AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

 

                                       OF

 

                          WESTLAKE CHEMICAL CORPORATION

 

                  FIRST: The name of the Corporation is Westlake Chemical

Corporation (hereinafter, the "Corporation").

 

                  SECOND: The address of the registered office of the

Corporation in the State of Delaware is The Corporation Trust Center, 1209

Orange Street, City of Wilmington, County of New Castle, Zip Code 19801, and the

name of the registered agent of the Corporation at such address is The

Corporation Trust Company.

 

                  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 the State of Delaware (the "DGCL").

 

                  FOURTH: The aggregate number of shares of capital stock that

the Corporation shall have authority to issue is 200,000,000 (Two Hundred

Million), of which 150,000,000 (One Hundred Fifty Million) shares are classified

as common stock, par value $0.01 per share ("Common Stock"), and 50,000,000

(Fifty Million) shares are classified as preferred stock, par value $0.01 per

share ("Preferred Stock").

 

                  The Corporation may issue shares of any class or series of its

capital stock from time to time for such consideration and for such corporate

purposes as the Board of Directors of the Corporation (the "Board of Directors")

may from time to time determine.

 

                  The following is a statement of the powers, preferences and

rights, and the qualifications, limitations or restrictions, of the Preferred

Stock and the Common Stock:

 

                           DIVISION A. PREFERRED STOCK

 

                  The shares of Preferred Stock may be divided into and issued

in one or more series, the relative rights, powers and preferences of which

series may vary in any and all respects. The Board of Directors is expressly

vested with the authority to fix, by resolution or resolutions adopted prior to

and providing for the issuance of any shares of each particular series of

Preferred Stock and incorporate in a certificate of designations filed with the

Secretary of State of the State of Delaware, the designations, powers,

preferences, rights, qualifications, limitations and restrictions thereof, of

the shares of each series of Preferred Stock, to the extent not provided for in

this Amended and Restated Certificate of Incorporation, and with the authority

to increase or decrease the number of shares within each such series; provided,

however, that the Board of Directors may not decrease the number of shares

within a series of Preferred Stock below the number of shares within such series

that is then outstanding. The authority of the Board of Directors with respect

to fixing the designations, powers, preferences,

 

 

 

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rights, qualifications, limitations and restrictions of each such series of

Preferred Stock shall include, but not be limited to, determination of the

following:

 

                  (1) the distinctive designation and number of shares of that

series;

 

                  (2) the rate of dividends (or the method of calculation

thereof) payable with respect to shares of that series, the dates, terms and

other conditions upon which such dividends shall be payable, and the relative

rights of priority of such dividends to dividends payable on any other class or

series of capital stock of the Corporation;

 

                  (3) the nature of the dividend payable with respect to shares

of that series as cumulative, noncumulative or partially cumulative, and if

cumulative or partially cumulative, from which date or dates and under what

circumstances;

 

                  (4) whether shares of that series shall be subject to

redemption, and, if made subject to redemption, the times, prices, rates,

adjustments and other terms and conditions of such redemption (including the

manner of selecting shares of that series for redemption if fewer than all

shares of such series are to be redeemed);

 

                  (5) the rights of the holders of shares of that series in the

event of voluntary or involuntary liquidation, dissolution or winding up of the

Corporation (which rights may be different if such action is voluntary than if

it is involuntary), including the relative rights of priority in such event as

to the rights of the holders of any other class or series of capital stock of

the Corporation;

 

                  (6) the terms, amounts and other conditions of any sinking or

similar purchase or other fund provided for the purchase or redemption of shares

of that series;

 

                  (7) whether shares of that series shall be convertible into or

exchangeable for shares of capital stock or other securities of the Corporation

or of any other corporation or entity, and, if provision be made for conversion

or exchange, the times, prices, rates, adjustments, and other terms and

conditions of such conversion or exchange;

 

                  (8) the extent, if any, to which the holders of shares of that

series shall be entitled (in addition to any voting rights required by law) to

vote as a class or otherwise with respect to the election of directors or

otherwise;

 

                  (9) the restrictions and conditions, if any, upon the issue or

reissue of any additional Preferred Stock ranking on a parity with or prior to

shares of that series as to dividends or upon liquidation, dissolution or

winding up;

 

                  (10) any other repurchase obligations of the Corporation,

subject to any limitations of applicable law; and

 

                  (11) any other designations, powers, preferences, rights,

qualifications, limitations or restrictions of shares of that series.

