RESTATED ARTICLES OF INCORPORATION
of
ENVIRO-RECOVERY, INC.
ARTICLE ONE
Enviro-Recovery, Inc., pursuant to the provisions of Article 4.07 of
the Texas Business Corporation Act, hereby adopts Restated Articles of
Incorporation which accurately copies the original Articles of Incorporation and
all amendments thereto made on June 1, 1995 and April 14, 1997, that are in
effect as of the date of this Restated Articles of Incorporation and as further
amended by these Restated Articles of Incorporation. These Restated Articles of
Incorporation contain no other change in any provision.
ARTICLE TWO
The Articles of Incorporation of the corporation are amended by the
Restated Articles of Incorporation as follows:
The capitalization of the corporation is hereby amended to increase the
number of authorized shares of capital stock and to provide for a class of
preferred stock as follows:
SECTION FOUR: The total number of shares of capital stock of all
classes which the corporation is authorized to issue is 250,000,000, of which
248,000,000 shares are Common Stock, par value $.0001 and 2,000,000 are
Preferred Stock, par value $.001 per shares.
The relative rights of the Common Stock and the Preferred Stock are as
follows:
A. Common Stock: Except as may be otherwise required by law or by
this Restated Articles of Incorporation, each holder of the Common Stock shall
have one vote in respect of each share of such stock held by him on all matters
to be voted upon by the shareholders.
B. Preferred Stock: The Preferred Stock may be issued from time to time
in one or more series. The Board of Directors of the corporation is hereby
expressly authorized to provide, by resolution or resolutions duly adopted by it
prior to issuance, for the creation of each such series and to fix the
designations and the powers, preferences, rights, qualifications, limitations
and restrictions relating to the shares of each such series. The authority of
the Board of the Directors with respect to each series of Preferred Stock shall
include, but not be limited to, determining the following:
(a) the designation of such series, the number of shares to constitute
such series and the stated value thereof if different from the par
value;
<PAGE>
(b) whether the shares of such series shall have voting rights, in
addition to any voting rights provided by law, and, if so, the terms
of such voting rights, which may be general or limited;
(c) the dividends, if any, payable on such series, whether any such
dividends shall be cumulative, and if so, from what dates, the
conditions and dates upon which such dividends shall be payable, and
the preference or relation which such dividends shall bear to the
dividends payable on any shares of stock of any other class or any
other series of Preferred Stock;
(d) whether the shares of such series shall be subject to redemption
by the corporation, and if so, the times, prices and other conditions
of such redemption;
(e) the amount or amounts payable upon shares of such series upon, and
the rights of the holders of such series in, the voluntary or
involuntary liquidation, dissolution or winding up, or upon any
distribution of the assets of the corporation.
(f) whether the shares of such series shall be subject to the
operation of a retirement or sinking fund and, if so, to the extent to
and manner in which any such retirement or sinking fund shall be
applied to the purchase or redemption of the shares of such series for
retirement or other corporate purposes and the terms and provisions
relating to the operation thereof;
(g) whether the shares of such series shall be convertible into, or
exchangeable for, shares of capital stock of the corporation of any
other class or any other series of Preferred Stock or any other
securities and, if so, the price or prices or the rate or rates of
conversion or exchange and the method, if any, of adjusting the same,
and any other terms and conditions of conversion or exchange;
(h) the limitations and restrictions, if any, to be effective while
any shares of such series are outstanding upon the payment of
dividends or the making of other distributions on, and upon the
purchase, redemption or other acquisition by the corporation of, the
common stock or shares of stock of any other class or any other series
of Preferred Stock.
(i) the conditions or restrictions, if any, upon the creation of
indebtedness of the corporation or upon the issue of any additional
capital stock, including additional shares of such series or of any
other series of preferred stock or of any other class; and
(j) any other powers, preferences and relative, participating,
optional and other special rights, and any qualifications, limitations
and restrictions, thereof.
The powers, preferences and relative, participating optional and other
special rights of each series of Preferred Stock, and the
qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding.
All shares of any one series of Preferred Stock shall be identical in
all respects with all other shares of such series, except that shares
2
<PAGE>
of any one series issued at different times may differ as to the dates
from which dividends thereof shall be cumulative.
