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EXHIBIT 3.1
RESTATED
ARTICLES OF INCORPORATION
OF
SUPERIOR INDUSTRIES INTERNATIONAL, INC.
ONE: The name of this corporation is SUPERIOR INDUSTRIES
INTERNATIONAL, INC.
TWO: The purpose of this corporation is to engage in any lawful act
or activity for which a corporation may be organized under the General
Corporation Law of California other than the banking business, the trust
company business or the practice of a profession permitted to be
incorporated by the California Corporations Code.
THREE: This corporation is authorized to issue two classes of shares
designated, respectively, "Common Stock" and "Preferred Stock." The number of
shares of Common Stock authorized to be issued is one hundred million
(100,000,000) and the number of shares of Preferred Stock authorized to be
issued is one million (1,000,000).
The Preferred Stock may be divided into such number of series
as the Board of Directors may determine. The Board of Directors is authorized
to determine and alter the rights, preferences, privileges and restrictions
granted to and imposed upon the Preferred Stock or any series thereof with
respect to any wholly unissued class or series of Preferred Stock, and to fix
the number of shares of any series of Preferred Stock and the designation of
any such series of Preferred Stock. The Board of Directors, within the limits
and restrictions stated in any resolution of the Board of Directors originally
fixing the number of shares constituting any series, may increase or decrease
(but not below the number of shares of such series then outstanding) the number
of shares of any series subsequent to the issue of shares of that series.
FOUR: The liability of the directors of this corporation for
monetary damages shall be eliminated to the fullest extent permissible under
California law.
FIVE: This corporation is authorized to indemnify the directors and
officers of this corporation to the fullest extent permissible under California
law.
SIX: Any action required or permitted to be taken by the
shareholders of this corporation must be effected at a duly called annual or
special meeting of shareholders of this corporation and may not be effected
by any consent in writing by such shareholders.
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SEVEN: The bylaws shall set forth the number of directors
constituting the Board of Directors. The directors shall be divided into three
classes, as nearly equal in number as reasonably possible, with the term of
office of the first class to expire at the 1995 annual meeting of shareholders,
the term of office of the second class to expire at the 1996 annual meeting of
shareholders and the term of office of the third class to expire at the 1997
annual meeting of shareholders. At each annual meeting of shareholders
following such initial classification and election, directors elected to
succeed those directors whose terms expire shall be elected for a term of
office to expire at the third succeeding annual meeting of shareholders after
their election.
Subject to the rights of the holders of any series of
Preferred Stock then outstanding, newly created directorships resulting from
any increase in the authorized number of directors or any vacancies in the
Board of Directors resulting from death, resignation, retirement,
disqualification, removal from office or other cause may be filled only by a
majority vote of the directors then in office though less than a quorum, and
directors so chosen shall hold office for a term expiring at the annual meeting
of shareholders at which the term of office of the class to which they have
been elected expires. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent director.
This provision shall become effective only when this
corporation becomes a "listed" corporation within the meaning of Section 301.5
of the General Corporation Law of California.
EIGHT: Upon this corporation becoming a "listed" corporation within
the meaning of Section 301.5 of the General Corporation Law of California,
shareholders shall not have cumulative voting rights in the election of
directors.
NINE: Bylaws of this corporation shall be adopted, amended or
repealed only by the Board of Directors or the affirmative vote of the holders
of at least eighty percent (80%) of the voting power of all of the then
outstanding shares of the capital stock of this corporation entitled to vote
generally in the election of directors, voting together as a single class.
