Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CLAYMONT STEEL HOLDINGS, INC.
| | 1. | (a) The name of the corporation is Claymont Steel Holdings, Inc. (the “Corporation”) |
(b) The original Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on May 19, 2005, which Certificate of Incorporation was amended by Certificates of Amendment filed with the Secretary of State of the State of Delaware on July 8, 2005, June 27, 2006, August 3, 2006, and December 5, 2006.
2. This Amended and Restated Certificate of Incorporation has been duly adopted by the Board of Directors of the Corporation by unanimous written consent in lieu of a meeting in accordance with Sections 141(f), 242, and 245 of the General Corporation Law of the State of Delaware (“DGCL”) and by the stockholders of the Corporation by written consent in lieu of a meeting thereof in accordance with Sections 228, 242, and 245 of the DGCL, and amends and supersedes in its entirety the Certificate of Incorporation of the Corporation.
3. The Certificate of Incorporation of the Corporation is hereby amended and restated in its entirety to read as follows:
ARTICLE I
NAME
The name of the Corporation is Claymont Steel Holdings, Inc.
ARTICLE II
REGISTERED AGENT
The address of the Corporation’s registered office in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle 19801. The name of the Corporation’s registered agent at that address is The Corporation Trust Company.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized and incorporated under the DGCL.
ARTICLE IV
CAPITAL STOCK
The total number of shares of stock which the Corporation shall have authority to issue is One Hundred Ten Million (110,000,000) shares, which shall be divided into two classes as follows:
A. One Hundred Million (100,000,000) shares of Common Stock, the par value of each of which shares is One Tenth of One Cent ($0.001); and
B. Ten Million (10,000,000) shares of Preferred Stock, the par value of each of which shares is One Tenth of One Cent ($0.001). The Corporation’s board of directors is hereby expressly authorized to provide by resolution or resolutions from time to time for the issue of the Preferred Stock in one or more series, the shares of each of which series may have such voting powers, full or limited, or no voting powers, and such designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, as shall be permitted under the DGCL and as shall be stated in the resolution or resolutions providing for the issue of such stock adopted by the board of directors pursuant to the authority expressly vested in the board of directors hereby.
ARTICLE V
DIRECTORS
A. The business and affairs of the Corporation shall be managed by or under the direction of a board of directors consisting of such total number of authorized directors as shall be fixed by, or in the manner provided in, the bylaws. The board of directors shall be divided into three classes, designated Class I, Class II, and Class III. Each class shall consist, as nearly as may be possible, of one-third of the total number of authorized directors. Class I directors shall serve for a term ending upon the annual meeting of stockholders held in 2007, Class II directors shall serve for a term ending upon the annual meeting of stockholders held in 2008 and Class III directors shall serve for a term ending upon the annual meeting of stockholders held in 2009. At each succeeding annual meeting of stockholders beginning with the annual meeting of stockholders held in 2007, successors to the class of directors whose term expires at such annual meeting shall be elected for a three-year term. If the number of directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal as possible, and any additional director of any class elected to fill a vacancy resulting from an increase in such class shall hold office for a term that shall coincide with the remaining term of that class, but in no case will a decrease in the number of directors shorten the term of any incumbent directors. A director shall hold office until the annual meeting for the year in which his or her term expires and until his or her successor shall be elected and shall qualify, subject, however, to prior death, resignation, incapacitation or removal from office, and except as otherwise required by law.
B. Except as otherwise required by law, vacancies and newly created directorships resulting from any increase in the total number of authorized directors may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining
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director. 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 or her predecessor. A director may be removed by the stockholders only for cause.
C. Notwithstanding the foregoing, whenever the holders of any one or more classes or series of 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, filling of vacancies and other features of such directorships shall be governed by the terms of this Amended and Restated Certificate of Incorporation applicable thereto and such directors so elected shall not be divided into classes pursuant to this Article V, in each case unless expressly provided by such terms.
ARTICLE VI
BYLAWS
In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware:
A. The board of directors of the Corporation is expressly authorized to adopt, amend or repeal the bylaws of the Corporation.
B. Elections of directors need not be by written ballot unless the bylaws of the Corporation shall so provide.
C. The books of the Corporation may be kept at such place within or without the State of Delaware as the bylaws of the Corporation may provide or as may be designated from time to time by the board of directors of the Corporation.
ARTICLE VII
LIMITATION OF LIABILITY
No director shall be personally liable to the Corporation or the holders of shares of capital stock for monetary damages for breach of fiduciary duty as a director, except (i) for any breach of the duty of loyalty of such director to the Corporation or such holders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which such director derives an improper personal benefit. No amendment to or repeal of this Article VII shall apply to or have any effect on the liability or alleged liability of any director for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. If the laws of the State of Delaware are hereafter amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent then permitted. No repeal or modification of this Article VII shall adversely affect any right of or protection afforded to a director of the Corporation existing immediately prior to such repeal or modification.
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ARTICLE VIII
INDEMNIFICATION
The Corporation shall indemnify and may advance expenses to its officers and directors to the fullest extent permitted by law from time to time in effect. Without limiting the generality of the foregoing, the bylaws of the Corporation may provide for indemnification and advancement of expenses to the Corporation’s officers, directors, employees and agents on such terms and conditions as the board of directors may from time to time deem appropriate or advisable.
ARTICLE IX
ACTION BY STOCKHOLDERS
Effective immediately upon the Corporation becoming subject to the periodic reporting requirements of Section 13 of the Securities Exchange Act of 1934, as amended, with respect to any class of its capital stock:
A. No action required to be taken or which may be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting.
B. The power of the stockholders to consent in writing, without a meeting, to the taking of any action is specifically denied.
C. Special meetings of the stockholders of the Corporation may be called by (i) the Chairman of the Board; (ii) the board of directors pursuant to a resolution approved by two or more members of the whole Board of Directors; or (iii) the Secretary on the written request of the holders of not less than a majority of all shares entitled to vote at the meeting.
ARTICLE X
AMENDMENTS
Except as provided herein, from time to time any of the provisions of this Amended and Restated Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this Amended and Restated Certificate of Incorporation are granted subject to the provisions of this Article X.
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IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation has been signed on the 18th day of December, 2006, by the undersigned officer thereunto duly authorized.
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CLAYMONT STEEL HOLDINGS, INC. |
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/s/ Jeff Bradley |
| By: | | Jeff Bradley |
| Its: | | Chief Executive Officer |
