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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
SCHULER HOLDINGS, INC.
FIRST. The name of the Corporation is Schuler Holdings, Inc.
(the "Corporation").
SECOND. The address of the registered office of the
Corporation in the State of Delaware is 2711 Centerville Road, Wilmington,
Delaware 19808. The name of its registered agent at such address is
Corporation Service Company. (New Castle County)
THIRD. The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware.
FOURTH. (a) The aggregate number of shares which the
Corporation is authorized to issue is 171,000,000 shares, of which 1,000,000
shall be shares of Preferred Stock, $0.001 par value per share (the
"Preferred Stock"), and 170,000,000 shall be shares of Common Stock, $0.001
par value per share (the "Common Stock"), of which 120,000,000 shall be
shares of Class A Common Stock, $.001 par value per share ("Class A Common
Stock"), and 50,000,000 shall be shares of Class B Common Stock, $.001 par
value per share ("Class B Common Stock").
(b) The Preferred Stock may be issued from time to time in one
or more series. The Board of Directors is expressly authorized, in the
resolution or resolutions providing for the issuance of any wholly unissued
series of Preferred Stock, to fix, state and express the powers, rights,
designations, preferences, qualifications, limitations and restrictions
thereof, including without limitation: the rate of dividends upon which and
the times at which dividends on shares of such series shall be payable and
the preference, if any, which such dividends shall have relative to dividends
on shares of any other class or classes or any other series of stock of the
Corporation; whether such dividends shall be cumulative or noncumulative, and
if cumulative, the date or dates from which dividends on shares of such
series shall be cumulative; the voting rights, if any, to be provided for
shares of such series; the rights, if any, which the holders of shares of
such series shall have in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation; the
rights, if any, which the holders of shares of such series shall have to
convert such shares into or exchange such shares for shares of stock of the
Corporation, and the terms and conditions, including price and rate of
exchange of such conversion or exchange; and the redemption rights (including
sinking fund provisions), if any, for shares of such series; and such other
powers, rights, designations, preferences, qualifications, limitations and
restrictions as the Board of Directors may desire to so fix. The Board of
Directors is also expressly authorized to fix the number of shares
constituting such series and to increase or decrease the number of shares of
any series prior to the issuance of shares of that series and to increase or
decrease the number of shares of any series subsequent to the issuance of
shares of that series, but not to decrease such number below the number of
shares of such series then outstanding. In case the number of shares of any
series shall be so decreased, the shares constituting such decrease shall
resume the status which they had prior to the adoption of the resolution
originally fixing the number of shares of such series.
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(c) The relative voting, dividend, liquidation and other
rights, preferences and limitations or restrictions of the Class A Common
Stock and Class B Common Stock are stated in this Certificate of
Incorporation as follows:
(i) VOTING. Subject to all of the rights which may be
granted to holders of the Preferred Stock and except as otherwise
required or authorized by Article FIFTH, SIXTH, SEVENTH, EIGHTH or
NINTH or by applicable law, voting power shall be divided between the
holders of Class A Common Stock and Class B Common Stock of the
Corporation as follows:
(A) So long as there are issued and
outstanding at least 14 million shares of Class B Common
Stock, the holders of Class A Common Stock, voting as a
separate class, shall be entitled to elect five Directors and
the holders of Class B Common Stock, voting as a separate
class, shall be entitled to elect four Directors. If and when
there are issued and outstanding less than 14 million shares
of Class B Common Stock, the holders of Class A Common Stock,
voting as a separate class, shall be entitled to elect six
Directors and the holders of Class B Common Stock, voting as a
separate class, shall be entitled to elect only three
Directors. If at any time the Corporation shall issue
additional shares of Class B Common Stock as provided in
subsection (c)(v) of Article FOURTH, the holders of Class B
Common Stock shall thenceforth be entitled to elect, as
provided in the two immediately preceding sentences, the
number of directors resulting from the number of shares of
Class B Common Stock then held by such holders. If at any time
there shall be shares of only one class of Common Stock issued
and outstanding, the holders of such class shall be entitled
to elect the entire Board of Directors. In the event of any
decrease in the authorized number of Directors elected by the
holders of Class B Common Stock, each Director elected by the
holders of Class B Common Stock then serving as such shall
nevertheless continue as a Director until the expiration of
his or her current term, or his or her earlier death,
resignation or removal.
