Exhibit 3.2
RESTATED CERTIFICATE OF THE
CERTIFICATE OF INCORPORATION
OF
MCII HOLDINGS (USA), INC.
BEFORE RECEIPT OF PAYMENT FOR STOCK
UNDER SECTION 241 AND 245 OF THE GENERAL CORPORATION LAW
The undersigned, being directors of
MCII HOLDINGS (USA), INC., a Delaware corporation (the
"Corporation"), do hereby certify as follows:
1. The name of the Corporation is MCII
Holdings (USA), Inc.
2. The Certificate of Incorporation of the
Corporation was filed with the Secretary of State on
the 19th day of April, 1996 and has not been amended
since such date.
3. The Corporation has not received any
payment for any of its stock.
4. The amendment set forth below to the
Corporation's Certificate of Incorporation has been
duly adopted by its directors in accordance with the
provisions of Section 241 of the General Corporation
Law.
5. The Certificate of Incorporation of the
Corporation is hereby amended and restated in its
entirety to provide for independent directors, an
amended corporate purpose, certain corporate
restrictions and subordination of certain
indemnification rights of officers and directors as
follows:
RESTATED
CERTIFICATE OF INCORPORATION
OF
MCII HOLDINGS (USA), INC.
A Corporation Organized Under
the General Corporation Law
of the State of Delaware
ARTICLE I
Name
The name of the corporation is MCII Holdings
(USA), Inc.
ARTICLE II
Registered Office and Registered Agent
The address of the registered office of the
Corporation in the State of Delaware is 1209 Orange
Street, City of Wilmington, County of New Castle. The
name of the Corporation's registered agent at such
address is The Corporation Trust Company.
ARTICLE III
Corporate Purposes
(a) The purpose of the Corporation is limited
to the following activities:
(i) to acquire from Consorcio G Grupo Dina,
S.A. de C.V. ("Grupo Dina"), and to own and hold
100% of the issued and outstanding shares of the
capital stock of Motor Coach Industries
International, Inc., a Delaware corporation ("MCII"
and the "MCII Shares"), and to acquire from Grupo
Dina and to own and hold 100% of the issued and
outstanding shares of the capital stock of Dina
Autobuses, S.A. de C.V. ("Autobuses"), a Mexican
company;
(ii) consistent with the Indenture (as defined
below), to convey, sell, assign, transfer or
otherwise dispose of, in whole or in part, the MCII
Shares and the issued and outstanding shares of the
capital stock of Autobuses;
(iii) to conduct an exchange offer as
contemplated by the Corporation and Grupo Dina (the
"Exchange Offer") pursuant to which Grupo Dina and
the Corporation will offer Senior Secured Discount
Notes due November 15, 2002 (the "Notes"), as joint
obligations of Grupo Dina and the Corporation,
pursuant to an indenture (the "Indenture") among
Grupo Dina, the Corporation and IBJ Schroder Bank &
Trust Company, a New York corporation, as trustee,
in exchange for 10.5% Guaranteed Notes due November
18, 1997 (the "Old Notes") issued by Grupo Dina, and
to engage in such other activities as are permitted
under the Indenture and engage in any other
transactions permitted under the Indenture;
(iv) to conduct a registered exchange offer as
contemplated by Grupo Dina and the Corporation (the
"Registered Exchange Offer") pursuant to which Grupo
Dina and the Corporation will offer registered
securities with terms identical in all material
respects to the Notes (the "New Notes") in exchange
for the Notes, pursuant to the Indenture, and engage
in any other transactions permitted under the
Indenture;
(v) to pledge the MCII Shares to be acquired
from Grupo Dina by the Corporation as security for
the Notes, the New Notes and performance of the
Corporation's obligations under the Indenture;
(vi) to acquire, own, hold, sell, exchange,
assign, transfer or otherwise deal with (A) the Old
Notes pursuant to the Exchange Offer and (B) the
Notes pursuant to the Registered Exchange Offer;
(vii) to negotiate, authorize, execute,
deliver, assume the obligations under, perform and
file as required by any governmental entities, any
agreement or instrument or document relating to the
activities set forth in clauses (i) through (v)
above, including but not limited to any indenture,
note, guarantee, exchange agreement, registration
agreement or registration statement; and
(viii) to engage in any lawful act or activity
and to exercise any powers permitted to corporations
organized under the laws of the State of Delaware
that are related or incidental to the foregoing and
necessary, convenient or advisable to accomplish the
foregoing.
