EXHIBIT 4.1
PAGE 1
DELAWARE
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The First State
I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE,
DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "LAIDLAW INTERNATIONAL, INC." FILED IN THIS OFFICE ON THE
TWENTIETH DAY OF JUNE, A.D. 2003, AT 9:11 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ Harriet Smith Windsor
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Harriet Smith Windsor, Secretary of State
3617098 8100D [SEAL] AUTHENTICATION: 2485142
030407841 DATE: 06-20-03
CERTIFICATE OF INCORPORATION
OF
LAIDLAW INTERNATIONAL, INC.
Laidlaw International, Inc. hereby certifies as follows:
First. The name of the corporation is Laidlaw International, Inc. (the
"Company").
Second. The address of the Company's registered office in the State of
Delaware is 2711 Centerville Road, Suite 400, Wilmington,
Delaware 19805, County of New Castle. The name of the
Company's registered agent at such address is The Company
Corporation.
Third. The purpose of the Company 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, as amended
(the "DGCL").
Fourth. Section 1. Authorized Capital Stock. The Company is authorized
to issue two classes of capital stock, designated Common Stock
and Series A Junior Participating Preferred Stock. The total
number of shares of capital stock that the Company is
authorized to issue is 550,000,000 shares, consisting of
500,000,000 shares of Common Stock, par value $.01 per share
("Common Stock"), and 50,000,000 shares of Series A Junior
Participating Preferred Stock, par value $.01 per share
("Series A Preferred"). The shares of Series A Preferred may
only be issued pursuant to the Rights Agreement, dated as of
June 23, 2003, by and between the Company and Wells Fargo Bank
Minnesota, National Association, as rights agent, as may be
amended from time to time, or any successor rights agreement,
and any amendments thereto, that may be adopted by the Board
of Directors of the Company (the "Board").
Section 2. Series A Preferred. (a) The holders of shares of Series A
Preferred, in preference to the holders of Common Stock, will be entitled to
receive, when, as and if declared by the Board, out of funds legally available
for the purpose, dividends payable in cash (except as otherwise provided below)
on such dates as are from time to time established for the payment of dividends
on the Common Stock (each such date being referred to herein as a "Dividend
Payment Date"), commencing on the first Dividend Payment Date after the first
issuance of a share or fraction of a share of Series A Preferred (the "First
Dividend Payment Date"), in an amount per share (rounded to the nearest cent)
equal to the greater of (i) $1.00 or (ii) subject to the provision for
adjustment hereinafter set forth, one hundred times the aggregate per share
amount of all cash dividends, and one hundred times the aggregate per share
amount (payable in kind)
of all non-cash dividends, other than a dividend payable in shares of Common
Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock since the
immediately preceding Dividend Payment Date or, with respect to the First
Dividend Payment Date, since the first issuance of any share or fraction of a
share of Series A Preferred. In the event that the Company at any time (A)
declares a dividend on the outstanding shares of Common Stock payable in shares
of Common Stock, (B) subdivides the outstanding shares of Common Stock, (C)
combines the outstanding shares of Common Stock into a smaller number of shares
or (D) issues any shares of its capital stock in a reclassification of the
outstanding shares of Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is the continuing
or surviving corporation), then, in each such case and regardless of whether any
shares of Series A Preferred are then issued or outstanding, the amount to which
holders of shares of Series A Preferred would otherwise be entitled immediately
prior to such event under clause (ii) of the preceding sentence will be adjusted
by multiplying such amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) The Company will declare a dividend on the Series A
Preferred as provided in the immediately preceding paragraph
immediately after it declares a dividend on the Common Stock
(other than a dividend payable in shares of Common Stock).
Each such dividend on the Series A Preferred will be payable
immediately prior to the time at which the related dividend on
the Common Stock is payable.
