RESTATED CERTIFICATE OF INCORPORATION

 

 

     Kinark Corporation, a corporation organized and existing under and by

virtue of the General Corporation Law of the State of Delaware (the

"Corporation"),

 

DOES HEREBY CERTIFY THAT:

 

1.   The name of the Corporation is Kinark Corporation.  Kinark Corporation was

originally incorporated under the name The Kin-Ark Oil & Gas Company and the

original Certificate of Incorporation was filed with the Secretary of State of

the State of Delaware on January 27, 1955.

 

2.   Pursuant to Sections 242 and 245 of the General Corporation Law of the

State of Delaware, this Restated Certificate of Incorporation restates and

integrates and further amends the Certificate of Incorporation of the

Corporation.

 

3.   At a meeting of the Board of Directors of the Corporation, resolutions

were duly adopted setting forth proposed amendments of the Restated Certificate

of Incorporation, as amended, of the Corporation, declaring said amendments to

be advisable and calling a meeting of the stockholders of the Corporation for

consideration thereof.  The resolution setting forth the proposed amendments is

as follows:

 

     RESOLVED, that the Corporation's Restated Certificate of Incorporation, as

amended, be amended and restated in its entirety as follows:

 

     FIRST:  The name of the Corporation is KINARK CORPORATION.

 

     SECOND:  The principal office or place of business of the Corporation in

the State of Delaware is located at Corporation Trust Center, 1209 Orange

Street, in the City of Wilmington, County of New Castle.  The name and address

of its resident agent is The Corporation Trust Company, Corporation Trust

Center, 1209 Orange Street, Wilmington, Delaware 19801. 

 

     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:  The aggregate number of shares of stock which the Corporation

shall have authority to issue is Twelve Million (12,000,000) shares of Common

Stock of a par value of Ten Cents ($.10) per share.

 

     FIFTH:  The minimum amount of capital with which the Corporation will

commence business is One Thousand Dollars ($1,000). 

 

     SIXTH:  All of any part of the shares of stock of any class of the

Corporation may be issued and sold, from time to time, by the Corporation,

without further action by the stockholders, for such consideration (but in the

case of any class of stock having par value, not less than the par value

thereof) and on such terms and to such person or persons as may, from time to

time, be fixed by the Board of Directors of the Corporation. 

 

     The Board of Directors shall have the power at any time and from time to

time (without any action by the stockholders of the Corporation) to create and

issue, whether or not in connection with the issue or sale of any shares of

stock or bonds, debentures or securities of the Corporation, rights or options

entitling the holders thereof to purchase from the Corporation shares of its

stock of any class, such rights or options to be evidenced by or in such

warrants or other instruments as shall be approved by the Board of Directors.

The terms upon which, the time or times, which may be limited or unlimited in

duration, at or within which such rights or options shall be issued shall be

such as shall be fixed and stated in the resolution or resolutions adopted by

the Board of Directors providing for the creation and issue of such rights or

options. 

 

     No stockholder shall be entitled as a matter of right to subscribe for,

purchase or receive any shares of the stock or any rights or options of the

Corporation which it may issue or sell, whether out of the number of shares

authorized by this Certificate of Incorporation or by amendment thereof, or

other proceedings, or out of the shares of the stock of the Corporation

acquired by it after the issuance thereof, nor shall any stockholder be

entitled as a matter of right to purchase or subscribe for or receive any

bonds, debentures or other obligations which the Corporation may issue or sell

that shall be convertible into or exchangeable for stock or to which shall be

attached or appertain any warrant or warrants or other instrument or

instruments that shall confer upon the holder or owner of such obligation the

right to subscribe for or purchase from the Corporation any share of its

capital stock.  All such additional issues of stock, rights, options, or of

bonds, debentures or other obligations convertible into or exchangeable for

stock or to which warrants shall be attached or appertain or which shall confer

upon the holder the right to subscribe for or purchase any shares of stock, may

be issued and disposed of by the Board of Directors to such persons, firms,

associations and corporations and upon such terms, subject to any provisions of

law in regard thereto, as in their absolute discretion they may deem advisable.

