Exhibit 3.1
AMENDED
AND RESTATED
CERTIFICATE OF INCORPORATION
OF
GREAT
LAKES DREDGE & DOCK HOLDINGS CORP.
a Delaware corporation
ARTICLE
ONE
NAME
The name of the Corporation is Great Lakes Dredge
& Dock Holdings Corp. (the
Corporation
).
ARTICLE
TWO
REGISTERED OFFICE AND AGENT
The address of the Corporations registered office in
the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the
city of Wilmington, county of New Castle.
The name and address of the registered agent is The Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware
19801.
ARTICLE
THREE
PURPOSE
The nature of the business or purposes to be conducted
or promoted is to engage in any lawful act or activity for which corporations
may be organized under the Delaware General Corporation Law (the
DGCL
).
ARTICLE
FOUR
CAPITAL STOCK
Section 1.
Authorized
Shares
. The total number of shares of all classes of capital stock which
the Corporation shall have authority to issue is 91,000,000 shares, of which:
90,000,000 shares, par value $0.0001 per share, shall
be shares of common stock (the
Common Stock
); and
1,000,000 shares, par value $0.0001 per share, shall
be shares of initially undesignated preferred stock (the
Preferred Stock
).
Section 2.
Common
Stock
. Except as (i) otherwise
required by law or (ii) expressly provided in this Amended and Restated
Certificate of Incorporation (as amended from time to
time), each share of Common Stock shall have the same powers, rights
and privileges and shall rank equally, share ratably and be identical in all
respects as to all matters.
(a)
Dividends
. Subject to the rights of the holders of
Preferred Stock, and to the other provisions of this Amended and Restated
Certificate of Incorporation (as amended from time to time), holders of Common
Stock shall be entitled to receive equally, on a per share basis, such
dividends and other distributions in cash, securities or other property of the
Corporation as may be declared thereon by the Board of Directors of the
Corporation (the
Board
) from time to time out of assets or funds of
the Corporation legally available therefor.
(b)
Voting Rights
. At every annual or special meeting of
stockholders of the Corporation, each holder of Common Stock shall be entitled
to cast one (1) vote for each share of Common Stock standing in such holders
name on the stock transfer records of the Corporation;
provided
,
however
,
that, except as otherwise required by law, holders of Common Stock shall not be
entitled to vote on any amendment to this Amended and Restated Certificate of
Incorporation (including any certificate of designations relating to any series
of Preferred Stock) that relates solely to the terms of one or more outstanding
series of Preferred Stock if the holders of such affected series are entitled,
either separately or together as a class with the holders of one or more other
such series, to vote thereon pursuant to this Amended and Restated Certificate
of Incorporation (including any certificates of designation relating to any
series of Preferred Stock).
(c)
Liquidation Rights
. In the event of any liquidation, dissolution
or winding up of the affairs of the Corporation, whether voluntary or
involuntary, after payment or provision for payment of the Corporations debts
and amounts payable upon shares of Preferred Stock entitled to a preference, if
any, over holders of Common Stock upon such dissolution, liquidation or winding
up, the remaining net assets of the Corporation shall be distributed among
holders of shares of Common Stock, ratably among such holders based on the
number of shares of Common Stock held by each such person. A merger or consolidation of the Corporation
with or into any other corporation or other entity, or a sale or conveyance of
all or any part of the assets of the Corporation (which shall not in fact
result in the liquidation of the Corporation and the distribution of assets to
its stockholders) shall not be deemed to be a voluntary or involuntary
liquidation or dissolution or winding up of the Corporation within the meaning
of this paragraph (c).
(d)
Preemptive Rights
. Except as may be set forth in a written
agreement to which such holder is party with the Corporation, no holder of
Common Stock shall have any preemptive rights with respect to the Common Stock
or any other securities of the Corporation, or to any obligations convertible
(directly or indirectly) into securities of the Corporation whether now or
hereafter authorized.
Section 3.
Preferred
Stock
. The Board is authorized,
subject to limitations prescribed by law or any exchange on which the
Corporations securities may then be listed, to provide by resolution or
resolutions for the issuance of shares of Preferred Stock in one or more
series, to establish the number of shares to be included in each such series,
and to fix the voting powers (if any), designations, powers, preferences, and
relative, participating, optional or other rights, if any, of the shares of
each such series, and any qualifications, limitations or restrictions
thereof.
2
Irrespective of the provisions of Section 242(b)(2) of the DGCL, the
number of authorized shares of Preferred Stock may be increased or decreased
(but not below the number of shares thereof then outstanding) by the
affirmative vote of the holders of a majority in voting power of the stock of
the Corporation entitled to vote, without the separate vote of the holders of
the Preferred Stock as a class.
Section 4.
Definitions
. Solely for the purposes of this
Article Four
and
Article
Five
, the following terms shall have the meanings ascribed below:
Affiliate
shall mean, with respect to any
Person, any other Person directly or indirectly controlling, controlled by or
under common control with such first Person as of the date on which, or at any
time during the period for which, the determination of affiliation is being
made. For the purpose of this
definition, control means (i) the ownership or control of 50% or more of the
equity interest in any Person, or (ii) the ability to direct or cause the
direction of the management or affairs of a Person, whether through the direct
or indirect ownership of voting interests, by contract or otherwise.
Person
means an individual, a partnership, a
corporation, a limited liability company, an association, a joint stock
company, a trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political subdivision thereof.
Subsidiary
means, with respect to any Person,
any corporation, limited liability company, partnership, association or other
business entity of which (i) if a corporation, a majority of the total voting
power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person or a combination thereof,
or (ii) if a limited liability company, partnership, association or other
business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that person or a combination
thereof. For purposes hereof, references
to a Subsidiary of any Person shall be given effect only at such times that
such Person has one or more Subsidiaries, and, unless otherwise indicated, the
term Subsidiary refers to a Subsidiary of the Corporation.
ARTICLE FIVE
RESTRICTIONS
ON TRANSFER AND OWNERSHIP
Section 1.
