CERTIFICATE OF INCORPORATION
OF
GOLDENDALE HOLDING COMPANY
The undersigned individual of the age of eighteen years or more, acting as
incorporator under the Delaware General Corporation Law, adopts the following
certificate of incorporation:
I.
The name of the corporation is Goldendale Holding Company (the "Company").
II.
The Company is intended to be employee owned. Ownership of the capital
stock of the Company is limited to the following:
(i) Employees of the Company or a wholly owned subsidiary of the
Company.
(ii) Trusts described in Section 401(a) of the Internal Revenue Code
relating to a plan qualified under Section 401(a) whose sponsor is the Company
or a wholly owned subsidiary of the Company.
(iii) A corporation if 100 percent of the capital stock of the
corporation is owned by a single shareholder described in (i) or (ii) above.
III.
The purpose of the Company is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of
Delaware.
IV.
A. Designation and Number of Authorized Shares.
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The total number of shares of stock which the Company has authority to
issue is Five Hundred Thousand shares, consisting of:
(i) One Hundred Fifty Thousand shares of Series A Preferred Stock, par
value $0.01 per share (the "Series A Preferred Stock"); and
(ii) Three Hundred Fifty Thousand shares of Common Stock, par value
$0.01 per share (the "Common Stock").
The Series A Preferred Stock and the Common Stock shall be the only
equity securities issued by the Company; no other class or series of equity
securities with rights or privileges ranking senior to shares of the Common
Stock may be issued by the Company at any time. The authorized number of shares
of Series A Preferred Stock may be decreased (but not increased) by the Board of
Directors without a vote of stockholders; provided, however, that such number
may not be decreased below the number of then currently outstanding shares of
Series A Preferred Stock.
B. Dividends and Distributions.
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(i) Dividend Rate for Series A Preferred Stock. Through December 31,
2001, the holders of shares of Series A Preferred Stock, in preference to the
holders of Common Stock and of any other capital stock of the Company, shall be
entitled to receive cumulative dividends payable at the annual rate of $27.68
per share. In each calendar beginning on or after January 1, 2002, the holders
of shares of Series A Preferred Stock, in preference to the holders of Common
Stock and of any other capital stock of the Company, shall be entitled to
receive cumulative dividends payable at the annual rate per share set forth
below:
Year Ending Dividend Per Share
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December 31, 2002 $29.93
December 31, 2003 $32.18
December 31, 2004 $34.43
and thereafter
(ii) Accrual of Cumulative Dividends. Dividends shall accrue quarterly
in four equal amounts on March 31, June 30, September 30 and December 31 of each
year (or, if any such day is not a business day, the next preceding business
day; each such date being referred to herein as a "Quarterly Dividend Date"),
commencing on the first Quarterly Dividend Date which is at least 15 days after
the date of the original issuance of the Series A Preferred Stock.
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Dividends accruing on any Quarterly Dividend Date shall be prorated for any
quarter in which the Series A Preferred Stock was outstanding for less than the
full quarter.
(iii) Payment. Dividends shall be paid when, as and if declared by the
Board of Directors out of funds of the Company legally available therefor. All
dividends payable under subsections (i) and (ii) above shall be paid in cash.
Dividends paid on the shares of Series A Preferred Stock in an amount less than
the total amount of dividends accrued at the time of such payment shall be
allocated pro rata on a share-by-share basis among all outstanding shares. The
Board of Directors may fix a record date for the determination of holders of
shares of Series A Preferred Stock entitled to receive payment of a dividend
declared thereon, which record date shall be no more than 60 days nor less than
10 days prior to the date fixed for the payment thereof.
(iv) Payment in Kind. Commencing January 1, 2002, at the option of any
holder of Series A Preferred Stock, such holder may request that the Company
issue additional shares of fully paid and non-assessable Series A Preferred
Stock equal in value to any accrued and unpaid cash dividends (the "Dividend
Shares"). For purposes of determining the number of Dividend Shares to issue,
the value of each share of Series A Preferred Stock shall be the fair market
value determined on a minority ownership basis for purposes of transactions by
the Company's qualified employee stock ownership plan or a qualified plan that
is a successor thereto.
