SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT UNDER SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the First Quarter Ended Commission File Number
March 28, 1998 0-3701
VALMONT INDUSTRIES, INC.
Valley, Nebraska 68064
Telephone Number 402-359-2201
Delaware 47-0351813
(State of Incorporation) (I.R.S. Employer Identification No.)
Indicate by check mark whether the registrant (1) has filed all reports
to be filed by section 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding twelve months, and (2) has been subject to such filing
requirements for the past ninety days. Yes__X__ No_____
As of April 23, 1998 there were outstanding 27,711,054 common shares of the
registrant.
VALMONT INDUSTRIES, INC. AND SUBSIDIARIES
INDEX TO FORM 10-Q
------------------
PART I. FINANCIAL INFORMATION Page No.
- ------------------------------ --------
Item 1. Financial Statements:
Condensed Consolidated Statements of Operations for
the thirteen weeks ended March 28, 1998 and March 29,
1997. 2
Condensed Consolidated Balance Sheets as of March 28,
1998 and December 27, 1997. 3
Condensed Consolidated Statements of Cash Flows for
the thirteen weeks ended March 28, 1998 and March 29,
1997. 4
Notes to Condensed Consolidated Financial Statements 5-6
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 7-8
PART II. OTHER INFORMATION
- ---------------------------
Item 4. Submission of Matters to a Vote of Security
Holders 9
Item 6. Exhibits and Reports on Form 8-K 9
SIGNATURES 9
- ----------
Page 1
VALMONT INDUSTRIES, INC. AND SUBSIDIARIES
PART I. FINANCIAL INFORMATION
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Dollars in thousands except per share amounts)
(Unaudited)
Thirteen Weeks Ended
--------------------
March 28, March 29,
1998 1997
------- -------
Net sales $160,587 $165,418
Cost of sales 117,518 120,802
------- -------
Gross profit 43,069 44,616
Selling, general and administrative
expenses 27,405 30,039
------- -------
Operating income 15,664 14,577
------- -------
Other income (deductions):
Interest expense (1,038) (898)
Interest income 244 25
Miscellaneous 375 250
------- -------
(419) (623)
------- -------
Earnings before income taxes 15,245 13,954
------- -------
Income tax expense (benefit):
Current 5,700 700
Deferred (100) 4,300
------- -------
5,600 5,000
------- -------
Net Earnings $ 9,645 $ 8,954
======= =======
Earnings per share:
Basic $ 0.35 $ 0.33
======= =======
Diluted $ 0.34 $ 0.32
======= =======
Cash dividends per share $0.05625 $ 0.05
======= =======
Weighted average number of shares of
common stock outstanding (000 omitted) 27,654 27,408
======= =======
Weighted average number of shares of
common stock outstanding plus dilutive
potential common shares (000 omitted) 28,271 27,641
======= =======
See accompanying notes to condensed consolidated financial statements.
Page 2
VALMONT INDUSTRIES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(Dollars in thousands)
(Unaudited)
March 28, December 27,
ASSETS 1998 1997
- ----------------------------------------- ------- -------
Current assets:
Cash and cash equivalents $ 12,230 $ 11,505
Receivables 106,649 110,531
Inventories 81,245 79,444
Prepaid expenses 4,670 3,388
Deferred income taxes 8,514 13,062
------- -------
Total current assets 213,308 217,930
------- -------
Net property, plant and equipment 144,233 140,834
------- -------
Other assets:
Investments in nonconsolidated affiliates 4,833 4,730
Other 11,417 4,558
------- -------
Total other assets 16,250 9,288
------- -------
Total assets $ 373,791 $ 368,052
======= =======
LIABILITIES AND SHAREHOLDERS' EQUITY
- -----------------------------------------
Current liabilities:
Current installments of long-term debt $ 7,259 $ 7,317
Notes payable to banks 16,119 18,545
Accounts payable 51,629 48,717
Accrued expenses 41,890 47,380
Dividends payable 1,557 1,555
------- -------
Total current liabilities 118,454 123,514
------- -------
Deferred income taxes 9,270 9,038
Long-term debt, excl. current installments 24,002 20,743
Minority interest in consolidated
subsidiaries 3,680 3,957
Other noncurrent liabilities 3,729 3,698
Shareholders' equity:
Preferred stock -- --
Common stock of $1 par value 27,900 27,900
Additional paid-in capital 1,131 838
Retained earnings 187,449 179,360
Accumulated Other Comprehensive Income (1,804) (966)
Treasury stock (7) (8)
Unearned restricted stock (13) (22)
------- -------
Total shareholders' equity 214,656 207,102
------- -------
Total liabilities and shareholders'
equity $ 373,791 $ 368,052
======= =======
See accompanying notes to condensed consolidated financial statements.
Page 3
VALMONT INDUSTRIES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Dollars in thousands)
(Unaudited)
Thirteen Weeks Ended
--------------------
March 28, March 29,
1998 1997
------- -------
Net cash provided (used) by operations $ 18,927 $ (1,294)
------- -------
Cash flows from investment activities:
Purchase of property, plant & equipment (3,167) (11,829)
Acquisitions (13,309) (627)
Change in other assets (994) (578)
Proceeds from sale of assets held for sale -- 26,903
Proceeds from sale, net of gain,
of property and equipment 43 84
Other, net (253) (149)
------- -------
Net cash used by investment activities (17,680) 13,804
------- -------
Cash flows from financing activities:
Net borrowings under short-term
agreements (2,308) (9,449)
Proceeds from long-term borrowings 5,483 --
Principal payments on long-term
obligations (2,035) (1,979)
Dividends paid (1,555) (1,367)
Proceeds from exercises under
stock plans 371 838
Purchase of common treasury shares (478) (740)
------- -------
Net cash used by
financing activities (522) (12,697)
------- -------
Net increase (decrease) in cash and
cash equivalents 725 (187)
Cash and cash equivalents--beginning of
period 11,505 9,483
------- -------
Cash and cash equivalents--end of period $ 12,230 $ 9,296
======= =======
See accompanying notes to condensed consolidated financial statements.
Page 4
VALMONT INDUSTRIES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in thousands)
(Unaudited)
1. Condensed Consolidated Financial Statements
-------------------------------------------
The Condensed Consolidated Balance Sheet as of March 28, 1998 and the
Condensed Consolidated Statements of Operations for the thirteen week
periods ended March 28, 1998 and March 29, 1997 and the Condensed
Consolidated Statements of Cash Flows for the thirteen week periods then
ended have been prepared by the Company, without audit. In the opinion
of management, all necessary adjustments (which include normal recurring
adjustments) have been made to present fairly the financial position at
March 28, 1998 and for all periods presented.
Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted. These Condensed
Consolidated Financial Statements should be read in conjunction with the
financial statements and notes thereto included in the Company's
December 27, 1997 Annual Report to shareholders. The results of
operations for the period ended March 28, 1998 are not necessarily
indicative of the operating results for the full year.
2. Inventories
-----------
Approximately 60% of the Company's inventories are valued at cost
on the basis of the last-in first-out (LIFO) dollar value method
under the natural business unit concept, which is not in excess
of market (net realizable value). As a result, it is not
possible to segregate the inventories into their component values
of raw material, work-in-process and finished goods. All other
inventories are valued at lower of first-in first-out (FIFO) cost
or market (net realizable value).
3. Cash Flows
----------
The Company considers cash and cash investments with a maturity of
three months or less when purchased, to be cash equivalents.
Interest paid was $1,021 and $633 for the thirteen week periods
ended March 28, 1998 and March 29, 1997, respectively. Income
taxes paid, net of refunds, were $598 and $490 for the thirteen
week periods ended March 28, 1998 and March 29, 1997,
respectively.
4. Earnings Per Share
------------------
Share and per share information have been adjusted to give effect to the
two-for-one stock split effected in the form of a dividend on May 30,
1997. In February 1997, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 128 "Earnings Per Share,"
(EPS) which requires companies to present Basic EPS and Diluted
EPS as well as to provide a reconciliation between Basic and
Diluted EPS. Accordingly all prior periods have been restated.
---------------------------------------------------------------------
BASIC DILUTIVE EFFECT DILUTED
EPS OF STOCK OPTIONS EPS
---------------------------------------------------------------------
1997:
Net earnings $ 8,954 -- $ 8,954
Shares 27,408 233 27,641
Per share amount $ 0.33 -- $ 0.32
1998:
Net earnings $ 9,645 -- $ 9,645
Shares 27,654 617 28,271
Per share amount $ 0.35 -- $ 0.34
Page 5
VALMONT INDUSTRIES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in thousands)
(Unaudited)
5. Comprehensive Income
--------------------
Statement of Financial Standards No. 130, "Reporting Comprehensive
Income", which is effective for fiscal years beginning after
December 15, 1997, defines items such as (1) foreign currency
translation adjustments, (2) unrealized gains and losses on
certain investments in debt and equity securities, and (3)
minimum pension liability adjustments as items of other
comprehensive income and as such must be reported "in a financial
statement that is displayed with the same prominence as other
financial statements".
Thirteen Weeks Ended
--------------------
March 28, March 29,
1998 1997
---- ----
Net income $ 9,645 $ 8,954
Other comprehensive income, before tax:
Foreign currency translation adjustments (838) (1,466)
------- -------
Comprehensive income $ 8,807 $ 7,488
======= =======
6. Use of Estimates
----------------
Management of the Company has made a number of estimates and assumptions
relating to the reporting of assets and liabilities and the
disclosure of contingent assets and liabilities to prepare these
financial statements in conformity with generally accepted
accounting principles. Actual results could differ from those
estimates.
