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EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
L & C SPINCO, INC.
L & C SPINCO, INC., a Delaware corporation (the "Corporation"), hereby
certifies as follows:
1. The name of the Corporation is L & C Spinco, Inc. The date of
filing of its original certificate of incorporation with the Secretary of State
was _____________, 2001.
2. This Restated Certificate of Incorporation amends, restates
and integrates the provisions of the Certificate of Incorporation as currently
in effect of said Corporation and has been duly adopted in accordance with the
provisions of Sections 242 and 245 of the Delaware General Corporation Law by
written consent of the holders of all of the outstanding stock entitled to vote
thereon in accordance with the provisions of Section 228 of the Delaware General
Corporation Law.
3. The text of the Certificate of Incorporation as currently in
effect is hereby amended and restated to read as set forth in full herein:
ARTICLE I
The name of the Corporation is L & C Spinco, Inc.
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is 2711 Centerville Road, Suite 400 in the City of Wilmington, County
of New Castle, Delaware 19808. The name of its registered agent at such address
is Corporation Service Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Delaware General
Corporation Law.
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ARTICLE IV
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 550,000,000, of which 500,000,000
shares of the par value of $.01 per share shall be a separate class designated
as Common Stock and 50,000,000 shares of the par value of $.01 per share shall
be a separate class designated as Preferred Stock.
A. COMMON STOCK
(i) Voting. Except as may be provided in this Certificate of
Incorporation or required by law, the Common Stock shall have voting rights in
the election of directors and on all other matters presented to stockholders,
with each holder of Common Stock being entitled to one vote for each share of
Common Stock held of record by such holder on such matters.
(ii) Dividends. Subject to the rights of the holders of any series of
Preferred Stock, holders of Common Stock shall be entitled to receive such
dividends and distributions (whether payable in cash or otherwise) as may be
declared on the Common Stock by the board of directors of the Corporation from
time to time out of assets or funds of the Corporation legally available
therefor.
(iii) Subdivisions, Combinations and Mergers. In the event of any
merger, statutory share exchange, consolidation or similar form of corporate
transaction involving the Corporation (whether or not the Corporation is the
surviving entity), the holders of Common Stock shall be entitled to receive the
same per share consideration, if any.
(iv) Rights on Liquidation. Subject to the rights of the holders of any
series of Preferred Stock, in the event of any liquidation, dissolution or
winding-up of the Corporation (whether voluntary or involuntary), the assets of
the Corporation available for distribution to stockholders shall be distributed
in equal amounts per share to the holders of Common Stock.
For purposes of this paragraph, a merger, statutory share exchange,
consolidation or similar corporate transaction involving the Corporation
(whether or not the Corporation is the surviving entity), or the sale, transfer
or lease by the Corporation of all or substantially all its assets, shall not
constitute or be deemed a liquidation, dissolution or winding-up of the
Corporation.
B. PREFERRED STOCK
Shares of Preferred Stock may be issued in one or more series from time
to time as determined by the board of directors of the Corporation, and the
board of directors of the Corporation is authorized to fix by resolution or
resolutions the designations and the powers, preferences and rights, and the
qualifications, limitations and restrictions thereof, of the shares of each
series of Preferred Stock, including the following:
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(i) the distinctive serial designation of such series which shall
distinguish it from other series;
(ii) the number of shares included in such series;
(iii) whether dividends shall be payable to the holders of the shares
of such series and, if so, the basis on which such holders shall be entitled to
receive dividends (which may include, without limitation, a right to receive
such dividends or distributions as may be declared on the shares of such series
by the board of directors of the Corporation, a right to receive such dividends
or distributions, or any portion or multiple thereof, as may be declared on the
Common Stock or any other class of stock or, in addition to or in lieu of any
other right to receive dividends, a right to receive dividends at a particular
rate or at a rate determined by a particular method, in which case such rate or
method of determining such rate may be set forth), the form of such dividend,
any conditions on which such dividends shall be payable and the date or dates,
if any, on which such dividends shall be payable;
(iv) whether dividends on the shares of such series shall be cumulative
and, if so, the date or dates or method of determining the date or dates from
which dividends on the shares of such series shall be cumulative;
(v) the amount or amounts, if any, which shall be payable out of the
