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Exhibit 3.1
RESTATED AND AMENDED
CERTIFICATE OF INCORPORATION
OF
MORRISON KNUDSEN CORPORATION
(As of April 16, 1998)
ARTICLE I.
The name of the Corporation is Morrison Knudsen Corporation.
ARTICLE II.
The address of the registered office of the Corporation in the State of
Delaware is 2711 Centerville Road, City of Wilmington, County of New Castle,
19808. The name of its registered agent at such address is Corporation Service
Company.
ARTICLE III.
The nature of the business or purposes to be conducted or promoted is to
engage in any lawful act or activity for which a corporation may now or
hereafter be organized under the General Corporation Law of the State of
Delaware as set forth in Title 8 of the Delaware Code (the "GCL").
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ARTICLE IV.
Section 1. Authorized Capital Stock. The total number of shares of all
classes of stock which the Corporation shall have authority to issue is One
Hundred Ten Million (110,000,000), consisting of One Hundred Million
(100,000,000) shares of common stock, par value $0.01 per share (the "Common
Stock"), and Ten Million (10,000,000) shares of preferred stock, par value $0.01
per share (the "Preferred Stock").
Section 2. Preferred Stock. The Preferred Stock may be issued in one
or more series. The Board of Directors of the Corporation is hereby authorized
to issue the shares of Preferred Stock in such series and to fix from time to
time before issuance the number of shares to be included in any series and the
designation, relative powers, preferences, and rights and qualifications,
limitations, or restrictions of all shares of a series.
a. Authority of the Board of Directors. The authority of the Board of
Directors with respect to each series will include, without limiting the
generality of the foregoing, the determination of any or all of the
following:
(i) the distinctive designation of and the number of shares
comprising the series, which number may be increased (except where
otherwise provided by the Board of Directors in creating the series) or
decreased (but not below the number of such shares then outstanding)
from time to time by like action of the Board of Directors;
(ii) the voting powers, if any, and whether such voting powers
are full or limited in such series;
(iii) the redemption provisions, if any, applicable to the
series, including the redemption price or prices to be paid;
(iv) whether dividends, if any, will be cumulative or
noncumulative, the dividend rate of the series, and the dates and
preferences of dividends on the series;
(v) the rights of the series upon the voluntary or
involuntary dissolution of, or upon any distribution of the assets of,
the Corporation;
(vi) the provisions, if any, pursuant to which the shares of
the series are convertible into, or exchangeable for, shares of any
other class or classes or of any other series of the same or any other
class or classes of stock, or any other security, of the Corporation or
any other corporation or other entity, and the price or prices or the
rates of exchange applicable thereto;
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(vii) the right, if any, to subscribe for or to purchase any
securities of the Corporation or any other corporation or other entity;
(viii) the provisions, if any, of a sinking fund applicable to
the series; and
(ix) any other relative, participating, optional, or other
special powers, preferences, rights, qualifications, limitations, or
restrictions thereof;
all as may be determined from time to time by the Board of Directors and stated
in the resolution or resolutions providing for the issuance of the Preferred
Stock (collectively, a "Preferred Stock Designation").
b. Series A Preferred Stock. The following is a statement of the
powers, preferences, rights, qualifications, limitations and restrictions
of the series of Preferred Stock designated as Series A Preferred Stock.
(i) Designation and Amount. The shares of such series of
Preferred Stock shall be designated as "Series A Preferred Stock" and
the number of shares constituting such series shall be 1,800,000.
(ii) Rank. With respect to rights on liquidation, winding up
and dissolution, the Series A Preferred Stock ranks (i) senior to both
the Corporation's Common Stock and to all classes and series of stock of
the Corporation now or hereafter authorized, issued or outstanding which
by their terms expressly provide that they are junior to the Series A
Preferred Stock as to distributions upon the liquidation, winding up and
dissolution of the Corporation or which do not specify their rank
(collectively with the Common Stock, the "Junior Securities"); (ii) on a
parity with each other class or series of capital stock issued by the
Corporation after the date hereof the terms of which specifically
provide that such class or series will rank on a parity with the Series
A Preferred Stock as to distributions upon the liquidation, winding up
and dissolution of the Corporation (collectively referred to as "Parity
Securities"), provided that any such Parity Securities that were not
approved by the holders of Series A Preferred Stock in accordance with
paragraph (b)(vii)(B) of this Section 2 shall be deemed to be Junior
Securities and not Parity Securities; and (iii) junior to each other
class of capital stock or other series of Preferred Stock issued by the
Corporation after the date hereof the terms of which have been approved
by the holders of the Series A Preferred Stock in accordance with
paragraph (b)(vii)(B) of this Section 2 and which specifically provide
that such class or series will rank senior to the Series A Preferred
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Stock as to distributions upon the liquidation, winding up and
dissolution of the Corporation (collectively referred to as "Senior
Securities").
