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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
FLUOR CORPORATION
FIRST: The name of the Corporation is:
FLUOR CORPORATION
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 9 East Lockerman Street in the City of Dover, County of
Kent, 19901 and the name of its registered agent at that address is The National
Registered Agents, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The Corporation shall be authorized to issue two classes of shares
of stock to be designated, respectively, Preferred Stock and Common Stock; the
total number of shares which the Corporation shall have authority to issue is
170,000,000; the total number of shares of Preferred Stock shall be 20,000,000
and each such share shall have a par value of $.01; the total number of shares
of Common Stock shall be 150,000,000 and each such share shall have a par value
of $.01. Shares of Preferred Stock may be issued from time to time in one or
more series. The Board of Directors is hereby authorized to fix the voting
powers, designations, powers, preferences and the relative, participating,
optional or other rights, if any, and the qualifications, limitations or
restrictions thereof, of any wholly unissued series of Preferred Stock; and to
fix the number of shares constituting such series, and to increase or decrease
the number of shares of any such series (but not below the number of shares
thereof then outstanding).
FIFTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, repeal, alter,
amend and rescind the Bylaws of the Corporation.
SIXTH: In addition to any other vote required by law, the affirmative vote
of the holders of not less than 80% of the total voting power of all outstanding
shares of voting stock of the Corporation shall be required for the stockholders
to amend, alter, repeal or rescind the Bylaws of the Corporation.
SEVENTH: (1) The business and affairs of the Corporation shall be managed
by, or under the direction of, the Board of Directors of the Corporation (the
"Board"). Except as otherwise provided for or fixed pursuant to the provisions
of Article FOURTH of this Certificate of Incorporation relating to the rights of
the holders of any series of Preferred Stock to elect
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additional directors, the total number of directors constituting the entire
Board shall be fixed from time to time by resolution of the Board.
(2) The Board (other than those directors elected by the holders of any
series of Preferred Stock provided for or fixed pursuant to the provisions of
Article FOURTH hereof (the "Preferred Stock Directors")) shall be divided into
three classes, as nearly equal in number as possible, designated Class I, Class
II and Class III. Class I directors shall initially serve until the 2001 annual
meeting of stockholders; Class II directors shall initially serve until the 2002
annual meeting of stockholders; and Class III directors shall initially serve
until the 2003 annual meeting of stockholders. Commencing with the annual
meeting of stockholders in 2001, directors of each class the term of which shall
then expire shall be elected to hold office for a three-year term and until the
election and qualification of their respective successors in office. In case of
any increase or decrease, from time to time, in the number of directors (other
than Preferred Stock Directors), the number of directors in each class shall be
apportioned as nearly equal as possible.
(3) Subject to the rights of the holders of any one or more series of
Preferred Stock then outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the Board
resulting from death, resignation, retirement, disqualification, removal from
office or other cause shall be filled solely by the affirmative vote of a
majority of the remaining directors then in office, even though less than a
quorum of the Board. Any director so chosen shall hold office until the next
election of the class for which such director shall have been chosen and until
such director's successor shall be elected and qualified. No decrease in the
number of directors shall shorten the term of any incumbent director.
(4) During any period when the holders of any series of Preferred Stock
have the right to elect additional directors as provided for or fixed pursuant
to the provisions of Article FOURTH hereof, then upon commencement and for the
duration of the period during which such right continues: (i) the then
otherwise total authorized number of directors of the Corporation shall
automatically be increased by such specified number of directors, and the
holders of such series of Preferred Stock shall be entitled to elect the
additional directors so provided for or fixed pursuant to said provisions, and
(ii) each such additional director shall serve until such director's successor
shall have been duly elected and qualified, or until such director's right to
hold such office terminates or expires pursuant to said provisions, whichever
occurs earlier, subject to his earlier death, disqualification, resignation or
removal. Except as otherwise provided by the Board in the resolution or
resolutions establishing such series, whenever the holders of any series of
Preferred Stock having such right to elect additional directors are divested of
such right pursuant to the provisions of such Preferred Stock, the terms of
office of all such additional directors elected by the holders of such stock, or
elected to fill any vacancies resulting from the death, resignation,
disqualification or removal of such additional directors, shall forthwith
terminate and the total and authorized number of directors of the Corporation
shall be reduced accordingly.
EIGHTH: During any period when the holders of any Preferred Stock or any
one or more series thereof shall be entitled to elect a specified number of
directors, by reason of
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dividend arrearages or other provisions giving them the right to do so, then and
during such time as such right continues (1) the holders of such Preferred Stock
or such series thereof, voting as a class, shall be entitled to elect such
specified number of directors, pursuant to the provisions of such Preferred
Stock or series thereof; (2) each such director shall serve for such term, and
have such voting powers, as shall be stated in the provisions pertaining to such
Preferred Stock or series thereof; and (3) whenever the holders of any such
Preferred Stock or series thereof are divested of such rights to elect a
specified number of directors, voting as a class, pursuant to the provisions of
such Preferred Stock or series thereof, the terms of office of all persons who
are then directors of the Corporation elected by such Preferred Stock shall
terminate upon the election of their successors by the holders of the shares
entitled to vote thereon.
NINTH: Elections of directors at an annual or special meeting of
stockholders need not be by written ballot unless the Bylaws of the Corporation
shall so provide.
TENTH: Except as otherwise provided for or fixed pursuant to the
provisions of Article FOURTH of this Certificate of Incorporation relating to
the rights of holders of any series of Preferred Stock, no action that is
required or permitted to be taken by the stockholders of the Corporation at any
annual or special meeting of stockholders may be effected by written consent of
stockholders in lieu of a meeting of stockholders.