assets of the Corporation to the holders of the shares of such series upon the
voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation, and the relative rights of priority, if any, of payment of the
shares of such series;
(vi) the price or prices (in cash, securities or other property or a
combination thereof) at which, the period or periods within which and the terms
and conditions upon which the shares of such series may be redeemed, in whole or
in part, at the option of the Corporation or at the option of the holder or
holders thereof or upon the happening of a specified event or events;
(vii) the obligation, if any, of the Corporation to purchase or redeem
shares of such series pursuant to a sinking fund or otherwise and the price or
prices (in cash, securities or other property or a combination thereof) at
which, the period or periods within which and the terms and conditions upon
which the shares of such series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(viii) whether or not the shares of such series shall be convertible or
exchangeable, at any time or times at the option of the holder or holders
thereof or at the option of the Corporation or upon the happening of a specified
event or events, into shares of any other class or classes or any other series
of the same or any other class or classes of stock of the Corporation or any
other securities or property of the Corporation or any other entity, and the
price or prices (in cash, securities or other property or a combination thereof)
or rate or rates of conversion or exchange and any adjustments applicable
thereto; and
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(ix) whether or not the holders of the shares of such series shall have
voting rights, in addition to the voting rights provided by law, and if so the
terms of such voting rights, which may provide, among other things and subject
to the other provisions of this Certificate of Incorporation, that each share of
such series shall carry one vote or more or less than one vote per share, that
the holders of such series shall be entitled to vote on certain matters as a
separate class (which for such purpose may be comprised solely of such series or
of such series and one or more other series or classes of stock of the
Corporation) and that all the shares of such series entitled to vote on a
particular matter shall be deemed to be voted on such matter in the manner that
a specified portion of the voting power of the shares of such series or separate
class are voted on such matter.
For all purposes, this Certificate of Incorporation shall include each
certificate of designations (if any) setting forth the terms of a series of
Preferred Stock.
Subject to the rights, if any, of the holders of Preferred Stock, an
amendment of this Certificate of Incorporation to increase or decrease the
number of authorized shares of Preferred Stock (but not below the number of
shares thereof then outstanding) may be adopted by resolution adopted by the
board of directors of the Corporation and approved by the affirmative vote of
the holders of a majority of the voting power of all outstanding shares of
Common Stock of the Corporation and all other outstanding shares of stock of the
Corporation entitled to vote thereon, with such outstanding shares of Common
Stock and other stock considered for this purpose as a single class, and no vote
of the holders of Preferred Stock, voting as a separate class, shall be required
therefor.
Except as otherwise required by law or provided in the certificate of
designations for the relevant series, holders of Common Stock, as such, shall
not be entitled to vote on any amendment of this Certificate of Incorporation
that alters or changes the powers, preferences, rights or other terms of one or
more outstanding series of Preferred Stock if the holders of such affected
series are entitled, either separately or together with the holders of one or
more other series of Preferred Stock, to vote thereon as a separate class
pursuant to this Certificate of Incorporation or pursuant to the Delaware
General Corporation Law as then in effect.
C. PARTICIPATING PREFERRED STOCK
There is hereby established a series of Preferred Stock, $.01 par
value, of the Corporation, and the designation and certain terms, powers,
preferences and other rights of the shares of such series, and certain
qualifications, limitations and restrictions thereon, are hereby fixed as
follows:
(i) The distinctive serial designation of this series shall be
"Participating Preferred Stock" (hereinafter called "this Series"). Each share
of this Series shall be identical in all respects with the other shares of this
Series except as to the dates from and after which dividends thereon shall be
cumulative.
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(ii) The number of shares in this Series shall initially be _______,
which number may from time to time be increased or decreased (but not below the
number then outstanding) by the Board of Directors. Shares of this Series
purchased by the Corporation shall be canceled and shall revert to authorized
but unissued shares of Preferred Stock undesignated as to series. Shares of this
Series may be issued in fractional shares, which fractional shares shall entitle
the holder, in proportion to such holder's fractional share, to all rights of a
holder of a whole share of this Series.
