Exhibit 3.1(a)
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF BLUE RHINO CORPORATION
(Incorporated on November 29, 1994)
BLUE RHINO CORPORATION, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: Pursuant to Section 242 and 245 of the General Corporation Law of
the State of Delaware (the "Delaware Law"), the Amended and Restated Certificate
of Incorporation, as amended, of BLUE RHINO CORPORATION, a Delaware corporation
(the "Corporation"), is hereby restated and amended to read in its entirety as
follows:
"SECOND AMENDED AND RESTATED CERTIFICATE
OF INCORPORATION
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FIRST: The name of the Corporation is Blue Rhino Corporation.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, City of Wilmington, County of New
Castle. The name of the registered agent of the Corporation at such address is
The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or promoted
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 stock which the Corporation shall
have authority to issue is One Hundred Twenty Million (120,000,000) shares
consisting of:
One Hundred Million (100,000,000) shares of Common Stock with a par value
of $.001 per share (the "Common Stock"); and
Twenty Million (20,000,000) shares of Preferred Stock, with a par value of
$.001 per share (the "Preferred Stock")
Except as otherwise required by law or expressly provided herein, the
holder of each share of Common Stock shall have one vote on each matter
submitted to a vote of the stockholders of the Corporation.
The holders of the Common Stock shall be entitled to receive dividends at
such times and in such amounts as may be determined by the Board of Directors of
the Corporation.
In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, after payment or provision for
payment of the debts and other liabilities of the Corporation, the holders of
Common Stock, shall be entitled to share ratably in the remaining assets of the
Corporation.
The holders of the Preferred Stock shall be entitled to such rights and
preferences as may be approved from time to time by the Board of Directors of
the Corporation as set forth in a Certificate of Designation filed pursuant to
the Delaware Law.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: The following provisions are included for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its Board of Directors and stockholders:
1. The Board of Directors of the Corporation is expressly authorized to
adopt, amend or repeal the By-laws of the Corporation, subject to any limitation
thereof contained in the By-laws. The stockholders shall also have the power to
adopt, amend or repeal the By-laws of the Corporation; provided, however, that,
in addition to any vote of the holders of capital stock of the Corporation
required by law or by this Second Amended and Restated Certificate of
Incorporation, the affirmative vote of the holders of at least seventy-five
percent (75%) of the voting power of all of the then outstanding shares of the
capital stock of the Corporation entitled to vote generally in the election of
directors shall be required to adopt, amend or repeal any provision of the By-
laws of the Corporation.
2. Upon the consummation of an initial public offering of Common Stock (the
"Initial Public Offering Date"), stockholders of the Corporation may not
thereafter take any action by written consent in lieu of a meeting.
3. Special meetings of stockholders may be called at any time only by the
Chairman of the Board of Directors, the President or a majority of the Board of
Directors. Business transacted at any special meeting of stockholders shall be
limited to matters relating to the purpose or purposes stated in the notice of
meeting.
4. The books of the Corporation may be kept at such place within or without
the State of Delaware as the By-laws of the Corporation may provide or as may be
designated from time to time by the Board of Directors of the Corporation.
5. Election of directors need not be by written ballot unless the By-laws
of the Corporation so provide.
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SEVENTH:
1. Number of Directors. The number of directors which shall constitute the
whole Board of Directors shall be not less than three as determined by
resolution of a majority of the Board of Directors. The number of directors may
be decreased at any time and from time to time by a majority of the directors
then in office, but only to eliminate vacancies existing by reason of the death,
resignation, removal or expiration of the term of one or more directors. The
directors shall be elected at the annual meeting of stockholders by such
stockholders as have the right to vote on such election. Directors need not be
stockholders of the Corporation.
2. Classification and Term of Directors. The Board of Directors shall be
divided into three classes, Class A, Class B and Class C, as nearly equal in
numbers as the then total number of directors constituting the entire Board
permits with the term of office of one class expiring each year. The Board shall
designate the class of each of the existing Directors. At the first annual
meeting of stockholders after the filing of this Second Amended and Restated
Certificate, the Class A Directors shall be elected to hold office for a three
year term. At the second annual meeting of the stockholders after the filing of
this Certificate, the Class B Directors shall be elected to hold office for a
three year term. At the third annual meeting of the stockholders after the date
of filing of this Certificate, the Class C Directors shall be elected to hold
office for a term expiring at the third succeeding annual meeting. Any vacancies
in the Board of Directors for any reason, and any directorships resulting from
any increase in the number of directors, maybe filled by the Board of Directors,
acting by a majority of the directors then in office, although less than a
quorum, and any directors so chosen shall hold office until the next election of
the class for which such directors shall have been chosen and until their
successors shall be elected and qualified. At each annual meeting of
stockholders the successors to the class of directors whose term shall then
expire shall be elected to hold office for a term expiring at the third
succeeding annual meeting.
3. Increases or Decreases in the Number of Directors. In the event of any
increase or decrease in the authorized number of directors, each director then
serving as such shall nevertheless continue as director until the expiration of
such director's current term or his or her prior death, retirement or
resignation. No decrease in the number of directors constituting the whole Board
of Directors shall shorten the term of an incumbent director.
4. Removal. Following the Initial Public Offering Date, any one or more or
all of the directors may be removed only with cause, and then only by the
holders of at least a majority of the shares then entitled to vote at an
election of directors.
