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EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
KAISER ALUMINUM CORPORATION
(Pursuant to Section 245 of the
General Corporation Law of the State of Delaware)
The undersigned, for the purpose of restating the Restated Certificate
of Incorporation of Kaiser Aluminum Corporation, a corporation organized under
the laws of the State of Delaware (the "Corporation"), does hereby certify that:
(1) The present name of the Corporation is Kaiser Aluminum Corporation.
(2) The Corporation was originally incorporated under the name
"KaiserTech Limited". The original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
February 20, 1987.
(3) This Restated Certificate of Incorporation has been duly adopted by
the Corporation's Board of Directors in accordance with Section 245 of the
General Corporation Law of the State of Delaware. This Restated Certificate of
Incorporation only restates and integrates and does not further amend the
provisions of the certificate of incorporation of the Corporation as theretofore
amended or supplemented, and there is no discrepancy between those provisions
and the provisions of this restated certificate.
(4) The Restated Certificate of Incorporation of the Corporation is
hereby restated in its entirety as follows:
FIRST: The name of the corporation is Kaiser Aluminum Corporation.
SECOND: The address of the registered office of the corporation in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, City of
Wilmington, County of New Castle.
The name of the registered agent of the corporation is The Corporation Trust
Company.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of all classes of stock which the
corporation shall have authority to issue is ONE HUNDRED FORTY-FIVE MILLION
(145,000,000) shares consisting of:
(a) ONE HUNDRED TWENTY-FIVE MILLION (125,000,000) shares of the par
value of One Cent ($.01) per share, which shall be designated Common
Stock; and
(b) TWENTY MILLION (20,000,000) shares of the par value of Five Cents
($.05) per share, which shall be designated Preferred Stock.
A. Statement of Preferences, Limitations and Relative Rights in Respect
of Shares of Preferred Stock and Authority of Board of Directors to Fix
Designations, Powers, Preferences, Rights, Qualifications, Limitations and
Restrictions Thereof Not Fixed Hereby.
Shares of Preferred Stock may be issued from time to time in one or
more classes or one or more series within any class thereof, as may be
determined from time to time by the Board of Directors, each of said classes and
series to be distinctly designated. All shares of any one series of Preferred
Stock shall be alike in every particular. The voting rights, if any, of each
such class and series and the preferences and relative, participating, optional
and other special rights of each such class and series and the qualifications,
limitations or restrictions thereof, if any, may differ from those of any and
all other classes and series at any time outstanding; and, subject to the
provisions of Section C of this Article FOURTH, the Board of Directors of the
corporation is hereby expressly granted authority to fix, by resolutions duly
adopted prior to the issuance of any shares of a particular class or series of
Preferred Stock, the voting powers, if any, of stock of such class or series and
the designations, preferences and relative, participating, optional and other
special rights, and the qualifications, limitations and restrictions of such
class or series within such class, including, but without limiting the
generality of the foregoing, the following:
(a) The rate and times at which, and the terms and conditions on which,
dividends on Preferred Stock of such class or series shall be paid;
(b) The right, if any, of the holders of Preferred Stock
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of such class or series to convert the same into, or exchange the same for,
shares of other classes or series of stock of the corporation and the terms
and conditions of such conversion or exchange;
(c) The redemption price or prices and the time or times at which, and
the terms and conditions on which, Preferred Stock of such class or series
may be redeemed;
(d) The rights of the holders of Preferred Stock of such class or
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or winding up,
of the corporation;
(e) The terms of the sinking fund or redemption or purchase account, if
any, to be provided for the Preferred Stock of such class or series;
(f) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such class or series, which number
may be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof then
outstanding) from time to time by like action of the Board of Directors;
and
(g) The voting powers, if any, of the holders of such class or series
of Preferred Stock which may, without limiting the generality of the
foregoing, include (i) the right to more or less than one vote per share on
any or all matters voted upon by the stockholders, and (ii) the right,
voting as a class or series by itself or together with other classes or
series of Preferred Stock or all classes and series of Preferred Stock as a
class, to elect one or more directors of the corporation if there shall
have been a default in the payment of dividends on any one or more classes
or series of Preferred Stock or under such other circumstances and on such
conditions as the Board of Directors may determine.
B. Statement of Limitations, Relative Rights and Powers in Respect of
Shares of Common Stock.
