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EXHIBIT (c)(3)
AMENDMENT NUMBER TWO TO
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NUMBER TWO TO AMENDED AND RESTATED AGREEMENT AND PLAN
OF MERGER (this "Amendment") is made and entered into as of this 10th day of
March, 1998, by and among Xxxxx X. Best, Inc., a Delaware corporation ("FEB"),
Best Universal Lock Co., a Delaware corporation ("BUL"), Best Lock Corporation,
a Delaware corporation ("BLC" and, together with FEB and BUL, the "Companies"),
Webco One, Inc., a Delaware corporation ("W1"), Webco Two, Inc., a Delaware
corporation ("W2"), Webco Three, Inc., a Delaware corporation ("W3" and,
together with W1 and W2, the "Merger Subs"), and Xxxxxx X. Best Company, Inc.,
an Indiana corporation ("Webco").
R E C I T A L S
A. The Companies, the Merger Subs and Webco previously entered
into an Amended and Restated Agreement and Plan of Merger, dated as of December
1, 1997, which was amended on January 29, 1998 (as so amended, the "Merger
Agreement"), pursuant to which, among other things, W1 will be merged with and
into FEB, W2 will be merged with and into BUL and W3 will be merged with and
into BLC.
B. The Companies, the Merger Subs and Webco have determined that
there are certain typographical errors in the Exhibits to the Merger Agreement
and desire to amend the Merger Agreement as specifically provided for herein to
correct such errors.
C. NOW, THEREFORE, in consideration of the mutual promises and
agreements of the parties set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
AGREEMENTS
1. Amendments. Exhibits X-0, X-0 and A-3 to the Merger Agreement
are hereby deleted and replaced in their entirety by Exhibits X-0, X-0 xxx X-0,
attached hereto.
2. Merger Agreement in Full Force. Except as herein amended, the
Merger Agreement shall remain unchanged and in full force and effect and is
hereby satisfied, approved and confirmed in all respects.
3. References. After the date hereof, all references in the
Merger Agreement to "Agreement", "hereof", "herein", or similar terms shall
refer to the Merger Agreement as amended hereby.
4. Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the Companies, the Merger Subs, Webco and their
respective successors and assigns.
5. Governing Law. This Amendment shall be governed by and in
accordance with the internal laws, and not the laws of conflict, of the State
of Delaware.
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IN WITNESS WHEREOF, Webco, the Merger Subs and the Companies have
caused this Amendment to be signed as of the date first written above.
XXXXX X. BEST, INC.
By: /s/ Xxxxxxx X. Best
-------------------
Name: Xxxxxxx X. Best
Title: President
BEST UNIVERSAL LOCK CO.
By: /s/ Xxxxxxx X. Best
Name: Xxxxxxx X. Best
-------------------
Title: President
BEST LOCK CORPORATION
By: /s/ Xxxxxxx X. Best
-------------------
Name: Xxxxxxx X. Best
Title: President
XXXXXX X. BEST COMPANY, INC.
By: /s/ Xxxxxxx X. Best
-------------------
Name: Xxxxxxx X. Best
Title: President
WEBCO ONE, INC.
By: /s/ Xxxxxxx X. Best
-------------------
Name: Xxxxxxx X. Best
Title: President
WEBCO TWO, INC.
By: /s/ Xxxxxxx X. Best
-------------------
Name: Xxxxxxx X. Best
Title: President
WEBCO THREE, INC.
By: /s/ Xxxxxxx X. Best
-------------------
Name: Xxxxxxx X. Best
Title: President
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EXHIBIT A-1
The Certificate of Incorporation of Xxxxx X. Best, Inc. shall be
amended in its entirety as follows:
1. Corporate Name. The name of the corporation (hereinafter, the
"Corporation") is Xxxxx X. Best, Inc.
2. Registered Office and Agent. The address, including street, number,
city and county, of the registered office of the Corporation in the State of
Delaware is 0000 Xxxxxx Xxxxxx, County of Xxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000. The name of the registered agent of the Corporation in the State of
Delaware at such address is The Corporation Trust Company.