(c) Dividends will accrue on outstanding shares of Series
A Preferred from the Dividend Payment Date next preceding the
date of issue of such shares, unless (i) the date of issue of
such shares is prior to the record date for the First Dividend
Payment Date, in which case dividends on such shares will
accrue from the date of the first issuance of a share of
Series A Preferred, or (ii) the date of issue is a Dividend
Payment Date or is a date after the record date for the
determination of holders of shares of Series A Preferred
entitled to receive a dividend and before such Dividend
Payment Date, in either of which events such dividends will
accrue from such Dividend Payment Date. Accrued but unpaid
dividends will cumulate from the applicable Dividend Payment
Date but will not bear interest. Dividends paid on the shares
of Series A Preferred in an amount less than the total amount
of such dividends at the time accrued and payable on such
shares will be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board may
fix a record date for the determination of holders of shares
of Series A Preferred entitled to receive payment of a
dividend or distribution declared thereon, which record date
will be not more than 60 calendar days prior to the date fixed
for the payment thereof.
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(d) The holders of shares of Series A Preferred will have
the following voting rights:
(i) Subject to the provision for adjustment hereinafter
set forth, each share of Series A Preferred will
entitle the holder thereof to one hundred votes on
all matters submitted to a vote of the stockholders
of the Company. In the event the Company at any time
(A) declares a dividend on the outstanding shares of
Common Stock payable in shares of Common Stock, (B)
subdivides the outstanding shares of Common Stock,
(C) combines the outstanding shares of Common Stock
into a smaller number of shares or (D) issues any
shares of its capital stock in a reclassification of
the outstanding shares of Common Stock (including any
such reclassification in connection with a
consolidation or merger in which the Company is the
continuing or surviving corporation), then, in each
such case and regardless of whether any shares of
Series A Preferred are then issued or outstanding,
the number of votes per share to which holders of
shares of Series A Preferred would otherwise be
entitled immediately prior to such event will be
adjusted by multiplying such number by a fraction,
the numerator of which is the number of shares of
Common Stock outstanding immediately after such event
and the denominator of which is the number of shares
of Common Stock that were outstanding immediately
prior to such event.
(ii) Except as otherwise provided herein or by law, the
holders of shares of Series A Preferred and the
holders of shares of Common Stock will vote together
as one class on all matters submitted to a vote of
stockholders of the Company.
(iii) Except as set forth herein, or as otherwise provided
by law, holders of Series A Preferred shall have no
voting rights.
(e) Whenever dividends or other dividends or
distributions payable on the Series A Preferred are in
arrears, thereafter and until all accrued and unpaid dividends
and distributions, whether or not declared, on shares of
Series A Preferred outstanding have been paid in full, the
Company will not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the shares of Series A
Preferred;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a
parity (either as to dividends or upon
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liquidation, dissolution or winding up) with the
shares of Series A Preferred, except dividends paid
ratably on the shares of Series A Preferred and all
such parity stock on which dividends are payable or
in arrears in proportion to the total amounts to
which the holders of all such shares are then
entitled;
(iii) redeem, purchase or otherwise acquire for
consideration shares of any stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the shares of Series A
Preferred; provided, however, that the Company may at
any time redeem, purchase or otherwise acquire shares
of any such junior stock in exchange for shares of
any stock of the Company ranking junior (either as to
dividends or upon dissolution, liquidation or winding
up) to the shares of Series A Preferred; or
(iv) purchase or otherwise acquire for consideration any
shares of Series A Preferred or redeem, purchase or
otherwise acquire for consideration any shares of
stock ranking on a parity with the shares of Series A
Preferred, except in accordance with a purchase offer
made in writing or by publication (as determined by
the Board) to all holders of such shares upon such
terms as the Board, after consideration of the
respective annual dividend rates and other relative
rights and preferences of the respective Series and
classes, may determine in good faith will result in
fair and equitable treatment among the respective
series or classes.
(f) The Company will not permit any majority-owned
subsidiary of the Company to purchase or otherwise acquire for
consideration any shares of stock of the Company unless the
Company could, under paragraph (f) of this Section 2, purchase
or otherwise acquire such shares at such time and in such
manner.
(g) Any shares of Series A Preferred purchased or
otherwise acquired by the Company in any manner whatsoever
will be retired and canceled promptly after the acquisition
thereof. All such shares will upon their cancellation become
authorized but unissued shares of Preferred Stock and may be
reissued as Series A Preferred subject to the conditions and
restrictions on issuance set forth herein.
