Exhibit 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
GENESEE & WYOMING INC.
(Originally incorporated as Genesee and Wyoming Industries, Inc. on
September 1, 1977)
1. Name. The name of the Corporation is Genesee & Wyoming
Inc.
2. Registered Agent. The address of its registered office
in the State of Delaware is 1209 Orange Street,
Wilmington, New Castle County, Delaware 19801. The
registered agent at such address is The Corporation Trust
Company.
3. Purposes. The nature of the business or purposes to be
conducted or promoted is:
To engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware.
4. Capitalization. The aggregate number of shares which the
Corporation shall have authority to issue is Fourteen Million Five
Hundred Thousand (14,500,000), consisting of:
(i) Twelve Million (12,000,000) shares of Class A
Common Stock, par value $.01 per share (the "Class A Common");
(ii) One Million Five Hundred Thousand (1,500,000)
shares of Class B Common Stock, par value $.01 per share (the
"Class B Common" and together with the Class A Common, the
"Common Stock"); and
(iii) One Million (1,000,000) shares of Preferred
Stock, par value $.01 per share (the "Preferred Stock").
A. Common Stock.
The Class A Common and the Class B Common shall be
identical in all respects and shall entitle the holders thereof to the
same rights, privileges and limitations, except as otherwise provided
herein. The relative rights, privileges and limitations of the Class A
Common and the Class B Common are as follows:
(a) Voting Rights. The holders of Class A Common and Class B
Common shall have the following rights:
(i) The holders of Class A Common and Class B
Common shall be entitled to vote as separate classes on all
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matters as to which a class vote is now, or hereafter may be,
required by law.
(ii) On all other matters, the holders of Class A
Common and Class B Common shall vote together as a single class,
provided that the holders of Class A Common shall have one vote
per share and the holders of Class B Common shall have ten votes
per share.
(iii) There shall be no cumulative voting of any
shares of either the Class A Common or the Class B Common.
(b) Conversion.
(i) No Conversion of Class A Common. The Class A
Common shall not be convertible into any class of the securities
of the Corporation.
(ii) Voluntary Conversion of Class B Common. Each
holder of record of a share of Class B Common may at any time or
from time to time, without cost to such holder and at such
holder's option, convert any whole number or all of such holder's
shares of Class B Common into fully paid and nonassessable shares
of Class A Common at the rate of one share of Class A Common for
each share of Class B Common surrendered for conversion. Any
such conversion may be effected by any holder of Class B Common
by surrendering such holder's certificate or certificates for the
shares of Class B Common to be converted, duly endorsed, at the
office of the corporation or the office of any transfer agent for
the Class A Common, together with a written notice to the
Corporation at such office that such holder elects to convert all
or a specific number of such shares of Class B Common.
Thereafter, the Corporation shall cause its transfer agent to
issue and deliver to such holder a certificate or certificates
for the number of shares of Class A Common to which such holder
shall be entitled as aforesaid. Such conversion shall be made as
of the close of business on the tenth business day following the
date of such surrender, and the person or persons entitled to
receive the shares of Class A Common issuable upon such
conversion shall be treated for all purposes as the record holder
or holders of such shares of Class A Common on such date.
(iii) Automatic Conversion of Class B Common Upon
Certain Transfers. Upon any transfer, other than an Excluded
Transfer (as hereinafter defined), of a share or shares of Class
B Common by the holder of record thereof, such share or shares of
Class B Common shall automatically convert into and become an
equal number of shares of Class A Common. For purposes of this
Article 4(b)(iii), the term "Excluded Transfers" shall mean (a)
any transfer to an individual or entity that is, at the time of
such transfer, a holder of record of any shares of Class B Common
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or an "Executive Officer" (as hereinafter defined) of the
Corporation; (b) any transfer by gift to a spouse, child or
grandchild of a holder of record of any shares of Class B Common,
or to a trust for the benefit thereof; or (c) any transfer to a
spouse, child or grandchild of a holder of record of any shares
of Class B Common, or to a trust for the benefit thereof, which
results, whether by bequest, operation of the laws of intestate
succession or otherwise, from the death of such holder or record.