 

 

 

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                  Any of the designations, powers, preferences, rights,

qualifications, limitations or restrictions of any series of Preferred Stock may

be dependent on facts ascertainable outside this Amended and Restated

Certificate of Incorporation, or outside the resolution or resolutions providing

for the issue of such series of Preferred Stock adopted by the Board of

Directors pursuant to authority expressly vested in it by this Amended and

Restated Certificate of Incorporation. Except as applicable law or this Amended

and Restated Certificate of Incorporation otherwise may require, the terms of

any series of Preferred Stock may be amended without consent of the holders of

any other series of Preferred Stock or any class of capital stock of the

Corporation.

 

                  The relative powers, preferences and rights of each series of

Preferred Stock in relation to the powers, preferences and rights of each other

series of Preferred Stock shall, in each case, be as fixed from time to time by

the Board of Directors in the resolution or resolutions adopted pursuant to the

authority granted in this Division A of this Article FOURTH, and the consent, by

class or series vote or otherwise, of holders of Preferred Stock of such series

of Preferred Stock as are from time to time outstanding shall not be required

for the issuance by the Board of Directors of any other series of Preferred

Stock, whether or not the powers, preferences and rights of such other series

shall be fixed by the Board of Directors as senior to, or on a parity with, the

powers, preferences and rights of such outstanding series, or any of them;

provided, however, that the Board of Directors may provide in such resolution or

resolutions adopted with respect to any series of Preferred Stock that the

consent of holders of at least a majority (or such greater proportion as shall

be therein fixed) of the outstanding shares of such series voting thereon shall

be required for the issuance of shares of any or all other series of Preferred

Stock.

 

                  Shares of any series of Preferred Stock shall have no voting

rights except as required by law or as provided in the relative powers,

preferences and rights of such series.

 

                            DIVISION B. COMMON STOCK

 

                  1. Dividends. Dividends may be paid on the Common Stock, as

the Board of Directors shall from time to time determine, out of any assets of

the Corporation available for such dividends after full cumulative dividends on

all outstanding shares of capital stock of all series ranking senior to the

Common Stock in respect of dividends and liquidation rights (referred to in this

Division B as "stock ranking senior to the Common Stock") have been paid, or

declared and a sum sufficient for the payment thereof set apart, for all past

quarterly dividend periods, and after or concurrently with making payment of or

provision for dividends on the stock ranking senior to the Common Stock for the

then current quarterly dividend period.

 

                  2. Distribution of Assets. In the event of any liquidation,

dissolution or winding up of the Corporation, or any reduction or decrease of

its capital stock resulting in a distribution of assets to the holders of the

Common Stock, after there shall have been paid to or set aside for the holders

of the stock ranking senior to the Common Stock the full preferential amounts to

which they are respectively entitled, the holders of the Common Stock shall be

entitled to receive, pro rata, all of the remaining assets of the Corporation

available for distribution to its stockholders. The Board of Directors may

distribute in kind to the holders of the Common Stock such remaining assets of

the Corporation, or may sell, transfer or otherwise

 

 

 

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dispose of all or any of the remaining property and assets of the Corporation to

any other corporation or other purchaser and receive payment therefor wholly or

partly in cash or property, and/or in stock of any such corporation, and/or in

obligations of such corporation or other purchaser, and may sell all or any part

of the consideration received therefor and distribute the same or the proceeds

thereof to the holders of the Common Stock.

 

                  3. Voting Rights. Subject to the voting rights expressly

conferred under prescribed conditions upon the stock ranking senior to the

Common Stock, the holders of the Common Stock shall exclusively possess full

voting power for the election of directors and for all other purposes.

