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FORM OF RESTATED CERTIFICATE OF INCORPORATION
OF
KIEWIT MATERIALS COMPANY
Pursuant to Section 245
of the Delaware General Corporation Law
Kiewit Materials Company, a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), hereby certifies as follows:
1. The name of the Corporation is Kiewit Materials Company.
2. The original Certificate of Incorporation of the Corporation was
filed in the office of the Secretary of State of the State of Delaware on
February 2, 1999.
3. This Restated Certificate of Incorporation, which was duly
adopted pursuant to Sections 242 and 245 of the Delaware General
Corporation Law, restates and integrates and further amends the provisions
of the Restated Certificate of Incorporation of the Corporation.
4. The text of the Certificate of Incorporation as heretofore
amended or supplemented is hereby restated and further amended to read in
its entirety as follows:
ARTICLE I
NAME
The name of the Corporation (the "Corporation") is Kiewit Materials
Company.
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
The address of the registered office of the Corporation in the State of
Delaware is 1209 Orange Street in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is The Corporation Trust
Company.
ARTICLE III
PURPOSES
The nature of the business or purposes to be conducted or promoted by the
Corporation is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of the State of Delaware (the
"DGCL").
ARTICLE IV
AUTHORIZED CAPITAL STOCK
The total number of shares of capital stock which the Corporation shall
have the authority to issue is 110,000,000 shares, consisting of 100,000,000
shares of Common Stock, par value
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$.01 per share (the "Common Stock") and 10,000,000 shares of Preferred Stock,
par value $.01 per share (the "Preferred Stock").
ARTICLE V
COMMON STOCK
A. Dividends.
After dividends payable on any Preferred Stock have been declared and set
aside on such Preferred Stock having a preference over the Common Stock with
respect to the payment of such dividends, the holders of Common Stock shall be
entitled to receive, when and as declared, out of assets and funds legally
available therefor, cash or non-cash dividends payable as and when the Board of
Directors in its sole business judgment so declares. Any such dividend shall be
payable ratably to all record holders of Common Stock as of the record date
fixed by the Board of Directors in accordance with the By-laws of the
Corporation for the payment thereof.
B. Liquidation Rights.
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation ("Liquidation"), the holders of Common Stock, then
outstanding shall be entitled to be paid ratably out of the assets and funds of
the Corporation available for distribution to its stockholders, after and
subject to the payment in full of all amounts required to be distributed to the
holders of any Preferred Stock upon Liquidation, an amount equal to their share
(including any declared but unpaid dividends on the Common Stock, subject to
proportionate adjustment in the event of any stock dividend, stock split, stock
distribution or combination with respect to such shares) of such assets and
funds.
C. Voting.
1. Except as required by law, or as otherwise provided herein or in any
amendment hereof, the entire voting power of the Corporation with respect to all
matters shall be vested in the holders of Common Stock.
2. Each holder of Common Stock entitled to vote shall at every meeting
of the stockholders of the Corporation be entitled to one vote for each share of
Common Stock registered in his or her name on the record of stockholders.
ARTICLE VI
PREFERRED STOCK
The Preferred Stock may be issued from time to time as herein provided in
one or more series. The designations, relative rights, preferences and
limitations of the Preferred Stock, and particularly of the shares of each
series thereof, may, to the extent permitted by law, be similar to or differ
from those of any other series. The Board of Directors is hereby expressly
granted authority, subject to the provisions of this Article VI, to fix, from
time to time before issuance thereof, the number of shares in each series and
all designations, relative rights,
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preferences and limitations of the shares in each such series, including, but
without limiting the generality of the foregoing, the following:
A. the designation of the series and the number of shares to
constitute each series;
B. the dividend rate on the shares of each series, conditions
on which and times at which dividends are payable, whether dividends
shall be cumulative, and the preference or relation (if any) with
respect to such dividends (including preferences over dividends on the
Common Stock or any other class or classes);
C. whether the series will be redeemable (at the option of the
Corporation or the holders of such shares or both, or upon the
happening of a specified event) and, if so, the redemption prices and
the conditions and times upon which redemption may take place and
whether for cash, property or rights, including securities of the
Corporation or another corporation;
D. the terms and amount of any sinking, retirement or purchase
fund;
E. the conversion or exchange rights (at the option of the
Corporation or the holders of such shares or both, or upon the
happening of a specified event), if any, including the conversion or
exchange price and other terms of conversion or exchange;
F. the voting rights, if any (other than any voting rights
that the Preferred Stock may have as a matter of law);
G. any restrictions on the issue or reissue or sale of
additional Preferred Stock;
H. the rights of the holders upon voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation (including preferences over the Common Stock or any other
class or classes or series of stock); and
I. such other special rights and privileges, if any, for the
benefit of the holders of Preferred Stock, as shall not be inconsistent
with provisions of this Restated Certificate of Incorporation.
