AMENDED AND RESTATED ARTICLES OF INCORPORATION OF
WASTE INDUSTRIES, INC.
Pursuant to Section 55-10-07 of the General Statutes of North Carolina,
the undersigned corporation hereby submits the following for the purpose of
amending and restating its Articles of Incorporation.
1. The name of the corporation is Waste Industries, Inc.
(the "Corporation").
2. The text of the Amended and Restated Articles of
Incorporation is attached hereto as Exhibit A.
3. These Amended and Restated Articles of Incorporation contain
amendments requiring shareholder approval, which approval was duly obtained as
required by Chapter 55 of the North Carolina General Statutes.
4. These Amended and Restated Articles of Incorporation
will be effective upon filing.
This the ____ day of May 1997.
WASTE INDUSTRIES, INC.
By:__________________________
Jim W. Perry,
President
EXHIBIT A
AMENDED AND RESTATED ARTICLES OF INCORPORATION OF
WASTE INDUSTRIES, INC.
I.
Name
The name of the corporation is Waste Industries, Inc. (the
"Corporation").
II.
Registered Agent and Office
The current registered agent and the street address and county of the
current registered office in the State of North Carolina are:
Jim W. Perry
3949 Browning Place
Raleigh, North Carolina 27609
County of Wake
The mailing address of the current registered office of the Corporation
is the same as its street address.
III.
Purpose
The purpose for which the Corporation is organized is to engage in any
lawful act or activity for which a corporation may be organized under the North
Carolina General Statutes.
IV.
A. Authorized Shares. The total number of shares of all
classes of stock which the Corporation is authorized to issue is
90,000,000 shares consisting of: (1) 80,000,000 shares of Common
Stock, no par value per share, consisting initially of 8,000,000
shares of Voting Common Stock and 72,000,000 shares of Nonvoting
Common Stock; and (2) 10,000,000 shares of Preferred Stock, par
value $0.01 per share.
B. Stock Split; Classes of Stock.
(1) Upon the date of filing of these Amended and Restated
Articles of Incorporation with the Secretary of State of North Carolina, all
outstanding shares of Voting and Nonvoting Common Stock, respectively, shall be
combined in a 1-for-2.5 reverse stock split of each such class (the "Reverse
Split"). No fractional shares of stock or scrip representing fractional
shares shall be issued as a result of the Reverse Split. Upon presentation of
all of a record holder's stock certificates of a class or series at one time for
reissuance to reflect the Reverse Split, the number of full shares of stock
issuable upon the conversion thereof shall be computed on the basis of the
aggregate number of shares of each class or series of stock so surrendered by
such holder. Instead of any fractional shares otherwise issuable as a result of
the Reverse Split, the Corporation shall pay a cash adjustment in respect to
such fraction in an amount equal to the same fraction of current per share fair
market value of the relevant stock, as determined in good faith by the Board of
Directors on such basis as it considers appropriate.
C. Authority of Board of Directors. The Board of Directors is
authorized to determine or alter the rights, preferences, privileges and
restrictions granted to or imposed upon any wholly unissued series of Preferred
Stock, and within the limitations and restrictions stated in any resolution or
resolutions of the Board originally fixing the number of shares constituting any
series, to increase or decrease (but not below the number of shares of any such
series then outstanding) the number of shares of any such series subsequent to
the issue of shares of that series, to determine the designation of any series
and to fix the number of shares of any series.
D. Conversion of Common Stock in an IPO.
(1) Conversion. Each share of Voting Common Stock and each
share of Nonvoting Common Stock shall be automatically converted into one share
of "Common Stock", which shall have all the rights, preferences and privileges
of Voting Common Stock (the "Common Stock Conversion"), immediately upon the
closing of an underwritten public offering of Common Stock of the Corporation
(the "Offering").
(2) Stock Certificates. Each certificate representing shares
of Voting Common Stock or Nonvoting Common Stock issued and outstanding shall
from and after the closing of the Offering be deemed to represent the number of
shares of Common Stock into which the shares evidenced by the certificate have
been so converted. Shareholders may surrender such certificates in exchange for
new certificates representing Common Stock at any time after the closing of the
Offering, and as the presently outstanding certificates are presented in the
future for transfer, new certificates representing Common Stock will be issued.
Upon surrender of a certificate, the holder thereof shall be entitled to receive
a new certificate for Common Stock in exchange therefor.
(3) Restated Articles. At any time on or after the closing of
the Offering, the Board of Directors may restate the Corporation's Articles of
Incorporation to eliminate references therein to the Common Stock Conversion,
to Voting Common Stock
and Nonvoting Common Stock and as otherwise appropriate to reflect the Common
Stock Conversion, without further approval of the shareholders of the
Corporation.
V.
Management
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 shareholders or any class
thereof, as the case may be, it is further provided that:
A. The management of the business and the conduct of the affairs of
the Corporation shall be vested in its Board of Directors.
B. The Board of Directors may from time to time make, amend, supplement
or repeal the Bylaws; provided, however, that the shareholders may change or
repeal any Bylaw adopted by the Board of Directors by the affirmative vote of
the holders of a majority of the voting power of all of the then outstanding
shares of the capital stock of the Corporation (considered for this purpose as
one class); and, provided further, that no amendment or supplement to the Bylaws
adopted by the Board of Directors shall vary or conflict with any amendment or
supplement thus adopted by the shareholders.
C. The directors of the Corporation need not be elected by
written ballot unless the Bylaws so provide.
VI.
Preemptive Rights
No preemptive rights shall exist with respect to shares of stock or
securities convertible into shares of stock of the Corporation.
VII.
Cumulative Voting
The right to cumulate votes in the election of directors shall not
exist with respect to shares of stock in the Corporation.
VIII.
Limitation of Director Liability
Except to the extent that the North Carolina General Statutes prohibit
such limitation or elimination of liability of
directors for breaches of duty, no director of the corporation shall be liable
to the corporation or to any of its shareholders for monetary damages for breach
of duty as a director. No amendment to or repeal of this provision or adoption
of a provision inconsistent herewith shall apply to or have any effect on the
liability or alleged liability of any director of the corporation for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal or adoption of an inconsistent provision. The provisions of
this Article shall not be deemed to limit or preclude indemnification of a
director by the corporation for any liability that has not been eliminated by
the provisions of this Article.