EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
INSITUFORM TECHNOLOGIES, INC.
INSITUFORM TECHNOLOGIES, INC., a corporation organized and
existing by virtue of the General Corporation Law of Delaware (the
"Corporation"), pursuant to the General Corporation Law of Delaware
does hereby certify as follows:
FIRST: (a) The present name of the Corporation is INSITUFORM
TECHNOLOGIES, INC.
(b) The name under which the Corporation was
originally incorporated is INSITUFORM OF NORTH AMERICA, INC.; and
the date of filing the original certificate of incorporation with
the Secretary of State of the State of Delaware is March 27, 1980.
SECOND: The provisions of the certificate of incorporation of
the Corporation, as heretofore amended and/or supplemented, are
hereby restated and integrated into the single instrument which is
hereinafter set forth, and which is entitled Restated Certificate
of Incorporation of Insituform Technologies, Inc., without further
amendment and without any discrepancy between the provisions of the
certificate of incorporation, as heretofore amended and
supplemented, and the provisions of the said single instrument
hereinafter set forth.
THIRD: The Board of Directors of the Corporation has duly
adopted this Restated Certificate of Incorporation pursuant to the
provisions of Section 245 of the General Corporation Law of
Delaware in the form set forth as follows:
"RESTATED CERTIFICATE OF INCORPORATION
OF
INSITUFORM TECHNOLOGIES, INC.
FIRST: The name of the corporation is INSITUFORM
TECHNOLOGIES, INC.
SECOND: The registered office of the corporation is to be
located at Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle, State of Delaware. The
name of its registered agent at that address is The Corporation
Trust Company.
THIRD: The purpose of the corporation is to engage in any
lawful act or activity for which a corporation may be organized
under the General Corporation Law of Delaware.
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FOURTH: The corporation shall be authorized to issue forty-
two million (42,000,000) shares, consisting of forty million
(40,000,000) Class A Common shares, par value one cent ($0.01) per
share; and two million (2,000,000) Preferred shares, par value ten
cents ($0.10) per share ("Preferred Stock").
The shares of Preferred Stock shall be issued in one or more
series designated by the Board of Directors without further
shareholder action and shall bear such terms and designation as the
Board of Directors may fix, including dividend rates, redemption
rights, conversion rights, liquidation preferences, voting rights
(provided that the Board of Directors may designate that the
holders of one or more series of Preferred Stock shall be entitled
as a series to elect one director and the Board of Directors may at
its discretion grant the holders of one or more series of the
corporation's shares of Preferred Stock the right to elect
additional directors in the event that dividends on such series
shall be in arrears) and such other terms as the Board of Directors
shall determine. Any shares of Preferred Stock reacquired by the
corporation may be reissued without further shareholder approval.
FIFTH: The name and address of the incorporator are as
follows:
Name Address
---- -------
Ray A. Barr 9 East 40th Street
New York, New York 10016
SIXTH: The following provisions are inserted for the
management of the business and for the conduct of the affairs of
the corporation, and for further definition, limitation and
regulation of the powers of the corporation and of its directors
and shareholders:
(1) The number of directors of the corporation shall
be such as from time to time shall be fixed by, or in the
manner provided in, the by-laws; provided, however, that
the number of directors of the corporation shall not be
less than six (6) nor shall the number of directors of
the corporation exceed fifteen (15). Election of
directors need not be by ballot unless the by-laws so
provide.
(2) Vacancies in the Board of Directors shall be
filled by a majority of the directors then in office
subject to the procedures set forth in the by-laws of the
corporation. A director shall hold office until the
annual meeting for the year in which his term expires and
until his successor shall be elected and shall qualify,
subject, however, to prior death, resignation,
retirement, disqualification or removal from office. Any
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director elected to fill a vacancy not resulting from an
increase in the number of directors shall have the same
remaining term as that of his predecessor.
Notwithstanding any provision of this Article SIXTH,
whenever the holders of any one or more series of
Preferred Stock issued by the corporation shall have the
right, voting separately by class or series, to elect
directors at an annual or special meeting of shareholders
or any class or series, the election, term of office,
filling of vacancies and other features of such
directorships shall be governed by the terms of this
Certificate of Incorporation or the resolution or
resolutions adopted by the Board of Directors pursuant to
Article FOURTH hereof applicable thereto.
(3) The Board of Directors shall have power without
the assent or vote of the shareholders:
(a) To make, alter, amend, change, add to or
repeal the by-laws of the corporation; to fix and
vary the amount to be reserved for any proper
purpose; to authorize and cause to be executed
mortgages and liens upon all or any part of the
property of the corporation; to determine the use
and disposition of any surplus or net profits; and
to fix the times for the declaration and payment of
dividends.
(b) To determine from time to time whether,
and to what extent, and at what times and places,
and under what conditions the accounts and books of
the corporation (other than the stock ledger) or
any of them, shall be open to the inspection of the
shareholders.
(4) The directors at their discretion may submit any
contract or act for approval or ratification at any
annual meeting of shareholders or at any meeting of the
shareholders called for the purpose of considering any
such act or contract, and any contract or act that shall
be approved or be ratified by the vote of the holders of
a majority of the stock of the corporation which is
represented in person or by proxy at such meeting and
entitled to vote thereat (provided that a lawful quorum
of shareholders be there represented in person or by
proxy) shall be as valid and as binding upon the
corporation and upon all the shareholders as though it
had been approved or ratified by every shareholder of the
corporation, whether or not the contract or act would
otherwise be open to legal attack because of directors'
interest, or for any other reason.