(iii) The holders of full or fractional shares of this Series shall be
entitled to receive, when and as declared by the Board of Directors, but only
out of funds legally available therefor, dividends, (A) on each date that
dividends or other distributions (other than dividends or distributions payable
in Common Stock of the Corporation) are payable on or in respect of Common Stock
comprising part of the Reference Package (as defined below), in an amount per
whole share of this Series equal to the aggregate amount of dividends or other
distributions (other than dividends or distributions payable in Common Stock of
the Corporation) that would be payable on such date to a holder of the Reference
Package and (B) on the last day of March, June, September and December in each
year, in an amount per whole share of this Series equal to the excess (if any)
of $____ over the aggregate dividends paid per whole share of this Series during
the three month period ending on such last day. Each such dividend shall be paid
to the holders of record of shares of this Series on the date, not exceeding
sixty days preceding such dividend or distribution payment date, fixed for the
purpose by the Board of Directors in advance of payment of each particular
dividend or distribution. Dividends on each full and each fractional share of
this Series shall be cumulative from the date such full or fractional share is
originally issued; provided that any such full or fractional share originally
issued after a dividend record date and on or prior to the dividend payment date
to which such record date relates shall not be entitled to receive the dividend
payable on such dividend payment date or any amount in respect of the period
from such original issuance to such dividend payment date.
The term "Reference Package" shall initially mean 100 shares of Common
Stock, par value $.01 per share ("Common Stock"), of the Corporation. In the
event the Corporation shall at any time after the Close of Business on ________,
____ (A) declare or pay a dividend on any Common Stock payable in Common Stock,
(B) subdivide any Common Stock or (C) combine any Common Stock into a smaller
number of shares, then and in each such case the Reference Package after such
event shall be the Common Stock that a holder of the Reference Package
immediately prior to such event would hold thereafter as a result thereof.
Holders of shares of this Series shall not be entitled to any
dividends, whether payable in cash, property or stock, in excess of full
cumulative dividends, as herein provided on this Series.
So long as any shares of this Series are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking junior to
this Series as to dividends and upon liquidation) shall be declared or paid or
set aside for payment or other distribution declared or made upon the Common
Stock or upon any other stock ranking junior to this Series as to dividends or
upon liquidation, unless the full cumulative dividends (including the dividend
to be paid upon payment of such dividend or other distribution) on all
outstanding shares of this Series
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shall have been, or shall contemporaneously be, paid. When dividends are not
paid in full upon this Series and other stock ranking on a parity as to
dividends with this Series, all dividends declared upon shares of this Series
and any other stock ranking on a parity as to dividends shall be declared pro
rata so that in all cases the amount of dividends declared per share on this
Series and such other stock shall bear to each other the same ratio that
accumulated dividends per share on the shares of the Series and such other stock
bear to each other. Neither the Common Stock nor any other stock of the
Corporation ranking junior to or on a parity with this Series as to dividends or
upon liquidation shall be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking fund for
the redemption of any shares of any such stock) by the Corporation (except by
conversion into or exchange for stock of the Corporation ranking junior to this
Series as to dividends and upon liquidation), unless the full cumulative
dividends (including the dividend to be paid upon payment of such dividend,
distribution, redemption, purchase or other acquisition) on all outstanding
shares of this Series shall have been, or shall contemporaneously be, paid.
(iv) In the event of any merger, consolidation, reclassification or
other transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other property, then in
any such case the shares of this Series shall at the same time be similarly
exchanged or changed in an amount per whole share equal to the aggregate amount
of stock, securities, cash and/or any other property (payable in kind), as the
case may be, that a holder of the Reference Package would be entitled to receive
as a result of such transaction.
(v) In the event of any liquidation, dissolution or winding up of the
affairs of the Corporation, whether voluntary or involuntary, the holders of
full and fractional shares of this Series shall be entitled, before any
distribution or payment is made on any date to the holders of the Common Stock
or any other stock of the Corporation ranking junior to this Series upon
liquidation, to be paid in full an amount per whole share of this Series equal
to the greater of (A) $__________ or (B) the aggregate amount distributed or to
be distributed prior to such date in connection with such liquidation,
dissolution or winding up to a holder of the Reference Package (such greater
amount being hereinafter referred to as the "Liquidation Preference"), together
with accrued dividends to such distribution or payment date, whether or not
earned or declared. If such payment shall have been made in full to all holders
of shares of this Series, the holders of shares of this Series as such shall
have no right or claim to any of the remaining assets of the Corporation.
In the event the assets of the Corporation available for distribution
to the holders of shares of this Series upon any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full all amounts to which such holders are entitled
pursuant to the first paragraph of this Section (v), no such distribution shall
be made on account of any shares of any other class or series of Preferred Stock
ranking on a parity with the shares of this Series upon such liquidation,
dissolution or winding up unless proportionate distributive amounts shall be
paid on account of the shares of this Series, ratably in proportion to the full
distributable amounts for which holders of all such parity shares are
respectively entitled upon such liquidation, dissolution or winding up.
