EXHIBIT 3.1
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
VIASYSTEMS GROUP, INC.
The undersigned duly authorized officer of Viasystems Group, Inc., a
Delaware corporation, hereby certifies the following:
1. The name of the corporation is Viasystems Group, Inc. (the
"Corporation"). The name under which the Corporation originally was incorporated
was Circo Craft Holding Company, and the date of filing of the original
Certificate of Incorporation of the Corporation (the "Certificate of
Incorporation") with the Secretary of State of the State of Delaware was August
28, 1996.
2. This Second Amended and Restated Certificate of Incorporation
restates and integrates and further amends the Certificate of Incorporation, as
amended, to give effect to the Corporation's Plan of Reorganization under
chapter 11 of title 11 of the United States Code (the "Bankruptcy Code")
pursuant the confirmation order, dated January 14, 2003, of the United States
Bankruptcy Court for the Southern District of New York and Sections 242, 245 and
303 of the General Corporation Law of the State of Delaware (the "DGCL"), as
applicable.
3. The Certificate of Incorporation, as amended and restated hereby,
shall upon its filing with the Secretary of State of the State of Delaware, read
in its entirety as follows:
FIRST: The name of the Corporation is Viasystems Group, Inc.
SECOND: The registered office of the Corporation in the State of Delaware
is located at Corporation Trust Center, 1209 Orange Street, in the 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 purpose for which the Corporation is organized is to engage in
any and all lawful acts and activity for which corporations may be organized
under the DGCL. The Corporation will have perpetual existence.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 125,000,000 shares consisting of
(a) 25,000,000 shares of a class designated as preferred stock, par value $.01
per share ("Preferred Stock") and (b) 100,000,000 shares of a class designated
common stock, par value $.01 per share ("Common Stock").
The designations and the powers, preferences, rights, qualifications,
limitations, and restrictions of the Preferred Stock and the Common Stock are as
follows:
A. Provisions Relating to the Preferred Stock.
1. The Preferred Stock may be issued from time to time in one
or more classes or series, the shares of each class or series to have such
designations and powers, preferences, rights, qualifications, limitations,
and restrictions thereof, as are stated and expressed herein and in the
resolution or resolutions providing for the issuance of such class or
series adopted by the Board of Directors of the Corporation as hereafter
prescribed.
2. Authority is hereby expressly granted to and vested in the
Board of Directors of the Corporation to authorize the issuance of the
Preferred Stock from time to time in one or more classes or series, and
with respect to each class or series of the Preferred Stock, to fix and
state by the resolution or resolutions from time to time adopted providing
for the issuance thereof the following:
(a) whether or not the class or series is to have voting
rights, full, special, or limited, or is to be without voting
rights, and whether or not such class or series is to be entitled to
vote as a separate class either alone or together with the holders
of one or more other classes or series of stock;
(b) the number of shares to constitute the class or series
and the designations thereof;
(c) the preferences, and relative, participating, optional,
or other special rights, if any, and the qualifications,
limitations, or restrictions thereof, if any, with respect to any
class or series;
(d) whether or not the shares of any class or series shall be
redeemable at the option of the Corporation or the holders thereof
or upon the happening of any specified event, and, if redeemable,
the redemption price or prices (which may be payable in the form of
cash, notes, securities, or other property), and the time or times
at which, and the terms and conditions upon which, such shares shall
be redeemable and the manner of redemption;
(e) whether or not the shares of a class or series shall be
subject to the operation of retirement or sinking funds to be
applied to the purchase or redemption of such shares for retirement,
and, if such retirement or sinking fund or funds are to be
established, the annual amount thereof, and the terms and provisions
relative to the operation thereof;
(f) the dividend rate, whether dividends are payable in cash,
stock of the Corporation, or other property, the conditions upon
which and the times when such dividends are payable, the preference
to or the relation to the payment of dividends payable on any other
class or classes or series of stock, whether or not such dividends
shall be cumulative or noncumulative, and if cumulative, the date or
dates from which such dividends shall accumulate;
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(g) the preferences, if any, and the amounts thereof which
the holders of any class or series thereof shall be entitled to
receive upon the voluntary or involuntary dissolution of, or upon
any distribution of the assets of, the Corporation;
(h) whether or not the shares of any class or series, at the
option of the Corporation or the holder thereof or upon the
happening of any specified event, shall be convertible into or
exchangeable for, the shares of any other class or classes or of any
other series of the same or any other class or classes of stock,
securities, or other property of the Corporation and the conversion
price or prices or ratio or ratios or the rate or rates at which
such exchange may be made, with such adjustments, if any, as shall
be stated and expressed or provided for in such resolution or
resolutions; and
(i) such other special rights and protective provisions with
respect to any class or series as may to the Board of Directors of
the Corporation seem advisable.