(v) Dividends on the Common Stock. No dividends may be declared or
paid on the Common Stock until all accrued dividends in respect of the Series A
Preferred Stock have been paid.
C. Merger, Consolidation.
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(i) Preferential Amount. In the event of any consolidation or merger
of the Company with or into any other corporation or other entity or person, or
a sale, conveyance or disposition of all or substantially all of the assets of
the Company, or any other corporate reorganization in which the Company shall
not be the continuing or surviving entity of such consolidation, merger or
reorganization or any transaction or series of related transactions by the
Company in which in excess of 50 percent of the Company's voting power is
transferred, then holders of the Series A Preferred Stock shall first receive
for each share of such stock, in cash or securities received from the acquiring
corporation or a combination thereof, at the closing of any such transaction, an
amount equal to $225.00 for such share plus any accrued but unpaid dividends
thereon as of the date of closing of such transaction, unless applicable
provisions of the Employment Retirement Income Security Act of 1974, as amended,
require a greater amount. In the event the amount payable in respect of the
proposed transaction is not sufficient to permit payment of the full amount
described in the preceding sentence, then the entire amount payable in respect
of the proposed transaction shall be distributed ratably among the holders of
the Series A Preferred Stock, according to their respective payments that would
have been payable in respect of the shares held by them upon such transaction if
all payments
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payable on or with respect to such shares were paid in full in accordance with
the preceding sentence.
(ii) Treatment of Common Stock. After the distribution required by
subsection (i) above has been paid, any remaining consideration to be paid in
such transaction shall be distributed to the holders of Common Stock pro rata.
(iii) Valuation of Securities. Any securities to be delivered to the
holders of the Series A Preferred Stock pursuant to subsection (i) above shall
be valued as follows:
(A) With respect to securities not subject to investment letter
or other similar restrictions on free marketability,
(1) If listed or admitted for trading on a national
securities exchange, the value shall be deemed to be the average
of the last sale price, or closing bid price if no sale occurred,
of such securities on such exchange over the 30-day period ending
three days prior to the closing;
(2) If quoted on the National Market of the NASDAQ System,
or any similar system of automated dissemination of quotations of
securities prices then in common use, the average of the last
reported sale price if such price is so quoted or, if not so
quoted, the average of the mean between the high bid and low
asked quotations, over the 30 day period ending three days prior
to the closing;
(3) If quoted on a national securities or central market
system, other than as described in (1) or (2) above, for which
actual transactions are reported, the average of the last sale
price, or the closing bid price if no sale occurred, of such
security over the 30 day period ending three days prior to
closing;
(4) If quoted on a national securities or central market
system, other than as described in (1) or (2) above, for which
bid and asked quotations are reported but actual transactions are
not, the average of the mean between the high bid and low asked
quotations over the 30 day period ending three days prior to the
closing;
(5) With respect to a security without an ascertainable
market price, the fair market value thereof, as mutually
determined by the Company and the holders of a majority of the
then outstanding shares of Series A Preferred Stock).
(B) The method of valuation of securities subject to investment
letter or other restrictions on free marketability shall be to make an
appropriate discount
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from the market value determined as above in paragraph (A)(1), (2),
(3), (4) or (5) to reflect the approximate fair market value thereof,
as determined by the Board of Directors.