3. Purposes. The nature of the business of the Corporation and the
objects or purposes to be transacted, promoted, conducted or carried on by it
are as follows:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of Delaware.
4. Authorized Capital Stock. The total number of shares of stock which
the Corporation shall have authority to issue is One Thousand (1,000) shares of
Common Stock, each with a par value of One Cent ($0.01) per share (hereinafter,
the "Capital Stock"). The rights and qualifications, limitations or restrictions
of the shares of Capital Stock are as follows:
(a) Voting Rights. Except as may otherwise be provided by applicable
law, each share of Common Stock shall be entitled to vote as one class for
election of directors and on all other matters which may be submitted to a
vote of stockholders of the Corporation.
(b) Dividends. Dividends may be declared from time to time on the
Common Stock at the discretion of the board of directors of the Corporation
and in accordance with the provisions of the General Corporation Law of the
State of Delaware.
(c) Additional Issuances. At any time and from time to time while
shares of Common Stock are outstanding, the Corporation may create one or
more series or one or more classes of capital stock senior to or on a parity
with the shares of Common Stock in payment of dividends or upon liquidation,
dissolution or winding up.
5. Name and Address of Incorporator. The name and address of the
incorporator of the Corporation is Xxxxx X. Xxxxxxx, 0000 X. 00xx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxx 00000.
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6. Additional Provisions. For the management of the business and for
the conduct of the affairs of the Corporation, and in further definition,
limitation and regulation of the powers of the Corporation and of its directors
and stockholders, the following additional provisions are set forth and made a
part of this Certificate of Incorporation:
(a) The number of directors which shall constitute the whole board of
directors of the Corporation shall be fixed by, or in the manner provided
in, the by-laws of the Corporation, but such number may from time to time be
increased or decreased in such manner as may be prescribed by the by-laws.
The election of directors need not be by ballot.
(b) In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the board of directors of the Corporation is
expressly authorized and empowered:
(1) to make, alter, amend and repeal the by-laws of the
Corporation, except as otherwise provided or permitted under the
General Corporation Law of the State of Delaware and except that any
by-law which, in accordance with the provisions of the by-laws, may be
altered, amended or repealed only by the stockholders may not be
altered, amended or repealed by the directors;
(2) subject to the applicable provisions of the by-laws then in
effect, to determine, from time to time, whether and to what extent and
at what times and places and under what conditions and regulations the
accounts and books of the Corporation, or any of them, shall be open to
the inspection of the stockholders; and no stockholder shall have any
right, except as conferred by the laws of the State of Delaware, to
inspect any account or book or document of the Corporation unless and
until authorized so to do by resolution of the board of directors or
the stockholders of the Corporation;
(3) without the assent or vote of the stockholders of the
Corporation, to authorize and issue obligations of the Corporation,
secured or unsecured, to include therein such provisions as to
redeemability, convertibility or otherwise, as the board of directors,
in its sole discretion, may determine, and to authorize the mortgaging
or pledging, as security therefor, of any property of the Corporation,
real or personal, including after-acquired property;
(4) to determine whether any, and if any, what part, of the surplus
of the Corporation or, in the event there shall be no such surplus, of
the net profits of the Corporation for the then current fiscal year or
the then immediately preceding fiscal year shall be declared in
dividends and paid to the stockholders, and to direct and determine the
use and disposition of any such surplus or such net profits;
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(5) to fix from time to time the amount of profits of the
Corporation to be reserved as working capital or for any other lawful
purpose;
(6) to establish bonus, profit-sharing or other types of incentive
or compensation plans for employees (including officers and directors)
of the Corporation and to fix the amount of profits to be distributed
or shared and to determine the persons to participate in any such plans
and the amounts of their respective participation.
In addition to the powers and authorities hereinbefore or by statute
expressly conferred upon it, the board of directors may exercise all such
powers and do all such acts and things as may be exercised or done by the
Corporation, subject, nevertheless, to the provisions of the laws of the
State of Delaware and the Certificate of Incorporation and the by-laws of
the Corporation.