 

     SEVENTH:  The Corporation is to have perpetual existence.

 

     EIGHTH:  The private property of the stockholders shall not be subject to

the payment of corporate debts to any extent whatsoever.

 

     NINTH:  The number of Directors of the Corporation which shall constitute

the whole Board of Directors shall be such number as from time to time shall be

fixed by or in the manner provided in the Bylaws, but in no case shall the

number be less than three (3).  Unless and until a different number of

Directors is established by or in the manner provided in the Bylaws, the number

shall be seven (7).  Directors shall be elected for terms of office to expire

at the annual meeting of stockholders after their election and until their

successors shall be elected and shall be qualified.  No decrease in number

shall have the effect of removing a Director prior to the expiration of his

term of office.

 

     All corporate powers of the Corporation shall be exercised by the Board of

Directors except as otherwise provided herein or by law. 

 

     IN FURTHERANCE AND NOT IN LIMITATION OF THE POWERS CONFERRED BY STATUTE

THE BOARD OF DIRECTORS IS EXPRESSLY AUTHORIZED:

 

          (a)  To fix, determine and vary from time to time the amount to be

maintained as surplus and the amount or amounts to be set apart as working

capital.

 

          (b)  To set apart out of any of the funds of the Corporation legally

available for dividends a reserve or reserves for any proper purposes and/or to

abolish any such reserve or reserves in the manner in which created. 

 

          (c)  To make, amend, alter, change, add to or repeal by-laws of the

Corporation, without any action on the part of the stockholders.  The by-laws

made by the directors may be amended, altered, changed, added to or repealed by

a majority of a quorum of the stockholders. 

 

          (d)  To authorize and cause to be executed mortgages and liens, with

or without limit as to amount, upon the real or personal property of the

Corporation. 

 

          (e)  From time to time to determine whether and to what extent, at

what time and place, and under what conditions and regulations the accounts and

books of the Corporation, or any of them, shall be open to the inspection of

any stockholder and no stockholder shall have any right to inspect any account

or book or document of the Corporation except as conferred by statute or by-

laws or as authorized by resolution of the stockholders or Board of Directors.

 

          (f)  To authorize the payment of compensation to the directors for

services to the Corporation, including fees and expenses for attendance at

meetings of the Board of Directors, the Executive Committee and other

committees and/or salaries for serving as such directors or committee members,

and to determine the amount of such compensation. 

 

          (g)  From time to time to formulate, establish, promote and carry

out, and to amend, alter, change, revise, recall, repeal or abolish a plan or

plans for the participation by all or any of the employees, including directors

and officers, of the Corporation, or of any corporation, company, association,

trust or organization in which or in the welfare of which the Corporation has

any interest, and those actively engaged in the conduct of the Corporation's

business, in the profits, gains or business of the Corporation or of any branch

or division thereof, as part of the Corporation's legitimate expenses and for

the furnishing to such employees, directors, officers or persons, or any of

them, at the Corporation's expense, of medical services, insurance against

accident, sickness or death, pensions during old age, disability or

unemployment, education, housing, social services, recreation or other similar

aids for their relief or general welfare, in such manner and upon such terms

and conditions as the Board of Directors shall determine. 

 

          (h)  By resolution passed by a majority of the whole Board of

Directors, to designate one or more committees, each committee to consist of

two or more of the directors of the Corporation, which, to the extent provided

in the resolution or in the by-laws of the Corporation, shall have and may

exercise the powers of the Board of Directors in the management of the business

and affairs of the Corporation, and may authorize the seal of the Corporation

to be affixed to all papers which may require it.  Such committee or committees

shall have such name or names as may be stated in the by-laws of the

Corporation or as may be determined from time to time by resolution adopted by

the Board of Directors.

