1
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
AQUA-CHEM, INC.
(incorporating amendments effected
by Certificate of Merger filed
August 1, 1997, and Certificate of
Amendment filed June 23, 1998)
ARTICLE ONE. The name of the corporation is Aqua-Chem, Inc.
ARTICLE TWO. The address of its 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 of its registered agent at such
address is The Corporation Trust Company.
ARTICLE THREE. The purpose of the corporation (the "Company") is to
engage in any lawful act or activity for which corporations may be organized
under the Delaware General Corporation Law.
ARTICLE FOUR. The total number of shares of stock which the Company
shall have authority to issue is Two Million Six Thousand Two Hundred Sixty
(2,006,260), divided into classes as follows:
a. Two Million (2,000,000) shares of Common Stock,
having a par value of $.01 per share.
Each share of Common Stock shall be entitled to one vote on
any matter submitted to a vote of the shareholders of the
Company.
b. Six Thousand Two Hundred Sixty (6,260) shares of Preferred
Stock, having a par value of $.01 per share. The Preferred
Stock shall be further divided into series, with such
designations, powers, preferences and rights and subject to
the qualifications, limitations and restrictions as set forth
below.
PREFERRED STOCK
STATEMENT OF RIGHTS AND PREFERENCES
I. SERIES A PREFERRED STOCK
There shall be One Hundred Thirty (130) shares of Series A Preferred
Stock authorized. The terms of the Series A Preferred Stock shall be as follows:
A. Dividends.
1. Normal Dividends. Simultaneous with consummation of the
refinancing and retirement (the "1998 Refinancing
Transaction") of the WSDF Note (the " WSDF Note") as defined
in the Amended and Restated Securities Purchase Agreement
(the "Securities Purchase Agreement") dated as of December 5,
2
EXHIBIT 3.1
1997, by and among Rush Creek LLC, the Company, CB-Kramer
Sales and Service, Inc. Whitney Equity Partners, L.P. and
Whitney Subordinated Debt Fund L.P. and thereafter on the
first day of each August, November, February and May, the
holders of the 130 shares of Series A Preferred Stock shall
be entitled to receive out of funds of the Company at the
time legally available for such purpose dividends at the rate
of $2,307.70 per share per year, and no more, payable in cash
and without interest. Dividends on all such issued and
outstanding preferred shares shall accrue on a daily basis
(initially from the date of issuance to the date of payment
of the first dividend and, thereafter, from dividend payment
date to dividend payment date) whether or not earned or
declared and shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. Such dividends shall be
paid before any dividends shall be declared or paid upon or
set apart for the common shares or any other class or series
of the Company's capital stock and shall be cumulative, so
that if in any year or years dividends upon such outstanding
preferred shares shall not have been paid (at the rate set
forth above), the amount of the deficiency shall be paid, but
without interest, before any distribution, whether by way of
dividend or otherwise, shall be declared or paid upon, or set
apart for, the common shares or any other class or series of
the Company's capital stock.
Unless all cumulative dividends on the Series A Preferred
Stock (including default dividends as described in Section
I.A.2. below) have been or contemporaneously are declared by
the Company's Board of Directors and paid or declared and a
sum sufficient for the payment thereof set apart by the
Company to the date of any event described in Section I.G.
below, the Company shall not redeem, purchase, retire or
otherwise acquire for any consideration, or make any payment
on account of a sinking fund or other similar fund for the
redemption, purchase, retirement or acquisition of any other
capital stock of the Company (other than the Series B
Preferred Stock), or any warrant, right or option to purchase
any thereof, or make any distribution in respect thereof,
directly or indirectly, whether in cash, obligations or
securities of the Company or other property. Notwithstanding
the foregoing, the Company shall be entitled to redeem in
whole or in part warrants issued pursuant to the Aqua-Chem,
Inc. Common Stock Purchase Warrant dated as of July 30, 1997
in favor of Rush Creek LLC, a Wisconsin limited liability
company ("Warrants"), or the shares of the Company's common
stock issued pursuant to such Warrants ("Warrant Shares") in
each case in accordance with the terms set forth in the
Warrants. The Company shall also be entitled to redeem shares
of the Company's common stock issued to employees or
consultants of the Company ("Plan Shares") pursuant to the
terms of the Aqua-Chem, Inc. 1997 Stock Option Plan or any
successor plan adopted by the Company or any agreement (each
a "Plan") other than plan shares held by Jeffrey A. Miller
("Miller"), J. Scott Barton ("Barton"),
2
3
EXHIBIT 3.1
Rand E. McNally ("McNally"), Bruce Dickson ("Dickson"), and
Charles Norris ("Norris") (Miller, Barton, McNally, Dickson,
Norris, and their permitted transferees are collectively
referred to herein as the "Management Group") to the extent
such redemptions do not, in the aggregate, exceed 61,919
shares of common stock as adjusted for stock splits and
combinations of stock.
2. Dividends Upon Default. In the event of a default by the
Company after exercise of the Put Option or Call Option (both
as hereinafter defined) in the payment of the redemption
price or accrued dividends as required by Section I.G.1. of
this Statement of Rights and Preferences (the "Statement"),
the rate of dividends on the Series A Preferred Stock from
the date of default to the date on which such default is
cured shall prospectively increase to $3,461.55 per share per
year (a 50% increase) from the date of default to the date on
which such default is cured.
B. Liquidation and Rank. In the event of a liquidation,
dissolution, or winding up of the Company (whether voluntary or
involuntary), the holders of the Series A Preferred Stock
shall be entitled to receive out of the assets of the Company,
whether such assets are capital or surplus of any nature, an
amount equal to $38,461.54 per share and, in addition to such
amount, a further amount equal to the dividends unpaid and
accumulated thereon, as provided in Section I.A. hereof, to the
date of such distribution, whether earned or declared or not, and
no more, before any payment shall be made or any assets
distributed to the holders of common shares or any other class or
series of the Company's capital stock (other than the Series B
Preferred Stock).
If upon such liquidation, dissolution, or winding up, whether
voluntary or involuntary, the assets thus distributed among the
holders of all classes or series of the Company's Series A
Preferred Stock and Series B Preferred Stock shall be insufficient
to permit the payment to such shareholders of the full
preferential amounts, then the entire assets of the Company to be
distributed shall be distributed ratably among the holders of all
of the Series A Preferred Stock and Series B Preferred Stock.