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Upon the liquidation, dissolution or winding up of the Corporation, the
holders of shares of this Series then outstanding shall be entitled to be paid
out of assets of the Corporation available for distribution to its stockholders
all amounts to which such holders are entitled pursuant to the first paragraph
of this Section (v) before any payment shall be made to the holders of Common
Stock or any other stock of the Corporation ranking junior upon liquidation to
this Series.
For the purposes of this Section (v), the consolidation or merger of,
or binding share exchange by, the Corporation with any other corporation shall
not be deemed to constitute a liquidation, dissolution or winding up of the
Corporation.
(vi) The shares of this Series shall not be redeemable.
(vii) In addition to any other vote or consent of stockholders required
by law or by the Certificate of Incorporation, as amended, of the Corporation,
each whole share of this Series shall, on any matter, vote as a class with any
other capital stock comprising part of the Reference Package and voting on such
matter and shall have the number of votes thereon that a holder of the Reference
Package would have.
ARTICLE V
All corporate powers shall be exercised by the board of directors of
the Corporation, except as otherwise specifically required by law or as
otherwise provided in this Certificate of Incorporation. Any meeting of
stockholders may be postponed by action of the board of directors at any time in
advance of such meeting. The board of directors of the Corporation shall have
the power to adopt such rules and regulations for the conduct of the meetings
and management of the affairs of the Corporation as they may deem proper and the
power to adjourn any meeting of stockholders without a vote of the stockholders,
which powers may be delegated by the board of directors to the chairman of such
meeting either in such rules and regulations or pursuant to the by-laws of the
Corporation.
Special meetings of stockholders of the Corporation may be called at
any time by, but only by, the board of directors of the Corporation, to be held
at such date, time and place either within or without the State of Delaware as
may be stated in the notice of the meeting.
The board of directors of the Corporation is authorized to adopt, amend
or repeal by-laws of the Corporation. No adoption, amendment or repeal of a
by-law by action of stockholders shall be effective unless approved by the
affirmative vote of the holders of not less than 80% of the voting power of all
outstanding shares of Common Stock of the Corporation and all other outstanding
shares of stock of the Corporation entitled to vote on such matter, with such
outstanding shares of Common Stock and other stock considered for this purpose
as a single class. Any vote of stockholders required by this Article V shall be
in addition to any other vote
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of stockholders that may be required by law, this Certificate of Incorporation,
the by-laws of the Corporation, any agreement with a national securities
exchange or otherwise.
ARTICLE VI
Elections of directors need not be by written ballot except and to the
extent provided in the by-laws of the Corporation.
ARTICLE VII
The directors of the Corporation shall be divided into three classes.
The number of directors of the Corporation and the number of directors in each
class of directors shall be fixed only by resolution of the board of directors
of the Corporation from time to time. The initial term of office of the first
such class of directors shall expire at the first annual meeting of
stockholders, the initial term of office of the second such class of directors
shall expire at the second annual meeting of stockholders and the initial term
of office of the third such class of directors shall expire at the third annual
meeting of stockholders, with each such class of directors to hold office until
their successors have been duly elected and qualified. At each annual meeting of
stockholders, directors elected to succeed the directors whose terms expire at
such annual meeting shall be elected to hold office for a term expiring at the
annual meeting of stockholders in the third year following the year of their
election and until their successors have been duly elected and qualified. If the
number of directors is changed, any increase or decrease shall be apportioned
among the classes in such manner as the board of directors of the Corporation
shall determine, but no decrease in the number of directors may shorten the term
of any incumbent director.
No director who is part of any such class of directors may be removed
except both for cause and with the affirmative vote of the holders of not less
than 80% of the voting power of all outstanding shares of stock of the
Corporation entitled to vote generally in the election of directors, considered
for this purpose as a single class.
Vacancies and newly created directorships resulting from any increase
in the authorized number of directors or from any other cause (other than
vacancies and newly created directorships which the holders of any class or
classes of stock or series thereof are expressly entitled by this Certificate of
Incorporation to fill) shall be filled by, and only by, a majority of the
directors then in office, although less than a quorum, or by the sole remaining
director (and not by stockholders). Any director appointed to fill a vacancy or
a newly created directorship shall hold office until the next election of the
class of directors of the director which such director replaced or the class of
directors to which such director was appointed, and until his or her successor
is elected and qualified or until his or her earlier resignation or removal.