 

     TENTH:  (a)  No contract or other transaction between the Corporation and

any other corporation and no other act of the Corporation with relation to any

other corporation shall, in the absence of fraud, in any way be invalidated or

otherwise affected by the fact that any one or more of the directors of the

Corporation are pecuniarily or otherwise interested in, or are directors or

officers of, such other corporations.  Any director of the Corporation may vote

upon any contract or other transaction between the Corporation and any

subsidiary or affiliated corporation without regard to the fact that he is also

a director of such subsidiary or affiliated corporation.  Any director of the

Corporation individually, or any firm or association of which any director may

be a member, may be a party to, or may be pecuniarily or otherwise interested

in any contract or transaction of the Corporation and shall not be liable to

account to the Corporation for any profit realized by him from or through any

such contract or transaction of the Corporation by reason of his interest in

such contract or transaction, provided that the fact that he individually or as

a member of such firm or association is such a party or so interested shall be

disclosed or shall have been known to the Board of Directors or a majority of

such members thereof as shall be present at any meeting of the Board of

Directors at which action upon any such contract or transaction shall be taken;

and in any case described in this paragraph (a) any such director may be

counted in determining the existence of a quorum at any meeting of the Board of

Directors which shall authorize any such contract or transaction and may vote

thereat to authorize any such contract or transaction.

 

          (b)  Any contract, transaction or act of the Corporation or of the

Board of Directors which shall be ratified by a majority of a quorum of the

stockholders entitled to vote at any annual meeting or at any special meeting

called for that purpose shall be as valid and binding as though ratified by

every stockholder of the Corporation; provided, however, that any failure of

the stockholders to approve or ratify such contract, transaction or act, when

and if submitted, shall not be deemed in any way to invalidate the same or to

deprive the Corporation, its directors or officers of their right to proceed

with such contract, transaction or act. 

 

          (c)  Regardless of any provision in this or any other Article or

provision of this Certificate of Incorporation to the contrary, no merger or

consolidation between this Corporation and an "Acquirer", as defined in this

subparagraph, nor any sale, lease, or exchange (a "transfer" herein) of all or

substantially all of the assets of this Corporation or such an Acquirer to the

other may be effected unless:  (i) two-thirds or more of the whole Board of

Directors of this Corporation shall adopt a resolution approving any such

action; and (ii) a meeting of the shareholders of this Corporation is held to

act thereon and the votes of holders of voting securities of this Corporation

representing not less than two-thirds of the votes entitled to vote thereon

shall vote in favor of such action.  As used in this subparagraph, the term

"Acquirer" shall mean any person, firm, or corporation other than this

Corporation which is a party or a proposed party to any merger, consolidation,

or transfer as described herein, if such person, firm, or corporation or any

person, firm, or corporation controlling, controlled by, or under common

control with such party, or any group of which such person, firm, or

corporation is a member, or any other group acting in concert with such party,

owns in the aggregate of record and/or beneficially, directly or indirectly,

more than ten percent (10%) of any class of equity security of this

Corporation.  As used in this subparagraph, the term "group" includes persons,

firms, and corporations acting in concert, whether or not as a formal group,

and the term "equity security" means any share of stock or similar voting

security convertible, with or without consideration, into such a security, or

carrying any warrant to subscribe to or purchase such a security, or any such

warrant or right.  The foregoing provision is in addition to the requirements

of the General Corporation Law of the State of Delaware and may not be amended

or repealed without a favorable vote of not less than two-thirds of the holders

of the issued and outstanding stock of the Corporation entitled to vote thereon

authorizing such amendment or repeal. 

 

          (d)  The provisions of this Article TENTH shall be in addition to and

not in limitation of any other rights, indemnities, or limitations of liability

to which any director or officer may be entitled as a matter of law or under

any by-law, agreement, vote of stockholders or otherwise. 

