RESTATED CERTIFICATE OF
INCORPORATION OF INSITUFORM EAST, INCORPORATEDUnder
Section 245 of the General Corporation Law
of the State of Delaware
INSITUFORM EAST, INCORPORATED, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware does
hereby certify:
1. This Corporation was originally incorporated on February 26,
1970 under the name Universal Construction and Supply Company.
2. A Certificate of Amendment changing the corporate name to
Insituform East, Incorporated was recorded on August 24, 1978.
3. Another Certificate of Amendment was recorded on July 9, 1980
increasing the authorized shares of corporate stock from fifty thousand (50,000)
shares to five hundred thousand (500,000) shares, all the same being Common
Stock with a par value of One Dollar ($1 .00) per share.
4. Another Certificate of Amendment was recorded on January 25, 1984
increasing the authorized shares of corporate stock from five hundred thousand
(500,000) shares to eight million (8,000,000) shares, all the same being Common
Stock with a par value of Four Cents ($.04) per share.
5. Another Certificate of Amendment was recorded on February 20, 1986
(a) increasing the authorized shares of corporate stock to a
total of Fourteen Million Five Hundred Thousand (14,500,000), of which Ten
Million (10,000,000) shares shall be designated as Common Stock and Four Million
Five Hundred Thousand (4,500,000) shares shall be designated as Class B Common
Stock, each having a par value of Four Cents ($.04) per share;
(b) outlining the powers and rights of the Common Stock and
Class B Common Stock; and (c) explaining the conversion of
Class B Common Stock shares to Common Stock shares.
6. Another Certificate of Amendment was recorded on January 16, 1987
increasing the authorized shares of corporate stock to a total of Ten Million
Eight Hundred Thousand (10,800,000), of which Ten Million (10,000,000) shares
shall be designated as Common Stock and Eight Hundred Thousand (800,000) shares
shall be designated as Class B Common Stock, each having a par value of Four
Cents ($.04) per share.
7. That at a Meeting of the Board of Directors of Insituform East,
Incorporated resolutions were duly adopted determining that the entire
Certificate of Incorporation be restated as follows and that the Certificate of
Incorporation of Insituform East, Incorporated be as follows:
FIRST: The name of the corporation (hereinafter called the
"Corporation") is: INSITUFORM EAST, INCORPORATED.
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 in the State of Delaware. The name of the 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, including:
A. To engage, generally, in the business of construction as an
underground utility systems contractor, utilizing an Insituform(R) process of
sewer and pipe rehabilitation and to undertake and perform projects of all kinds
as such utility contractor.
B. To take, own, hold, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of real
property within or without the State of Maryland, wherever situated.
C. To manufacture, purchase or acquire in any lawful manner and to
hold, own, mortgage, pledge, sell, transfer, or in any manner dispose of and to
deal in trading goods, wares, merchandise and property of any and every class
and description, and in any part of the world.
D. To acquire the good will, rights and property, and to undertake the
whole or any part of the assets or liabilities of any person, firm, association
or corporation; to pay for the same in cash, the stock of this Corporation,
bonds or otherwise; to hold or in any manner to dispose of the whole or any part
of the property so purchased; to conduct in any lawful manner all or any part of
any business so acquired, and to exercise all the powers necessary or convenient
in or about the conduct and management of such business.
E. To apply for, purchase or in any manner to acquire, and to hold,
own, use and operate, and to sell or in any manner dispose of, and to grant
license or other rights in respect of, and in any manner deal with any and all
rights, inventions, improvements and processes used in connection with or
secured under letters patent or copyrights of the United States or other
countries, or otherwise, and to work, operate or develop the same and to carry
on any business, which may directly or indirectly effectuate these objects or
any of them.
F. To guarantee, purchase, hold, sell, assign, transfer, mortgage,
pledge, or otherwise dispose of the shares of the capital stock of or any bonds,
securities or evidences of any indebtedness created by any other corporation or
corporations or any other state, country, nation or government, and while the
owner of said stock may exercise all the rights, powers and privileges of
ownership, including the right to vote thereon, to the same extent as natural
persons might or could do.