(B) So long as any shares of Class B Common
Stock are issued and outstanding, any Director elected
exclusively by the holders of Class A Common Stock may be
removed from office without cause by the affirmative vote of
the holders of at least 66 2/3% of the outstanding shares of
Class A Common Stock, voting as a separate class, and any
Director elected exclusively by the holders of Class B Common
Stock may be removed from office without cause by the
affirmative vote of the holders of at least 66 2/3% of the
outstanding shares of Class B Common Stock, voting as a
separate class.
(C) For so long as any shares of Class B
Common Stock are issued and outstanding, any vacancy in the
office of a Director elected exclusively by the holders of
Class A Common Stock may only be filled by a vote of the
holders of Class A Common Stock, voting as a separate class,
or by a majority vote of the Directors then in office, though
less than a quorum, elected exclusively by the holders of
Class A Common Stock. For so long as any shares of Class B
Common Stock are issued and outstanding, any vacancy in the
office
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of a Director elected exclusively by the holders of
Class B Common Stock may only be filled by a vote of the
holders of Class B Common Stock, voting as a separate class,
or by a majority vote of the Directors then in office, though
less than a quorum, elected exclusively by the holders of
Class B Common Stock.
(D) Except as otherwise required by
applicable law or any other provision of this Certificate of
Incorporation, holders of Class A Common Stock and Class B
Common Stock shall vote together as a single class on all
matters submitted to the stockholders for a vote, subject to
any voting rights which may be granted to holders of Preferred
Stock. With respect to such matters, every holder of Class A
Common Stock shall be entitled to one vote for every share of
Class A Common Stock standing in such stockholder's name on
the record of stockholders and every holder of Class B Common
Stock shall be entitled to one-half vote for every share of
Class B Common Stock standing in such stockholder's name on
the record of stockholders.
(E) Notwithstanding any other provision of
this Certificate of Incorporation or any provision of
applicable law specifying a lesser percentage, the following
matters shall require the affirmative vote of the holders of a
majority of the outstanding shares of Class A Common Stock,
voting as a separate class, and the affirmative vote of the
holders of a majority of the outstanding shares of Class B
Common Stock, voting as a separate class:
(I) any merger or consolidation of
the Corporation with or into any other Person (as
defined in Article EIGHTH), or
(II) any sale, lease, exchange,
transfer or other disposition (in one transaction or
a series of related transactions) of all or
substantially all of the assets of the Corporation
and its subsidiaries taken as a whole, or
(III) the adoption of any plan or
proposal for the liquidation or dissolution of the
Corporation, or
(IV) any reclassification of
securities (including any reverse stock split) or
recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its
Subsidiaries or any similar transaction, which has
the effect, directly or indirectly, of increasing the
percentage of the outstanding shares of (i) any class
of equity securities of the Corporation or any
Subsidiary or (ii) any class of securities of the
Corporation or any Subsidiary convertible into equity
securities of the Corporation or any Subsidiary;
PROVIDED, HOWEVER, that this subsection (c)(i)(E)(IV)
of Article FOURTH shall not be deemed to include any
issuance, offering or sale by the Corporation of any
of its securities.
(ii) DIVIDENDS. (A) Subject to the rights which may
be granted to the holders of the Preferred Stock and subject to any
other provisions of this Certificate of
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Incorporation, holders of Class A Common Stock and Class B Common
Stock shall be entitled to receive such dividends and other
distributions in cash, stock or property of the Corporation as may
be declared thereon by the Board of Directors from time to time out
of assets or funds of the Corporation legally available therefor.
(B) No distribution or dividend payable in
Class A Common Stock may be declared on Class A Common Stock
unless a distribution or dividend payable in Class B Common
Stock at the same time and at the same rate per share is
concurrently declared on Class B Common Stock then
outstanding. No distribution or dividend payable in Class B
Common Stock may be declared on Class B Common Stock unless a
distribution or dividend payable in Class A Common Stock at
the same time and at the same rate per share is concurrently
declared on Class A Common Stock then outstanding. So long as
shares of both Class A Common Stock and Class B Common Stock
shall remain outstanding, no dividend or distribution payable
in property or securities of any other class or kind of the
Corporation shall be declared or paid on either of such
classes unless a dividend equal in kind and amount on a per
share basis and payable at the same time is concurrently
declared on the other class. No split-up, combination or other
reclassification of the shares of Class A Common Stock or
Class B Common Stock into a different number of shares of such
class shall be made unless a split-up, combination or other
reclassification of the shares of the other class then
outstanding, if any, into a different number of shares of such
other class is made at the same time and at the same rate per
share and the number of shares necessary to elect directors as
provided in subsection (c)(i)(A) of Article FOURTH is adjusted
as appropriate.