TEN: This corporation reserves the right to amend or repeal any
provision contained in these Articles of Incorporation in the manner prescribed
by the laws of the State of California and all rights conferred upon
shareholders are granted subject to this reservation; provided, however, that,
notwithstanding any other provision of these Articles of Incorporation or any
provision of law which might otherwise permit a lesser vote or no vote, and in
addition to any vote
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of the holders of any class or series of the stock of this Corporation required
by law or by these Articles of Incorporation,
(1) the affirmative vote of the holders of at least
eighty percent (80%) of the voting power of all of the then outstanding shares
of the capital stock of this corporation entitled to vote generally in the
election of directors, voting together as a single class, shall be required to
amend or repeal this Article TEN, Article SIX, Article SEVEN, Article EIGHT,
Article NINE or Article ELEVEN; and
(2) in addition to the vote specified in paragraph (1) of
this Article TEN, the affirmative vote of the holders of at least a majority of
the voting power of all of the then outstanding shares of the capital stock of
this corporation entitled to vote generally in the election of directors, other
than such capital stock of which an Interested Shareholder (as defined in
Article ELEVEN) is the beneficial owner, voting together as a single class,
shall be required in order to amend or repeal Article ELEVEN or Article TWELVE.
ELEVEN: The shareholder vote required to approve Business Combinations
(as hereinafter defined) shall be as set forth in this Article.
A. (1) Except as otherwise expressly provided in Section B of
this Article:
(i) Any merger or consolidation of this
corporation or any Subsidiary (as hereinafter defined) with (a) any Interested
Shareholder (as hereinafter defined) or (b) any other corporation (whether or
not itself an Interested Shareholder) which is, or after such merger or
consolidation would be, an Affiliate (as hereinafter defined) of an Interested
Shareholder; or
(ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series of transactions)
to or with any Interested Shareholder or any Affiliate of any Interested
Shareholder of any assets of this corporation or any Subsidiary having an
aggregate Fair Market Value (as hereinafter defined) of ten percent (10%) of
the total value of the assets of this corporation and its consolidated
subsidiaries as reflected in the most recent balance sheet of this corporation;
or
(iii) the issuance or transfer by this corporation or
any Subsidiary (in one transaction or a series of transactions) of any
securities of this corporation or any Subsidiary to any Interested Shareholder
or any Affiliate of any Interested Shareholder in exchange for cash, securities
or other property (or a combination thereof) having an aggregate Fair Market
Value of $15,000,000 or more; or
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(iv) the adoption of any plan or proposal for the
liquidation or dissolution of this corporation proposed by or on behalf of any
Interested Shareholder or any Affiliate of any Interested Shareholder; or
(v) any reclassification of securities (including
any reverse stock split), or recapitalization of this corporation, or any
merger or consolidation of this corporation with any of its Subsidiaries or any
other transaction (whether or not with or into or otherwise involving any
Interested Shareholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any class of
equity or convertible securities of this corporation or any Subsidiary that is
directly or indirectly owned by any Interested Shareholder or any Affiliate of
any Interested Shareholder;
shall require (a) the affirmative vote of the holders of at least eighty
percent (80%) of the voting power of all of the then outstanding shares of the
capital stock of this corporation entitled to vote generally in the election of
directors (hereinafter in this Article referred to as the "Voting Stock"),
voting together as a single class (it being understood that, for purposes of
this Article, each share of the Voting Stock shall have the number of votes
granted to it pursuant to Article THREE of these Articles of Incorporation or
any designation of the rights, powers and preferences of any class or series of
preferred stock made pursuant to said Article THREE (a "Preferred Stock
Designation")) and (b) the affirmative vote of the holders of at least a
majority of the voting power of all of the then outstanding shares of Voting
Stock other than the Voting Stock of which an Interested Shareholder or an
Affiliate of any Interested Shareholder is the beneficial owner, voting
together as a single class. Such affirmative votes shall be required
notwithstanding any other provisions of these Articles of Incorporation or any
provision of law or of any agreement with any national securities exchange
which might otherwise permit a lesser vote or no vote, but such affirmative
votes shall be required in addition to any affirmative vote of the holders of
any particular class or series of the Voting Stock required by law, these
Articles of Incorporation or any Preferred Stock Designation.
(2) The term "Business Combination" as used in this
Article shall mean any transaction which is referred to in any one or more of
subparagraphs (i) through (v) of paragraph (1) of this Section A.