All shares of Preferred Stock of the same series shall be identical in all
respects, except that shares of any one series issued at different times may
differ as to dates, if any, from which dividends thereon may accumulate. All
shares of Preferred Stock of all series shall be of equal rank and shall be
identical in all respects except that any series may differ from any other
series with respect to any one or more of the designations, relative rights,
preferences and limitations described or referred to in subparagraphs A. to I.
inclusive above.
ARTICLE VII
DIRECTORS
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A. The Board of Directors shall consist of no fewer than five persons
and no more than fifteen persons, and such number shall be fixed by, or in the
manner provided in, the By-laws of the Corporation.
B. Upon the filing of this Restated Certificate of Incorporation with
the Secretary of State of Delaware (the "Effective Time"), the Board of
Directors shall be divided into three classes to be designated as Class I, Class
II and Class III. The Board of Directors, by resolution, shall designate the
class in which each of the directors then in office shall serve upon such
classification. The terms of office of the classes of directors so designated by
the Board of Directors shall expire at the times of the annual meetings of the
stockholders as follows: Class I on the first annual meeting of stockholders
following the Effective Time, Class II on the second annual meeting following
the Effective Time and Class III on the third annual meeting following the
Effective Time, or thereafter in each case when their respective successors are
elected and qualified. At each subsequent annual election, the directors chosen
to succeed those whose terms are expiring shall be identified as being of the
same class as the directors whom they succeed, and shall be elected for a term
expiring at the time of the third succeeding annual meeting of stockholders, or
thereafter in each case when their respective successors are elected and
qualified. The number of directorships shall be apportioned among the classes so
as to maintain the classes as nearly equal in number as possible.
C. A director may be removed from office only for cause and only by
vote of the holders of at least eighty percent (80%) of the outstanding stock
entitled to vote in an election of directors.
D. Any vacancy on the Board of Directors, however resulting, may be
filled only by a majority of the directors then in office, even if less than a
quorum, or by a sole remaining director. Any director elected to fill a vacancy
shall hold office for a term that shall coincide with the term of the class to
which such director shall have been elected.
ARTICLE VIII
TRANSFER RESTRICTIONS AND
DUTY OF THE CORPORATION TO REPURCHASE COMMON STOCK
The following restrictions on the transfer of the Common Stock are hereby
imposed:
A. Transfer Restrictions on the Common Stock.
1. Transfer Restrictions. The holders of Common Stock shall not sell,
assign, pledge, hypothecate or otherwise dispose of or encumber ("Transfer")
such stock other than in accordance with the terms of this Article VIII. Any
Transfer or purported Transfer of shares of Common Stock in violation of this
Article VIII shall be null and void and of no effect.
2. Death. Upon the death of any holder of Common Stock, the Common
Stock previously held by such stockholder shall be Transferred to such
stockholder's heirs, executor or legal representative. The Common Stock so
Transferred shall remain subject to the Transfer restrictions provided for in
this Article VIII.
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3. Pledges. Notwithstanding anything contained in this Article VIII to
the contrary, a holder of Common Stock may pledge Common Stock for loans in
connection with the ownership of Common Stock.
4. Distribution by Peter Kiewit Sons', Inc. Notwithstanding anything
contained in this Section A to the contrary, Peter Kiewit Sons', Inc. may
Transfer any shares of Common Stock it holds to any Person without complying
with the provisions of this Article VIII.