 

   DIVISION C. OTHER PROVISIONS APPLICABLE TO THE CORPORATION'S CAPITAL STOCK

 

                  1. Preemptive Rights. No holder of any stock of the

Corporation shall be entitled as of right to purchase or subscribe for any part

of any unissued or treasury stock of the Corporation, or of any additional stock

of any class, to be issued by reason of any increase of the authorized capital

stock of the Corporation, or to be issued from any unissued or additionally

authorized stock, or of bonds, certificates of indebtedness, debentures or other

securities convertible into stock of the Corporation, but any such unissued or

treasury stock, or any such additional authorized issue of new stock or

securities convertible into stock, may be issued and disposed of by the Board of

Directors to such persons, firms, corporations or associations, and upon such

terms as the Board of Directors may, in its discretion, determine, without

offering to the stockholders then of record, or any class of stockholders, any

thereof, on the same terms or any terms.

 

                  2. Votes Per Share. Any holder of Common Stock of the

Corporation having the right to vote at any meeting of the stockholders or of

any class or series thereof, shall be entitled to one vote for each share of

stock held by him, provided that no holder of Common Stock shall be entitled to

cumulate his votes for the election of one or more directors or for any other

purpose.

 

                  FIFTH: (a) Directors. The business and affairs of the

Corporation shall be managed by or under the direction of the Board of

Directors. In addition to the authority and powers conferred on the Board of

Directors by the DGCL or by the other provisions of this Amended and Restated

Certificate of Incorporation, the Board of Directors is authorized and empowered

to exercise all such powers and do all such acts and things as may be exercised

or done by the Corporation, subject to the provisions of the DGCL, this Amended

and Restated Certificate of Incorporation and the Bylaws of the Corporation;

provided, however, that no Bylaws hereafter adopted, or any amendments thereto,

shall invalidate any prior act of the Board of Directors that would have been

valid if such Bylaws or amendment had not been adopted.

 

                           (b) Number, Election and Terms of Directors. The

number of directors that shall constitute the whole Board of Directors shall be

fixed from time to time by a majority of the directors then in office, subject

to an increase in the number of directors by reason of any provisions contained

in or established pursuant to Article FOURTH, but in any event shall not be less

than one nor more than 11, plus that number of directors who may be

 

 

 

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elected by the holders of any one or more series of Preferred Stock voting

separately as a class pursuant to the provisions applicable in the case or

arrearages in the payment of dividends or other defaults contained in this

Amended and Restated Certificate of Incorporation or the Board of Directors'

resolution providing for the establishment of any series of Preferred Stock. The

directors, other than those who may be elected by the holders of any series of

Preferred Stock, shall be divided into three classes: Class I, Class II and

Class III. Each director shall serve for a term ending on the third annual

meeting of stockholders following the annual meeting of stockholders at which

that director was elected; provided, however, that the directors first

designated as Class I directors shall serve for a term expiring at the annual

meeting of stockholders next following the date of their designation as Class I

directors, the directors first designated as Class II directors shall serve for

a term expiring at the second annual meeting of stockholders next following the

date of their designation as Class II directors, and the directors first

designated as Class III directors shall serve for a term expiring at the third

annual meeting of stockholders next following the date of their designation as

Class III directors. Each director shall hold office until the annual meeting of

stockholders at which that director's term expires and, the foregoing

notwithstanding, shall serve until his successor shall have been duly elected

and qualified or until his earlier death, resignation or removal.

 

                  At each annual election, the directors chosen to succeed those

whose terms then expire shall be of the same class as the directors they

succeed, unless, by reason of any intervening changes in the authorized number

of directors, the Board of Directors shall have designated one or more

directorships whose term then expires as directorships of another class in order

to more nearly achieve equality of number of directors among the classes.

 

                  In the event of any change in the authorized number of

directors, each director then continuing to serve as such shall nevertheless

continue as a director of the class of which he is a member until the expiration

of his current term, or his earlier death, resignation or removal. The Board of

Directors shall specify the class to which a newly created directorship shall be

allocated.

 

                  Election of directors need not be by written ballot unless the

Bylaws of the Corporation so provide.

