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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
MODTECH HOLDINGS, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
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ARTICLE I
NAME
The name of the corporation (the "Corporation") is:
Modtech Holdings, Inc.
ARTICLE II
REGISTERED OFFICE
The address of the Corporation's registered office in the State of
Delaware is Paracorp Incorporated, 15 East North Street, in the City of Dover,
County of Kent. The name of the Corporation's registered agent at such address
is Paracorp Incorporated.
ARTICLE III
POWERS
The purpose of the Corporation shall be to engage in any lawful act or
activity for which corporations may be organized and incorporated under the
General Corporation Law of the State of Delaware (the "GCL").
ARTICLE IV
CAPITAL STOCK
(a) The total number of shares of stock which the Corporation shall have
authority to issue is 30,000,000, consisting of 5,000,000 shares of preferred
stock, par value $0.01 per share ("Preferred Stock"), and 25,000,000 shares of
common stock, par value $0.01 per share ("Common Stock").
(b) The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby authorized to provide for the issuance
of shares of Preferred Stock in series and, by filing a certificate pursuant to
the applicable law of the State of Delaware ("Preferred Stock Designation"), to
establish from time to time the number of shares to be
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included in each such series, and to fix the designation, powers, preferences
and rights of the shares of each such series and the qualifications, limitations
and restrictions thereof. The authority of the Board of Directors with respect
to each series shall include, but not be limited to, determination of the
following:
(1) The designation of the series, which may be by distinguishing
number, letter or title.
(2) The number of shares of the series, which number the Board of
Directors may thereafter (except where otherwise provided in the
Preferred Stock Designation) increase or decrease (but not below the
number of shares thereof then outstanding).
(3) Whether dividends, if any, shall be cumulative or
noncumulative and the dividend rate of the series.
(4) The dates on which dividends, if any, shall be payable.
(5) The redemption rights and price or prices, if any, for
shares of the series.
(6) The terms and amount of any sinking fund provided for the
purchase or redemption of shares of the series.
(7) The amounts payable on, and the preferences, if any, of
shares of the series in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation.
(8) Whether the shares of the series shall be convertible into
shares of any other class or series, or any other security, of the
Corporation or any other corporation, and, if so, the specification of
such other class or series of such other security, the conversion price
or prices or rate or rates, any adjustments thereof, the date or dates
at which such shares shall be convertible and all other terms and
conditions upon which such conversion may be made.
(9) Restrictions on the issuance of shares of the same series or
of any other class or series.
(10) The voting rights, if any, of the holders of shares of the
series.
(c) The Common Stock shall be subject to the express terms of the
Preferred Stock and any series thereof. Each share of Common Stock shall be
equal to each other share of Common Stock. The holders of shares of Common Stock
shall be entitled to one vote for each such share upon all questions presented
to the stockholders.
Except as may be provided in this Certificate of Incorporation or in a
Preferred Stock Designation, or as may be required by law, the Common Stock
shall have the exclusive right to vote for the election of directors and for all
other purposes, and holders of Preferred Stock shall
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not be entitled to receive notice of any meeting of stockholders at which they
are not entitled to vote.
(d) The Corporation shall be entitled to treat the person in whose name
any share of its stock is registered as the owner thereof for all purposes and
shall not be bound to recognize any equitable or other claim to, or interest in,
such share on the part of any other person, whether or not the Corporation shall
have notice thereof, except as expressly provided by applicable law.
ARTICLE V
BYLAWS
In furtherance of, and not in limitation of, the powers conferred by
law, the Board of Directors is expressly authorized and empowered:
(1) to adopt, amend or repeal the By-laws of the Corporation;
provided, however, that the By-laws adopted by the Board of Directors
under the powers hereby conferred may be amended or repealed by the
Board of Directors or by the stockholders having voting power with
respect thereto, and
(2) from time to time to determine whether and to what extent,
and at what times and places, and under what conditions and regulations,
the accounts and books of the Corporation, or any of them, shall be open
to inspection of stockholders; and, except as so determined or as
expressly provided in this Certificate of Incorporation or in any
Preferred Stock Designation, no stockholder shall have any right to
inspect any account, book or document of the Corporation other than such
rights as may be conferred by applicable law.