5. Initial Public Offering. In the event that the Corporation decides
to conduct an initial public offering of the Common Stock, each holder of Common
Stock who, immediately prior to the completion of such offering, owns one
percent (1%) or more of the Common Stock then outstanding and the officers and
directors of the Corporation shall not Transfer any shares of Common Stock they
hold for a period, to be determined by the Board of Directors, of up to one
hundred and eighty days following completion of such offering; provided,
however, such persons may, during such period, Transfer shares of Common Stock
pursuant to paragraphs 2 and 3 of this Section A.
6. Termination. The Board of Directors may terminate any or all of the
restrictions on Transfer of the Common Stock contained in this Article VIII at
any time or from time to time. In the event that the Board of Directors so
terminates any such Transfer restriction, the Corporation shall provide the
holders of Common Stock with written notice of such termination within 10 days
following such termination.
B. Transfers to Certain Authorized Transferees.
With the prior approval of the Board of Directors, a holder of Common
Stock may transfer such stock to (i) fiduciaries for the benefit of such holder
and/or such holder's spouse and/or children, (ii) corporations one hundred
percent (100%) owned by such holder or by such holder and such holder's spouse
and/or children, (iii) fiduciaries for the benefit of such corporations, and
(iv) charities and fiduciaries for charities designated by such holder of Common
Stock. Any stock so transferred shall remain subject to the Transfer
restrictions in this Article VIII.
C. Sales to the Corporation.
Subject to the limitations set forth below in this Article VIII, holders
of Common Stock may at any time on or prior to the fifteenth day of any calendar
month offer to sell part or all of their shares of Common Stock to the
Corporation by delivering the certificate or certificates for such stock with a
written notice offering such stock to the Corporation. Any such offer shall be
accepted by the Corporation, and payment shall be made for such stock within 10
days after receipt of such certificates and such written notice by the
Corporation, without interest, unless after giving effect to such sale there
remain outstanding fewer than 1,000 shares of stock of the Corporation having
full voting power.
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D. Termination of Repurchase Duties.
If the Board of Directors determines that the Common Stock is publicly
traded, the Board of Directors may terminate the Corporation's duty to
repurchase shares of Common Stock in accordance with this Article VIII. In the
event that the Board of Directors so terminates such repurchase obligations, the
Corporation shall provide the holders of Common Stock with written notice of
such termination within 10 days following such termination.
E. Suspension of Repurchase Duties.
If the Board of Directors determines that the Formula Value (as defined
herein) at the end of the fiscal year during which such determination is made is
likely to be less than (i) the Formula Value at the end of the prior fiscal year
less (ii) the aggregate amount of dividends declared on the Common Stock since
the end of the prior fiscal year, the Board of Directors may suspend the
Corporation's duty to repurchase shares of Common Stock in accordance with this
Article VIII. Any such suspension shall not extend for a period longer than 365
days from the date of the Board of Directors' declaration of suspension. During
any such suspension period, the Corporation shall not repurchase any shares of
Common Stock tendered for repurchase pursuant to paragraph C of this Article
VIII.
F. Limitations on Cash Repurchase Duties.
1. For purposes of this paragraph F, the "5% Threshold" means a number
of shares of Common Stock equal to 5% of the aggregate number of such shares
outstanding as of the end of the fiscal year ending immediately prior to the
date of determination.
2. If, after taking into account the number of shares of Common Stock
tendered for repurchase by the Corporation during the first 15 days of any
calendar month (the "Tendered Shares"), the aggregate number of shares of such
stock that have been tendered for repurchase during the fiscal year during which
such month falls equals or exceeds the 5% Threshold, the Board of Directors may
declare that cash payments for the repurchase of Common Stock are not in the
best interests of the Corporation. The Board of Directors shall make any such
declaration prior to the expiration of the 10-day period during which the
Corporation must accept offers by holders of Common Stock to sell such stock,
pursuant to Section C of this Article VIII, and shall promptly provide to the
holders of Tendered Shares with respect to such calendar month a written notice
specifying:
a) the number of the Tendered Shares that will be purchased
for cash (which may, in the discretion of the Board of Directors, be a
number calculated to limit the aggregate number of shares purchased for
cash during the relevant fiscal year to the 5% Threshold or a greater
percentage); and
b) the terms (including interest rate and prepayment rights,
if any) of promissory notes maturing on a date to be determined by the
Board of Directors, but not later than five years after the date upon
which the holder of such promissory note tendered the Tendered Shares,
which will be issued by the Corporation in payment for
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any Tendered Shares that are not purchased for cash (the "Limited
Tendered Shares") and the tender of which is not withdrawn pursuant to
subparagraph 3, below.