Maritime Laws
. It is the policy of
the Corporation that Non-U.S. Citizens should beneficially own, individually or
in the aggregate, no more than the Permitted Percentage of each class or series
of the capital stock of the Corporation. To help ensure that at no time
Non-U.S. Citizens, individually or in the aggregate, become the beneficial
owners of more than the Permitted Percentage of the issued and outstanding
shares of any class or series of capital stock of the Corporation, and to
enable the Corporation to submit any proof that it is a U.S. Citizen as
required by any applicable law or by any contract with the United States
government (or any agency thereof) or any other Person, the Corporation shall
have the power to take the actions
3
prescribed in
Sections
2
through
9
of this
Article Five
. The provisions of this
Article
Five
are intended to ensure that the Corporation continues to qualify as a
U.S. Citizen under the Maritime Laws so that the Corporation does not cease to
be qualified under the Maritime Laws to own and operate vessels that may engage
in dredging in the navigable waters of the United States and may transport
dredged material between points in the United States. The Board (or any duly
authorized committee thereof) is specifically authorized to make all
determinations in accordance with applicable law and this Amended and Restated
Certificate of Incorporation to implement the provisions of this
Article
Five
.
Section 2.
Stock Certificates
.
(a)
To implement the policy set forth
in
Section 1
of this
Article Five
, the Corporation shall
institute a dual stock certificate system such that: (i) each certificate
representing shares of each class or series of capital stock of the Corporation
that are beneficially owned by a U.S. Citizen shall be marked U.S. Citizen
and each certificate representing shares of each class or series of capital
stock of the Corporation that are beneficially owned by a Non-U.S. Citizen
shall be marked Non-U.S. Citizen, but with all such certificates to be
identical in all other respects and to comply with all provisions of the laws
of the State of Delaware; (ii) an application to transfer shares shall be set
forth on the back of each certificate, in which a Person seeking to take title
to the shares represented by such certificate shall apply to the Corporation to
transfer the number of shares indicated therein and shall certify as to its
citizenship and the citizenship of any beneficial owner for whom or for whose
account such Person will hold such shares; and (iii) the stock transfer records
of the Corporation may be maintained in such manner as to enable the
percentages of the shares of each class or series of the Corporations capital
stock that are beneficially owned by U.S. Citizens and by Non-U.S. Citizens to
be confirmed.
(b) A statement shall be set
forth on the face or back of each certificate representing shares of each class
or series of capital stock of the Corporation to the effect that: (i) such
shares and the beneficial ownership thereof are subject to restrictions on
transfer set forth in the Amended and Restated Certificate of Incorporation;
and (ii) the Corporation will furnish without charge to each stockholder of the
Corporation who so requests a copy of the Amended and Restated Certificate of
Incorporation.
Section 3.
Transfers
.
(a)
Any purported
transfer of beneficial ownership of any shares of any class or series of
capital stock of the Corporation (excluding, for the avoidance of doubt, the
original issuance of such shares by the Corporation), the effect of which would
be to cause one or more Non-U.S. Citizens in the aggregate to beneficially own
shares of any class or series of capital stock of the Corporation in excess of
the Permitted Percentage for such class or series, shall be void and
ineffective, and, to the extent that the Corporation knows of such purported
transfer, neither the Corporation nor its transfer agent (if any) shall
register such purported transfer on the stock transfer records of the
Corporation and neither the Corporation nor its transfer agent (if any) shall
recognize the purported transferee thereof as a stockholder of the Corporation
for any purpose whatsoever except to the extent necessary to effect any remedy
available to the Corporation under this
Article Five
. In no event shall
any such registration or recognition make such
4
purported transfer effective unless the Board shall have expressly and
specifically authorized the same.
(b) A citizenship
certification, and such other documentation under
Section 8
of this
Article
Five
, may be required by the Corporation or its transfer agent (if any)
from all transferees (and from any recipient upon original issuance) of shares
of capital stock of the Corporation and, if such transferee (or recipient) is
acting as a fiduciary or nominee for a beneficial owner, with respect to such
beneficial owner, and registration of transfer (or the closing of such original
issue) shall be denied upon refusal to furnish such certificate.
Section 4.
Excess
Shares
. If on any date (including, without limitation, any record date)
(each, an
Excess Share Date
) the
number of shares of a class or series of capital stock of the Corporation
beneficially owned by Non-U.S. Citizens exceeds the Permitted Percentage with
respect to such class or series of capital stock, irrespective of the date on
which such event becomes known to the
Corporation (such shares in excess of the Permitted Percentage, the
Excess Shares
), then the shares of
such class or series of capital stock of the Corporation that constitute
Excess Shares
for purposes of this
Article
Five
shall be those shares that have been acquired by or become
beneficially owned by Non-U.S. Citizens, starting with the most recent
acquisition of beneficial ownership of such shares by a Non-U.S. Citizen and
including, in reverse chronological order of acquisition, all other
acquisitions of beneficial ownership of such shares by Non-U.S. Citizens from
and after the acquisition of beneficial ownership of such shares by a Non-U.S.
Citizen that first caused such Permitted Percentage to be exceeded;
provided
that
, (i) the Corporation shall have the sole power to
determine, in the exercise of its reasonable judgment, those shares of such
class or series that constitute Excess Shares in accordance with the provisions
of this
Article Five
; (ii) the Corporation may, in its reasonable
discretion, rely on any reasonable documentation provided by Non-U.S. Citizens
with respect to the date of their acquisition of beneficial ownership of Excess
Shares; (iii) if the acquisition of beneficial ownership of more than one
Excess Share occurs on the same date, then the order in which such acquisitions
shall be deemed to have occurred on such date shall be determined by lot or
such shares shall be treated as Excess Shares on a pro rata basis as the
Corporation may, in its reasonable discretion, deem appropriate; (iv) Excess
Shares that result from a determination that a beneficial owner has ceased to
be a U.S. Citizen will be deemed to have been acquired, for purposes of this
Article
Five
, as of the date that such beneficial owner ceased to be a U.S.
Citizen; and (v) the Corporation may adjust upward to the nearest whole share
the number of shares of such class or series deemed to be Excess Shares. Any
determination made by the Corporation pursuant to this
Section 4
as to
which shares of any class or series of the Corporations capital stock
constitute Excess Shares of such class or series shall be conclusive and shall
be deemed effective as of the applicable Excess Share Date for such class or
series.
Section 5.
Additional Remedies for
Exceeding Permitted Percentage
. In the event that (i)
Section 3(a)
of this
Article Five
would not be effective for any reason to prevent
the transfer (a
Proposed Transfer
) of
beneficial ownership of any Excess Share of any class or series of the capital
stock of the Corporation to a Non-U.S. Citizen (a
Proposed Transferee
),
(ii) a change in the status (a
Status
Change
) of a U.S. Citizen to a Non-U.S. Citizen (a
Disqualified
Person
) causes a share of any class or series of capital stock of the
Corporation of which such U.S. Citizen is the beneficial owner immediately
prior to such change to constitute an Excess Share,
5
or (iii) the original issuance by the
Corporation of a share of any class or series of capital stock of the
Corporation to a Non-U.S. Citizen (a
Disqualified
Recipient
) that results in such share constituting an Excess Share, then,
effective as of immediately before the consummation of such Proposed Transfer (in
the case of such Proposed Transferee) or such Status Change (in the case of
such Disqualified Person), and as of the time of issuance of such Excess Share
(in the case of such Disqualified Recipient), such Excess Share shall to the
fullest extent permitted by law be eligible for redemption by the Corporation
in accordance with
Section 6
of this
Article Five
, and such
Non-U.S. Citizen (each, a
Restricted
Person
) shall neither acquire nor have any rights or interests in such
Excess Share subject to redemption.