(c) Any director or any officer elected or appointed by the
stockholders or by the board of directors may be removed at any time in such
manner as shall be provided in the by-laws of the Corporation.
(d) Subject to any limitations in the by-laws of the Corporation, the
members of the board of directors shall be entitled to reasonable fees,
salaries or other compensation for their services and to reimbursement for
their expenses as such members. Nothing contained herein shall preclude any
director from serving the Corporation, or any subsidiary or affiliated
corporation, in any other capacity and receiving proper compensation
therefor.
(e) If the by-laws of the Corporation so provide, the stockholders and
board of directors of the Corporation shall have power to hold their
meetings, to have an office or offices and to keep the books of the
Corporation, subject to the provisions of the laws of the State of Delaware,
outside the State of Delaware at such place or places as may from time to
time be designated by the board of directors.
(f) 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
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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 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 the Corporation, as the case may be, and also on the
Corporation.
7. Indemnification and Insurance. The board of directors of the
Corporation may, by resolution adopted from time to time, indemnify such persons
as permitted by the General Corporation Law of the State of Delaware as amended
from time to time. The board of directors of the Corporation may, by resolution
adopted from time to time, purchase and maintain insurance on behalf of such
persons as permitted by the General Corporation Law of the State of Delaware as
amended from time to time.
8. Liability of Directors. No directors of the Corporation shall 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 General
Corporation Law of the State of Delaware, as the same exists or hereafter may be
amended, or (iv) for any transaction from which the director derived an improper
personal benefit. Any repeal or modification of this paragraph by the
stockholders of the Corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director of the
Corporation existing at the time of such repeal or modification. Nothing herein
shall limit or otherwise affect the obligation or right of the Corporation to
indemnify its directors pursuant to the provisions of this Certificate of
Incorporation, the by-laws of the Corporation or as may be permitted by the
General Corporation Law of the State of Delaware.
9. Amendment. Any of the provisions of this Certificate of
Incorporation may from time to time be amended, altered or repealed, and other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted in the manner and at the time prescribed by said laws,
and all rights at any time conferred upon the stockholders of the Corporation by
this Certificate of Incorporation are granted subject to the provisions of this
Section 9.
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EXHIBIT A-2
The Certificate of Incorporation of Best Universal Lock Co. shall be
amended in its entirety as follows:
1. Corporate Name. The name of the corporation (hereinafter, the
"Corporation") is Best Universal Lock Co.
2. Registered Office and Agent. The address, including street,
number, city and county, of the registered office of the Corporation in the
State of Delaware is 0000 Xxxxxx Xxxxxx, County of Xxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000. The name of the registered agent of the Corporation in the
State of Delaware at such address is The Corporation Trust Company.
3. Purposes. The nature of the business of the Corporation and
the objects or purposes to be transacted, promoted, conducted or carried on by
it are as follows:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of Delaware.
4. Authorized Capital Stock. The total number of shares of stock
which the Corporation shall have authority to issue is One Thousand (1,000)
shares of Common Stock, each with a par value of One Cent ($0.01) per share
(hereinafter, the "Capital Stock"). The rights and qualifications, limitations
or restrictions of the shares of Capital Stock are as follows:
(a) Voting Rights. Except as may otherwise be provided by
applicable law, each share of Common Stock shall be entitled to vote as one
class for election of directors and on all other matters which may be
submitted to a vote of stockholders of the Corporation.
(b) Dividends. Dividends may be declared from time to time on the
Common Stock at the discretion of the board of directors of the Corporation
and in accordance with the provisions of the General Corporation Law of the
State of Delaware.
(c) Additional Issuances. At any time and from time to time while
shares of Common Stock are outstanding, the Corporation may create one or
more series or one or more classes of capital stock senior to or on a
parity with the shares of Common Stock in payment of dividends or upon
liquidation, dissolution or winding up.