3. Upon receipt of the notice required by subparagraph 2, each holder
of Tendered Shares may elect to withdraw such holder's tender of all or any
portion of the Limited Tendered Shares. Written notice of any such election
shall be provided to the Corporation not later than 10 days after the date upon
which the notice provided by the Corporation is given pursuant to subparagraph
2, above.
4. After the date of any declaration by the Board of Directors pursuant
to subparagraph 2, the Corporation shall continue to be obligated to purchase
shares of Common Stock subsequently tendered for repurchase during the relevant
fiscal year, but payment for any such shares shall be made in the form of a
promissory note maturing on a date to be determined by the Board of Directors,
but not later than five years after the date upon which such shares are
tendered. The terms of any such notes shall be determined by the Board of
Directors at the time at which any of the Common Stock is tendered; provided,
however, that the Corporation shall provide written notice to any tendering
stockholder of the terms of such note not later than 10 days after the date of
tender, and such stockholder shall be entitled to withdraw the tender of any or
all of such shares by providing written notice of such withdrawal to the
Corporation not later than 10 days after the date upon which the notice of such
terms from the Corporation is given.
G. Common Stock Per Share Price.
Subject to the limitations set forth in this Article VIII, the Corporation
shall purchase any share of Common Stock pursuant to this Article VIII for a
price equal to the Common Stock Per Share Price (as defined herein).
H. Payments Where Common Stock Per Share Price Not Yet Computed.
If, with respect to any sale of Common Stock pursuant to Section C of this
Article VIII, the Common Stock Per Share Price has not been computed within the
time period prescribed for payment for such Common Stock because the preparation
of the audited consolidated financial statements of the Corporation and its
consolidated subsidiaries have not yet been completed, the Corporation shall,
within the time period prescribed for payment for such Common Stock, make an
initial payment to the holder of such Common Stock in an amount equal to the
price that would have been paid if such sale had been made in the preceding
fiscal year. The balance, if any, shall be paid by the Corporation to the holder
of such Common Stock within 10 days after the date on which the Common Stock Per
Share Price has been computed. In the event that the Common Stock Per Share
Price is less than the per share price paid by the Corporation in the "initial
payment" provided for in this Section (H), the Corporation shall be entitled to
recover from such holder an amount equal to the product of (1) the number of
shares of Common Stock sold, and (2) the excess of such price per share paid in
the initial payment and the Common Stock Per Share Price. Such excess shall be
paid by the person or entity to whom the Corporation made the "initial payment"
within ten (10) days of the date of a written notice from the Corporation to pay
such amount, without interest.
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I. Definitions for purposes of Article VIII.
1. "Common Stock Per Share Price" with respect to any share of Common
Stock, means the amount determined by dividing:
a) the sum of (i) the Formula Value plus (ii) the face amount
of any outstanding Convertible Debentures, determined as of the fiscal
year end immediately preceding the date of determination (the "prior
year end"); by
b) the sum of (i) the total number of issued and outstanding
shares of Common Stock, plus (ii) the total number of shares reserved
for the conversion of outstanding Convertible Debentures convertible
into Common Stock, in each case, except as specified below, determined
as of the prior year end; and
c) deducting from the quotient (rounded down to the nearest
$0.01) the amount of any dividends per share declared on Common Stock
subsequent to the prior year end and prior to the date of
determination.
Notwithstanding the foregoing, the number of issued and outstanding
shares of Common Stock utilized for purposes of determining the Common Stock
Per Share Price during fiscal year 2000 shall take into effect any shares of
Common Stock issued to Peter Kiewit Sons', Inc., during fiscal year 2000.
2. "Convertible Debenture" means any debenture or other instrument
evidencing indebtedness of the Corporation convertible at any time into shares
of Common Stock.
3. "Formula Value" means:
(a) the total stockholders' equity as shown on the consolidated
balance sheet contained in the consolidated financial statements of the
Corporation and consolidated subsidiaries, prepared in conformity with
generally accepted accounting principles applied on a consistent basis for
the Corporation and its consolidated subsidiaries as of the prior year end
and audited and certified by an independent firm of certified public
accountants selected and engaged by the Board of Directors; minus
(b) the sum of (x) such total stockholders' equity attributable to
any issued and outstanding Preferred Stock, plus (y) the amount of any
accrued, accumulated and undeclared dividends on such Preferred Stock, all
as of the date of determination.
