AMENDED AND RESTATED CERTIFICATE OF INCORPORATIONOF
CMI CORPORATION
TO THE SECRETARY OF STATE OF THE STATE OF OKLAHOMA: The undersigned corporation (the "Corporation"), an Oklahoma corporation, for the
purpose of adopting an Amended and Restated Certificate of Incorporation pursuant to Section
1080 of the Oklahoma General Corporation Act (the "Act"), hereby certifies:
1. The name of this Corporation is "CMI Corporation."
2. The name under which the Corporation was originally incorporated was Wylie Bros., Inc.
3. The original Articles of Incorporation of the Corporation were filed with the Oklahoma
Secretary of State on March 8, 1926.
4. This Amended and Restated Certificate of Incorporation was duly adopted in accordance
with Section 1080 of the Act, after being proposed by the Directors and adopted by the
shareholders in Section 1077 of the Act, and restates, integrates and further amends the
Certificate of Incorporation. Furthermore, the shareholders of the Corporation have duly adopted
the Amended and Restated Certificate of Incorporation for the purpose of providing that all
provisions of the Act will apply to the Corporation and its shareholders to the fullest extent, and
that from and after the filing of this Certificate with the Oklahoma Secretary of State the
provisions of the Oklahoma Business Corporation Act and any and all rights, privileges or
immunities thereunder shall be of no further force or effect with regard to the Corporation and its
shareholders.
5. The Certificate of Incorporation of CMI Corporation is hereby restated, as further
amended by this Certificate, to read in full, as follows:
CERTIFICATE OF INCORPORATION OF CMI CORPORATION
FIRST: The name of this Corporation is CMI Corporation (the "Corporation").
SECOND: The address of its registered agent in the State of Oklahoma and the name of
its agent at such address shall hereafter be 1-40 and Morgan Road, Oklahoma City, Oklahoma
73101, Attn: Thane Swisher.
THIRD: The term of this Corporation shall be perpetual.
FOURTH: The purpose for which the Corporation is organized is to engage in any lawful
act or activity for which corporations may be organized under the Oklahoma General
Corporation Act.
FIFTH: The aggregate number of shares which the Corporation shall have authority to
issue is as follows:
CLASS NUMBER OF SHARES PAR VALUE
Voting Common Stock 20,000 $0.10
Voting Class A Common 45,000,000 $0.10
Stock
Preferred Stock 4,000,000 $1.00
Effective immediately upon the filing of this Amended and Restated Certificate of
Incorporation, each outstanding share of previously existing Voting Common Stock shall be and
hereby is converted into and reclassified as 1/2000th of a share of Voting Common Stock;
provided, however, that fractional shares of Voting Common Stock will not be issued and each
holder of a fractional share of Voting Common Stock shall receive in lieu thereof that number of
shares of Voting Class A Common Stock equal to the product of 2000 multiplied by such
fraction.
Certificates representing reclassified shares are hereby cancelled and upon presentation of
the cancelled certificates to the corporation the holders thereof shall be entitled to receive
certificate(s) representing the new shares into which such cancelled shares have been converted.
SIXTH: The preferences, qualifications, limitations, restrictions, and other special or
relative attributes of the classes of shares of stock of this Corporation are as follows:
(A) Each share of Voting Common Stock and Voting Class A Common Stock
shall be entitled to one vote per share on all matters to be submitted to the shareholders of
the Corporation. The shareholders of Voting Common Stock and Voting Class A
Common Stock shall vote together as a single class.
(B) The Preferred Stock may be issued from time-to-time in one or more series,
each of said series to have such designations, preferences and relative, participating,
optional, voting or other special rights and qualifications, and limitations or restrictions
thereof as are stated and expressed in a resolution or resolutions providing for the issue 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 Article Sixth, to authorize one or more series of Preferred Stock and,
with respect to each series, to fix by resolution or resolutions providing for the issue of
such series:
(a) The number of shares to constitute such series and the distinctive
designation thereof;
(b) The dividend rate of such series, if any;
(c) Whether or not dividends on the shares of such series shall be
cumulative and, if cumulative, the date or dates from which dividends shall
accumulate;
(d) Whether or not the shares of such series shall be redeemable and, if
redeemable, the premium, if any, over and above the par value thereof and any
dividends accrued thereon which the shares of such series shall be entitled to
receive upon the redemption thereof;
(e) Whether or not the shares of such series will be subject to the creation
of retirement or sinking funds to be applied to the purchase or redemption of such
shares for retirement and, if such retirement or sinking fund or funds be
established, the annual amount thereof and the terms and provisions relative to the
operation thereof;
(f) or not the shares of such series shall be convertible into, or
exchangeable for, shares of any other class or classes or of any other series of the
same or any other class or classes of the stock of the Corporation and the
conversion price or prices or the rate or rates on which such exchange may be
made, with such adjustments, if any, as shall be stated, expressed or provided in
such resolution or resolutions;
(g) The amount of premium, if any, over and above the par value thereof
and any dividends accrued thereon, which the shares of such series shall be
entitled to receive upon the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation;
(h) The voting power, if any, of the shares of such series;
(i) The rights of the shares of such series in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation; and
(j) Such other special rights, qualifications, limitations or restrictions as
shall be stated, expressed or provided in such resolution or resolutions.