3. The shares of each class or series of the Preferred Stock may
vary from the shares of any other class or series thereof in any or all of
the foregoing respects. The Board of Directors of the Corporation may
increase the number of shares of the Preferred Stock designated for any
existing class or series by a resolution adding to such class or series
authorized and unissued shares of the Preferred Stock not designated for
any other class or series. The Board of Directors of the Corporation may
decrease the number of shares of the Preferred Stock designated for any
existing class or series by a resolution subtracting from such class or
series authorized and unissued shares of the Preferred Stock designated
for such existing class or series, and the shares so subtracted shall
become authorized, unissued, and undesignated shares of the Preferred
Stock; provided, however, the Board of Directors of the Corporation may
not decrease the number of shares of any existing class or series of the
Preferred Stock to a number less than the number of shares of such any
existing class or series that are then issued and outstanding.
B. Provisions Relating to the Common Stock.
1. Voting. Each share of Common Stock of the Corporation shall
have identical rights and privileges in every respect. The holders of
shares of Common Stock shall be entitled to vote upon all matters
submitted to a vote of the stockholders of the Corporation and shall be
entitled to one vote for each share of Common Stock held.
2. Dividends. Subject to the prior rights and preferences, if
any, applicable to shares of the Preferred Stock or any series thereof,
the holders of shares of the Common Stock shall be entitled to receive
such dividends (payable in cash, stock, or otherwise) as may be declared
thereon by the board of directors at any time and from time to time out of
any funds of the Corporation legally available therefor.
3. Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution, or winding-up of the Corporation, after
distribution in full of the preferential
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amounts, if any, to be distributed to the holders of shares of the
Preferred Stock or any class or series thereof, subject to the rights of
the holders of shares of the Preferred Stock or any class or series
thereof to participate, the holders of shares of the Common Stock shall be
entitled to receive all of the remaining assets of the Corporation
available for distribution to its stockholders, ratably in proportion to
the number of shares of the Common Stock held by them. A liquidation,
dissolution, or winding-up of the Corporation, as such terms are used in
this Paragraph 3, shall not be deemed to be occasioned by or to include
any consolidation or merger of the Corporation with or into any other
corporation or corporations or other entity or a sale, lease, exchange, or
conveyance of all or a part of the assets of the Corporation.
C. Provisions Relating to Non-Voting Stock. Notwithstanding anything to
the contrary herein, the Corporation shall not issue nonvoting equity
securities; provided, such prohibition on the issuance of nonvoting securities
shall have no force and effect except to the extent and for so long as section
1123 of the Bankruptcy Code is applicable to the Corporation.
D. General.
1. Subject to the foregoing provisions of this Certificate of
Incorporation, the Corporation may issue shares of its Preferred Stock and
Common Stock from time to time for such consideration (not less than the
par value thereof) as may be fixed by the Board of Directors of the
Corporation, which is expressly authorized to fix the same in its absolute
and uncontrolled discretion subject to the foregoing conditions. Shares so
issued for which the consideration shall have been paid or delivered to
the Corporation shall be deemed fully paid stock and shall not be liable
to any further call or assessment thereon, and the holders of such shares
shall not be liable for any further payments in respect of such shares.
2. The Corporation shall have authority to create and issue
rights and options entitling their holders to purchase shares of the
Corporation's capital stock of any class or series or other securities of
the Corporation, and such rights and options shall be evidenced by
instrument(s) approved by the Board of Directors of the Corporation. The
Board of Directors of the Corporation shall be empowered to set the
exercise price, duration, times for exercise, and other terms of such
options or rights; provided, however, that the consideration to be
received for any shares of capital stock subject thereto shall not be less
than the par value thereof.
FIFTH: The number of directors constituting the entire Board of Directors
of the Corporation shall be fixed by, or in the manner provided in, the Bylaws
of the Corporation.
SIXTH: Directors of the Corporation need not be elected by written ballot.