Page 6
VALMONT INDUSTRIES, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Management's discussion and analysis contains forward looking statements
which reflect management's current views and estimates of future economic
circumstances, industry conditions, company performance and the financial
results. The statements are based on many assumptions and factors,
including availability and price of raw materials, product pricing, competitive
environment and related domestic and international market conditions,
operating efficiencies, and actions of domestic and foreign
governments. Any changes in such assumptions or factors could produce
significantly different results.
Results of Operations
- ---------------------
For the first quarter of 1998 net sales were $160.6 million, a decrease of
2.9% from the $165.4 million for the same period last year. Last
year's sales included $5.3 million from the ballast business, which was sold
in the first quarter of 1997. Sales of Irrigation products for the first
quarter of 1998 were at record high levels. North America irrigation sales
increased from the volume reported in 1997 because farm income remained
strong and more farmers converted to the Company's mechanized center-pivot
and linear move irrigation equipment. Demand for replacement parts
was slowed by a wet early Spring. Sales of irrigation products to South
American markets for the first quarter of 1998 also increased compared to
sales for the same periods a year ago.
Sales in the Industrial Products segment had an overall decline in the first
quarter of 1998 as a result of lower sales of communication products. Demand
for area lighting and traffic signal poles were slowed by weather
delays in shipments and customers awaiting final passage of a new
federal highway bill. Orders for transmission poles were strong due
to alliances formed with selected customers to provide savings and
custom engineering solutions to the utilities. Also, tubular product sales
grew in part from the 1997 acquisition of a new high-speed tubing mill. In
Europe, sales were up in local currencies, but remained flat when converted
into U.S. dollars as a result of the 9-10% strengthening of the dollar from
a year ago.
Due to continued softness for communication products, the Company is
reorganizing its North American pole and tower business for higher efficiencies.
The Company is consolidating the activities of its two smallest plants into
larger facilities, implementing reductions in force in other locations and
reducing other expenses. The cost of this reorganization will be absorbed in
the second quarter.
Gross profit was down 3.5%, or $1.5 million, in the first quarter of 1998
compared to first quarter 1997. As a percent of sales, gross profit was
26.8% and 27.0% for the first quarters of 1998 and 1997, respectively. The
first quarter 1998 gross profit increased in the Irrigation Products Segment
due to larger sales volumes and improved operational performance and decreased
in the Industrial Products Segment due to the lower sales of communication
products compared to the same period in 1997.
Selling, general and administrative (SG&A) expenses were $27.4 million for
first quarter of 1998 and $30.0 million for the same period of 1997; and,
as a percent of sales, SG&A expenses for the respective quarters were
17.1% and 18.2%. The dollar amount of SG&A expenses decreased $2.6
million in 1998. The decrease in SG&A expenses from 1997 levels were
in part due to the sales of the ballast business in the first quarter
of 1997 which had $1.2 million of SG&A expense and a decrease in incentive
accruals in 1998.
For the first quarter of 1998 interest expense was $1.0 million compared to
$0.9 million in the same period of 1997. The increase in 1998 results
primarily from average debt levels being higher.
The effective income tax rates for the first quarter of 1998 and 1997 were
36.7% and 35.8%, respectively, which do not vary significantly from the
expected statutory rate for the periods. Decreased foreign tax
benefits and increased state income taxes resulted in the higher rate in 1998.
Page 7
VALMONT INDUSTRIES, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(Continued)
As a result of the aforementioned operating factors and general business
conditions, net earnings increased to $9.6 million in the first thirteen weeks
of 1998 from $9.0 million in the same period in 1997. Basic earnings per
share were $0.35 and $0.33 for the first thirteen weeks of 1998 and
1997, respectively, with diluted earnings per share $0.34 and $0.32
respectively.
Liquidity and Capital Resources
- -------------------------------
Net working capital at March 28, 1998 amounted to $94.9 million compared to
$94.4 million at December 27, 1997. The ratio of current assets to
current liabilities remained constant at 1.8:1 for the same two
periods.
Expenditures for property, plant and equipment for the thirteen week period
ended March 28, 1998 were approximately $3.2 million. An additional $13.3
million was spent for the acquisition of galvanizing assets at two new
locations. Depreciation of property, plant & equipment was $4.5 million for
the first quarter of 1998 compared to $3.7 million a year ago.
Available lines of credit total $46.5 million of which approximately $36.1
million was unused at March 28, 1998. Long-term debt was 11.2% of
total capitalization at March 28, 1998 versus 10.4% at December 27, 1997.
The Company believes cash flows from operations, available credit facilities,
and the present capital structure will be adequate for 1998 planned
capital expenditures, for dividends and other financial commitments, and for the
Company to pursue opportunities to expand its markets and businesses.
Page 8
VALMONT INDUSTRIES, INC. AND SUBSIDIARIES
PART II - OTHER INFORMATION
Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
- ------------------------------------------------------------
Valmont's annual shareholders' meeting was held on April 27, 1998. The
shareholders voted to elect three directors, to approve an amendment to
the Company's Certificate of Incorporation increasing the authorized
number of common shares, and to ratify the appointment of Deloitte &
Touche LLP as independent accountants for fiscal 1998. For the annual
meeting there were 27,670,846 shares outstanding and eligible to vote of
which 24,731,461 were present at the meeting in person or by proxy. The
tabulation for each matter voted upon at the meeting was as follows:
Election of Directors:
(all shares shown post-split)
For Withheld Abstain
--- -------- -------
Charles M. Harper 24,340,008 391,453 -0-
Lloyd P. Johnson 24,344,991 386,470 -0-
Thomas F. Madison 24,347,135 384,326 -0-
Proposal to amend the Certificate of Incorporation to increase authorized
common stock:
For 21,713,469
Against 2,998,960
Withheld 19,032
Broker Non-vote -0-
Proposal to ratify the appointment of Deloitte & Touche LLP as
independent accountants for fiscal 1998:
For 24,399,644
Against 315,601
Withheld 16,216
Broker Non-vote -0-
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
- -------------------------------------------
(a) Exhibits
--------
3 Certificate of Incorporation, as amended to date
27 Financial Data Schedule
(b) Reports on Form 8-K:
--------------------
The Company filed no reports on Form 8-K during the past fiscal quarter.
SIGNATURES
- ----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf and
by the undersigned hereunto duly authorized.
VALMONT INDUSTRIES, INC.
By /s/Terry J. McClain
-----------------
Terry J. McClain
Senior Vice President and
Chief Financial Officer
(Principal Financial Officer)
Dated this 4TH day of May, 1998.
----
Page 9
Exhibit 3
STATE OF DELAWARE
OFFICE OF SECRETARY OF STATE
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF
DELAWARE DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND
CORRECT COPY OF THE CERTIFICATE OF INCORPORATION OF VALMONT
INDUSTRIES, INC. FILED IN THIS OFFICE ON THE SECOND DAY OF
AUGUST, A.D. 1974, AT 10 O'CLOCK A.M.
Michael Harkins, Secretary of State
AUTHENTICATION: |2631674
DATE: 04/25/1990
1
ARTICLES OF INCORPORATION
OF
VALMONT INDUSTRIES, INC.
The undersigned, a natural person of the age of 21
years or more, acting as an incorporator of a corporation
under the General Corporation Law of the State of Delaware,
adopts the following Articles of Incorporation for such
corporation:
ARTICLE I
NAME
----
The name of the corporation is Valmont Industries, Inc.
ARTICLE II
DURATION
---------
The period of the corporation's duration is perpetual.
ARTICLE III
PURPOSES
---------
The purposes for which this corporation is organized
are:
(a) To purchase, own, hold, sell, manage,
manufacture, produce, process, distribute, equip, install,
service, import, export, and otherwise deal in personal
property of whatsoever nature and kind, including but not
limited to: farm equipment and machinery, irrigation
systems and equipment, light poles, steel pipe, mechanical
tubing, tapered tubes and tubular products.
(b) To purchase, lease, acquire, hold, use, own,
improve, develop, rent, sell, mortgage, pledge, convey,
dispose of and exchange in any manner deemed expedient, real
and personal property, either or both, including equipment
and machinery of all types, or any rights, interests or
estates therein, as a part of the principal of the business
of the corporation, or in connection with the transaction of
the business of the corporation or incidental, necessary,
convenient or useful thereto.
2
(c) To make, develop, import, compound, purchase,
or otherwise act, deal in and deal with, use, sell,
exchange, export or otherwise dispose of protective coatings
and linings of every kind and character and to perform
contracting and engineering work and service incidental to
the conduct of such business.
(d) To purchase or otherwise acquire letters
patent, concessions, licenses, inventions, rights, and
privileges subject to royalty or otherwise and either
exclusive, nonexclusive or limited; or any part in any such
letters patent, concessions, licenses, inventions, rights,
and privileges either in the United States or in any other
part of the world. To sell, lease, or grant any patent
rights, concessions, licenses, inventions, rights or
privileges belonging to the company or which it may acquire
or any interest in the same.
(e) To register any patent or patents for any
invention or inventions or obtain exclusive or other
privileges in respect of the same, in any part of the world,
and to apply for, exercise, use or otherwise deal with any
patent rights, concessions, mono-policies or other rights or
privileges within the United States or in any other part of
the world.
(f) To purchase, acquire, apply for, secure,
hold, or own any and all copyrights, trademarks, trade
names, and distinctive marks; and to license, lease, or
otherwise authorize the use thereof by other persons, firms,
or corporations.
(g) To acquire by purchase, subscription,
contract or otherwise, and to hold, own, vote, sell,
exchange, mortgage, pledge or otherwise dispose of, or turn
to account or realize upon and generally deal in and with,
the stocks and securities of this corporation or any other
corporation or any political or corporate entity, including,
but not by way of limitation, securities issued by any
government, state, county, municipality, school district,
drainage district or any division or subdivision thereof,
and to do all things permitted by law for the preservation,
protection, improvement or enhancement of the value of such
stocks and securities or other obligations, including the
right to vote thereon.