(iii) Dividends. The holders of shares of Series A Preferred
Stock are not entitled to receive dividends.
(iv) Foreign Tax Credit Sinking Fund; Redemption.
(A) The Corporation shall create and maintain a sinking
fund ("Foreign Tax Credit Sinking Fund") into which it shall
deposit promptly upon receipt and hold all amounts received by
the Corporation in respect of refunds of federal income tax and
interest thereon associated with amended federal income tax
returns of the Corporation and consolidated subsidiaries for the
calendar years 1982 through 1990 which were filed prior to
January 1, 1996, which change the Corporation's election from
deducting foreign taxes to claiming a credit for those taxes
("Foreign Tax Credit Refunds"); provided, however, that the
cumulative total amount of Foreign Tax Credit Refunds, together
with any amounts contributed pursuant to the sentence prior to
the penultimate sentence of this paragraph, which the
Corporation may deposit to the Sinking Fund shall not exceed
$18,000,000. A majority of the directors of the Corporation
present at a meeting at which a quorum is present has the
exclusive power and authority to determine, in good faith, on
the basis of information known to them after reasonable inquiry,
(i) whether funds received by the Corporation are Foreign Tax
Credit Refunds and (ii) the amount of any Foreign Tax Credit
Refunds. The holders of the Series A Preferred Stock shall have
no right to challenge any such determination unless such
challenge is specifically authorized by the beneficial owners of
a majority of the issued and outstanding shares of the Series A
Preferred Stock. The Corporation may, but shall not be obligated
to, deposit funds other than Foreign Tax Credit Refunds into the
Foreign Tax Credit Sinking Fund; provided, however, that such a
deposit of funds other than Foreign Tax Credit Refunds shall be
made only upon the affirmative vote of two-thirds of the total
number of directors that the Corporation would have if there
were no vacancies. Pending distribution of the amounts in the
Foreign Tax Credit Sinking Fund pursuant to paragraph
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(b)(iv)(B) of this Section 2, all such amounts shall be
deposited into and maintained in an interest-bearing account at
a bank or other depository institution at which the Corporation
maintains other interest-bearing deposit accounts. Other than
distributions made pursuant to paragraph (b)(iv)(B) of this
Section 2, the Corporation shall not withdraw any funds from the
Foreign Tax Credit Sinking Fund.
(B) On the fifteenth day of the month following the end
of each calendar quarter, the Corporation shall distribute to
each holder of record of Series A Preferred Stock as of the last
day of such calendar quarter an amount per share equal to a pro
rata portion of (i) the total amount of Foreign Tax Credit
Refunds deposited into the Foreign Credit Sinking Fund during
the quarter and (ii) all interest earned on such total amount
during the quarter. The distribution for the calendar quarter in
which the cumulative total deposits to the sinking fund reaches
$18,000,000 will be the final distribution with respect to the
Series A Preferred Stock. Upon this final distribution, all
shares of Series A Preferred Stock will be cancelled and no
longer outstanding and will not have the status of shares of
Series A Preferred Stock, and all rights of the holders thereof
as stockholders of the Corporation will cease.
(C) If the Series A Preferred Stock has not been
cancelled as provided in paragraph (b)(iv)(B) of this Section 2
by the fifth anniversary of the issuance of the Series A
Preferred Stock, the Corporation shall, on the fifteenth day
("Redemption Date") of the month following the fifth anniversary
of the issuance of the Series A Preferred Stock, redeem all the
outstanding shares of Series A Preferred Stock at a per share
redemption price ("Redemption Price") equal to the greater of
(I) $0.01, or (II) a pro rata portion of the balance of the
Foreign Tax Credit Sinking Fund (including all interest earned
thereon) as of the fifth anniversary of the issuance of the
Series A Preferred Stock.