D. Liquidation Preference.
----------------------
(i) Preferential Amount. In the event of any liquidation, dissolution
or winding up of the Company, either voluntary or involuntary, the holders of
each share of Series A Preferred Stock shall be entitled to be paid out of the
assets and funds of the Company available for distribution to its stockholders,
before any payment or declaration and setting apart for payment of any amount
shall be made in respect of the Common Stock, an amount equal to $225.00 plus
any accrued but unpaid dividends thereon determined in accordance with Section
B. If upon the occurrence of such event the assets and funds thus distributed
among the holders of the Series A Preferred Stock shall be insufficient to
permit the payment to such holders of the full aforesaid preferential amount,
then the entire assets and funds of the Company legally available for
distribution to its stockholders shall be distributed ratably among the holders
of the Series A Preferred Stock, according to their respective preferences that
would have been payable in respect of the shares held by them upon such
distribution if all preferences payable on or with respect to such shares were
paid in full.
(ii) Treatment of Common Stock. After the payment or distribution
described in subsection (i) above has been made, the remaining assets and funds
of the Company available for distribution to its stockholders shall be
distributed among the holders of the Common Stock pro rata.
(iii) Consolidation or Merger. A consolidation or merger of the
Company with or into any other corporation or corporations, or a sale,
conveyance or disposition of all or substantially all of the assets of the
Company or the completion by the Company of a transaction or series of related
transactions in which more than 50 percent of the voting power of the Company is
disposed of, shall not be deemed to be a liquidation, dissolution or winding up
within the meaning of this Section D, but shall instead be treated pursuant to
Section C hereof.
E. Redemption.
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(i) Company's Right to Redeem. The Company may at any time after
December 31, 1998, at its option, redeem any or all outstanding shares of Series
A Preferred Stock, by paying therefor the sum of the following (the "Redemption
Price") in accordance with the terms of this Section E:
(A) if the Redemption Date (as defined below) is (1) prior to
January 1, 2000, $230.63 per share, (2) after December 31, 1999 and
prior to January 1, 2001, $228.38 per share, (3) after December 31,
2000 and prior to January 1, 2002, $227.25 per share, and (4) after
December 31, 2001, $225.00 per share; plus
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(B) all accrued but unpaid dividends thereon to the Redemption
Date.
The Company shall pay the Redemption Price in cash.
(ii) Notice of Redemption. The Company will mail written notice of
each redemption of any shares of Series A Preferred Stock to each record holder
of shares of Series A Preferred Stock not more than 60 nor less than 30 days
prior to the date on which such redemption is to be made. The date on which the
written notice is mailed shall be the "Redemption Date." Upon mailing any notice
of redemption, the Company will become obligated to redeem the total number of
shares of Series A Preferred Stock specified in such notice for the Redemption
Price in cash at the time of redemption specified therein. In case fewer than
the total number of shares of Series A Preferred Stock represented by any
certificate are redeemed, a new certificate representing the number of
unredeemed shares of Series A Preferred Stock will be issued to the holder
thereof without cost to such holder within three business days after surrender
of the certificate representing the redeemed shares of Series A Preferred Stock.
(iii) Determination of the Number of Each Holder's Shares to be
Redeemed. The number of shares of Series A Preferred Stock to be redeemed from
each holder thereof in redemptions hereunder will be the number of shares of
Series A Preferred Stock determined by multiplying the total number of shares of
Series A Preferred Stock to be redeemed times a fraction, the numerator of which
will be the total number of shares of Series A Preferred Stock then held by such
holder and the denominator of which will be the total number of shares of Series
A Preferred Stock then outstanding.
(iv) Dividends After Redemption Date. No share of Series A Preferred
Stock is entitled to any dividends accruing after the Redemption Date of such
share. On such date all rights of the holder of such share will cease, and such
share will not be deemed to be outstanding.
(v) Redeemed or Otherwise Acquired Shares. Any shares which are
redeemed or otherwise acquired by the Company will be canceled and will not be
reissued, sold or transferred.
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F. Voting Rights; Protective Provisions.
