EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
DESA HOLDING CORP.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified and
referred to as the "General Corporation Law of the State of Delaware"), hereby
certifies that:
FIRST: The name of the corporation (hereinafter called the
"Corporation") is DESA HOLDING CORP.
SECOND: The address, including street, number, city, and county, of the
registered office of the Corporation in the State of Delaware is 229 South State
Street, City of Dover, County of Kent; and the name of the registered agent of
the Corporation in the State of Delaware at such address is The Prentice-Hall
Corporation System, Inc.
THIRD: The nature of the business and the purposes to be conducted and
promoted by the Corporation, which shall be in addition to the authority of the
Corporation to conduct any lawful business, to promote any lawful purpose, and
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware, is as follows:
To purchase, own, and hold the stock of other corporations, and to do
every act and thing covered generally by the denomination "holding corporation"
and especially to direct the operations of other corporations through the
ownership of stock therein; to purchase, subscribe for, acquire, own, hold,
sell, exchange, assign, transfer, create security interests in, pledge, or
otherwise dispose of shares or voting trust certificates for shares of the
capital stock, or any bonds, notes, securities, or evidences of indebtedness
created by any other corporation or corporations organized under the laws of
this state or any other state or district or country, nation, or government and
also bonds or evidences of indebtedness of the United States or of any state,
district, territory, dependency, or country or subdivision or municipality
thereof; to issue in exchange therefor shares of the capital stock, bonds,
notes, or other obligations of the Corporation and while the owner thereof to
exercise all the rights, powers, and privileges or ownership including the right
to vote on any shares of stock or voting trust certificates so owned; to
promote, lend money to, and guarantee the dividends, stocks, bonds, notes,
evidences of indebtedness, contracts, or other obligations of, and otherwise aid
in any manner which shall be lawful, any corporation or association of which any
bonds, stocks, voting trust certificates, or other securities or evidences of
indebtedness shall be held by or for this Corporation, or in which, or in the
welfare of which, this Corporation shall have any interest, and to do any acts
and things permitted by law and
designed to protect, preserve, improve, or enhance the value of any such bonds,
stocks or other securities or evidences of indebtedness or the property of this
Corporation.
To purchase, receive, take by grant, gift, devise, bequest or
otherwise, lease, or otherwise acquire, own, hold, improve, employ, use and
otherwise deal in and with real or personal property, or any interest therein,
wherever situated, and to sell, convey, lease, exchange, transfer or otherwise
dispose of, or mortgage or pledge, all or any of its property and assets, or any
interest therein, wherever situated.
To engage generally in the real estate business as principal, agent,
broker, and in any lawful capacity, and generally to take, lease, purchase, or
otherwise acquire, and to own, use, hold, sell, convey, exchange, lease,
mortgage, work, clear, improve, develop, divide, and otherwise handle, manage,
operate, deal in and dispose of real estate, real property, lands,
multiple-dwelling structures, houses, buildings and other works and any interest
or right therein; to take, lease, purchase or otherwise acquire, and to own,
use, hold, sell, convey, exchange, hire, lease, pledge, mortgage, and otherwise
handle, and deal in and dispose of, as principal, agent, broker, and in any
lawful capacity, such personal property, chattels, chattels real, rights,
easements, privileges, choses in action, notes, bonds, mortgages, and securities
as may lawfully be acquired, held, or disposed of; and to acquire, purchase,
sell, assign, transfer, dispose of, and generally deal in and with as principal,
agent, broker, and in any lawful capacity, mortgages and other interests in
real, personal, and mixed properties; to carry on a general construction,
contracting, building, and realty management business as principal, agent,
representative, contractor, subcontractor, and in any other lawful capacity.