 

                           (c) Removal of Directors. No director of the

Corporation may be removed from office as a director by vote or other action of

the stockholders or otherwise except for cause, and then only by the affirmative

vote of the holders of at least a majority of the voting power of all

outstanding shares of capital stock of the Corporation generally entitled to

vote in the election of directors, voting together as a single class. Except as

applicable law otherwise provides, cause for the removal of a director shall be

deemed to exist only if the director whose removal is proposed: (i) has been

convicted, or has been granted immunity to testify in any proceeding in which

another has been convicted, of a felony by a court of competent jurisdiction and

that conviction is no longer subject to direct appeal; (ii) has been found to

have been negligent or guilty of misconduct in the performance of his duties to

the Corporation in any matter of substantial importance to the Corporation by

(A) the affirmative vote of at least eighty percent (80%) of the directors then

in office at any meeting of the Board of Directors called for

 

 

 

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that purpose or (B) a court of competent jurisdiction; or (iii) has been

adjudicated by a court of competent jurisdiction to be mentally incompetent,

which mental incompetency directly affects his ability to serve as a director of

the Corporation. Notwithstanding the foregoing, whenever holders of outstanding

shares of one or more series of Preferred Stock are entitled to elect members of

the Board of Directors voting separately as a class pursuant to the provisions

applicable in the case of arrearages in the payment of dividends or other

defaults contained in this Amended and Restated Certificate of Incorporation or

the Board of Directors' resolution providing for the establishment of any series

of Preferred Stock, any such director of the Corporation so elected may be

removed in accordance with the provisions of this Amended and Restated

Certificate of Incorporation or that Board of Directors' resolution. The

foregoing provisions are subject to the terms of any series of Preferred Stock

with respect to the directors to be elected solely by the holders of such series

of Preferred Stock.

 

                           (d) Vacancies. Except as a Board of Directors'

resolution providing for the establishment of any series of Preferred Stock may

provide otherwise, newly created directorships resulting from any increase in

the number of directors and any vacancies on the Board of Directors resulting

from death, resignation, removal, disqualification or other cause shall be

filled by the affirmative vote of a majority of the remaining directors then in

office, even though less than a quorum of the Board of Directors. Any director

elected in accordance with the preceding sentence shall hold office for the

remainder of the full term of the class of directors in which the new

directorship was created or the vacancy occurred and until that director's

successor shall have been elected and qualified or until his earlier death,

resignation or removal. No decrease in the number of directors constituting the

Board of Directors shall shorten the term of any incumbent director. The

foregoing provisions are subject to the terms of any Preferred Stock with

respect to the directors to be elected solely by the holders of such Preferred

Stock.

 

                           (e) Amendment of this Article FIFTH. In addition to

any other affirmative vote required by applicable law, this Article FIFTH may

not be amended, modified or repealed except by the affirmative vote of the

holders of at least seventy-five percent (75%) of the voting power of all

outstanding shares of capital stock of the Corporation generally entitled to

vote in the election of directors, voting together as a single class.

 

                  SIXTH: (a) Action by Written Consent; Special Meetings. No

action required to be taken or that may be taken at any annual or special

meeting of the stockholders of the Corporation may be taken without a meeting,

and the power of the stockholders of the Corporation to consent in writing to

the taking of any action by written consent without a meeting is specifically

denied, unless such action without a meeting is taken by unanimous written

consent. Unless otherwise provided by the DGCL, by this Amended and Restated

Certificate of Incorporation or by any provisions established pursuant to

Article FOURTH hereof with respect to the rights of holders of one or more

outstanding series of Preferred Stock, special meetings of the stockholders of

the Corporation may be called at any time only by the Chairman of the Board of

Directors, if there is one, or by the Board of Directors pursuant to a

resolution approved by the affirmative vote of at least a majority of the

members of the Board of Directors, and no such special meeting may be called by

any other person or persons.

 

 

 

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                           (b) Amendment of this Article SIXTH. In addition to

any other affirmative vote required by applicable law, this Article SIXTH may

not be amended, modified or repealed except by the affirmative vote of the

holders of at least seventy-five percent (75%) of the voting power of all

outstanding shares of capital stock of the Corporation generally entitled to

vote in the election of directors, voting together as a single class.

 

                  SEVENTH: No director of the Corporation shall be personally

liable to the Corporation or any of its stockholders for monetary damages for

breach of fiduciary duty as a director of the Corporation; provided, however,

that this Article SEVENTH shall not eliminate or limit the liability of such a

director (1) for any breach of such director's duty of loyalty to the

Corporation or its stockholders, (2) for acts or omissions not in good faith or

which involve intentional misconduct or a knowing violation of law, (3) under

Section 174 of the DGCL, as the same exists or as such provision may hereafter

be amended, supplemented or replaced, or (4) for any transactions from which

such director derived an improper personal benefit. If the DGCL is amended after

the filing of this Amended and Restated Certificate of Incorporation to

authorize corporate action further eliminating or limiting the personal

liability of directors, then the liability of a director of the Corporation, in

addition to the limitation on personal liability provided herein, shall be

limited to the fullest extent permitted by such law, as so amended. Any repeal

or modification of this Article SEVENTH 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.

