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EXHIBIT 3.1
EVI WEATHERFORD, INC.
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
1. The name of the Corporation is EVI Weatherford, Inc.
2. The address of the Corporation's 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 the Corporation's registered
agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or
promoted by 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.
4. The total number of shares of stock of all classes which the
Corporation has authority to issue is Two Hundred and Fifty-Three Million
(253,000,000) shares, of which Two Hundred and Fifty Million (250,000,000)
shares shall be Common Stock, with a par value of one dollar ($1.00) per share
("Common Stock"), and Three Million (3,000,000) shares shall be Preferred
Stock, with a par value of one dollar ($1.00) per share ("Preferred Stock").
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions of the shares of each class of
stock are as follows:
PREFERRED STOCK
Preferred Stock may be issued from time to time by the Board
of Directors as shares of one or more series. Subject to the
provisions hereof and the limitations prescribed by law, the Board of
Directors is hereby vested with the authority and is expressly
authorized, prior to issuance, by adopting resolutions providing for
the issuance of, or providing for a change in the number of, shares of
any particular series and, if and to the extent from time to time
required by law, by filing a certificate pursuant to the General
Corporation Law (or other law hereafter in effect relating to the same
or substantially similar subject matter), to establish or change the
number of shares to be included in each such series and to fix the
designation and relative powers, preferences and rights and the
qualifications and limitations or restrictions thereof relating to the
shares of each such series. The vested authority of the Board of
Directors with respect to each series shall include, but not be
limited to, the determination of the following:
(a) the distinctive serial designation of such
series and the number of shares constituting such series
(provided that the aggregate number of shares constituting all
series of Preferred Stock shall not exceed Three Million
(3,000,000));
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(b) the annual dividend rate, if any, on shares
of such series and the preferences, if any, over any other
series (or of any other series over such series) with respect
to dividends, and whether dividends shall be cumulative and,
if so, from which date or dates;
(c) whether the shares of such series shall be
redeemable and, if so, the terms and conditions of such
redemption, including the date or dates upon and after which
such shares shall be redeemable, and the amount per share
payable in case of redemption, which amount may vary under
different conditions and at different redemption dates;
(d) the obligation, if any, of the Corporation to
purchase or redeem shares of such series pursuant to a sinking
fund or purchase fund and, if so, the terms of such
obligation;
(e) whether shares of such series shall be
convertible into, or exchangeable for, shares of stock of any
other class or classes or any stock of any series of the same
class or any other class or classes or any evidences of
indebtedness and, if so, the terms and conditions of such
conversion or exchange, including the price or prices or the
rate or rates of conversion or exchange and the terms of
adjustment, if any;
(f) whether the shares of such series shall have
voting rights, in addition to the voting rights provided by
law, and if so, the terms of such voting rights, including,
without limitation, whether such shares shall have the right
to vote with the Common Stock on issues on an equal, greater
or lesser basis;
(g) the rights of the shares of such series in
the event of a voluntary or involuntary liquidation,
dissolution, winding up or distribution of assets of the
Corporation;
(h) whether the shares of such series shall be
entitled to the benefit of conditions and restrictions upon
(i) the creation of indebtedness of the Corporation or any
subsidiary, (ii) the issuance of any additional stock
(including additional shares of such series or of any other
series) or (iii) the payment of dividends or the making of
other distributions on the purchase, redemption or other
acquisition by the Corporation or any subsidiary of any
outstanding stock of the Corporation; and
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(i) any other relative rights, powers,
preferences, qualifications, limitations or restrictions
thereof relating to any such series.
Except where otherwise set forth in the resolution or
resolutions adopted by the Board of Directors providing for the
issuance of any series of Preferred Stock, the number of shares
comprising such series may be increased or decreased (but not below
the number of shares then outstanding) from time to time by like
action of the Board of Directors. The shares of Preferred Stock of
any one series shall be identical with the other shares in such series
in all respects except as to the dates from and after which dividends
thereon shall cumulate, if cumulative.
Shares of any series of Preferred Stock which have been
redeemed (whether through the operation of a sinking fund or
otherwise) or purchased by the Corporation, or which, if convertible
or exchangeable, have been converted into or exchanged for shares of
stock of any other class or classes shall have the status of
authorized and unissued shares of Preferred Stock and may be reissued
as a part of the series of which they were originally a part or may be
reclassified and reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of Directors
or as part of any other series of Preferred Stock, all subject to the
conditions or restrictions on issuance set forth in the resolution or
resolutions adopted by the Board of Directors providing for the
issuance of any series of Preferred Stock and to any filing required
by law.
Subject to the rights of any outstanding shares of any series
of Preferred Stock, this Restated Certificate of Incorporation may be
amended from time to time in a manner that would solely modify or
change the relative powers, preferences and rights and the
qualifications and limitations or restrictions of any issued shares of
any series of Preferred Stock then outstanding with the only required
vote or consent for approval of such amendment being the affirmative
vote or consent of the holders of a majority of the outstanding shares
of the series of Preferred Stock so affected provided that the powers,
preferences and rights and the qualification and limitations or
restrictions of such series after giving effect to such amendment are
no greater than the powers, preferences and rights and the
qualifications and limitations or restrictions permitted to be fixed
and determined by the Board of Directors with respect to the
establishment of any new series of shares of Preferred Stock pursuant
to the authority vested in the Board of Directors by this Article 4.