To carry on a general mercantile, industrial, investing, and trading
business in all its branches; to devise, invent, manufacture, fabricate,
assemble, install, service, maintain, alter, buy, sell, import, export, license
as licensor or licensee, lease as lessor or lessee, distribute, job, enter into,
negotiate, execute, acquire, and assign contracts in respect of, acquire,
receive, grant, and assign licensing arrangements, options, franchises, and
other rights in respect of, and generally deal in and with, at wholesale and
retail, as principal, and as sales, business, special, or general agent,
representative, broker, factor, merchant, distributor, jobber, adviser, and in
any other lawful capacity, goods, wares, merchandise, commodities, and
unimproved, finished, processed, and other real, personal, and mixed property of
any and all kinds, together with the components, resultants and by-products
thereof.
To apply for, register, obtain, purchase, lease, take licenses in
respect of or otherwise acquire, and to hold, own, use, operate, develop, enjoy,
turn to account, grant licenses and immunities in respect of, manufacture under
and to introduce, sell, assign, mortgage, pledge or otherwise dispose of, and,
in any manner deal with and contract with reference to:
(a) inventions, devices, formulae, processes and any improvements and
modifications thereof;
(b) letters patent, patent rights, patented processes, copyrights,
designs, and similar rights, trademarks, trade names, trade symbols and other
indications of origin and
-2-
ownership granted by or recognized under the laws of the United States of
America, the District of Columbia, any state or subdivision thereof, and any
commonwealth, territory, possession, dependency, colony, possession, agency or
instrumentality of the United States of America and of any foreign country, and
all rights connected therewith or appertaining thereunto;
(c) franchises, licenses, grants and concessions.
To guarantee, purchase, take, receive, subscribe for, and otherwise
acquire, own, hold, use, and otherwise employ, sell, lease, exchange, transfer,
and otherwise dispose of, mortgage, lend, pledge, and otherwise deal in and
with, securities (which term, for the purpose of this Article THIRD, includes,
without limitation of the generality thereof, any shares of stock, bonds,
debentures, notes, mortgages, other obligations, and any certificates, receipts
or other instruments representing rights to receive, purchase of subscribe for
the same, or representing any other rights or interests therein or in any
property or assets) of any persons, domestic and foreign firms, associations,
and corporations, and by any government or agency or instrumentality thereof; to
make payment in any lawful manner; and, while owner of any such securities, to
exercise any and all rights, powers and privileges in respect thereof, including
the right to vote.
To make, enter into, perform and carry out contracts of every kind and
description with any person, firm, association, corporation or government or
agency or instrumentality thereof.
To acquire by purchase, exchange or otherwise, all, or any part of, or
any interest in, the properties, assets, business and good will of any one or
more persons, firms, associations or corporations heretofore or hereafter
engaged in any business for which a corporation may now or hereafter be
organized under the laws of the State of Delaware; to pay for the same in cash,
property or its own or other securities; to hold, operate, reorganize,
liquidate, sell or in any manner dispose of the whole or any part thereof; and
in connection therewith, to assume or guarantee performance of any liabilities,
obligations or contracts of such persons, firms, associations or corporations,
and to conduct the whole or any part of any business thus acquired.
To lend money in furtherance of its corporate purposes and to invest
and reinvest its funds from time to time to such extent, to such persons, firms,
associations, corporations, governments or agencies or instrumentalities
thereof, and on such terms and on such security, if any, as the Board of
Directors of the corporations may determine.
To make contracts of guaranty and suretyship of all kinds and endorse
or guarantee the payment of principal, interest or dividends upon, and to
guarantee the performance of sinking fund or other obligations of, any
securities, and to guarantee in any way permitted by law the performance of any
of the contracts or other undertakings in which the corporation may otherwise be
or become interested, of any persons, firm, association, corporation, government
or agency or instrumentality thereof, or of any other combination, organization
or entity whatsoever.
-3-
To borrower money without limit as to amount and at such rates of
interest as it may determine; from time to time to issue and sell its own
securities, including its shares of stock, notes, bonds, debentures, and other
obligations, in such amounts, on such terms and conditions, for such purposes
and for such prices, now or hereafter permitted by the laws of the State of
Delaware and by this certificate of incorporation, as the Board of Directors of
the Corporation may determine; and to secure any of its obligations by mortgage,
pledge or other encumbrance of all or any of its property, franchises and
income.