B. The provisions of Section A of this Article shall not be
applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote as is required by law, any
other provision of these Articles of Incorporation, any Preferred Stock
Designation or any agreement with any national securities exchange, if, in
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the case of a Business Combination that does not involve any cash or other
consideration being received by the shareholders of this corporation, solely in
their respective capacities as shareholders of this corporation, the condition
specified in the following paragraph (1) is met, or, in the case of any other
Business Combination, the conditions specified in either of the following
paragraphs (1) and (2) are met:
(1) The Business Combination shall have been approved by
a majority of the Continuing Directors (as hereinafter defined), it being
understood that this condition shall not be capable of satisfaction unless
there is at least one Continuing Director.
(2) All of the following conditions shall have been met:
(i) The consideration to be received by holders
of shares of a particular class of outstanding Voting Stock shall be in cash or
in the same form as the Interested Shareholder has paid for shares of such
class of Voting Stock within the two-year period ending on and including the
date on which the Interested Shareholder became an Interested Shareholder (the
"Determination Date"). If, within such two-year period, the Interested
Shareholder has paid for shares of any class of Voting Stock with varying forms
of consideration, the form of consideration to be received per share by holders
of shares of such class of Voting Stock shall be either cash or the form used
to acquire the largest number of shares of such class of Voting Stock acquired
by the Interested Shareholder within such two-year period.
(ii) The aggregate amount of (x) the cash and (y)
the Fair Market Value, as of the date (the "Consummation Date") of the
consummation of the Business Combination, of the consideration other than cash
to be received per share by holders of Common Stock in such Business
Combination, shall be at least equal to the higher of the following (it being
intended that the requirements of this paragraph (2)(ii) shall be required to
be met with respect to all shares of Common Stock outstanding regardless of
whether the Interested Shareholder has previously acquired any shares of Common
Stock):
(a) (if applicable) the highest per
share price (including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested Shareholder for any
shares of Common Stock acquired by it within the two-year period
immediately prior to the date of the first public announcement of the
proposal of the Business Combination (the "Announcement Date") or in
the transaction in which it became an Interested Shareholder,
whichever is higher, plus interest compounded annually from the
Determination Date
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through the Consummation Date at the prime rate of interest of Bankers
Trust Company (or such other major bank as may be selected by the
Continuing Directors) from time to time in effect in the City of Los
Angeles, less the aggregate amount of any cash dividends paid, and the
Fair Market Value of any dividends paid in other than cash, on each
share of Common Stock from the Determination Date through the
Consummation Date in an amount up to but not exceeding the amount of
interest so payable per share of Common Stock; or
(b) the Fair Market Value per share of
Common Stock on the Announcement Date.
(iii) The aggregate amount of (x) the cash and (y)
the Fair Market Value, as of the Consummation Date, of the consideration other
than cash to be received per share by holders of shares of any class, other
than Common Stock, of outstanding Voting Stock shall be at least equal to the
highest of the following (it being intended that the requirements of this
paragraph (2)(iii) shall be required to be met with respect to every such class
of outstanding Voting Stock, regardless of whether the Interested Shareholder
has previously acquired any shares of a particular class of Voting Stock):
(a) (if applicable) the highest per
share price (including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested Shareholder for any
shares of such class of Voting Stock acquired by it within the
two-year period immediately prior to the Announcement Date or in the
transaction in which it became an Interested Shareholder, whichever is
higher, plus interest compounded annually from the Determination Date
through the Consummation Date at the prime rate of interest of Bankers
Trust Company (or such other major bank as may be selected by the
Continuing Directors) from time to time in effect in the City of Los
Angeles, less the aggregate amount of any cash dividends paid, and the
Fair Market Value of any dividends paid in other than cash, on each
share of such class of Voting Stock from the Determination Date
through the Consummation Date in an amount up to but not exceeding the
amount of interest so payable per share of such class of Voting Stock;
or
(b) the Fair Market Value per share of
such class of Voting Stock on the Announcement Date; or
(c) the highest preferential amount per
share to which the holders of shares of such class of Voting Stock are
entitled in the event of any voluntary or involuntary liquidation,
dissolution or winding up of this corporation.