In the event of any such liquidation, dissolution, or winding up
of the Company, whether voluntary or involuntary, subject to all
of the preferential rights of the holders of the Series A
Preferred Stock and all other classes or series of preferred stock
on distribution or otherwise, the holders of common shares shall
be entitled to receive, ratably, all of the remaining assets of
the Company.
A consolidation or merger of the Company with or into any other
corporation or corporations or any other event specified in
Section I.G.1. shall not be deemed to be a liquidation,
dissolution, or winding up, within the meaning of this clause.
3
4
EXHIBIT 3.1
The Series A Preferred Stock shall rank prior to any other class
or series of the Company's capital stock (other than the Series B
Preferred Stock) and in no event shall the Company redeem,
purchase, retire or otherwise acquire for any consideration, or
make any payment on account of a sinking fund or other similar
fund for the redemption, purchase, retirement or acquisition of,
any other capital stock of the Company (other than the Series B
Preferred Stock), or any warrant, right or option to purchase any
thereof, or make any distribution in respect thereof, directly or
indirectly, whether in cash, obligations or securities of the
Company or other property prior to the redemption of all of the
shares of Series A Preferred stock as provided herein.
Notwithstanding the foregoing, the Company shall be entitled to
redeem Warrants or Warrant Shares in each case in accordance with
the terms set forth in the Warrants. The Company shall also be
entitled to redeem Plan Shares pursuant to the terms of the Plan
other than Plan Shares held by the Management Group provided such
redemptions do not, in the aggregate, exceed 61,919 shares as
adjusted for stock splits and combinations of stock.
C. Voting. The holders of the Series A Preferred Stock shall have
no voting rights except to the extent that such voting rights
may not be denied under the Delaware General Corporation Law.
D. Transfer Restrictions. Except as hereinafter provided, no holder
of the Series A Preferred Stock may transfer such shares. A holder
of shares of Series A Preferred Stock may, upon furnishing the
Company with (i) information sufficient for the Company to
determine in its reasonable judgment that the proposed transfer is
exempt from registration under the Securities Act of 1933, or (ii)
an opinion letter from the holder's legal counsel reasonably
satisfactory in form and substance to the Company as to the
proposed transfer's compliance with state and federal securities
laws, transfer all, but not less than all, of the shares of Series
A Preferred Stock owned by such holder to any corporation
controlled by, controlling, or under common control with, the
initial holder of such shares, provided that such transferee is
not engaged in any business which is in competition with any
business engaged in by the Company.
E. Waiver of Preemptive Rights. Notwithstanding any provision of
this Certificate of Incorporation, no holder of the Series A
Preferred Stock shall be entitled as such as a matter of right to
subscribe for or purchase any part of any new or additional issue
of stock of any class whatsoever, or of securities convertible
into stock of any class whatsoever, whether now or hereafter
authorized, or whether issued for property or services or by way
of dividend or for cash, and all such rights are waived by each
holder of Series A Preferred Stock.
F. Right to Receive Financial Information; Non-Disclosure. The
Company shall, on or before August 31 of each year, furnish the
holders of the Series A Preferred Stock with its internally
prepared unaudited income statement and balance sheet as at and
4
5
EXHIBIT 3.1
for the six months ended June 30 and, on or before March 31 of
each year, its annual audited year end income statement and
balance sheet. Access to such financial statements shall be
strictly limited by the holders of the Series A Preferred Stock to
those persons employed by such shareholders and their affiliates
who have responsibility for monitoring the investment in the
Company and, under no circumstances, shall such financial
statements or the information contained therein be made available
or disclosed to any other persons or used for any other purposes.
G. Redemption.
1. Put Option. Each holder of shares of the Series A
Preferred Stock shall have the right, upon written notice to
the Company, to require the Company to redeem all but not
less than all of the shares of Series A Preferred Stock owned
by such holder at the date of redemption (the "Put Option")
at a price equal to $38,461.54 per share, plus accrued
dividends (whether or not earned or declared) (as described
in Section I-A above) to and including the date fixed for
redemption as follows: (a) at such time as cumulatively more
than two thirds (2/3) of the outstanding equity interests in
the Company (which for purposes of this entire Section I.G.1.
shall be deemed to include any successor thereto or any
holding company whose principal asset consists of its
investment in the Company or such successor) are in one or
more transactions sold to an "Unrelated Third Party", which
shall mean one or more parties not directly or indirectly
controlled by, controlling, or under common control with the
Company (an "Overall Ownership Shift" which, by way of
clarification, shall not include a distribution of the
outstanding equity interests of the Company owned by Rush
Creek LLC to its members); (b) at such time as the Management
Group and other then current management employees of the
Company or their family members or trusts, limited liability
companies or partnerships for their benefit (together, the
"Employee Ownership Group") collectively cease to retain a
beneficial ownership interest of at least fifty percent (50%)
of the percentage equity interest in the Company initially
issued to the Employee Ownership Group (excluding any amounts
reserved for the Employee Ownership Group which are
contingent upon the future performance of the Company) unless
such cessation is the result of (i) the issuance of
additional equity interest by the Company to persons other
than the Employee Ownership Group, or (ii) a sale of equity
interests in the Company by the Employee Ownership Group due
to the Company's being in substantial distress as, for
example, evidenced by the declaration of a default by the
holders of the Company's debt instruments (an "Employee
Ownership Shift"); (c) upon the transfer of substantially all
of the assets of the Company to an Unrelated Third Party,
whether by sale, merger, consolidation or otherwise (an
"Asset Shift"); (d) at such time as the Company may specify
within the 120-day period following either a refinancing and
retirement (a "New Refinancing Transaction") of the
5
6
EXHIBIT 3.1
$125,000,000 senior notes being issued in connection with the
1998 Refinancing Transaction or an IPO (as hereinafter
defined); or (e) seven years after issuance of the Series A
Preferred Stock. In the event that the Put Option would
become exercisable by reason of an Overall Ownership Shift or
an Employee Ownership Shift under circumstances other than a
sale of all of the stock of the Company (other than the
Series A and Series B Preferred Stock), and the exercise of
the Put Option under such other circumstances would cause the
Company to be in default of covenants with its lenders, the
exercise of the Put Option shall be deferred until such time
as its exercise would not cause a default (but not later than
seven (7) years after issuance). During any such deferral
period, the Company shall use its best efforts with its
lenders to obtain an amendment or waiver to permit such
exercise and shall not permit any increase to occur in the
compensation payable to any member of the Management Group or
repurchase any of its other outstanding stock.