(D) In the event that the Corporation redeems shares of
Series A Preferred Stock pursuant to paragraph (b)(iv)(C) of
this Section 2, the Corporation shall send notice of the
redemption by first-class mail, postage prepaid, not less than
30 days prior to the Redemption Date, to the holders of record
of the shares to be redeemed at their respective
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addresses as they shall appear in the records of the
Corporation; provided, however, that failure to give such notice
or any defect therein or in the mailing thereof shall not affect
the validity of the proceedings for the redemption of any shares
so to be redeemed except as to the holder to whom the
Corporation has failed to give such notice or except as to the
holder to whom notice was defective. Each such notice shall
state: (i) the Redemption Date; (ii) the number of shares of
Preferred Stock to be redeemed; (iii) the Redemption Price, and
(iv) the place or places where certificates for such shares are
to be surrendered for payment of the Redemption Price. Upon
surrender of the certificates for the shares (properly endorsed
or assigned for transfer, if the Board of Directors so requires
and a notice by the Corporation so states), the Corporation
shall redeem such shares at the Redemption Price as aforesaid.
(E) If the Corporation has mailed the notice provided in
paragraph (b)(iv)(D) of this Section 2, then, from and after the
Redemption Date (unless the Corporation defaults in the payment
of the Redemption Price, in which case such rights shall
continue until the Redemption Price is paid), all shares of
Series A Preferred Stock will be deemed to be cancelled and no
longer outstanding, and will not have the status of shares of
Series A Preferred Stock, and all rights of the holders thereof
as stockholders of the Corporation (except the right to receive
the Redemption Price) will cease.
(v) Liquidation Preference.
(A) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, each holder of outstanding shares of Series A
Preferred Stock will be entitled to be paid out of the assets of
the Corporation available for distribution to its stockholders,
before any payment is made or any assets distributed to the
holders of any of the Junior Securities, an amount in cash per
share of Series A Preferred Stock held equal to the greater of
(I) $0.01, or (II) a pro rata portion of the remaining balance
of the Foreign Tax Credit Sinking Fund (including all interest
earned thereon). If the assets of the Corporation are not
sufficient to pay in full the liquidation payments payable to
the holders of outstanding shares of the Series A Preferred
Stock
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and any Parity Securities, then the holders of all such shares
shall share ratably in such distribution of assets in accordance
with the amount which would be payable on such distribution if
the amounts to which the holders of outstanding shares of Series
A Preferred Stock and the holders of outstanding shares of such
Parity Securities are entitled were paid in full.
(B) For the purposes of this paragraph (b)(v), neither
the voluntary sale, conveyance, exchange or transfer (for cash,
shares of stock, securities or other consideration) of all or
substantially all of the property or assets of the Corporation
nor the consolidation or merger of the Corporation with any one
or more other corporations shall be deemed to be a voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation, unless such voluntary sale, conveyance, exchange or
transfer shall be in connection with a plan of liquidation,
dissolution or winding up of the Corporation.
(vi) Reacquired Shares. Shares of Series A Preferred Stock
that have been issued and reacquired by the Corporation in any manner,
including shares reacquired by redemption pursuant to paragraph (b)(iv)
of this Section 2, shall (upon compliance with any applicable provisions
of the laws of the State of Delaware) have the status of authorized and
unissued shares of Preferred Stock undesignated as to series, and may be
redesignated and reissued as part of any series of Preferred Stock.
(vii) Voting Rights. In addition to any voting rights provided
by law, the holders of Series A Preferred Stock have the following
voting rights:
(A) General. Except as required in this Article IV and
as otherwise required by law, shares of Series A Preferred Stock
shall vote together with shares of Common Stock of the
Corporation as a single class on all matters as to which the
shares of Common Stock are entitled to vote generally. Each
share of Series A Preferred Stock is entitled to 1/10,000 of a
vote.
(B) Voting Rights On Extraordinary Matters. In
addition to any vote or consent of stockholders required by law,
the approval of holders of at least two-thirds of the
outstanding shares of Series A Preferred Stock, voting as a
class, is required (i) to
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reclassify any series of Junior Securities as Senior Securities
or Parity Securities, or (ii) to amend, repeal or change any of
the provisions of this Restated and Amended Certificate of
Incorporation or the provisions of this Article IV in any manner
that would alter or change the rights, powers, preferences or
privileges of the shares of Series A Preferred Stock so as to
affect them adversely, including, without limitation, changing
the voting percentage required for approval by the holders of
Series A Preferred Stock of the foregoing matters.
ARTICLE V.