(h) Upon any liquidation, dissolution or winding up of
the Company, no distribution will be made (i) to the holders
of shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the shares of
Series A Preferred unless, prior thereto, the holders of
shares of Series A Preferred have received $100 per share,
plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of
such payment; provided, however, that the holders of shares of
Series A Preferred will be entitled to receive an
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aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to one hundred times
the aggregate amount to be distributed per share to holders of
shares of Common Stock or (ii) to the holders of shares of
stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the shares of
Series A Preferred, except distributions made ratably on the
shares of Series A Preferred and all such parity stock in
proportion to the total amounts to which the holders of all
such shares are entitled upon such liquidation, dissolution or
winding up. In the event the Company at any time (A) declares
a dividend on the outstanding shares of Common Stock payable
in shares of Common Stock, (B) subdivides the outstanding
shares of Common Stock, (C) combines the outstanding shares of
Common Stock into a smaller number of shares, or (D) issues
any shares of its capital stock in a reclassification of the
outstanding shares of Common Stock (including any such
reclassification in connection with a consolidation or merger
in which the Company is the continuing or surviving
corporation), then, in each such case and regardless of
whether any shares of Series A Preferred are then issued or
outstanding, the aggregate amount to which each holder of
shares of Series A Preferred would otherwise be entitled
immediately prior to such event under the proviso in clause
(i) of the preceding sentence will be adjusted by multiplying
such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior
to such event.
(i) In the event that the Company enters into any
consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed
into other stock or securities, cash or any other property,
then, in each such case, each share of Series A Preferred will
at the same time be similarly exchanged for or changed into an
amount per share, subject to the provision for adjustment
hereinafter set forth, equal to one hundred times the
aggregate amount of stock, securities, cash or any other
property (payable in kind), as the case may be, into which or
for which each share of Common Stock is changed or exchanged.
In the event the Company at any time (A) declares a dividend
on the outstanding shares of Common Stock payable in shares of
Common Stock, (B) subdivides the outstanding shares of Common
Stock, (C) combines the outstanding shares of Common Stock in
a smaller number of shares or (D) issues any shares of its
capital stock in a reclassification of the outstanding shares
of Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Company
is the continuing or surviving corporation), then, in each
such case and regardless of whether any shares of Series A
Preferred are then issued or outstanding, the amount set forth
in the preceding sentence with respect to the exchange or
change of shares of Series A Preferred will be adjusted by
multiplying such amount by a fraction, the
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numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(j) The shares of Series A Preferred are not redeemable.
(k) Notwithstanding anything contained in this
Certificate of Incorporation to the contrary and in addition
to any other vote required by applicable law, this Certificate
of Incorporation may not be amended in any manner that would
materially alter or change the powers, preferences or special
rights of the Series A Preferred so as to affect them
adversely without the affirmative vote of the holders of at
least 66(Beta)% of the outstanding shares of Series A
Preferred, voting together as a single class, or, if no shares
of Series A Preferred are outstanding, of the outstanding
shares of Common Stock.
Section 3. Common Stock. Except as otherwise provided by law, the holders of
Common Stock will be entitled to one vote on each matter submitted to a
vote at a meeting of stockholders for each share of Common Stock held
of record by such holder as of the record date for such meeting.
FIFTH. The Board may make, amend and repeal the By-Laws of the Company.
Any By-Law made by the Board under the powers conferred hereby
may be amended or repealed by the Board (except as specified
in any such By-Law so made or amended) or by the stockholders
in the manner provided in the By-Laws of the Company.