Section 6.
Redemption
.
(a)
Without limiting
the generality of the foregoing, in the event that the restrictions on transfer
set forth in
Section 3(a)
would not be effective for any reason
whatsoever (whether in the determination of the Corporation or otherwise) in
order to, or the Corporation otherwise determines in its sole discretion that
the best manner for the Corporation to, prevent the beneficial ownership by
Non-U.S. Citizens of shares of the class or series of capital stock of the
Corporation from exceeding the Permitted Percentage for such class or series,
then the Corporation, by action of the Board, in its sole discretion, shall
have the power to redeem such Excess Share, unless such redemption is not
permitted under the DGCL or other provisions of applicable law;
provided
that
the
Corporation shall not have any obligation under this
Section 6
to redeem
any one or more Excess Shares.
(b)
Until such time
as any Excess Shares subject to redemption by the Corporation pursuant to this
Section
6
are so redeemed by the Corporation at its option and beginning on the
first Excess Share Date for the classes or series of the Corporations capital
stock of which such Excess Shares are a part, (i) the holders of such Excess
Shares subject to redemption shall to the fullest extent permitted by law (so
long as such excess exists) not be entitled to any voting rights with respect
to such Excess Shares, and (ii)
the
Corporation shall (so long as such Excess Shares exist) pay into an escrow
account dividends and any other distributions (upon liquidation or otherwise)
in respect of such Excess Shares.
Full voting rights shall be restored to any shares of a class or series
of capital stock of the Corporation that were previously deemed to be Excess
Shares, and any dividends or distributions with respect thereto that have been
previously paid into an escrow account shall be due and paid solely to the
holders of record of such shares, promptly after such time as, and to the
extent that, such shares have ceased to be Excess Shares (including as a result
of the sale of such shares to a U.S. Citizen prior to the issuance of a
Redemption Notice pursuant to
Section 6(c)(iii)
of this
Article Five
);
provided
that such shares have not been already redeemed by the
Corporation at its option pursuant to this
Section 6
.
(c)
The terms and
conditions of redemptions by the Corporation of Excess Shares of any class or
series of the Corporations capital stock under this
Section 6
shall be
as follows:
(i)
the
per share redemption price (the
Redemption
Price
) to be paid for each Excess Share shall be the sum of (A) the Fair
Market Value of such Excess Share as of the date
6
of redemption of such Excess Share plus (B)
an amount equal to the amount of any dividend or any other distribution (upon
liquidation or otherwise) declared in respect of such Excess Share prior to the
date on which such Excess Share is called for redemption and which amount has
been paid into an escrow account by the Corporation pursuant to
Section 6(b)
of this
Article Five
;
(ii) the Redemption Price shall be paid in cash (by wire
transfer or bank or cashiers check) or by the issuance of Redemption Notes, as
determined by the Board in its sole discretion;
(iii)
written
notice of the date on which the Excess Shares shall be redeemed (the
Redemption Date
), together with
a letter of transmittal to accompany certificates representing the Excess
Shares that are surrendered for redemption (if any), shall be given either by
hand delivery or by overnight courier service or by first-class mail, postage
prepaid, to each holder of record of the Excess Shares to be redeemed, at such
holders last known address as the same appears on the stock register of the
Corporation (unless such notice is waived in writing by any such holders) (the
Redemption Notice
);
(iv) the Redemption Date (for purposes of determining right,
title and interest in and to the Excess Shares to be redeemed) shall be the
later of (A) the date specified in the Redemption Notice sent to the record
holders of the Excess Shares (which shall not be earlier than the date of such
notice), and (B) the date on which the Corporation shall have irrevocably
deposited or set aside a sum sufficient to pay the Redemption Price to such
record holders or the date on which the Corporation shall have paid the
Redemption Price (including, without limitation, the delivery of any applicable
Redemption Notes) to such record holders;
(v)
each
Redemption Notice to each holder of record of the Excess Shares to be redeemed
shall specify (A) the Redemption Date (as determined pursuant to
Section
6(c)(iv)
of this Article Five)), (B) the number and the class or series of
shares of capital stock to be redeemed from such holder as Excess Shares (and,
to the extent such Excess Shares are certificated, the certificate number(s)
representing such Excess Shares), (C) the Redemption Price and the manner of
payment thereof, (D) the place where certificates for such Excess Shares (if
such Excess Shares are certificated) are to be surrendered for cancellation
against the simultaneous payment of the Redemption Price, (E) any instructions
as to the endorsement or assignment for transfer of such certificates (if any)
and the completion of the accompanying letter of transmittal, and (F) the fact
that all right, title and interest in respect of the Excess Shares to be
redeemed (including, without limitation, voting, dividend and distribution
rights) shall cease and terminate on the Redemption Date, except for the right
to receive the Redemption Price, without interest;
(vi) if a Redemption Notice has been duly sent to the record
holders of the Excess Shares to be redeemed and the Corporation has irrevocably
deposited or set aside cash consideration sufficient to pay the Redemption
Price to such record holders of such Excess Shares, then dividends shall cease
to accrue on all such Excess Shares to be redeemed, all such Excess Shares
shall no longer be deemed outstanding and all right, title and interest in
respect of such Excess Shares shall forthwith cease and terminate, except only
the right of the record holders thereof to receive the Redemption Price,
without interest;
7
(vii)
without
limiting clause (vi) above, on and after the Redemption Date, all right, title
and interest in respect of the Excess Shares to be redeemed by the Corporation
(including, without limitation, voting and dividend and distribution rights)
shall forthwith cease and terminate, such Excess Shares shall no longer be
deemed to be outstanding shares for the purpose of voting or determining the
total number of shares entitled to vote on any matter properly brought before
the stockholders for a vote thereon (and may be either retired or held by the
Corporation as treasury stock), and the holders of record of such Excess Shares
shall thereafter be entitled only to receive the Redemption Price, without
interest; and
(viii) upon
surrender of the certificates (if any) for any Excess Shares so redeemed in
accordance with the requirements of the Redemption Notice and the accompanying
letter of transmittal (and otherwise in proper from for transfer as specified
in the Redemption Notice) the holder of record of such Excess Shares shall be
entitled to payment of the Redemption Price. In case fewer than all the shares
represented by any such certificate are redeemed, a new certificate (or
certificates), to the extent such shares were certificated, shall be issued
representing the shares not redeemed, without cost to the holder of record.