The business and affairs of the Corporation shall be managed by or under
the direction of the Board of Directors, which shall consist of not less than
six directors nor more than 12 directors, the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors. At
each annual meeting of stockholders of the Corporation, commencing with the 1998
annual meeting, all directors will be elected to serve for a term expiring at
the next annual meeting of the stockholders of the Corporation. A directors
shall hold office until the annual meeting at which his or her terms expires and
until his or her successor shall be elected and shall qualify, subject, however,
to prior death, resignation, retirement, disqualification or removal from
office. Any vacancy on the Board of Directors, howsoever resulting, may be
filled 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 expiring at the next annual meeting of the
stockholders of the Corporation. Notwithstanding anything to the contrary in
this Restated and Amended Certificate of Incorporation or any provisions of
Bylaws of the Corporation, there shall be no cumulative voting.
ARTICLE VI.
Any or all of the directors of the Corporation may be removed from the
Board of Directors, with or without cause, by the affirmative vote of the
holders of a majority of the voting power of the and outstanding of voting stock
of the Corporation entitled to vote thereon.
ARTICLE VII.
Elections of directors at an annual or special meeting of stockholders need
not be by written ballot unless the Bylaws of the Corporation shall otherwise
provide.
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ARTICLE VIII.
Special meetings of the stockholders of the Corporation for any purpose or
purposes may be called at any time only by a majority of the Board of Directors
or the Chief Executive Officer or the President.
ARTICLE IX.
Any action which may be taken by stockholders of the Corporation at an
annual or special meeting may not be effected except at such an annual or
special meeting by the vote required for the taking of such action, and the
right of stockholders to act by written consent is expressly denied.
ARTICLE X.
The officers of the Corporation shall be chosen in such a manner, shall
hold their offices for such terms and shall carry out such duties as are
determined by the Board of Directors, subject to the right of the Board of
Directors to remove any officer or officers at any time with or without cause.
ARTICLE XI.
A. The Corporation shall indemnify to the full extent authorized or
permitted by law (as now or hereafter in effect) any person made, or threatened
to be made, a defendant or witness to any action, suit or proceeding (whether
civil or criminal or otherwise) by reason of the fact that he, his testator or
intestate, is or was a director or officer of the Corporation or by reason of
the fact that such director or officer, at the request of the Corporation, is or
was serving any other corporation, partnership, joint venture, employee benefit
plan or other enterprise, in any capacity. Nothing contained herein shall affect
any rights to indemnification to which employees other than directors or
officers may be entitled by law. No amendment or repeal of this Section A of
Article XI shall apply to or have any effect on any right to indemnification
provided hereunder with respect to any acts or omissions occurring prior to such
amendment or repeal.
B. No 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 a director as a director. Notwithstanding the foregoing sentence, a
director shall be liable 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) pursuant to Section 174 of the
GCL, or (iv) for any transaction from which such director derived an improper
personal benefit. No amendment to or repeal of this
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Section B of this Article XI 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 acts or omissions of such director occurring prior to such amendment or
repeal.
C. In furtherance and not in limitation of the powers conferred by
statute:
(i) the Corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the
Corporation, or is serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of law; and
(ii) the Corporation may create a trust fund, grant a security interest
and/or use other means (including, without limitation, letters of credit,
surety bonds and/or other similar arrangements), as well as enter into
contracts providing indemnification to the full extent authorized or permitted
by law and including as part thereof provisions with respect to any or all of
the foregoing to ensure the payment of such amounts as may become necessary to
effect indemnification as provided therein, or elsewhere.
ARTICLE XII.
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 Bylaws of the Corporation. In addition, the Bylaws of the
Corporation may be adopted, repealed, altered, amended, or rescinded by the
affirmative vote of two-thirds of the issued and outstanding stock of the
Corporation entitled to vote thereon.
ARTICLE XIII.
The Corporation reserves the right to repeal, alter amend, or rescind any
provision contained in this Restated and Amended 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
any other provision of this Restated and Amended Certificate of Incorporation
and any provisions of the Bylaws of the Corporation, any proposal to amend or
repeal Articles V, VI, VIII, IX, or XII, or this Article XIII or any other
proposal to amend this Restated and Amended Certificate of Incorporation that is
inconsistent with any provisions of Articles V, VI, VIII,
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IX, or XII or this Article XIII shall require not less than the affirmative vote
of two-thirds of the issued and outstanding stock of the Corporation entitled to
vote thereon.
ARTICLE XIV.
The Corporation will not issue nonvoting equity securities to the extent
prohibited by Section 1123 of the United States Bankruptcy Code; provided,
however, that this Article XIV (a) will have no further force and effect beyond
that required under Section 1123 of the United States Bankruptcy Code, (b) will
have such force and effect, if any, only for so long as such Section 1123 is in
effect and applicable to the Corporation, and (c) in all events may be amended
or eliminated in accordance with applicable law as from time to time in effect.
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