The following provision is amended to indicate its application to all
the capital stock of the corporation, unless specifically provided by the Board
of Directors upon issuance of a class or series of Preferred Stock, from the
previous provision which applied only to the Common Stock as follows:
SECTION FIVE: No shares of the capital stock of the corporation, unless
specifically provided by the Board of Directors upon issuance of a class or
series of Preferred Stock, shall carry and no shareholder of the corporation
shall possess or enjoy any preemptive rights to acquire additional, unissued or
treasury shares of capital stock of the corporation.
The following provision is amended to indicate its application to all
the capital stock of the corporation from the previous provision which applied
only to the Common Stock as follows:
SECTION SIX: No shares of the capital stock of the corporation shall
carry and no shareholders of the corporation shall possess or enjoy any
cumulative voting rights in the election of directors of the corporation.
The following provision is added to the Restated Articles of
Incorporation to conform to the Texas Business Corporation Act.
SECTION SEVEN: The corporation will not commence business until it has
received for the issuance of its shares of capital stock consideration of the
value of at least one thousand dollars.
The following provisions are added to the Restated Articles of
Incorporation to provide for indemnification of the officers and directors as
provided under the Texas Business Corporation Act and to eliminate the
requirement of a two-thirds vote on such matters as specified in the Texas
Business Corporation Act.
SECTION EIGHT: The following provisions are for the purpose of
defining, limiting and regulating the powers of the corporation and the
directors and of the shareholders, provided, however, that said provisions shall
not be deemed exclusive of any rights or liabilities otherwise granted or
imposed by the laws of the State of Texas:
(a) The liability of the directors of the corporation is
eliminated to the fullest extent permitted by the provisions of the Texas
Business Corporation Act and by the provisions of the Texas Miscellaneous
Corporation Laws Act, as the same may be amended and supplemented.
(b) The corporation shall, to the fullest extent permitted by
the provisions of Article 2.02-1 of the Texas Business Corporation Act, as the
same may be amended and supplemented, indemnify any and all persons whom it
shall have the power to indemnify under said Article from and against any and
all of the expenses, liabilities, or other matters referred to or covered by
said Article.
(c) With respect to any matter for which the affirmative vote
of the holders of at least a two-thirds portion of the shares entitled to vote
is otherwise required by the Texas Business Corporation Act, the act of the
3
<PAGE>
shareholders on that matter shall be the affirmative vote of the holders of a
majority of the shares entitled to vote on that matter, rather than the
affirmative vote otherwise required by the Texas Business Corporation Act. With
respect to any matter for which the affirmative vote of the holders of at least
two-thirds portion of the shares of any class is otherwise required by the Texas
Business Corporation Act, the act of the holders of shares of that class on that
matter shall be the affirmative vote of the holders of a majority of the shares
of that class, rather than the affirmative vote of the holders of shares of that
class otherwise required by the Texas Business Corporation Act.
The provisions relating to the registered office and agent are amended
to provide for a new registered office and agent as follows:
SECTION NINE: The post-office address of the registered office of the
corporation in the State of Texas is c/o Corporation Service Company d/b/a
CSC-Lawyers Incorporating Service Company, 800 Brazos, Austin, Texas 78701, and
the name of the initial registered agent of the corporation at such address is
Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.
The following provision is to update the names of the current
directors:
SECTION TEN: The minimum number of directors constituting the Board of
Directors of the corporation is one, and the name of and the address of each
person who is to serve as a director until the next annual meeting of the
shareholders or until the successor is elected and qualified are:
Name Address
Steven Schock c/o 2200 East Lake Shore Drive
Ashland, Wisconsin
David Neitzke c/o 2200 East Lake Shore Drive
Ashland, Wisconsin
William Heide c/o 2200 East Lake Shore Drive
Ashland, Wisconsin
Jeffrey Noeldner c/o 2200 East Lake Shore Drive
Ashland, Wisconsin
Mark Christopher c/o 2200 East Lake Shore Drive
Ashland, Wisconsin
Jeff Wierichs c/o 2200 East Lake Shore Drive
Ashland, Wisconsin
The following provision is added to the Restated Articles of
Incorporation to comply with the Texas Business Corporation Act:
SECTION ELEVEN: From time to time any of the provision of these
Restated Articles of Incorporation may be amended, altered, or repealed, and
other provisions authorized by the laws of the State of Texas at the time in
force may be added or inserted in the manner and at the time prescribed by said
4
<PAGE>
laws, and all contracts and rights at any time conferred upon the shareholders
of the corporation by these Restated Articles of Incorporation are granted
subject to the provisions of this Article.