(D) Shares of Voting Common Stock and Voting Class A Common Stock shall be
identical in all respects and, subject to the prior rights, if any, of any holders of Preferred
Stock that may be outstanding from time to time, shall share equally on a per share basis
in any dividends declared and paid by the Corporation or in the proceeds of any
liquidation, dissolution or winding up of the Corporation, except that no share of Voting
Class A Common Stock shall be transferable or assignable in any respect, either of record
or beneficially, unless such transfer or assignment is permitted under the following
provisions: (a) Until the earliest of January 1, 2006, such date as the Corporation shall
no longer have any unutilized federal income tax net operating loss carryovers or
capital loss carryovers, whether or not such carryovers; are currently in existence
(the "Carryforwards") or such date after which Section 382 of the Internal
Revenue Code of 1986, as amended (the "Code"), is repealed or so substantially
modified such that, in the opinion of counsel to the Corporation, the restrictions
on transfer described herein are no longer necessary to accomplish their intended
purpose: (1) any attempted sale, transfer, assignment or other disposition
(including the granting of any option (within the meaning of section 382 of the
Code and the Income Tax Regulations as now in effect or hereafter promulgated
pursuant thereto (the "Regulations")) (any such option being referred transfer to
hereafter as an “Option”) or entering into of any agreement for the sale, transfer
or other disposition), whether voluntary or involuntary, whether of record or
beneficially and whether by operation of law or otherwise (a "Transfer"), of any
share or shares of the Voting Class A Common Stock of the Corporation or of any
Option to acquire such stock, to any person or entity or group of persons or
entities acting in concert (a "Transferee") who or which owns or owned, directly,
indirectly or by application of the constructive ownership rules set forth in
Sections 382 and 318 of the Code and the Regulations, or in any other manner
representing "ownership" under any circumstances for purposes of section 382 of
the Code and the Regulations (collectively, "Owns" or "Owned"), at any time
during the 3-year period ending on the day of the Transfer, an aggregate number
of shares of the Corporation's stock (taking into account for this purpose all
interests in the Corporation that are treated as stock for purposes of Section
382(g)(1) of the Code and no other interests in the Corporation (any interest that
is so treated being referred to hereinafter as "Stock")) having a fair market value
equal to or greater than 4.75 percent of the fair market value of the Corporation's
then outstanding Stock shall be void ab initio insofar as it purports to transfer
ownership to such Transferee of any shares of Voting Class A Common Stock or
any Option to acquire Voting Class A Common Stock and (2) any attempted
Transfer of any share or shares of the Voting Class A Common Stock of the
Corporation or of any Option to acquire Voting Class A Common Stock to any
Transferee not described in clause (1) hereof who or which would Own, as a
result of the Transfer or as a result of a subsequent Transfer of any share or shares
of the Corporation's Stock or of any Option to acquire the Corporation's Stock, an
aggregate number of shares of the Corporation's Stock, having a fair market value
equal to or greater than 4.75 percent of the aggregate fair market value of all of
the Corporation's Stock then outstanding, shall, as to the number of shares
representing such excess over 4.75 percent, be void ab initio insofar as it purports
to transfer ownership to such Transferee of any shares of Voting Class A
Common Stock or any Option to acquire Voting Class A Common Stock.(b) The restrictions contained in paragraph (a) of this Section D of this
Article Sixth have been included herein for the purpose of reducing the risk of
occurrence of an "ownership change" within the meaning of Section 382(g) of the
Code and the Regulations that would result in the disallowance or limitation of
the Corporation's utilization of the Carryforwards and to maintain the tax
advantage of the Corporation associated with the Carryforwards.
