EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
UNIVERSAL TECHNICAL INSTITUTE, INC.
DATED SEPTEMBER 29, 2004
It is hereby certified that:
1. The present name of the corporation (herein called the "Corporation")
is UNIVERSAL TECHNICAL INSTITUTE, INC., which is the name under which the
Corporation was originally incorporated; and the date of filing the original
Certificate of Incorporation of the Corporation with the Secretary of State of
Delaware is September 10, 1997. The Corporation filed a Restated Certificate of
Incorporation with the Secretary of State of Delaware on September 29, 1997. The
Corporation filed the Certificate of Designation of Preferences and Rights of
Series A Preferred Stock and Series B Preferred Stock with the Secretary of
State of Delaware on September 30, 1997. The Corporation filed an Amendment No.
1 to the Restated Certificate of Incorporation and the Certificate of
Designation of Series C Preferred Stock with the Secretary of State of the State
of Delaware on September 29, 1999. The Corporation filed a Second Amended and
Restated Certificate of Incorporation with the Secretary of State of the State
of Delaware on March 28, 2002. The Corporation filed an Amended and Restated
Certificate of Incorporation with the Secretary of State of Delaware on December
15, 2003. The Corporation filed Certificates of Elimination with respect to its
Series A, B, C and D Preferred Stock with the Secretary of State of Delaware on
May 10, 2004.
2. The Amended and Restated Certificate of Incorporation of the
Corporation as heretofore amended and/or supplemented is hereby restated in its
entirety as set forth in the Restated Certificate of Incorporation herein
provided for.
3. The provisions of the Amended and Restated Certificate of Incorporation
of the Corporation as heretofore amended or supplemented, are hereby restated
and integrated into the single instrument which is hereinafter set forth, and
which is entitled Restated Certificate of Incorporation of Universal Technical
Institute, Inc., without any further amendments and without any discrepancy
between the provisions of the Amended and Restated Certificate of Incorporation
as heretofore amended and supplemented and the provisions of the said single
instrument hereinafter set forth.
4. The Restated Certificate of Incorporation has been duly adopted by the
Board of Directors in accordance with the provisions of Section 245(b) of the
General Corporation law of the State of Delaware.
5. The Certificate of Incorporation of the Corporation, as restated
herein, shall at the effective time of this Restated Certificate of
Incorporation, read as follows:
RESTATED
CERTIFICATE OF INCORPORATION
OF
UNIVERSAL TECHNICAL INSTITUTE, INC.
ARTICLE I
The name of the Corporation is: Universal Technical Institute, Inc. The
Corporation shall have perpetual existence.
ARTICLE II
The address of its registered office in the State of Delaware is 1209
Orange Street, in the City of Wilmington, County of New Castle 19801. The name
of its registered agent at such address is The Corporation Trust Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of
Delaware.
ARTICLE IV
1. AUTHORIZED STOCK.
The total number of shares of all classes of stock which the Corporation
shall have authority to issue is 110,000,000 shares, consisting of (i)
100,000,000. shares of Common Stock, $0.0001 par value per share ("Common
Stock"), and (ii)10,000,000. shares of Preferred Stock, $0.0001 par value per
share ("Preferred Stock").
2. COMMON STOCK.
The powers, preferences and rights, and the qualifications, limitations
and restrictions, of the Common Stock are as follows:
(a) NO CUMULATIVE VOTING. The holders of shares of Common Stock
shall have no cumulative voting rights.
(b) DIVIDENDS; STOCK SPLITS. Subject to the rights of the holders of
Preferred Stock, and subject to any other provisions of this Restated
Certificate of Incorporation, as it may be amended from time to time, the
holders of Common Stock shall be entitled to receive such dividends and other
distributions in cash, stock or property of the Corporation when, as and if
declared thereon by the Board of Directors from time to time out of assets or
funds of the Corporation legally available therefor.
The number of authorized shares of Common Stock may be increased or
decreased (but not below the number of shares thereof then outstanding) by the
affirmative vote
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of the holders of a majority of the stock of the Corporation entitled to vote,
irrespective of the provisions of Section 242(b)(2) of the General Corporation
Law of Delaware.