 

     ELEVENTH:  Whenever a compromise or arrangement is proposed between this

Corporation and its creditors or any class of them and/or between this

Corporation and its stockholders or any class of them, any court of equitable

jurisdiction within the State of Delaware may, on the application in a summary

way of this Corporation or of any creditor or stockholder thereof, or on the

application of any receiver or receivers appointed for this Corporation under

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 this 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 this Corporation, as the

case may be, to be summoned in such manner as the said Court directs.  If a

majority in number representing three-fourths in value of the creditors or

class of creditors, and/or of the stockholders or class of stockholders of this

Corporation, as the case may be, agree to any compromise or arrangement and to

any reorganization of this Corporation as consequence of such compromise or

arrangement, the said compromise or arrangement and the said reorganization

shall, if sanctioned by the Court to which the said application has been made,

be binding on all the creditors or class of creditors, and/or on all the

stockholders or class of stockholders, of this Corporation, as the case may be,

and also on this Corporation. 

 

     TWELFTH:  Meetings of stockholders may be held outside the State of

Delaware, if the by-laws so provide.  The books of the Corporation may be kept

(subject to any provision contained in the statutes) 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 by-laws of the Corporation.  Elections of

directors need not be by ballot unless the by-laws of the Corporation shall so

provide. 

 

     THIRTEENTH:  The Corporation reserves the right to amend, alter, change or

repeal any provision contained in this Certificate of Incorporation, in the

manner now or hereafter prescribed by statute, and all rights conferred upon

officers, directors and stockholders herein are granted subject to this

reservation. 

 

     FOURTEENTH:  (a)  In addition to any affirmative vote required by law, by

this Certificate of Incorporation, or otherwise, and except as expressly

provided in paragraph (b) of this Article Fourteenth, approval of any Business

Combination shall require the affirmative vote of at least two-thirds of the

outstanding Voting Shares, notwithstanding that no vote may be required or some

lesser percentage may be specified by law, agreement, or otherwise.

 

          (b)  Paragraph (a) of this Article Fourteenth shall not apply to a

particular Business Combination, if all of the conditions specified in either

subparagraphs (1) or (2) below are met:

 

               (1)  The Business Combination has been approved by two-thirds of

     the whole Board of Directors; or

 

               (2)  Both of the following conditions are met:

 

                    (A)  The aggregate amount of cash and the Fair Market Value

     of consideration other than cash, determined as of the date of the

     consummation of the Business Combination, to be received per share by

     holders of Common Stock in such Business Combination shall be at least

     equal to the highest of the following: 

 

                         (i)       The highest per share price (including any

          brokerage commissions, transfer taxes and soliciting dealers' fees)

          paid by the Interested Stockholder for any Voting Shares acquired by

          it (1) within the two-year period immediately prior to the date of

          the first public announcement of the proposed Business Combination or

          (2) in the transaction in which it became an Interested Stockholder,

          whichever is higher;

 

                         (ii)      The Fair Market Value per share of Common

          Stock on the date of the first public announcement of the proposed

          Business Combination or on the date on which the Interested

          Stockholder became an Interested Stockholder, whichever is higher;

          and

 

                         (iii)     The per share book value of the Common Stock

          as reported at the end of the fiscal quarter immediately preceding

          the date of the first public announcement of the proposed Business

          Combination; and

 

                    (B)  The consideration to be received by holders of Common

     Stock in the Business Combination shall be either all cash or cash and

     noncash consideration in the same form as previously paid by the

     Interested Stockholder in connection with its acquisition of Beneficial

     Ownership of shares of Common Stock of the Corporation.  If the

     consideration paid for the Common Stock by the Interested Stockholder

     varied as to form, the form of consideration to be paid in the Business

     Combination shall be either cash or the same type of consideration used to

     acquire the largest number of shares of Common Stock previously acquired

     by the Interested Stockholder.  The noncash portion, if any, of the

     consideration to be paid in the Business Combination shall not be greater

     than the non-cash portion of consideration paid by the Interested

     Stockholder in connection with its acquisition of Beneficial Ownership of

     the largest number of shares of Common Stock of the Corporation.  The

     value of any non-cash consideration to be paid in the Business Combination

     shall be determined as of the date of consummation of the Business

     Combination. 