(c) Neither clause (1) nor clause (2) of paragraph (a) of this Section
D of this Article Sixth shall restrict any Transfer of Voting Class A Common
Stock of the Corporation if (1) the prior written approval of the Board of Directors
of the Corporation (based on a majority vote of the Board of Directors) shall have
been obtained with respect to such Transfer and (2) if so requested by the Board
of Directors, counsel to the Corporation shall have delivered its opinion that such
Transfer would not result in an "ownership change" within the meaning of Section
382(g) of the Code and the Regulations that would result in the elimination or
limitation of the Corporation's utilization of the Carryforwards. The Board of
Directors shall have the authority, in its sole discretion, to adopt procedures for
the orderly and effective administration and implementation of this Section D and,
in deciding whether to approve any proposed Transfer of Voting Class A
Common Stock of the Corporation, the Corporation acting through any officer
may request all relevant information, as well as an opinion of counsel in form and
substance reasonably satisfactory to the Board of Directors. No employee or agent
of the Corporation shall be permitted to record any attempted or purported
Transfer of Voting Class A Common Stock of the Corporation made in violation
of this Article Sixth and no Transferee of Voting Class A Common Stock of the
Corporation effected in violation of this Article Sixth shall be deemed to have
acquired ownership of Voting Class A Common Stock for any purpose. Such
intended Transferee shall not be entitled to any rights as a shareholder of the
Corporation with respect to such Voting Class A Common Stock including, but
not limited to, the right to vote such Voting Class A Common Stock or to receive
any distributions in respect thereof, whether as dividends or in liquidation.
(d) If the procedures adopted by the Board of Directors so require, the
Corporation's transfer agent shall not issue any certificates transferring, assigning
or disposing of or purporting to transfer, assign or otherwise dispose of legal
ownership of any shares of Voting Class A Common Stock unless the transfer
agent receives from the proposed Transferee, in addition to any other information
requested by it, a certificate signed under penalty of perjury attesting to the fact
that the Transferee does not, and will not become as a result of the proposed
Transfer, assignment or other disposition, Own an aggregate number of shares of
the Corporation's outstanding Stock having a fair market value equal to or greater
than 4.75 percent of the aggregate fair market value of all of the Corporation's
outstanding Stock. If at any time the Corporation's transfer agent receives a
request to make a change in record ownership of shares of Voting Class A
Common Stock of the Corporation which, if effected, would appear to the transfer
agent on the basis of information in its possession to constitute a violation of this
Article Sixth, then, prior to registering such change in ownership on the books of
the Corporation, the transfer agent shall notify the Corporation. If the Board of
Directors or an officer of the Corporation designated by the Board of Directors
determines that the proposed change in ownership would violate this Article
Sixth, then the Corporation shall so advise the transfer agent and the transfer
agent shall not make such change in ownership on the books of the Corporation
and shall return the stock certificates representing such shares to the holder of
record thereof.(e) Unless approval of the Board of Directors is obtained as provided in
Paragraph (c) above, any attempted Transfer of shares of Voting Class A
Common Stock of the Corporation or any Option to acquire shares of Voting
Class A Common Stock of the Corporation in excess of the shares that could be
Transferred to the Transferee without restriction under paragraph (a)
above shall not be effective to Transfer ownership of such excess shares or
Options (the "Prohibited Shares") to the purported acquiror thereof (the
"Purported Acquiror"), who shall not be entitled to any rights as a shareholder of
the Corporation with respect to the Prohibited Shares (including, without
limitation, the right to vote or to receive dividends with respect thereto).
All rights with respect to the Prohibited Shares shall remain the property of the
person who initially purported to Transfer the Prohibited Shares to the
Purported Acquiror (the "Initial Transferor") until such time as the Prohibited
Shares are resold as set forth in subparagraph (1) or subparagraph (2) below. The
Purported Acquiror, by acquiring ownership of shares of Voting Class A
Common Stock of the Corporation that are not Prohibited Shares, shall be deemed
to have consented to all of the provisions of this Section (D) and to have agreed to
act as provided in the following subparagraph (1).
(1) Upon demand by the Corporation, the Purported Acquiror shall
transfer any certificate, or other evidence of purported ownership of the
Prohibited Shares within the Purported Acquiror's possession or control,
along with any dividends or other distributions paid by the Corporation
with respect to the Prohibited Shares that were received by the Purported
Acquiror (the "Prohibited Distributions"), to an agent designated by the
Corporation (the "Agent"). If the Purported Acquiror has sold the
Prohibited Shares to an unrelated party in any arm's-length transaction
after purportedly acquiring them, the Purported Acquiror shall be deemed
to have sold the Prohibited Shares as agent for the Initial Transferor, and
in lieu of transferring the Prohibited Shares and Prohibited Distributions to
the Agent shall transfer to the Agent the Prohibited Distributions and the
proceeds of such sale (the "Resale Proceeds") except to the extent that the
Agent grants written permission to the Purported Acquiror to retain a
portion of the Resale Proceeds not exceeding the amount that would have
been payable by the Agent to the Purported Acquiror pursuant to the
following subparagraph (2) if the Prohibited Shares had been sold by the
Agent rather than by the Purported Acquiror. Any purported transfer of the
Prohibited Shares by the Purported Acquiror other than a transfer
described in one of the two preceding sentences shall not be effective to
transfer any ownership of the Prohibited Shares.