1. After the requirements with respect to preferential dividends on the
Preferred Stock (fixed in accordance with the provisions of Section A of this
Article FOURTH) shall have been met and after the corporation shall have
complied with all of the requirements, if any, with respect to the setting aside
of sums as sinking funds or redemption or purchase accounts (fixed in accordance
with the provisions of Section A of this Article FOURTH), then and not otherwise
the holders of Common Stock shall be entitled to receive such dividends as may
be declared from time to time by the Board of Directors.
2. After distribution in full of the preferential amount to be
distributed to the holders of Preferred Stock in the event of the voluntary or
involuntary liquidation, distribution or sale of assets, dissolution or winding
up of the corporation, the holders of the Common Stock shall, subject to the
rights, if any, of the holders of Preferred Stock to participate therein (fixed
in accordance with the provisions of Section A of this Article FOURTH), be
entitled to receive all the remaining assets of the corporation, tangible and
intangible, of whatever kind available for distribution to stockholders ratably
in proportion to the number of shares of Common Stock held by them respectively.
3. Except as may otherwise be required by law or by the provisions of
such resolution or resolutions as may be adopted by the Board of Directors
pursuant to the provisions of Section A of this Article FOURTH, each holder of
Common Stock shall have one vote in respect of each share of stock held by him
on all matters voted upon by stockholders.
C. Other Provisions.
1. No holder of shares of any class or series of stock of the
corporation shall be entitled as such, as a matter of right, to subscribe for or
purchase any part of any new or additional issue of any stock of any class,
series or kind whatsoever, or to subscribe for or purchase securities
convertible into stock of, any class, series or kind whatsoever, whether now or
hereafter authorized, and whether issued for cash, property or services or by
way of dividends or otherwise.
2. The powers and rights of the holders of Common Stock shall be
subordinated to the powers, preferences and rights of the holders of Preferred
Stock. The relative powers, preferences and rights of each class or series of
Preferred Stock in relation to the powers, preferences and rights of each other
class or series of Preferred Stock shall, in each case, be as fixed from time to
time by the provisions of such resolution or resolutions as may be adopted by
the Board of Directors pursuant to the provisions of Section A of this Article
FOURTH, and the consent, by class or series vote or otherwise, of the holders of
such of the classes or series of Preferred Stock as are from time to time
outstanding shall not be required for the issuance by the Board of Directors of
any other classes or series of Preferred Stock whether or not the powers,
preferences and rights of such other classes or series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers, preferences
and rights of such outstanding classes or series, or any of them; provided,
however, that the Board of Directors may provide in the resolution or
resolutions as to any classes or series of Preferred Stock adopted pursuant to
the provisions of Section A of this Article FOURTH that the consent of the
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holders of a majority (or such greater proportion as shall be therein fixed) of
the outstanding shares of such classes or series voting thereon shall be
required for the issuance of any or all other classes or series of Preferred
Stock.
3. Subject to the provisions of Paragraph 2 of Section C of this
Article FOURTH, shares of any class or series of Preferred Stock may be
authorized or issued, in aggregate amounts not exceeding the total number of
shares of Preferred Stock authorized by this Restated Certificate of
Incorporation, from time to time as the Board of Directors of the corporation
shall determine and for such consideration as shall be fixed by the Board of
Directors.
4. Shares of Common Stock, in an aggregate amount not exceeding the
total number of shares of Common Stock authorized in this Restated Certificate
of Incorporation, may be issued from time to time as the Board of Directors of
the corporation shall determine and for such consideration as shall be fixed by
the Board of Directors.
5. The authorized number of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased from time
to time by the affirmative vote of the holders of a majority of the stock of the
corporation entitled to vote thereon.
FIFTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this corporation under
the provisions of Section 291 of Title 8 of the Delaware Code, or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this corporation under the provisions of Section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholder of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
SIXTH: The Board of Directors of the corporation reserves the right to
amend, alter, change or repeal the By-laws of the corporation, in the manner now
or hereafter prescribed by statute.
SEVENTH:
(a) This corporation shall to the fullest extent permitted by Delaware
law, as in effect from time to time (but, in the case of any amendment of the
General Corporation Law of the State of Delaware, only to the extent that such
amendment permits this corporation to provide broader indemnification rights
than said law permitted this corporation to provide prior to such amendment),
indemnify each person who is or was a director or officer of this corporation or
of any of its wholly-owned subsidiaries at any time on or after October 28, 1988
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, or was or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
is or was a director, officer, employee or agent of this corporation or of any
of its subsidiaries, or is or was at any time serving, at the request of this
corporation, any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise in any capacity against all expense, liability
and loss (including, but not limited to, attorneys' fees, judgments, fines,
excise taxes or penalties (with respect to any employee benefit plan or
otherwise), and amounts paid or to be paid in settlement) incurred or suffered
by such director or officer in connection with such proceeding; provided,
however, that, except as provided in Paragraph (e) of this Article SEVENTH, this
corporation shall not be obligated to indemnify any person under this Article
SEVENTH in connection with a proceeding (or part thereof) if such proceeding (or
part thereof) was not authorized by the Board of Directors of this corporation
and was initiated by such person against (i) this corporation or any of its
subsidiaries, (ii) any person who is or was a director, officer, employee or
agent of this corporation or any of its subsidiaries and/or (iii) any person or
entity which is or was controlled, controlled by, or under common control with,
this corporation or has or had business relations with this corporation or any
of its subsidiaries.