(h) To endorse or guarantee the payment of the
principal and interest or dividends upon stocks, bonds,
obligations or other securities or evidences of
indebtedness, and to guarantee the performance of contracts
or other undertakings of any corporation, association,
syndicate, individual or others or of any country, nation or
governmental or political authority in which this
corporation may be or become interested.
3
(i) To lend money and extend credit, with or
without security, to any corporation, association,
syndicate, partnership, joint venture, individual or others.
(j) To cause to be formed, merged or reorganized
or liquidated, and to promote, take charge of, manage and
aid in any way permitted by law the formation, merger,
liquidation or reorganization of any corporation, joint
venture, combination, entity or association, domestic or
foreign.
(k) To purchase, lease, hire or otherwise
acquire, hold, own, construct, erect, improve, manage and
operate, and to aid and subscribe toward the acquisition,
construction or improvement of plants, mills, factories,
works, buildings, machinery, equipment, and facilities, and
any other property or appliances which may appertain to or
be useful in the conduct of the business of the corporation.
(l) To purchase or otherwise acquire or hold any
part of the good will, rights, property, and business of any
person, firm, association or corporation heretofore or
hereafter engaged in any business similar to the business
which the corporation has the power to conduct and to hold,
utilize, enjoy and in any manner dispose of the whole or any
part of the rights, property and business so acquired, and
to assume in connection therewith any liabilities of any
such person, firm, association or corporation.
(m) To issue shares of its stock of any class in
the manner permitted by law and to borrow or raise money for
any of the purposes of the corporation, and to issue bonds,
debentures, notes or other obligations of any nature and in
any manner permitted by law, for money so borrowed or in
payment for property purchased or for any other lawful
purposes, and to secure the payment thereof and of the
interest thereon by mortgage upon or pledge or conveyance or
assignment in trust of the whole or any part of the property
of this corporation, real or personal, including contract
rights, whether at the time owned or thereafter acquired;
and to sell, pledge, discount, or otherwise dispose of such
stock, bonds, notes or other obligations of the corporation
for any of its corporate purposes.
(n) To engage in any commercial, industrial,
agricultural or other type of enterprise calculated or
designed to be profitable for this corporation and in
conformity with the laws of the State of Delaware.
4
(o) To do everything necessary, proper, advisable
and convenient for the accomplishment of the purposes
hereinabove set forth and to do all other things incidental
thereto or connected therewith which are not forbidden by
the laws of the State of Delaware, or by these Articles of
Incorporation.
(p) To carry out all or any part of the aforesaid
purposes and to conduct its business in all or any of its
branches, and to maintain offices and agencies in any or all
states, territories, districts, colonies, possessions or
dependencies of the United States of America and in foreign
countries.
It is the intention that the objects and purposes
specified in the foregoing clauses of this Article shall not
be in any wise limited or restricted by reference to or
inference from the terms of any other clause of this or any
other Articles in these Articles of Incorporation, but that
the objects and purposes specified in each of the clauses of
this Article shall be regarded as independent objects and
purposes. It is also the intention that said clauses be
constructed both as purposes and powers; and generally, that
the corporation shall be authorized to exercise and enjoy
all other powers, rights, and privileges granted to or
conferred upon a corporation of this character by the laws
of the State of Delaware, and the enumeration of certain
powers as herein specified is not intended as exclusive of
or as waiver of any of the powers, rights or privileges
granted or conferred by the laws of said State, now or
hereinafter in force.
ARTICLE IV
AUTHORIZED SHARES
------------------
The capital stock of said corporation shall be Six
Million Dollars ($6,000,000.00) divided into five million
(5,000,000) shares of common stock of a par value of One
Dollar ($1.00) per share and one million (1,000,000) shares
of series preferred stock of a par value of One Dollar
($1.00) per share (hereinafter called the "series preferred
stock").
The designations, preferences and relative
participating optional or other special rights and
qualifications, limitations, restrictions, voting powers and
privileges of each class of the corporation's capital stock
shall be as follows:
I. SERIES PREFERRED STOCK
1. The series preferred stock may be issued in such
one or more series as shall from time to time be created and
authorized to be issued by the Board of Directors as
hereinafter provided:
5
(a) The Board of Directors is hereby expressly
authorized by resolution or resolutions from time to time
adopted providing for the issuance of series preferred stock
to the extent not fixed by the provisions hereinafter set
forth or otherwise provided by law, to determine that any
series of the series preferred stock shall be without voting
powers and to fix and state the voting powers full or
limited, if any, the designations, powers, preferences, and
relative participating optional or other special rights, if
any, of the shares of each series of series preferred stock
and the qualifications, limitations and restrictions thereof
including (but without limiting the generality of the
foregoing) any of the following with respect to which the
Board of Directors shall determine to make affirmative
provisions:
i) The number of shares to constitute such series and the
distinctive name and serial designation thereof;
ii) The annual dividend rate or rates and the date on
which the first dividend on shares of such series shall be
payable and all subsequent dividend payment dates;
iii) Whether dividends are to be cumulative or noncumulative, the
participating or other special rights, if any, with respect to the
payment of dividends and the date from which dividends on all shares
of such series issued prior to the record date for the first
dividend shall be cumulative;
iv) Whether any series shall be subject to redemption and,
if so, the manner of redemption and the redemption price or
prices for such series which may consist of a redemption
price or scale of redemption prices applicable only to
redemption for a sinking fund (which term as used in this
clause shall include any fund or provision for the periodic
purchase or retirement of shares), and a different
redemption price or scale of redemption prices applicable to
any other redemption;
v) The amount or amounts of preferential or other payment
to which any series is entitled over any other series or
class or over the common stock on voluntary or involuntary
liquidation, dissolution or winding up;
vi) Whether or not the shares of such series shall be
subject to the operation of a purchase, retirement or
sinking funds, and if so, whether such purchase, retirement
or sinking funds shall be cumulative or noncumulative, the
extent to and the manner in which such funds shall be
applied to the purchase or redemption of the shares of such
series, for retirement or for other corporate purposes, and
the terms and provisions relative to the operation thereof
and the extent to which the charges therefor are to have
priority over the payment of dividends on any other series
or class or the common stock;
6
vii) The terms, if any, upon which shares of such series
shall be convertible into or exchangeable for or shall have
rights to purchase or other privileges to acquire shares of
stock of any other class or classes or of any other series
of the same or any other class or classes including the
price or prices or the rate or rates of conversion,
exchange, purchase or acquisition and the terms of
adjustment, if any;
viii) The limitations and restrictions, if any, to be
effective while any shares of such series are outstanding
upon the payment of dividends or making of other
distributions on and upon the purchase, redemption or other
acquisition of the common stock or any other series or class
or classes of stock of the corporation ranking junior to the
shares of such series either as to dividends or upon liquidation;
ix) The conditions or restrictions, if any, upon the
creation of indebtedness of the corporation or upon the
issue of any additional stock (including additional shares
of such series or of any other series or of any other class,
ranking on a parity with or prior to the shares of such
series either as to dividends or upon liquidation.
2. Each share of each series of series preferred
stock shall have the same relative rights and be identical
in all respects with all the other shares of the same
series, except that shares of any one series issued at
different times may differ as to the dates, if any, from
which dividends thereon shall be cumulative. Except as
otherwise specified in this Article Fourth any series may
differ from any other series with respect to any one or more
of the voting powers, designations, powers, preferences and
relative, participating, optional and other special rights,
if any, and the qualifications, limitations and restrictions
thereof. Except where otherwise set forth in the resolution
or resolutions adopted by the Board of Directors providing
for the issue of any series of series preferred stock, the
number of shares comprising such series may be increased or
decreased (but not below the number of shares then
outstanding) from time to time by like action of the Board
of Directors.
3. Before any dividends on any other series or class
or classes of stock of the corporation ranking junior to any
series of the series preferred stock (other than dividends
payable in shares of any series or class or classes of stock
of the corporation ranking junior to such series of the
series preferred stock) shall be declared or paid or set
apart for payment, the holders of shares of such senior
series of series preferred stock shall be entitled to such
cash dividends, but only when and as declared by the Board
of Directors out of funds legally available therefor, as
they may be entitled to in accordance with the resolution or
resolutions adopted by the Board of Directors providing for
the issue of such series, payable on such dates as may be
fixed in such resolution or resolutions. Such dividends
shall be cumulative only if and to the extent set forth in
such resolution or resolutions.
7
4. In the event of any liquidation, dissolution or
winding up of the corporation, whether voluntary or
involuntary, before any payment or distribution of the
assets of the corporation shall be made to or set apart for
the holders of shares of any class or classes of stock of
the corporation ranking junior to the series preferred
stock, the holders of the shares of each series of the
series preferred stock shall be entitled to receive payment
of the amount per share fixed in the resolution or
resolutions adopted by the Board of Directors providing for
the issuance of the shares of such series, plus an amount
equal to all dividends accrued thereon to the date of final
distribution to such holders. If, upon any liquidation,
dissolution or winding up of the corporation, the assets of
the corporation, or proceeds thereof, distributable among
the holders of the shares of the series preferred stock
shall be insufficient to pay in full the preferential amount
aforesaid, then such assets, or the proceeds thereof, shall
be distributed among such holders ratably in accordance with
the respective amounts which would be payable on such shares if
all amounts payable thereon were paid in full unless
otherwise expressly provided in the resolution or resolutions establishing
any such series. For the purposes of this paragraph, the sale, conveyance,
exchange or transfer (for cash, shares of stock, securities or other
consideration) of all or substantially all of the property
or assets of the corporation or a consolidation or merger of
the corporation with one or more corporations shall not be
deemed to be a dissolution, liquidation or winding up,
voluntary or involuntary.
