Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ALLIS-CHALMERS CORPORATION
Allis-Chalmers Corporation, a corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows:
FIRST: The name of the corporation is Allis-Chalmers Corporation (the
"Corporation"). The Corporation was originally incorporated under the name
Allis-Chalmers Manufacturing Company. The original Certificate of Incorporation
of the Corporation was filed with the Secretary of State of the State of
Delaware (the "Secretary of State") on March 15, 1913, and was amended by the
Restated Certificate of Incorporation filed with the Secretary of State on
December 2, 1988, the Certificate of Amendment of Restated Certificate of
Incorporation filed with the Secretary of State on November 17, 1989, and
Certificate of Amendment of Amended and Restated Certificate of Incorporation
filed with the Secretary of State on July 8, 1992.
SECOND: Pursuant to Sections 242 and 245 of the General Corporation Law
of the State of Delaware, this Amended and Restated Certificate of Incorporation
restates and amends the provisions of the Corporation's Certificate of
Incorporation, as amended, in all respects.
THIRD: The text of the Amended and Restated Certificate of
Incorporation is hereby restated and amended to read in its entirety as follows:
I. The name of the Corporation is ALLIS-CHALMERS CORPORATION (hereinafter called
the "Corporation").
II. The registered office of the Corporation in the State of Delaware is located
at 1209 Orange Street in the City of Wilmington in the County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
III. The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the Delaware General Corporation
Law.
IV. The total number of shares of all classes of stock which the Corporation
shall have authority to issue is one hundred and ten million (110,000,000)
shares, of which one hundred million (100,000,000) shares shall be common stock,
par value $0.15 per share (the "Common Stock") and ten million (10,000,000)
shares shall be preferred stock, par value $0.01 per share (the "Preferred
Stock").
A. PREFERRED STOCK. The designations and the powers, preferences and
rights, and the qualifications, limitations or restrictions thereof, of each
class of Preferred Stock are as follows:
The Board of Directors of the Corporation (the "Board of Directors") is
expressly authorized at any time, and from time to time, to provide for the
issuance of shares of Preferred Stock in one or more series, with such voting
powers, full or limited, or without voting powers and with such designations,
preferences and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions providing for the issue thereof
adopted by the Board of Directors, subject to the limitations prescribed by law
and in accordance with the provisions hereof, including (but without limiting
the generality thereof) the following:
(1) The designation of the series and the number of shares to
constitute the series;
(2) The dividend rate, if any, of the series, the conditions
and dates upon which such dividends shall be payable, the relation which such
dividends shall bear to the dividends payable on any other class or classes or
stock, and whether such dividends shall be cumulative or noncumulative;
(3) Whether the shares of the series shall be subject to
redemption by the Corporation and if made subject to such redemption, the times,
prices and other terms and conditions of such redemption;
(4) The terms and amount of any sinking fund provided for the
purchase or redemption of the shares of the series;
(5) Whether or not the shares of the series shall be
convertible into or exchangeable for shares of any other class or classes or of
any other series of any class or classes of stock of the Corporation, and if
provision be made for conversion or exchange, the times, prices, rates,
adjustments and other terms and conditions of such conversion or exchange;
(6) The extent, if any, to which the holders of the shares of
the series shall be entitled to vote with respect to the election of directors
or otherwise;
(7) The restrictions, if any, on the issue or reissue of any
additional Preferred Stock; and
(8) The rights of the holders of the shares of the series upon
the dissolution, liquidation, or winding up of the Corporation.
Subject to the prior or equal rights, if any, of the Preferred Stock of
any and all series stated and expressed by the Board of Directors in the
resolution or resolutions providing for the issuance of such Preferred Stock,
the holders of Common Stock shall be entitled (i) to receive dividends when and
as declared by the Board of Directors out of any funds legally available
therefor, (ii) in the event of any dissolution, liquidation or winding up of the
Corporation, to receive the remaining assets of the Corporation, ratably
according to the number of shares of common stock held, and (iii) to one vote
for each share of common stock held on all matters submitted to a vote of
stockholders. No holder of Common Stock shall have any preemptive right to
purchase or subscribe for any part of any issue of stock or of securities of the
corporation convertible into stock of any class whatsoever, whether now or
hereafter authorized.