Notwithstanding the foregoing, the Company shall be entitled
to redeem Warrants or Warrant Shares in each case in
accordance with the terms set forth in the Warrants. The
Company shall also be entitled to redeem Plan Shares pursuant
to the terms of the Plan other than Plan Shares held by the
Management Group provided such redemptions do not, in the
aggregate, exceed 61,919 shares as adjusted for stock splits
and combinations of stock. No such deferral or delay in the
exercise of the Put Option shall prevent the termination of
the indemnity obligations of the initial holders of the
Series A Preferred Stock in accordance with the terms of the
Agreement and Plan of Reorganization among the Company and
certain other parties dated as of July 30, 1997 (the
"Reorganization Agreement").
In the event the Company shall propose to take any action of
the type described in this Section I.G.1. (or upon the
occurrence of any event described in this Section I.G.1., if
not within the Company's control), the Company shall give
written notice at least 15 days prior to the taking of the
proposed action (or within 5 days of any action not in the
Company's control) to each stockholder at the post office
address as shown on the Company's records which notice shall
specify the approximate date on which such action shall take
place.
Upon the delivery of written notice to the Company of any
stockholder's election to redeem all of the Series A
Preferred Stock held by such stockholder pursuant to this
Section I.G.1., the Company shall, as promptly as practicable
after the date of surrender of the redeemed certificates, pay
all redemption amounts due to such stockholder.
"IPO" shall mean the initial public offering by the Company
of its equity securities pursuant a registration statement on
Form S-1 or otherwise under the Securities Act of 1933 as
amended.
6
7
EXHIBIT 3.1
2. Call Option. The Company, at the option of the Board of
Directors, may at any time redeem all or any part of the
Series A Preferred Stock by paying in cash therefor an amount
equal to $38,461.54 per share, and, in addition to such
amount, an amount in cash equal to all dividends on such
preferred shares unpaid and accumulated as provided in
Section I-A of this Statement, whether or not earned or
declared, to and including the date fixed for redemption. In
case of the redemption of only a part of such outstanding
preferred shares, the Company shall effect such redemption
pro rata. At least thirty (30) days' previous notice by mail,
postage prepaid, shall be given to the holders of record of
the Series A Preferred Stock to be redeemed, such notice to
be addressed to each such stockholder at his, her, or its
post office address as shown by the records of the Company.
On or after the date fixed for redemption and stated in such
notice, each holder of such Series A Preferred Stock called
for redemption shall surrender his, her, or its certificate
evidencing such shares to the Company at the place designated
in such notice and shall thereupon be entitled to receive and
shall receive on such date payment of the redemption price.
In case less than all of the shares represented by any such
surrendered certificate are redeemed, a new certificate shall
be issued representing the unredeemed shares. If such notice
of redemption shall have been duly given, and if on the date
fixed for redemption funds necessary for the redemption shall
be available therefor, then, notwithstanding that the
certificates evidencing any Series A Preferred Stock so
called for redemption shall not have been surrendered, the
dividends with respect to the shares so called for redemption
shall cease to accrue after the date fixed for redemption and
all rights with respect to the shares so called for
redemption shall forthwith after such date cease, except only
the right of the holders to receive the redemption price
thereof without interest upon surrender of their certificates
therefor.
3. Mandatory Redemption. Simultaneous with the consummation of
the 1998 Refinancing Transaction, the holders of the Series A
Preferred Stock shall sell and the Company shall purchase and
redeem on a pro-rata basis from each of the holders thereof
an aggregate of seventy eight (78) shares of the Series A
Preferred Stock at a price equal to $38,461.54 per share,
plus accrued dividends. On August 1, 2000, the holders of the
Series A Preferred Stock shall sell and the Company shall
purchase and redeem on a pro-rata basis from each of the
holders thereof an aggregate of twenty six (26) shares of the
Series A Preferred Stock at a price equal to $38,461.54 per
share, plus accrued dividends. On August 1, 2001, the holders
of the Series A Preferred Stock shall sell and the Company
shall purchase and redeem twenty six on a pro-rata basis from
each of the holders thereof an aggregate of (26) shares of
the Series A Preferred Stock at a price equal to $38,461.54
per share, plus accrued dividends. Each holder of such Series
A Preferred Stock being redeemed shall surrender his, her, or
its certificate evidencing such shares to
7
8
EXHIBIT 3.1
the Company at its principal office and shall thereupon be
entitled to receive and shall receive on such date payment of
the redemption price by wire transfer of immediately
available funds to such account as the holder shall direct in
writing. In case less than all of the shares represented by
any such surrendered certificate are redeemed, a new
certificate shall be issued representing the unredeemed
shares. If on the date fixed for redemption funds necessary
for the redemption shall be available therefor, then,
notwithstanding that the certificates evidencing any Series A
Preferred Stock scheduled for redemption shall not have been
surrendered, the dividends with respect to such shares shall
cease to accrue after the date fixed for redemption and all
rights with respect to such shares shall forthwith after such
date cease, except only the right of the holders to receive
the redemption price thereof.
H. Offset. Notwithstanding any provision herein to the contrary,
the actual redemption price paid hereunder for the Series A
Preferred Stock shall be the redemption price calculated as
provided hereunder minus the amount of any claims owing under
Sections 6, 7 and 8 of the Reorganization Agreement.
I. Amendment. Notwithstanding any other paragraph or provision
hereof, neither the Company nor any of its subsidiaries may amend,
restate or modify the Certificate of Incorporation, Bylaws or
other governance documents in a manner which could adversely
affect the rights of the holders of the Series A Preferred Stock
without the approval, by vote or written consent, of the holders
of all of the issued and outstanding Series A Preferred Stock.
II. SERIES B PREFERRED STOCK.
There shall be One Hundred Thirty (130) shares of Series B
Preferred Stock authorized. The terms of the Series B Preferred Stock shall be
as follows:
A. Dividends.
1. Normal Dividends. The holders of the 130 shares of Series B
Preferred Stock shall be entitled to receive dividends at the
rate of $1,538.47 per share per year, and no more, payable in
cash, without interest and only upon redemption, out of any
funds of the Company at the time legally available for the
declaration of dividends, when and as declared by the Board
of Directors. Dividends on all such issued and outstanding
preferred shares shall accrue from day to day from the date
of issuance of such shares to the date set forth in Section B
or G hereunder, as the case may be, whether or not earned or
declared and shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. Such dividends shall be
payable before any dividends shall be declared or paid upon
or set apart for the common shares or any other
8
9
EXHIBIT 3.1
class or series of the Company's capital stock (other than
the Series A Preferred Stock), and shall be cumulative, so
that if in any year or years dividends upon such outstanding
preferred shares shall not have been declared (at the rate
described above) and set apart therefor, the amount of the
deficiency shall be fully declared and set apart for payment,
but without interest, before any distribution, whether by way
of dividend or otherwise, shall be declared or paid upon, or
set apart for, the common shares or any other class or series
of the Company's capital stock (other than the Series A
Preferred Stock).