G. To enter into, make and perform contracts of every kind with any
person, firm, association or corporation, municipality, body politic, county,
territory, state, government or colony or dependency thereof, and without limit
as to amount to draw, make, accept, endorse, discount, execute, and issue
promissory notes, drafts, bills of exchange, warrants, bonds, debentures, and
other negotiable or transferable instruments and evidence of indebtedness
whether secured by mortgage or otherwise, so far as may be permitted by the laws
of the State of Delaware.
H. To have offices, conduct its business, and promote its objects
within and without the State of Delaware, in other states, the District of
Columbia, the territories and colonies of the United States and in foreign
countries, without restriction as to place or amount.
I. To do any and all of the things hereinafter set forth to the same
extent as natural persons might or could do and in any part of the world, as
principals, agents, contractors, or otherwise, either alone or in conjunction
with others, to the extent not prohibited to corporations by law.
J. To issue from to time its authorized shares, and securities,
options, warrants, and/or other rights convertible therein to, for such lawful
consideration, whether money or otherwise as may be set forth in the corporate
By-Laws, and any shares issued for which the consideration so fixed has been
paid or delivered shall be fully paid stock and the holder of such shares shall
not be liable for any further call or assessment or any other payment thereon,
provided that the actual value of such consideration is not less than the par
value of the shares so issued.
K. The foregoing enumeration of the purposes, objects and businesses of
the Corporation is made in furtherance of and not in limitation of the powers
conferred upon the Corporation by law, and is not intended by the mention of any
particular purpose, object or business, in any manner to limit or restrict the
generality of any purpose, object or business mentioned or to limit or restrict
any of the powers of the Corporation, the Corporation having the right to engage
in any other businesses for which it shall be lawful for corporations of the
State of Delaware to engage in, including the performance of all lawful and
appropriate actions and things with respect thereto from time to time.
FOURTH: Capital Stock.
A. Classes and Number of Shares. The total number of shares of all
classes of capital stock which the Corporation shall have authority to issue is
Ten Million Eight Hundred Thousand (10,800,000). The classes and the aggregate
number of shares of capital stock of each class which the Corporation shall have
the authority to issue are as follows:
1. Ten Million (10,000,000) shares of Common Stock, par
value four cents ($.04) per share (hereinafter the "Common Stock").
2. Eight Hundred Thousand (800,000) shares of Class B Common
Stock, par value four cents ($.04) per share (hereinafter the "Class B Stock").
B. Powers and Rights of the Common Stock and the Class B Stock.
1. Voting Rights and Powers. With respect to all matters upon
which Stockholders are entitled to vote or to which Stockholders are entitled to
give consent, the holders of the outstanding shares of Common Stock and the
holders of the outstanding shares of Class B Stock shall vote together without
regard to class, and every holder of any outstanding shares of Common Stock
shall be entitled to cast thereon one (1) vote in person or by proxy for each
share of Common Stock standing in his name, and every holder of any outstanding
shares of Class B Stock shall be entitled to cast thereon ten (10) votes in
person or by proxy for each share of Class B Stock standing in his name,
provided that at such time as shares of Class B Stock become outstanding,
holders of shares of Common Stock, voting separately as a class with each holder
of the outstanding shares of Common Stock being entitled to one (1) vote in
person or by proxy for each share of Common Stock standing in his name, shall
have the right to elect that number of Directors so that not less than
twenty-five percent (25%) (calculated to the nearest whole number, rounding a
fractional number of five tenths (.5) to the next highest whole number) of the
total number of Directors of the Corporation fixed from time to time by, or in
the manner provided for in, the By-laws of the Corporation, shall have been
elected by the holders of the outstanding shares of Common Stock. The remaining
Directors shall be elected by the majority vote of the holders of the
outstanding shares of Class B Stock voting separately as a class, with each
holder of the outstanding shares of Class B Stock being entitled to one (1) vote
in person or by proxy for each share of Class B Stock standing in his name. With
respect to any proposed amendment to this Certificate of Incorporation which
would increase or decrease the number of authorized shares of either Common
Stock or Class B Stock, increase or decrease the par value of the shares of
Common Stock or Class B Common Stock, or alter or change the powers,
preferences, relative voting power or special rights of the shares of Common
Stock or Class B Stock so as to affect them adversely, the approval of a
majority of the votes entitled to be cast by the holders of the class affected
by the proposed amendment, voting separately as a class, shall be obtained in
addition to the approval of a majority of the votes entitled to be cast by the
holders of the outstanding shares of Common Stock and Class B Stock voting
together, without regard to class, as hereinbefore provided.