(iii) CONVERSION RIGHTS AND AUTOMATIC CONVERSION.
(A) Subject to the terms and conditions of
this Article FOURTH, each share of Class B Common Stock shall
be converted into one fully paid and non-assessable share of
Class A Common Stock at the election of the holder thereof or
upon the transfer by the holder thereof to any other Person
who was not, directly or indirectly, a Beneficial Owner (as
defined in Article EIGHTH) of Class B Common Stock immediately
after the Closing Date (as defined in that certain Agreement
and Plan of Reorganization, dated as of September 12, 2000, as
the same may be amended from time to time (the "Reorganization
Agreement"), by and between Schuler Homes, Inc. and the WP
Partners (as defined therein) (the "Closing Date").
(B) Subject to the terms and conditions of
this Article FOURTH, each share of Class B Common Stock shall
be automatically converted into one fully paid and
non-assessable share of Class A Common Stock without any
action on the part of the holder thereof upon the later to
occur of (I) the date that is two days subsequent to the
second anniversary of the Closing Date and (II) the day upon
which less than ten million shares of Class B Common Stock are
issued and outstanding; PROVIDED, HOWEVER, that such automatic
conversion of Class B Common Stock shall not occur if, and for
so long as, the Board of
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Directors determines that such automatic conversion would
result in a "Change of Control" as defined in that certain
Indenture, dated as of May 6, 1998, by and between Schuler
Homes, Inc. and U.S. Trust Company of California, N.A., as
trustee, or a "Risk Event" as defined in that certain
Indenture, dated as of January 15, 1993, by and between
Schuler Homes, Inc. and Pacific Century Trust, as successor
trustee to Bishop Trust Company, Limited.
(C) Conversions in accordance with this
Article FOURTH shall occur at the office of any transfer agent
for the Class B Common Stock, and at such other place or
places, if any, as the Board of Directors may designate, or,
if the Board of Directors shall fail so to designate, at the
principal office of the Corporation (to the attention of the
Secretary of the Corporation). Every conversion pursuant to
subsection (c)(iii)(A) or (c)(iii)(B) of Article FOURTH, shall
constitute a contract between the holder of such Class B
Common Stock and the Corporation, whereby the holder of such
Class B Common Stock shall be deemed to subscribe for the
amount of Class A Common Stock which such holder shall be
entitled to receive upon such conversion, and, in satisfaction
of such subscription, to deposit the Class B Common Stock to
be converted and to release the Corporation from all liability
thereunder, and thereby the Corporation shall be deemed to
agree that the surrender of the certificate or certificates
therefor and the extinguishment of liability thereon shall
constitute full payment of such subscription for Class A
Common Stock to be issued upon such conversion. The
Corporation will as soon as practicable after such deposit of
a certificate or certificates for Class B Common Stock issue
and deliver at the office of said transfer agent (or other
place as provided above) to the person for whose account such
Class B Common Stock was so surrendered, or to such holder's
nominee or nominees, a certificate or certificates for the
number of full shares of Class A Common Stock to which such
holder shall be entitled as aforesaid. Such conversion shall
be deemed to have been made as of the date of such surrender
of Class B Common Stock to be converted, and the person or
persons entitled to receive the Class A Common Stock issuable
upon conversion of the Class B Common Stock shall be treated
for all purposes as the record holder or holders of such Class
A Common Stock on such date.
(D) The Corporation shall at all times
reserve and keep available, out of its authorized and unissued
shares, solely for the purpose of effecting the conversion of
Class B Common Stock, such number of shares of Class A Common
Stock as shall from time to time be sufficient to effect the
conversion of all shares of Class B Common Stock which at any
such times are convertible.