The Corporation may in its By-laws confer powers upon the Board of
Directors in addition to the foregoing and in addition to the powers and
authorities expressly conferred upon the Board of Directors by applicable law.
ARTICLE VI
STOCKHOLDER MEETINGS
Subject to the rights of the holders of any series of Preferred Stock or
any other series or class of stock as set forth in this Certificate of
Incorporation to elect additional directors under specific circumstances, any
action required or permitted to be taken by the stockholders of the Corporation
must be effected at a duly called annual or special meeting of stockholders of
the Corporation and may not be effected by any consent in writing in lieu of a
meeting of such stockholders.
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ARTICLE VII
DIRECTORS
Subject to the rights of the holders of any series of Preferred Stock or
any other series or class of stock as set forth in this Certificate of
Incorporation to elect additional directors under specified circumstances, the
number of directors of the Corporation shall be fixed, and may be increased or
decreased from time to time, in such manner as may be prescribed by the By-laws
of the Corporation.
Unless and except to the extent that the By-laws of the Corporation
shall so require, the election of directors of the Corporation need not be by
written ballot.
Each director shall serve for a term ending on the date of the next
annual meeting; provided, that each director shall serve until his successor is
duly elected and qualified or until his death, resignation or removal.
Subject to the rights of the holders of any series of Preferred Stock or
any other series or class of stock as set forth in this Certificate of
Incorporation to elect additional directors under specified circumstances, any
director may be removed from office at any time by the stockholders, but only
for cause.
ARTICLE VIII
INDEMNIFICATION
Each person who is or was or has agreed to become a director or officer
of the Corporation, or each such person who is or was serving or who has agreed
to serve at the request of the Board of Directors or an officer of the
Corporation as an employee or agent of the Corporation or as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans (including the heirs, executors, administrators or estate of such person),
shall be indemnified by the Corporation, in accordance with the By-laws of the
Corporation, to the fullest extent permitted from time to time by the GCL 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 prior to such amendment)
or any other applicable laws as presently or hereafter in effect. Without
limiting the generality or the effect of the foregoing, the Corporation may
enter into one or more agreements with any person which provide for
indemnification greater than or different from that provided in this Article
VIII. Any amendment or repeal of this Article VIII shall not adversely affect
any right or protection existing hereunder in respect of any act or omission
occurring prior to such amendment or repeal.
ARTICLE IX
LIMITATION OF DIRECTORS' LIABILITY
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach or alleged
breach of fiduciary duty as a director, except for liability (1) for any breach
of the director's duty of loyalty to the Corporation or its
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stockholders, (2) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) under Section 174 of
the GCL, or (4) for any transaction from which the director derived an improper
personal benefit. Any amendment or repeal of this Article IX shall not adversely
affect any right or protection of a director of the Corporation existing
hereunder in respect of any act or omission occurring prior to such amendment or
repeal.
ARTICLE X
AMENDMENT
Except as may be expressly provided in this Certificate of
Incorporation, the Corporation reserves the right at any time and from time to
time to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation or a Preferred Stock Designation, and any other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted, in the manner now or hereafter prescribed herein or by
applicable law, and all rights, preferences and privileges of whatsoever nature
conferred upon stockholders, directors or any other persons whomsoever by and
pursuant to this Certificate of Incorporation in its present form or as
hereafter amended are granted subject to the right reserved in this Article X;
provided, however, that any amendment or repeal of any provision of this
Certificate of Incorporation shall not adversely affect any right or protection
existing hereunder in respect of any act or omission occurring prior to such
amendment or repeal; and provided further that no Preferred Stock Designation
shall be amended after the issuance of any shares of the series of Preferred
Stock created thereby, except in accordance with the terms of such Preferred
Stock Designation and the requirements of applicable law.
ARTICLE XI
INCORPORATOR
The name and mailing address of the incorporator is Sharon Beirdneau,
4675 MacArthur Court, Suite 710, Newport Beach, CA 92660.
IN WITNESS WHEREOF, I, the undersigned, being the incorporator
hereinbefore named, do hereby further certify that the facts hereinabove stated
are truly set forth and, accordingly, I have hereunto set my hand this 6th day
of October, 1998.
s/Sharon Beirdneau
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Sharon Beirdneau, Incorporator
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