2. Board of Directors.
a. Number. The number of Directors comprising the
Board of Directors shall be fixed by, or in the manner provided in, the By-laws,
but shall not be less than three, at least one of whom (or no less than 25% of
whom) shall be electable by the holders of the outstanding shares of Common
Stock voting separately as a class as hereinbefore provided.
b. Standing and Term. All Directors shall have equal
standing, serve terms of equal duration and have equal voting powers.
c. Vacancies. Vacancies and newly created
directorships resulting from any increase in the authorized number of Directors
may be filled by a majority vote of the remaining Directors then in office, even
though less than a quorum.
d. Removal. Directors elected or electable (in the
case of vacancies or newly created directorships filled by the remaining
Directors) by the holders of the outstanding shares of Common Stock or Class B
Stock voting separately as a class may be removed, with or without cause, only
by the vote or consent of a majority of the votes then entitled to be cast by
the holders of the shares of the class which elected such Directors.
e. Common Stock Directorships Designation. Subsequent
to the issuance of shares of Class B Stock, the Board of Directors shall
designate not less than twenty-five percent (25%) (calculated to the nearest
whole number, rounding a fractional number of five-tenths (.5) to the next
highest whole number) of the then authorized number of directorships as
directorships to be elected by the separate class vote of the holders of the
outstanding shares of Common Stock at the next meeting of Stockholders at which
Directors are to be elected. Any Director filling such a designated directorship
shall hold office until his successor is elected and qualified or until his
earlier resignation, death or removal. The Board of Directors shall designate
the remaining directorships to be elected by the holders of the outstanding
shares of Class B Stock, in the manner provided herein.
3. Dividends and Distributions.
a. Cash Dividends. At any time shares of Class B
Stock are outstanding, as and when cash dividends may be declared by the Board
of Directors, the cash dividend payable on shares of Common Stock shall in all
cases be twenty percent (20%) higher on a per share basis than the cash dividend
payable on shares of Class B Stock. For purposes of calculating the cash
dividend to be paid on shares of Common Stock and Class B Stock, the amount of
the cash dividend declared and payable on shares of Common Stock, determined in
accordance with this provision, may be rounded up to the next highest half cent
or fraction thereof. Cash dividends may be declared and paid on shares of Common
Stock without being declared and paid on shares of Class B Stock. The holders of
the outstanding shares of Common Stock shall receive such cash dividend
preferences for each of the first three of the Corporation's fiscal years in
which cash dividends are declared, beginning from and including the first fiscal
year in which dividends are declared on the outstanding shares of Common Stock
subsequent to the effective date of this provision of this Restated Certificate.
At the conclusion of such third fiscal year, this right shall terminate, except
that, in the discretion of the Board of Directors, cash dividends may be
declared and paid on each outstanding share of Common Stock without being
declared and paid, or in amounts greater than the cash dividends declared and
paid, on outstanding shares of Class B Stock.
b. Other Dividends and Distributions. Each share of
Common Stock and each share of Class B Stock shall be equal in respect of rights
to dividends (other than cash) and distributions, when and as declared, in the
form of stock or other property of the Corporation, except that in the case of
dividends or other distributions payable in stock of the Corporation, including
distributions pursuant to stock split-ups or divisions, which occur after the
date shares of Class B Stock are first issued by the Corporation, only shares of
Common Stock shall be distributed with respect to Common Stock and only shares
of Class B Stock shall be distributed with respect to Class B Stock.