Unless all cumulative dividends on the Series B Preferred
Stock (including default dividends as described in Section
II.A.2. below) have been or contemporaneously are declared by
the Company's Board of Directors and paid or declared and a
sum sufficient for the payment thereof set apart by the
Company to the date of any event described in Section II.G.
below, the Company shall not redeem, purchase, retire or
otherwise acquire for any consideration, or make any payment
on account of a sinking fund or other similar fund for the
redemption, purchase, retirement or acquisition of any other
capital stock of the Company (other than the Series A
Preferred Stock), or any warrant, right or option to purchase
any thereof, or make any distribution in respect thereof,
directly or indirectly, whether in cash, obligations or
securities of the Company or other property. Notwithstanding
the foregoing, the Company shall be entitled to redeem
Warrants or Warrant Shares in each case in accordance with
the terms set forth in the Warrants. The Company shall also
be entitled to redeem Plan Shares pursuant to the terms of
any Plan other than Plan Shares held by the Management Group
provided such redemptions do not, in the aggregate, exceed
61,919 shares as adjusted for stock splits and combinations.
2. Dividends Upon Default. In the event of a default by the
Company after exercise of the Put Option or Call Option (both
as hereinafter defined) in the payment of the redemption
price or accrued dividends as required by Section II.G.1. of
this Statement, the rate of dividends on the Series B
Preferred Stock from the date of default to the date on which
such default is cured shall prospectively increase to
$2,307.69 per share per year (a 50% increase) from the date
of default to the date on which such default is cured.
B. Liquidation and Rank. In the event of a liquidation, dissolution,
or winding up of the Company (whether voluntary or involuntary),
the holders of the Series B Preferred Stock shall be entitled to
receive out of the assets of the Company, whether such assets are
capital or surplus of any nature, an amount per share equal to
1/130th of the Redemption Price (as hereinafter defined) and, in
addition to such amount, a further amount equal to the dividends
unpaid and accumulated thereon, as provided
9
10
EXHIBIT 3.1
in Section II.A hereof, to the date of such distribution, whether
earned or declared or not, and no more, before any payment shall
be made or any assets distributed to the holders of common shares
or any other class or series of the Company's capital stock (other
than the Series A Preferred Stock).
If upon such liquidation, dissolution, or winding up, whether
voluntary or involuntary, the assets thus distributed among the
holders of all classes or series of the Company's Series A
Preferred Stock and Series B Preferred Stock shall be insufficient
to permit the payment to such shareholders of the full
preferential amounts, then the entire assets of the Company to be
distributed shall be distributed ratably among the holders of the
Series A Preferred Stock and Series B Preferred Stock.
In the event of any such liquidation, dissolution, or winding up
of the Company, whether voluntary or involuntary, subject to all
of the preferential rights of the holders of the Series B
Preferred Stock and all other classes or series of preferred stock
on distribution or otherwise, the holders of common shares shall
be entitled to receive ratably all of the remaining assets of the
Company.
A consolidation or merger of the Company with or into any other
corporation or corporations or any other event specified in
II.G.1. shall not be deemed to be a liquidation, dissolution, or
winding up, within the meaning of this clause.
The Series B Preferred Stock shall rank prior to any other class
or series of the Company's capital stock (other than the Series A
Preferred Stock) and in no event shall the Company redeem,
purchase, retire or otherwise acquire for any consideration, or
make any payment on account of a sinking fund or other similar
fund for the redemption, purchase, retirement or acquisition of
any other capital stock of the Company (other than the Series A
Preferred Stock), or any warrant, right or option to purchase any
thereof, or make any distribution in respect thereof, directly or
indirectly, whether in cash, obligations or securities of the
Company or other property prior to the redemption of all of the
shares of Series A Preferred Stock and Series B Preferred Stock as
provided herein. Notwithstanding the foregoing, the Company shall
be entitled to redeem Warrants or Warrant Shares in each case in
accordance with the terms set forth in the Warrants. The Company
shall also be entitled to redeem Plan Shares pursuant to the terms
of any Plan, other than shares held by the Management Group
provided such redemptions do not, in the aggregate, exceed 61,919
shares as adjusted for stock splits and combinations of stock.
C. Voting. The holders of the Series B Preferred Stock shall have
no voting rights except such voting rights as may not be denied
under the Delaware General Corporation Law.
10
11
EXHIBIT 3.1
D. Transfer Restrictions. Except as hereinafter provided, no holder
of the Series B Preferred Stock may transfer such shares. A holder
of shares of Series B Preferred Stock may, upon furnishing the
Company with (i) information sufficient for the Company to
determine in its reasonable judgment that the proposed transfer is
exempt from registration under the Securities Act of 1933, or (ii)
an opinion letter from the holder's legal counsel reasonably
satisfactory in form and substance to the Company as to the
proposed transfer's compliance with state and federal securities
laws, transfer all, but not less than all, of the shares of Series
B Preferred Stock owned by such holder to any corporation
controlled by, controlling, or under common control with, the
initial holder of such shares, provided that such transferee is
not engaged in any business which is in competition with any
business engaged in by the Company.
E. Waiver of Preemptive Rights. Notwithstanding any provision of
this Certificate of Incorporation, no holder of the Series B
Preferred Stock shall be entitled as such as a matter of right to
subscribe for or purchase any part of any new or additional issue
of stock of any class whatsoever, or of securities convertible
into stock of any class whatsoever, whether now or hereafter
authorized, or whether issued for property or services or by way
of dividend or for cash, and all such rights are waived by each
holder of Series B Preferred Stock.