 

                  EIGHTH: (a) Certain Acknowledgments. In recognition and

anticipation (i) that the TTWF Persons may serve as directors and/or officers of

the Corporation, (ii) that the TTWF Persons may engage and are expected to

continue to engage in the same, similar or related lines of business as those in

which the Corporation Persons, directly or indirectly, may engage and/or other

business activities, in each case that may overlap with or compete with those in

which the Corporation Persons, directly or indirectly, may engage, and that the

TTWF Persons may compete with the Corporation Persons in any of such business

lines and/or business activities, (iii) that the TTWF Persons may have an

interest in the same areas of corporate opportunity as the Corporation Persons,

(iv) that the TTWF Persons may engage in material business transactions with the

Corporation Persons, and (v) that, as a consequence of the foregoing, it is in

the best interests of the Corporation that the respective rights and duties of

the Corporation and of the TTWF Persons, and the duties of any directors,

officers or employees of the Corporation who are also TTWF Persons, be

determined and delineated in respect of any transactions between, or

opportunities that may be suitable for both, the Corporation Persons, on the one

hand, and the TTWF Persons, on the other hand, and in recognition of the

benefits to be derived by the Corporation through its continual contractual,

corporate and business relations with the TTWF Persons (including possible

service of TTWF Persons as officers, directors and employees of the

Corporation), the provisions of this Article EIGHTH shall to the fullest extent

permitted by law regulate and define the conduct of certain of the businesses

and affairs of the Corporation in relation to the TTWF Persons and the conduct

of certain affairs of the Corporation as they may involve the TTWF Persons and

their officers, directors, employees and equity owners, and the power, rights,

duties and liabilities of the Corporation and its officers, directors, employees

and stockholders in connection therewith. Any person purchasing or

 

 

 

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otherwise acquiring any shares of capital stock of the Corporation, or any

interest therein, shall be deemed to have notice of and to have consented to the

provisions of this Article EIGHTH.

 

                           (b) Certain Agreements and Transactions Permitted;

Certain Fiduciary Duties of Certain Stockholders, Directors and Officers. The

Corporation may from time to time enter into and perform, and cause or permit

any Corporation Person to enter into and perform, one or more agreements (or

modifications or supplements to pre-existing agreements) with any TTWF Person

pursuant to which the Corporation Person, on the one hand, and the TTWF Person,

on the other hand, agree to engage in transactions of any kind or nature with

each other and/or agree to compete, or to refrain from competing or to limit or

restrict their competition, with each other, including to allocate and to cause

their respective directors, officers and employees (including any who are

directors, officers or employees of both) to allocate opportunities between or

to refer opportunities to each other. Subject to paragraph (d) of this Article

EIGHTH, no such agreement, or the performance thereof by any Corporation Person

or TTWF Person (or the grant or refusal to grant waivers thereunder) shall to

the fullest extent permitted by law be considered contrary to (i) any fiduciary

duty that the TTWF Persons may owe to any Corporation Person or to any

stockholder or other owner of an equity interest in any Corporation Person by

reason of a TTWF Person being a controlling or significant stockholder of any

Corporation Person or participating in the control of any Corporation Person or

(ii) any fiduciary duty of any director, officer or employee of any Corporation

Person who is also a TTWF Person to a Corporation Person, or to any stockholder

thereof. Subject to paragraph (d) of this Article EIGHTH, to the fullest extent

permitted by law, no TTWF Person, as a stockholder of any Corporation Person, or

participant in control of any Corporation Person, shall have or be under any

fiduciary duty to refrain from entering into any agreement or participating in

any transaction referred to above, and no director, officer or employee of the

Corporation who is also a TTWF Person shall have or be under any fiduciary duty

to any Corporation Person to refrain from acting on behalf of the Corporation

Persons or of the TTWF Persons in respect of any such agreement or transaction

or performing any such agreement in accordance with its terms.