(iv) MERGER AND LIQUIDATION RIGHTS. In the event of
any merger or consolidation to which the Corporation is a party, the
Class A Common Stock and the Class B Common Stock shall be of equal
rank and shall entitle the holders thereof to equal rights and
privileges. In the event of a dissolution or liquidation of the
Corporation, or a sale of all its assets, whether voluntary or
involuntary, or in the event of its insolvency or upon any distribution
of its capital, the Class A Common Stock and the
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Class B Common Stock shall be of equal rank and shall entitle the
holders thereof to equal rights and privileges.
(v) RESTRICTION ON ISSUANCE OF CLASS B COMMON STOCK.
Except in connection with the stock splits and stock dividends, the
Corporation shall not issue any authorized shares of Class B Common
Stock other than pursuant to Section 9.6 of the Reorganization
Agreement, unless and until such issuance is authorized by the
affirmative vote of the holders of at least 66 2/3% of the outstanding
shares of Class A Common Stock, voting as a separate class, and the
affirmative vote of the holders of at least 66 2/3% of the outstanding
shares of Class B Common Stock, voting as a separate class.
FIFTH. (a) In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is authorized to make, alter, amend
or repeal any or all of the Bylaws of the Corporation; PROVIDED, HOWEVER, that
any Bylaw amendment adopted by the Board of Directors pursuant to paragraph (a)
of Article SEVENTH increasing or reducing the authorized number of Directors
shall require the affirmative vote of two-thirds of the total number of
Directors which the Corporation would have if there were no vacancies.
(b) In addition, so long as any shares of Class B Common Stock
are issued and outstanding, new Bylaws may be adopted or the Bylaws may be
altered, amended or repealed by the affirmative vote of the holders of at least
66 2/3% of the outstanding shares of Class A Common Stock, voting as a separate
class, and the affirmative vote of the holders of at least 66 2/3% of the
outstanding shares of Class B Common Stock, voting as a separate class.
(c) In addition, from and after the time when no shares of
Class B Common Stock are issued and outstanding, new Bylaws may be adopted or
the Bylaws may be altered, amended or repealed by the affirmative vote of the
holders of a majority of the combined voting power of all shares of the
Corporation entitled to vote generally in the election of Directors, voting
together as a single class.
SIXTH. (a) Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at an annual or special
meeting of stockholders of the Corporation and may not be effected by any
consent in writing of such stockholders.
(b) Special meetings of stockholders of the Corporation may be
called only by the joint action of the Chairman of the Board of Directors and
the President or by the Chairman or the Secretary at the written request of a
majority of the total number of Directors which shall then constitute the whole
Board of Directors of the Corporation upon not fewer than 10 nor more than 60
days' prior written notice. The request shall be sent to the Chairman and the
Secretary and shall state the purposes of the proposed meeting. Special meetings
of holders of the outstanding Preferred Stock may be called in the manner and
for the purposes provided in the resolutions of the Board of Directors providing
for the issue of such stock. Business transacted at special meetings shall be
confined to the purpose or purposes stated in the notice of meeting.
SEVENTH. (a) So long as any shares of Class B Common Stock are
issued and outstanding, the number of Directors which shall constitute the
whole Board of Directors of the
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Corporation shall be nine, subject to this Article SEVENTH. From and after
the time when there are no shares of Class B Common Stock issued and
outstanding, the number of Directors which shall constitute the whole Board
of Directors of this Corporation shall be as specified in the Bylaws of this
Corporation, subject to this Article SEVENTH.
(b) Each Director shall serve for a term ending on the date of
the first annual meeting of stockholders following the annual meeting at
which the Director was elected. Notwithstanding the foregoing provisions of
this Article SEVENTH, each Director shall serve until his or her successor is
duly elected and qualified or until his or her earlier death, resignation or
removal.
(c) In the event of any increase or decrease in the authorized
number of Directors, each Director then serving as such shall nevertheless
continue as a Director until the expiration of his or her current term, or
his or her earlier resignation, removal from office or death.
(d) From and after the time when there are no shares of Class B
Common Stock issued and outstanding, any Director or the entire Board of
Directors may be removed from office without cause by the affirmative vote of
the holders of a majority of the combined voting power of all shares of the
Corporation entitled to vote generally in the election of Directors, voting
together as a single class.