(2) The Agent shall sell in an arm's-length transaction (through
the stock exchange, if any, on which the Voting Class A Common Stock is
traded, if possible) any Prohibited Shares transferred to the Agent by the
Purported Acquiror, and the proceeds of such sale (the "Sales Proceeds"),
or the Resale Proceeds, if applicable, shall be allocated to the Purported
Acquiror up to the following amount: (i) where applicable, the purported
purchase price paid or value of consideration surrendered by the Purported
Acquiror for the Prohibited Shares, and (ii) where the purported Transfer
of the Prohibited Shares to the Purported Acquiror was by gift,
inheritance, or any similar purported transfer, the fair market value of the
Prohibited Shares at the time of such purported Transfer. Subject to the
succeeding provisions of this subparagraph, any Resale Proceeds or Sales
Proceeds in excess of the amount allocable to the Purported Acquiror
pursuant to the preceding sentence, together with any Prohibited
Distributions, shall be the property of the Initial Transferor. If the identity
of the Initial Transferor cannot be determined by the Agent through
inquiry made to the Purported Acquiror and the Corporation, the Agent
shall publish appropriate notice (in The Wall Street Journal, if possible)
for seven consecutive business days in an attempt to identify the Initial
Transferor in order to transmit any Resale Proceeds or Sales Proceeds or
Prohibited Distributions due to the Initial Transferor pursuant to this
subparagraph. The Agent may also take, but is not required to take, other
reasonable actions to attempt to identify the Initial Transferor. If after 90
days following the final publication of such notice the Initial Transferor
has not been identified, any amounts due to the Initial Transferor pursuant
to this subparagraph may be paid over to a court or governmental agency,
if applicable law permits, or otherwise shall be transferred to any entity
designated by the Corporation that is described in Section 501 (c)(3) of the
Code. In no event shall any such amount due to the Initial Transferor inure
to the benefit of the Corporation or the Agent, but said amounts may be
used to cover expenses (including but not limited to the expenses of
publication) incurred by the Agent in attempting to identify the Initial
Transferor.
(3) Within thirty (30) business days of learning of a purported
Transfer of Prohibited Shares to a Purported Acquiror, the Corporation
through its Secretary shall demand that the Purported Acquiror surrender
to the Agent the certificates representing the Prohibited Shares, or any
Resale Proceeds, and any Prohibited Distributions, and if such surrender is
not made by the Purported Acquiror within thirty (30) business days from
the date of such demand, the Corporation shall institute legal proceedings
to compel such transfer; provided, however, that nothing in this paragraph
shall preclude the Corporation in its discretion from immediately bringing
legal proceedings without a prior demand, and also provided that failure of
the Corporation to act within the time periods set out in this paragraph
shall not constitute a waiver of any right of the Corporation to compel any
transfer required by this paragraph.
(4) Upon a determination by the Board of Directors that there has
been or is threatened a purported Transfer of Prohibited Shares to a
Purported Acquiror, the Board of Directors may take such action in
addition to any action required by the preceding subparagraph as it deems
advisable to give effect to the provisions of this Section (D), including,
without limitation, refusing to give effect on the books of the Corporation
to such purported Transfer or instituting proceedings to enjoin such
purported Transfer.
(f) Until the earliest of January 1, 2006, such date as the Corporation shall
no longer have any unutilized Carryforwards or such date after which Section 382
of the Code is repealed or so substantially modified such that, in the opinion of
counsel to the Corporation, the restrictions on transfer described in this Section
(D) of this Article Sixth are no longer necessary to accomplish their intended
purpose, all certificates representing shares of Voting Class A Common Stock
shall conspicuously bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERS SET
FORTH IN ARTICLE SIXTH OF THE CORPORATION'S AMENDED
AND RESTATED CERTIFICATE OF INCORPORATION, THE TEXT
OF WHICH IS SUMMARIZED ON THE REVERSE SIDE OF THIS
CERTIFICATE. ANY ATTEMPT TO ACQUIRE VOTING CLASS A
COMMON STOCK OF THE CORPORATION IN VIOLATION OF
SUCH RESTRICTIONS SHALL BE NULL AND VOID AND MAY
RESULT IN FINANCIAL LOSS TO THE PERSON OR ENTITY
ATTEMPTING SUCH ACQUISITION."