For purposes of this Article 4(b)(iii), the term "Executive
Officer" shall mean an officer of the Corporation within the
meaning of Rule 16a-1 promulgated under the Securities Exchange
Act of 1934, as amended. The transferor of the Class B Common
shall surrender the certificate or certificates representing the
transferred shares at the principal office of the Corporation at
any time during normal business hours, together with (a) a
written notice stating that such holder has transferred the
shares, or a stated number of the shares, represented by such
certificate or certificates and (b) a written statement advising
as to whether or not the transfer is an Excluded Transfer. In
the event that, according to such statement, the transfer is an
Excluded Transfer, the transferor shall also deliver to the
Corporation proof acceptable to the Corporation and its counsel
of the nature of the Excluded Transfer. If the transferor does
not claim an Excluded Transfer, the transfer or shares and
automatic conversion of shares of Class B Common into shares of
Class A Common under this Article 4(b)(iii) shall be deemed to
have been effected as of the close of business on the date on
which the transferor surrenders such certificate or certificates
representing shares of Class B Common and delivers such notice,
and at such time the rights of the holder of record of the
converted shares of Class B Common shall cease and the person or
persons in whose name or names the certificate or certificates
for shares of Class A Common are to be issued because of the
conversion shall be deemed to have become the holder or holders
of record of the Class A Common represented thereby. If the
transferor claims an Excluded Transfer, the transfer shall be
deemed to have been effected as of the close of business on the
date on which the transferor surrenders such certificate or
certificates representing shares of Class B Common, but only
following the determination by the Corporation and its counsel
that the proof of Excluded Transfer submitted by the transferor
is acceptable. In the event the transferor claims an Excluded
Transfer and the Corporation and its counsel determine that the
submitted proof is not acceptable, the Corporation shall so
advise the transferor by written notice accompanied by any share
certificates and stock powers previously tendered by the
transferor.
(iv) Reserves of Class A Common. The Corporation
will at all times reserve and keep available, solely for the
purpose of issue upon conversion of the outstanding shares of
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Class B Common, such number of shares of Class A Common as shall
be issuable upon the conversion of all outstanding shares of
Class B Common, provided that the foregoing shall not be
considered to preclude the Corporation from satisfying its
obligations in respect of the conversion of the outstanding
shares of Class B Common by delivery of shares of Class A Common
which are held in the treasury of the Corporation.
(c) Dividends. Subject to the rights of the Class A Common
set forth in Article 4(d) hereof, the Board of Directors, acting in its
sole discretion, may declare in accordance with law a dividend payable in
cash, in property or in shares of Class A Common on only the Class A
Common or on both the Class A Common and the Class B Common. No
dividends may be declared payable (i) in shares of Class B Common or (ii)
only to holders of Class B Common. If a dividend is to be paid on the
Class B Common, a dividend shall also be paid on the Class A Common such
that the market price of the dividend paid on each share of the Class A
Common exceeds the market price of the dividend paid on each share of
Class B Common by ten percent (rounded up, if necessary, to the nearest
one-hundredth of a cent).
(d) Rights Upon Liquidation. Holders of Class A Common and
Class B Common shall have identical rights in the event of liquidation of
the Corporation, and shall be treated as a single class for purposes
thereof.
(e) Other Terms. Neither the Class A Common Stock nor the
Class B Common Stock may be subdivided, consolidated, reclassified or
otherwise changed unless contemporaneously therewith the other class of
shares is subdivided, consolidated, reclassified or otherwise changed in
the same proportion and in the same manner. In any merger,
consolidation, reorganization or other business combination, the
consideration to be received per share by holders of either Class A
Common Stock or Class B Common Stock must be identical to that received
by holders of the other class. Holders of Common Stock are not entitled
to preemptive rights, and neither the Class A Common Stock nor the Class
B Common Stock is subject to redemption.
B. Preferred Stock.
The Board of Directors is authorized, subject to any
limitations prescribed by law, to provide for the issuance of shares of
Preferred Stock in series, and by filing a certificate pursuant to the
applicable law of the State of Delaware (such certificate being
hereinafter referred to as a "Preferred Stock Designation"), to establish
from time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences, and rights of
the shares of each such series and any qualifications, limitations or
restrictions thereof. The number of authorized shares of Preferred Stock
may be increased or decreased (but not below the number of shares thereof
then outstanding) by the affirmative vote of a majority of the voting
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power of all of the Common Stock, without a vote of the holders of the
Preferred Stock, or of any series thereof, unless a vote of any such
holders is required pursuant to the terms of any Preferred Stock
Designation.
5. Perpetual Existence. The Corporation is to have
perpetual existence.
6. By-laws. In furtherance and not in limitation of the
powers conferred by statute, the Board of Directors is expressly
authorized to make, alter or repeal the By-laws of the Corporation.