To be a promoter or manager of other corporations of any type or kind;
and to participate with others in any corporation, partnership, limited
partnership, joint venture, or other association of any kind, or in any
transaction, undertaking or arrangement which the corporation would have power
to conduct by itself, whether or not such participation involves sharing or
delegation of control with or to others.
To draw, make, accept, endorse, discount, execute, and issue promissory
notes, drafts, bills of exchange, warrants, bonds, debentures, and other
negotiable or transferable instruments and evidences of indebtedness whether
secured by mortgage or otherwise, as well as to secure the same by mortgage or
otherwise, so far as may be permitted by the laws of the State of Delaware.
To purchase, receive, take, reacquire or otherwise acquire, own and
hold, sell, lend, exchange, reissue, transfer or otherwise dispose of, pledge,
use, cancel, and otherwise deal in and with its own shares and its other
securities from time to time to such an extent and in such manner and upon such
terms as the Board of Directors of the Corporation shall determine; provided
that the Corporation shall not use its funds or property for the purchase of its
own shares of capital stock when its capital is impaired or when such use would
cause any impairment of its capital, except to the extent permitted by law.
To organize, as an incorporator, or cause to be organized under the
laws of the State of Delaware, or of any other State of the United States of
America, or of the District of Columbia, or of any commonwealth, territory,
dependency, colony, possession, agency, or instrumentality of the United States
of America, or of any foreign country, a corporation or corporations for the
purpose of conducting and promoting any business or purpose for which
corporations may be organized, and to dissolve, wind up, liquidate, merge or
consolidate any such corporation or corporations or to cause the same to be
dissolved, would up, liquidated, merged or consolidated.
To conduct its business, promote its purposes, and carry on its
operations in any and all of its branches and maintain offices both within and
without the State of Delaware, in any and all States of the United States of
America, in the District of Columbia, and in any or all commonwealths,
territories, dependencies, colonies, possessions, agencies, or instrumentalities
of the United States of America and of foreign governments.
To promote and exercise all or any part of the foregoing purposes and
powers in any and all parts of the world, and to conduct its business in all or
any of its branches as principal, agent, broker, factor, contractor, and in any
other lawful capacity, either alone or through or in conjunction with any
corporations, associations, partnerships, firms, trustees,
-4-
syndicates, individuals, organizations, and other entities in any part of the
world, and, in conducting its business and promoting any of its purposes, to
maintain offices, branches and agencies in any part of the world, to make and
perform any contracts and to do any acts and things, and to carry on any
business, and to exercise any powers and privileges suitable, convenient, or
proper for the conduct, promotion, and attainment of any of the business and
purposes herein specified or which at any time may be incidental thereto or may
appear conducive to or expedient for the accomplishment of any of such business
and purposes and which might be engaged in or carried on by a corporation
incorporated or organized under the General Corporation Law of the State of
Delaware, and to have and exercise all of the powers conferred by the laws of
the State of Delaware upon corporations incorporated or organized under the
General Corporation Law of the State of Delaware.
The foregoing provisions of this Article THIRD shall be construed both
as purposes and powers and each as an independent purpose and power. The
foregoing enumeration of specific purposes and powers shall not be held to limit
or restrict in any manner the purposes and powers of the Corporation, and the
purposes and powers herein specified shall, except when otherwise provided in
this Article THIRD, be in no wise limited or restricted by reference to, or
inference from, the terms of any provision of this or any other Article of this
Certificate of Incorporation; provided, that the Corporation shall not conduct
any business, promote any purpose, or exercise any power or privilege within or
without the State of Delaware which, under the laws thereof, the Corporation may
not lawfully conduct, promote, or exercise.
FOURTH: The aggregate number of shares which the Corporation shall have
authority to issue is 1,000 shares of Common Stock all of which are the same
class and all of which are of a par value of $1.00 each.