Section 7.
Citizenship
Determinations
. The Corporation shall have the power to determine, in the
exercise of its reasonable judgment, the citizenship of the beneficial owners
of any class or series of the Corporations capital stock for the purposes of
this
Article Five
. In determining the citizenship of the beneficial owners
or their transferees or, in the case of original issuance, any recipient (and,
if such transferees or recipients are acting as fiduciaries or nominees for any beneficial owners, with respect to
such beneficial owners) of any class or series of the Corporations capital
stock, the Corporation may rely on the stock transfer records of the
Corporation and the citizenship certifications required under
Section 3(b)
of this
Article Five
and the written statements and affidavits required
under
Section 8
of this
Article Five
given by the beneficial
owners or their transferees, or, in the case of original issuance, any
recipients (or any beneficial owners for whom such transferees or recipients
are acting as fiduciaries or nominees) (in each case whether such certifications,
written statements or affidavits have been given on their own behalf or on
behalf of others) to prove the citizenship of such beneficial owners,
transferees or recipients (or any beneficial owners for whom such transferees
or recipients are acting as fiduciaries or nominees). The determination of the
citizenship of such beneficial owners, transferees and recipients (and any
beneficial owners for whom such transferees or recipients are acting as
fiduciaries or nominees) may also be subject to proof in such other manner as
the Corporation may deem reasonable pursuant to
Section 8(b)
of this
Article
Five
. The determination of the Corporation at any time as to the
citizenship of such beneficial owners, transferees and recipients (and any
beneficial owners for whom such transferees or recipients are acting as
fiduciaries or nominees) in accordance with the provisions of
Article Five
shall be conclusive.
Section 8.
Requirement to
Provide Citizenship Information
.
(a)
In furtherance of the policy set forth
in
Section 1
of this
Article Five
, and without limiting any other
provision of this
Article Five
, the Corporation may, to the fullest
extent permitted by law, require the beneficial owners of shares of any class
or series of the Corporations capital stock to confirm their citizenship
status from time to time in accordance
8
with the
provisions of this
Section 8
, and, as a condition to acquiring and
having beneficial ownership of shares of any class or series of capital stock
of the Corporation, every beneficial owner of any such shares must comply with
the following provisions:
(i)
promptly upon
a beneficial owners acquisition of beneficial ownership of five (5%) percent
or more of the outstanding shares of any class or series of capital stock of
the Corporation after the date of filing of this Amended and Restated
Certificate of Incorporation, and at such other times as the Corporation may
determine by written notice to such beneficial owner, such beneficial owner
must provide to the Corporation a written statement or an affidavit, as
specified by the Corporation, duly signed, stating the name and address of such
beneficial owner, the number of shares of each class or series of capital stock
of the Corporation beneficially owned by such beneficial owner as of a recent
date, the legal structure of such beneficial owner, a statement as to whether
such beneficial owner is a U.S. Citizen, and such other information required by
46 C.F.R. part 355;
(ii) promptly
upon request by the Corporation, any beneficial owner must provide to the
Corporation a written statement or an affidavit, as specified by the
Corporation, duly signed, stating the name and address of such beneficial
owner, the number of shares of each class or series of capital stock of the
Corporation beneficially owned by such beneficial owner as of a recent date,
the legal structure of such beneficial owner, a statement as to whether such
beneficial owner is a U.S. Citizen, and such other information required by 46
C.F.R. part 355;
(iii)
promptly upon
request by the Corporation, any beneficial owner must provide to the
Corporation a written statement or an affidavit, as specified by the
Corporation, duly signed, stating the name and address of such beneficial
owner, together with reasonable documentation of the date and time of such
beneficial owners acquisition of beneficial ownership of the shares of any
class or series of capital stock of the Corporation specified by the
Corporation in its request;
(iv) every
beneficial owner must provide, or authorize such beneficial owners broker,
dealer, custodian, depositary, nominee or similar agent with respect to the
shares of each class or series of the Corporations capital stock beneficially
owned by such beneficial owner to provide, to the Corporation such beneficial
owners address; and
(v)
every
beneficial owner must provide to the Corporation, at any time such beneficial
owner ceases to be a U.S. Citizen, as promptly as practicable but in no event
less than two business days after the date such beneficial owner ceases to be a
U.S. Citizen, a written statement, duly signed, stating the name and address of
such beneficial owner, the number of shares of each class or series of capital
stock of the Corporation beneficially owned by such beneficial owner as of a
recent date, the legal structure of such beneficial owner, and a statement as
to such change in status of such beneficial owner to a Non-U.S. Citizen.
(b)
The Corporation may at any time
require reasonable proof, in addition to the citizenship certifications
required under
Section 3(b)
of this
Article Five
and the written
statements and affidavits required under
Section 8(a)
of this
Article
Five
, of the citizenship of the beneficial owner or the proposed transferee
or, in the case of original issuance, the recipient (and,
9
if such
transferee or recipient is acting as a fiduciary or nominee for a beneficial
owner, with respect to such beneficial owner) of shares of any class or series
of the Corporations capital stock.
(c) In the event that (i)
the Corporation requests in writing (in which express reference is made to this
Section 8
of this
Article Five
) from a beneficial owner of shares
of any class or series of the Corporations capital stock a citizenship
certification required under
Section 3(b)
of this
Article Five
, a
written statement, an affidavit and/or reasonable documentation required under
Section
8(a)
of this
Article Five
, and/or additional proof of citizenship
required under
Section 8(b)
of this
Article Five
, and (ii) such
beneficial owner fails to provide the Corporation with the requested
documentation by the date set forth in such written request, then (x) the
voting rights of such beneficial owners shares of the Corporations capital
stock shall, to the fullest extent permitted by law, be suspended, and (y) any
dividends or other distributions (upon liquidation or otherwise) with respect
to such shares shall be paid into an escrow account, until such requested
documentation is submitted in form and substance reasonably satisfactory to the
Corporation, subject to the other provisions of this
Article Five
;
provided
,
however
, that the Corporation, acting through its
Board, shall have the power, in its sole discretion, to extend the date by
which such requested documentation must be provided and/or to waive the
application of sub-clauses (x) and/or (y) of this clause (ii) to any of the
shares of such beneficial owner in any particular instance.