F. Right to Receive Financial Information; Non-Disclosure. The
Company shall, on or before August 31 of each year, furnish the
holders of the Series B Preferred Stock with its internally
prepared unaudited income statement and balance sheet as at and
for the six months ended June 30 and, on or before March 31 of
each year, its annual audited year end income statement and
balance sheet. Access to such financial statements shall be
strictly limited by the holders of the Series B Preferred Stock to
those persons employed by such shareholders and their affiliates
who have responsibility for monitoring the investment in the
Company and, under no circumstances, shall such financial
statements or the information contained therein be made available
or disclosed to any other persons or used for any other purposes.
G. Redemption.
1. Put Option. Each holder of shares of the Series B Preferred
Stock shall have the right, upon written notice to the
Company, to require the Company to redeem all but not less
than all of the shares of Series B Preferred Stock owned by
such holder at the date of redemption (the "Put Option") at a
per share price equal to 1/130th of the "Redemption Price"
(as defined in Section II.H. below), plus accrued dividends
(whether or not earned or declared) (as described in Section
II.A. above) to and including, the date fixed for redemption
as follows: (a) upon the occurrence of an Overall Ownership
Shift, Employee Ownership Shift or Asset Shift; (b) at such
time as the Company may specify within the 120-day period
following either a New
11
12
EXHIBIT 3.1
Refinancing Transaction or an IPO (as hereinafter defined);
or (c) seven years after issuance of the Series B Preferred
Stock. In the event that the Put Option would become
exercisable by reason of an Overall Ownership Shift or an
Employee Ownership Shift under circumstances other than a
sale of all of the stock of the Company (other than the
Series A and Series B Preferred Stock), and the exercise of
the Put Option under such other circumstances would cause the
Company to be in default of covenants with its lenders, the
exercise of the Put Option shall be deferred until such time
as its exercise would not cause a default (but not later than
seven (7) years after issuance). During any such deferral
period, the Company shall use its best efforts with its
lenders to obtain an amendment or waiver to permit such
exercise and shall not permit any increase to occur in the
compensation payable to any member of the Management Group or
repurchase any of its other outstanding stock.
Notwithstanding the foregoing, the Company shall be entitled
to redeem Warrants or Warrant Shares in each case in
accordance with the terms set forth in the Warrants. The
Company shall also be entitled to redeem Plan Shares pursuant
to the terms of any Plan other than Plan Shares held by the
Management Group provided such redemptions do not, in the
aggregate, exceed 61,919 shares as adjusted for stock splits
and combinations of stock. No such deferral or delay in the
exercise of the Put Option shall prevent the termination of
the indemnity obligations of the initial holders of the
Series B Preferred Stock in accordance with the terms of the
Reorganization Agreement.
In the event the Company shall propose to take any action of
the type described in this Section II.G.1. (or upon the
occurrence of any event described in this Section II.G.1., if
not within the Company's control), the Company shall give
written notice at least 15 days prior to the taking of the
proposed action (or within 5 days of any action not in the
Company's control) to each stockholder at the post office
address as shown on the Company's records which notice shall
specify the approximate date on which such action shall take
place.
Upon the delivery of written notice to the Company of any
stockholder's election to redeem all of the Series B
Preferred Stock held by such stockholder pursuant to this
Section II.G.1., the Company shall, as promptly as
practicable after the date of surrender of the redeemed
certificates, pay all redemption amounts due to such
stockholder.
2. Call Option. The Company, at the option of the Board of
Directors, may at any time after December 31, 2001 redeem all
or any part of the Series B Preferred Stock by paying in cash
therefor an amount equal to 1/130th of the Redemption Price
per share and, in addition to such amount, an amount in cash
equal to all dividends on such preferred shares unpaid and
accumulated
12
13
EXHIBIT 3.1
as provided in this Section II.A, whether or not earned or
declared, to and including the date fixed for redemption. In
case of the redemption of only a part of such outstanding
preferred shares, the Company shall effect such redemption
pro rata. At least thirty (30) days' previous notice by mail,
postage prepaid, shall be given to the holders of record of
the Series B Preferred Stock to be redeemed, such notice to
be addressed to each such stockholder at his post office
address as shown by the records of the Company. On or after
the date fixed for redemption and stated in such notice, each
holder of such Series B Preferred Stock called for redemption
shall surrender his certificate evidencing such shares to the
Company at the place designated in such notice and shall
thereupon be entitled to receive and shall receive on such
date payment of the redemption price. In case less than all
of the shares represented by any such surrendered certificate
are redeemed, a new certificate shall be issued representing
the unredeemed shares. If such notice of redemption shall
have been duly given, and if on the date fixed for redemption
funds necessary for the redemption shall be available
therefor, then, notwithstanding that the certificates
evidencing any Series B Preferred Stock so called for
redemption shall not have been surrendered, the dividends
with respect to the shares so called for redemption shall
cease to accrue after the date fixed for redemption and all
rights with respect to the shares so called for redemption
shall forthwith after such date cease, except only the right
of the holders to receive the redemption price thereof
without interest upon surrender of their certificates
therefor.
H. Redemption Price.
1. Normal Redemption Price. Except as hereinafter specifically
set forth to the contrary Certificate of Incorporation, the
redemption price of the Series B Preferred Stock (the
"Redemption Price") shall be the "Normal Redemption Price"
which shall be based upon the Company's Water Tech Division's
cumulative earnings before income taxes ("EBIT"), for the
period 1997 through 2001 as set forth below (except as set
forth in II.H.1.(f).).
(a) If actual cumulative EBIT is less than 80% of the
cumulative EBIT shown on Schedule A, attached hereto,
the Normal Redemption Price shall be zero.
(b) If actual cumulative EBIT is 80% of the cumulative EBIT
shown on Schedule A, the Normal Redemption Price shall
be $2,500,000.
(c) If actual cumulative EBIT is more than 80%, but less
than 120%, of the cumulative EBIT shown on Schedule A,
the Normal Redemption Price shall be $2,500,000 plus
$125,000 for each percentage point by which the actual
cumulative EBIT exceeds 80% of the cumulative
13
14
EXHIBIT 3.1
EBIT shown on Schedule A (prorated for each portion of a
percentage point).
(d) If actual cumulative EBIT is 120% or more of the
cumulative EBIT shown on Schedule A, the Normal
Redemption Price shall be $7,500,000.
(e) The cumulative EBIT thresholds shown on Schedule A
shall not be adjusted in the event of an acquisition.
(f) If, prior to December 31, 2001, either (a) the business
of the Company's Water Tech Division (the "Water Tech
Business") is sold to an Unrelated Third Party or (b)
there occurs an IPO, an Overall Ownership Shift, an
Asset Shift or an Employee Ownership Shift, then in any
of such events, the Normal Redemption Price shall be
computed as of the end of the month preceding the date
of any such event.