7. Stockholders. Meetings of stockholders may be held
within or without the State of Delaware, as the By-laws may 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
written ballot unless the By-laws of the Corporation shall so provide.
8. Amendment. 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 stockholders herein are granted subject to this
reservation.
9. Liability to Directors. A member of the Corporation's
Board of Directors shall not be personally liable to the Corporation or
its stockholders for monetary damages for a breach of fiduciary duty as a
director, except for liability of the director (a) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (b)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (c) under Section 174 of the
Delaware General Corporation Law, relating to the payment of unlawful
dividends or unlawful stock repurchases or redemptions, or (d) for any
transaction from which the director derived an improper personal benefit.
If the Delaware General Corporation Law is hereafter amended to further
eliminate or limit the liability of a director of a corporation, then a
director of the Corporation, in addition to the circumstances set forth
herein, shall have no liability as a director (or such liability shall be
limited) to the fullest extent permitted by the Delaware General
Corporation Law as so amended. No repeal or modification of the
foregoing provisions of this Article 9 nor, to the fullest extent
permitted by law, any modification of law, shall adversely affect any
right or protection of a director of the Corporation existing at the time
of such repeal or modification.
10. Indemnification.
(a) Right to Indemnification. Each person who was or is made
a party or is threatened to be made party to or is otherwise involved in
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any action, suit or proceeding, whether civil, criminal, administrative
or investigative (hereinafter a "proceeding"), by reason of the fact that
he or she is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, or of a partnership, joint
venture, trust or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the basis of
such proceeding is alleged action in an official capacity as a director,
officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by 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 such law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid
in settlement) reasonably incurred or suffered by the indemnitee in
connection therewith, and such indemnification shall continue as to an
indemnitee who has ceased to be a director, officer, employee or agent
and shall inure to the benefit of the indemnitee's heirs, executors and
administrators; provided, however, that, except as provided in section
(b) of this Article 10 with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such
indemnitee only if such proceeding (or part thereof) was authorized by
the Board of Directors of the Corporation. The right to indemnification
conferred by this Article 10 shall be a contract right and shall include
the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition
(hereinafter an "advancement of expenses"); provided, however, that, if
the Delaware General Corporation Law so requires, an advancement of
expenses incurred by an indemnitee in his or her capacity as a director
or officer (and not in any other capacity in which service was or is
rendered by such indemnitee, including without limitation service to an
employee benefit plan) shall be made only upon delivery to the
Corporation of an undertaking (hereinafter an "undertaking"), by or on
behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is
no further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Article 10 or otherwise.
(b) Right of Indemnitee to Bring Suit. If a claim under
section (a) of this Article 10 is not paid in full by the Corporation
within sixty days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be twenty days, the
indemnitee may at any time thereafter bring suit against the Corporation
to recover the unpaid amount of the claim. If successful in whole or in
part in any such suit, or in a suit brought by the Corporation to recover
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an advancement of expenses pursuant to the terms of an undertaking, the
indemnitee shall be entitled to be paid also the expense of prosecuting
or defending such suit. In any suit brought by an indemnitee to enforce
a right to indemnification hereunder (other than a suit brought by an
indemnitee to enforce a right to an advancement of expenses) it shall be
a defense that the indemnitee has not met the applicable standard of
conduct set forth in the Delaware General Corporation Law. In any suit
by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the Corporation shall be entitled to recover
such expenses upon a final adjudication that the indemnitee has not met
the applicable standard of conduct set forth in the Delaware General
Corporation Law. Neither the failure of the Corporation (including its
Board of Directors, independent legal counsel, or stockholders) to have
made a determination prior to the commencement of such suit that
indemnification of the indemnitee is proper in the circumstances because
the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel,
or stockholders) that the indemnitee has not met such applicable standard
of conduct, shall create a presumption that the indemnitee has not met
the applicable standard of conduct or, in the case of such a suit brought
by the indemnitee, be a defense of such a suit. In any suit brought by
the indemnitee to enforce a right to indemnification or to an advancement
of expenses hereunder, or by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the burden of proving
that the indemnitee is not entitled to such indemnification or to such
advancement of expenses, under this Article 10 or otherwise, shall be on
the Corporation.
(c) Non-Exclusive Rights. The rights to indemnification and
to the advancement of expenses conferred by this Article 10 shall not be
exclusive of any other right which any person may have or hereafter
acquire under any statute, the Corporation's Certificate of
Incorporation, as amended or supplemented, By-law, agreement, vote of
stockholders or disinterested directors or otherwise.