 

                    (C)  For the purpose of this Article Fourteenth, the

     following terms when capitalized shall the following meanings:

 

               (1)  "Affiliate" shall mean a Person that directly or

     indirectly, or through one or more intermediaries, controls, or is

     controlled by, or is under common control with the Person including

     without limitation an officer, director, general partner or beneficial

     owner of 10% or more of any class of equity securities of such Person or

     any parent or Subsidiary thereof, and the spouse or other relative who has

     the same home as such Person. 

 

               (2)  "Beneficial Owner" of a Voting Share shall mean a Person

     and its Affiliates who, directly or indirectly, have:

 

                    (A)  The power to vote or direct the voting of a Voting

     Share; or

 

                    (B)  Investment power to dispose of or direct the

     disposition of a Voting Share; or

 

                    (C)  The right to acquire Beneficial Ownership of a Voting

     Share within 60 days.

 

               (3)  "Business Combination" shall mean any of the following:

 

                    (A)  Any merger or consolidation of the Corporation or any

     subsidiary with or into (i) any Interested Stockholder or (ii) any other

     corporation which is, or after such merger or consolidation, would be an

     Interested Stockholder or an Affiliate of an Interested Stockholder; or

 

                    (B)  Any sale, lease, exchange, mortgage, pledge, transfer

     or other disposition to or with any Interested Stockholder or any

     Affiliate of any Interested Stockholder of any assets of the Corporation

     or any Subsidiary having an aggregate Fair Market Value of $1,000,000 or

     more in one transaction or a series of related transactions; or

 

                    (C)  The issuance or transfer by the Corporation or any

     Subsidiary of any securities of the Corporation or any Subsidiary to any

     Interested Stockholder or any Affiliate of any Interested Stockholder in

     exchange for cash, securities or other property (or a combination thereof)

     having an aggregate Fair Market Value of $1,000,000 or more in one

     transaction or a series of related transactions; or

 

                    (D)  The adoption of any plan for the liquidation or

     dissolution of the Corporation proposed by or on behalf of an Interested

     Stockholder or any Affiliate of any Interested Stockholder; or

 

                    (E)  Any reclassification of securities (including any

     stock split or reverse stock split) or recapitalization of the

     Corporation, or any merger or consolidation of the Corporation with any

     Subsidiary 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 proportionate share of the

     outstanding shares of any class of equity or convertible securities of the

     Corporation or any Subsidiary which is directly or indirectly owned by any

     Interested Stockholder or any Affiliate of any Interested Stockholder. 

 

               (4)  "Fair Market Value" shall mean:  (i) in the case of stock,

     the highest closing sale price during the 30-day period immediately

     preceding the date in question of a share of such stock on the Composite

     Tape for New York Stock Exchange-Listed Stocks, or, if such stock is not

     quoted on the Composite Tape, on the New York Stock Exchange, or, if such

     stock is not listed on such Exchange, on the principal United States

     securities exchange registered under the Securities Exchange Act of 1934

     on which such stock is listed, or, if such stock is not listed on any such

     exchange, the highest closing bid quotation with respect to a share of

     such stock during the 30-day period preceding the date in question on the

     National Association of Securities Dealers, Inc. Automated Quotations

     System or any system then in use, or if no such quotations are available,

     the fair market value on the date in question of a share of such stock as

     determined by a majority of the whole Board of Directors in good faith;

     and (ii) in the case of property other than cash or stock, the fair market

     value of such property on the date in question as determined in good faith

     by a majority of the whole Board of Directors.

 

               (5)  "Interested Stockholder" shall mean any Person (other than

     the Corporation or any corporation of which a majority of each class of

     equity securities is owned, directly or indirectly, by the Corporation)

     which, as of the record date for the determination of stockholders

     entitled to notice of and to vote on a Business Combination, or

     immediately prior to the consummation of any such transaction;

 

                    (A)  Is the Beneficial Owner, directly or indirectly, of

     more than 10% of the Voting Shares; or

 

                    (B)  Is an Affiliate of the Corporation and at any time

     within two years prior thereto was the Beneficial Owner, directly or

     indirectly, of not less than 10% of the then outstanding Voting Shares; or

 

                    (C)  Is an assignee of or successor in interest 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,

     and 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. 