2. Redemption Price if Water Tech Business Sold. If the Water
Tech Business is sold to an Unrelated Third Party prior to
redemption of the Series B Preferred Stock, the Redemption
Price shall be the greater of (i) the Normal Redemption Price
or (ii) the "Alternative Redemption Price", as hereinafter
defined.
3. Redemption Price if IPO Occurs. If, prior to the first to
occur of (i) December 31, 2001 or (ii) a sale of the Water
Tech Business to an Unrelated Third Party, there occurs an
IPO, then, in such event, but only in such event, the
Redemption Price shall be the greatest of (a) $5,000,000, (b)
the Normal Redemption Price, or (c) the Alternative
Redemption Price. In determining the Alternative Redemption
Price in the event of an IPO, the Alternative Redemption
Price provisions applicable upon a sale of the Water Tech
Business shall be applied, with the Water Tech Business being
deemed to have been sold at a selling price representing the
same multiple of Water Tech EBIT for the most recently
completed fiscal year as the multiple of Company-wide EBIT
for such fiscal year that the offering price in the IPO
represents. If the IPO occurs after December 31, 2001, but
before a sale of the Water Tech business, the Redemption
Price for the Series B Preferred Stock shall be the Normal
Redemption Price, unless the Normal Redemption Price is zero,
in which event the Redemption Price shall be the Alternative
Redemption Price.
4. Redemption Price if Sale of Company Occurs. If, prior to the
first to occur of (i) December 31, 2001 or (ii) a sale of the
Water Tech Business to an Unrelated Third Party, there occurs
either (a) an Overall Ownership Shift, (b)
14
15
EXHIBIT 3.1
an Employee Ownership Shift or (c) an Asset Shift and, in the
further event that, at the time of the closing of a
transaction described in clause (a), (b) or (c) above, the
actual cumulative Company-wide EBIT for the cumulative period
beginning January 1, 1997 and ending on such closing date is
at least 80% of the projected cumulative Company-wide EBIT
for such cumulative period as set forth in Schedule A, then,
in the event that all of the preceding conditions precedent
have been met, the Redemption Price for the Series B
Preferred Stock shall be the greatest of (x) $5,000,000, (y)
the Normal Redemption Price, or (z) the Alternative
Redemption Price. In determining the Alternative Redemption
Price in the event of a sale transaction described in this
paragraph, the Water Tech Business shall be deemed to have
been sold at a selling price representing the same multiple
of Water Tech EBIT for the most recently completed fiscal
year as (i) in the event of an Overall Ownership Shift or an
Employee Ownership Shift, the multiple of per share
Company-wide EBIT for such fiscal year that the actual per
share selling price of a share of the Company's common stock
represents or (ii) in the event of an Asset Shift, the
multiple of Company-wide EBIT for such year that the selling
price (adjusted for any retained assets or liabilities)
represents. If (a), (b) or (c) above occur after December 31,
2001, but before a sale of the Water Tech Business, or if
they occur and the Company-wide EBIT test above has not been
met, the Redemption Price shall be the Alternative Redemption
Price and the Water Tech business shall be deemed to have
been sold at a selling price representing the same multiple
of Water Tech EBIT for the most recently completed fiscal
year as the multiple of per share Company-wide EBIT for such
fiscal year that the actual selling price of the Company's
common stock represents.
For purposes of this Section II.H., the selling price shall
include all consideration paid for the business sold,
including, but without limitation, all cash, securities,
property and other assets received by the seller. All
consideration to be received by seller which is contingent on
the occurrence of future events shall be valued on the
selling date in a manner mutually agreeable to the Company
and the Series B Preferred stockholders.
5. Alternative Redemption Price. The Alternative Redemption
Price shall be determined as set forth below:
(a) If the sale of the Water Tech Business occurs prior to
July 30, 2002, the Alternative Redemption Price shall be
an amount equal to the sum of (1) $10,000 multiplied by
each percentage point of the net book value of the
assets of the Water Tech Division ("NBV") that the
actual selling price represents, up to and including
200% of NBV, plus (2) $15,000 multiplied by each
percentage point of NBV above
15
16
EXHIBIT 3.1
200% that the actual selling price represents (and in
each case prorated for each portion of a percentage
point).
(b) If the sale of the Water Tech Business occurs on or
after July 30, 2002, the Alternative Redemption Price
shall be one-half of the amount determined under the
immediately preceding formula in Section II.H.5(a)
above.
(c) If the actual selling price of the Water Tech Business
represents less than 50% of NBV, the Alternative
Redemption Price shall be zero.
(d) In determining the selling price for purposes of the
preceding calculations, an appropriate dollar-for-dollar
adjustment shall be made to reflect any Water Tech
assets or liabilities retained by the Company.
6. Maximum Redemption Price. Notwithstanding anything to the
contrary herein, the maximum Redemption Price under any
circumstances or alternatives shall not exceed $7,500,000.
I. Auditors; Dispute Resolution. The Company shall retain a Big Six
accounting firm to audit its annual financial statements and may
switch to a non-Big Six accounting firm only with the prior
written consent of the holders of the Series B Preferred Stock,
which consent shall not unreasonably be withheld. In connection
with any redemption of the Series B Preferred Stock, such
shareholders or their representatives (upon execution of a
confidentiality agreement) shall have the right to review the
Company's determination of the Redemption Price and its auditors'
work papers. Any disputes regarding the determination of the
Redemption Price shall be resolved by binding arbitration in
Chicago, Illinois in accordance with the rules of the American
Arbitration Association by a panel of three arbitrators. Any award
so obtained may be enforced in any Wisconsin state court or the
Federal Court of the United States sitting in Milwaukee, Wisconsin
and a judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law.
J. No Reorganization. Until the Company has redeemed all of the
shares of Series B Preferred Stock, the Company shall not, without
the prior written consent of all of the Series B Preferred
shareholders thereof, reorganize, restructure or otherwise
transfer any of the assets of its Water Tech Business or do any
other action that would have the effect of altering the
calculation of the Redemption Price hereunder.
K. Offset. Notwithstanding any provision herein to the contrary,
the actual redemption price paid hereunder for the Series B
Preferred Stock shall be the redemption price
16
17
EXHIBIT 3.1
calculated as provided in Section H hereunder minus the amount of
any claims owing under Sections 6, 7 and 8 of the Reorganization
Agreement.