(E) Pursuant to the authority expressly granted to and vested in the Board of
Directors of the Corporation, the Board of Directors has created a series of Preferred
Stock of the Corporation to consist of 4,800 shares and hereby restates the voting powers,
designations, rights, preferences, privileges and restrictions of the shares of such series as
follows:
(a) DESIGNATION.
The designation of the series of Preferred Stock created by
this Resolution shall be 7% Preferred Stock, Series B ($1.00 Par
Value)" (hereinafter called the "Series B Preferred Stock").
(b) DIVIDENDS.
(i) Accrual. Dividends shall accrue on each share of Series B
Preferred Stock at the rate of $70.00 per share per annum from the date of
issuance of such share (whether or not they have been declared and
whether or not there are earnings or funds of the Corporation available for
the payment of such dividends).(ii) Cumulation. Dividends upon each share of Series B
Preferred Stock shall be cumulative. Each January 15th and July 15 th
which shall occur after the date of issuance of each share shall be deemed
a "Cumulation Date". Each semi-annual period on a Cumulation Date
shall be deemed a "Dividend Period".
(iii) Full Cumulative Dividends. The term "Full Cumulative
Dividends" shall mean (whether or not they have been declared and
whether or not there are earnings or funds of the Corporation available for
the payment of such dividend) that amount which is equal to dividends at
the full rate fixed for each share of Series B Preferred Stock provided in
this Paragraph (b) for the period of time elapsed from the date of issuance
of such share to the date as to which Full Cumulative Dividends are being
computed (including an amount for any fraction of a Dividend Period
equal to the product derived by multiplying the dividend for the full period
by the fraction of the period elapsed to the time as of which the
computation shall be made.(iv) Payments. The holders of shares of the Series B Preferred
Stock shall be entitled to receive in cash the dividends (on a pro rata basis
if for less than a Dividend Period) accruing on the Series B Preferred
Stock each January 15th and July 15th that any shares of Series B
Preferred Stock shall be outstanding.(v) Unpaid Accrued Dividends. The term "Unpaid Accrued
Dividends" shall mean Full Cumulative Dividends to the date as of which
Unpaid Accrued Dividends are to be computed upon the relevant shares of
Series B Preferred Stock. Unpaid Accrued Dividends shall not bear
interest.(vi) Dividend/Redemption Limitations. Prior to the first
Cumulation Date, no dividend shall be paid nor shall any other
distribution, purchase or redemption be made of or upon any stock ranking
as to dividends or upon liquidation junior to the Series B Preferred Stock.
If on the first Cumulation Date Full Cumulative Dividends upon the Series
B Preferred Stock to such Cumulation Date shall not have been paid, or
declared and a sum sufficient for payment thereof set apart, or if at any
time after the first Cumulation Date Full Cumulative Dividends on Series
B Preferred Stock to the last Cumulation Date shall not have been paid, or
declared and a sum sufficient for payment thereof set apart, the amount of
the deficiency of such dividends shall be fully paid, but without interest,
before any dividend shall be declared or paid or any other distribution
ordered or made upon, or any other purchase or redemption made of, any
stock ranking as to dividends or upon liquidation junior to the Series B
Preferred Stock. All dividends declared upon the shares of the Series B
Preferred Stock shall be declared pro rata.
(c) REDEMPTION.
The shares of the Series B Preferred Stock shall be subject to
redemption as follows:
(i) Optional Redemption. Subject to the succeeding provisions of
this Paragraph (c)(i), the shares of the Series B Preferred Stock may be
redeemed at the option of the Corporation, in whole or in part, at any time
or from time to time, upon not less than 30 days' prior notice to the holders
of record of shares of the Series B Preferred Stock to be so redeemed, sent
by first class mail, postage prepaid, to each registered holder of shares of
the Series B Preferred Stock at such holder's address appearing on the
Series B Preferred Stock register maintained by the Corporation, at the
redemption price per share of $1,000.00, plus in each case an amount
equal to Unpaid Accrued Dividends to and including the date fixed for
redemption of such shares (hereinafter called an "Optional Redemption
Date"). If less than all shares of the Series B Preferred Stock are to be
redeemed pursuant to this Paragraph (c)(i), the shares to be redeemed shall
be selected pro rata so that there shall be redeemed from each registered
holder of such shares that number of whole shares, equal to or rounded,
from that number of shares which bears the same ratio to the total number
of shares of such Series B Preferred Stock held by such holder as the total
number of shares to be redeemed bears to the total number of shares of the
Series B Preferred Stock at the time outstanding.(ii) Scheduled Redemption. The Corporation will redeem out
of funds legally available for such purpose, on each December 31 st of
each year commencing December 31, 1988, for each of which is
hereinafter called a "Scheduled Redemption Date", the following number
of shares:
300 December 31, 1988
500 December 31, 1989
750 December 31, 1990
750 December 31, 1991
750 December 31, 1992
750 December 31, 1993
750 December 31, 1994
250 December 31, 1995All shares shall be redeemed at the redemption price per share of
$1,000.00, plus an amount per share equal to Unpaid Accrued Dividends
to and including each such Scheduled Redemption Date. If any shares of
the Series B Preferred Stock remain unredeemed on December 31, 1995,
or on any Scheduled Redemption Date thereafter, all such shares of Series
B Preferred Stock shall be redeemed on such date or on any later date
when and as there exists legally available funds therefor.