EIGHTH. (a) (i) In addition to any affirmative vote required by
law, so long as any shares of Class B Common Stock are issued and
outstanding, any Business Combination (as hereinafter defined) shall require
the affirmative vote of the holders of at least 66 2/3% of the outstanding
shares of Class A Common Stock, voting as a separate class, and the
affirmative vote of the holders of at least 66 2/3% of the outstanding shares
of Class B Common Stock, voting as a separate class. In addition to any
affirmative vote required by law, from and after the time when there are no
shares of Class B Common issued and outstanding, any Business Combination
shall require the affirmative vote of the holders of a majority of the
combined voting power of all shares of the Corporation entitled to vote
generally in the election of Directors, voting together as a single class
(for purposes of this Article EIGHTH, together with any Class A Common Stock
and Class B Common Stock, the "Voting Shares"). Such affirmative votes shall
be required notwithstanding the fact that no vote may be required, or that
some lesser percentage may be specified by law or in any agreement with any
national securities exchange or otherwise.
(ii) The term "Business Combination" as used in this
Article EIGHTH shall mean any transaction which is referred to in any
one or more of the following clauses (A) through (E):
(A) any merger or consolidation of the
Corporation or any Subsidiary (as hereinafter defined) with or
into (i) any Interested Stockholder (as hereinafter defined)
or (ii) any other Person (as hereinafter defined) (whether or
not itself an Interested Stockholder) which is, or after such
merger or consolidation would be, an Affiliate (as hereinafter
defined) or Associate (as hereinafter defined) of an
Interested Stockholder, or
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(B) any sale, lease, exchange, mortgage,
pledge, transfer or other disposition (in one transaction or a
series of related transactions) to or with, or proposed by or
on behalf of, any Interested Stockholder or any Affiliate or
Associate of any Interested Stockholder, of any assets of the
Corporation or any Subsidiary constituting not less than 5% of
the total assets of the Corporation, as reported in the
consolidated balance sheet of the Corporation as of the end of
the most recent quarter with respect to which such balance
sheet has been prepared, or
(C) the issuance or transfer by the
Corporation or any Subsidiary (in one transaction or a series
of related transactions) of any securities of the Corporation
or any Subsidiary to, or proposed by or on behalf of, any
Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder in exchange for cash, securities or
other property (or a combination thereof) constituting not
less than 5% of the total assets of the Corporation, as
reported in the consolidated balance sheet of the Corporation
as of the end of the most recent quarter with respect to which
such balance sheet has been prepared, or
(D) the adoption of any plan or proposal for
the liquidation or dissolution of the Corporation, or any
spin-off or split-up of any kind of the Corporation or any
subsidiary, proposed by or on behalf of an Interested
Stockholder or any Affiliate or Associate of any Interested
Stockholder, or
(E) any reclassification of securities
(including any reverse stock split), or recapitalization of
the Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect,
directly or indirectly, of increasing the percentage of the
outstanding shares of (i) any class of equity securities of
the Corporation or any Subsidiary or (ii) any class of
securities of the Corporation or any Subsidiary convertible
into equity securities of the Corporation or any Subsidiary,
represented by securities of such class which are directly or
indirectly owned by any Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder.
(b) The provisions of section (a) of this Article EIGHTH shall
not be applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote as is required by law and
any other provision of this Certificate of Incorporation, if such Business
Combination has been approved by two-thirds of the whole Board of Directors.
(c) For the purposes of this Article EIGHTH:
(i) A "Person" shall mean any individual, firm,
corporation, partnership, limited liability company or other entity.
(ii) "Interested Stockholder" shall mean, in respect
of any Business Combination, any Person (other than the Corporation or
any Subsidiary) who or which,
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as of the record date for the determination of stockholders entitled
to notice of and to vote on such Business Combination, or
immediately prior to the consummation of any such transaction:
(A) is or was, at any time within two years
prior thereto, the Beneficial Owner (as hereinafter defined)
of 10% or more of the then outstanding Voting Shares, or
(B) is an Affiliate or Associate of the
Corporation and at any time within two years prior thereto was
the Beneficial Owner of 10% or more of the then outstanding
Voting Shares, or
(C) is an assignee of or has otherwise
succeeded to any shares of capital stock of the Corporation
which were at any time within two years prior thereto
beneficially owned by any Interested Stockholder, if such
assignment or succession shall have occurred in the course of
a transaction, or series of transactions, not involving a
public offering within the meaning of the Securities Act of
1933, as amended.
(iii) A "Person" shall be the "Beneficial Owner" of
any Voting Shares.