5. The term "junior stock", as used in relation to
the series preferred stock, shall mean the common stock and
any other class or series of stock of the corporation
hereafter authorized which by its term shall rank junior to
the series preferred stock as to dividends and as to the
distribution of assets on liquidation.
6. Before the corporation shall issue any shares of
series preferred stock of any series authorized as
hereinbefore provided, a certificate setting forth a copy of
the resolution or resolutions with respect to such series
adopted by the Board of Directors of the corporation
pursuant to the foregoing authority vested in said Board
shall be made, filed and recorded in accordance with the
then applicable requirements, if any, of the laws of the
State of Delaware, or, if no certificate is then so
required, such certificate shall be signed and acknowledged
on behalf of the corporation by its President or a Vice-
President and its corporate seal shall be affixed thereto
and attested by its Secretary or an Assistant Secretary and
such certificate shall be filed and kept on file at the
registered office of the corporation in the State of
Delaware and in such other place or places as the Board of
Directors shall designate.
8
7. Shares of any series of series preferred stock
which shall be issued and thereafter acquired by the
corporation through purchase, redemption, conversion or
otherwise, shall return to the status of authorized but
unissued series preferred stock of the same series unless
otherwise provided in the resolution or resolutions of the
Board of Directors. Unless otherwise provided in the
resolution or resolutions of the Board of Directors
providing for the issue thereof, the number of authorized
shares of stock of any such series may be increased or
decreased (but not below the number of shares thereof then
outstanding) by resolution or resolutions of the Board of
Directors and the filing of a certificate complying with the
requirements referred to in subparagraph 6. above. In case
the number of shares of any such series of series preferred
stock shall be decreased, the shares representing such
decrease shall, unless otherwise provided in the resolution
or resolutions of the Board of Directors providing for the
issuance thereof, resume the status of authorized but
unissued series preferred stock, undesignated as to series.
II. COMMON STOCK
1. Except as otherwise required by law and the
provisions of this certificate of incorporation and except
as provided by the resolution or resolutions of the Board of
Directors creating or amending any series of the series
preferred stock, the holders of the common stock of the
corporation shall possess full voting power for the election
of directors and for all other purposes and each holder
thereof shall be entitled to one vote for each share held by
such holder.
2. Subject to all of the rights of the series
preferred stock or any series thereof, the holders of the
common stock shall be entitled to receive, when, as and if
declared by the Board of Directors, out of funds legally
available therefor, dividends payable in cash, stock or
otherwise.
3. Upon any liquidation, dissolution or winding up of
the corporation, whether voluntary or involuntary, and after
the holders of the series preferred stock of each series
shall have been paid in full the amounts to which they
respectively shall be entitled, or a sum sufficient for such
payment in full shall have been set aside, the remaining net
assets of the corporation shall be distributed pro rata to
the holders of the common stock in accordance with their
respective rights and interest, to the exclusion of the
holders of the series preferred stock.
ARTICLE V
INITIAL REGISTERED OFFICE AND INITIAL REGISTERED AGENT
-------------------------------------------------------
The street address of the initial registered office of
the corporation is 100 West 10th Street, Wilmington, County
of New Castle, Delaware 19801. The name of its initial
registered agent at such address is The Corporation Trust Company.
9
ARTICLE VI
INCORPORATOR
-------------
The name and address of the incorporate is:
Robert V. Dwyer, Jr. 1601 Woodmen Tower
Omaha, Nebraska 68102
ARTICLE VII
POWERS
-------
The following provisions are inserted for the
management of the business and for the conduct of the
affairs of the corporation, and it is expressly provided
that they are intended to be in furtherance and not in
limitation or exclusion of the powers conferred by the
statutes of the State of Delaware.
(a) The number of directors of the corporation
shall be fixed from time to time by, or in the manner
provided in, the By-Laws.
(b) The Board of Directors shall have power from
time to time to fix and to determine and vary the amount of
the working capital of the corporation and to direct and
determine the use and disposition of any surplus or net
profits over and above the capital as determined pursuant
to, and subject to, the provisions of the General
Corporation Law of Delaware; and in its discretion the Board
of Directors may use and apply any such surplus or
accumulated profits in purchasing or acquiring bonds,
debentures, notes, or other obligations or securities of the
corporation or shares of its own stock of any class so far
as may be permitted by law, to such extent and in such
manner and upon such terms as the Board of Directors shall
deem expedient, but any such bonds, debentures, notes,
obligations, securities or stock so purchased or acquired
(together with any stock or securities acquired in
satisfaction of a debt or otherwise), may be resold.
Nothing herein contained, however, shall be held to limit
the general power of the corporation to apply any other
funds or assets to the purchase or acquisition or retirement
of its stock, bonds, debentures, notes or other obligations
or securities.
(c) The Board of Directors, subject to the
applicable provisions of the General Corporation Law of
Delaware, may from time to time determine whether and to
what extent, and at what times and places and under what
conditions and regulations the accounts and books of the
corporation or any of them shall be open to the inspection
of the stockholders; and no stockholder shall have any right
to inspect any account, book or document of the corporation,
except as conferred by law or as authorized by the Board of
Directors or by resolution of the stockholders.
10
(d) The books of the corporation may be kept
within or without the State of Delaware at such place or
places as may be designated from time to time by the Board
of Directors. Elections of directors need not be by written
ballot unless the By-Laws of the corporation shall so
provide.
(e) The Board of Directors may authorized and
cause to be executed mortgages, deeds of trust, pledges and
liens upon the real and personal property of the
corporation, without limitation as to amount or otherwise.
(f) The Board of Directors may make, alter or
repeal the By-Laws of the corporation except as otherwise
provided therein.
(g) The Board of Directors may determine, from
time to time, the amount of compensation which shall be paid
to its members. The Board shall also have power, in its
discretion, to provide for and to pay directors rendering
unusual or exceptional services to the corporation special
compensation appropriate to the value of such services as
determined by the Board of Directors from time to time.
(h) In addition to the powers and authorities
hereinbefore or by statute expressly conferred upon it, the
Board of Directors is hereby empowered to exercise all such
powers and to do all such acts and things as may be
exercised or done by the corporation; subject, nevertheless,
to the provisions of the statutes of Delaware, of this
certificate of incorporation and of any By-Laws from time to
time made by the stockholders; provided, however, that no By-
Laws so made shall invalidate any prior act of the Board of
Directors which would have been valid if such By-Laws had
not been made.
ARTICLE VIII
COMPROMISE OR ARRANGEMENT
--------------------------
Whenever a compromise or arrangement is proposed
between the corporation and its creditors or any class of
them and/or between the corporation and its stockholders or
any class of them, any court of equitable jurisdiction
within the State of Delaware may, on the application in a
summary way of the corporation or of any creditor or
stockholder thereof, or on the application of any receiver
or receivers appointed for the corporation under the
provisions of Section 291 of Title 8 of the Delaware Code or
11
on the application of trustees in dissolution or of any
receiver or receivers appointed for the corporation under
the provisions of Section 279 of Title 8 of the Delaware
Code order a meeting of the creditors or class of creditors,
and/or the stockholders or class of stockholders of the
corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of
stockholders of the corporation, as the case may be, agree
to any compromise or arrangement and to any reorganization
of the corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which
the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of the corporation,
as the case may be, and also on the corporation.
ARTICLE IX
INDEMNIFICATION
-----------------
The corporation shall, to the extent required, and may,
to the extent permitted, by Section 145 of the Delaware
General Corporation Law, as amended from time to time,
indemnify and reimburse all persons whom it may indemnify
and reimburse pursuant thereto. Notwithstanding the
foregoing, the indemnification provided for in this Article
IX shall not be deemed exclusive of any other rights to
which those entitled to receive indemnification or
reimbursement hereunder may be entitled under any By-Law of
this corporation, agreement, vote or consent of stockholders
or disinterested directors or otherwise.
ARTICLE X
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.
ARTICLE XI
INITIAL BOARD OF DIRECTORS
----------------------------
The name and mailing address(es) of the persons who are
to serve as directors until the first annual meeting of
stockholders, or until their successors are elected and
qualify, are as follows:
12
Robert B. Daugherty 400 North Elmwood Road
Omaha, Nebraska 68132
Melvin A. Bannister 406 Shorewood Drive
Waterloo, Nebraska 68069
Paul Lienemann 8801 Capitol Avenue
Omaha, Nebraska 68114
Delmer L. Toebben 7520 Oakwood
Ralston, Nebraska 68051
Robert A. Wahl, Jr. 2940 South 101st Street
Omaha, Nebraska 68124
ROBERT V. DWYER, JR., INCORPORATOR
STATE OF NEBRASKA )
SS
COUNTY OF DOUGLAS )
Before me, the undersigned a Notary Public, in and for
the County and State aforesaid, personally came Robert V.
Dwyer, Jr., party to the foregoing Articles of
Incorporation, known to me personally to be such and he
acknowledged that he executed the foregoing Articles of
Incorporation and that the execution of the same was his
voluntary act and deed and that the facts stated therein are
true to the best of his knowledge and belief.
DATED July 19, 1974.
Virginia A. Bell
Notary Public
STATE OF DELAWARE
OFFICE OF SECRETARY OF STATE
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF
DELAWARE DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND
CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF VALMONT
INDUSTRIES, INC. FILED IN THIS OFFICE ON THE FIFTH DAY OF
JUNE, A.D. 1975, AT 9 O'CLOCK A.M.
13
Michael Harkins, Secretary of State
AUTHENTICATION: |2631677
DATE: 04/25/1990
CERTIFICATE OF AMENDMENT
of the
ARTICLES OF INCORPORATION
of
VALMONT INDUSTRIES, INC.
