Exhibit 3.1
STATE OF OREGON
CORPORATION DIVISION
255 Capitol St. NE, Suite 151
Salem, Oregon 97310-1327
Submit the Original
and One True Copy
(831.115) $50
Registry No. 318756-93
ARTICLES OF INCORPORATION
Business Corporation
ARTICLE 1
The name of the corporation is Greenbrier Oregon, Inc.
ARTICLE 2
The registered office of the corporation is located at 1600 Pioneer
Tower, 888 SW Fifth Avenue, in the City of Portland, County of Multnomah, State
of Oregon. The name of its registered agent at that address is TT Administrative
Services, LLC.
ARTICLE 3
The name and address of the incorporator is Sherrill A. Corbett,
Tonkon Torp LLP, 1600 Pioneer Tower, 888 SW Fifth Avenue, Portland, Oregon
97204-2099.
ARTICLE 4
The mailing address to which notices may be mailed is TT
Administrative Services, LLC, 1600 Pioneer Tower, 888 SW Fifth Avenue, Portland,
Oregon 97204-2099.
ARTICLE 5
The purpose of the corporation is to engage in any lawful act or
activity for which a corporation may be organized under the Oregon Business
Corporation Act.
ARTICLE 6
Section 1. Authorized Capital Stock. The corporation is authorized to
issue two classes of stock to be designated, respectively, "Preferred Stock" and
"Common Stock." The total number of shares which the corporation is authorized
to issue is 75,000,000 shares, of which 25,000,000 shares shall be Preferred
Stock, without par value, and 50,000,000 shares shall
ARTICLES OF INCORPORATION - 1
be Common Stock, without par value. Of the 25,000,000 shares of authorized
Preferred Stock, 200,000 shares shall be designated as Series A Participating
Preferred Stock.
Section 2. Preferred Stock. The Board of Directors is expressly vested
with authority to adopt a resolution or resolutions providing for the issuance
of Preferred Stock from time to time in one or more series. The Board of
Directors is expressly authorized to fix, state and express, in the resolution
or resolutions providing for the issuance of any wholly unissued series of
Preferred Stock, the preferences, limitations and relative rights including,
without limitation:
(a) the rate of dividends upon which and the times at which
dividends on shares of such series shall be payable and the preference, if any,
which such dividends shall have relative to dividends on shares of any other
class or classes or any other series of stock of the corporation;
(b) whether such dividends shall be cumulative or noncumulative,
and if cumulative, the date or dates from which dividends on shares of such
series shall be cumulative;
(c) the voting rights, if any, to be provided for shares of such
series;
(d) the rights and preferences, if any, which the holders of
shares of such series shall have in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the corporation;
(e) the rights, if any, which the holders of shares of such
series shall have to convert such shares into or exchange such shares for
securities or other property of the corporation and the terms and conditions,
including price and rate of exchange of such conversion or exchange;
(f) the redemption (including sinking fund provisions), if any,
for shares of such series; and
(g) such other powers, rights, designations, preferences,
qualifications, limitations and restrictions as the Board of Directors may
desire to so fix.
If upon any voluntary or involuntary liquidation, dissolution or
winding up of the corporation, the assets available for distribution to holders
of shares of a series of Preferred Stock shall be insufficient to pay such
holders the full preferential amount to which they are entitled, such assets
shall be distributed ratably among the shares of such series of Preferred Stock
in proportion to the full amounts which would be payable on such shares if all
amounts payable thereon were paid in full.
Section 3. Common Stock. The holders of Common Stock shall be entitled
to one vote per share on each matter to be voted upon by the corporation's
shareholders. Except as otherwise required by law, or pursuant to the terms of
any series of Preferred Stock, all series of Preferred Stock (upon which voting
rights shall have been conferred) and the Common Stock shall vote together as a
single class or voting group on any matter submitted to a vote of
ARTICLES OF INCORPORATION - 2
shareholders. Shares of Common Stock shall not have cumulative voting rights
with respect to any matter.
Section 4. Series A Participating Preferred Stock.
Subsection 1. Designation and Amount. There shall be a series of
Preferred Stock of the corporation which shall be designated as "Series A
Participating Preferred Stock, without par value" (the "Series A Preferred
Stock"), and the number of shares constituting such series shall be 200,000.
Such number of shares may be increased or decreased by the Board of Directors
without shareholder action; provided, however, that no decrease shall reduce the
number of shares of Series A Preferred Stock to a number less than the shares
outstanding plus the number of shares issuable upon exercise of outstanding
rights, options or warrants or upon conversion of outstanding securities issued
by the corporation.