Notwithstanding the foregoing, in the event that the holders of any
class or series of Preferred Stock of the Corporation shall be entitled, voting
separately as a class, to elect any
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directors of the Corporation, then the number of directors that may be elected
by such holders voting separately as a class shall be in addition to the number
fixed pursuant to a resolution of the board of directors of the Corporation.
Except as otherwise provided in the terms of such class or series, (i) the terms
of the directors elected by such holders voting separately as a class shall
expire at the annual meeting of stockholders next succeeding their election
without regard to the classification of other directors and (ii) any director or
directors elected by such holders voting separately as a class may be removed,
without cause, by the holders of a majority of the voting power of all
outstanding shares of stock of the Corporation entitled to vote separately as a
class in an election of such directors.
ARTICLE VIII
No action of stockholders of the Corporation required or permitted to
be taken at any annual or special meeting of stockholders of the Corporation may
be taken without a meeting of stockholders, without prior notice and without a
vote, and the power of stockholders of the Corporation to consent in writing to
the taking of any action without a meeting is specifically denied.
Notwithstanding this Article VIII, the holders of any series of Preferred Stock
of the Corporation shall be entitled to take action by written consent to such
extent, if any, as may be provided in the terms of such series.
ARTICLE IX
A. In addition to any approval of the board of directors or any
stockholder vote or consent required by the laws of the State of Delaware or any
other provision of this Certificate of Incorporation or otherwise, there shall
be required for the approval, adoption, or authorization of a Business
Combination with an Interested Person the affirmative vote or consent of the
holders of a majority of the shares of stock of the Corporation entitled to vote
in elections of directors considered separately for the purposes of this Article
IX, which are not beneficially owned, directly or indirectly, by such Interested
Person; provided, however, that said voting requirement shall not be applicable
if all of the conditions specified in subparagraphs (1) and (2) below are met or
if all of the conditions specified in subparagraph (3) are met:
(1) The consideration to be received per share in such
Business Combination by holders of the stock of the Corporation is payable in
cash or Acceptable Securities, or a combination of both, and the Acceptable
Securities (plus the cash, if any) have a fair market value per share of the
Corporation's stock of not less than either:
(a) the highest price (including the highest per
share brokerage commissions, transfer tax, and soliciting dealers fees) paid by
said Interested Person in acquiring any of the Corporation's stock; or
(b) a price per share obtained by multiplying
the aggregate earnings per share of stock of the Corporation (appropriately
adjusted for any subdivision of shares, stock
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dividend, or combination of shares during the period) for the four full
consecutive fiscal quarters immediately preceding the record date for
solicitation of votes or consents on such Business Combination by the figure
obtained by dividing the highest per share price (including the highest per
share brokerage commissions, transfer tax, and soliciting dealers fees) paid by
such Interested Person acquiring any of the Corporation's stock by the aggregate
earnings per share of the Corporation for the four full consecutive fiscal
quarters immediately preceding the time when the Interested Person shall have
become the beneficial owner of five percent (5%) or more of the stock of the
Corporation entitled to vote in elections of directors.
If any securities were issued by an Interested Person in
exchange for stock of the Corporation prior to the proposed Business
Combination, the fair market value of said securities at the time of issue shall
be used in determining the per share price paid for said stock.
(2) After the Interested Person has become the beneficial
owner of five percent (5%) or more of the stock of the Corporation entitled to
vote in the election of directors and prior to the consummation of such Business
Combination, there shall have been no reduction in the rate of dividends payable
on the Corporation's stock which would result in a quarterly dividend rate per
share which is less than the average quarterly dividend rate per share for the
four full consecutive fiscal quarters immediately preceding the time when the
Interested Person shall have become the beneficial owner of five percent (5%) or
more of the stock of the Corporation unless such reduction in the rate of
dividends has been approved by the board of directors of the Corporation and a
majority of the members of the board of directors approving such reduction were
duly elected and acting members of the board of directors prior to the time that
such Interested Person shall have become a beneficial owner of five percent (5%)
or more of the shares of the Corporation. For the purposes of this paragraph,
"quarterly dividend rate per share" for any quarterly dividend shall be equal to
the percentage said quarterly dividend per share bears to the earnings per share
for the four full fiscal quarters immediately preceding the declaration of said
quarterly dividend.