A Delaware Corporation
Pursuant to Section 242 of the General Corporation Law
of the State of Delaware, Valmont Industries, Inc., a
corporation organized and existing under the laws of the
State of Delaware, hereby certifies:
FIRST: The Directors of the Corporation on March 21,
1975, declared it advisable that the company amend its
Articles of Incorporation in the manner set forth below and
directed that the consideration of the amendment be
considered by the stockholders at the next annual meeting of
the stockholders scheduled for April 25, 1975. Such meeting
of stockholders was held on April 25, 1975, at Valley,
Nebraska, pursuant to notice given in accordance with
Section 222 of the General Corporation Law of the State of
Delaware, which notice set forth the amendment in a brief
summary form. At the meeting of stockholders, a majority of
the outstanding stock entitled to vote on the amendment
voted in favor thereof and a majority of the outstanding
stock of each class entitled to vote upon the amendment
voted in favor thereof.
The following amendment has been duly adopted by the
stockholders of the corporation pursuant to the section set
out above:
ARTICLE IV
AUTHORIZED SHARES
-------------------
The capital stock of said corporation shall be Three
Million Five Hundred Thousand Dollars ($3,500,000.00)
divided into three million (3,000,000) shares of common
stock of a par value of One Dollar ($1.00) per share, and
five hundred thousand (500,000) shares of series preferred
stock of a par value of One Dollar ($1.00) per share
(hereinafter called the "series preferred stock").
The designations, preferences and relative
participating optional or other special rights and
qualifications, limitations, restrictions, voting powers and
privileges of each class of the corporation's capital stock
shall be as follows:
14
I. SERIES PREFERRED STOCK
1. The series preferred stock may be issued in such
one or more series as shall from time to time be created and
authorized to be issued by the Board of Directors as
hereinafter provided:
(a) The Board of Directors is hereby expressly
authorized by resolution or resolutions from time to time
adopted providing for the issuance of series preferred stock
to the extent not fixed by the provisions hereinafer set
forth or otherwise provided by law, to determine that any
series of the series preferred stock shall be without voting
powers and to fix and state the voting powers full or
limited, if any, the designations, powers, preferences, and
relative participating optional or other special rights, if
any, of the shares of each series or series preferred stock
and the qualifications, limitations and restrictions thereof
including (but without limiting the generality of the
foregoing) any of the following with respect to which the
Board of Directors shall determine to make affirmative
provisions:
(i) The number of shares to constitute such
series and the distinctive name and serial designation
thereof;
(ii) The annual dividend rate or rates and
the date on which the first dividend on shares of such
series shall be payable and all subsequent dividend payment
dates;
(iii) Whether dividends are to be cumulative
or noncumulative, the participating or other special rights,
if any, with respect to the payment of dividends and the
date from which dividends on all shares of such series
issued prior to the record date for the first dividend shall
be cumulative;
(iv) Whether any series shall be subject to
redemption and, if so, the manner of redemption and the
redemption price or prices for such series which may consist
of a redemption price or scale of redemption prices
applicable only to redemption for a sinking fund (which term
as used in this clause shall include any fund or provision
for the periodic purchase or retirement of shares), and a
different redemption price or scale of redemption prices
applicable to any other redemption;
(v) The amount or amounts of preferential or
other payment to which any series is entitled over any other
series or class or over the common stock on voluntary or
involuntary liquidation, dissolution or winding up;
15
(vi) Whether or not the shares of such series
shall be subject to the operation of a purchase, retirement
or sinking funds, and if so, whether such purchase,
retirement or sinking funds shall be cumulative or
noncumulative, the extent to and the manner in which such
funds shall be applied to the purchase or redemption of the
shares of such series, for retirement or for other corporate
purposes, and the terms and provisions relative to the
operation thereof and the extent to which the charges
therefor are to have priority over the repayment of
dividends on any other series or class or the common stock;
(vii) The terms, if any, upon which shares of
such series shall be convertible into or exchangeable for or
shall have rights to purchase or other privileges to acquire
shares of stock of any other class or classes or of any
other series of the same or any other class or classes
including the price or prices or the rate or rates of
conversion, exchange, purchase or acquisition and the terms
of adjustment, if any;
(viii) The limitations and restrictions, if
any, to be effective while any shares of such series are
outstanding upon the payment of dividends or making of other
distributions on and upon the purchase, redemption or other
acquisition of the common stock or any other series or class
or classes of stock of the corporation ranking junior to the
shares of such series either as to dividends or upon
liquidation;
(ix) The conditions or restrictions, if any,
upon the creation of indebtedness of the corporation or upon
the issue of any additional stock (including additional
shares of such series or of any other series or of any other
class, ranking on a parity with or prior to the shares of
such series either as to dividends or upon liquidation.
2. Each share of each series of series preferred
stock shall have the same relative rights and be identical
in all respects with all the other shares of the same
series, except that shares of any one series issued at
different times may differ as to the dates, if any, from
which dividends thereon shall be cumulative. Except as
otherwise specified in this ARTICLE IV, any series may
differ from any other series with respect to any one or more
of the voting powers, designations, powers, preferences and
relative, participating, optional and other special rights,
if any, and the qualifications, limitations and restrictions
thereof. Except where otherwise set forth in the resolution
or resolutions adopted by the Board of Directors providing
for the issue of any series of series preferred stock, the
number of shares comprising such series may be increased or
decreased (but not below the number of shares then
outstanding) from time to time by like action of the Board
of Directors.
16
3. Before any dividends on any other series or class
or classes of stock of the corporation ranking junior to any
series of the series preferred stock (other than dividends
payable in shares of any series or class or classes of stock
of the corporation ranking junior to such series of the
series preferred stock) shall be declared or paid or set
apart for payment, the holders of shares of such senior
series of series preferred stock shall be entitled to such
cash dividends, but only when and as declared by the Board
of Directors out of funds legally available therefor, as
they may be entitled to in accordance with the resolution or
resolutions adopted by the Board of Directors providing for
the issue of such series, payable on such dates as may be
fixed in such resolution or resolutions. Such dividends
shall be cumulative only if and to the extent set forth in
such resolution or resolutions.
4. In the event of any liquidation, dissolution or
winding up of the corporation, whether voluntary or
involuntary, before any payment or distribution of the
assets of the corporation shall be made to or set apart for
the holders of shares of any class or classes of stock of
the corporation ranking junior to the series preferred
stock, the holders of the shares of each series of the
series preferred stock shall be entitled to receive payment
of the amount per share fixed in the resolution or
resolutions adopted by the Board of Directors providing for
the issuance of the shares of such series, plus an amount
equal to all dividends accrued thereon to the date of final
distribution to such holders. If, upon any liquidation,
dissolution or winding up of the corporation, the assets of
the corporation, or proceeds thereof, distributable among
the holders of the shares of series preferred stock shall be
insufficient to pay in full the preferential amount
aforesaid, then such assets, or the proceeds thereof, shall
be distributed among such holders ratably in accordance with
the respective amounts which would be payable on such shares
if all amounts payable thereon were paid in full unless
otherwise expressly provided in the resolution or
resolutions establishing any such series. For the purposes
of this paragraph, the sale, conveyance, exchange or
transfer (for cash, shares of stock, securities or other
consideration) of all or substantially all of the property
or assets of the corporation or a consolidation or merger of
the corporation with one or more corporations shall not be
deemed to be a dissolution, liquidation or winding up,
voluntary or involuntary.
5. The term "junior stock", as used in relation to
the series preferred stock, shall mean the common stock and
any other class or series of stock of the corporation
hereafter authorized which by its term shall rank junior to
the series preferred stock as to dividends and as to the
distribution of assets on liquidation.
17
6. Before the corporation shall issue any shares of
series preferred stock of any series authorized as
hereinbefore provided, a certificate setting forth a copy of
the resolution or resolutions with respect to such series
adopted by the Board of Directors of the corporation
pursuant to the foregoing authority vested in said Board
shall be made, filed and recorded in accordance with the
then applicable requirements, if any, of the laws of the
State of Delaware, or, if no certificate is then so
required, such certificate shall be signed and acknowledged
on behalf of the corporation by its President or a Vice
President and its corporate seal shall be affixed thereto
and attested by its Secretary or an Assistant Secretary and
such certificate shall be filed and kept on file at the
registered office of the corporation in the State of
Delaware and in such other place or places as the Board of
Directors shall designate.
7. Shares of any series of series preferred stock
which shall be issued and thereafter acquired by the
corporation through purchase, redemption, conversion or
otherwise, shall return to the status of authorized but
unissued series preferred stock of the same series unless
otherwise provided in the resolution or resolutions of the
Board of Directors. Unless otherwise provided in the
resolution or resolutions of the Board of Directors. Unless
otherwise provided in the resolution or resolutions of the
Board of Directors providing for the issue thereof, the
number of authorized shares of stock of any such series may
be increased or decreased (but not below the number of
shares thereof then outstanding) by resolution or
resolutions of the Board of Directors and the filing of a
certificate complying with the requirements referred to in
subparagraph 6 above. In case the number of shares of any
such series of series preferred stock shall be decreased,
the shares representing such decrease shall, unless
otherwise provided in the resolution or resolutions of the
Board of Directors providing for the issuance thereof,
resume the status of authorized but unissued series
preferred stock, undesignated as to series.
II. COMMON STOCK
1. Except as otherwise required by law and the
provisions of this certificate of incorporation and except
as provided by the resolution or resolutions of the Board of
Directors creating or amending any series of the series
preferred stock, the holders of the common stock of the
corporation shall possess full voting power for the election
of directors and for all other purposes and each holder
thereof shall be entitled to one vote for each share held by
such holder.