Subsection 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders
of any shares of any series of Preferred Stock ranking prior and superior to the
Series A Preferred Stock with respect to dividends, the holders of shares of
Series A Preferred Stock, in preference to the holders of shares of Common
Stock, without par value ("Common Stock") of the corporation and of any other
junior stock which may be outstanding, shall be entitled to receive, when, as
and if declared by the Board of Directors out of funds legally available for the
purpose, (i) quarterly dividends payable in cash on the last day of March, June,
September and December in each year (each such date being referred to herein as
a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series A Preferred Stock, in an amount per share (rounded to the nearest cent)
equal to the greater of (a) $1.00 per share ($.01 per one one-hundredth of a
share), or (b) subject to the provision for adjustment hereinafter set forth,
100 times the aggregate per share amount of all cash dividends declared on the
Common Stock since the immediately preceding Quarterly Dividend Payment Date or,
with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Preferred Stock, and
(ii) subject to the provision for adjustment hereinafter set forth, quarterly
distributions (payable in kind) on each Quarterly Dividend Payment Date in an
amount per share equal to 100 times the aggregate per share amount of all
noncash dividends or other distributions (other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares of Common
Stock, by reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date, or with respect to the
first Quarterly Dividend Payment Date since the first issuance of any share or
fraction of a share of Series A Preferred Stock. In the event the corporation
shall at any time after July 26, 2004 (the "Rights Declaration Date"), declare
or pay any dividend on Common Stock payable in shares of Common Stock, or effect
a subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise) into a greater or lesser number
of shares of Common Stock, then in each such case the amount to which holders of
shares of Series A Preferred Stock are entitled under clauses (i)(b) or (ii) of
the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
ARTICLES OF INCORPORATION - 3
(B) The corporation shall declare a dividend or distribution
on the Series A Preferred Stock as provided in Subsection 2(A) immediately after
it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, in the event no
dividend or distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1.00 per share ($.01 per one
one-hundredth of a share) on the Series A Preferred Stock shall nevertheless be
payable, out of funds legally available for such purpose, on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares of Series A
Preferred Stock, unless the date of issue of such shares is prior to the record
date for the first Quarterly Dividend Payment Date, in which case dividends on
such shares shall begin to accrue and be cumulative from the date of issue of
such shares, or unless the date of issue is a Quarterly Dividend Payment Date or
is a date after the record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive a quarterly dividend and before
such Quarterly Dividend Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall cumulate but shall not bear interest.
Dividends paid on the shares of Series A Preferred Stock in an amount less than
the total amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. 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 or distribution declared thereon, which record
date shall be not more than 30 days prior to the date fixed for the payment
thereof.
Subsection 3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the holder thereof
to 100 votes (and each one one-hundredth of a share of Series A Preferred Stock
shall entitle the holder thereof to one vote) on all matters submitted to a vote
of the shareholders of the corporation. In the event the corporation shall at
any time after the Rights Declaration Date declare or pay any dividend on Common
Stock payable in shares of Common Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise) into a greater or lesser number of shares of Common Stock, then in
each such case the number of votes per share to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided in these Articles of
Incorporation or by law, the holders of shares of Series A Preferred Stock and
the holders of shares of Common Stock shall vote together as one class on all
matters submitted to a vote of the shareholders of the corporation.
ARTICLES OF INCORPORATION - 4
(C) Except as otherwise provided in these Articles of
Incorporation or by law, holders of Series A Preferred Stock shall have no
special voting rights and their consent shall not be required for taking any
corporate action.
Subsection 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided in Section 2
are in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred Stock
outstanding shall have been paid in full, the corporation shall not:
(i) declare or pay dividends on, make any other
distributions on any shares of stock ranking junior (either as to dividends
or upon liquidation, dissolution or winding up) to the Series A Preferred
Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except dividends paid ratably on the Series A Preferred
Stock and all such parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the holders of all such
shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A Preferred
Stock, provided that the corporation may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in exchange for shares of
any stock of the corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration
any shares of Series A Preferred Stock, or any share of stock ranking on a
parity with the Series A Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as the
Board of Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective series
and classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The corporation shall not permit any subsidiary of the
corporation to purchase or otherwise acquire for consideration any shares of
stock of the corporation unless the corporation could, under Subsection 4(A),
purchase or otherwise acquire such shares at such time and in such manner.
Subsection 5. Reacquired Shares. Any shares of Series A Preferred
Stock purchased or otherwise acquired by the corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
The corporation shall take all such action as is necessary so that all such
shares shall after their cancellation become authorized but unissued
ARTICLES OF INCORPORATION - 5
shares of Preferred Stock, without designation as to series, and may be reissued
as part of a new series of Preferred Stock to be created by Articles of
Amendment adopted by the Board of Directors without shareholder action, subject
to the conditions and restrictions on issuance set forth herein.