 

                           (c) Similar Activities or Lines of Business. Except

as otherwise agreed in writing between the Corporation and TTWF, the TTWF

Persons shall to the fullest extent permitted by law have no duty to refrain

from (i) engaging in the same or similar activities or lines of business as the

Corporation Persons and (ii) doing business with any client, customer or vendor

of the Corporation Persons, and no TTWF Person (except as provided in paragraph

(d) of this Article EIGHTH) shall to the fullest extent permitted by law be

deemed to have breached its or his fiduciary duties, if any, to the Corporation

by reason of the TTWF Person's engaging in any such activity. In the event that

the TTWF Persons acquire knowledge of a potential transaction or matter which

may be a corporate opportunity for both the Corporation Persons and the TTWF

Persons, the TTWF Persons shall to the fullest extent permitted by law have

fully satisfied and fulfilled their fiduciary duty with respect to such

corporate opportunity, and the Corporation to the fullest extent permitted by

law renounces its interest in such business opportunity and waives any claim

that such business opportunity constituted a corporate opportunity that should

have been presented to the Corporation Persons, if the TTWF Persons act in a

manner consistent with the following policy: a corporate opportunity offered to

a TTWF Person shall belong to the TTWF Persons, unless such opportunity was

expressly offered in

 

 

 

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writing to the TTWF Person solely in its capacity as a stockholder, officer,

director or employee of the Corporation (the "Corporate Opportunity Policy"). In

the case of any corporate opportunity in which the Corporation has renounced its

interest in the previous sentence, the TTWF Persons shall to the fullest extent

permitted by law not be liable to the Corporation or its stockholders for breach

of any fiduciary duty as a stockholder of the Corporation by reason of the fact

that the TTWF Person acquires or seeks such corporate opportunity for itself,

directs such corporate opportunity to another person or entity, or otherwise

does not communicate information regarding such corporate opportunity to the

Corporation.

 

                           (d) Duties of Directors, Officers and Employees of

the Corporation. In the event that a director, officer or employee of the

Corporation who is also a TTWF Person acquires knowledge of a potential

transaction or matter which may be a corporate opportunity for both the

Corporation Persons and the TTWF Persons, such director, officer or employee

shall to the fullest extent permitted by law have fully satisfied and fulfilled

his fiduciary duty with respect to such corporate opportunity, and the

Corporation to the fullest extent permitted by law renounces its interest in

such business opportunity and waives any claim that such business opportunity

constituted a corporate opportunity that should have been presented to the

Corporation Persons, if such director, officer or employee acts in a manner

consistent with the Corporate Opportunity Policy. In the case of any corporate

opportunity in which the Corporation has renounced its interest in the previous

sentence, such director, officer or employee shall to the fullest extent

permitted by law not be liable to the Corporation or its stockholders for breach

of any fiduciary duty as a director, officer or employee of the Corporation by

reason of the fact that a TTWF Person acquires or seeks such corporate

opportunity for itself, directs such corporate opportunity to another person or

entity, or otherwise does not communicate information regarding such corporate

opportunity to the Corporation.

 

                           (e) Certain Definitions. For purposes of this Article

EIGHTH, "TTWF Persons" shall mean TTWF LP, a Delaware limited partnership, or

any successor thereof ("TTWF"), any partner thereof, any person or entity that

is controlled by TTWF, controls TTWF or is under common control with TTWF (other

than the Corporation and any entity that is controlled by the Corporation) and

any director, officer, employee or equity owner of any of the foregoing

entities; and "Corporation Persons" shall mean the Corporation and any entities

controlled by the Corporation.

 

                           (f) Amendment of This Article EIGHTH. In no event

shall any amendment of this Article EIGHTH subject any TTWF Person or any

director, officer or employee of the Corporation to liability for any act or

omission occurring prior to such amendment for which such person would be deemed

not to be liable under this Article EIGHTH prior to such amendment.