2. Subject to all of the rights of the series
preferred stock or any series thereof, the holders of the
common stock shall be entitled to receive, when, as and if
declared by the Board of Directors, out of funds legally
available therefor, dividends payable in cash, stock or
otherwise.
18
3. Upon any liquidation, dissolution or winding up of
the corporation, whether voluntary or involuntary, and after
the holders of the series preferred stock of each series
shall have been paid in full the amounts to which they
respectively shall be entitled, or a sum sufficient for such
payment in full shall have been set aside, the remaining net
assets of the corporation shall be distributed pro rata to
the holders of the common stock in accordance with their
respective rights and interest, to the exclusion of the
holders of the series preferred stock.
Robert B. Daugherty, President
Paul Lienemann, Secretary
STATE OF NEBRASKA)
ss
COUNTY OF DOUGLAS)
Before me, the undersigned, a Notary Public in and for
the County and State aforesaid, personally came Robert B.
Daugherty and Paul Lienemann, the parties designated above
as President and Secretary of Valmont Industries, Inc., and
personally known to me to be such, and they acknowledge that
they executed the foregoing Certificate of Amendment to the
Articles of Incorporation and that the execution of the same
was their voluntary act and deed and the facts stated
therein are true to the best of their knowledge and belief.
Dated this 7th day of May, 1975.
Virginia A.Bell
Notary Public
STATE OF DELAWARE
OFFICE OF SECRETARY OF STATE
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF
DELAWARE DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND
CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF VALMONT
INDUSTRIES, INC. FILED IN THIS OFFICE ON THE TWENTY-FIFTH
DAY OF SEPTEMBER, A.D. 1981, AT 10 O'CLOCK A.M.
19
Michael Harkins, Secretary of State
AUTHENTICATION: |2631680
DATE: 04/25/1990
CERTIFICATE OF AMENDMENT
TO CERTIFICATE OF INCORPORATION
OF
VALMONT INDUSTRIES, INC.
Pursuant to Section 242 of the General Corporation Law
of the State of Delaware, Valmont Industries, Inc., a
corporation organized and existing under the laws of the
State of Delaware, does hereby certify:
FIRST: The Certificate of Incorporation for Valmont
Industries, Inc. has been filed in the office of the
Delaware Secretary of State.
SECOND: At a special meeting of the stockholders of
the company, held on September 23, 1981, an amendment to
Article IV of the Certificate of Incorporation was duly
adopted in accordance with the provisions of Section 242 of
the Delaware General Corporation law; the amendment so
adopted is set forth on Exhibit A attached hereto and by
this reference made a part hereof.
IN WITNESS WHEREOF, said Valmont Industries, Inc., a
Delaware corporation, has caused this Certificate to be
signed by its Chairman and its Secretary this 23rd day of
September, 1981.
Valmont Industries, Inc.
A Delaware Corporation
By
Robert B. Daugherty, Chairman
Attest:
J. Lee Salmans, Secretary
20
Exhibit A
ARTICLE IV
AUTHORIZED SHARES
-------------------
The capital stock of said corporation shall be six
million five hundred thousand dollars ($6,500,000) divided
into six million (6,000,000) shares of common stock of a par
value of one dollar ($1.00) per share, and five hundred
thousand (500,000) shares of series preferred stock of a par
value of one dollar ($1.00) per share (hereinafter called
the "series preferred stock").
The designations, preferences and relative
participating optional or other special rights and
qualifications, limitations, restrictions, voting powers and
privileges of each class of the corporation's capital stock
shall be as follows:
I. SERIES PREFERRED STOCK
1. The series preferred stock may be issued in such
one or more series as shall from time to time be created and
authorized to be issued by the Board of Directors as
hereinafter provided:
(a) The Board of Directors is hereby expressly
authorized by resolution or resolutions from time to time
adopted providing for the issuance of series preferred stock
to the extent not fixed by the provisions hereinafter set
forth or otherwise provided by law, to determine that any
series of the series preferred stock shall be without voting
powers and to fix and state the voting powers full or
limited, if any, the designations, powers, preferences and
relative participating optional or other special rights, if
any, of the shares of each series or series preferred stock
and the qualifications, limitations and restrictions thereof
including (but without limiting the generality of the
foregoing) any of the following with respect to which the
Board of Directors shall determine to make affirmative
provisions:
(i) The number of shares to constitute such
series and the distinctive name and serial designation
thereof;
(ii) The annual dividend rate or rates and
the date on which the first dividend on shares of such
series shall be payable and all subsequent dividend payment
dates;
(iii) Whether dividends are to be cumulative
or non-cumulative, the participating or other special
rights, if any, with respect to the payment of dividends and
the date from which dividends on all shares of such series
issued prior to the record date for the first dividend shall
be cumulative;
21
(iv) Whether any series shall be subject to
redemption and, if so, the manner of redemption and the
redemption price or prices for such series which may consist
of a redemption price or scale of redemption prices
applicable only to redemption for a sinking fund (which term
as used in this clause shall include any fund or provision
for the periodic purchase or retirement of shares), and a
different redemption price or scale of redemption prices
applicable to any other redemption;
(v) The amount or amounts of preferential or
other payment to which any series is entitled over any other
series or class or over the common stock on voluntary or
involuntary liquidation, dissolution or winding up;
(vi) Whether or not the shares of such series
shall be subject to the operation of a purchase, retirement
or sinking funds, and if so, whether such purchase,
retirement or sinking funds shall be cumulative or non-
cumulative, the extent to and the manner in which such funds
shall be applied to the purchase or redemption of the shares
of such series, for retirement or for other corporate
purposes, and the terms and provisions relative to the
operation thereof and the extent to which the charges
therefor are to have priority over the payment of dividends
on any other series or class or the common stock;
(vii) The terms, if any, upon which shares of
such series shall be convertible into or exchangeable for or
shall have rights to purchase or other privileges to acquire
shares of stock of any other class or classes or of any
other series of the same or any other class or classes
including the price or prices or the rate or rates of
conversion, exchange, purchase or acquisition and the terms
of adjustment, if any;
(viii) The limitations and restrictions, if
any, to be effective while any shares of such series are
outstanding upon the payment of dividends or making of other
distributions on and upon the purchase, redemption or other
acquisition of the common stock or any other series or class
or classes of stock of the corporation ranking junior to the
shares of such series either as to dividends or upon
liquidation;
(ix) The conditions or restrictions, if any,
upon the creation of indebtedness of the corporation or upon
the issue of any additional stock, including additional
shares of such series or of any other series or of any other
class, ranking on a parity with or prior to the shares of
such series either as to dividends or upon liquidation.
22
2. Each share of each series of series preferred
stock shall have the same relative rights and be identical
in all respects with all the other shares of the same
series, except that shares of any one series issued at
different times may differ as to the dates, if any, from
which dividends thereon shall be cumulative. Except as
otherwise specified in this ARTICLE IV, any series may
differ from any other series with respect to any one or more
of the voting powers, designations, powers, preferences and
relative, participating, optional and other special rights,
if any, and the qualifications, limitations and restrictions
thereof. Except where otherwise set forth in the resolution
or resolutions adopted by the Board of Directors providing
for the issue of any series of series preferred stock, the
number of shares comprising such series may be increased or
decreased (but not below the number of shares then
outstanding) from time to time by like action of the Board
of Directors.
3. Before any dividends on any other series or class
or classes of stock of the corporation ranking junior to any
series of the series preferred stock (other than dividends
payable in shares of any series or class or classes of stock
of the corporation ranking junior to such series of the
series preferred stock) shall be declared or paid or set
apart for payment, the holders of shares of such senior
series of series preferred stock shall be entitled to such
cash dividends, but only when and as therefor, as they may
be entitled to in accordance with the resolution or
resolutions adopted by the Board of Directors providing for
the issue of such series, payable on such dates as may be
fixed in such resolution or resolutions. Such dividends
shall be cumulative only if and to the extent set forth in
such resolution or resolutions.
4. In the event of any liquidation, dissolution or
winding up of the corporation, whether voluntary or
involuntary, before any payment or distribution of the
assets of the corporation shall be made to or set apart for
the holders of shares of any class or classes of stock of
the corporation ranking junior to the series preferred
stock, the holders of the shares of each series of the
series preferred stock shall be entitled to receive payment
of the amount per share fixed in the resolution or
resolutions adopted by the Board of Directors providing for
the issuance of the shares of such series, plus an amount
equal to all dividends, accrued thereon to the date of final
distribution to such holders. If, upon any liquidation,
dissolution or winding up of the corporation, the assets of
the corporation, or proceeds thereof, distributable among
the holders of the shares of series preferred stock shall be
insufficient to pay in full the preferential amount
aforesaid, then such assets, or the proceeds thereof, shall
be distributed among such holders ratably in accordance with
the respective amounts which would be payable on such shares
if all amounts payable thereon were paid in full unless
otherwise expressly provided in the resolution or
resolutions establishing any such series. For the purposes
of this paragraph, the sale, conveyance, exchange or
transfer (for cash, shares of stock, securities or other
consideration) of all or substantially all of the property
or assets of the corporation or a consolidation or merger of
the corporation with one or more corporations shall not be
deemed to be a dissolution, liquidation or winding up,
voluntary or involuntary.
23
5. The term "junior stock", as used in relation to
the series preferred stock, shall mean the common stock and
any other class or series of stock of the corporation
hereinafter authorized which by its term shall rank junior
to the series preferred stock as to dividends and as to the
distribution of assets on liquidation.
