EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
DURA AUTOMOTIVE SYSTEMS, INC.
ARTICLE ONE
The name of the Corporation is DURA AUTOMOTIVE SYSTEMS, INC.
ARTICLE TWO
The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
Delaware, County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company. The registered office and/or
registered agent of the Corporation may be changed from time to time by
action of the Board of Directors.
ARTICLE THREE
The nature of the business or purposes to be conducted or promoted
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 (the
"Delaware General Corporation Law") either alone or with others through
wholly or partially owned subsidiaries, as a partner (limited or general) in
any partnership, as a joint venturer in any joint venture, or otherwise.
ARTICLE FOUR
SECTION 1. The aggregate number of shares of stock which the
Corporation has authority to issue is 75,000,000, consisting of 5,000,000
shares of Series Preferred Stock, par value $1.00 per share (the "Series
Preferred Stock"), 60,000,000 shares of Class A Common Stock, par value $.01
per share (the "Class A Common Stock"), and 10,000,000 shares of Class B
Common Stock, par value $.01 per share (the "Class B Common Stock"). The
Class A Common Stock and the Class B Common Stock are collectively referred
to herein as the "Common Securities." All of such shares shall be issued as
fully paid and non-assessable shares, and the holder thereof shall not be
liable for any further payments in respect thereof.
SECTION 2. The preferences, limitations, designations and relative
rights of the shares of each class and the qualifications, limitations or
restrictions thereof shall be as follows:
A. SERIES PREFERRED STOCK.
1. AUTHORIZATION; SERIES; PROVISIONS.
(a) The Board of Directors of the Corporation is authorized,
subject to limitations prescribed by law and the provisions of this Article
Four, to provide for the issuance of shares of the Series Preferred Stock in
series, and by filing a certificate pursuant to the General Corporation Law
of the State of Delaware, to establish from time to time the number of shares
to be included in each such series and to fix the designations, powers,
preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions thereof.
(b) The Series Preferred Stock may be issued from time to time in one
or more series, the shares of each series to have such powers, designations,
preferences and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as are stated and expressed
herein or in a resolution or resolutions providing for the issuance of such
series, adopted by the Board of Directors as hereinafter provided.
(c) Authority is hereby expressly granted to the Board of
Directors, subject to the provisions of this Section 2, to authorize the
issuance of one or more series of Series Preferred Stock, and with respect to
each such series to fix by resolution or resolutions providing for the
issuance of such series:
(i) the maximum number of shares to constitute such series
and the distinctive designation thereof;
(ii) whether the shares of such series shall have voting
rights, in addition to any voting rights provided by law, and, if so, the terms
of such voting rights;
(iii) the dividend rate, if any, on the shares of such series,
the conditions and dates upon which such dividends shall be payable, the
preference or relation which such dividends shall bear to the dividends payable
on any other class or classes or on any other series of capital stock, and
whether such dividends shall be cumulative or noncumulative;
(iv) whether the shares of such series shall be subject to
redemption by the Corporation and, if made subject to redemption, the times,
prices and other terms and conditions of such redemption;
(v) the rights of the holders of shares of such series upon
the liquidation, dissolution or winding up of the Corporation;
(vi) whether or not the shares of such series shall be subject
to the operation of a retirement or sinking fund and, if so, the extent to and
manner in which any such retirement or sinking fund shall be applied to the
purchase or redemption of the shares of such series for retirement or to other
corporate purposes and the terms and provisions relative to the operation
thereof;
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(vii) whether or not the shares of such series shall be
convertible into, or exchangeable for, shares of stock of any other class or
classes, or of any other series of the same class, and if so convertible or
exchangeable, the price or prices or the rate or rates of conversion or exchange
and the method, if any, of adjusting the same;
(viii) the limitations and restrictions, if any, to be effective
while any shares of such series are outstanding upon the payment of dividends or
making of other distributions on, and upon the purchase, redemption or other
acquisition by the Corporation of, Common Securities or any other class or
classes of stock of the Corporation ranking junior to the shares of such series
either as to dividends or upon liquidation;
(ix) the conditions or restrictions, if any, upon the creation
of indebtedness of the Corporation or upon the issue of any additional stock
(including additional shares of such series or of any other series or of any
other class) ranking on a parity with or prior to the shares of such series as
to dividends or distribution of assets on liquidation, dissolution or winding
up; and
(x) any other preference and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof as shall not be inconsistent with this Section 2.