 

               The number of shares of Voting Shares deemed to be outstanding

     shall include shares deemed Beneficially Owned by the Interested

     Stockholder, but shall not include any other shares of Voting Shares which

     may be issuable to other persons pursuant to any agreement, arrangement or

     understanding, or upon exercise of conversion rights, warrants or options,

     or otherwise. 

 

               (6)  "Person" shall mean any individual, corporation,

     partnership or other entity. 

 

               (7)  "Subsidiary" shall mean any corporation of which a majority

     of the outstanding shares of any class of equity securities is owned

     directly or indirectly by the Corporation. 

 

               (8)  "Voting Shares" shall mean all issued and outstanding

     shares of equity securities and all rights to acquire any equity

     securities which are generally entitled to vote in the election of

     directors. 

 

          (d)  A majority of the whole Board of Directors shall have the power

and duty to determine for the purposes of this Article Fourteenth on the basis

of information known to them, (1) whether a Person is an Interested

Stockholder, (2) the number of Voting Shares Beneficially Owned by any Person,

(3) whether a Person is an Affiliate of another, (4) whether a Person has the

power to vote or dispose of Voting Shares or to direct the voting or

disposition of Voting Shares, (5) 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 in any Business Combination has

an aggregate Fair Market Value of $1,000,000 or more, or (6) whether a Person

has the right to acquire Beneficial Ownership of Voting Shares. 

 

          (e)  Nothing contained in this Article Fourteenth shall be construed

to relieve any Interested Stockholder from any fiduciary obligation imposed by

law.

 

          (f)  Notwithstanding any other provisions of this Certificate of

Incorporation or the Bylaws of the Corporation (and notwithstanding the fact

that a lesser percentage may be specified by law, this Certificate of

Incorporation or the Bylaws of the Corporation), the affirmative vote of the

holders of at least two-thirds of the Voting Shares shall be required to amend

or repeal, or adopt any provisions inconsistent with, this Article Fourteenth

or any provisions thereof. 

 

     FIFTEENTH:  To the fullest extent permitted by the Delaware General

Corporation Law, as the same exists or may hereafter be amended, a director of

the Corporation shall not be liable to the Corporation or its stockholders for

monetary damages for breach of fiduciary duty as a director.  No amendment to

or repeal of this Article Fifteenth shall apply to, or have any effect on, the

liability or alleged liability of any director of the Corporation for or with

respect to any acts or omissions of such director occurring prior to such

amendment or repeal.

 

     SIXTEENTH:  (a)  The Corporation shall indemnify any person who is or was

a party (which shall include for purposes of this Article Sixteenth the giving

of testimony or similar involvement) or is threatened to be made a party to or

is involved in any threatened, pending or completed action, suit or proceeding

whether civil, criminal, administrative, or investigative (hereinafter a

"proceeding") by reason of the fact that such person was or is an "authorized

representative" (as defined below) against expenses (which shall include

attorneys' fees), judgments, ERISA excise taxes or penalties, fines and amounts

paid in settlement actually and reasonably incurred by such person in

connection with such proceeding to the fullest extent permitted under the

Delaware General Corporation Law, as the same exists or may hereafter be

amended (but, in the case of any such amendment, only to the extent that such

amendment permits the Corporation to provide broader indemnification rights

than said law permitted the Corporation to provide prior to such amendment).

As used in this Article Sixteenth, the term "authorized representative" shall

mean a Director, officer, employee or agent of the Corporation, or a person

serving at the request of the Corporation as a director, officer, employee, or

agent of another corporation, partnership, joint venture, trust or other

enterprise, including service with respect to employee benefit plans.

 

          (b)  Expenses incurred by a person in defending a proceeding

(including permissive and compulsory counterclaims and affirmative defenses)

brought by reason of the fact that such person is or was an authorized

representative shall be paid by the Corporation in advance of the final

disposition of such proceeding upon receipt of an undertaking by or on behalf

of such person to repay such amount if it shall be ultimately determined that

such person is not entitled to be indemnified under this Article Sixteenth or

otherwise.  The Corporation shall advance all expenses which the person's

defense counsel certifies by an affidavit to the Corporation as being

reasonable and incurred in defending a proceeding.