FIFTH: The name and mailing address of the incorporator are as follows:
NAME MAILING ADDRESS
---- ---------------
Edward R. Mandell 555 Madison Avenue
New York, New York 10022
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholder or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the
-5-
said 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 stockholders or
class of stockholders of this Corporation, as the case may be, agree to any
compromise or arrangement and to any reorganization of this Corporation as
consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court to
which the said application has been made, be binding on all the creditors or
class of creditors, and/or on all the stockholders or class of stockholders, of
this Corporation, as the case may be, and also on this Corporation.
EIGHTH: For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and regulation
of the powers of the Corporation and of its directors and of its stockholders or
any class thereof, as the case may be, it is further provided:
1. The management of the business and the conduct of the
affairs of the Corporation shall be vested in its Board of Directors.
The number of Directors which shall constitute the whole Board of
Directors shall be fixed by, or in the manner provided in, the By-Laws.
The phrase "whole Board" and the phrase "total number of Directors"
shall be deemed to have the same meaning, to-wit, the total number of
Directors which the Corporation would have if there were no vacancies.
No election of Directors need be by written ballot.
2. After the original or other By-Laws of the Corporation have
been adopted, amended, or repealed, as the case may be, in accordance
with the provisions of Section 109 of the General Corporation Law of
the State of Delaware, and, after the Corporation has received any
payment for any of its stock, the power to adopt, amend, or repeal the
By-Laws of the Corporation may be exercised by the Board of Directors
of the Corporation; provided, however, that any provision for the
classification of Directors of the Corporation for staggered terms
pursuant to the provisions of subsection (d) of Section 141 of the
General Corporation Law of the State of Delaware shall be set forth in
an initial By-Law or in a By-Law adopted by the stockholder entitled to
vote of the Corporation unless provisions for such classification shall
be set forth in this Certificate of Incorporation.
3. Whenever the Corporation shall be authorized to issue only
one class of stock, each outstanding share shall entitle the holder
thereof to notice of, and the right to vote at, any meeting of
stockholders. Whenever the Corporation shall be authorized to issue
more than one class of stock, no outstanding share of any class of
stock which is denied voting power under the provisions of the
Certificate of Incorporation shall entitle the holder thereof to the
right to vote at any meeting of stockholders except as the provisions
of paragraph (c)(2) of Section 242 of the General Corporation Law of
the State of Delaware shall otherwise require; provided, that no share
of any such class which is otherwise denied voting power shall entitle
the holder thereof to vote upon the increase or decrease in the number
of authorized shares of said Class.
-6-
NINTH: The Corporation shall, to the fullest extent permitted by
Section 145 of the General Corporation Law of the State of Delaware, as the same
may be amended and supplemented, indemnify any and all persons whom it shall
have power to indemnify under said Section from and against any and all of the
expenses, liabilities or other matters referred to in or covered by said
Section, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any By-Law, agreement, vote of stockholders or disinterested Directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be Director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
TENTH: From time to time any of the provisions of this 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
Certificate of Incorporation are granted subject to the provisions of this
Article TENTH.
Signed on November 25, 1988.
-----------------------------------
Edward R. Mandell, Incorporator
555 Madison Avenue
New York, New York 10022
-7-
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
DESA HOLDING CORP.
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation")
is Desa Holding Corp.
2. The Certificate of Incorporation of the Corporation is hereby
amended by striking out Article FOURTH thereof and by substituting in lieu of
said Article the following new Article:
"FOURTH: The aggregate number of shares which the
Corporation shall have authority to issue is Three Million
(3,000,000) shares of Common Stock all of which are the same
class and all of which are of a par value of $.01 each."
3. The Corporation has not received any payment for any of its stock.
4. The amendment of the Certificate of Incorporation herein certified
has been duly adopted in accordance with the provisions of Section 241 of the
General Corporation
Law of the State of Delaware.
Signed and Attested
to on December 7, 1988
------------------------------
Edward R. Mandell
Sole Incorporator
CERTIFICATE OF MERGER
MERGING DESA INTERNATIONAL, INC.
AND DESA MERGER CORPORATION
INTO DESA HOLDING CORP.