ARTICLE THREE
Each amendment made by the Restated Articles of Incorporation has been
effected in conformity with the provisions of the Texas Business Corporation Act
and such Restated Articles of Incorporation and each amendment made by the
Restated Articles of Incorporation were duly adopted by the shareholders of the
corporation on the 20th day of March, 1999.
ARTICLE FOUR
In connection with the Annual Meeting of Shareholders held March 20,
1999, the number of shares outstanding on the record date was 47,251,174 and the
number of shares entitled to vote on amendments to the Restated Articles of
Incorporation was 35,599,801. For the changes set forth above under Section Four
of Article Two of these Restated Articles of Incorporation the number of shares
voted for the amendment was 35,351,385; and for the changes set forth above
under Sections Five, Six, Seven, Eight, Nine, Ten and Eleven of Article Two of
these Restated Articles of Incorporation the number of shares voted for the
amendments was 35,223,771. Each of the amendments to the Restated Articles of
Incorporation was approved by greater than two- thirds of the shares outstanding
on the record date of the Annual Meeting.
ARTICLE FIVE
The Articles of Incorporation and all amendments and supplements
thereto are hereby superseded by the following Restated Articles of
Incorporation which accurately copy the entire text thereof as set forth above:
SECTION ONE: The name of the corporation is ENVIRO-RECOVERY, INC.
SECTION TWO: The period of duration of the corporation is perpetual.
SECTION THREE: The purpose for which the corporation is organized is
the transaction of any and all lawful business for which corporations may be
incorporated under the Texas Business Corporation Act.
SECTION FOUR: The total number of shares of capital stock of all
classes which the corporation is authorized to issue is 250,000,000, of which
248,000,000 shares are Common Stock, par value $.0001 and 2,000,000 are
Preferred Stock, par value $.001 per shares.
The relative rights of the Common Stock and the Preferred Stock are as
follows:
A. Common Stock: Except as may be otherwise required by law or
by this Restated Articles of Incorporation, each holder of the Common Stock
shall have one vote in respect of each share of such stock held by him on all
matters to be voted upon by the shareholders.
B. Preferred Stock: The Preferred Stock may be issued from time to time
in one or more series. The Board of Directors of the corporation is hereby
expressly authorized to provide, by resolution or resolutions duly adopted by it
11969.1
5
<PAGE>
prior to issuance, for the creation of each such series and to fix the
designations and the powers, preferences, rights, qualifications, limitations
and restrictions relating to the shares of each such series. The authority of
the Board of the Directors with respect to each series of Preferred Stock shall
include, but not be limited to, determining the following:
(a) the designation of such series, the number of shares to constitute
such series and the stated value thereof if different from the par
value;
(b) whether the shares of such series shall have voting rights, in
addition to any voting rights provided by law, and, if so, the terms
of such voting rights, which may be general or limited;
(c) the dividends, if any, payable on such series, whether any such
dividends shall be cumulative, and if so, from what dates, the
conditions and dates upon which such dividends shall be payable, and
the preference or relation which such dividends shall bear to the
dividends payable on any shares of stock of any other class or any
other series of Preferred Stock;
(d) whether the shares of such series shall be subject to redemption
by the corporation, and if so, the times, prices and other conditions
of such redemption;
(e) the amount or amounts payable upon shares of such series upon, and
the rights of the holders of such series in, the voluntary or
involuntary liquidation, dissolution or winding up, or upon any
distribution of the assets of the corporation.
(f) whether the shares of such series shall be subject to the
operation of a retirement or sinking fund and, if so, to the extent to
and manner in which any such retirement or sinking fund shall be
applied to the purchase or redemption of the shares of such series for
retirement or other corporate purposes and the terms and provisions
relating to the operation thereof;
(g) whether the shares of such series shall be convertible into, or
exchangeable for, shares of capital stock of the corporation of any
other class or any other series of Preferred Stock or any other
securities and, if so, the price or prices or the rate or rates of
conversion or exchange and the method, if any, of adjusting the same,
and any other terms and conditions of conversion or exchange;
(h) the limitations and restrictions, if any, to be effective while
any shares of such series are outstanding upon the payment of
dividends or the making of other distributions on, and upon the
purchase, redemption or other acquisition by the corporation of, the
common stock or shares of stock of any other class or any other series
of Preferred Stock.