(c) LIQUIDATION, DISSOLUTION, ETC. In the event of any liquidation,
dissolution or winding up (either voluntary or involuntary) of the Corporation,
holders of shares of Common Stock shall be entitled to receive all assets of the
Corporation available for distribution after payments to creditors and to the
holders of any Preferred Stock of the Corporation that may at the time be
outstanding, in proportion to the number of shares held by them, respectively.
For purpose of this paragraph 2(c), the voluntary sale, conveyance, lease,
exchange or transfer (for cash, shares of stock, securities, or other
consideration) of all or substantially all of the assets of the Corporation or a
consolidation or merger of the Corporation with one or more other corporations
or other persons (whether or not the Corporation is the corporation surviving
such consolidation or merger) shall not be deemed to be a liquidation,
dissolution or winding up, voluntary or involuntary.
(d) MERGER, ETC. In the event of a merger or consolidation of the
Corporation with or into another entity (whether or not the Corporation is the
surviving entity), the holders of each share of Common Stock shall be entitled
to receive the same per share consideration on a per share basis.
(e) VOTING. At every meeting of the stockholders of the Corporation
in connection with the election of directors and all other matters submitted to
a vote of stockholders, every holder of Common Stock is entitled to one vote in
person or by proxy for each share of Common Stock registered in the name of the
holder on the transfer books of the Corporation. Except as otherwise required by
law, the holders of Common Stock shall vote together as a single class, subject
to any right that may be conferred upon holders of Preferred Stock to vote
together with holders of Common Stock on all matters submitted to a vote of
stockholders of the Corporation.
(f) NO PREEMPTIVE OR SUBSCRIPTION RIGHTS. No holder of shares of
Common Stock shall be entitled to preemptive or subscription rights.
3. PREFERRED STOCK.
(a) RIGHTS, PREFERENCES AND PRIVILEGES. Preferred Stock may be
issued from time to time in one or more series. The Board of Directors is hereby
authorized to provide for the issuance of shares of Preferred Stock in a class
or series and, by filing a certificate pursuant to the applicable law of the
State of Delaware (a "Preferred Stock Designation"), to establish from time to
time the number of shares to be include in each such class or series, and to fix
the designation, powers, preferences and rights of the shares of each such class
or series and the qualification, limitations and restrictions thereof. The
authority of the Board of Directors with respect to each class or series shall
include, but not be limited to, determination of the following:
(i) The designation of the class or series, which may be by
distinguishing number, letter or title;
(ii) The number of shares of the series, which number the
Board of Directors may thereafter (except where otherwise provided in the
Preferred Stock
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Designation) increase or decrease (but not below the number of shares
thereof then outstanding);
(iii) Whether dividends, if any, shall be cumulative or
non-cumulative and the dividend rate of the class or series;
(iv) The dates on which dividends, if any, shall be payable;
(v) The redemption rights and price or prices, if any, for
shares of the class or series;
(vi) The terms and amount of any sinking fund provided for the
purchase or redemption of shares of the class or series;
(vii) The amounts payable on, and the preferences, if any, of,
shares of the class or series in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation;
(viii) Whether the shares of the class or series shall be
convertible into shares of any other class or series, or any other
security, of the Corporation or any other corporation, and, if so, the
specification of such other class or series of such other security, the
conversion price or prices or rate or rates, any adjustments thereof, the
date or dates at which such shares shall be convertible and all other
terms and conditions upon which such conversion may be made;
(ix) Restrictions on the issuance of shares of the same class
or series or of any other class or series; and
(x) The voting rights, if any, of the holders of shares of the
class or series.
(b) NUMBER OF AUTHORIZED SHARES. The number of authorized shares of
Preferred Stock may be increased or decreased (but not below the number of
shares then outstanding) by the affirmative vote of the holders of a majority of
the voting power of Common Stock, without a vote of the holders of the Preferred
Stock, or of any series thereof, unless a vote of any such holders is required
pursuant to the terms of the applicable Preferred Stock Designation.
4. POWER TO SELL AND PURCHASE SHARES.
Subject to the requirements of applicable law, the Corporation shall have
the power to issue and sell all or any part of any shares of any class of stock
hereon or hereafter authorized to such persons, and for such consideration, as
the Board of Directors shall from time to time, in its discretion, determine,
whether or not greater consideration could be received upon the issue or sale of
the same number of shares of another class, and as otherwise permitted by law.