4. Other Rights. Except as otherwise required by the Delaware
General Corporation Law or as otherwise provided in this Certificate of
Incorporation, each share of Common Stock and each share of Class B Stock shall
have identical powers, preferences and rights, including rights in liquidation.
5. Issuance of Class B Stock. The Board of Directors may
authorize by resolution the manner in which shares of Class B Stock shall
initially be issued and may set such terms and conditions as it deems
appropriate or advisable with respect thereto, without any vote or other action
by the Stockholders, except as otherwise required by law. Such initial issuance
shall only be to the then holders of the outstanding shares of Common Stock.
Subsequent to such initial issuance, shares of Class B Stock may be issued upon
such terms and conditions, and in such manner, as the Board of Directors in its
discretion deems appropriate.
6. Conversion of Class B Stock. Each share of Class B Stock
may at any time be converted at the election of the holder thereof into one
fully paid and nonassessable share of Common Stock. Any holder of shares of
Class B Stock may elect to convert any or all of such shares at one time or at
various times in such holder's discretion. Such right shall be exercised by the
surrender of the certificate representing each share of Class B Stock to be
converted to the agent for the registration of transfer of shares of Class B
Stock at its office, accompanied by a written notice of the election by the
holder thereof to convert and (if so required by the transfer agent or by the
Corporation) by instruments of transfer, in form satisfactory to the transfer
agent and to the Corporation, duly executed by such holder or his duly
authorized attorney. The issuance of a certificate or certificates for shares of
Common Stock upon conversion of shares of Class B Stock shall be made without
charge for any stamp or other similar tax in respect of such issuance. However,
if any such certificate or certificates is or are to be issued in a name other
than that of the holder of the share of shares of Class B Stock converted, the
person or persons requesting the issuance thereof shall pay to the transfer
agent the amount of any tax which may be payable in respect of any such
transfer, or shall establish to the satisfaction of the transfer agent or of the
Corporation that such tax has been paid. As promptly as practicable after the
surrender for conversion of a certificate or certificates representing shares of
Class B Stock and the payment of any tax as hereinbefore provided, the
Corporation will deliver or cause to be delivered at the office of the transfer
agent to, or upon the written order of, the holder of such certificate or
certificates, a certificate or certificates representing the number of shares of
Common Stock issuable upon such conversion, issued in such name or names as such
holder may direct. Such conversion shall be deemed to have been made immediately
prior to the close of business on the date of the surrender of the certificate
or certificates representing shares of Class B Stock (if on such date the
transfer books of the Corporation shall be closed, then immediately prior to the
close of business on the first date thereafter that said books shall be open),
and all rights of such holder arising from ownership of shares of Class B Stock
shall cease at such time, and the person or persons in whose name or names the
certificate or certificates representing shares of Common Stock are to be issued
shall be treated for all purposes as having become the record holder or holders
of such shares of Common Stock at such time and shall have and may exercise all
the rights and powers appertaining thereto. No adjustments in respect of past
cash dividends shall be made upon the conversion of any share of Class B Stock;
provided, however, that if any shares of Class B Stock shall be converted
subsequent to the record date for the payment of a cash or stock dividend or
other distribution on shares of Class B Stock but prior to such payment, the
registered holder of such shares at the close of business on such record date
shall be entitled to receive the cash or stock dividend or other distribution
payable to holders of the outstanding shares of Common Stock. The Corporation
shall at all times reserve and keep available, solely for the purpose of issue
upon conversion of outstanding shares of Class B Stock, such number of shares of
Common Stock as may be issuable upon the conversion of all such outstanding
shares of Class B Stock, provided the Corporation may deliver shares of Common
Stock which have previously been exchanged for shares of Class B Stock or which
are held in the treasury of the Corporation for shares of Class B Stock to be
converted. If any shares of Common Stock require registration with or approval
of any governmental authority under any federal or state law before such shares
of Common Stock may be issued upon conversion, the Corporation will take
reasonable and appropriate action to cause such shares to be duly registered or
approved, as the case may be. All shares of Common Stock which may be issued
upon conversion of shares of Class B Stock will, upon issue, be fully paid and
nonassessable.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: The private property of the Stockholders shall not be
subject to the payment of corporate debts to any extent whatever.