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V. The Corporation shall have perpetual existence.
VI. The private property of the stockholders shall not be subject to the payment
of the debts of the Corporation to any extent whatever.
VII. The business and affairs of the Corporation shall be managed and controlled
by the Board of Directors, which shall contain of not more than fifteen (15) nor
fewer than three (3) directors, except as provided by law, the By-Laws of the
Corporation or this Amended and Restated Certificate of Incorporation.
VIII. The stockholders may adopt, amend or repeal any By-Laws of the Corporation
at any annual meeting, or at any special meeting, provided notice of any
proposed adoption, amendment or repeal of a By-Law is included in the notice of
such meeting. The Board may also adopt, amend or repeal any By-Laws of the
Corporation except any by-laws adopted or amended by the stockholders after the
date hereof.
IX. Indemnification.
A. Each person who was or is made a party or is threatened to be made a
party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he, or a person for whom he is the legal representative,
is or was a director, officer or employee of the Corporation or is or was
serving at the request of the Corporation as a director, officer or employee of
another corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, shall be indemnified
by the Corporation to the fullest extent permitted by the Delaware Corporation
Law as the same exists or may hereafter be amended, against all expense,
liability and loss (including settlement) reasonably incurred or suffered by
such person in connection with such service; provided, however, that the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding initiated by him only if such proceeding was
authorized by the board of directors, either generally or in the specific
instance. The right to indemnification shall include the advancement of expenses
incurred in defending any such proceeding in advance of its final disposition in
accordance with procedures established from time to time by the board of
directors; provided, however, that if the Delaware General Corporation Law so
requires, the director, officer or employee shall deliver to the Corporation an
undertaking to repay all amounts so advanced if it shall ultimately be
determined that he is not entitled to be indemnified under this Article IX or
otherwise.
B. The rights of indemnification provided in this Article IX shall be
in addition to any rights to which any person may otherwise be entitled by law
or under any By-Law, agreement, vote of stockholders or disinterested directors,
or otherwise. Such rights shall continue as to any person who has ceased to be a
director, officer or employee and shall inure to the benefit of his heirs,
executors and administrators, and shall be applied to proceedings commenced
after the adoption hereof, whether arising from acts or omissions occurring
before or after the adoption hereof.
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X. No Director shall be personally liable to the Corporation or any stockholders
for monetary damages for breach of fiduciary duty as a Director, except for any
matter in respect of which such Director (a) shall be liable under Section 174
of the Delaware General Corporation Law or any amendment thereto or successor
provision thereto; or (b) shall be liable by reason that in addition to any and
all other requirements for such liability, he (i) shall have breached his duty
of loyalty to the Corporation or its stockholders, (ii) shall not have acted in
good faith or, in failing to act, shall not have acted in good faith, (iii)
shall have acted in a manner involving intentional misconduct or a knowing
violation of law, or (iv) shall have derived an improper personal benefit.
Neither the amendment nor repeal of this Article X, nor the adoption of any
provision of the Certificate of Incorporation inconsistent with this Article X
shall eliminate or reduce the effect of this Article X in respect of any matter
occurring, or any cause of action, suit or claim that but for this Article X
would accrue or arise, prior to such amendment, repeal or adoption of an
inconsistent provision.
XI. The Corporation shall have power to purchase and maintain insurance on
behalf of any person who 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 against any liability asserted against him
and incurred by him in any such capacity or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of the Delaware General Corporation Law.
IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation has been signed and alleged to under the penalties of perjury this
_______, 2001.
ALLIS-CHALMERS CORPORATION
By: /S/ Munawar H. Hidayatallah
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Munawar H. Hidayatallah, President
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