 

                  NINTH: The Board of Directors is expressly empowered to adopt,

amend or repeal the Bylaws of the Corporation. The Bylaws may be amended, in

whole or in part, and new Bylaws may be adopted (i) by action of the Board of

Directors; provided, however, that any proposed alteration, amendment or repeal

of, or the adoption of any Bylaw inconsistent with, Section 3, 9, 10 or 11 of

Article II of the Bylaws, Section 2, 4, 7, 10 or 11 of Article III of the

Bylaws, Article V of the Bylaws or Section 1 of Article VII of the Bylaws, by

the Board of

 

 

 

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Directors shall require the affirmative vote of not less than 75% of all

directors then in office at a regular or special meeting of the Board of

Directors called for that purpose; or (ii) by the affirmative vote of the shares

representing not less than 75% of the voting power of all outstanding shares of

capital stock of the Corporation generally entitled to vote in the election of

directors, voting together as a single class; provided, that in the case of any

such stockholder action at a meeting of stockholders, notice of the proposed

alteration, amendment, repeal or adoption of the new Bylaw or Bylaws must be

contained in the notice of such meeting. In addition to any other affirmative

vote required by applicable law, this Article NINTH may not be amended, modified

or repealed except by the affirmative vote of the holders of at least

seventy-five percent (75%) of the voting power of all outstanding shares of

capital stock of the Corporation generally entitled to vote in the election of

directors, voting together as a single class.

 

                  TENTH: 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 the DGCL 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 the DGCL, order a meeting of the creditors or

class of creditors, and/or the stockholders or a 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, agrees to any compromise or

arrangement and to any reorganization of the Corporation as a consequence of

such compromise or arrangement, the said compromise or arrangement and the said

reorganization shall, if sanctioned by the court to which said application has

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

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

and also on the Corporation.

 

                           ELEVENTH: The Corporation has elected not to be

governed by Section 203 of the DGCL.

 

 

 

 

 

 

 

CERTIFICATE OF AMENDMENT

TO

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

WESTLAKE CHEMICAL CORPORATION

Westlake Chemical Corporation (the “Corporation”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “DGCL”), hereby adopts this Certificate of Amendment, which amends the Amended and Restated Certificate of Incorporation of the Corporation, as described below, and does hereby further certify that:

1. The name of the Corporation is Westlake Chemical Corporation.

2. The Board of Directors of the Corporation duly adopted resolutions proposing and declaring advisable the amendments to the Certificate of Incorporation that this Certificate of Amendment to the Amended and Restated Certificate of Incorporation is effecting, and the Corporation’s stockholders have duly adopted those amendments, all in accordance with the provisions of Section 242 of the DGCL.

3. The first paragraph of ARTICLE FOURTH of the Amended and Restated Certificate of Incorporation of the Corporation is deleted in its entirety and substituted with:

“FOURTH: The aggregate number of shares of capital stock that the Corporation shall have authority to issue is 350,000,000 (Three Hundred Fifty Million), of which 300,000,000 (Three Hundred Million) shares are classified as common stock, par value $0.01 per share (“Common Stock”), and 50,000,000 (Fifty Million) shares are classified as preferred stock, par value $0.01 per share (“Preferred Stock”).”

4. The following is hereby added as ARTICLE TWELFTH of the Amended and Restated Articles of Incorporation of the Corporation:

“TWELFTH: Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if the Court of Chancery does not have jurisdiction, another state court located within the State of Delaware or, if no state court located within the State of Delaware has jurisdiction, the federal district court for the District of Delaware) shall be the sole and exclusive forum for any stockholder (including a beneficial owner) to bring (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation, its directors, officers or employees arising pursuant to any provision of the General Corporation Law of the State of Delaware or the Corporation’s Certificate of Incorporation or bylaws, or (iv) any action asserting a claim against the Corporation, its directors, officers or employees governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any


interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provision of this Article TWELFTH. If any provision or provisions of this Article TWELFTH shall be held to be invalid, illegal or unenforceable as applied to any person or entity or circumstance for any reason whatsoever, then, to the fullest extent permitted by law, the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Article TWELFTH (including, without limitation, each portion of any sentence of this Article TWELFTH containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) and the application of such provision to other persons or entities and circumstances shall not in any way be affected or impaired thereby.”


IN WITNESS WHEREOF, the undersigned has executed this Certificate on this 16th day of May, 2014.

 

WESTLAKE CHEMICAL CORPORATION

By:

 

/s/ Albert Chao

Name:

 

Albert Chao

Title:

 

President and Chief Executive Officer

 

[As Filed: 05-16-2014]