(iii) Effect of Non-redemption. If the Corporation shall fail to
make any scheduled redemption required by Paragraph (c) (ii) above then
until such scheduled redemption is made, the Corporation shall not declare
or pay any dividend, or make any other distribution upon, or purchase or
redeem, any capital stock of the Corporation ranking junior as to
dividends, redemption or upon liquidation to the Series B Preferred Stock.(iv) Effect of Redemption. Unless default be made in the payment
in full of the redemption price and any Unpaid Accrued Dividends,
dividends on the shares of Series B Preferred Stock called for redemption
shall cease to accrue on the Optional Redemption Date or Scheduled
Redemption Date on which such shares are to be redeemed; all rights of
the holders of such shares as stockholders of the Corporation by reason of
the ownership of such shares shall cease on such Optional Redemption
Date or Scheduled Redemption Date, except the right to receive the
amount payable upon redemption of such shares on presentation and
surrender of the respective certificates representing such shares; and after
such Optional Redemption Date or Scheduled Redemption Date, such
shares shall have the status of authorized but unissued shares. The
Corporation will send written notice of its intent to redeem shares of
Series B Preferred Stock, indicating the number of shares to be redeemed
and directions for proper tender of such shares by the holder thereof.
(v) Receipt of Redemption Price. At any time on or after an
Optional Redemption Date or Scheduled Redemption Date, the respective
holders of record of shares of Series B Preferred Stock to be redeemed on
such Optional Redemption Date or Scheduled Redemption Date shall be
entitled, provided there exists legally available funds for such purpose, to
receive the redemption price upon actual delivery to the Corporation of
certificates for the shares to be redeemed, such certificates, if required by
the Corporation, to be properly stamped for transfer and duly. endorsed in
blank or accompanied by proper instruments of assignment and transfer
duly executed in blank.
(d) RIGHTS ON LIQUIDATION, DISSOLUTION, WINDING UP.
(i) Liquidation Payment. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, the
holders of shares of the Series B Preferred Stock then outstanding shall be
subordinate to all claims of the Corporation's creditors but otherwise
entitled to be paid out of the assets of the Corporation available for
distribution to its stockholders, before any payment is made to the holders
of any class of capital stock of the Corporation ranking junior upon
liquidation to the Series B Preferred Stock, an amount per share equal to
$1,000.00 plus all Unpaid Accrued Dividends thereon to and including the
date of payment.(ii) Proportionate Distribution. In the event the assets of the
Corporation available for distribution to the holders of shares of Series B
Preferred Stock upon any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation are insufficient to pay in full all amounts
to which such holders are entitled pursuant to Paragraph (d)(i),
proportionate distributive amounts shall be paid on account of the shares
of Series B Preferred Stock, ratably, in proportion to the full distributive
amounts to which the holders of all such shares are respectively entitled
upon such liquidation, dissolution or winding up.(iii) Effect of Reorganization. Neither the consolidation or merger
of the Corporation with or into any other company or corporation or the
lease or sale of all or substantially all of the assets Corporation nor the
dissolution and liquidation of the Corporation following a sale of all the
assets of the Corporation pursuant to a plan of liquidation adopted under
Section 337 of the Internal Revenue Code of 1986, as such Section may be
amended, shall be deemed to be a liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or otherwise within the
meaning of this Section.
(e) VOTING.
(i) Voting Rights. The shares of the Series B Preferred Stock
shall have all the voting rights of the Voting Common Stock and Voting
Class A Common Stock of the Corporation, shall vote together as a class
with the Voting Common Stock and Voting Class A Common Stock of the
Corporation and shall have such other voting rights as may be required by
applicable law. Such stock shall not have the right to vote as a class,
except as otherwise provided by law or herein. Each share of Series B
Preferred Stock shall be entitled to one vote.