Subsection 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the corporation, no distribution shall
be made (A) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received the higher of (i) $1.00 per share ($.01 per
one one-hundredth of a share), plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment, or (ii) an aggregate amount per share, subject to the provision
for adjustment hereinafter set forth, equal to 100 times the aggregate amount to
be distributed per share to holders of Common Stock; nor shall any distribution
be made (B) to the holders of stock ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding up) with the Series A Preferred
Stock, except distributions made ratably on the Series A Preferred Stock and all
other such parity stock in proportion to the total amounts to which the holders
of all such shares are entitled upon such liquidation, dissolution or winding
up. In the event the corporation shall at any time after the Rights Declaration
Date declare or pay any dividend on Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise) into a
greater or lesser number of shares of Common Stock, then in each such case the
aggregate amount to which holders of shares of Series A Preferred Stock are
entitled under clause (A)(ii) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Subsection 7. Consolidation, Merger, etc. In case the corporation
shall enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, or otherwise changed, then in any
such case the shares of Series A Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share (subject to the provision
for adjustment hereinafter set forth) equal to 100 times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind), as the case
may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the corporation shall at any time after the Rights
Declaration Date declare or pay any dividend on Common Stock payable in shares
of Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise) into a
greater or lesser number of shares of Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series A Preferred Stock shall be adjusted by multiplying
such amount by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
ARTICLES OF INCORPORATION - 6
Subsection 8. No Redemption. The shares of Series A Preferred
Stock shall not be redeemable. Notwithstanding the foregoing, the corporation
may acquire shares of Series A Preferred Stock in any other manner permitted by
law or these Articles of Incorporation.
Subsection 9. Rank. Unless otherwise provided in these Articles
of Incorporation or an amendment thereof relating to a subsequent series of
Preferred Stock of the corporation, the Series A Preferred Stock shall rank
junior to all other series of the corporation's Preferred Stock as to the
payment of dividends and the distribution of assets on liquidation, dissolution
or winding up, and senior to the Common Stock of the corporation.
Subsection 10. Amendment. These Articles of Incorporation shall
not be amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series A Preferred Stock so as to affect
them adversely without the affirmative vote of the holders of at least a
majority of the outstanding shares of Series A Preferred Stock, voting
separately as a class.
Subsection 11. Fractional Shares. Series A Preferred Stock may be
issued in one-hundredths of a share or other fractions of a share which shall
entitle the holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in distributions and to
have the benefit of all other rights of holders of Series A Preferred Stock.
ARTICLE 7
The following provisions are inserted for the management of the
business and for the conduct of the affairs of the corporation, and for further
definition, limitation and regulation of the powers of the corporation and of
its directors and shareholders:
(a) Except as otherwise provided in these Articles of
Incorporation or the Bylaws of the corporation relating to the rights of the
holders of any series of Preferred Stock, voting separately by group or series,
to elect additional directors under specified circumstances, the number of
directors of the corporation shall be as fixed from time to time by or pursuant
to the Bylaws of the corporation. The directors, other than those who may be
elected by the holders of any series of Preferred Stock, voting separately by
group or series, shall be classified, with respect to the time for which they
severally hold office, into three classes, Class I, Class II and Class III,
which shall be as nearly equal in number as possible, and shall be adjusted from
time to time in the discretion of the President of the corporation to maintain
such proportionality. The directors shall initially be classified into classes
by the President of the corporation. Each initial director in Class I shall hold
office for a term expiring at the 2007 annual meeting of shareholders, each
initial director in Class II shall hold office initially for a term expiring at
the 2008 annual meeting of shareholders, and each initial director in Class III
shall hold office for a term expiring at the 2009 annual meeting of
shareholders. Notwithstanding the foregoing provisions of this ARTICLE 7, each
director shall serve until his or her successor is duly elected and qualified or
until his or her earlier death, resignation or removal. At each annual meeting
of shareholders commencing with the 2007 annual meeting, the successors to the
class of directors whose term expires at that meeting shall be elected to hold
office for a term expiring at the annual meeting of shareholders held in the
third year following
ARTICLES OF INCORPORATION - 7
the year of their election and until their successors have been duly elected and
qualified or until their earlier death, resignation or removal. Election of
directors need not be by written ballot unless provided by the Bylaws of the
corporation.
(b) Except as otherwise provided in these Articles of
Incorporation or the Bylaws of the corporation relating to the rights of the
holders of any series of Preferred Stock, voting separately by class or series,
to elect directors under specified circumstances, any director or directors may
only be removed from office at any time with cause by the affirmative vote of
not less than a majority of the total number of votes of the then outstanding
shares of capital stock of the corporation entitled to vote generally in the
election of directors, voting together as single class. Unless previously filled
by the vote of at least a majority of the total number of outstanding shares of
capital stock of the corporation entitled to vote generally in the election of
directors, voting together as a single class, any vacancy in the Board of
Directors resulting from any such removal may be filled by the Board of
Directors, or if the Directors remaining in office constitute less than a quorum
then such vacancies may be filled by a vote of a majority of the directors then
in office, and any directors so chosen shall hold office until the next election
of the class for which such directors shall have been chosen and until their
successors shall have been elected and qualified or until their earlier death,
resignation or removal.