2. SERIES IDENTICAL; RANK. All shares of any one series of Series
Preferred Stock shall be identical with each other in all respects, except that
shares of any one series issued at different times may differ as to the dates
from which dividends, if any, thereon shall be cumulative; and all series shall
rank equally and be identical in all respects, except as permitted by the
foregoing provisions of paragraph 1(c) hereof; and all shares of Series
Preferred Stock shall rank senior to the Common Securities both as to dividends
and upon liquidation.
3. LIQUIDATION. In the event of any liquidation, dissolution or
winding up of the Corporation, before any payment or distribution of the assets
of the Corporation (whether capital or surplus) shall be made to or set apart
for the holders of any class or classes of stock of the Corporation ranking
junior to the Series Preferred Stock upon liquidation, the holders of the shares
of the Series Preferred Stock shall be entitled to receive payment at the rate
fixed herein or in the resolution or resolutions adopted by the Board of
Directors providing for the issue of such series, plus (if dividends on shares
of such series of Series Preferred Stock shall be cumulative) an amount equal to
all dividends (whether or not earned or declared) accumulated to the date of
final distribution to such holders; but they shall be entitled to no further
payment. If, upon any liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation or proceeds thereof, distributable
among the holders of the shares of the Series Preferred Stock shall be
insufficient to pay in full the preferential amount aforesaid, then such assets,
or the proceeds thereof, shall be distributed among such holders ratably in
accordance with the respective amounts which would be payable on such shares if
all amounts payable thereon were paid in full.
4. VOTING RIGHTS. Except as shall be otherwise stated and expressed
herein or in the resolution or resolutions of the Board of Directors providing
for the issue of any series and except as otherwise required by the laws of the
State of Delaware, the holders of shares of Series
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Preferred Stock shall have, with respect to such shares, no right or power to
vote on any question or in any proceeding or to be represented at, or to
receive notice of, any meeting of stockholders.
5. REACQUIRED SHARES. Shares of any Series Preferred Stock which
shall be issued and thereafter acquired by the Corporation through purchase,
redemption, exchange, conversion or otherwise shall return to the status of
authorized but unissued Series Preferred Stock unless otherwise provided in the
resolution or resolutions of the Board of Directors.
6. INCREASE /DECREASE IN AUTHORIZED SHARES OF A SERIES. Unless
otherwise provided in the resolution or resolutions of the Board of Directors
providing for the issuance thereof, the number of authorized shares of stock of
any such series may be increased or decreased (but not below the number of
shares thereof outstanding) by resolution or resolutions of the Board of
Directors. In case the number of shares of any such series of Series Preferred
Stock shall be decreased, the shares representing such decrease shall, unless
otherwise provided in the resolution or resolutions of the Board of Directors
providing for the issuance thereof, resume the status of authorized but unissued
Series Preferred Stock, undesignated as to series.
B. COMMON SECURITIES.
Except as otherwise provided in this Section 2B of Article or as
otherwise required by applicable law, all shares of Class A Common Stock and
Class B Common Stock shall be identical in all respects and shall entitle the
holders thereof to the same rights and privileges, subject to the same
qualifications, limitations and restrictions.
1. VOTING RIGHTS. Except as otherwise provided in this Section 2B
of Article or as otherwise required by applicable law, holders of Class A Common
Stock shall be entitled to one (1) vote per share on all matters to be voted on
by the stockholders of the Corporation, and the holders of Class B Common Stock
shall be entitled to ten (10) votes per share on all such matters; PROVIDED,
HOWEVER, that holders of Class B Common Stock shall have no right to vote on any
matters to be voted on by the stockholders of the Corporation at any time after
the time at which the MC Stockholders, as defined in the Stockholders Agreement,
dated as of August 31, 1994, and amended on May 17, 1995, and their affiliates
cease to beneficially own, in the aggregate, at least ten percent (10%) of the
total outstanding shares of Common Securities. The holders of Class A Common
Stock and Class B Common Stock shall vote together as a single class on all
matters to be voted on by the stockholders of the Corporation; provided, that
for any matter to be voted on by the stockholders which independently affects
only one class of Common Securities, without such an effect on the other class,
the affected class of Common Securities shall vote as a separate class on such
matters.