Approval of any such amendment by the holders of the Common Stock
shall not be required and any such amendment shall be deemed not to
have affected the holders of the Common Stock adversely.
The number of authorized shares of Preferred Stock may be
increased or decreased by the affirmative vote of the holders of a
majority of the stock of the Corporation entitled to vote without the
separate vote of holders of Preferred Stock as a class.
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COMMON STOCK
Subject to all of the rights of the Preferred Stock, and
except as may be expressly provided with respect to the Preferred
Stock herein, by law or by the Board of Directors pursuant to this
Article 4:
(a) dividends may be declared and paid or set
apart for payment upon Common Stock out of any assets or funds
of the Corporation legally available for the payment of
dividends and may be payable in cash, stock or otherwise;
(b) the holders of Common Stock shall have the
exclusive right to vote for the election of directors and on
all other matters requiring stockholder action, each share
being entitled to one vote; and
(c) upon the voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the
net assets of the Corporation shall be distributed pro rata to
the holders of Common Stock in accordance with their
respective rights and interests to the exclusion of the
holders of the Preferred Stock.
5. The Corporation is to have perpetual existence.
6. In furtherance and not in limitation of the powers conferred
by statute, the board of directors is expressly authorized:
To authorize and cause to be executed mortgages and liens upon
the real and personal property of the Corporation.
To set apart out of any of the funds of the Corporation
available for dividends a reserve or reserves for any proper purpose
and to abolish any such reserve in the manner in which it was created.
By a majority vote of the whole board, to designate one or
more committees. Any such committee, to the extent provided in the
resolution of the board of directors, or in the by-laws of the
Corporation, shall have and may exercise all the powers and authority
of the board of directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no
such committee shall have the power or authority in reference to
amending the certificate of incorporation (except that a committee
may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of
directors as provided in Section 151(a) of the Delaware General
Corporation Law, fix any of the preferences or rights of such shares
relating to dividends, redemption, dissolution, any distribution of
assets of the Corporation or the conversion into, or the exchange of
such shares for, shares of any other class or classes, or any other
series of the same or any other class or classes of stock of the
Corporation), adopting an
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agreement of merger or consolidation under Section 251 or 252 of the
Delaware General Corporation Law, recommending to the stockholders the
sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or
amending the bylaws of the Corporation; and, unless the resolution,
bylaws or certificate of incorporation expressly so provides, no such
committee shall have the power or authority to declare a dividend, to
authorize the issuance of stock or to adopt a certificate of ownership
and merger pursuant to Section 253 of the Delaware General Corporation
Law.
When and as authorized by the stockholders in accordance with
statute, to sell, lease or exchange all or substantially all of the
property and assets of the Corporation, including its good will and
its corporate franchises, upon such terms and conditions and for such
consideration, which may consist in whole or in part of money or
property including shares of stock in, and/or other securities of, any
other corporation or corporations, as its board of directors shall
deem expedient and for the best interest of the Corporation.
7. Elections of directors need not be by written ballot unless
the by-laws of the Corporation shall so provide.
Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the Corporation.
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 stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as 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.
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8. All of the powers of the Corporation, insofar as the same may
be lawfully vested by this Restated Certificate of Incorporation in the Board
of Directors of the Corporation, are hereby conferred upon the Board of
Directors of the Corporation.
In furtherance and not in limitation of the foregoing provisions of
this Article 8, and for the purpose of the orderly management of the business
and the conduct of the affairs of the Corporation, the Board of Directors of
the Corporation shall have the power to adopt, amend or repeal from time to
time any provision of the by-laws of the Corporation (including, without
limitation, by-laws governing the conduct of, and the matters which may
properly be brought before, meetings of the stockholders and by-laws specifying
the manner and extent to which prior notice shall be given of the submission of
proposals to be submitted at any meeting of stockholders or of nominations of
elections of directors to be held at any such meeting) by the vote of a
majority of the entire Board of Directors, subject to the right of the
stockholders of the Corporation entitled to vote thereon to adopt, amend or
repeal by-laws of the Corporation. In addition to any requirements of law and
any other provision of this Restated Certificate of Incorporation or any
resolution or resolutions of the Board of Directors adopted pursuant to Article
4 of this Restated Certificate of Incorporation (and notwithstanding the fact
that a lesser percentage may be specified by law, this Restated Certificate of
Incorporation or any such resolution or resolutions), the affirmative vote of
the holders of 80% or more of the combined voting power of the then outstanding
shares of stock of all classes and series of stock the holders of which are
entitled to vote generally in the election of directors, voting together as a
single class, shall be required to adopt, amend, alter or repeal any provision
of the by-laws.
9. The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Restated Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.
10. To the fullest extent that the General Corporation Law of the
State of Delaware as it exists on the date hereof and as it may hereafter be
amended permits the limitation or elimination of the liability of directors, no
director of the Corporation shall be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (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 an
improper personal benefit. No amendment to or repeal of this Article shall
apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of
such director occurring prior to such amendment or repeal.
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