(d)
In the event that (i) the
Corporation requests in writing (in which express reference is made to this
Section
8
of this
Article Five
) from a beneficial owner of, or the proposed
transferee of, or, in the case of original issuance, the recipient (and, if
such transferee or recipient is acting as a fiduciary or nominee for a
beneficial owner, with respect to such beneficial owner) of, shares of any
class or series of the Corporations capital stock a citizenship certification
required under
Section 3(b)
of this
Article Five
, a written
statement, an affidavit and/or reasonable documentation required under
Section
8(a)
of this
Article Five
, and/or additional proof of citizenship
required under
Section 8(b)
of this
Article Five
, and (ii) such
Person fails to submit the requested documentation in form and substance
reasonably satisfactory to the Corporation, subject to the other provisions of
this
Article Five
, by the date set forth in such written request, the
Corporation, acting through its Board, shall have the power, in its sole
discretion, to refuse to accept any application to transfer ownership of such
shares (if any) or to register such shares on the stock transfer records of the
Corporation, until such requested documentation is so submitted.
Section 9.
Severability
.
Each provision of this
Article Five
is intended to be severable from
every other provision. If any one or more of the provisions contained in this
Article
Five
is held to be invalid, illegal or unenforceable, the validity,
legality or enforceability of any other provision of this
Article Five
shall not be affected, and this
Article Five
shall be construed as if
the provisions held to be invalid, illegal or unenforceable had never been
contained herein.
Section 10.
NASDAQ
Transactions
. Nothing in this
Article Five
shall preclude the
settlement of any transaction entered into through the facilities of
The Nasdaq Stock Market or any other
National Securities Exchange for so long as any class or series of the capital
stock of the Corporation is quoted for trading on The Nasdaq Stock Market or listed for trading on any
10
other National Securities Exchange.
The fact that the settlement of any transaction occurs shall not negate
the effect of any provision of this
Article Five
and any transferee in
such a transaction shall be subject to all of the provisions and limitations
set forth in this
Article Five
.
Section 11.
Certain
Definitions
. Solely for purposes of this
Article Five
, the following
terms shall have the meanings ascribed below:
A
Person shall be deemed to be the
beneficial
owner
of, or to
beneficially
own
, or to have
beneficial
ownership
of, shares or interests in an entity to the extent such Person
would be deemed to be the
beneficial owner
thereof pursuant to Rule
13d-3 promulgated by the Securities and Exchange Commission under the Exchange
Act, as such rule may be amended or supplemented from time to time, and any
successor rule to such rule, and such terms shall apply to and include the
holder of record of any such shares or interests.
Code
shall mean the Internal Revenue Code of 1986, as amended, any successor
statutes thereto, and the regulations promulgated thereunder, in each case as
amended or supplemented from time to time.
Disqualified Person
shall have the meaning
ascribed to such term in
Section 5(a)
of this
Article Five
.
Disqualified Recipient
shall have the meaning
ascribed to such term in
Section 5(a)
of this
Article Five
.
Excess Shares
shall have the meaning
ascribed to such term in
Section 4
of this
Article Five
.
Excess Share Date
shall have the meaning
ascribed to such term in
Section 4
of this
Article Five
.
Exchange Act
shall mean the Securities
Exchange Act of 1934, as amended or supplemented from time to time.
Fair Market Value
of one share of a
particular class or series of the capital stock of the Corporation as of any
date shall mean the average of the daily Market Price (as defined herein) of
one share of such capital stock for the 20 consecutive Trading Days (as defined
herein) immediately preceding such date, or, if such capital stock is not
listed or admitted for unlisted trading privileges on any National Securities
Exchange, the fair value of a share of such class or series of capital stock on
such date as determined in good faith by the Board.
Maritime Laws
shall mean collectively the
Merchant Marine Act, 1920, as amended, the Shipping Act, 1916, as amended, 46
U.S.C. app.
§
292 and any
other statute regulating or authorizing dredging in the navigable waters of the
United States and any successor statutes thereto, and the regulations
promulgated thereunder, in each case as amended or supplemented from time to
time.
11
The
Market
Price
of a share of a class or series of capital stock of the Corporation
for a particular day shall mean: (A) the last reported sales price, regular
way, on such day, or, in case no sale takes place on such day, the average of
the reported closing bid and asked prices, regular way, on such day, in either
case as reported in the principal consolidated transaction reporting system
with respect to securities listed or admitted for unlisted trading privileges
on the principal National Securities Exchange on which such class or series of
capital stock is then listed or admitted for unlisted trading privileges; or
(B) if such class or series of capital stock is not then listed or admitted for
unlisted trading privileges on any National Securities Exchange, the last
quoted price on such day, or, if not so quoted, the average of the closing bid
and asked prices on such day in the over-the-counter market, as reported by The
Nasdaq Stock Market or such other system then in use; or (C) if on any such day
such class or series of capital stock is not quoted by any such organization,
the average of the bid and asked prices on such day as furnished by a
professional market maker making a market in such capital stock selected by the
Corporation; or (D) if on any such day no market maker is making a market in
such capital stock, the fair value of a share of such class or series of
capital stock on such day as determined in good faith by the Board (or a duly
authorized committee thereof).
National Securities Exchange
shall mean an
exchange registered with the Securities and Exchange Commission under Section
6(a) of the Exchange Act, as such section may be amended or supplemented from
time to time, and any successor to such statute, or The Nasdaq Stock Market or
any successor thereto.
Non-U.S. Citizen
shall mean any Person other
than a U.S. Citizen.
Permitted Percentage
shall mean, with
respect to any class or series of capital stock of the Corporation, the lesser
of (i) 22.5% of the shares of such class or series of capital stock of the
Corporation from time to time issued and outstanding, and (ii) 90% of the
maximum percentage of the issued and outstanding shares of such class or series
of capital stock of the Corporation permitted to be beneficially owned, individually
or in the aggregate, by Non-U.S. Citizens under the Maritime Laws so that the
Corporation does not cease to be qualified under the Maritime Laws to own and
operate vessels that may engage in dredging in the navigable waters of the
United States and to
transport dredged material between points in the
United States
.
Proposed Transfer
shall have the meaning
ascribed to such term in
Section 5(a)
of this
Article Five
.
Proposed Transferee
shall have the meaning
ascribed to such term in
Section 5(a)
of this
Article Five
.
Redemption Date
shall have the meaning
ascribed to such term in
Section 6(c)(iii)
of this
Article Five
.