5. Name and Address of Incorporator. The name and address of the
incorporator of the Corporation is Xxxxx X. Xxxxxxx, 0000 X. 00xx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxx 00000.
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6. Additional Provisions. For the management of the business and
for the conduct of the affairs of the Corporation, and in further definition,
limitation and regulation of the powers of the Corporation and of its directors
and stockholders, the following additional provisions are set forth and made a
part of this Certificate of Incorporation:
(a) The number of directors which shall constitute the whole board
of directors of the Corporation shall be fixed by, or in the manner
provided in, the by-laws of the Corporation, but such number may from time
to time be increased or decreased in such manner as may be prescribed by
the by-laws. The election of directors need not be by ballot.
(b) In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware, the board of directors of the
Corporation is expressly authorized and empowered:
(1) to make, alter, amend and repeal the by-laws of the
Corporation, except as otherwise provided or permitted under the
General Corporation Law of the State of Delaware and except that any
by-law which, in accordance with the provisions of the by-laws, may be
altered, amended or repealed only by the stockholders may not be
altered, amended or repealed by the directors;
(2) subject to the applicable provisions of the by-laws
then in effect, to determine, from time to time, whether and to what
extent and at what times and places and under what conditions and
regulations the accounts and books of the Corporation, or any of them,
shall be open to the inspection of the stockholders; and no stockholder
shall have any right, except as conferred by the laws of the State of
Delaware, to inspect any account or book or document of the Corporation
unless and until authorized so to do by resolution of the board of
directors or the stockholders of the Corporation;
(3) without the assent or vote of the stockholders of the
Corporation, to authorize and issue obligations of the Corporation,
secured or unsecured, to include therein such provisions as to
redeemability, convertibility or otherwise, as the board of directors,
in its sole discretion, may determine, and to authorize the mortgaging
or pledging, as security therefor, of any property of the Corporation,
real or personal, including after-acquired property;
(4) to determine whether any, and if any, what part, of the
surplus of the Corporation or, in the event there shall be no such
surplus, of the net profits of the Corporation for the then current
fiscal year or the then immediately preceding fiscal year shall be
declared in dividends and paid to the stockholders, and to direct and
determine the use and disposition of any such surplus or such net
profits;
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(5) to fix from time to time the amount of profits of the
Corporation to be reserved as working capital or for any other lawful
purpose;
(6) to establish bonus, profit-sharing or other types of
incentive or compensation plans for employees (including officers and
directors) of the Corporation and to fix the amount of profits to be
distributed or shared and to determine the persons to participate in
any such plans and the amounts of their respective participation.
In addition to the powers and authorities hereinbefore or by statute
expressly conferred upon it, the board of directors may exercise all such
powers and do all such acts and things as may be exercised or done by the
Corporation, subject, nevertheless, to the provisions of the laws of the
State of Delaware and the Certificate of Incorporation and the by-laws of
the Corporation.
(c) Any director or any officer elected or appointed by the
stockholders or by the board of directors may be removed at any time in
such manner as shall be provided in the by-laws of the Corporation.
(d) Subject to any limitations in the by-laws of the Corporation,
the members of the board of directors shall be entitled to reasonable fees,
salaries or other compensation for their services and to reimbursement for
their expenses as such members. Nothing contained herein shall preclude
any director from serving the Corporation, or any subsidiary or affiliated
corporation, in any other capacity and receiving proper compensation
therefor.
(e) If the by-laws of the Corporation so provide, the stockholders
and board of directors of the Corporation shall have power to hold their
meetings, to have an office or offices and to keep the books of the
Corporation, subject to the provisions of the laws of the State of
Delaware, outside the State of Delaware at such place or places as may from
time to time be designated by the board of directors.
(f) 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
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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 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 the Corporation, as the case may be, and also on
the Corporation.
7. Indemnification and Insurance. The board of directors of the
Corporation may, by resolution adopted from time to time, indemnify such
persons as permitted by the General Corporation Law of the State of Delaware as
amended from time to time. The board of directors of the Corporation may, by
resolution adopted from time to time, purchase and maintain insurance on behalf
of such persons as permitted by the General Corporation Law of the State of
Delaware as amended from time to time.