2. DIVIDENDS. Subject to the rights of each series of the Series
Preferred Stock, dividends may be declared and paid or set apart for payment
upon the Common Securities out of any assets or funds of the Corporation legally
available for the payment of dividends, and the holders of Class A Common Stock
and Class B Common Stock shall be entitled to participate in such dividends
ratably on a per share basis; provided, that if dividends are declared which are
payable in shares of Class A Common Stock or Class B Common Stock, dividends
shall be declared which are payable at the same rate on both classes of Common
Securities and the dividends payable in shares of Class
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A Common Stock shall be payable to holders of that class of stock and the
dividends payable in shares of Class B Common Stock shall be payable to
holders of that class of stock.
3. LIQUIDATION. Upon any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, and after the holders of the
Series Preferred Stock of each series shall have been paid in full the amounts
to which they respectively shall be entitled in accordance with Section 2A of
Article Four, the terms of any outstanding Series Preferred Stock and applicable
law, or an amount sufficient to pay the aggregate amount to which the holders of
the Series Preferred Stock of each series shall be entitled shall have been
deposited with a bank or trust company having capital, surplus and undivided
profits of at least Twenty-Five Million Dollars ($25,000,000) as a trust fund
for the benefit of the holders of such Series Preferred Stock, the remaining net
assets, of the Corporation shall be distributed pro rata to the holders of the
Common Securities, to the exclusion of the holders of such Series Preferred
Stock.
4. CONVERSION.
4A. CONVERSION OF CLASS B COMMON STOCK.
(a) Upon the occurrence of a Conversion Event as set forth in
paragraph (b) of this subsection 4A of Article Four, Section 2B, each share of
Class B Common Stock transferred in connection with such Conversion Event shall
automatically convert into the same number of shares of Class A Common Stock.
Upon the occurrence of any Conversion Event, the holder or holders of Class B
Common Stock affected thereby shall promptly comply with the procedures for
conversion of Class B Common Stock to Class A Common Stock as set forth in
subsection 4B of this Article Four, Section 2B. Each holder of Class B Common
Stock shall also be entitled at any time to convert into the same number of
shares of Class A Common Stock any or all of the shares of such holder's Class B
Common Stock pursuant to the provisions of paragraph (c) of subsection 4A of
this Article Four, Section 2B.
(b) For purposes of this subsection 4A of Article Four, Section 2B, a
"Conversion Event" shall mean any transfer of Class B Common Stock that, at the
time of such transfer, entitles the holder thereof to ten (10) votes per share,
to a person who, immediately prior to such transfer, is not an affiliate of the
transferor.
For purpose of this subsection 4A of Article Four, Section 2B,
"Person" shall include any natural person and any corporation, partnership,
joint venture, trust, unincorporated organization and any other entity or
organization, and "affiliate" shall have the meaning as set forth under Rule
12b-2 of the Regulations promulgated under the Securities Exchange Act of 1934.
(c) Each holder of Class B Common Stock is entitled at any time to
convert any or all of the shares of such holder's Class B Common Stock into the
same number of shares of Class A Common Stock by electing to do so in accordance
with the procedures set forth in subsection 4B of this Article Four, Section 2B.
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4B. CONVERSION PROCEDURE.
(a) Unless otherwise provided in connection with a Conversion Event,
each conversion of shares of Class B Common Stock into shares of Class A Common
Stock shall be effected by the surrender of the certificate or certificates
representing the shares to be converted at the principal office of the
Corporation at any time during normal business hours. In the case of an
elective conversion pursuant to subsection 4A(c) of this Article Four, the
surrender of the certificate or certificates representing such Class B Common
Stock shall be accompanied by a written notice by the holder of such shares
stating that the holder desires to convert the shares, or a stated number of the
shares, of such Class B Common Stock represented by such certificate or
certificates into shares of Class A Common Stock (and such statement will
obligate the Corporation to issue such shares of Class A Common Stock).
