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EXHIBIT 3.1.b
CERTIFICATE OF INCORPORATION
OF
GRANITE CONSTRUCTION INCORPORATED
AS AMENDED AND RESTATED
(EFFECTIVE MAY 22, 1998)
FIRST: The name of the Corporation is Granite Construction
Incorporated (hereinafter sometimes referred to as the "Corporation").
SECOND: The address of the registered office of the Corporation in
the State of Delaware is Incorporating Services, Ltd., 15 East North Street, in
the City of Dover, County of Kent. The name of the registered agent at that
address is Incorporating Services, Ltd.
THIRD: The purpose of the Corporation is to engage in any lawful
act or activity for which a corporation may be organized under the General
Corporation Law of Delaware.
FOURTH:
A. Capitalization. The total number of shares of all
classes of stock which the Corporation shall have authority to issue is
fifty-three million (53,000,000):
(1) Three million (3,000,000) shares of Preferred Stock,
par value one cent ($0.01) per share (the "Preferred Stock"); and
(2) Fifty million (50,000,000) shares of Common Stock,
par value one cent ($0.01) per share (the "Common Stock").
B. Series of Preferred Stock. The Board of Directors is
authorized, subject to any limitations prescribed by law, to provide for the
issuance of the shares of Preferred Stock in series, and by filing a certificate
pursuant to the applicable law of the State of Delaware, to establish from time
to time the number of shares to be included in each such series, and to fix the
designation, powers, preferences, and rights of the shares of each such series
and any qualifications, limitations or restrictions thereof.
FIFTH: The following provisions are inserted 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 directors and stockholders:
A. Powers of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors. In addition to the powers and
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authority expressly conferred upon them by statute or by this Certificate of
Incorporation or the Bylaws of the Corporation, the directors are hereby
empowered to exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation.
B. Ballot Unnecessary. The directors of the Corporation need
not be elected by written ballot unless the Bylaws so provide.
C. Stockholders Must Meet to Act. Any action required or
permitted to be taken by the stockholders of the Corporation must be effected at
a duly called annual or special meeting of stockholders of the Corporation and
may not be effected by any consent in writing by such stockholders.
D. Call of Special Meeting of Stockholders. Special meetings
of stockholders of the Corporation may be called only (1) by the Board of
Directors pursuant to a resolution adopted by 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 resolution is presented to the
Board for adoption) or (2) by the holders of not less than ten percent (10%) of
all of the shares entitled to cast votes at the meeting. The procedure for
calling a special meeting of stockholders will be as set forth in this
Certificate of Incorporation or the Bylaws.
SIXTH:
A. Classification 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 1991 annual meeting
of stockholders, the term of office of the second class to expire at the 1992
annual meeting of stockholders and the term of office of the third class to
expire at the 1993 annual meeting of stockholders. At each annual meeting of
stockholders following such initial classification and election, directors shall
be elected to succeed those directors whose terms expire for a term of office to
expire at the third succeeding annual meeting of stockholders after their
election. All directors shall hold office until the expiration of the term for
which elected, and until their respective successors are elected, except in the
case of the death, resignation, or removal of any director.
B. Filling Vacancies on the Board. 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, removal from office, disqualification 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 stockholders at which the term of office of the class to which
they have been elected expires.
C. Removal of Directors. Subject to the rights of the holders
of any series of Preferred Stock then outstanding, any directors, or the entire
Board of Directors, may be removed
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from office at any time, but only for cause and only by the affirmative vote of
the holders of at least a majority of the voting power of all of the then
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class.
SEVENTH: Power to Amend Bylaws. The Board of Directors is expressly
empowered to adopt, amend or repeal Bylaws of the Corporation. Any adoption,
amendment or repeal of Bylaws of the Corporation by the Board of Directors shall
require the approval of a majority of the total number of authorized directors
(whether or not there exist any vacancies in previously authorized directorships
at the time any resolution providing for adoption, amendment or repeal is
presented to the Board). The stockholders shall also have power to adopt, amend
or repeal the Bylaws of the Corporation. In addition to any vote of the holders
of any class or series of stock of this Corporation required by law or by this
Certificate of Incorporation, the affirmative vote of the holders of at least
66-2/3 percent of the combined voting power of the outstanding shares of stock
of all classes and series of the Corporation entitled to vote generally in the
election of directors, voting together as a single class, shall be required to
adopt, amend or repeal any provision of the Bylaws of the Corporation.