SEVENTH: The Board of Directors shall be authorized to adopt, alter,
amend or repeal the By-Laws of the Corporation. The adoption of this power does
not divest the Stockholders of the power to adopt, alter, amend or repeal such
By-Laws.
EIGHTH: No contract or other transaction between the Corporation and
any person, firm, association or other corporation shall, in the absence of
fraud, be invalidated or in any way affected by the fact that any of the
Stockholders, Directors or officers of this Corporation are pecuniarily or
otherwise interested, directly or indirectly, in such contract or transaction,
or are related to or otherwise interested in as a Director, Stockholder,
officer, employee, member, or otherwise, of such other person, firm, association
or corporation. Any Stockholder, Director or officer so interested or related,
as aforesaid, who is present at any meeting at which action on any such contract
or transaction is taken, may be counted in determining the presence of a quorum
at such meeting and vote thereat with respect to such contract or transaction.
No Stockholder, Director or officer interested or related shall, because of such
interest or relationship, be disqualified from holding his office or be liable
to the Corporation or any Stockholder or creditor thereof for any loss incurred
by this Corporation under or by reason of such contract or transaction, or be
accountable for any personal gains or profits he may have realized thereby.
NINTH: 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.
TENTH: 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.
ELEVENTH: Director of the 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 to the extent provided by applicable
law (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, as the same exists or hereafter may be
amended, or (iv) for any transaction from which the Director derived an improper
personal benefit. If the Delaware General Corporation Law hereafter is amended
to authorize the further elimination or limitation of the liability of
Directors, then the liability of a Director of the Corporation, in addition to
the limitation on personal liability provided herein, shall be limited to the
fullest extent permitted by the amended Delaware General Corporation Law. Any
repeal or modification of this paragraph by the Stockholders of the Corporation
shall be prospective only, and shall not adversely affect any limitation on the
personal liability of a Director of the Corporation existing at the time of such
repeal or modification.
Pursuant to resolution of its Board of Directors at a Regular Meeting
of the Board of Directors on 9 December 1994, this Restated Certificate of
Incorporation of Insituform East, Incorporated was duly adopted in accordance
with the provisions of Section 245 of the General Corporation Law of the State
of Delaware; only restates and integrates and does not further amend the
provisions of the Corporation's Restated Certificate of Incorporation as
heretofore amended or supplemented; and there is no discrepancy between those
provisions and the provisions of this Restated Certificate of Incorporation.
IN WITNESS WHEREOF, said Insituform East, Incorporated has caused its
corporate seal to be hereunto affixed and this Certificate to be signed by
Robert W. Erikson, its President, and Robert F. Hartman, its Secretary, this 9th
day of December, 1994.
ATTEST:
Robert F. Hartman By: Robert W. Erikson
Secretary President
[Corporate Seal]
<PAGE>
Certificate of Correction Filed to Correct A Certain Error in the
Restated Certificate of Incorporation of Insituform East, Incorporated
Filed in the Office of the Secretary of State of Delaware On December 13, 1994
INSITUFORM EAST, INCORPORATED, a corporation organized and existing by
virtue of the General Corporation Law of the State of Delaware, does hereby
certify that:
1. The name of the corporation is Insituform East, Incorporated (the
"Corporation").
2. A Restated Certificate of Incorporation (the "Restated Certificate")
was filed in the office of the Secretary of State of Delaware on December 13,
1994, and the Restated Certificate requires correction as permitted by Section
103(f) of the General Corporation Law of the State of Delaware.
3. The fourth full sentence of Subsection 3 of Section B of Article
FOURTH is inaccurate to the extent that it reads "subsequent to the effective
date of this provision of this Restated Certificate" and is hereby corrected to
read "subsequent to February 20, 1986, the effective date of this provision".
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by Robert W. Erikson, its President, and Robert F. Hartman, its
Secretary, this 13th day of December, 1994.
ATTEST:
Robert F. Hartman By: Robert W. Erikson
Secretary President