(b) The right to indemnification conferred in this Article SEVENTH
shall be a contract right, shall continue as to a person who has ceased to be a
director or officer of this corporation or of any of its wholly-owned
subsidiaries and shall inure to the benefit of his or her heirs, executors and
administrators, and shall include the right to be paid by this corporation the
expenses incurred in connection with the defense or investigation of any such
proceeding in advance of its final disposition; provided, however, that, if and
to the extent that Delaware law so requires, the payment of such expense in
advance of the final disposition of a proceeding shall be made only upon
delivery to this corporation of an undertaking, by or on
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behalf of such director or officer or former director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer or former director or officer is not entitled to be indemnified by this
corporation.
(c) The corporation's obligation to indemnify and to pay expenses in
advance of the final disposition of a proceeding under this Article SEVENTH
shall arise, and all rights and protections granted to directors and officers
under this Article SEVENTH shall vest, at the time of the occurrence of the
transaction or event to which any proceeding relates, or at the time that the
action or conduct to which any proceeding relates was first taken or engaged in
(or omitted to be taken or engaged in), regardless of when any proceeding is
first threatened, commenced or completed.
(d) Notwithstanding any other provision of this Restated Certificate of
Incorporation or the By-Laws of this corporation, no action by this corporation,
either by amendment to or repeal of this Article SEVENTH or the By-Laws of this
corporation or otherwise shall diminish or adversely affect any right or
protection granted under this Article SEVENTH to any director or right or
protection granted under this Article SEVENTH to any director or officer or
former director or officer of this corporation or of any of its wholly-owned
subsidiaries which shall have become vested as aforesaid prior to the date that
any such amendment, repeal or other corporate action is taken.
(e) If a claim for indemnification and/or for payment of expenses in
advance of the final disposition of a proceeding arising under this Article
SEVENTH is not paid in full by this corporation within thirty days after a
written claim has been received by this corporation, the claimant may at any
time thereafter bring suit against this corporation to recover the unpaid amount
of the claim and, if successful in whole or in part, the claimant shall be
entitled to be paid also the expense of prosecuting such claim.
(f) The right to indemnification and the payment of expenses incurred
in connection with the defense or investigation of a proceeding in advance of
its final disposition conferred in this Article SEVENTH shall not be exclusive
of any other right which any person may have or hereafter acquire under any
statute, provision of this Restated Certificate of Incorporation, By-laws,
agreement, vote of stockholders or disinterested directors or otherwise. This
corporation may also indemnify all other persons to the fullest extent permitted
by Delaware law.
EIGHTH:
A. The business and affairs of the corporation shall be managed by or
under the direction of the Board of Directors. The number of directors of the
corporation shall be fixed by or pursuant to the By-laws of the corporation.
Election of directors need not be by written ballot unless the By-laws so
provide.
B. The term of office of any director shall expire at the next
succeeding annual meeting of stockholders.
NINTH: A director of this corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except: (i) for any breach of the director's duty of loyalty
to the corporation 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 General Corporation Law of the State of Delaware
or (iv) for any transaction from which the director derived any improper
personal benefit. If the General Corporation Law of the State of Delaware is
amended after approval by the stockholders of this Article NINTH to further
eliminate or limit 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 General Corporation Law of the State of Delaware, as so
amended. No amendment to or repeal of this Article NINTH shall adversely affect
any right or protection of a director of the corporation existing at the time of
such amendment or repeal.
IN WITNESS WHEREOF, I have signed this Restated Certificate of
Incorporation on behalf of Kaiser Aluminum Corporation this 18th day of
February, 2000.
KAISER ALUMINUM CORPORATION
By: /s/ J. Kent Friedman
J. Kent Friedman
Senior Vice President
and General Counsel
ATTEST
By: /s/ John Wm. Niemand II
John Wm. Niemand II
Secretary