Subject to the requirements of applicable law, and except as expressly provided
otherwise in Section 6.9 of the Bylaws, the Corporation shall have the power to
purchase any shares of any class of stock herein or hereafter authorized from
such persons, and for such consideration, as the Board of
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Directors shall from time to time, in its discretion, determine, whether or not
less consideration could be paid upon the purchase of the same number of shares
of another class, and as otherwise permitted by law.
ARTICLE V
For the management of the business and for the conduct of the affairs
of the Corporation, and in further definition, limitation and regulation of the
powers of the Corporation, of its directors and of its stockholders or any class
thereof, as the case may be, it is further provided that:
1. BOARD OF DIRECTORS.
The business and affairs of the Corporation shall be managed by or under
the direction of the Board of Directors. The number of directors which shall
constitute the whole Board of Directors shall be fixed by the Board of Directors
in the manner provided in the Bylaws of the Corporation.
2. NUMBER AND ELECTION OF DIRECTORS.
The number of directors of the Corporation shall not be less than three or
more than eleven. Election of directors need not be by written ballot, except as
and to the extent provided in the Bylaws of the Corporation.
3. CLASSES OF DIRECTORS.
The Board of Directors, other than those who may be elected by the holders
of any class or series of Preferred Stock issued by the Corporation, shall be
divided into three classes: Class I, Class II and Class III as nearly equal in
number as may be, to serve staggered three-year terms on the Board of Directors.
No one class shall have more than one director more than any other class.
4. TERMS OF OFFICES.
Each director shall serve for a term ending on the date of the third
annual meeting of stockholders following the annual meeting at which such
director was elected; provided, however, the directors first serving as Class I
directors shall serve for a term expiring at the annual meeting next following
September 30, 2003, the directors first serving as Class II directors shall
serve for a term expiring at the second annual meeting next following September
30, 2003, and the directors first serving as Class III directors shall serve for
a term expiring at the third annual meeting next following September 30, 2003. A
director shall hold office until the annual meeting for the year in which his or
her term expires or until his or her successor shall be elected and shall
qualify, subject, however, to prior death, resignation, retirement,
disqualification or removal from office.
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5. ALLOCATION OF DIRECTORS AMONG CLASSES IN THE EVENT OF INCREASE OR
DECREASE IN THE NUMBER OF DIRECTORS.
Subject to applicable law and the terms of any one or more outstanding
classes or series of Preferred Stock, any vacancy on the Board or Directors that
results from an increase in the number of directors or resulting from the death,
resignation, removal from office or any other cause may be filled by a majority
of the Board of Directors then in office, although less than a quorum, or by a
sole remaining director, and not by the stockholders. Any director of any class
elected to fill a vacancy resulting from an increase in the number of directors
of such class shall hold office for a term that shall coincide with the
remaining term of that class. Any director elected to fill a vacancy not
resulting from an increase in the number of directors shall have the same
remaining term as that of his predecessor. Subject to applicable law and the
rights, if any, of the holders of shares of Preferred Stock then outstanding,
any or all of the directors of the Corporation may be removed from office at any
time by the stockholders only for cause and only by the affirmative vote of at
least the 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. A director may not be removed by the stockholders at a meeting unless
the notice of the meeting states that the purpose, or one of the purposes, of
the meeting is the removal of the director. Notwithstanding the foregoing,
whenever the holders of any one or more classes or series of Preferred Stock
issued by the Corporation shall have the right, voting separately by class or
series, to elect directors at an annual or special meeting of stockholders, the
election, term of office, filling of vacancies and other features of such
directorship shall be governed by the terms of this Restated Certificate of
Incorporation applicable thereto, and such directors so elected shall not be
divided into classes pursuant to this Article V unless expressly provided
otherwise by such terms.
6. AMENDMENTS TO BYLAWS.
The Board of Directors may from time to time adopt, amend or repeal
Bylaws. Stockholders may adopt, amend or repeal the Bylaws of the Corporation
only on the recommendation of the Board.
7. ADVANCE NOTICE.
Advance notice of stockholder nominations for the election of directors
and of business to be brought by stockholders before any meeting of the
stockholders of the Corporation shall be given in the manner provided in the
Bylaws of the Corporation.
