RESTATED
CERTIFICATE OF INCORPORATION
OF
DANIELSON HOLDING CORPORATION
It is hereby certified that:
1. The present name of the corporation (hereinafter called the
"Corporation") is Danielson Holding Corporation, which is the name under which
the Corporation was originally incorporated; and the date of filing the original
certificate of incorporation of the Corporation with the Secretary of the State
of Delaware was April 16, 1992.
2. The certificate of incorporation of the Corporation is hereby
amended by (i) striking out Section 4.1 thereof and by substituting in lieu
thereof new Section 4.1 which is set forth in the Restated Certificate of
Incorporation hereinafter provided for, (ii) striking out Article SIXTH thereof,
(iii) striking out Article SEVENTH thereof, and (iv) renumbering Articles
EIGHTH, NINTH, TENTH, and ELEVENTH as Articles SIXTH, SEVENTH, EIGHTH, and NINTH
respectively.
3. The provisions of the certificate of incorporation of the
Corporation as heretofore amended and/or supplemented, and as herein amended,
are hereby restated and integrated into the single instrument which is
hereinafter set forth, and which is entitled Restated Certificate of
Incorporation of Danielson Holding Corporation without any further amendment
other than the amendments herein certified and without any discrepancy between
the provisions of the certificate of incorporation as heretofore amended and
supplemented and the provisions of the said single instrument hereinafter set
forth.
4. The amendment and the restatement of the certificate of
incorporation herein certified have been duly adopted by the stockholders in
accordance with the provisions of Sections 228, 242, and 245 of the General
Corporation Law of the State of Delaware.
5. The certificate of incorporation of the Corporation, as amended and
restated herein, shall at the effective time of this restated certificate of
incorporation, read as follows:
"Restated
Certificate of Incorporation
of
Danielson Holding Corporation
FIRST. The name of the Corporation (the "Corporation") is Danielson
Holding Corporation.
SECOND. The address of the Corporation's registered office in the State
of Delaware is 15 North Street, City of Dover, County of Kent, Delaware 19901
and the name of the Corporation's registered agent at such address is National
Corporate Research, Ltd.
THIRD. The purpose of the Corporation 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.
FOURTH. 4.1 The Corporation is authorized to issue two classes of
shares designated "Preferred Stock" and "Common Stock", respectively. The total
number of shares of capital stock the Corporation is authorized to issue is
110,000,000. The number of shares of Preferred Stock authorized to be issued is
10,000,000 and the number of shares of Common Stock authorized to be issued is
100,000,000. The par value of each share in each class is $.10.
4.2. The Preferred Stock may be divided into such number of series as
the Board of Directors may determine. Subject to the provisions of Section 4.3,
the Board of Directors is authorized to determine and alter the rights, powers
(including voting powers), preferences, privileges and restrictions granted to
and imposed upon the Preferred Stock or any series thereof with respect to any
wholly unissued series of Preferred Stock, and to fix the number of shares of
any series of Preferred Stock andthe designation of any such series of Preferred
Stock and any other relative, participating, optional or other special powers,
preferences, rights, and the qualifications, limitations or restrictions
thereof, all as shall be determined from time to time by the Board of Directors
and shall be stated in the resolution or resolutions providing for the issuance
of such Preferred Stock. The Board of Directors, within the limits and
restrictions stated in any resolution or resolutions of the Board of Directors
originally fixing the number of shares constituting any series, may increase or
decrease (but not below the number of shares of such series then outstanding)
the number of shares of any series subsequent to the issue of shares of that
series.
4.3 The rights, powers, preferences, privileges and restrictions
granted to and imposed upon Preferred Stock or any series thereof which is to be
issued to any holder of 1% or more of the outstanding shares of Common Stock or
to any officer, director or "affiliate" of the Corporation must be approved by
the stockholders of the Corporation prior to the issuance thereof. The term
"affiliate" means a person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
the Corporation. The term "person" means an individual, a corporation, a
partnership, an association, a joint stock company, a trust, an unincorporated
organization, or any other entity.
FIFTH. The Common Stock of the Corporation shall be subject to the
following transfer restrictions:
5.1. No holder, whether record or beneficial, direct or indirect, of 5%
or more of Common Stock of the Corporation, whether such ownership resulted from
receipt of shares of Common Stock through a primary issuance by the Corporation,
or issued upon exercise of rights to purchase shares of Common Stock granted by
the Corporation, or from any other transaction or transactions, including
without limitation, secondary market acquisitions (and including specifically
any holder, whether record or beneficial, direct or indirect, who proposes to
make
an acquisition of Common Stock of the Corporation, which after the acquisition
will result in total ownership by such holder of 5% or more of the Common Stock
of the Corporation) ("5% Stockholder"), may purchase, acquire or otherwise
receive additional shares of Common Stock (herein referred to as an
"Acquisition") or sell, transfer, assign, pledge, encumber or dispose of, in any
matter whatsoever, any shares of Common Stock, directly or indirectly owned by
such 5% Stockholder, whether such ownership is record or beneficial ownership
(herein referred to as a "Transfer"), prior to a determination by the
Corporation and its tax counsel that such transaction will not result in or
create (in conjunction with prior transactions and previously approved
subsequent transactions by any 5% Stockholder(s) and other holders of Common
Stock) an unreasonable risk of an "ownership change" of this corporation within
the meaning of Section 382(g) of the Internal Revenue Code of 1986, as amended
(the "Internal Revenue Code"), or any similar provisions of superseding or
additional law relating to preservation of net operating loss ("NOL") carry
forwards, including specifically Treasury Regulation section 1.382-2T(j)(3)(i)
(collectively, an "Ownership Change" under the "Tax Law").