(c) In the event of any increase or decrease in the authorized
number of directors, the newly created or eliminated directorships resulting
from such increase or decrease shall be apportioned by the Board of Directors
among the three classes of directors so as to maintain such classes as nearly
equal in number as possible. No decrease in the number of directors constituting
the Board of Directors shall shorten the term of any incumbent director.
(d) Notwithstanding the foregoing, whenever the holders of any
one or more class or series of Preferred Stock issued by the corporation shall
have the right, voting separately by class or series, to elect directors at an
annual or special meeting of shareholders, the election, term of office, filling
of vacancies and other features of such directorships shall be governed by the
terms of these Articles of Incorporation applicable thereto, as the same may be
amended from time-to-time, and such directors so elected shall not be divided
into classes pursuant to this ARTICLE 7 unless expressly provided by such terms.
(e) Special meetings of shareholders of the corporation for any
purpose or purposes may be called at any time by a majority of the Board of
Directors, the President of the corporation or the holders of not less than 25
percent of all votes entitled to be cast on the matters to be considered at such
meeting.
(f) In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to adopt, repeal,
alter, amend or rescind the Bylaws of the corporation. In addition, the Bylaws
of the corporation may be adopted, repealed, altered, amended, or rescinded by
the affirmative vote of the holders of not less than a majority of the
outstanding shares of capital stock of the corporation entitled to vote thereon,
voting together as a single class.
ARTICLES OF INCORPORATION - 8
ARTICLE 8
No director of the corporation shall be personally liable to the
corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, except for liability, to the extent provided by applicable
law, for (i) any breach of the director's duty of loyalty to the corporation or
its shareholders, (ii) any acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) any unlawful
distribution under ORS 60.367, or (iv) any transaction from which the director
derived an improper personal benefit. If the Oregon Business Corporation Act is
amended to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
corporation shall be eliminated or limited to the fullest extent permitted by
the Oregon Business Corporation Act, as so amended. This ARTICLE 8 shall not
eliminate or limit the liability of a director for any act or omission which
occurred prior to the effective date of its adoption. Any repeal or modification
of this ARTICLE 8 by the shareholders 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 9
The Board of Directors of the corporation may provide, pursuant to
Bylaws or other actions or agreements, that the corporation shall indemnify to
the fullest extent permitted by the Oregon Business Corporation Act, as in
effect at the time of the determination, 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 any action, suit or proceeding by or in the right of the
corporation), by reason of the fact that the person is or was a director,
officer, employee or agent of the corporation, or any of its subsidiaries, or a
fiduciary within the meaning of the Employee Retirement Income Security Act of
1974, as amended, with respect to any employee benefit plan of the corporation
or any of its subsidiaries, or serves or served at the request of the
corporation, or any of its subsidiaries, as a director, officer, employee or
agent, or as a fiduciary of an employee benefit plan, of another corporation,
partnership, joint venture, trust or other enterprise. The rights of
indemnification provided in this ARTICLE 9 shall be in addition to any rights to
which any such person may otherwise be entitled under any future amendment to
these Articles of Incorporation or under any bylaw, agreement, statute, policy
of insurance, vote of shareholders or board of directors, or otherwise, which
exists at or subsequent to the time such person incurs or becomes subject to
such liability and expense.
ARTICLE 10
The corporation reserves the right at any time and from time to time
to amend, alter, rescind or repeal any provisions contained herein; and other
provisions authorized by the laws of the State of Oregon at the time in force
may be added or inserted, in the manner now or hereafter prescribed by law; and
all rights, preferences and privileges of whatsoever nature conferred upon
shareholders, directors or any other persons whomsoever by or pursuant to these
Articles of Incorporation in its present form or as hereafter amended are
granted subject to the rights reserved in this Article.
ARTICLES OF INCORPORATION - 9
ARTICLE 11
Notwithstanding any other provisions of these Articles of
Incorporation, other than ARTICLE 10, or the Bylaws of the corporation, the
affirmative vote of the holders of not less than fifty-five percent (55%) of the
total number of votes of the then outstanding shares of capital stock of the
corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to amend or repeal, or to adopt
any provision inconsistent with the purpose or intent of, ARTICLE 7, ARTICLE 8,
ARTICLE 9, ARTICLE 10 and ARTICLE 11 of these Articles of Incorporation.
DATED: October 24, 2005
/s/ Sherrill A. Corbett
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Sherrill A. Corbett, Incorporator
Person to contact about this filing:
Sherrill A. Corbett
Telephone - 503/802-2049
ARTICLES OF INCORPORATION - 10