(d) Insurance. The Corporation may maintain insurance, at
its expense, to protect itself and any director, officer, employee or
agent of the Corporation, or another corporation, partnership, joint
venture, trust or other enterprise, against any expense, liability or
loss, whether or not the Corporation would have the power to indemnify
such person against such expense, liability or loss under the Delaware
General Corporation Law.
(e) Indemnification of Employees and Agents. The Corporation
may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and to the advancement of
expenses to any employee or agent of the Corporation to the fullest
extent of the provisions of this Article 10 with respect to the
indemnification and advancement of expenses of directors and officers of
the Corporation.
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11. Super-Majority Voting Requirement.
(a) Without the affirmative vote of sixty-six and two-thirds
percent (66 2/3%) of the voting power of all of the Common Stock of the
Corporation entitled to vote thereon (voting together as one class), the
Corporation shall not:
(i) consolidate with or merge into or with any
other Person (as hereinafter defined) unless the Corporation is
the survivor of such consolidation or merger and no Change of
Control (as hereinafter defined) has occurred thereby; or
(ii) sell, lease, exchange, transfer (by liquidation
or otherwise), or otherwise dispose of all or substantially all
of its properties and assets (or the properties and assets of all
of its Subsidiaries (as hereinafter defined), taken as a whole)
to any Person or Persons, whether in a single transaction or a
series of related transactions; or
(iii) amend or otherwise modify or repeal this
Article 11.
(b) For the purposes of this Article 11, the following terms
shall have the following meanings:
(i) "Affiliate" of a Person is any other Person
that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with,
such Person.
(ii) "Change of Control" shall be deemed to have
occurred if and when any Person or Persons shall become the
beneficial owner or owners, directly or indirectly, of shares of
the Class A Common and/or the Class B Common which represent 50
percent or more of the votes represented by all outstanding
shares of Class A Common and Class B Common.
(iii) "Control" (including the terms "controlled by"
and "under common control with") means the possession, direct or
indirect, of the power to direct or cause the direction of the
management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
(iv) "Person" means and includes any individual,
partnership, corporation, trust, unincorporated organization or
other entity, and any government or governmental authority,
agency or political subdivision thereof. The term "Persons"
shall include a Person and all Affiliates of such Person. The
term "Person" and "Persons" shall also include any person or
group of persons within the meaning of the Securities Exchange
Act of 1934, as amended.
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(v) "Subsidiaries" means, with respect to the
Corporation, all corporations, partnerships, joint ventures,
trusts and other entities of which the Corporation, directly or
indirectly, owns an amount of voting securities, or possesses
other ownership interests, having the power, direct or indirect,
to elect a majority of the Board of Directors or other governing
body thereof.
12. Relevant Considerations. In discharging the duties of
their respective positions, the Board of Directors, committees of the
Board of Directors and individual Directors may, in considering the best
interests of the Corporation, consider the effects of any action upon
employees, general agents, and other customers and creditors of the
Corporation and its subsidiaries, communities in which offices or other
establishments of the Corporation are located, the economy of the state
and nation, and the long-term as well as the short-term interests of the
Corporation and its stockholders, including the possibility that these
interests may be best served by the continued independence of the
Corporation, and all other pertinent factors.
13. Classified Board of Directors. The Board of Directors
shall be and are divided into three classes, designated Class I, Class II
and Class III, as nearly equal in number as possible, and the term of
office of Directors of one class shall expire at each annual meeting of
stockholders, and in all cases as to each Director, until his successor
shall be elected and qualified or until his earlier resignation, removal
from office, death or incapacity. Additional directorships resulting
from an increase in number of Directors shall be apportioned among the
classes as equally as possible. At each annual meeting of stockholders,
the number of Directors equal to the number of Directors of the class
whose term expires at the time of such meeting (or if less, the number of
Directors properly nominated and qualified for election) shall be elected
to hold office until the third succeeding annual meeting of stockholders
after their election.
This Restated Certificate of Incorporation shall be effective on
the date of filing by the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation
which restates and integrates and further amends the provisions of the
Restated Certificate of Incorporation of this Corporation, and which has
been duly adopted in accordance with Sections 242 and 245 of the Delaware
General Corporation Law, has been executed by its duly authorized officer
this 14th day of November 2000.
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By: /s/ Mortimar B. Fuller, III
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Name: Mortimer B. Fuller, III
Title: Chairman of the Board, President
and Chief Executive Officer