Each conversion pursuant to a Conversion Event under subsection 4A(b)
shall be deemed to have been effected as of the point in time at which such
Conversion Event was consummated. Each conversion pursuant to subsection 4A(c)
shall be deemed to have been effected as of the close of business on the date on
which such certificate or certificates have been surrendered and the
corresponding notice has been received. Immediately upon the conversion of
Class B Common Stock to Class A Common Stock, the rights of the holder of the
converted Class B Common Stock as such holder shall cease and the person or
persons in whose name or names the certificate or certificates for shares of
Class A Common Stock are to be issued upon such conversion shall be deemed to
have become the holder or holders of record of the shares of Class A Common
Stock represented thereby.
(b) For each conversion effected pursuant to a Conversion Event under
subsection 4A (b) promptly after the surrender of certificates, the Corporation
shall issue and deliver the certificate or certificates for the Class A Common
Stock issuable upon such conversion. For each conversion effected pursuant to
an elective conversion under subsection 4A(c), promptly after the surrender of
certificates and the receipt of written notice, the Corporation shall issue and
deliver in accordance with the surrendering holder's instructions (i) the
certificate or certificates for the Class A Common Stock issuable upon such
conversion and (ii) a certificate representing any Class B Common Stock which
was represented by the certificate or certificates delivered to the Corporation
in connection with such conversion but which was not converted.
(c) The issuance of certificates for Class A Common Stock upon
conversion of Class B Common Stock will be made without charge to the holders of
such shares for any issuance tax in respect thereof or other cost incurred by
the Corporation in connection with such conversion and the related issuance of
Class A Common Stock.
(d) The Corporation shall at all times reserve and keep available out
of its authorized but unissued shares of Class A Common Stock, solely for the
purpose of issuance upon the conversion of the Class B Common Stock, such number
of shares of Class A Common Stock issuable upon the conversion of all
outstanding Class B Common Stock. All shares of Class A Common Stock which are
so issuable shall, when issued, be duly and validly issued, fully paid and
nonassessable and free from all taxes, liens and charges. The Corporation shall
take all such actions as may be necessary to assure that all such shares of
Class A Common Stock may be so issued
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without violation of any applicable law or governmental regulation or any
requirements of any domestic securities exchange or automatic quotation
system upon which shares of Class A Common Stock may be listed or quoted
(except for official notice of issuance which will be immediately transmitted
by the Corporation upon issuance).
(e) The Corporation shall not close its books against the transfer of
shares of Common Securities in any manner which would interfere with the timely
conversion of any shares of Class B Common Stock.
4C. STOCK SPLITS. If the Corporation in any manner subdivides or
combines the outstanding shares of one class of Common Securities, the
outstanding shares of the other class of Common Securities shall be
proportionately subdivided or combined in a similar manner.
C. GENERAL PROVISIONS
1. NONLIQUIDATING EVENTS. A consolidation or merger of the
Corporation with or into another corporation or corporations or a sale, whether
for cash, shares of stock, securities or properties, or any combination thereof,
of all or substantially all of the assets of the Corporation shall not be deemed
or construed to be a liquidation, dissolution or winding up of the Corporation
within the meaning of this Article Four.
2. NO PREEMPTIVE RIGHTS. No holder of Series Preferred Stock or
Common Securities of the Corporation shall be entitled, as such, as a matter of
right, to subscribe for or purchase any part of any new or additional issue of
stock of any class or series whatsoever or of securities convertible into stock
of any class whatsoever, whether now or hereafter authorized and whether issued
for cash or other consideration, or by way of dividend.
ARTICLE FIVE
The Corporation is to have perpetual existence.
ARTICLE SIX
The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors, and the directors need not be
elected by ballot unless required by the By-laws of the Corporation. In
furtherance and not in limitation of the powers conferred by statute, the
Board of Directors of the Corporation is expressly authorized to make, alter,
amend, change, add to or repeal the By-laws of the Corporation.