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(iv) After such Interested Shareholder has become
an Interested Shareholder and prior to the consummation of such Business
Combination: (a) except as approved by a majority of the Continuing Directors,
there shall have been no failure to declare and pay at the regular date
therefor any full quarterly dividends (whether or not cumulative) on any
outstanding Preferred Stock; (b) there shall have been (I) no reduction in the
annual rate of dividends paid on the Common Stock (except as necessary to
reflect any subdivision of the Common Stock), except as approved by a majority
of the Continuing Directors, and (II) an increase in such annual rate of
dividends as necessary to reflect any reclassification (including any reverse
stock split), recapitalization, reorganization or any similar transaction which
has the effect of reducing the number of outstanding shares of the Common
Stock, unless the failure so to increase such annual rate is approved by a
majority of the Continuing Directors; and (c) such Interested Shareholder shall
not have become the beneficial owner of any additional shares of Voting Stock
except as part of the transaction which results in such Interested Shareholder
becoming an Interested Shareholder.
(v) After such Interested Shareholder has become
an Interested Shareholder, such Interested Shareholder shall not have received
the benefit, directly or indirectly (except proportionately, solely in such
Interested Shareholder's capacity as a shareholder of this corporation), of any
loans, advances, guarantees, pledges or other financial assistance or any tax
credits or other tax advantages provided by this corporation, whether in
anticipation of or in connection with such Business Combination or otherwise.
(vi) A proxy or information statement describing
the proposed Business Combination, complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations thereunder (or
any subsequent provisions replacing such Act, rules or regulations) and setting
forth, as an exhibit thereto, the opinion of an investment banking firm
selected by a majority of the Continuing Directors, or, if there are no
Continuing Directors, an opinion of the investment banking firm most recently
retained by this corporation before the Interested Shareholder became an
Interested Shareholder, or any successor in interest to such investment banker,
that the proposed Business Combination is fair from a financial point of view
to the shareholders of this corporation other than the Interested Shareholder,
shall be mailed to all shareholders of this corporation at least 30 days prior
to the consummation of such Business Combination (regardless of whether such
proxy or information statement is required to be mailed pursuant to such Act or
subsequent provisions).
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C. For the purposes of this Article:
(1) A "person" shall mean any individual, firm,
corporation or other entity.
(2) "Interested Shareholder" shall mean any person (other
than this corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or
indirectly, of more than twenty percent (20%) of the voting power of the
outstanding Voting Stock; or
(ii) is an Affiliate of this corporation and at
any time within the two-year period immediately prior to the date in question
was the beneficial owner, directly or indirectly, of twenty percent (20%) or
more of the voting power of the then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded
to any shares of Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by an Interested
Shareholder, if such assignment or succession shall have occurred in the course
of a transaction or series of transactions not involving a public offering
within the meaning of the Securities Act of 1933.
(3) A person shall be a "beneficial owner" of any Voting
Stock:
(i) which such person or any of its Affiliates or
Associates (as hereinafter defined) beneficially owns, directly or indirectly;
or
(ii) which such person or any of its Affiliates or
Associates has (a) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (b) the right to vote
pursuant to any agreement, arrangement or understanding; or
(iii) which are beneficially owned, directly or
indirectly, by any other person with which such person or any of its Affiliates
or Associates has any agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of any shares of Voting Stock.
(4) For the purposes of determining whether a person is
an Interested Shareholder pursuant to paragraph (2) of this Section C, the
number of shares of Voting Stock deemed to be outstanding shall include shares
deemed owned through application of paragraph (3) of this Section C but shall
not include any other shares of Voting Stock which may be issuable
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pursuant to any agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
(5) "Affiliate" or "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on April
24, 1987.