ARTICLE IV
Capital Stock
The total number of shares of common stock that
the Corporation shall have authority to issue is 1,000
and the par value of each of such shares is $0.01.
ARTICLE V
Independent Directors
(a) All corporate powers shall be exercised by
the Board of Directors, except as provided by statute or
by this Certificate of Incorporation.
(b) The Corporation shall have at all times,
except as noted hereinafter, at least one independent
Director (the "Independent Director") who (i) shall not
be nor at any time have been (A) a direct, indirect or
beneficial stockholder, director, officer, employee,
associate, customer or supplier of Grupo Dina or MCII or
any of their subsidiaries or affiliates (collectively the
"Parent Group") or (B) a person related to any direct,
indirect or beneficial stockholder, director, officer or
employee of any member of the Parent Group and (ii) shall
not at any time serve as a trustee in bankruptcy for any
member of the Parent Group. Each Independent Director
shall be paid a salary of at least $10,000 per year. In
the event of the death, incapacity, resignation or
removal of the Independent Director, the Board of
Directors shall as promptly as practicable appoint a new
Independent Director for the Independent Director whose
death, incapacity, resignation or removal caused the
related vacancy on the Board of Directors; provided,
however, that the Board of Directors shall not vote on or
consent to any matter which pursuant to this Certificate
of Incorporation requires the unanimous affirmative vote
of all of the members of the Board of Directors of the
Corporation unless and until at least one Independent
Director has been duly appointed to serve on the Board;
provided, that in determining an individual's
qualification to serve as an Independent Director under
clause (i), the Corporation may rely without further
investigation upon the individual's representations as to
such matters.
(c) The Board of Directors shall consist of no
more than 5 members.
ARTICLE VI
Limitations on Certain Actions by the Corporation
Notwithstanding any other provision of this
Certificate of Incorporation and any provision of law
that otherwise so empowers the Corporation, the
Corporation shall not do any of the following:
(a) engage in any business or activity other
than in accordance with Article III hereof;
(b) without the unanimous affirmative vote of
all of the members of the Board of Directors of the
Corporation, incur any indebtedness, or assume or
guaranty any indebtedness of any other entity, other than
in connection with the activities described in
Article III hereof and as otherwise permitted under the
Indenture;
(c) without the unanimous affirmative vote of
all of the members of the Board of Directors of the
Corporation, merge or consolidate with or into any other
corporation, company or entity, including any member of
the Parent Group, or (except as contemplated by Article
III hereof) sell, lease or otherwise transfer all or
substantially all of its assets to, or acquire all or
substantially all of the assets or capital stock or other
ownership interest of, any other corporation, company or
entity. In addition, any such transaction may only be
consummated if such other company or entity expressly
assumes the Corporation's obligations and has a
Certificate of Incorporation containing provisions
identical to those in Articles III, V, VI, VII, VIII and
XI(c) hereof (collectively, the "Restricted Articles"); or
(d) without the unanimous affirmative vote of
all of the members of the Board of Directors of the
Corporation, (i) dissolve or liquidate, in whole or in
part, or institute proceedings to be adjudicated bankrupt
or insolvent, (ii) consent to the institution of
bankruptcy or insolvency proceedings against it,
(iii) file a petition seeking or consent to
reorganization or relief under any applicable federal,
state or foreign law relating to bankruptcy, (iv) consent
to the appointment of a receiver, liquidator, assignee,
trustee or sequestrator (or other similar official) of
the Corporation or a substantial part of its property,
(v) make a general assignment for the benefit of
creditors, (vi) admit in writing its inability to pay its
debts generally as they come due or (vii) take any
corporate action in furtherance of the actions set forth
in clauses (i) through (vi) of this paragraph; provided,
however, that no director will be under any duty to nor
may be required by the stockholders of the Corporation to
consent to the institution of bankruptcy or insolvency
proceedings against the Corporation so long as it is
solvent and does not reasonably foresee becoming
insolvent, which determination shall be made after giving
effect to the subrogation rights of the Corporation in
respect of the Notes and the New Notes; provided further
that each Independent Director's fiduciary duty with
regard to the decisions in clauses (i) through (vi) of
this paragraph shall be to the Corporation (including its
creditors) rather than to its shareholders. The
requirements of this paragraph shall not be waived or
amended without the consent of the Independent Director
in office at the time of such waiver or amendment.
