CERTIFICATE OF INCORPORATION
OF
TREMONT GROUP, INC.
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ARTICLE I.
NAME
The name of the corporation is TREMONT GROUP, INC. (the "Corporation").
ARTICLE II.
REGISTERED OFFICE AND AGENT
The address of the Corporation's registered office in the state of
Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, city
of Wilmington, county of New Castle, state of Delaware 19808. The name of the
Corporation's registered agent at such address is Corporation Service Company.
ARTICLE III.
PURPOSE
The nature of the business or purposes to be conducted or promoted by
the Corporation is to engage in any lawful business, act or activity for which
corporations may be organized under the General Corporation Law of the state of
Delaware.
ARTICLE IV.
AUTHORIZED STOCK
The Corporation shall have authority to issue six thousand five hundred
(6,500) shares of common stock having a par value of one cent ($0.01) per share
(the "Common Stock"). The rights of the holders of common stock are set forth
below.
Section 1. Voting Rights. The holders of Common Stock shall be
entitled to one vote per share on all matters to be voted on by the
stockholders of the Corporation.
Section 2. Dividends. The holders of Common Stock shall be
entitled to participate in such dividends and other distributions or
proceeds in cash, stock or property of the Corporation ratably on a per
share basis as the board of directors may declare out of assets or
funds legally available therefor.
Section 3. Liquidation. The holders of Common Stock shall be
entitled to participate ratably on a per share basis in all
distributions to the holders of Common Stock in any liquidation,
dissolution or winding up of the Corporation.
Section 4. Redemption. The Corporation shall redeem shares of
Common Stock on a date (the "Redemption Date") that is on or prior to
the 45th day (if such 45th day is a business day, and if not, the next
successive business day) after the date (the "Redemption Notice Date")
that the Corporation and each other holder of shares of Common Stock
receives written notice (a "Redemption Notice") from a holder of shares
of Common Stock (the "Holder") setting forth the number of shares the
Holder wants the Corporation to redeem (the "Redemption Shares"). After
the Redemption Notice Date, the Holder shall only be entitled to
receive from the Corporation on the Redemption Date the fair market
value of the Redemption Shares on the Redemption Notice Date (the
"Redemption Price").
In the Redemption Notice, the Holder may elect (a "Tremont
Share Election") to receive as part of the Redemption Price such number
of shares of the common stock, par value $1.00 per share, of Tremont
Corporation, a Delaware Corporation (the "Tremont Common Stock"), equal
to the product of 1,000 and the number of Redemption Shares.
After a Redemption Notice Date but before the Redemption Date,
the board of directors shall determine in good faith and in its best
business judgment the Redemption Price. In determining the Redemption
Price, the board of directors shall value each share of Tremont Common
Stock held by the Corporation on the Redemption Notice Date at the
volume weighted average sales price of a share of Tremont Common Stock
as reported on the New York Stock Exchange composite transactions
reporting system for the ten trading days ending on the Redemption
Notice Date, if such date is a trading day, and if not, on the
immediately prior trading day (the "Tremont Common Stock Value").
If the Holder does not make a Tremont Share Election, on the
Redemption Date the Corporation may pay the Redemption Price, in whole
or in part, in cash, shares of Tremont Common Stock or other property,
which other property the board of directors shall value in good faith
and in its best business judgment. In determining the fair market value
of securities traded on an exchange that are used to pay the Redemption
Price, the board of directors shall value each such security on the
Redemption Notice Date at the volume weighted average sales price of
such security as reported on the applicable exchange for the ten
trading days ending on the Redemption Notice Date, if such date is a
trading day, and if not, on the immediately prior trading day.
If shares of Tremont Common Stock are used to pay all or part
of the Redemption Price, on the Redemption Date:
(a) if the Tremont Common Stock Value for such shares
is less than or equal to the Redemption Price, the Corporation
shall transfer such shares to the Holder and such additional
cash or property in an amount equal in value on the Redemption
Notice Date, as the board of directors determines in good
faith and in its best business judgment, to the excess, if
any, of the Redemption Price over the Tremont Common Stock
Value for such shares;
(b) if the Tremont Common Stock Value for such shares
is greater than the Redemption Price, the Corporation shall
transfer such shares to the Holder and the Holder shall pay in
cash to the Corporation an amount equal to the excess of the
Tremont Common Stock Value for such shares over the Redemption
Price; and
(c) the Corporation shall deliver to the holder a
stock certificate representing the shares of Tremont Common
Stock comprising the Redemption Price accompanied by a stock
power duly endorsed in blank and the holder shall acquire good
and marketable title to such shares free and clear of any
liens, encumbrances, security interests, restrictive
agreements, claims or imperfections of any nature whatsoever,
other than restrictions on transfer imposed by applicable
securities laws.