Notwithstanding the foregoing, the Formula Value determined on any date in
fiscal year 2000 shall be increased by the amount, determined in accordance with
generally accepted accounting principles, of any capital contributions made to
the Corporation by Peter Kiewit Sons', Inc. during fiscal year 2000 prior to
such date, other than any capital contributions made in connection with the
issuance of any Convertible Debentures in exchange for convertible debentures
of Peter Kiewit Sons', Inc.
ARTICLE IX
STOCKHOLDERS' VOTE
Any action required or permitted to be taken at any annual or special
meeting of stockholders may be taken only upon the vote of the stockholders at
an annual or special meeting duly noticed and called, as provided in the By-laws
of the Corporation, and may not be taken by a written consent of the
stockholders.
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ARTICLE X
INDEMNIFICATION
The Corporation shall indemnify each person who is or was a director,
officer or employee of the Corporation (including the heirs, executors,
administrators or estate of such person) or is or was serving at the request of
the Corporation as a director, officer or employee of another corporation,
partnership, joint venture, trust or other enterprise, to the fullest extent
permitted under applicable law.
The indemnification provided by this Article X shall not be deemed
exclusive of any other rights to which any of those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer or employee and shall inure to the benefit of the heirs, executors and
administrators of such a person.
ARTICLE XI
LIMITATION OF LIABILITY
A director of this Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (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 of which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit. If the
DGCL is amended after approval by the stockholders of this Article XI to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the DGCL as so
amended.
Any repeal or modification of the foregoing paragraph by the stockholders
of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modification.
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ARTICLE XII
SPECIAL MEETINGS
Special meetings of the stockholders of the Corporation for any purpose or
purposes may be called at any time by the Board of Directors, the President or
the Chairman of the Board of Directors. Special meetings of the stockholders of
the Corporation may not be called by any other person or persons.
ARTICLE XIII
RATIFICATION BY STOCKHOLDERS
Any contract, transaction or act of the Corporation or of the directors,
which shall be ratified by a majority of a quorum of the stockholders then
entitled to vote at any annual meeting or at any special meeting called for such
purpose, shall, so far as permitted by law and by this Restated Certificate of
Incorporation, be as valid and as binding as though ratified by every
stockholder entitled to vote at such meeting.
ARTICLE XIV
AMENDMENTS OF CERTIFICATE
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Restated Certificate of Incorporation or in any
amendment hereto by the affirmative vote of a majority of the outstanding stock
entitled to vote thereon; provided, however, that; (A) Articles VIII, IX and XII
of the Restated Certificate of Incorporation and any amendments to such Articles
shall not be amended except by the affirmative vote of at least sixty-six and
two-thirds percent (66 2/3%) of the outstanding stock entitled to vote thereon;
(B) Article VII of this Restated Certificate of Incorporation shall not be
amended except by the affirmative vote of at least eighty percent (80%) of the
outstanding stock entitled to vote thereon; (C) clause (B) of this Article XIV
shall not be amended except by the affirmative vote of at least eighty percent
(80%) of the outstanding stock entitled to vote thereon; and (D) all other
provisions of this Article XIV shall not be amended except by the affirmative
vote of at least sixty-six and two-thirds percent (66-2/3%) of the outstanding
stock entitled to vote thereon.
ARTICLE XV
BY-LAWS
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to adopt, repeal, alter, amend or
rescind the By-laws of the Corporation. In addition, the By-laws of the
Corporation may be adopted, repealed, altered, amended or rescinded by the
affirmative vote of at least sixty-six and two-thirds percent (66-2/3%) of the
outstanding stock entitled to vote thereon; provided, however that Sections 3.2,
3.3, 3.4 and 3.5 of such By-Laws may only be repealed, altered, amended or
rescinded by the affirmative vote of eighty percent (80%) of the outstanding
stock entitled to vote thereon.
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IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate
of Incorporation to be signed by ___________________, its ___________________,
this ____ day of ______, 2000.
By:__________________________________
Name:
Title:
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