(i) the conditions or restrictions, if any, upon the creation of
indebtedness of the corporation or upon the issue of any additional
capital stock, including additional shares of such series or of any
other series of preferred stock or of any other class; and
6
<PAGE>
(j) any other powers, preferences and relative, participating,
optional and other special rights, and any qualifications, limitations
and restrictions, thereof.
The powers, preferences and relative, participating optional and other
special rights of each series of Preferred Stock, and the
qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding.
All shares of any one series of Preferred Stock shall be identical in
all respects with all other shares of such series, except that shares
of any one series issued at different times may differ as to the dates
from which dividends thereof shall be cumulative.
SECTION FIVE: No shares of the capital stock of the corporation shall
carry and no shareholder of the corporation shall possess or enjoy any
preemptive rights to acquire additional, unissued or treasury shares of capital
stock of the corporation.
SECTION SIX: No shares of the capital stock of the corporation shall
carry and no shareholders of the corporation shall possess or enjoy any
cumulative voting rights in the election of directors of the corporation.
SECTION SEVEN: The corporation will not commence business until it has
received for the issuance of its shares of capital stock consideration of the
value of at least one thousand dollars.
SECTION EIGHT: The following provisions are for the purpose of
defining, limiting and regulating the powers of the corporation and the
directors and of the shareholders, provided, however, that said provisions shall
not be deemed exclusive of any rights or liabilities otherwise granted or
imposed by the laws of the State of Texas:
(a) The liability of the directors of the corporation is eliminated to
the fullest extent permitted by the provisions of the Texas Business Corporation
Act and by the provisions of the Texas Miscellaneous Corporation Laws Act, as
the same may be amended and supplemented.
(b) The corporation shall, to the fullest extent permitted by the
provisions of Article 2.02- 1 of the Texas Business Corporation Act, as the same
may be amended and supplemented, indemnify any and all persons whom it shall
have the power to indemnify under said Article from and against any and all of
the expenses, liabilities, or other matters referred to or covered by said
Article.
(c) With respect to any matter for which the affirmative vote of the
holders of at least a two-thirds portion of the shares entitled to vote is
otherwise required by the Texas Business Corporation Act, the act of the
shareholders on that matter shall be the affirmative vote of the holders of a
majority of the shares entitled to vote on that matter, rather than the
affirmative vote otherwise required by the Texas Business Corporation Act. With
respect to any matter for which the affirmative vote of the holders of at least
two-thirds portion of the shares of any class is otherwise required by the Texas
Business Corporation Act, the act of the holders of shares of that class on that
matter shall be the affirmative vote of the holders of a majority of the shares
of that class, rather than the affirmative vote of the holders of shares of that
class otherwise required by the Texas Business Corporation Act.
7
<PAGE>
SECTION NINE: The post-office address of the registered office of the
corporation in the State of Texas is c/o Corporation Service Company d/b/a
CSC-Lawyers Incorporating Service Company, 800 Brazos, Austin, Texas 78701, and
the name of the initial registered agent of the corporation at such address is
Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company.
SECTION TEN: The minimum number of directors constituting the Board of
Directors of the corporation is one, and the name of and the address of each
person who is to serve as a director until the next annual meeting of the
shareholders or until the successor is elected and qualified are:
Name Address
Steven Schock c/o 2200 East Lake Shore Drive
Ashland, Wisconsin
David Neitzke c/o 2200 East Lake Shore Drive
Ashland, Wisconsin
William Heide c/o 2200 East Lake Shore Drive
Ashland, Wisconsin
Jeffrey Noeldner c/o 2200 East Lake Shore Drive
Ashland, Wisconsin
Mark Christopher c/o 2200 East Lake Shore Drive
Ashland, Wisconsin
Jeff Wierichs c/o 2200 East Lake Shore Drive
Ashland, Wisconsin
SECTION ELEVEN: From time to time any of the provision of these
Restated Articles of Incorporation may be amended, altered, or repealed, and
other provisions authorized by the laws of the State of Texas at the time in
force may be added or inserted in the manner and at the time prescribed by said
laws, and all contracts and rights at any time conferred upon the shareholders
of the corporation by these Restated Articles of Incorporation are granted
subject to the provisions of this Article.
March 24, 1999 ENVIRO-RECOVERY, INC
By: /s/ Steven Schock
-----------------------
Steven Schock, President
8