Redemption Notes
shall mean interest-bearing
promissory notes of the Corporation with a maturity of not more than 10 years
from the date of issue and bearing interest at a fixed rate equal to the yield
on the U.S. Treasury Note having a maturity comparable to the
12
term of such promissory notes as published in
The Wall Street Journal
or comparable publication at the
time of the issuance of the promissory notes.
Redemption Notice
shall have the meaning
ascribed to such term in
Section 6(c)(iii)
of this
Article Five
.
Redemption Price
shall have the meaning
ascribed to such term in
Section 6(c)(i)
of this
Article Five
.
Restricted Person
shall have the meaning
ascribed to such term in
Section 5(a)
of this
Article Five
.
Status Change
shall have the meaning
ascribed to such term in
Section 5(a)
of this
Article Five
.
Trading Day
shall mean a day on which the
principal National Securities Exchange on which shares of any class or series
of the capital stock of the Corporation are listed is open for the transaction
of business or, if such capital stock is not listed or admitted for unlisted
trading privileges on any National Securities Exchange, a day on which banking
institutions in New York City generally are open.
U.S.
Citizen
shall mean a citizen of the United States within the meaning of
the Maritime Laws (as defined herein) for purposes of owning or operating
vessels in the U.S. coastwise trade.
ARTICLE
SIX
BOARD
OF DIRECTORS
Section 1.
Number
of Directors
. Subject to any rights
of the holders of any class or series of Preferred Stock to elect additional
directors under specified circumstances and subject to the terms of the Investor
Rights Agreement, the number of directors which shall constitute the Board of
Directors shall initially be eight (8) members and thereafter shall be
established from time to time by resolution of the Board. When used herein, the
Investor Rights Agreement
means that certain Investor Rights Agreement, dated on or about December 26,
2006, by and among Aldabra Acquisition Corporation (and assigned to, and
assumed by, the Corporation in connection of the merger of Aldabra Acquisition
Corporation with and into a subsidiary of the Corporation) and certain of its
stockholders, as the same may be amended, modified,
13
supplemented or waived from time to time; a copy of such Investor
Rights Agreement shall be made available to any stockholder upon request.
Section 2.
Election
and Term of Office
. The directors
shall be elected by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote in the election of
directors;
provided
that
, whenever the holders of any class or
series of capital stock of the Corporation are entitled to elect one or more
directors pursuant to the provisions of this Amended and Restated Certificate
of Incorporation (including, but not limited to, any duly authorized
certificate of designation), such directors shall be elected by a plurality of
the votes of such class or series present in person or represented by proxy at
the meeting and entitled to vote in the election of such directors. The directors shall be elected and shall hold
office only in this manner, except as expressly provided in
Sections 2
,
3
and
4
of this
Article Seven
.
Each director shall hold office until a successor is duly elected and
qualified or until his or her earlier death, disqualification, resignation or removal. Elections of directors need not be by written
ballot unless the Bylaws of the Corporation shall so provide. No Non-U.S. Citizen shall be qualified to
serve as a director unless the total number of directors who are Non-U.S.
Citizens equals a minority of the minimum number of directors necessary to
achieve a quorum.
Section 3.
Classes
of Directors
. The directors shall be
divided into three classes, designated Class I, Class II and Class III. The Board is hereby authorized to assign
members of the Board already in office to such classes at the time such
classification becomes effective by resolution of the Board. The term of the initial Class I directors
shall terminate on the date of the 2007 annual meeting; the term of the initial
Class II directors shall terminate on the date of the 2008 annual meeting; and
the term of the initial Class III directors shall termination on the date of
the 2009 annual meeting. At each
succeeding annual meeting of the stockholders, successors to the class of directors
whose term expires at that annual meeting shall be elected for a three-year
term. If the number of directors is
changed, any increase or decrease shall be apportioned among the classes so as
to maintain the number of directors in each class as nearly equal as possible,
and any additional director of any class elected to fill a vacancy resulting
from an increase in such class shall hold office for a term that shall coincide
with the remaining term of that class, but in no case will a decrease in the number
of directors shorten the term of any incumbent director. Notwithstanding anything in this Certifcate
of Incorporation or the Bylaws of the Corporation to the contrary, the term of
any director that, in accordance with this Amended and Restated Certificate of
Incorporation or the Bylaws of the Corporation, ceases to be qualified to serve
as a director of the Corporation shall automatically terminate as of the time
such director ceases to be qualified.
Section 4.
Removal
of Directors; Vacancies
. Subject to
the rights of the holders of any series of Preferred Stock then outstanding,
(a) as long as Madison Dearborn Capital Partners IV, L.P. (
MDCP IV
)
owns capital stock of the Corporation that possesses 25% or more of the voting
power of all capital stock of the Corporation entitled to vote generally in the
election of directors (voting together as a single class), any director may be
removed at any time for any reason upon the election of holders a majority of
the voting power of the capital stock of the Corporation entitled to vote
generally in the election of directors, and (b) from and after the date that
MDCP IV owns capital stock of the Corporation that possesses less than 25% of
the voting power of all capital stock of the Corporation entitled to vote
generally in the election of directors
14
(voting together as a single class), any director may be removed from
office at any time, but only for cause, at a meeting called for that purpose,
but only by the affirmative vote of the holders of at least 66-2/3%
of the voting power of all outstanding shares of Common
Stock entitled to vote at an election of directors, voting together as a single
class. Vacancies and newly created
directorships resulting from any increase in the authorized number of directors
and vacancies created from the death, disqualification, resignation or removal
of any director shall be filled shall be filled by directors possessing a
majority of the voting power of all directors.
Section 5.
Rights
of Holders of Preferred Stock
. Notwithstanding
the provisions of this
Article Seven
, whenever the holders of one or
more series of Preferred Stock issued by the Corporation shall have the right,
voting separately or together by series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorship shall be governed by the
rights of such Preferred Stock as set forth in the certificate of designations
governing such series.
Section 6.
Bylaws
. The Board of Directors is expressly
authorized to adopt, amend or repeal the bylaws of the Corporation. Notwithstanding the foregoing and anything
contained in this Amended and Restated Certificate of Incorporation to the
contrary, the bylaws of the Corporation shall not be altered or amended by the
stockholders without the affirmative vote of (a) as long as MDCP IV owns 25% or
more of all capital stock of the Corporation entitled to vote generally in the
election of directors (voting together as a single class), the holders of a
majority of the voting power of all capital stock of the Corporation entitled
to vote generally in the election of directors and (b) from and after the date
that MDCP IV owns less than 25% of the capital stock of the Corporation entitled
to vote generally in the election of directors (voting together as a single
class), the holders of 66-2/3% of the voting power of all capital stock
of the Corporation entitled to vote generally in the election of directors
(voting together as a single class).