6. Before the corporation shall issue any shares of
series preferred stock of any series authorized as
hereinbefore provided, a certificate setting forth a copy of
the resolution or resolutions with respect to such series
adopted by the Board of Directors of the corporation
pursuant to the foregoing authority vested in said Board
shall be made, filed and recorded in accordance with the
then applicable requirements, if any, of the laws of the
State of Delaware, or, if no certificate is then so
required, such certificate shall be signed and acknowledged
on behalf of the corporation by its President or Vice
President and its corporate seal shall be affixed thereto
and attested by its Secretary or an Assistant Secretary and
such certificate shall be filed and kept on file at the
registered office of the corporation in the State of
Delaware and in such other place or places as the Board of
Directors shall designate.
7. Shares of any series of series preferred stock
which shall be issued and thereafter acquired by the
corporation through purchase, redemption, conversion or
otherwise, shall return to the status of authorized but
unissued series preferred stock of the same series unless
otherwise provided in the resolution or resolutions of the
Board of Directors. Unless otherwise provided in the
resolution or resolutions of the Board of Directors
providing for the issue thereof, the number of authorized
shares of stock of any such series may be increased or
decreased (but not below the number of shares thereof then
outstanding) by resolution or resolutions of the Board of
Directors and the filing of a certificate complying with the
requirements referred to in subparagraph 6 above. In case
the number of shares of any such series of series preferred
stock shall be decreased, the shares representing such
decrease shall, unless otherwise provided in the resolution
or resolutions of the Board of Directors providing for the
issuance thereof, resume the status of authorized but
unissued series preferred stock, undesignated as to series.
II. COMMON STOCK
1. Except as otherwise required by law and the
provisions of this Certificate of Incorporation and except
as provided by the resolution or resolutions of the Board of
Directors creating or amending any series of the series
preferred stock, the holders of the common stock of the
corporation shall possess full voting power for the election
of directors and for all other purposes and each holder
thereof shall be entitled to one vote for each share held by
such holder.
2. Subject to all of the rights of the series
preferred stock or any series thereof, the holders of the
common stock shall be entitled to receive, when, as and if
declared by the Board of Directors, out of funds legally
available therefor, dividends payable in cash, stock or
otherwise. 24
3. Upon any liquidation, dissolution or winding up of
the corporation, whether voluntary or involuntary, and after
the holders of the series preferred stock of each series
shall have been paid in full the amounts to which they
respectively shall be entitled, or a sum sufficient for such
payment in full shall have been set aside, the remaining net
assets of the corporation shall be distributed pro rata to
the holders of the common stock in accordance with their
respective rights and interest, to the exclusion of the
holders of the series preferred stock.
STATE OF DELAWARE
OFFICE OF SECRETARY OF STATE
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF
DELAWARE DO HEREBY CERTIFY THAT THE ABOVE AND FOREGOING IS A
TRUE AND CORRECT COPY OF THE CERTIFICATE OF CHANGE OF
LOCATION OF REGISTERED OFFICE OF THE COMPANIES REPRESENTED
BY "THE CORPORATION TRUST COMPANY", AS IT APPLIES TO
"VALMONT INDUSTRIES, INC.." AS RECEIVED AND FILED IN THIS
OFFICE ON THE TWENTY-SEVENTH DAY OF JULY, A.D. 1984, AT 4:30
O'CLOCK P.M.
Michael Harkins, Secretary of State
AUTHENTICATION: 2631684
DATE: 04/25/1990
STATE OF DELAWARE
OFFICE OF SECRETARY OF STATE
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF
DELAWARE DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND
CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF VALMONT
INDUSTRIES, INC. FILED IN THIS OFFICE ON THE SIXTH DAY OF
MAY, A.D. 1987, AT 10 O'CLOCK A.M.
25
Michael Harkins, Secretary of State
AUTHENTICATION: |2631685
DATE: 04/25/1990
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
VALMONT INDUSTRIES, INC.
-----------------------------------
VALMONT INDUSTRIES, INC., a corporation organized and
existing under and by virtue of the General Corporation Law
of the State of Delaware, does hereby certify:
FIRST: That at a meeting of the Board of Directors of
VALMONT INDUSTRIES, INC., a resolution was duly adopted
setting forth a proposed Amendment to the Certificate of
Incorporation of said Corporation declaring said Amendment
to be advisable and calling a meeting of the stockholders of
said Corporation for consideration thereof. The resolution
setting forth the proposed Amendment is as follows:
"RESOLVED, that ARTICLE IX of the Certificate of
Incorporation entitled "Indemnification" be amended in its
entirety to read as set forth on Exhibit A attached hereto;
"FURTHER RESOLVED, that the Board of Directors declares
the advisability of adopting the foregoing Amendment to the
Corporation's Certificate of Incorporation and directs that
the Amendment be submitted to stockholders at the next
annual meeting."
SECOND: That thereafter, pursuant to resolution of its
Board of Directors, an annual meeting of the shareholders of
said Corporation was duly called and held, upon notice in
accordance with Section 222 of the General Corporation Law
of the State of Delaware on April 27, 1987, at which meeting
the necessary number of shares as required by statute were
voted in favor of the Amendment.
THIRD: That said Amendment was adopted in accordance
with the provisions of Section 242 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said VALMONT INDUSTRIES, INC. has
caused this Certificate to be signed by WILLIAM F. WELSH,
II, its President, and attested by THOMAS P. EGAN, JR., its
Secretary, this 27th day of April, 1987.
ATTEST: VALMONT INDUSTRIES, INC.
26
THOMAS P. EGAN, JR. WILLIAM F. WELSH, II,
Secretary President
EXHIBIT A
-----------
ARTICLE IX
-----------
INDEMNIFICATION
-----------------
The Corporation shall, to the extent required, and may,
to the extent permitted, by Section 102 and Section 145 of
Delaware General Corporation Law as amended from time to
time, indemnify and reimburse all persons whom it may
indemnify and reimburse pursuant thereto. With respect to
acts or omissions occurring on or after April 27, 1987, no
director shall be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary
duty as a director, provided, however, that this provision
shall not eliminate or limit the liability of a director (i)
for any breach of the director's duty of loyalty to the
Corporation or its stockholders; (ii) for acts or omissions
not in good faith or which involve intentional misconduct or
a knowing violation of law; (iii) under Section 174 of the
Delaware General Corporation Law; or (iv) for any
transaction from which the director derived an improper
personal benefit.
Notwithstanding the foregoing, the indemnification
provided for in this ARTICLE IX shall not be deemed
exclusive of any other rights to which those entitled to
receive indemnification or reimbursement hereunder may be
entitled under any By-Law of this Corporation, agreement,
vote or consent of stockholders or disinterested directors
or otherwise.
STATE OF DELAWARE
OFFICE OF SECRETARY OF STATE
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF
DELAWARE DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND
CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF VALMONT
INDUSTRIES, INC. FILED IN THIS OFFICE ON THE EIGHTH DAY OF
AUGUST, A.D. 1988, AT 12 O'CLOCK P.M.
27
Michael Harkins, Secretary of State
AUTHENTICATION: |2631689
DATE: 04/25/1990
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
VALMONT INDUSTRIES, INC.
VALMONT INDUSTRIES, INC., a corporation organized and
existing under and by virtue of the General Corporation Law
of the State of Delaware, does hereby certify:
FIRST: That a meeting of the Board of Directors of
VALMONT INDUSTRIES, INC., a resolution was duly adopted
setting forth a proposed Amendment to the Certificate of
Incorporation of said Corporation declaring said Amendment
to be advisable and calling a meeting of the stockholders of
said Corporation for consideration thereof. The resolution
setting forth the proposed Amendment is as follows:
RESOLVED, that it is deemed advisable that the
first paragraph of Article IV of the Corporation's
Certificate of Incorporation be amended to read as follows:
The capital stock of said Corporation shall be
Twelve Million Five Hundred Thousand Dollars ($12,500,000)
divided into Twelve Million (12,000,000) shares of common
stock of a par value of One Dollar ($1.00) per share and
Five Hundred Thousand (500,000) shares of series preferred
stock of a par value of One Dollar ($1.00) per share
(hereinafter called the "series preferred stock").
SECOND: That thereafter, pursuant to resolution of its
Board of Directors, a special meeting of the stockholders of
said Corporation was duly called and held, upon notice in
accordance with Section 222 of the General Corporation Law
of the State of Delaware on August 8, 1988, at which meeting
the necessary number of shares as required by statute were
voted in favor of the Amendment.
THIRD: That said Amendment was adopted in accordance
with the provisions of Section 242 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said VALMONT INDUSTRIES, INC. has
caused this Certificate to be signed by WILLIAM F. WELSH II,
its President, and attested by THOMAS P. EGAN, JR., its
Secretary, this 8th day of August, 1988.
28
VALMONT INDUSTRIES, INC.
BY:
WILLIAM F. WELSH II
President
ATTEST:
THOMAS P. EGAN, JR.
Secretary
STATE OF DELAWARE
OFFICE OF SECRETARY OF STATE
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF
DELAWARE DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND
CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF VALMONT
INDUSTRIES, INC. FILED IN THIS OFFICE ON THE TWENTY-SEVENTH
DAY OF APRIL, A.D. 1990, AT 10 O'CLOCK A.M.
Michael Harkins, Secretary of State
AUTHENTICATION: |2635769
DATE: 04/27/1990
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
VALMONT INDUSTRIES, INC.