ARTICLE VII
Internal Affairs
The Corporation shall insure at all times that
it maintains corporate records and books of account which
are separate from those of any other corporation, company
or entity, including MCII, Grupo Dina and other members
of the Parent Group.
ARTICLE VIII
Amendments
The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this
Certificate of Incorporation in any manner now or
hereafter provided herein or by statute; and, except as
provided with respect to the indemnification or liability
of directors, all rights, preferences and privileges
conferred by this Certificate of Incorporation upon
stockholders, directors or any other person are granted
subject to such right; provided, however, that the
Corporation shall not adopt, amend, alter, change or
repeal any provision of the Restricted Articles without
the unanimous affirmative vote of the members of the
Board of Directors and provided further that the
Corporation shall not adopt, amend or change any Article
so as to be inconsistent with the Restricted Articles
without the unanimous affirmative vote of the members of
the Board of Directors.
ARTICLE IX
Existence
The Corporation is to have perpetual existence.
ARTICLE X
Corporate Procedures
Meetings of the stockholders may be held within
or without the State of Delaware, as the by-laws of the
Corporation may provide. The books of the Corporation
may be kept (subject to any provision contained in
applicable law) 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 by-laws of the
Corporation.
ARTICLE XI
Liability and Indemnification
(a) A Director of this Corporation shall not
be liable to the Corporation 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 Corporation or its
stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a
knowing violation of the law, (iii) under Section 174 of
the General Corporation Law of the State of Delaware or
(iv) for any transaction from which the Director derived
an improper personal benefit. If the General Corporation
Law of the State of Delaware shall be amended after the
date of the filing hereof to authorize corporate action
further eliminating or limiting the personal ability of
directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest
extent permitted by the General Corporation Law of the
State of Delaware as so amended.
(b) The Corporation shall indemnify, to the
full extent permitted by Section 145 of the General
Corporation Law of the State of Delaware, as amended from
time to time, all persons who may be indemnified pursuant
thereto.
(c) The right of any director or officer of
the Corporation, other than the Independent Directors, to
be indemnified by the Corporation against expenses
(including attorney's fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by
him or her in connection with any threatened, pending or
completed action, suit or proceeding, whether civil,
criminal, administrative or investigative by reason of
the fact that he or she is or was a director, officer,
employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director,
officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise (an
"Indemnifiable Claim") shall be subordinated in all
respects to the obligations of the Corporation under the
Indenture; provided, however, that the right of an
officer of the Corporation to be indemnified for an
Indemnifiable Claim shall be subordinated to the
obligations of the Corporation under the Indenture only
to the extent that such Indemnifiable Claim arises from
such officer's consent to or participation in the
dissolution or liquidation, in whole or in part, of the
Corporation, consent to or participation in the
institution of bankruptcy or insolvency proceedings
against the Corporation, filing of a petition seeking or
consenting to reorganization or relief of the Corporation
under any applicable federal, state or foreign law
relating to bankruptcy, consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Corporation or a
substantial part of its property, making of a general
assignment for the benefit of creditors of the
Corporation, admitting in writing the Corporation's
inability to pay its debts generally as they become due
or taking other corporate action in furtherance of the
foregoing.
(d) Any repeal or modification of paragraph
(a) or (b) of this Article XI 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 with respect to
acts or omissions of such director occurring prior to
such repeal or modification.
ARTICLE XII
Powers of the Board of Directors
In furtherance and not in limitation of the
powers conferred by statute, the Board of Directors of
the Corporation shall have the power to make, alter or
repeal the by-laws of the Corporation except as may
otherwise be provided herein or in the by-laws. Election
of the Directors need not be by written ballot unless the
by-laws of the Corporation so provide.
IN WITNESS WHEREOF, the undersigned has
executed this Certificate this 30th day of May, 1996.
/s/ Rafael Gomez Flores
________________________________
Name: Rafael Gomez Flores
Title: Director
/s/ Jose Luis Olvera Caballero
__________________________________
Name: Jose Luis Olvera Caballero
Title: Director
/s/ Guillermo Kareh Aarun
___________________________________
Name: Guillermo Kareh Aarun
Title: Director
/s/ Gamaliel Garcia Cortes
____________________________________
Name: Gamaliel Garcia Cortes
Title: Director