ARTICLE SEVEN
Meetings of 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 outside the
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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. The
Board of Directors shall from time to time decide whether and to what extent
and at what times and under what conditions and requirements the accounts and
books of the Corporation, or any of them, except the stock book, shall be
open to the inspection of the stockholders, and no stockholder shall have any
right to inspect any books or documents of the Corporation except as
conferred by the laws of the State of Delaware or as authorized by the Board
of Directors.
ARTICLE EIGHT
Subject to the rights of the holders of any series of Preferred Stock,
from and after the date on which the Class A Common Stock of the Corporation is
registered pursuant to the Securities Exchange Act of 1934, as amended, (A) any
action required or permitted to be taken by the stockholders of the Corporation
must be effected at an annual or special meeting of stockholders of the
Corporation and may not be effected in lieu thereof by any consent in writing by
such stockholders, and (B) special meetings of stockholders of the Corporation
may be called only by the Chairman of the Board, the President or the Board of
Directors pursuant to a resolution adopted by the affirmative vote of at least a
majority of the members then in office.
ARTICLE NINE
SECTION 1. The number of directors which shall constitute the
whole board shall be such as from time to time shall be fixed by the Board of
Directors in the manner as provided in the by-laws, except that such number
shall not be less than one (1) nor more than fifteen (15). The term of office
of each director shall be one year, and shall expire at the following year's
annual election of directors by the stockholders of the Corporation; subject,
however, to prior death, resignation, retirement, disqualification or removal
from office for cause. At each succeeding annual election of directors by the
stockholders of the Corporation, beginning in 1997, the directors chosen to
succeed those whose terms have expired shall be identified and elected for a
term expiring one year from such election date.
Vacancies and newly created directorships resulting from any
increase in the number of directors may be filled only by the affirmative
vote of the majority of the Board of Directors then in office, although less
than quorum, or by a sole remaining director. Any director elected to fill a
vacancy resulting from an increase in the number of directors shall have an
initial term the same as those of the other directors then serving on the
Board of Directors. 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.
Notwithstanding anything to the contrary, 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, filing
of vacancies and other features of such directorships shall be governed by the
terms of this Certificate of Incorporation applicable thereto.
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Subject to the rights of any class or series of stock having a
preference over the Common Securities as to dividends or upon liquidation to
elect directors under specified circumstances, no director may be removed from
office without cause.
SECTION 2. Except to the extent prohibited by law, the Board of
Directors shall have the right (which, to the extent exercised, shall be
exclusive) to establish the rights, powers, duties, rules and procedures that
from time to time shall govern the Board of Directors and each of its members,
including without limitation the vote required for any action by the Board of
Directors, and that from time to time shall affect the directors' power to
manage the business and affairs of the Corporation; and no by-law shall be
adopted by stockholders which shall impair or impede the implementation of the
foregoing.
ARTICLE TEN
ARTICLE EIGHT, ARTICLE NINE and this ARTICLE TEN of this Restated
Certificate of Incorporation and Sections 2 and 11 of Article II, Sections 2, 3,
4 and 5 of Article III and Article V of the By-laws of the Corporation shall not
be altered, amended or repealed by, and no provision inconsistent therewith
shall be adopted by, the stockholders without the affirmative vote of the
holders of at least 80% of the Common Securities, voting together as a single
class.
ARTICLE ELEVEN
SECTION 1. To the fullest extent permitted by the Delaware General
Corporation Law as it now exists or may hereafter be amended (but, in the case
of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than permitted prior
thereto), no director of the Corporation shall be liable to the Corporation or
its stockholders for monetary damages arising from a breach of fiduciary duty
owed to the Corporation or its stockholders.
SECTION 2. Any repeal or modification of the foregoing paragraph 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.
ARTICLE TWELVE
The Corporation expressly elects to be governed by Section 203 of the
Delaware General Corporation Law.
ARTICLE THIRTEEN
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
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herein and by the laws of the State of Delaware, and all rights conferred
upon stockholders herein are granted subject to this reservation.
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