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(i) Series A Preferred Stock. In addition to any voting rights
provided elsewhere herein and any voting rights provided by law, the holders of
shares of Series A Preferred Stock shall have the following voting rights:
(A) The shares of Series A Preferred Stock and the shares of
Common Stock shall vote together as a single class on all matters
submitted to a vote of stockholders of the Company, including without
limitation the election of directors. In any such vote, the holders of
shares of Series A Preferred Stock shall be entitled to one vote per
share and, with respect to such vote(s), shall have full voting rights
and powers equal to the voting rights and powers of the holders of
Common Stock.
(B) So long as any shares of Series A Preferred Stock are
outstanding and unless the consent or approval of a greater number of
shares shall then be required by law, without first obtaining the
consent or approval of the holders of at least a majority of the
number of then-outstanding shares of Series A Preferred Stock, voting
as a single class, given in person or by proxy at a meeting at which
the holders of such shares shall be entitled to vote separately as a
class, or by written consent (which consent need not take the form of
a formal written consent of stockholders pursuant to Section 228 of
the Delaware General Corporation Law), the Company shall not:
(1) authorize, create or obligate itself to issue any class
or series, or any shares of any class or series, of equity security
(including any security convertible into or exercisable for any equity
security), having powers, designations, preferences or relative,
participating, optional or other special rights prior to or on parity
with the Series A Preferred Stock; or
(2) amend, alter or repeal the Certificate of Incorporation
to alter or change the preferences, rights or powers of the Series A
Preferred Stock so as to affect the Series A Preferred Stock adversely
or to increase the authorized number of shares of Series A Preferred
Stock.
(ii) Common Stock. The holders of Common Stock will be entitled to one
vote per share on all matters to be voted on by the Company's stockholders.
V.
The address of the initial registered office of the Company is
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801 and the
name of the initial registered agent of the Corporation at such address is The
Corporation Trust Company.
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VI.
The name and address of the incorporator is Kris Ormseth, 999 Main
Street, Suite 1015, Boise, Idaho 83702.
VII.
The Board of Directors of the Company, acting by majority vote, may
alter, amend or repeal the Bylaws of the Company.
VIII.
A. The Company shall indemnify to the fullest extent then permitted by the
law any person who is made, or threatened to be made, a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, investigative or otherwise (including an action, suit or
proceeding by or in the right of the Company) by reason of the fact that the
person is or was a director or officer of the Company, or serves or served at
the request of the Company as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise against all expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement,
actually and reasonably incurred in connection therewith. Expenses incurred by
an officer or director in defending a civil or criminal action, suit or
proceeding shall be paid by the Company in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the Company as
authorized in this Article. The indemnification provided hereby shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any statute, bylaw, agreement, vote of shareholders or directors or
otherwise, both as to action in any official capacity and as to action in
another capacity while holding an office, and shall continue as to a person who
has ceased to be a director or officer and shall inure to the benefit of the
heirs, executors and administrators of such person.
Any person other than a director or officer who is or was an employee
or agent of the Company, or fiduciary within the meaning of the Employee
Retirement Income Security Act of 1974 with respect to any employee benefit
plans of the Company, or is or was serving at the request of the Company as an
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise may be indemnified to such extent as the board of directors in
its discretion at any time or from time to time may authorize.
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B. No director of the Company shall be personally liable to the Company or
its stockholders for monetary damages for breach of fiduciary duty as a
director; provided that the liability of a director shall not be eliminated (i)
for any breach of the director's duty of loyalty to the Company or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware General Corporation Law or (iv) for any transaction from which the
director derived an improper personal benefit.
IX.
The name and mailing address of the person who is to serve as the
director of the Company until the first annual meeting of stockholders and until
his successor is elected and qualified is:
Brett Wilcox
2727 NW Westover
Portland, OR 97210
I, THE UNDERSIGNED, being the sole incorporator herebefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, do make this certificate, hereby declaring, affirming,
acknowledging and certifying, under penalties of perjury, that this is my act
and deed and the facts herein stated are true, and accordingly have hereunto set
my hand this 17th day of May, 1996.
KRIS ORMSETH
--------------------------
Kris Ormseth, Incorporator
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