Notwithstanding the foregoing and anything contained in this
Certificate of Incorporation to the contrary, By-Laws 1, 3, 8,
10, 11, 12, 13 and 50 may not be amended or repealed by the
stockholders and no provision inconsistent therewith may be
adopted by the stockholders or the Board, without the
affirmative vote of the holders of at least 66(Beta)% of the
voting power of the outstanding Voting Stock (as defined
below), voting together as a single class. Subject to the
immediately preceding sentence, the Company may in its By-Laws
confer powers upon the Board in addition to the foregoing and
in addition to the powers and authorities expressly conferred
upon the Board by applicable law. For the purposes of this
Certificate of Incorporation, "Voting Stock" means stock of
the Company of any class or series entitled to vote generally
in the election of the directors of the Board (the
"Directors"). Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, the affirmative
vote of the holders of at least 66(Beta)% of the voting power
of the outstanding Voting Stock, voting together as a single
class, is required to amend or repeal, or to adopt any
provisions inconsistent with, this Article Fifth.
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SIXTH. Except as otherwise provided by law:
(a) any action required or permitted to be taken by the
stockholders of the Company must be effected at a duly called
annual or special meeting of stockholders of the Company and
may not be effected otherwise by any consent in writing of
such stockholders;
(b) special meetings of stockholders of the Company may
be called only by (i) the Chairman of the Board; (ii) the
President of the Company; (iii) the Secretary of the Company
within 10 calendar days after receipt of the written request
of a majority of the total number of Directors that the
Company would have if there were no vacancies; or (iv) persons
holding at least 66(Beta)% of all shares outstanding and
entitled to vote at such meeting; and
(c) stockholders will not be entitled to cumulative votes
in the election of Directors.
At any annual meeting or special meeting of stockholders of the Company, only
such business will be conducted or considered as has been brought before such
meeting in the manner provided in the By-Laws of the Company. Notwithstanding
anything contained in this Certificate of Incorporation to the contrary, the
affirmative vote of the holders of at least 66(Beta)% of the voting power of the
outstanding Voting Stock, voting together as a single class, will be required to
amend or repeal, or adopt any provision inconsistent with, this Article Sixth.
SEVENTH. Section 1. Number, Election and Terms of Directors. The number
of the Directors of the Company shall be no less than seven
and no more than 15. If there are less than ten Directors of
the Company, no more than one Director may also be an employee
of the Company; and if there are ten or more Directors of the
Company, no more than two Directors may also be employees of
the Company. The Directors will be classified with respect to
the time for which they severally hold office into three
classes, as nearly equal in number as possible, designated
Class I, Class II and Class III. The Directors first appointed
to Class I will hold office for a term expiring at the annual
meeting of stockholders to be held in 2004, the Directors
first appointed to Class II will hold office for a term
expiring at the annual meeting of stockholders to be held in
2005 and the Directors first appointed to Class III will hold
office for a term expiring at the annual meeting of
stockholders to be held in 2006, with the members of each
class to hold office until their successors are elected and
qualified. At each annual meeting of the stockholders of the
Company, the successors to the class of Directors whose term
expires at that meeting will be elected by plurality vote of
all votes cast at such meeting to hold office for a term
expiring at the annual meeting of stockholders held in the
third year following the year of their election. Directors may
be
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elected by the stockholders only at an annual meeting of
stockholders. Election of Directors of the Company must be by
written ballot.
Section 2. Nomination of Director Candidates. Advance notice of stockholder
nominations for the election of Directors must be given in the manner
provided in the By-Laws of the Company.
Section 3. Newly Created Directorships and Vacancies. Newly created
directorships resulting from any increase in the number of Directors
and any vacancies on the Board resulting from death, resignation,
disqualification, removal or other cause will be filled solely by the
affirmative vote of a majority of the remaining Directors then in
office, even though less than a quorum of the Board, or by a sole
remaining Director. Any Director elected in accordance with the
preceding sentence will hold office for the remainder of the full term
of the class of Directors in which the new directorship was created or
the vacancy occurred and until such Director's successor has been
elected and qualified. No decrease in the number of Directors
constituting the Board may shorten the term of any incumbent Director.
Section 4. Removal. Any Director may be removed from office by the stockholders
only for cause and only in the manner provided in this Section 4. At
any annual meeting or special meeting of the stockholders, the notice
of which states that the removal of a Director or Directors is among
the purposes of the meeting, the affirmative vote of the holders of at
least a majority of the voting power of the outstanding Voting Stock,
voting together as a single class, may remove such Director or
Directors for cause.