8. Liability of Directors. No directors of the Corporation shall
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 General Corporation Law of the State of Delaware, as the same exists or
hereafter may be amended, or (iv) for any transaction from which the director
derived an improper personal benefit. Any repeal or modification of this
paragraph by the stockholders of the Corporation shall be prospective only, and
shall not adversely affect any limitation on the personal liability of a
director of the Corporation existing at the time of such repeal or
modification. Nothing herein shall limit or otherwise affect the obligation or
right of the Corporation to indemnify its directors pursuant to the provisions
of this Certificate of Incorporation, the by-laws of the Corporation or as may
be permitted by the General Corporation Law of the State of Delaware.
9. Amendment. Any of the provisions of this Certificate of
Incorporation may from time to time be amended, altered or repealed, and other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted in the manner and at the time prescribed by said laws,
and all rights at any time conferred upon the stockholders of the Corporation
by this Certificate of Incorporation are granted subject to the provisions of
this Section 9.
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EXHIBIT A-3
The Restated Certificate of Incorporation of Best Lock
Corporation shall be amended in its entirety as follows:
1. Corporate Name. The name of the corporation
(hereinafter, the "Corporation") is Best Lock Corporation.
2. Registered Office and Agent. The address, including
street, number, city and county, of the registered office of the Corporation in
the State of Delaware is 0000 Xxxxxx Xxxxxx, County of Xxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000. The name of the registered agent of the Corporation in the
State of Delaware at such address is The Corporation Trust Company.
3. Purposes. The nature of the business of the
Corporation and the objects or purposes to be transacted, promoted, conducted
or carried on by it are as follows:
To engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of the State of
Delaware.
4. Authorized Capital Stock. The total number of shares
of stock which the Corporation shall have authority to issue is One Thousand
(1,000) shares of Common Stock, each with a par value of One Cent ($0.01) per
share (hereinafter, the "Capital Stock"). The rights and qualifications,
limitations or restrictions of the shares of Capital Stock are as follows:
(a) Voting Rights. Except as may otherwise be provided by
applicable law, each share of Common Stock shall be entitled to vote
as one class for election of directors and on all other matters which
may be submitted to a vote of stockholders of the Corporation.
(b) Dividends. Dividends may be declared from time to
time on the Common Stock at the discretion of the board of directors of
the Corporation and in accordance with the provisions of the General
Corporation Law of the State of Delaware.
(c) Additional Issuances. At any time and from time to
time while shares of Common Stock are outstanding, the Corporation may
create one or more series or one or more classes of capital stock
senior to or on a parity with the shares of Common Stock in payment of
dividends or upon liquidation, dissolution or winding up.
5. Additional Provisions. For the management of the
business and for the conduct of the affairs of the Corporation, and in further
definition, limitation and regulation
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of the powers of the Corporation and of its directors and stockholders, the
following additional provisions are set forth and made a part of this
Certificate of Incorporation:
(a) The number of directors which shall constitute the
whole board of directors of the Corporation shall be fixed by, or in
the manner provided in, the by-laws of the Corporation, but such number
may from time to time be increased or decreased in such manner as may
be prescribed by the by-laws. The election of directors need not be by
ballot.