 

          (c)  If a claim under Sections (a) or (b) of this Article Sixteenth

is not paid in full by the Corporation within thirty (30) days after a written

claim has been received by the Corporation, the claimant may at any time

thereafter bring suit against the Corporation to recover the unpaid amount of

the claim and, if successful in whole or part, the claimant shall be entitled

to be paid also the expense of prosecuting such claim.  It shall be a defense

to any such action (other than an action brought to enforce a claim for

expenses incurred in defending any proceeding in advance of its final

disposition where the required undertaking has been tendered to the

Corporation) that the claimant has not met the standards of conduct which make

it permissible under the Delaware General Corporation Law for the Corporation

to indemnify the claimant for the amount claimed, but the burden of proving

such defense shall be on the Corporation. 

 

          (d)  The indemnification and advancement of expenses authorized by

this Article Sixteenth shall (i) not be deemed exclusive of any other rights to

which those seeking indemnification and advancement of expenses may be entitled

under any statute, provision of the Certificate, agreement, vote of

stockholders or directors or otherwise, (ii) continue as to a person who has

ceased to be an authorized representative, and (iii) inure to the benefit of

the heirs, executors and administrators of an authorized representative.

 

          (e)  Each person who shall act as an authorized representative of the

Corporation shall be deemed to be doing so in reliance upon the rights of

indemnification and advancement of expenses provided by this Article Sixteenth,

and the provisions of this Article Sixteenth shall be deemed a contract between

the Corporation and the authorized representative.  Any repeal or modification

of the provisions of this Article Sixteenth shall not affect any rights or

obligations then existing.

 

          (f)  The Corporation may, but shall not be obligated to, purchase and

maintain insurance at its expense, to protect itself and any person who is or

was an authorized representative against any liability asserted against him in

such capacity or arising out of his status as such, whether or not the

Corporation would have the power to indemnify him against such liability.

 

4.   Thereafter, pursuant to resolution of its Board of Directors, an annual

meeting of the stockholders of the Corporation was duly called and held, upon

notice in accordance with Section 222 of the General Corporation Law of the

State of Delaware at which meeting the necessary number of shares as required

by statute were voted in favor of the amendments.

 

5.   The amendments were duly adopted in accordance with the provisions of

Section 242 of the General Corporation Law of the State of Delaware.

 

     IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate

to be signed by Paul R. Chastain, its President, and Carolyn A. Fredrich, its

Secretary, this 26th day of May, 1994.

 

 

 

                              By: /s/ Paul R. Chastain          

                                   Paul R. Chastain, President

 

 

                              Attest: /s/ Carolyn A. Fredrich   

                                     Carolyn A. Fredrich, Secretary

 

 

 

                            CERTIFICATE OF AMENDMENT
                                       OF
                      RESTATED CERTIFICATE OF INCORPORATION
                                       OF
                               KINARK CORPORATION
 
 
     Kinark Corporation, a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "Corporation"), does hereby
certify as follows:
 
     1. Article "FIRST" of the Restated Certificate of Incorporation is hereby
amended to read in its entirety as follows:
 
          "FIRST: The name of the Corporation is NORTH AMERICAN GALVANIZING &
COATINGS, INC."
 
     2. The foregoing amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
 
     3. The foregoing amendment shall become effective on July 1, 2003, at 12:01
A.M., Eastern Time, after the filing of this Certificate of Amendment with the
Office of the Secretary of the State of Delaware.
 
     IN WITNESS WHEREOF, the undersigned duly authorized officer of the
Corporation has executed this Certificate of Amendment on the 27th day of June
2003.
 
                                             KINARK CORPORATION
 
 
 
                                             By:  /s/Paul R. Chastain
                                                  ------------------------------
                                             Name:  Paul R. Chastain
                                             Title: Vice President & Secretary