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EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SPECIALTY EQUIPMENT COMPANIES, INC.
SPECIALTY EQUIPMENT COMPANIES, INC. (The "Corporation"), a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware and which was originally incorporated under such law as The
Best Companies, Inc. on November 28, 1984, DOES HEREBY CERTIFY that the
following Restated Certificate of Incorporation of the Corporation was duly
adopted in accordance with the provisions of Sections 242, 245 and 303 of the
General Corporation Law of the State of Delaware:
1. The name of the Corporation is Specialty Equipment Companies, Inc.
2. The address of the registered office of the Corporation in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, City of
Wilmington, County of New Castle. The name of the registered agent of the
Corporation at such address is The Corporation Trust Company.
3. 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 Delaware.
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4. The total number of shares of all classes of stock which the
Corporation shall have the authority to issue is 25,000,000. All such shares
shall be Common Stock, par value $.01 per share, and all such shares shall be
identical and will entitle the holder to the same rights, privileges, benefits
and notices (hereinafter called "Common Stock").
A statement of the powers, designations, preferences and relative
rights and the qualifications, limitations and restrictions of the Common Stock
is as follows:
Common Stock
(1) Dividends.
Holders of Common Stock shall be entitled to receive such dividends as
may be declared by the Board of Directors out of assets legally available
therefor.
(2) Distributions on Liquidation.
In the event of any voluntary or involuntary liquidation, dissolution
or winding up of the affairs of the Corporation, holders of Common Stock shall
be entitled to share ratably in all assets available for distribution.
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(3) Voting Rights.
The holders of Common Stock shall be entitled to one vote per share in
voting on the election of directors and for all other corporate purposes.
Any plan or program to issue options or rights to acquire shares of
the capital stock of the Corporation adopted by the Board of Directors of the
Corporation, other than the Restricted Stock Plan of the Corporation which is
effective at or upon the date of confirmation of the Corporation's Plan of
Reorganization on March 17, 1992, shall be contingent on approval ("Approval")
of the affirmative votes of the holders of a majority of the securities of the
Corporation present, or represented, and entitled to vote at a meeting duly held
in accordance with the Delaware General Corporation Law. Approval may be had
after adoption of a stock option plan, and grants of options thereunder, but
only if (a) such Approval is obtained not later than the first annual meeting of
stockholders following adoption of such stock option plan by the Board of
Directors, and (b) any options granted before such Approval are not exercisable
before such Approval and are immediately cancelled if such Approval is not
granted.
The issuance by the Corporation of non-voting equity securities is
prohibited.
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5.A. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors consisting of seven (7) directors.
The Board of Directors of the Corporation shall assume office on March
31, 1992. The Board of Directors shall be divided into three classes and each
class shall serve for a staggered term as follows:
Class I directors (initially consisting of Messrs. James B. Knoll and
Daniel B. Greenwood) shall serve for an initial term from March 31, 1992
until the annual meeting in the fiscal year ending January 31, 1996. Class
1 directors shall be members of management of the Corporation.
Class 2 directors (initially consisting of Messrs. Tom Anderson, Barry
McLean, and Lawrence Singleton) shall serve for an initial term from March
31, 1992 until the annual meeting in the fiscal year ending January 31,
1995; and
Class 3 directors (initially consisting of Messrs. Richard Kent and
Charles Hutchinson) shall serve for an initial term from March 31, 1992
until the annual meeting in the fiscal year ending January 31, 1994.
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At each annual meeting of stockholders including and following the
annual meeting in the fiscal year ending January 31, 1994, directors elected to
succeed those whose terms then expire shall be elected for a term of office
expiring at the third succeeding annual meeting of stockholders after their
election. Unless sooner terminated, each director shall serve until the later of
the date on which the director's term ends or the date on which his successor is
elected and qualified.
B. Any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office or other cause
shall be filled by a vote of the holders of common stock of the Corporation.