8. IN GENERAL.
In addition to the powers and authority hereinbefore or by statute
expressly conferred upon them, 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, subject, nevertheless, to the provisions of the Delaware
General Corporation Law, this Restated Certificate of Incorporation, and any
Bylaws adopted by the stockholders; provided, however that no Bylaws hereafter
adopted by the stockholders shall invalidate any prior act of the directors
which would have been valid if such Bylaws had not been adopted. Notwithstanding
any other provisions of law, this
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Restated Certificate of Incorporation or the Bylaws of the Corporation, and
notwithstanding the fact that a lesser percentage may be specified by law, the
affirmative vote of the holders of at least sixty-six and two-thirds percent (66
2/3%) of the votes which all the stockholders would be entitled to cast in any
annual election of directors or class of directors shall be required to amend or
repeal, or to adopt any provision inconsistent with, this Article V.
ARTICLE VI
1. LIMITATION OF LIABILITY.
To the fullest extent permitted by the Delaware General Corporation Law as
the same exists or as may hereafter be amended, 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.
2. INDEMNIFICATION.
The Corporation may indemnify to the fullest extent permitted by law any
person made or threatened to be made a party to an action, suit or proceeding,
whether criminal, civil, administrative or investigative, by reason of the fact
that such person or his or her testator in intestate is or was a director,
officer, employee or agent of the Corporation, or any predecessor of the
Corporation, or serves or served at any other enterprise as a director, officer,
employee or agent at the request of the Corporation or any predecessor to the
Corporation.
3. GOOD FAITH RELIANCE.
The Corporation shall be entitled to treat the person in whose name any
share of its stock is registered as the owner thereof for all purposes and shall
not be bound to recognize any equitable or other claim to, or interest in, such
share on the part of any other person, whether or not the Corporation shall have
notice thereof, except as expressly provided in this Restated Certificate of
Incorporation or by applicable law.
4. AMENDMENTS.
Neither any amendment nor repeal of this Article VI, nor the adoption of
any provision of the Corporation's certificate of incorporation inconsistent
with this Article VI, shall eliminate or reduce the effect of this Article VI,
in respect of any matter occurring, or any action or proceeding accruing or
arising or that, but for this Article VI, would accrue or arise, prior to such
amendment, repeal, or adoption of an inconsistent provision.
ARTICLE VII
Unless otherwise required by law, special meetings of stockholders, for
any purpose or purposes, may be called at any time only by the Chairman of the
Board of Directors or a committee of the Board that has been duly designated by
the Board, and shall be called by the Secretary at the written request, or by
resolution adopted by the affirmative vote, of a majority of the Board of
Directors. Stockholders shall not have the right to call a special meeting of
stockholders.
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ARTICLE VIII
Any actions required or permitted to be taken by stockholders of the
Corporation shall be effected at a duly called annual or special meeting of
stockholders of the Corporation, and the ability of the stockholders to consent
in writing to the taking of any action is hereby specifically denied, provided,
however, that the holders of Preferred Stock may act by written consent to the
extent expressly provided in the applicable Preferred Stock Designation
authorizing the issuance of particular series of Preferred Stock pursuant to
Article IV of this Restated Certificate of Incorporation.
ARTICLE IX
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the Bylaws of the Corporation.
ARTICLE X
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Restated Certificate of Incorporation, in the manner
now or hereafter prescribed by statute and this Restated Certificate of
Incorporation, and all rights conferred upon stockholders herein are granted
subject to this reservation; provided, however, that notwithstanding any other
provision of this Restated Certificate of Incorporation (and in addition to any
other vote that may be required by law), the affirmative vote of the holders of
at least sixty-six and two-thirds percent (66 2/3%) of the voting power of all
of the then outstanding shares of the capital stock of the Corporation, voting
together as a single class, shall be required to amend, alter, change or repeal,
or to adopt any provisions as part of this Restated Certificate of Incorporation
inconsistent with the purposes and intent of Article V, Article VI, Article VII,
Article VIII and this Article X.
IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate
of Incorporation to be signed by its Chief Executive Officer this 29th day of
September, 2004.
UNIVERSAL TECHNICAL INSTITUTE, INC.
/s/ Robert D. Hartman
Robert D. Hartman
Chief Executive Officer
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