(ii) Default in Dividends or Redemption. Whenever (A) Unpaid
Accrued Dividends equal or exceed the amount of dividends which accrue
in respect of two (2) Dividend Periods for all Series B Preferred Stock
then outstanding or (B) the Corporation fails to make redemptions under
Paragraph (c)(ii) hereof for two (2) consecutive redemption periods for all
Series B Preferred Stock then outstanding, then the number of directors
constituting the Board of Directors of the Corporation shall be increased
by one (1) and the holders of the Series B Preferred Stock shall have, in
addition to any other voting rights, the exclusive and special right, voting
separately as a class, to elect a person to fill such newly created
directorship. Whenever such right of holders of the Series B Preferred
Stock shall have vested, it may be exercised initially either at a special
meeting of such holders called as provided below, or at any annual
meeting of stockholders, and thereafter at annual meetings of
stockholders. The right of holders of shares of the Series B Preferred
Stock voting separately as a class to elect one (1) member of the Board of
Directors as aforesaid shall continue until the Corporation has paid the full
amount of all Unpaid Accrued Dividends or become current in making
redemptions under said Paragraph (c)(ii), as applicable, at which time, the
special right of the holders of shares of the Series B Preferred Stock so to
vote separately as a class for the election of one (1) director shall
terminate, subject to revesting in the event of each and every subsequent
occasion upon which either of events (e)(ii)(A) or (e)(ii)(B) above shall
occur.At any time when special voting powers shall have been vested in
the holders of the Series B Preferred Stock as provided in this Paragraph
(e)(ii), a proper officer of the Corporation shall, upon the written request
of the holders of record of at least ten percent (10%) of the number of
shares of the Series B Preferred Stock at the time outstanding and entitled
to vote, addressed to the Secretary of the Corporation, call a special
meeting of the holders of shares of the Series B Preferred Stock for the
purpose of electing a director hereunder. Such meeting shall be held at the
earliest practicable date at the principal office of the Corporation. If such
meeting shall not be called by a proper officer of the Corporation within
twenty (20) days after period service of said written request upon the
Secretary of the Corporation, then the holders of record of at least ten
percent (10%) of the number of shares of the Series B Preferred Stock at
the time outstanding and entitled to vote, regardless of series, may
designate in writing one of their numbers to call such meeting at the
expense of the Corporation, and such meeting may be called by such
person so designated upon the notice required for annual meeting of
stockholders and shall be held at said principal off ice.
At any meeting held for the purpose of electing directors at which
the holders of shares of the Series B Preferred Stock shall have the special
right, voting separately as a class, to elect one (1) director as provided in
this Paragraph (e)(ii), the presence, in person or by proxy, of the holders of
fifty-one percent (51 %) of the number of shares of the Series B Preferred
Stock at the time outstanding and entitled to vote shall be required to
constitute quorum of such class for the election of any director by the
holders of the Series B Preferred Stock as a class, each share of Series B
Preferred Stock outstanding and entitled to vote for purposes only of
determining the presence of such quorum, as one (1) share of Series B
Preferred Stock.During any period the holders of Series B Preferred Stock have the
right to vote as a class for one (1) director as provided in this Paragraph
(e)(ii), the director so elected by the holders and the Series B Preferred
Stock shall continue in office until termination of the right of the holders
of the Series B Preferred Stock to vote as a class for one (1) director and
such director may not otherwise be removed by the Board of Directors
except for cause. If the holders of Series B Preferred Stock elect a director
pursuant hereto, they may remove such director at any time upon the same
method.
(f) RANK OF SERIES B PREFERRED STOCK.
The shares of the Series B Preferred Stock shall rank prior as to
dividends, redemption and upon liquidation to the shares of Voting
Common Stock, Voting Class A Common Stock, any other shares of
Series B Preferred Stock issued after the date of the Statement of
Resolution dated October 1, 1985 or any other shares of any other series or
issue of Preferred or Common Stock or any other form of equity securities
of the Corporation.
(g) FRACTIONAL SHARES.
The Series B Preferred Stock may be issued in fractions of a share
equal to one-tenth (1 /10) share or any integral multiple thereof. Each
fractional share of Series B Preferred Stock issued shall have a
corresponding fraction of the voting powers, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, attributable to a full share of Series B
Preferred Stock
I.
RETIREMENT OF REDEEMED SHARES.
Shares of the Series B Preferred Stock which have been redeemed
shall have the status of authorized and unissued Preferred Stock of the
Corporation.