Section 5. Amendment, Repeal, Etc. Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, the affirmative vote of
the holders of at least 66(Beta)% of the voting power of the
outstanding Voting Stock, voting together as a single class, is
required to amend or repeal, or adopt any provision inconsistent with,
this Article Seventh. The amendment or repeal of, or the adoption of
any provision inconsistent with, this Article Seventh must be by
written ballot.
EIGHTH. A Director shall not be personally liable to the Company 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 Company 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 DGCL or (iv) for any transaction from
which the Director derived any improper personal benefit. If
the DGCL is amended after the filing of this Certificate of
Incorporation to authorize corporate action further
eliminating or limiting the personal liability of directors,
then the liability of a Director shall be
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eliminated or limited to the fullest extent permitted by the
DGCL, as so amended. No modification or repeal of the
provisions of this Article Eighth shall adversely affect any
right or protection of any Director existing at the date of
such modification or repeal or create any liability or
adversely affect any such right or protection for any acts or
omissions of such director occurring prior to such
modification or repeal.
NINTH. Each person who is or was or had agreed to become a Director or
officer of the Company and each such person who is or was
serving or who had agreed to serve at the request of the Board
or an officer of the Company as an employee or agent of the
Company or as a director, officer, employee or agent of
another corporation, partnership, joint venture, employee
benefit plan, trust or other entity, whether for profit or not
for profit (including the heirs, executors, administrators or
estate of such person), will be indemnified by the Company to
the full extent permitted by the DGCL or any other applicable
law as currently or hereafter in effect. The right of
indemnification provided in this Article Ninth will not be
exclusive of any other rights to which any person seeking
indemnification may otherwise be entitled, including without
limitation pursuant to any contract approved by a majority of
the whole Board (whether or not the Directors approving such
contract are or are to be parties to such contract or similar
contracts). Without limiting the generality or the effect of
the foregoing, the Company may adopt By-Laws, or enter into
one or more agreements with any person, that provide for
indemnification greater or different than that provided in
this Article Ninth or the DGCL. Any amendment or repeal of, or
adoption of any provision inconsistent with, this Article
Ninth will not adversely affect any right or protection
existing hereunder, or arising out of facts occurring, prior
to such amendment, repeal or adoption and no such amendment,
repeal or adoption will affect the legality, validity or
enforceability of any contract entered into or right granted
prior to the effective date of such amendment, repeal or
adoption.
TENTH. The Company will not issue nonvoting capital stock to the extent
prohibited by section 1123 of Title 11 of the United States
Code as in effect on the effective date of the Plan of
Reorganization of Laidlaw USA, Inc. and its debtor affiliates
(the "Bankruptcy Code"); provided, however, that this Article
Tenth (a) will have no further force and effect beyond that
required under section 1123 of the Bankruptcy Code, (b) will
have such force and effect, if any, only for so long as such
section is in effect and applicable to the Company and (c) in
all events may be amended or eliminated in accordance with
applicable law as from time to time in effect.
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ELEVENTH. The name and address of the sole incorporator is as follows:
Ivan R. Cairns
Laidlaw Inc.
3221 North Service Road
Burlington, Ontario
Canada L7R 3Y8
TWELFTH. The following individuals shall serve as the initial directors
of the Company, and each individual shall hold office until
the annual meeting of stockholders to be held in the year set
forth next to such individual's name, or until his or her
successor is elected and qualified. The address of each
director is 55 Shuman Blvd, Naperville, Illinois 60563.
Name Term
- ------------------------- ----
Kevin E. Benson 2006
John F. Chlebowski 2004
James H. Dickerson, Jr 2004
Lawrence M. Nagin 2006
Vicki A. O'Meara 2005
Richard P. Randazzo 2005
Maria A. Sastre 2004
Peter E. Stangl 2006
Carroll R. Wetzel, Jr. 2005
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IN WITNESS WHEREOF, the undersigned, being the incorporator
hereinbefore named, has executed, signed and acknowledged this certificate of
incorporation this 20th day of June, 2003.
/s/ Ivan R. Cairns
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Ivan R. Cairns