EIGHTH: Vote Required for Certain Business Combinations. In
addition to any affirmative vote required by law, any other provisions of this
Certificate of Incorporation or otherwise, none of the following transactions
shall be consummated unless and until such transaction shall have been approved
by the affirmative vote of the holders of at least 66-2/3 percent of the
combined voting power of the outstanding shares of stock of all classes and
series of the Corporation entitled to vote generally in the election of
directors:
(1) any merger, reorganization or consolidation of or
share exchange made by the Corporation or any of its subsidiaries into or with
any other person, in each case irrespective of whether the Corporation or its
subsidiary is the surviving entity, provided, however, that the holders of a
majority of the combined voting power of the outstanding shares of all classes
and series of the Corporation entitled to vote generally in the election of
directors may approve any transaction, including a merger or consolidation, in
which the Corporation pays less than $20,000,000 in cash, assets or securities
(including securities of the Corporation) for the assets or securities of a
third party; or
(2) except in the ordinary course of business, any sale,
lease, exchange, mortgage, pledge, transfer or other disposition to or with any
other person (in a single transaction or a series of related transactions) of
all or a Substantial Part (as hereinafter defined) of the assets of the
Corporation (including without limitation any securities of a subsidiary); or
(3) except in the ordinary course of business, any sale,
lease, exchange, mortgage, pledge, transfer or other disposition to or with the
Corporation or to or with any of its subsidiaries (in a single transaction or
series of related transactions) of the assets or securities of any other person
if the fair market value of such assets or securities would constitute a
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Substantial Part of the assets of the Corporation; or
(4) any agreement, contract or other arrangement providing
for any of the transactions described in this definition of Business
Combination. Anything in the foregoing to the contrary notwithstanding, the term
"Business Combination" shall not be deemed to include any of the transactions
contemplated by that certain Credit Agreement or that certain Business Loan
Agreement, both dated as of February 27, 1985, between the Corporation and Bank
of America N.T. & S.A., or any renewals, extensions or refundings thereof; or
(5) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation.
The term "Substantial Part" shall mean more than 20% of the fair market
value of the total consolidated assets of the Corporation and its subsidiaries
taken as a whole, as determined by two-thirds of the members of the Board of
Directors of such person in good faith, as of the end of its most recent fiscal
year ending prior to the time the determination is being made.
The terms "Business Combination" as used in this Article EIGHTH shall
mean any transaction or proposed transaction which is referred to in any one or
more of the foregoing subparagraphs (1) through (5) of this paragraph A of this
Article EIGHTH.
NINTH: Board Discretion Regarding Certain Transactions. The
Board of Directors of the Corporation (the "Board"), when evaluating any offer
to another party (a) to make a tender or exchange offer for any capital stock of
the Corporation or (b) to effect any merger, consolidation, or sale of all or
substantially all of the assets of the Corporation, shall, in connection with
the exercise of its judgment in determining what is in the best interests of the
Corporation as a whole, be authorized to give due consideration to such factors
as the Board determines to be relevant, including, without limitation:
(i) the interests of the Corporation's stockholders;
(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 the Corporation, but also in relation to the market price for
the capital stock of the Corporation over a period of years, the estimated price
that will be achieved in a negotiated sale of the 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 the Corporation's
financial condition and future prospects; and
(iv) the social, legal and economic effects upon employees,
suppliers, customers and others having similar relationships with the
Corporation, and the communities in which the
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Corporation conducts its business.
In connection with any such evaluation, the Board is authorized to
conduct such investigations and to engage in such legal proceedings as the Board
may determine.
TENTH: Elimination of Monetary Liability. The liability of the
directors of the Corporation for monetary damages shall be eliminated to the
fullest extent permissible under Delaware law.
Any repeal or modification of the foregoing provisions of this Article
TENTH 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.
ELEVENTH: Future Amendments. The Corporation reserves the right to
amend or repeal any provision contained in this Certificate of Incorporation in
the manner prescribed by the laws of the State of Delaware and all rights
conferred upon stockholders are granted subject to this reservation; provided,
however, that, notwithstanding any other provision of this Certificate of
Incorporation or any provision of law which might otherwise permit a lesser vote
or no vote, but in addition to any vote of the holders of any class or series of
the stock of this Corporation required by law or by this Certificate of
Incorporation, the affirmative vote of the holders of at least 66-2/3 percent of
the combined voting power of the outstanding shares of stock of all classes and
series of the Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to amend, repeal
or adopt any provision inconsistent with Article FIFTH (except Section D
thereof), SIXTH (except Section C thereof), SEVENTH, EIGHTH, NINTH, TENTH or
this Article ELEVENTH.
TWELFTH: The name and mailing address of the sole incorporator is
as follows:
Name Mailing Address
David H. Watts 585 West Beach St.
Watsonville, CA 95076
I, THE UNDERSIGNED, being the incorporator, for the purpose of forming a
corporation under the laws of the State of Delaware, do make, file and record
this Amended Certificate of Incorporation, do certify that the facts herein
stated are true and, accordingly, have hereto set my hand this 19th day of May,
1998.
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David H. Watts
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