ELEVENTH: Special meetings of the stockholders of the Corporation for any
purpose or purposes may be called at any time by the Board or by a committee of
the Board which has been duly created by the Board and whose powers and
authority, as provided in a resolution of the Board or in the Bylaws of the
Corporation, include the power to call such meetings, but such special meetings
may not be called by any other person or persons; provided, however, that if
and to the extent that any special meeting of stockholders may be called by any
other person or persons specified in any provisions of the Certificate of
Incorporation or any amendment thereto or any certificate filed under Section
151(g) of the General Corporation Law of the State of Delaware (or its successor
statute as in effect from time to time hereafter), then such special meeting may
also be called by the person or persons, in the manner, at the times and for the
purposes so specified.
TWELFTH: In addition to any other vote required by law, the affirmative
vote of the holders of not less than 80% of the total voting power of all
outstanding shares of voting stock of the Corporation shall be required for the
approval of any proposal that (1) the Corporation merge or consolidate with any
other entity or any affiliate of such other entity if such other entity and its
affiliates singly or in the aggregate are directly or indirectly the beneficial
owners of more than 15% of the total voting power of all outstanding shares of
voting stock of the Corporation (such other entity and any affiliate thereof
being herein referred to as a "Related Corporation"), or that (2) the
Corporation sell or exchange all or substantially all of its assets or business
to or with such Related Corporation, or that (3) the Corporation issue or
deliver any stock or other securities of its issue in exchange or payment for
any properties or assets of such Related Corporation or securities issued by
such Related Corporation, or in a merger of any affiliate of the Corporation
with or into such Related Corporation or any of its affiliates, and to effect
such transaction the approval of stockholders of the Corporation is required by
law or by any agreement between the Corporation and any national securities
exchange; provided, however,
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that the foregoing shall not apply to any such merger, consolidation, sale or
exchange, or issuance or delivery of stock or other securities which was
approved by resolution of the Board prior to the acquisition of the beneficial
ownership or more than 15% of the total voting power of all outstanding shares
of voting stock of the Corporation by such Related Corporation and its
affiliates, nor shall it apply to any such transaction solely between the
Corporation and another entity, 50% or more of the voting stock of which is
owned by the Corporation. For the purposes hereof, (1) an "affiliate" is any
person (including a corporation, partnership, other legal entity, trust, estate
or individual) who directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the person or
entity specified; (2) "control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
person or entity, whether through the ownership of voting securities, by
contract, or otherwise; and (3) in computing the percentage of outstanding
voting stock beneficially owned by any person or entity, the shares outstanding
and the shares owned shall be determined as of the record date fixed to
determine the stockholders entitled to vote or express consent with respect to
such proposal. The stockholder vote, if any, required for mergers,
consolidations, sales or exchanges of assets or issuances of stock or other
securities not expressly provided for in this Article, shall be such as may be
required by applicable law.
THIRTEENTH: In addition to any other vote required by law, the affirmative
vote of the holders of 80% of the total voting power of all outstanding shares
of voting stock shall be required to amend, alter or repeal the provisions set
forth in this Article THIRTEENTH and in Articles SIXTH (dealing with the
amendment, alteration, repeal or rescission of Bylaws by stockholders), SEVENTH
(dealing with the classified board), TENTH (dealing with the prohibition against
stockholder action without meetings) and TWELFTH (dealing with the 80% vote of
stockholders required for certain transactions).
FOURTEENTH: 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 on
stockholders herein are granted subject to this reservation. Notwithstanding
the foregoing, the provisions set forth in Articles SIXTH, SEVENTH, TENTH,
TWELFTH and THIRTEENTH may not be repealed or amended in any respect unless such
repeal or amendment is approved as specified in Article THIRTEENTH.
FIFTEENTH: A director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent such exemption from liability or
limitation thereof is not permitted under the General Corporation Law of the
State of Delaware as the same exists or may hereafter be amended. If the
General Corporation Law of the State of Delaware is amended after the effective
date of this Certificate of Incorporation to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the General Corporation Law of the State of Delaware, as so
amended.
Any repeal or modification of the foregoing paragraph shall not adversely
affect any right or protection of a director of the Corporation existing
hereunder with respect to any act or omission occurring prior to the such repeal
or modification.
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SIXTEENTH: Each person who was or is made a party or is threatened to be
made a party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the Corporation or is or was
serving at the written request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in an official
capacity as a director, officer, employee or agent or in any other capacity
while serving as a director, officer, employee or agent, shall be indemnified
and held harmless by the Corporation to the fullest extent authorized by the
General Corporation Law of the State of Delaware, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than said law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that, except
as provided in paragraph (a) hereof, the Corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board. The right to indemnification conferred in this Article
shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the General Corporation Law
of the State of Delaware requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be made
only upon delivery to the Corporation of an undertaking, by or on behalf of such
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article or otherwise. The Corporation may, by action of its Board, provide
indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
(a) If a claim under the foregoing paragraph is not paid in full by the
Corporation within thirty days after a written claim has been received
by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and,
if successful in whole or in part, the claimant shall be entitled to
be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any is
required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the
General Corporation Law of the State of Delaware for the Corporation
to indemnify the claimant for the amount claimed, but the burden of
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proving such defense shall be on the Corporation. Neither the failure
of the Corporation (including its directors, independent legal
counsel, or its stockholders) to have made a determination prior to
the commencement of such action that indemnification of the claimant
is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the General Corporation
Law of the State of Delaware, nor an actual determination by the
Corporation (including its directors, independent legal counsel, or
its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of
conduct.
(b) The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred
in this Article shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation, Bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
(c) The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not
the Corporation would have the power to indemnify such person against
such expense, liability or loss under the General Corporation Law of
the State of Delaware.
FLUOR CORPORATION
By: /s/ Lawrence N. Fisher
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Lawrence N. Fisher
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