(6) "Subsidiary" means any corporation of which a
majority of any class of equity security is owned, directly or indirectly, by
this corporation; provided, however, that for the purposes of the definition of
Interested Shareholder set forth in paragraph (2) of this Section C, the term
"Subsidiary" shall mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by this corporation.
(7) "Continuing Director" means any member of the Board
of Directors of this corporation (the "Board") who is unaffiliated with the
Interested Shareholder and was a member of the Board prior to the time that the
Interested Shareholder became an Interested Shareholder, and any successor of a
Continuing Director who is unaffiliated with the Interested Shareholder and is
recommended to succeed a Continuing Director by a majority of Continuing
Directors then on the Board.
(8) "Fair Market Value" means: (i) in the case of stock,
the highest closing sale price during the 30-day period immediately preceding
the date in question of a share of such stock on the principal United States
securities exchange registered under the Securities Exchange Act of 1934 on
which such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to a share of such
stock during the 30-day period preceding the date in question on the National
Association of Securities Dealers, Inc., Automated Quotations System or any
system then in use, or if no such quotations are available, the fair market
value of such property on the date in question as determined by the Board in
good faith.
(9) In the event of any Business Combination in which
this corporation survives, the phrase "consideration other than cash to be
received" as used in paragraphs (2)(ii) and (2)(iii) of Section B of this
Article shall include the shares of Common Stock and/or the shares of any other
class of outstanding Voting Stock retained by the holders of such shares.
D. A majority of the total number of authorized directors
(whether or not there exist any vacancies in previously authorized
directorships at the time any such determination as is hereinafter specified in
this Section D is
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to be made by the Board) shall have the power and duty to determine, on the
basis of information known to them after reasonable inquiry, all facts
necessary to determine compliance with this Article, including, without
limitation, (1) whether a person is an Interested Shareholder, (2) the number
of shares of Voting Stock beneficially owned by any person, (3) whether a
person is an Affiliate or Associate of another, (4) whether the applicable
conditions set forth in paragraph (2) of Section B have been met with respect
to any Business Combination, (5) whether the assets which are the subject of
any Business Combination referred to in paragraph (1) (ii) of Section A have an
aggregate Fair Market Value of 10% of the assets of this corporation and its
consolidated subsidiaries as reflected in the most recent balance sheet of this
corporation, and (6) whether the consideration to be received for the issuance
or transfer of securities by this corporation or any Subsidiary in any Business
Combination referred to in paragraph (1) (iii) of Section A has an aggregate
Fair Market Value of $15,000,000 or more.
E. Nothing contained in this Article shall be construed to
relieve any Interested Shareholder from any fiduciary obligation imposed by
law.
TWELVE: The directors of this corporation, when evaluating any offer
of another party (a) to make a tender or exchange offer for any Voting Stock of
this corporation (as defined in Article ELEVEN) or (b) to effect a Business
Combination (as defined in Article ELEVEN) shall, in connection with the
exercise of its judgment in determining what is in the best interests of this
corporation as a whole, be authorized to give due consideration to such factors
as they determine to be relevant, including, without limitation:
(i) the interests of this corporation's
shareholders;
(ii) whether the proposed transaction might
violate federal or state laws;
(iii) not only the consideration being offered in the
proposed transaction, in relation to the then current market price for the
outstanding capital stock of this corporation, but also the market price for
the capital stock of this corporation over a period of years, the estimated
price that might be achieved in a negotiated sale of this corporation as a
whole or in part or through orderly liquidation, the premiums over market price
for the securities of other corporations in similar transactions, current
political, economic and other factors bearing on securities prices and this
corporation's financial condition and future prospects; and
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(iv) the social, legal and economic effects upon
employees, suppliers, customers and others having similar relationships with
this corporation, and the communities in which this corporation conducts its
business.
In connection with any such evaluation, the directors are authorized to conduct
such investigations and to engage in such legal proceedings as they may
determine.
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