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(5) In addition to the powers and authorities
hereinbefore or by statute expressly conferred upon them,
the directors are hereby empowered to exercise all such
powers and 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, and to any by-laws from
time to time made by the shareholders; provided, however,
that no by-laws so made shall invalidate any prior act of
the directors which would have been valid if such by-law
had not been made.
SEVENTH: The corporation shall, to the full extent permitted
by Section 145 of the Delaware General Corporation Law, as amended,
from time to time, indemnify all persons whom it may indemnify
pursuant thereto.
EIGHTH: Whenever a compromise or arrangement is proposed
between this corporation and its creditors or any class of them
and/or between this 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 this
corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this
corporation under the provisions of Section 291 of Title 8 of the
Delaware Code or on the application of trustees in dissolution or
of any receiver or receivers appointed for this corporation under
the provisions of Section 279 Title 8 of the Delaware Code order a
meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this 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 (3/4)
in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the
case may be, agree to any compromise or arrangement and to any
reorganization of this corporation as 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 this corporation, as the case may be, and also on
this corporation.
NINTH: 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 law, and
all rights and powers conferred herein on stockholders, directors
and officers are subject to this reserved power.
TENTH: No person who is or was at any time a director of the
corporation shall be personally liable to the corporation or its
stockholders for monetary damages for any breach of fiduciary duty
by such person as a director; provided, however, that, unless and
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except to the extent otherwise permitted from time to time by
applicable law, the provisions of this Paragraph Tenth shall not
eliminate or limit the liability of a director (i) for breach of
the director's duty of loyalty to the corporation or its
stockholders, (ii) for any act or omission by the director which is
not in good faith or which involves intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the General
Corporation Law of the State of Delaware, (iv) for any transaction
from which the director derived an improper personal benefit or (v)
for any act or omission occurring prior to the date this Paragraph
Tenth becomes effective. No amendment to or repeal of this
Paragraph Tenth shall apply to or have any effect on the liability
or alleged liability of any director of the corporation for or with
respect to any act or omission of such director occurring prior to
such amendment or repeal.
ELEVENTH: Subject to the rights of the holders of any class
or series of Preferred Stock expressly set forth in this
Certificate of Incorporation, the Certificate of Designation
related to such class or series of Preferred Stock or as otherwise
required by law, any action required or permitted to be taken by
the shareholders of the corporation must be effected exclusively at
a duly called annual or special meeting of such shareholders and
may not be effected by any consent in writing by such shareholders.
This Article ELEVENTH may not be repealed or amended in any
respect, and no provision inconsistent with this Article ELEVENTH
may be adopted, unless such action is approved by the affirmative
vote of the holders of not less than eighty (80) percent of the
combined voting power of the then outstanding shares of capital
stock of the corporation entitled to vote generally in the election
of directors."
IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation to be executed on its behalf by
Anthony W. Hooper, its President, and attested by Howard Kailes,
its Secretary, as of this 8th day of June, 1999.
ATTEST:
s/Howard Kailes s/Anthony W. Hooper
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Howard Kailes Anthony W. Hooper
Secretary President
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CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
INSITUFORM TECHNOLOGIES, INC.
INSITUFORM TECHNOLOGIES, INC., a corporation organized
and existing by virtue of the General Corporation Law of the State
of Delaware (the "Corporation"), pursuant to the provisions of the
General Corporation Law of the State of Delaware (the "GCL") DOES
HEREBY CERTIFY as follows:
FIRST: The Restated Certificate of Incorporation of
the Corporation is hereby amended by deleting the first paragraph
of Article FOURTH in its entirety and substituting therefor a new
first paragraph of Article FOURTH in the following form:
"FOURTH: The corporation shall be authorized to
issue sixty-two million (62,000,000) shares consisting of
sixty million (60,000,000) Class A common shares, par
value one cent ($0.01) per share; and two million
(2,000,000) Preferred shares, par value ten cents ($0.10)
per share ("Preferred Stock")."
SECOND: The amendments to the Restated Certificate of
Incorporation of the Corporation set forth in this Certificate of
Amendment have been duly adopted in accordance with the applicable
provisions of Section 242 of the GCL: (a) the Board of Directors of
the Corporation having duly adopted resolutions setting forth the
proposed amendments and declaring their advisability by unanimous
written consent of the Board of Directors of the Corporation dated
March 31, 2000 in conformity with the By-laws of the Corporation
and (b) the stockholders of the Corporation having duly adopted
such amendments by the affirmative vote of the holders of a
majority of the outstanding stock entitled to vote thereon, on May
25, 2000, taken at the Corporation's annual meeting of stockholders
duly called and held upon notice in accordance with Section 222 of
the GCL.
IN WITNESS WHEREOF, the Corporation has caused this
Certificate to be executed on its behalf by Anthony W. Hooper, its
President, and attested by Howard Kailes, its Secretary, as of this
25th day of May, 2000.
ATTEST:
s/Howard Kailes s/Anthony W. Hooper
------------------------- ---------------------------
Howard Kailes Anthony W. Hooper
Secretary President