(b) In furtherance and not in limitation of the powers
conferred by the laws of the State of Delaware, the board of directors
of the Corporation is expressly authorized and empowered:
(1) to make, alter, amend and repeal the by-laws
of the Corporation, except as otherwise provided or permitted
under the General Corporation Law of the State of Delaware and
except that any by-law which, in accordance with the provisions
of the by-laws, may be altered, amended or repealed only by the
stockholders may not be altered, amended or repealed by the
directors;
(2) subject to the applicable provisions of the
by-laws then in effect, to determine, from time to time,
whether and to what extent and at what times and places and
under what conditions and regulations the accounts and books of
the Corporation, or any of them, shall be open to the
inspection of the stockholders; and no stockholder shall have
any right, except as conferred by the laws of the State of
Delaware, to inspect any account or book or document of the
Corporation unless and until authorized so to do by resolution
of the board of directors or the stockholders of the
Corporation;
(3) without the assent or vote of the stockholders
of the Corporation, to authorize and issue obligations of the
Corporation, secured or unsecured, to include therein such
provisions as to redeemability, convertibility or otherwise, as
the board of directors, in its sole discretion, may determine,
and to authorize the mortgaging or pledging, as security
therefor, of any property of the Corporation, real or personal,
including after-acquired property;
(4) to determine whether any, and if any, what
part, of the surplus of the Corporation or, in the event there
shall be no such surplus, of the net profits of the Corporation
for the then current fiscal year or the then immediately
preceding fiscal year shall be declared in dividends and paid
to the stockholders, and to direct and determine the use and
disposition of any such surplus or such net profits;
(5) to fix from time to time the amount of profits
of the Corporation to be reserved as working capital or for any
other lawful purpose;
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13
(6) to establish bonus, profit-sharing or other types of
incentive or compensation plans for employees (including officers and
directors) of the Corporation and to fix the amount of profits to be
distributed or shared and to determine the persons to participate in
any such plans and the amounts of their respective participation.
In addition to the powers and authorities hereinbefore or by statute expressly
conferred upon it, the board of directors may exercise all such powers and do
all such acts and things as may be exercised or done by the Corporation,
subject, nevertheless, to the provisions of the laws of the State of Delaware
and the Certificate of Incorporation and the by-laws of the Corporation.
(c) Any director or any officer elected or appointed by the
stockholders or by the board of directors may be removed at any time in such
manner as shall be provided in the by-laws of the Corporation.
(d) Subject to any limitations in the by-laws of the Corporation,
the members of the board of directors shall be entitled to reasonable fees,
salaries or other compensation for their services and to reimbursement for
their expenses as such members. Nothing contained herein shall preclude any
director from serving the Corporation, or any subsidiary or affiliated
corporation, in any other capacity and receiving proper compensation therefor.
(e) If the by-laws of the Corporation so provide, the stockholders
and board of directors of the Corporation shall have power to hold their
meetings, to have an office or offices and to keep the books of the
Corporation, subject to the provisions of the laws of the State of Delaware,
outside the State of Delaware at such place or places as may from time to time
be designated by the board of directors.
(f) 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 consequence of such compromise or
arrangement, the said compromise or arrangement
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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 the Corporation, as
the case may be, and also on the Corporation.
6. Indemnification and Insurance. The board of
directors of the Corporation may, by resolution adopted from time to time,
indemnify such persons as permitted by the General Corporation Law of the State
of Delaware as amended from time to time. The board of directors of the
Corporation may, by resolution adopted from time to time, purchase and maintain
insurance on behalf of such persons as permitted by the General Corporation Law
of the State of Delaware as amended from time to time.
7. Liability of Directors. No directors of the
Corporation shall 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 General Corporation Law of the State of Delaware, as
the same exists or hereafter may be amended, or (iv) for any transaction from
which the director derived an improper personal benefit. Any repeal or
modification of this paragraph by the stockholders of the Corporation shall be
prospective only, and shall not adversely affect any limitation on the personal
liability of a director of the Corporation existing at the time of such repeal
or modification. Nothing herein shall limit or otherwise affect the obligation
or right of the Corporation to indemnify its directors pursuant to the
provisions of this Certificate of Incorporation, the by-laws of the Corporation
or as may be permitted by the General Corporation Law of the State of Delaware.
8. Amendment. Any of the provisions of this Certificate
of Incorporation may from time to time be amended, altered or repealed, and
other provisions authorized by the laws of the State of Delaware at the time in
force may be added or inserted in the manner and at the time prescribed by said
laws, and all rights at any time conferred upon the stockholders of the
Corporation by this Certificate of Incorporation are granted subject to the
provisions of this Section 8.
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