(3) The board of directors of the Corporation has
approved a memorandum of understanding with such other Interested Person with
respect to such Business Combination prior to the time that such Interested
Person shall have become a beneficial owner of five percent (5%) or more of the
shares of stock entitled to vote in elections of directors, or thereafter if
such Business Combination is otherwise approved by the board of directors of the
Corporation, provided that a majority of the members of the board of directors
voting for the approval of such transaction were duly elected and acting members
of the board of directors prior to the time that such Interested Person shall
have become a beneficial owner of five percent (5%) or more of the shares of
stock of the Corporation entitled to vote in elections of directors.
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B. For the purposes of this Article IX:
(1) "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 amended.
(2) A person shall be the "beneficial owner" and
"beneficially owns" shares of stock of the Corporation (other than shares of the
Corporation's stock held in its treasury) (a) which such person and its
affiliates and associates beneficially own, directly or indirectly, whether of
record or not, (b) which such person or any of its affiliates or associates has
the right to acquire, pursuant to any agreement upon the exercise of conversion
rights, warrants, or options, or otherwise, (c) which such person or any of its
affiliates or associates has the right to sell or vote pursuant to any
agreement, or (d) 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 purpose of
acquiring, holding, voting, or disposing of securities of the Corporation.
(3) "Business Combination" is
(a) any merger or consolidation of the
Corporation or any subsidiary of the Corporation with or into any Interested
Person (regardless of the identity of the surviving corporation);
(b) any sale, lease, or other disposition of all
or any substantial part of the assets of the Corporation or any subsidiary of
the Corporation to any Interested Person for cash or securities or both;
(c) any issuance or delivery of securities of
the Corporation or a subsidiary of the Corporation (which the beneficial owner
shall have the right to vote, or to vote upon exercise, conversion, or by
contract) to an Interested Person in consideration for or in exchange of any
securities or other property (including cash);
(4) "Acceptable Securities" shall mean (a) securities of
the same class or series, with the same rights, powers, and benefits and of the
same denomination, term, and interest, or dividend, if any, as the securities
issued and delivered by the Interested Person in exchange for the majority of
the stock of the Corporation acquired by the Interested Person or (b) the class
of common stock of the Interested Person which is beneficially owned by the most
persons.
(5) "Interested Person" is any person which, as of the
record date for the determination of stockholders entitled to notice of any
Business Combination and to vote thereon or consent thereto, or as of the date
of any such vote or consent, or immediately prior to the consummation of any
Business Combination, beneficially owns, directly or indirectly, five percent
(5%) or more of the shares of stock of the Corporation entitled to vote in
elections of directors.
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(6) "Person" is an individual, partnership, corporation,
limited liability company, or other entity.
(7) "Subsidiary of the Corporation" is any corporation of
which fifty percent (50%) or more of any class of stock is beneficially owned,
directly or indirectly, by the Corporation.
C. No amendment to this Certificate of Incorporation shall amend,
alter, change, or repeal any of the provisions of this Article IX unless such
amendment, in addition to receiving any stockholder vote or consent required by
the laws of the State of Delaware in effect at the time, shall receive the
affirmative vote or consent of the holders of a majority of the shares of stock
of the Corporation entitled to vote in elections of directors which are not
beneficially owned, directly or indirectly, by any person which would be an
Interested Person if the vote or consent on such amendment were a vote or
consent on a Business Combination.
ARTICLE X
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 an improper
personal benefit. If the Delaware General Corporation Law is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph 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
No provision of Article V, Article VII, Article VIII or Article X or of
this Article XI shall be amended, modified or repealed, and no provision
inconsistent with any such provision shall become part of this Certificate of
Incorporation, unless such matter is approved by the affirmative vote of the
holders of not less than 80% of the voting power of all outstanding shares of
Common Stock of the Corporation and all other outstanding shares of stock of the
Corporation entitled to vote on such matter, with such outstanding shares of
Common Stock and other stock considered for this purpose as a single class. Any
vote of stockholders required by this Article XI shall be in addition to any
other vote of the stockholders that may be required by
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law, this Certificate of Incorporation, the by-laws of the Corporation, any
agreement with a national securities exchange or otherwise.
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IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed and attested by its duly authorized officer on this ____ day of
_______________, 2001.
L & C SPINCO, INC.
By:
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Name:
Title:
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