5. Stockholder Nominations and Introduction of Business, Etc. Following the
Initial Public Offering Date, advance notice of stockholder nominations for
election of directors and other business to be brought by stockholders before a
meeting of stockholders shall be given in
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the manner provided in the By-laws of the Corporation.
EIGHTH: A director of the Corporation shall not 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. If the General Corporation Law of the State of
Delaware is amended to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of a director
of the Corporation shall be eliminated or limited to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as so
amended. Any repeal or modification of this Article Eighth by the stockholders
of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modification.
NINTH: Each person who is or was a director or officer of the Corporation,
and each person who serves or served at the request of the Corporation as a
director or officer of another enterprise, shall be indemnified by the
Corporation in accordance with, and to the fullest extent authorized by, the
General Corporation Law of Delaware as it may be in effect from time to time.
The right of indemnity provided herein shall not be deemed exclusive of any
other rights to which any person may be entitled under any By-law, agreement,
vote of stockholders or directors, or otherwise. The Corporation may provide
indemnification to any such person, by agreement or otherwise, on such terms and
conditions as the Board of Directors may approve. Any agreement for
indemnification of any director, officer, employee or other person may provide
indemnification rights which are broader or otherwise differ from those set
forth herein. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to adopt, amend or
repeal the By-laws of the Corporation regarding the manner and conditions under
which indemnification shall be provided hereunder by the Corporation and the
extent thereof from time to time as deemed appropriate by the Board of Directors
in the best interests of the Corporation.
TENTH: The Board of Directors of the Corporation, when evaluating any offer
of another party to (a) make a tender or exchange offer for any equity security
of the Corporation; (b) merge or consolidate the Corporation with another
Corporation; or (c) purchase or otherwise acquire all or substantially all of
the properties and assets of the Corporation may, in connection with the
exercise of its judgment in determining what is in the best interests of the
Corporation and its stockholders, give due consideration to all factors the
directors deem relevant, including without limitation (i) the effects upon the
employees, suppliers, customers, creditors and others having similar relations
with the Corporation, upon the communities in which the Corporation conducts its
business or on such other constituencies of the Corporation as the Board of
Directors considers relevant under the circumstances; (ii) not only the
consideration being offered (after taking into account taxes) in relation to the
then current market price for the Corporation's
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outstanding shares of capital stock, but also the Board of Directors' estimate
of the (A) future value of the Corporation (including the unrealized value of
its properties and assets) as an independent going concern and (B) the current
value of the Corporation in a freely negotiated transaction; (iii) the purpose
of the Corporation, and any of its subsidiaries, to provide quality products and
services on a long term basis; (iv) whether the proposed transaction might
violate federal or state laws; and (v) the long-term as well as short-term
interests of the Corporation and its stockholders, including the possibility
that such interests may be best served by the continued independence of the
Corporation. If, on the basis of such factors, the Board of Directors so
determines that a proposal or offer to acquire or merge the Corporation, or to
sell its assets, is not in the best interests of the Corporation, it may reject
the proposal or offer. If the Board of Directors determines to reject any such
proposal or sale, the Board of Directors shall have no obligation to facilitate,
to remove any barriers to, or to refrain from impeding the proposal or offer
except as may be required by applicable law. Except to the extent required by
applicable law, the consideration of any or all of such factors shall not be a
violation of the business judgment rule or of any duty of the directors to the
stockholders or a group of stockholders, even if the directors reasonably
determine that any such factor or factors outweigh the financial or other
benefits to the Corporation or a shareholder or group of stockholders.
ELEVENTH: The Corporation has elected to be governed by Section 203 of the
Delaware Law.
TWELFTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Second Amended and Restated Certificate
of Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon the stockholders herein are granted subject to this
reservation; provided, however, that, following the Initial Public Offering
Date, in addition to any vote of the holders of the capital stock of the
Corporation required by law or this Second Amended and Restated Certificate of
Incorporation, the affirmative vote of the holders of shares of voting stock of
the Corporation representing at least seventy-five percent (75%) of the voting
power of all of the then outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors shall be
required to (i) reduce or eliminate the number of authorized shares of capital
stock set forth in Article Fourth or (ii) amend or repeal or adopt any provision
inconsistent with Articles Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, and
this Article Twelfth of this Second Amended and Restated Certificate of
Incorporation."
SECOND: The Board of Directors of the Corporation, at a meeting duly called
at which a quorum existed, duly adopted resolutions proposing and approving the
Second Amended and Restated Certificate of Incorporation of the Corporation and
directing that such Second Amended and Restated Certificate of Incorporation be
submitted to the stockholders of the Corporation to consider and adopt the same.
THIRD: Pursuant to Section 228 of the Delaware Law, the adoption of the
Second Amended and Restated Certificate of Incorporation was consented to in
writing by a majority of
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the holders of the voting power of all shares of capital stock of the
Corporation entitled to vote thereon.
FOURTH: The Second Amended and Restated Certificate of Incorporation was
duly adopted in accordance with the provisions of the General Corporation Law of
the State of Delaware, including Section 242 thereof.
IN WITNESS WHEREOF, BLUE RHINO CORPORATION has caused this Certificate to
be signed by its President, and its corporate seal to be hereunto affixed and
attested by its Secretary this 19th day of May, 1998
BLUE RHINO CORPORATION
By: /s/ Billy D. Prim
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Billy D. Prim
President
SEAL
ATTEST:
By: /s/ Mark Castaneda
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Mark Castaneda
Secretary
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