Section 7.
Directors
with More Than One Vote
. As long as
MDCP IV owns capital stock of the Corporation that possesses 50% or more of the
voting power of all capital stock of the Corporation entitled to vote generally
in the election of directors (voting together as a single class), MDCP IV may,
by written notice to the Corporation made within 20 business days after
election of any director to the Board (including, without limitation, any
director elected as a replacement of a director that previously had more than
one vote in matters submitted to directors), designate up to two directors of
the Corporation, each of whom must be a U.S. Citizen, to have four (4) votes in
each matter submitted to directors of the Corporation for vote and each such
director so designated by MDCP IV shall thereafter have four (4) votes in
matters submitted to the Corporation for vote until such directors removal or
resignation from the Board.
Notwithstanding the foregoing, in the event any director is so
designated, such director shall continue to retain the right to four (4) votes
in each matter submitted to directors of the Corporation upon re-election
unless and until MDCP IV shall have notified the Corporation to the contrary in
writing. Any director designated as having
four (4) votes in each matter submitted to the directors shall have four (4)
votes in each matter submitted to any committee on which such director
serves. Every reference in this Amended
and Restated Certificate of Incorporation or the Bylaws of the Corporation to a
majority or other proportion of the directors
15
or committee members shall refer to a majority or other proportion of
the votes of the directors or committee members, as applicable.
ARTICLE
EIGHT
LIMITATION OF LIABILITY
To the fullest extent permitted by the DGCL as it now
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 permitted prior thereto), no director of
the Corporation shall be liable to the Corporation or its stockholders for
monetary damages arising from a breach of fiduciary duty owed to the
Corporation or its stockholders. Any
repeal or modification of the foregoing paragraph by the stockholders of the
Corporation shall not adversely affect any right or protection of a director of
the Corporation existing at the time of such repeal or modification.
ARTICLE
NINE
INDEMNIFICATION
Section 1.
Right to Indemnification
. Each person who was or is made a party or is
threatened to be made a party to or is involved (including, without limitation,
as a witness) in any actual or threatened action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a proceeding),
by reason of the fact that he is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a
director or officer of another corporation or of a partnership, limited
liability company, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan (hereinafter an Indemnitee), whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer or in any other capacity while so serving, shall be
indemnified and held harmless by the Corporation to the full extent authorized
by the DGCL, 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), or by other applicable law
as then in effect, against all expense, liability and loss (including attorneys
fees and related disbursements, judgments, fines, excise taxes or penalties
under the Employee Retirement Income Security Act of 1974, as amended from time
to time (
ERISA
), penalties and amounts paid or to be paid in
settlement) actually and reasonably incurred or suffered by such Indemnitee in
connection therewith, and such indemnification shall continue as to a person
who has ceased to be a director, officer, partner, member or trustee and shall
inure to the benefit of his or her heirs, executors and administrators. Each person who is or was serving as a
director or officer of a subsidiary of the Corporation shall be deemed to be
serving, or have served, at the request of the Corporation. Any indemnification (but not advancement of
expenses) under this
Article Nine
(unless ordered by a court) shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in the
circumstances because he or she has met the applicable standard of conduct set
forth in the DGCL, as the same exists or hereafter may be amended (but, in the
case of any such amendment, only to the extent
16
that such
amendment permits the Corporation to provide broader indemnification rights
than said law permitted the Corporation to provide prior to such
amendment). Such determination shall be
made with respect to a person who is a director or officer at the time of such
determination (a) by a majority vote of the directors who were not parties to
such proceeding (the
Disinterested Directors
), even though less than a
quorum, (b) by a committee of Disinterested Directors designated by a majority
vote of Disinterested Directors, even though less than a quorum, (c) if there
are no such Disinterested Directors, or if such Disinterested Directors so direct,
by independent legal counsel in a written opinion, or (d) by the
stockholders. Notwithstanding anything
in this
Article Nine
to the contrary, in no event shall the Corporation
have any obligation to indemnify a director or officer of the Corporation for
any proceeding initiated by such person seeking indemnification unless such
proceeding either (i) is a proceeding to enforce such directors or officers
rights under this
Article Nine
or (ii) was authorized by the Board.
Section 2.
Advancement of Expenses
. Expenses (including attorneys fees, costs
and charges) incurred by a director or officer of the Corporation in defending
a proceeding shall be paid by the Corporation in advance of the final
disposition of such proceeding upon receipt of an undertaking by or on behalf
of the director or officer to repay all amounts so advanced in the event that
it shall ultimately be determined that such director or officer is not entitled
to be indemnified by the Corporation as authorized in this
Article Nine
. The majority of the Disinterested Directors
or a committee thereof may, in the manner set forth above, and upon approval of
such director or officer of the Corporation, authorize the Corporations
counsel to represent such person, in any proceeding, whether or not the
Corporation is a party to such proceeding.
Section 3.
Procedure for Indemnification
. Any indemnification or advance of expenses
(including attorneys fees, costs and charges) under this
Article Nine
shall be made promptly, and in any event within 30 days upon the written
request of the director or officer (and, in the case of advance of expenses,
receipt of a written undertaking by or on behalf of Indemnitee to repay such
amount if it shall ultimately be determined that Indemnitee is not entitled to
be indemnified therefor pursuant to the terms of this
Article Nine
). The right to indemnification or advances as
granted by this
Article Nine
shall be enforceable by the director or
officer in any court of competent jurisdiction, if the Corporation denies such
request, in whole or in part, or if no disposition thereof is made within 30
days. Such persons costs and expenses
incurred in connection with successfully establishing his/her right to
indemnification, in whole or in part, in any such action shall also be
indemnified by the Corporation. It shall
be a defense to any such action (other than an action brought to enforce a
claim for the advance of expenses (including attorneys fees, costs and
charges) under this
Article Nine
where the required undertaking, if any,
has been received by the Corporation) that the claimant has not met the
standard of conduct set forth in the DGCL, as the same exists or hereafter may
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), but the burden of proving such defense shall be on the
Corporation. Neither the failure of the
Corporation (including its Board of Directors, its independent legal counsel
and 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/she has met the applicable standard of conduct set forth in the
DGCL, as the same exists or hereafter may be
17
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), nor the fact that there has been an actual determination by
the Corporation (including its Board of Directors, its independent legal
counsel and 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.
