates or related parties (a) participate in or are beneficiaries of any
employee benefit or welfare plan or program of UCAR or (b) owns or holds common
stock or options to acquire common stock of UCAR International Inc. constituting
in the aggregate less than 0.1% of the common stock of UCAR International Inc.
outstanding at the time of approval of such UCAR Transaction or, if earlier, the
earlier of the initiation of such UCAR Transaction or the execution of the
agreement relating thereto or (ii) as to other financial interests, if such
financial interest would not be required to be disclosed in a proxy statement
filed by UCAR International Inc. or the Corporation with the Securities and
Exchange Commission (regardless of whether any such filing is then required).
This Article TWELFTH shall terminate at the first time UCAR shall
cease to own or hold directly or indirectly more than 5% of the shares of Common
Stock then
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outstanding. No such termination, and no alteration, amendment or repeal of or
adoption of a provision inconsistent with this Article TWELFTH, shall change the
effect of this Article TWELFTH in respect of any UCAR Transaction or any other
event or circumstance within the scope of this Article TWELFTH that was approved
or, if earlier, that was initiated or, if earlier, that was subject to an
agreement that was executed, before such termination, alteration, amendment,
repeal or adoption.
THIRTEENTH: AMENDMENTS
No amendment to this Certificate of Incorporation which alters,
amends or repeals, or adopts any provision inconsistent with, Articles SEVENTH,
EIGHTH, NINTH, TENTH, TWELFTH or this Article THIRTEENTH of this Certificate of
Incorporation shall become effective unless it shall have been approved by the
affirmative vote of the holders of more than 67% of the shares of Common Stock
then outstanding; provided, however, that, if at the time of the vote of
stockholders thereon the Principal Stockholder holds or owns directly or
indirectly a majority of the shares of Common Stock then outstanding, the vote
of the holders a majority of the shares of Common Stock then outstanding shall
be sufficient for any such amendment to become effective.
Subject to the immediately preceding provisions of this Article
THIRTEENTH, this Certificate of Incorporation may be amended, altered or
repealed in the manner now or hereafter prescribed by the Law.
FOURTEENTH: COMPROMISE
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
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
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.
IN WITNESS WHEREOF, the undersigned has signed this Certificate of
Incorporation on this 28th day of June, 2000.
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/s/ Karen G. Narwold
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Karen G. Narwold
Vice President
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