(A) which such Person or any of its
Affiliates and Associates (as hereinafter defined)
beneficially own, directly or indirectly, or
(B) which such Person or any of its
Affiliates or Associates has (i) the right to acquire (whether
such right is exercisable immediately or only after the
passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly
or indirectly, by any other Person with which such first
mentioned Person or any of its Affiliates or Associates has
any agreement, arrangement or understanding for the purposes
of acquiring, holding, voting or disposing of any shares of
capital stock of the Corporation.
(iv) The outstanding Voting Shares shall include
shares deemed owned through application of paragraph (iii) above, but
shall not include any other Voting Shares which may be issuable
pursuant to any agreement, or upon exercise of conversion rights,
warrants or options, or otherwise.
(v) "Affiliate" and "Associate" shall have the
respective meanings given those terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as in
effect on the date of adoption of this Certificate of Incorporation
(the "Exchange Act").
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(vi) "Subsidiary" shall mean any corporation of which
a majority of any class of equity security (as defined in Rule 3a11-1
of the General Rules and Regulations under the Exchange Act) is owned,
directly or indirectly, by the Corporation; PROVIDED, HOWEVER, that for
the purposes of the definition of Interested Stockholder set forth in
paragraph 2 of this section (c) the term "Subsidiary" shall mean only a
Corporation of which a majority of each class of equity security is
owned, directly or indirectly, by the Corporation.
(d) Two-thirds of the whole Board of Directors shall have the
power and duty to determine for the purposes of this Article EIGHTH on the
basis of information known to them, (i) whether a Person is an Interested
Stockholder, (ii) the number of Voting Shares beneficially owned by any
Person, (iii) whether a Person is an Affiliate or Associate of another, (iv)
whether a Person has an agreement, arrangement or understanding with another
as to the matters referred to in paragraph (iii) of section (c) of this
Article EIGHTH, or (iv) whether the assets subject to any Business
Combination or the consideration received for the issuance or transfer of
securities by the Corporation or any subsidiary constitutes not less than 5%
of the total assets of the Corporation.
(e) Nothing contained in this Article EIGHTH shall be construed
to relieve any Interested Stockholder from any fiduciary obligation imposed
by law.
NINTH. Subject to the remainder of this Article NINTH, this
Corporation reserves the right to alter, change, amend or repeal any
provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred on stockholders
herein are granted subject to this reservation. Notwithstanding anything
contained in this Certificate of Incorporation to the contrary, so long any
shares of Class B Common Stock are issued and outstanding, the affirmative
vote of the holders of at least 66 2/3% of the outstanding shares of Class A
Common Stock, voting as a separate class, and the affirmative vote of the
holders of at least 66 2/3% of the outstanding shares of Class B Common Stock,
voting as a separate class, shall be required to alter, change, amend,
repeal, or adopt any provision inconsistent with, Article FOURTH, FIFTH,
SIXTH, SEVENTH, EIGHTH or NINTH. Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, from and after the time when
there are no shares of Class B Common Stock issued and outstanding, the
affirmative vote of the holders of a majority of the combined voting power of
all shares of the Corporation entitled to vote generally in the election of
Directors, voting together as a single class, shall be required to alter,
change, amend, repeal, or adopt any provision inconsistent with, Article
FOURTH, FIFTH, SIXTH, SEVENTH, EIGHTH or NINTH.
TENTH. The name and mailing address of the incorporator is
Shannon McGriff-Smith, 400 Sansome Street, San Francisco, California 94111.
ELEVENTH. 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 or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under 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 is hereafter amended to authorize, with the approval of a
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Corporation's stockholders, further reductions in the liability of a
Corporation's Directors for breach of fiduciary duty, then a Director of the
Corporation shall not be liable for any such breach to the fullest extent
permitted by the Delaware General Corporation Law as so amended. Any repeal or
modification of the foregoing provisions of this Article ELEVENTH 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.
I, THE UNDERSIGNED, being the incorporator hereinbefore named,
for the purpose of forming a Corporation pursuant to the General Corporation
Law of Delaware, do make this Certificate of Incorporation, hereby declaring
and certifying that this is my act and deed and the facts herein stated are
true, and accordingly have hereunto set my hand this 12th day of October,
2000.
/s/ Shannon McGriff-Smith
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Shannon McGriff-Smith, Incorporator
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