SEVENTH: The number of directors of this Corporation shall be specified in the Bylaws,
and such number may from time to time be increased or decreased under the Bylaws or any
amendment, or change thereof, provided the number of directors of the Corporation shall not be
less than three. Directors and officers need not be shareholders. If the off ice of any director or
directors becomes vacant by reason of death, resignation, retirement, disqualification, removal
from office or otherwise, the remaining directors, though less than a quorum, shall choose a
successor or successors who shall hold office until the expiration of the term of the director or
directors so replaced and until a successor or successors have been duly elected.
EIGHTH: In furtherance and not in limitation of the powers conferred by the laws of the
State of Oklahoma, the Board of Directors of this Corporation is expressly authorized:
To make, alter, amend, add to, revise, or repeal the Bylaws in any manner not contrary to
the laws of the State of Oklahoma;
To authorize and cause its officers to execute mortgages and liens upon the property, both
real and personal, and upon the franchise of this Corporation;
To designate, by resolution passed by a majority of the whole Board, one or more
committees, each to consist of one or more directors, which committees, to the extent provided in
such resolution or in the Bylaws of the Corporation, shall have and may exercise any or all of the
powers of the Board of Directors in the management of the business and affairs of this
Corporation and shall have power to authorize the seal of this Corporation to be affixed by its
officers to all papers which may require it;
To grant rights to convert any of the securities issued by this Corporation into shares of
any class or classes of stock and options to purchase or subscribe for shares of any class or
classes upon such terms and conditions as may be determined by the Board of Directors;
NINTH: A director of this Corporation shall not be personally liable to this Corporation
or its shareholders for monetary damages for breach of fiduciary duty as a director of this
Corporation, except for liability (A) for any breach of the director's duty of loyalty to this
Corporation or its shareholders, (B) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (C) for matters ,covered by Section 1053
of the Oklahoma General Corporation Act or (D) for any transaction from which the director
derived an improper personal benefit. If the Oklahoma General Corporation Act hereafter is
amended to authorize the further elimination or limitation of the liability of directors, then the
liability of a director of this Corporation, in addition to the limitation of personal liability
provided herein, shall be limited to the fullest extent permitted by the amended Oklahoma
General Corporation Act. Any repeal or modification of this paragraph by the shareholders of
this Corporation shall be prospective only, and shall not adversely affect any limitation on the
personal liability of a director of this Corporation existing at the time of such repeal or
modification."TENTH: The shareholders of the Corporation have duly adopted this Amended and
Restated Certificate of Incorporation, among other things, for the purpose of definitively
providing that the provisions of the Oklahoma General Corporation Act will apply to the
Corporation and its shareholders to the fullest extent, and that from and after the date of filing of
this Amended and Restated Certificate of Incorporation, the provisions of the Oklahoma
Business Corporation Act and any and all rights, privileges and immunities thereunder shall be
of no further force and effect with regard to the Corporation or its shareholders.
ELEVENTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the Corporation and its
shareholders or any class of them, any court of equitable jurisdiction within the State of
Oklahoma, on the application in a summary way of the Corporation or any creditor or
shareholder thereof or on the application of any receiver or receivers appointed for the
Corporation under the provisions of Section 1106 of the Oklahoma General Corporation Act or
on the application of trustees in dissolution or of any receiver or receivers appointed for the
Corporation under the provisions of Section 1100 of the Oklahoma General Corporation Act,
may order a meeting of the creditors or class of creditors, and/or of the shareholders or class of
shareholders of the Corporation, as the case may be, to be summoned in such manner as the court
directs. If a majority in number representing three-fourths (3/4) in value of the creditors or class
of creditors, and/or of the shareholders or class of shareholders of the Corporation, as the case
may be, agree to any compromise or arrangement and to any reorganization of the Corporation as
a consequence of such compromise or arrangement, the compromise or arrangement and the
reorganization, if sanctioned by the court to which the application has been made, shall be
binding on all the creditors or class of creditors, and/or on all the shareholders or class of
shareholders, of the Corporation, as the case may be, and also on the Corporation.
TWELFTH: The Corporation shall indemnify to the full extent authorized 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 he, his testator or intestate is or
was an officer or director of the Corporation or is or was serving, at the request of the
Corporation, as an officer or director of another corporation, partnership, joint venture, trust or
other enterprise.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be signed
by its Chief Executive Officer and attested by its Secretary, this _____day of _________ 1992.
CMI CORPORATION, an Oklahoma corporation
By: __________________________________________ George William Swisher, Jr.,
Chief Executive Officer
ATTEST:
Thane Swisher, Secretary
CMI Corporation 1/6,192