(Pursuant to Section 251(c) of the General
Corporation Law of the State of Delaware)
Desa Holding Corp., a Delaware corporation (the "Corporation"), for the
purpose of merging Desa International, Inc., a Delaware corporation ("Desa
International"), and Desa Merger Corporation, a Delaware corporation ("Desa
Merger"), into the Corporation (the "Merger"), does hereby certify as follows:
FIRST: Desa Holding Corp., a Delaware corporation, Desa International,
Inc., a Delaware corporation, and Desa Merger Corporation, a Delaware
corporation, are the constituent corporations of the Merger.
SECOND: An Agreement and Plan of Merger and Exchange (the "Merger
Agreement") relating to the Merger has been approved, adopted, certified,
executed, and acknowledged by each of the Corporation, Desa Merger, and Desa
International in accordance with Section 251(c) of the General Corporation Law
of the State of Delaware.
THIRD: The name of the surviving corporation of the Merger is Desa
Holding Corp., to be changed upon consummation of the Merger pursuant to the
Restated Certificate of Incorporation (as hereinafter defined) to Desa
International, Inc.
FOURTH: The Certificate of Incorporation of the Corporation is hereby
amended and restated in its entirety (the "Restated Certificate of
Incorporation") as attached hereto as Exhibit A (and attached as Exhibit G to
the Merger Agreement), and such Restated Certificate of Incorporation shall be
the Restated Certificate of Incorporation of the surviving corporation.
FIFTH: The fully executed Merger Agreement is on file at the principal
place of business of the Corporation at P.O. Box 7919, 2701 Industrial Drive,
Bowling Green, Kentucky 42101.
SIXTH: A copy of the fully executed Merger Agreement will be furnished
by the Corporation, as the surviving corporation pursuant to the Merger, on
request and without cost, to any stockholder of the Corporation, Desa
International, or Desa Merger.
IN WITNESS WHEREOF, Desa Holding Corp. has cause this certificate to be
executed as of this ____ day of December, 1993.
DESA HOLDING CORP.
By:
Name:
Title:
ATTEST:
By:
Name:
Title:
-2-
EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
OF
DESA HOLDING CORP.
(Pursuant to Sections 242 and 245 of the General Corporation Law of
the State of Delaware (the "Delaware Code"))
DESA Holding Corp., a corporation organized and existing under the
Delaware Code, does hereby certify as follows:
1. The name of the corporation is DESA HOLDING CORP. (the
"Corporation").
2. The date of filing the original Certificate of Incorporation of the
Corporation with the Secretary of State of the State of Delaware was November
30, 1988.
3. This Restated Certificate of Incorporation amends and restates the
provisions of the Certificate of Incorporation of the Corporation, as amended,
and was adopted pursuant to the Agreement and Plan of Merger and Exchange dated
as of November 16, 1993 by and among Desa Acquisition Company, Desa Merger
Corporation, the Corporation, Desa International, Inc., and each stockholder of
the Corporation named therein (the "Merger Agreement").
4. The Merger Agreement and this Restated Certificate of Incorporation
(which was attached as an exhibit to the Merger Agreement) were adopted by the
unanimous written consent of the stockholders of the Corporation entitled to
vote thereon in accordance with the provisions of Sections 228, 242, 245, and
251 of the Delaware Code.
5. The Certificate of Incorporation of the Corporation, as amended and
restated hereby, shall, upon its filing with the Secretary of State of the State
of Delaware, read in its entirety as follows:
FIRST: The name of the Corporation is Desa International, Inc.
SECOND: The registered office of the Corporation in the State of
Delaware is located at Corporation Trust Center, 1209 Orange Street in the City
of Wilmington, County of New Castle. The name of the registered agent of the
Corporation at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation and the nature and object of the
business to be transacted, promoted, and carried on are to engage in any lawful
act or activity for which corporations may be organized under the Delaware Code.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 10,000 shares, par value $0.01 per share, designated
Common Stock.
FIFTH: Directors of the Corporation need not be elected by written
ballot unless the by- laws of the Corporation otherwise provide.
SIXTH: The directors of the Corporation shall have the power to adopt,
amend, and repeal the by-laws of the Corporation.