L. Amendment. Notwithstanding any other paragraph or provision
hereof, neither the Company nor any of its subsidiaries may amend,
restate or modify the Certificate of Incorporation, Bylaws or
other governance documents which could adversely affect the rights
of the holders of the Series B Preferred Stock without the
approval, by vote or written consent, of the holders of all of the
issued and outstanding Series B Preferred Stock.
III. SERIES C PREFERRED STOCK
There shall be Six Thousand (6,000) shares of Series C Preferred Stock
authorized. The terms of the Series C Preferred Stock shall be as follows:
A. Dividends. The holders of Series C Preferred Stock shall be
entitled to receive quarterly dividends at the rate of ten and
17/100 percent (10.17%) per annum on the Original Issue Price (as
hereinafter defined), and no more, payable in cash only upon
redemption thereof, upon the liquidation, dissolution or winding
up of the Company or upon the occurrence of an Overall Ownership
Shift, an Employee Ownership Shift, an Asset Shift or an IPO, out
of any funds of the Company at the time legally available for the
declaration of dividends, when and as declared by the Board of
Directors. Dividends on all such issued and outstanding shares of
Series C Preferred Stock shall accrue from day to day from the
date of issuance of such shares to the date set forth in Section B
or C hereunder, as the case may be, whether or not earned or
declared and shall be computed o the basis of a 360 day year
consisting of twelve 30-day months. Such dividends shall be
payable before any dividends shall be declared or paid upon or set
apart for the common shares or any other class or series of the
Company's capital stock (other than the Series A and Series B
Preferred Stock), and shall be cumulative, so that if in any year
or years dividends upon such outstanding shares of Series C
Preferred Stock shall not have been declared (at the rate
described above) and set apart therefor, the amount of the
deficiency shall be fully declared and set apart for payment, but
without interest, before any distribution, whether by way of
dividends or otherwise, shall be declared or paid upon, or set
apart for, the common shares or any other class or series of the
Company's capital stock (other than the Series A and Series B
Preferred Stock).
B. Liquidation. In the event of a liquidation, dissolution, or
winding up of the Company (whether voluntary or involuntary), the
holders of the Series C Preferred Stock shall be entitled to
receive out of the assets of the Company, whether such assets are
capital or surplus of any nature, subject to the preferential
rights of the Series A and Series B Preferred Stock, an amount
equal to one hundred percent (100%) of the Original Issue Price,
and, in addition to such amount, a further amount equal to the
17
18
EXHIBIT 3.1
dividends unpaid and accumulated thereon, as provided in Section
III-A of this Statement, to the date of such distribution, whether
earned or declared or not, and no more, before any payment shall
be made or any assets distributed to the holders of common shares
or any other class or series of the Company's capital Stock (other
than the Series A and Series B Preferred Stock).
If upon such liquidation, dissolution, or winding up, whether
voluntary or involuntary, the assets thus distributed among the
holders of the Series C Preferred Stock shall be insufficient to
permit the payment to such holders of the Series C Preferred Stock
of the full preferential amounts, then such assets to be
distributed shall be distributed ratably among the holders of the
Series C Preferred Stock.
In the event of any such liquidation, dissolution, or winding up
of the Company, whether voluntary or involuntary, subject to all
of the preferential rights of the holders of the Series A, Series
B and Series C Preferred Stock on distribution or otherwise, the
holders of common shares shall be entitled to receive ratably all
of the remaining assets of the Company.
A consolidation or merger of the Company with or into any other
corporation or corporations or other events specified in Section
I.G.1. shall not be deemed to be a liquidation, dissolution, or
winding up, within the meaning of this clause.
Original Issue Price shall mean one thousand dollars ($1,000) per
share for each of the then outstanding series of Series C
Preferred Stock, as may be adjusted for subdivisions or
combinations of the Series C Preferred Stock.
C. Redemption.
1. Put Option. Notwithstanding any provision in this
Certificate of Incorporation, including without limitation
any provision of Section I or Section II, the holders of the
Series C Preferred Stock shall have the right, if the holders
of a majority of the issued and outstanding shares of Series
C Preferred Stock so elect, and after providing written
notice to the Company, to require the Company to redeem all
or any part of the Series C Preferred Stock (the "Put
Option") at a price equal to one thousand dollars ($1,000)
per share (the "Series C Redemption Price"), plus accrued
dividends (as described in Section III-A above) as follows:
(i) upon the occurrence of an Overall Ownership Shift, an
Employee Ownership Shift or an Asset Shift; (ii) within the
120-day period following an IPO; or (iii) eight (8) years
after issuance.
2. Call Option. Notwithstanding any provision in this
Certificate of Incorporation, including without limitation
any provision of Section I or Section II, the Company, at the
option of the Board of Directors, may,
18
19
EXHIBIT 3.1
provided the Series A and Series B Preferred Stock have been
previously redeemed, at any time after seven years redeem all
or any part of the Series C Preferred Stock by paying in cash
therefor an amount equal to the pro-rata portion of the
Series C Redemption Price per share, and, in addition to such
amount, an amount in cash equal to all dividends on such
shares of Series C Preferred Stock unpaid and accumulated as
provided in Section III-A of this Statement, whether or not
earned or declared, to and including the date fixed for
redemption. In case of the redemption of only a part of such
outstanding Series C Preferred Stock, the Company shall
effect such redemption pro rata. At least thirty (30) days'
previous notice by mail, postage prepaid, shall be given to
the holders of record of the Series C Preferred Stock to be
redeemed, such notice to be addressed to each such
stockholder at his post office address as shown by the
records of the Company. On or after the date fixed for
redemption and stated in such notice, each holder of such
Series C Preferred Stock called for redemption shall
surrender his certificate evidencing such shares to the
Company at the place designated in such notice and shall
thereupon be entitled to receive and shall receive on such
date payment of the redemption price. In case less than all
of the shares represented by any such surrendered certificate
are redeemed, a new certificate shall be issued representing
the unredeemed shares. If such notice of redemption shall
have been duly given, and if on the date fixed for redemption
funds necessary for the redemption shall be available
therefor, then, notwithstanding that the certificates
evidencing any Series C Preferred Stock so called for
redemption shall not have been surrendered, the dividends
with respect to the shares so called for redemption shall
cease to accrue after the date fixed for redemption and all
rights with respect to the shares so called for redemption
shall forthwith after such date cease, except only the right
of the holders to receive the redemption price thereof
without interest upon surrender of their certificates
therefor.