SEVENTH: The directors of the Corporation shall have the power to adopt,
amend, and repeal the bylaws of the Corporation.
EIGHTH: No contract or transaction between the Corporation and one or more
of its directors, officers, or stockholders or between the Corporation and any
person (as used herein
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"person" means other corporation, partnership, association, firm, trust, joint
venture, political subdivision, or instrumentality) or other organization in
which one or more of its directors, officers, or stockholders are directors,
officers, or stockholders, or have a financial interest, shall be void or
voidable solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the board or committee which
authorizes the contract or transaction, or solely because his, her, or their
votes are counted for such purpose, if: (i) the material facts as to his or her
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to
his or her relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved, or ratified by the Board of
Directors, a committee thereof, or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting of
the Board of Directors or of a committee which authorizes the contract or
transaction.
NINTH: The Corporation shall indemnify any person who was, is, or is
threatened to be made a party to a proceeding (as hereinafter defined) by reason
of the fact that he or she (i) is or was a director or officer of the
Corporation or (ii) while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent, or similar functionary of
another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise, to the
fullest extent permitted under the DGCL, as the same exists or may hereafter be
amended. Such right shall be a contract right and as such shall run to the
benefit of any director or officer who is elected and accepts the position of
director or officer of the Corporation or elects to continue to serve as a
director or officer of the Corporation while this Article Ninth is in effect.
Any repeal or amendment of this Article Ninth shall be prospective only and
shall not limit the rights of any such director or officer or the obligations of
the Corporation with respect to any claim arising from or related to the
services of such director or officer in any of the foregoing capacities prior to
any such repeal or amendment to this Article Ninth. Such right shall include the
right to be paid by the Corporation expenses incurred in investigating or
defending any such proceeding in advance of its final disposition to the maximum
extent permitted under the DGCL, as the same exists or may hereafter be amended.
If a claim for indemnification or advancement of expenses hereunder is not paid
in full by the Corporation within sixty (60) days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim, and if
successful in whole or in part, the claimant shall also be entitled to be paid
the expenses of prosecuting such claim. It shall be a defense to any such action
that such indemnification or advancement of costs of defense are not permitted
under the DGCL or other applicable law, but the burden of proving such defense
shall be on the Corporation. Neither the failure of the Corporation (including
its Board of Directors or any committee thereof, independent legal counsel, or
stockholders) to have made its determination prior to the commencement of such
action that indemnification of, or advancement of costs of defense to, the
claimant is permissible in the circumstances nor an actual determination by the
Corporation
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(including its Board of Directors or any committee thereof, independent legal
counsel, or stockholders) that such indemnification or advancement is not
permissible shall be a defense to the action or create a presumption that such
indemnification or advancement is not permissible. In the event of the death of
any person having a right of indemnification under the foregoing provisions,
such right shall inure to the benefit of his or her heirs, executors,
administrators, and personal representatives. The rights conferred above shall
not be exclusive of any other right which any person may have or hereafter
acquire under any statute, by-law, resolution of stockholders or directors,
agreement, or otherwise.
The Corporation may additionally indemnify any employee or agent of the
Corporation and such other persons as may be permitted under the DGCL to the
fullest extent permitted by law.
As used herein, the term "proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such an action, suit, or
proceeding, and any inquiry or investigation that could lead to such an action,
suit, or proceeding.
TENTH: 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 knowing
violation of law, (iii) under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit. Any
repeal or amendment of this Article Tenth by the stockholders of the Corporation
shall be prospective only, and shall not adversely affect any limitation on the
personal liability of a director of the Corporation arising from an act or
omission occurring prior to the time of such repeal or amendment. In addition to
the circumstances in which a director of the Corporation is not personally
liable as set forth in the foregoing provisions of this Article Tenth, a
director shall not be liable to the Corporation or its stockholders to the
fullest extent as permitted by any law existing on the date hereof or hereafter
enacted, including without limitation any subsequent amendment to the DGCL.
* * * * *
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IN WITNESS WHEREOF, the Corporation has caused this Second Amended and
Restated Certificate of Incorporation to be signed pursuant to Section 103(a)(2)
of the DGCL by the undersigned duly authorized officer of the Corporation as of
January 31, 2003.
/s/ DAVID J. WEBSTER
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David J. Webster
Senior Vice President and Secretary
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