On the Redemption Date, the Holder shall deliver to the
Corporation a stock certificate representing the Redemption Shares
accompanied by a stock power duly endorsed in blank and the Corporation
shall acquire good and marketable title to such shares free and clear
of any liens, encumbrances, security interests, restrictive agreements,
claims or imperfections of any nature whatsoever, other than
restrictions on transfer imposed by applicable securities laws.
After the Redemption Notice Date, the Redemption Shares shall
not be deemed to be outstanding and the Holder will only hold a
contractual right from the Corporation to receive the Redemption Price.
Section 5. Protective Provision. The Corporation shall not
amend this Article IV without obtaining the approval of the holders of
90% of the outstanding shares of Common Stock.
Section 6. Record Holders. The Corporation shall be entitled
to treat the person in whose name any share of its stock 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
on the part of any other person, whether or not the Corporation shall
have notice thereof, except as expressly provided by applicable law.
ARTICLE V.
EXISTENCE
The Corporation is to have perpetual existence.
ARTICLE VI.
BYLAWS
In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to adopt, amend or
repeal the bylaws or adopt new bylaws.
ARTICLE VII.
MEETINGS OF STOCKHOLDERS
BOOKS OF CORPORATION
ELECTION OF DIRECTORS
Meetings of stockholders may be held within or without the state of
Delaware, as the bylaws of the Corporation may provide. The books of the
Corporation may be kept outside the state of Delaware at such place or places as
may be designated from time to time by the board of directors or in the bylaws
of the Corporation. Election of directors need not by written ballot unless the
bylaws of the Corporation so provide.
ARTICLE VIII.
BOARD OF DIRECTORS
The number of directors constituting the board of directors of the
Corporation shall be five. The Corporation shall not change the number of
directors on the board of directors from five members without obtaining the
approval of the holders of 90% of the outstanding shares of Common Stock.
The name and address of each of the persons to serve as a director
until the first annual meeting of the stockholders or until his successor has
been duly elected and qualified or his earlier resignation, removal or death,
is:
Name Mailing Address
Harold C. Simmons Three Lincoln Centre
5430 LBJ Freeway, Suite 1700
Dallas, Texas 75240-2697
Glenn R. Simmons Three Lincoln Centre
5430 LBJ Freeway, Suite 1700
Dallas, Texas 75240-2697
Steven L. Watson Three Lincoln Centre
5430 LBJ Freeway, Suite 1700
Dallas, Texas 75240-2697
William J. Lindquist Three Lincoln Centre
5430 LBJ Freeway, Suite 1700
Dallas, Texas 75240-2697
J. Landis Martin 1999 Broadway, Suite 4300
Denver, Colorado 80202
ARTICLE IX.
INDEMNIFICATION
The Corporation shall, to the fullest extent permitted by law,
indemnify any and all officers and directors of the Corporation, and may, to the
fullest extent permitted by law or to such lesser extent as is determined in the
discretion of the board of directors, indemnify all other persons from and
against all expenses, liabilities or other matters and advance expenses to all
persons whom it shall have the power to indemnify.
ARTICLE X.
DIRECTOR LIABILITY
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for such liability as is expressly not subject to
limitation under the Delaware General Corporation Law, as the same exists or may
hereafter be amended to further limit or eliminate such liability. Any repeal or
modification of this ARTICLE 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.
ARTICLE XI.
CERTAIN BUSINESS COMBINATIONS
The Corporation expressly elects not to be governed by Section 203 of
the General Corporation Law of the State of Delaware.
ARTICLE XII.
SETTLEMENTS WITH CREDITORS OR STOCKHOLDERS
Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
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 the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under the
provisions of Section 291 of Title 8 of the Delaware Code or on the application
of trustees in dissolution or of any receiver or receivers appointed for the
Corporation under the provisions of Section 279 of Title 8 of the Delaware Code
order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the 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 the Corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of
the Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and said reorganization shall, if sanctioned by the
court to which the said application has been made, be binding on all creditors
or class of creditors, and/or on all the stockholders or class of stockholders,
of the Corporation, as the case may be, and also on the Corporation.
ARTICLE XIII.
AMENDMENT
The Corporation shall have the right, subject to any express provisions
or restrictions contained in this certificate of incorporation or bylaws of the
Corporation, from time to time, to amend this certificate of incorporation or
any provision thereof in any manner now or hereafter provided by law, and all
rights and powers of any kind conferred upon a director or stockholder of the
Corporation by this certificate of incorporation or any amendment thereof are
conferred subject to such right.
ARTICLE XIV.
INCORPORATOR
The name and mailing address of the sole incorporator of the
Corporation is A. Andrew R. Louis, Three Lincoln Centre, 5430 LBJ Freeway, Suite
1700, Dallas, Texas 75240-2697.
THE UNDERSIGNED, being the sole incorporator of the Corporation, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the state of Delaware, does make this certificate to acknowledge, declare and
certify that this certificate of incorporation is his act and deed and the facts
stated in this certificate of incorporation are true, and accordingly executes
this certificate of incorporation this 21st day of December, 2000.
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A. Andrew R. Louis, Sole Incorporator