VALMONT INDUSTRIES, INC., a corporation organized and
existing under and by virtue of the General Corporation Law
of the State of Delaware, does hereby certify:
FIRST: That at a meeting of the Board of Directors of
VALMONT INDUSTRIES, INC., a resolution was duly adopted
setting forth a proposed Amendment to the Certificate of
Incorporation of said Corporation declaring said Amendment
to be advisable and calling a meeting of the stockholders of
said Corporation for consideration thereof. The resolution
setting forth the proposed Amendment is as follows:
29
RESOLVED, that it is deemed advisable that the first
paragraph of Article IV of the Corporation's Certificate of
Incorporation be amended to read as follows:
The capital stock of said Corporation shall be Thirty
Six Million Five Hundred Thousand Dollars ($36,500,000.00)
divided into Thirty Six Million (36,000,000) shares of
common stock of a par value of One Dollar ($1.00) per share
and Five Hundred Thousand (500,000) shares of series
preferred stock of a par value of One Dollar ($1.00) per
share (hereinafter called the "series preferred stock").
SECOND: That thereafter, pursuant to resolution of its
Board of Directors, a special meeting of the stockholders of
said Corporation was duly called and held, upon notice in
accordance with Section 222 of the General Corporation Law
of the State of Delaware on April 23, 1990, at which meeting
the necessary number of shares as required by statute were
voted in favor of the Amendment.
THIRD: That said Amendment was adopted in accordance
with the provisions of Section 242 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said VALMONT INDUSTRIES, INC. has
caused this Certificate to be signed by WILLIAM F. WELSH II,
its President, and attested by THOMAS P. EGAN, JR., its
Secretary, this 24th day of April, 1990.
VALMONT INDUSTRIES, INC.
BY:
WILLIAM F. WELSH II
President
ATTEST:
THOMAS P. EGAN, JR.
Secretary
30
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE
OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND
CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "VALMONT
INDUSTRIES, INC." FILED IN THIS OFFICE ON THE TWENTY-FIRST
DAY OF APRIL, A.D. 1993, AT 12 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED
TO NEW CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
William T. Quillen, Secretary of State
AUTHENTICATION: *3867752
DATE: 04/21/1993
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
VALMONT INDUSTRIES, INC.
VALMONT INDUSTRIES, INC., a corporation organized and
existing under and by virtue of the General Corporation Law
of the State of Delaware, does hereby certify:
FIRST: That at a meeting of the Board of Directors of
VALMONT INDUSTRIES, INC. a resolution was duly adopted
setting forth a proposed amendment to the Certificate of
Incorporation of said corporation declaring said amendment
to be advisable and calling for a meeting of the
stockholders of said corporation for consideration thereof.
The resolution setting forth the proposed amendment is as
follows:
"RESOLVED, that the Board of Directors declares it
advisable that the Company's Certificate of Incorporation be
amended by the addition of a new Article XII entitled
"Classified Board of Directors", such new Article XII to
read as set forth on Exhibit A attached hereto."
SECOND: That thereafter, pursuant to resolution of its
Board of Directors, an annual meeting of the stockholders of
said corporation was duly called and held upon notice in
accordance with Section 222 of the General Corporation Law
of the State of Delaware on April 20, 1993, at which meeting
the necessary number of shares as required by statute were
voted in favor of the amendment.
31
THIRD: That said amendment was duly adopted in
accordance with the provisions of Section 242 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said VALMONT INDUSTRIES, INC. has
caused this Certificate to be signed by WILLIAM F. WELSH II,
its President, and attested to by THOMAS P. EGAN, JR., its
Secretary, this 20th day of April, 1993.
ATTEST: VALMONT INDUSTRIES, INC.
THOMAS P. EGAN, JR. WILLIAM F. WELSH II
Secretary President
EXHIBIT A
----------
VALMONT CERTIFICATE OF INCORPORATION
--------------------------------------
ARTICLE XII
------------
CLASSIFIED BOARD OF DIRECTORS
------------------------------
Commencing with the annual election of directors by the
stockholders of the corporation in 1993, the directors of
the corporation shall be divided into three classes: Class
I, Class II and Class III, each such class, as nearly as
possible, to have the same number of directors. The term of
office of the initial Class I directors shall expire at the
annual election of directors by the stockholders of the
corporation in 1994, the term of office of the initial Class
II directors shall expire at the annual election of
directors by the stockholders of the corporation in 1995,
and the term of office of the initial Class III directors
shall expire at the annual election of directors by the
stockholders of the corporation in 1996; and in all cases as
to each director until such director's successor shall be
elected and shall qualify. At each annual election of the
directors by the stockholders of the corporation held after
1993, 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, or thereafter when their
respective successors in each case are elected by the
stockholders and qualify.
32
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE
CERTIFICATE OF AMENDMENT OF "VALMONT INDUSTRIES, INC.", FILED
IN THIS OFFICE ON THE TWENTY-FIFTH DAY OF APRIL, A.D. 1996, AT
1 O'CLOCK P.M. A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN
FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
Edward J. Freel, Secretary of State
AUTHENTICATION: 7922039
DATE: 04-25-96
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
VALMONT INDUSTRIES, INC.
VALMONT INDUSTRIES, INC., a corporation organized and
existing under and by virtue of the General Corporation Law of
the State of Delaware, does hereby certify:
FIRST: That a meeting of the Board of Directors of VALMONT
INDUSTRIES, INC., the Board of Directors unanimously approved a
proposed amendment to the Certificate of Incorporation of said
corporation declaring said amendment to be in the best interests
of stockholders and calling for a meeting of the stockholders of said
corporation for consideration thereof. The proposed amendment
approved by the Board of Directors adds the following new Article
to the Certificate of Incorporation of said corporation.
ARTICLE XIII
ANNUAL AND SPECIAL MEETING OF STOCKHOLDERS
Any action required or permitted to be taken
by the holders of the capital stock of the
corporation must be effected at a duly called
annual or special meeting of such holders and
may not be effected by any consent in writing
by such holders.
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, an annual meeting of the stockholders of said corporation
was duly called and held upon notice in accordance with Section 222 of
the General Corporation Law of the State of Delaware on April 22, 1996,
at which meeting the necessary number of shares as required by statute
were voted in favor of the amendment.
33
THIRD: That said amendment was duly adopted in
accordance with the provisions of Section 242 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said VALMONT INDUSTRIES, INC. has caused this
Certificate to be signed by MOGENS C. BAY, its President, and attested
to by THOMAS P. EGAN, JR., its Secretary, this 22nd day of April, 1996.
VALMONT INDUSTRIES, INC.
By: /S/MOGENS C. BAY
MOGENS C. BAY
President
ATTEST: /S/THOMAS P. EGAN, JR.
THOMAS P. EGAN, JR.
Secretary
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE
CERTIFICATE OF AMENDMENT OF "VALMONT INDUSTRIES, INC.", FILED
IN THIS OFFICE ON THE TWENTY-NINTH DAY OF APRIL, A.D. 1998, AT
10 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO
THE NEW CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
/S/EDWARD J. FREEL
Edward J. Freel, Secretary of State
AUTHENTICATION: |9052676
DATE: 04/29/1998
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
VALMONT INDUSTRIES, INC.
VALMONT INDUSTRIES, INC., a corporation organized and
existing under and by virtue of the General Corporation Law
of the State of Delaware, does hereby certify:
34
FIRST: That at a meeting of the Board of Directors of
VALMONT INDUSTRIES, INC., the Board of Directors unanimously
approved a proposed amendment to the Certificate of
Incorporation of said corporation declaring said amendment
to be in the best interests of stockholders and calling for
a meeting of the stockholders of said corporation for
consideration thereof. The resolution setting forth the
proposed amendment is as follows:
RESOLVED, that it is deemed advisable that the first
paragraph of Article IV of the Corporation's Certificate of
Incorporation be amended to read as follows:
The capital stock of said Corporation shall be Seventy-Five
Million Five Hundred Thousand Dollars ($75,500,000.00)
divided into Seventy-Five Million (75,000,000) shares of
common stock of a par value of One Dollar ($1.00) per share
and Five Hundred Thousand (500,000) shares of series
preferred stock of a par value of One Dollar ($1.00) per
share (hereinafter called the "series preferred stock").
SECOND: That thereafter, pursuant to resolution of its
Board of Directors, an annual meeting of the stockholders of
said Corporation was duly called and held, upon notice in
accordance with Section 222 of the General Corporation Law
of the State of Delaware on April 27, 1998, at which meeting
the necessary number of shares as required by statute were
voted in favor of the amendment.
THIRD: That said amendment was adopted in accordance
with the provisions of Section 242 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said VALMONT INDUSTRIES, INC. has
caused this Certificate to be signed by MOGENS C. BAY,
its President, and attested by THOMAS P. EGAN, JR., its
Secretary, this 27th day of April, 1998.
VALMONT INDUSTRIES, INC.
BY: /S/MOGENS C. BAY
MOGENS C. BAY
President
ATTEST:
/S/THOMAS P. EGAN, JR.
THOMAS P. EGAN, JR.
Secretary
35
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted
from SEC Form 10-Q and is qualified in its entirety by reference
to such financial statements.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-26-1998
<PERIOD-END> MAR-28-1998
<CASH> 12,230
<SECURITIES> 0
<RECEIVABLES> 106,649
<ALLOWANCES> 0
<INVENTORY> 81,245
<CURRENT-ASSETS> 213,308
<PP&E> 144,233
<DEPRECIATION> 0
<TOTAL-ASSETS> 373,791
<CURRENT-LIABILITIES> 118,454
<BONDS> 0
0
0
<COMMON> 27,900
<OTHER-SE> 187,756
<TOTAL-LIABILITY-AND-EQUITY> 214,656
<SALES> 160,587
<TOTAL-REVENUES> 160,587
<CGS> 117,518
<TOTAL-COSTS> 117,518
<OTHER-EXPENSES> 27,405
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,038
<INCOME-PRETAX> 15,245
<INCOME-TAX> 5,600
<INCOME-CONTINUING> 9,645
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 9,645
<EPS-PRIMARY> 0.35
<EPS-DILUTED> 0.34
</TABLE>