Directors so chosen shall hold office for a term expiring at the annual meeting
of stockholders at which the term of the class to which they have been elected
expires. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
C. Any director, or the entire Board of Directors, may be removed from
office at any time, but only for cause and only by the affirmative votes of the
holders of a majority of the shares of Common Stock then issued and outstanding.
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D. Notwithstanding anything to the contrary contained in this Restated
Certificate of Incorporation, the affirmative vote of the holders of at least
80% of all outstanding shares of Common Stock voting together shall be required
to amend, alter or repeal, or to adopt any provision inconsistent with, this
Article 5.
E. Except as required in the By-Laws, no election of directors need be
by written ballot.
6. No director of the Corporation shall be 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 or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit. At no time prior to September 13, 1998 may this provision be
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deleted or amended in any manner other than to further limit the liability of
directors of the Corporation under applicable law.
IN WITNESS WHEREOF, SPECIALTY EQUIPMENT COMPANIES, INC. has caused
this Certificate to be signed by its President and attested by its Secretary
this 30th day of March, 1992.
SPECIALTY EQUIPMENT COMPANIES, INC.
By: /s/ James B. Knoll
--------------------------------
James B. Knoll, President
ATTESTED:
/s/ Donald K. McKay
--------------------------
Donald K. McKay, Secretary
4197C(1)
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
SPECIALTY EQUIPMENT COMPANIES, INC., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: That on February 28, 1994, the Board of Directors of the
Corporation duly adopted by unanimous written consent resolutions attached
hereto as Exhibit A setting forth a proposed amendment to the Certificate of
Incorporation of the Corporation, declaring such amendment to be advisable and
recommending it for adoption by the stockholders of the Corporation.
SECOND: That thereafter at the Annual Meeting of Stockholders of the
Corporation held on May 5, 1994, at the Hyatt Regency O'Hare, Rosemont, Illinois
at 9:00 a.m. Central Time, the amendment was approved and adopted by the
stockholders of the Corporation holding the necessary number of shares as
required by statute and the Corporation's Certificate of Incorporation and
By-Laws.
THIRD: That such amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHERE OF, SPECIALTY EQUIPMENT COMPANIES, INC. has caused
this certificate to be signed by William E. Dotterweich, its President, and
Donald K. McKay, its Secretary, this 5th day of May, 1994.
SPECIALTY EQUIPMENT COMPANIES, INC.
/s/ William E. Dotterweich
-----------------------------------
William E. Dotterweich
President
Attest:
/s/ Donald K. McKay
-------------------------
Donald K. McKay
Secretary
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EXHIBIT A
Amendment to the Certificate of Incorporation
The Company's Certificate of Incorporation shall be amended by deleting in
its entirety paragraph 5.A and inserting in substitution therefor the following:
5.A. The Business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors consisting of nine (9)
directors.
The Board of Directors shall be divided into three classes, each
consisting of three directors with the term of office for one class
expiring each year. Class 1 directors shall serve a term until the annual
meeting in the fiscal year ending January 31, 1996. Class 1 shall as of the
date of this amendment consist of Daniel B. Greenwood and two directors to
be elected at the annual meeting of stockholders in the fiscal year ending
January 31, 1995. Class 2 directors shall serve a term until the annual
meeting in the fiscal year ending January 31, 1998. Class 2 shall as of the
date of this amendment consist of three directors to be elected at the
annual meeting of stockholders in the fiscal year ending January 31, 1995.
Class 3 directors shall serve a term until the annual meeting in the fiscal
year ending January 31, 1997. Class 3 shall as of the date of this
amendment consist of Charles E. Hutchinson, Richard A. Kent and one
director to be elected at the annual meeting of stockholders in the fiscal
year ending January 31, 1995. At each annual meeting of stockholders
including and following the annual meeting in the fiscal year ending
January 31, 1996, directors elected to succeed those whose terms then
expire shall be elected for a term of office expiring at the third
succeeding annual meeting of stockholders after their election. Unless
sooner terminated, each director shall serve until the later of the date on
which the director's term ends or the date on which his successor is
elected and qualified.