Section 4.
Other Rights; Continuation of Right to
Indemnification
. The indemnification
and advancement of expenses provided by this
Article Nine
shall not be
deemed exclusive of any other rights to which a person seeking indemnification
or advancement of expenses may be entitled under any law (common or statutory),
bylaw, agreement, vote of stockholders or Disinterested Directors or otherwise,
both as to action in his/her official capacity and as to action in another
capacity while holding office or while employed by or acting as agent for the
Corporation, and shall continue as to a person who has ceased to be a director
or officer, and shall inure to the benefit of the estate, heirs, executors and
administers of such person. All rights
to indemnification under this
Article Nine
shall be deemed to be a
contract between the Corporation and each director or officer of the
Corporation who serves or served in such capacity at any time while this
Article
Nine
is in effect. Any repeal or
modification of this
Article Nine
or any repeal or modification of
relevant provisions of the DGCL or any other applicable laws shall not in any
way diminish any rights to indemnification of such director or officer or the
obligations of the Corporation arising hereunder with respect to any proceeding
arising out of, or relating to, any actions, transactions or facts occurring
prior to the final adoption of such modification or repeal. For the purposes of this
Article Nine
,
references to the Corporation include all constituent corporations absorbed
in a consolidation or merger as well as the resulting or surviving corporation,
so that any person who is or was a director or officer of such a constituent
corporation or is or was serving at the request of such constituent corporation
as a director or officer of another corporation, partnership, joint venture,
trust or other enterprise shall stand in the same position under the provisions
of this
Article Nine
, with respect to the resulting or surviving
corporation, as he would if he/she had served the resulting or surviving
corporation in the same capacity.
Section 5.
Insurance
. The Corporation may purchase and maintain
insurance on its own behalf and on behalf of any person who is or was a
director, officer, employee or agent of the Corporation or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss asserted against him or her and incurred by him or
her in any such capacity, whether or not the Corporation would have the power
to indemnify such person against such expenses, liability or loss under the
DGCL.
Section 6.
Reliance
. Persons who after the date of the adoption of
this provision become or remain directors or officers of the Corporation or
who, while a director or officer of the Corporation, become or remain a
director, officer, employee or agent of a subsidiary, shall be conclusively
presumed to have relied on the rights to indemnity, advance of expenses and
other rights contained in this
Article Nine
in entering into or
continuing such service. The rights to
indemnification and to the advance of expenses conferred in this
Article
Nine
shall apply to
18
claims made against an Indemnitee arising out
of acts or omissions which occurred or occur both prior and subsequent to the
adoption hereof.
Section 7.
Savings Clause
. If this
Article Nine
or any portion
hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each person
entitled to indemnification under the first paragraph of this
Article Nine
as to all expense, liability and loss (including attorneys fees and related
disbursements, judgments, fines, ERISA excise taxes and penalties, penalties
and amounts paid or to be paid in settlement) actually and reasonably incurred
or suffered by such person and for which indemnification is available to such
person pursuant to this
Article Nine
to the full extent permitted by any
applicable portion of this
Article Nine
that shall not have been
invalidated and to the full extent permitted by applicable law.
ARTICLE
TEN
ACTION BY WRITTEN CONSENT;
SPECIAL MEETINGS OF STOCKHOLDERS
The stockholders of the Corporation may not take any
action by written consent in lieu of a meeting, and must take any actions at a
duly called annual or special meeting of stockholders and the power of
stockholders to consent in writing without a meeting is specifically denied.
Special meetings of stockholders of the Corporation may be called only by the
Board of Directors pursuant to a resolution adopted by the affirmative vote of
directors holding a majority of the voting power of all directors then in
office;
provided
that, as long as MDCP IV owns capital stock of the
corporation possessing 25% or more of the capital stock of the corporation
entitled to vote generally in the election of directors (voting together as a
single class), a special meeting shall be called by the president upon the
written request of holders of shares entitled to cast not less than twenty-five
(25) percent of the votes at the meeting.
Notwithstanding the foregoing, the provisions of the first sentence of
this
Article Ten
shall not apply at any time when the Corporations
Common Stock is not registered under Section 12 of the Securities Exchange
Act of 1934, as amended, or when MDCP IV beneficially owns, capital stock of
the Corporation that possesses 25% or more of the voting power of all capital
stock of the Corporation entitled to vote generally in the election of
directors (voting together as a single class).
ARTICLE
ELEVEN
CORPORATE OPPORTUNITIES
To the maximum extent permitted from time to time
under the laws of the State of Delaware, the Corporation renounces any interest
or expectancy of the Corporation in, or in being offered an opportunity to
participate in, business opportunities that are from time to time presented to
its officers, directors or stockholders, other than those officers, directors
or stockholders who are employees of the Corporation or any of its
subsidiaries. No amendment or repeal of
this
Article Eleven
shall apply to or have any effect on the liability
or alleged liability of any officer, director or stockholder of the Corporation
for or with respect to any opportunities of which such officer, director, or
stockholder becomes aware prior to such amendment or repeal.
19
ARTICLE
TWELVE
SECTION 203
The Corporation expressly elects to be governed by
Section 203 of the DGCL.
ARTICLE
THIRTEEN
AMENDMENT
The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Amended and Restated
Certificate of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are granted subject
to this reservation. Notwithstanding any
other provision of this Amended and Restated Certificate of Incorporation or
the Bylaws of the Corporation, and notwithstanding the fact that a lesser
percentage or separate class vote may be specified by law, this Amended and
Restated Certificate of Incorporation, the Bylaws of the Corporation or
otherwise, but in addition to any affirmative vote of the holders of any
particular class or series of the capital stock required by law, this Amended
and Restated Certificate of Incorporation, the Bylaws of the Corporation or
otherwise, the affirmative vote of the holders of (i) at least 66-2/3% of the
voting power of all shares of the Corporation entitled to vote generally in the
election of directors, voting together as a single class, shall be required to
adopt any provision inconsistent with, to amend or repeal any provision of, or
to adopt a bylaw inconsistent with
Article Seven
,
Article Eight
,
Article
Nine
,
Article Ten
,
Article Eleven
or this
Article Thirteen
of this Amended and Restated Certificate of Incorporation or (ii) at least a majority
of the voting power of all shares of the Corporation entitled to vote generally
in the election of directors, voting together as a single class, shall be
required to adopt any provision inconsistent with, to amend or repeal any
provision of, or to adopt a bylaw inconsistent with any other provision of this
Amended and Restated Certificate of Incorporation.
* * * * * *
20