D. Voting. Each share of Series C Preferred Stock shall have the
voting rights equivalent to the rights of one share of common
stock.
E. Restrictions on Corporate Actions. Notwithstanding any other
paragraph or provision hereof, none of the following actions may
be taken by the Company or any of its Subsidiaries without the
approval by vote or written consent of the holders of a majority
of all issued and outstanding shares of Series C Preferred Stock:
1. During the period beginning July 30, 1997 and ending on
July 29, 2005, the consummation of an Organic Transaction (as
defined below).
2. Any amendment, restatement or modification of the Certificate
of Incorporation, By-laws (the "BY-LAWS") or other governance
documents
19
20
EXHIBIT 3.1
which could adversely affect the rights of the holders of
the Series C Preferred Stock;
3. Declaration or payment of any dividend or making of any
distribution on or with respect to the Common Stock or any
other capital stock (other than the Series A, Series B, and
Series C Preferred Stock);
4. Except as permitted herein with respect to the Series A,
Series B and Series C Preferred Stock, purchase, redeem or
retire, directly or indirectly, of any shares of capital
stock or other equity securities of the Company (or any
securities convertible or exchangeable into such securities);
5. Authorization, creation or issuance of any shares of capital
stock or other securities other than shares of Series A
Preferred Stock and Series B Preferred Stock issued in
accordance with the Agreement and Plan of Reorganization by
and among Rush Creek LLC, Aqua-Chem, Inc., A-C Acquisition
Corp., Miller, Lyonnaise American Holding, Inc., and Gestra
Corporation, N.V.
6. Incurrence of Indebtness (as defined in the Securities
Purchase Agreement) other than as described in paragraphs (a)
through (l) of Section 9.4 of the Securities Purchase
Agreement. References herein to any defined terms or
provisions of the Securities Purchase Agreement is to such
terms and provisions as in effect as of the date of the
Securities Purchase Agreement, without regard to any
subsequent, termination, amendment or other modification to
such terms or provisions.
7. Any amendment, restatement or modification of the terms of,
or documentation relating to Indebtedness of the Company
other than as permitted in the Securities Purchase Agreement.
References herein to any defined terms or provisions of the
Securities Purchase Agreement is to such terms and provisions
as in effect as of the date of the Securities Purchase
Agreement, without regard to any subsequent, termination,
amendment or other modification to such terms or provisions.
8. Engaging in any business other than the business in which
the Company or its Subsidiaries are currently engaged;
9. A voluntary dissolution, liquidation or winding up;
10. Enter into any transaction or agreement with, or make any
payment to, any Affiliate, officer or director of the
Company, amend or terminate any existing agreement with any
Affiliate, officer or director of the Company, purchase from
or provide to any Affiliate, officer or director of the
Company any
20
21
EXHIBIT 3.1
selling, general management or administrative services,
directly or indirectly make any sales to or purchases from
any Affiliate, officer or director of the Company; or
11. The sale of any assets of business of the company or any of
its Subsidiaries or the acquisition of assets that would be
prohibited by the Securities Purchase Agreement, as in effect
as of the date hereof, without regard to any subsequent,
termination, amendment or other modification of the Securites
Purchase Agreement.
For the purposes hereof the term (1) "ORGANIC TRANSACTION" means (x) the sale,
lease, exchange, transfer or other disposition of all or substantially all of
the Company's assets to a person or group of persons (y) any merger,
consolidation, refinancing or recapitalization that results in the holders of
the issued and outstanding voting securities of the Company immediately prior to
such transaction owning or controlling less than a majority of the voting
securities of the continuing or surviving entity immediately following such
transaction and/or (z) any person or persons acting together or which would
constitute a "group" for the purposes of Section 13(d) of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), together or with any
Affiliates thereof, other than the holders of the Common Stock or their
permitted transferees as of July 30, 1997, and the holders of the Series C
Preferred Stock as of July 30, 1997, and their respective Affiliates,
beneficially owning (as defined in Rule 13d-3 of the Exchange Act) or
controlling, directly or indirectly, at least 50% of the total voting power of
all classes of capital stock entitled to vote generally in the election of
Directors of the Company; and (2) "AFFILIATE" shall have the meaning assigned to
that term in Regulation 12b-2 promulgated under the Securities Exchange Act of
1934, as amended.
ARTICLE FIVE. A majority vote of the shareholders entitled to vote on a
matter shall be required for action on that matter.
ARTICLE SIX. The board of directors is authorized to make, alter or
repeal the by-laws of the Company.
ARTICLE SEVEN. No director shall be liable to the Company or any of its
stockholders for monetary damages for breach of fiduciary duty as a director,
except with respect to (1) a breach of the director's duty of loyalty to the
Company or its stockholders, (2) acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (3) liability
under Section 174 of the Delaware General Corporation Law or (4) a transaction
from which the director derived an improper personal benefit, it being the
intention of the foregoing provision to eliminate the liability of the Company's
directors to the Company or its stockholders to the fullest extent permitted by
Section 102(b)(7) of the Delaware General Corporation Law, as amended from time
to time. The Company shall indemnify to the fullest extent permitted by Sections
102(b)(7) and 145 of the Delaware General Corporation Law, as amended from time
to time, each person that such Sections grant the Company the power to
indemnify.
21
22
EXHIBIT 3.1
ARTICLE EIGHT. The name and mailing address of the sole incorporator
is:
James A. Feddersen
Whyte Hirschboeck Dudek S.C.
111 E. Wisconsin Avenue
Suite 2100
Milwaukee, WI 53202
I, THE UNDERSIGNED, being the incorporator hereinbefore 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 and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 31st day of July, 1997.
/S/ James A. Feddersen
-----------------------------------------
James A. Feddersen, Sole Incorporator
22
23
EXHIBIT 3.1
SCHEDULE A
WATER TECH
PROJECTED EARNINGS BEFORE INCOME AND TAXES
1997 - 2001
EBIT
1997 $2,474,000
1998 $3,156,000
1999 $4,720,000
2000 $6,890,000
2001 $8,979,000
AQUA-CHEM, INC.
PROJECTED EARNINGS BEFORE INCOME AND TAXES
1997-2001
EBIT
1997 $13,065,000
1998 $15,108,000
1999 $19,684,000
2000 $25,454,000
2001 $32,713,000
23