SEVENTH: No contract or transaction between the Corporation and one or
more of its directors, officers, or stockholders or between the Corporation and
any person (as used herein "person" means other corporation, partnership,
association, firm, trust, joint venture, political subdivision, or
instrumentality) or other organization in which one or more of its directors,
officers, or stockholders are directors, officers, or stockholders, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the board or committee which authorizes the contract or transaction, or solely
because his, her, or their votes are counted for such purpose, if: (i) the
material facts as to his or her relationship or interest and as to the contract
or transaction are disclosed or are known to the board of directors or the
committee, and the board of directors or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or her relationship or interest and
as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized,
approved, or ratified by the board of directors, a committee thereof, or the
stockholders. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or of a committee
which authorizes the contract or transaction.
EIGHTH: The Corporation shall indemnify any person who was, is, or is
threatened to be made a party to a proceeding (as hereinafter defined) by reason
of the fact that he or she (i) is or was a director or officer of the
Corporation or (ii) while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent, or similar functionary of
another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise, to the
fullest extent permitted under the Delaware General Corporation Law, as the same
exists or may hereafter be amended. Such right shall be a contract right and as
such shall run to the benefit of any director or officer who is elected and
accepts the position of director or officer of the Corporation or elects to
continue to serve as a director or officer of the Corporation while this Article
is in effect. Any repeal or amendment of this Article TENTH shall be prospective
only and shall not limit the rights of any such director or officer or the
obligations of the Corporation with respect to any claim arising from or related
to the services of such director or officer in any of the foregoing capacities
prior to any such repeal or amendment to this Article TENTH. Such right shall
include the right to be paid by the Corporation expenses incurred in defending
any such proceeding in advance of its final disposition to the maximum extent
permitted under the Delaware General Corporation Law, as the same exists or may
hereafter be amended. If a claim for indemnification or advancement of expenses
hereunder is
-2-
not paid in full by the Corporation within sixty (60) days after a written claim
has been received by the Corporation, the claimant may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim,
and if successful in whole or in part, the claimant shall also be entitled to be
paid the expenses of prosecuting such claim. It shall be a defense to any such
action that such indemnification or advancement of costs of defense are not
permitted under the Delaware General Corporation Law, but the burden or proving
such defense shall be on the Corporation. Neither the failure of the Corporation
(including its board of directors or any committee thereof, independent legal
counsel, or stockholders) to have made its determination prior to the
commencement of such action that indemnification of, or advancement of costs of
defense to, the claimant is permissible in the circumstances nor an actual
determination by the Corporation (including its board of directors or any
committee thereof, independent legal counsel, or stockholders) that such
indemnification or advancement is not permissible shall be a defense to the
action or create a presumption that such indemnification or advancement is not
permissible. In the event of the death of any person having a right of
indemnification under the foregoing provisions, such right shall inure to the
benefit of his or her heirs, executors, administrators, and personal
representatives. The rights conferred above shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute, by-law,
resolution of stockholders or directors, agreement, or otherwise.
The Corporation may additionally indemnify any employee or agent of the
Corporation to the fullest extent permitted by law.
As used herein, the term "proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such an action, suit, or
proceeding, and any inquiry or investigation that could lead to such an action,
suit, or proceeding.
NINTH: A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit. Any repeal or amendment of this Article NINTH by the
stockholders of the Corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director of the
Corporation arising from an act or omission occurring prior to the time of such
repeal or amendment. In addition to the circumstances in which a director of the
Corporation is not personally liable as set forth in the foregoing provisions of
this Article ELEVENTH, a director shall not be liable to the Corporation or its
stockholders to such further extent as permitted by any law hereafter enacted,
including without limitation any subsequent amendment to the Delaware General
Corporation Law.
TENTH: The Corporation expressly elects not to be governed by Section
203 of the General Corporation Law of Delaware.
-3-
IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation to be executed and attested on this day of
December, 1993.
DESA HOLDING CORP.
By:
Name:
Title:
ATTEST:
By:
Name:
Title:
-4-