In addition, the Corporation will issue stop transfer instructions to
the transfer agent for Common Stock requiring, as a condition precedent to any
transfer of Common Stock, that the transfer agent receive either: (i) a sworn
affidavit from each of the proposed transferor and transferee that it is not a
5% Stockholder; or (ii) an opinion of tax counsel of the Corporation referred to
in Section 5.2 below. Any purported transfer of shares of Common Stock in
violation of the foregoing transfer restrictions will be a nullity and of no
force and effect. All certificates representing Common Stock will bear a legend
setting forth the foregoing restrictions.
5.2. In order to ensure compliance with this Article FIFTH, and in
order to establish a procedure for processing requests to effect either an
Acquisition or a Transfer by any one or more 5% Stockholder(s) on a fair and
equitable basis, the following provisions shall apply to all 5% Stockholders:
(a) Delivery of Shares and Escrow Receipts. All shares of Common
Stock which are issuable to 5% Stockholders or which subsequently are received
by a 5% Stockholder in an Acquisition will be issued in the name of "Danielson
Holding Corporation, as Escrow Agent" and will be held by the Corporation in
escrow (the "Escrowed Stock"), in accordance with the provisions of this Section
5.2 (the "Stock Escrow"). In lieu of certificates reflecting their ownership of
Common Stock, the 5% Stockholders will receive an escrow receipt evidencing
their beneficial ownership of Common Stock and record ownership of the Escrowed
Stock. Escrow receipts will be non-transferable. The 5% Stockholders will retain
full voting and dividend rights for all Escrowed Stock.
(b) Duration of the Corporation Holding the Escrowed Stock. As
escrow agent, the Corporation will hold all shares of Escrowed Stock until
termination of the Stock Escrow (as provided in subsection (d) below) or, if and
to the extent that a 5% Stockholder desires to Transfer Escrowed Stock to a
non-5% Stockholder, until receipt by the Corporation of a favorable opinion from
its tax counsel that the Transfer may be made without thereby resulting in an
Ownership Change under the Tax Law.
(c) Acquisitions and Transfers. All requests by 5% Stockholders
to consummate either an Acquisition or a Transfer of Escrowed Stock, through
secondary market transactions or purchases in a primary offering by the
Corporation, will be treated in the order in which such requests were received
i.e., on a "first to request, first to receive" basis. All such requests must be
in writing and delivered to the Corporation at its principal executive office,
attention General Counsel, by registered mail, return receipt requested, or by
hand. In the event that the Corporation's tax counsel is unable to conclude that
a requested Acquisition or Transfer can be made without an Ownership Change
under the Tax Law, then: (i) the requesting party will be so advised in writing
by the Corporation; and (ii) any subsequent request by other 5% Stockholders to
effect a transaction of a type previously denied by this corporation will be
approved only after all previously denied requests (in the order denied) are
given an opportunity to consummate the previously desired transaction. In
addition, the Corporation may approve any requested transaction in any order of
receipt if, in its business judgment, such transaction is in its best interests.
(d) Termination of the Stock Escrow. The Stock Escrow will
terminate upon the first to occur of the following: (i) pursuant to an amendment
to the Tax Law, the Corporation concludes that the restrictions are no longer
necessary in order to avoid a loss to the Corporation and the members of the
affiliated group filing a consolidated federal income tax return with the
Corporation of its NOL carry forwards; (ii) the NOL carry forwards of the
Corporation and members of the affiliated group filing a consolidated federal
income tax return with the Corporation no longer are available to the
Corporation, whether through passage of time, usage or disallowance; and (iii)
the Board of Directors of the Corporation concludes, in its business judgment,
that preservation of the NOL carry forwards no longer is in the interests of the
Corporation and members of the affiliated group filing a consolidated federal
income tax return with this corporation. Upon termination of the Stock Escrow,
each 5% Stockholder will receive a notice that the Stock Escrow has been
terminated and, thereafter, will receive a Common Stock certificate evidencing
ownership of the previously Escrowed Stock.
(e) Release of the Corporation. The Corporation will be held
harmless and released from any liability to any and all 5% Stockholders arising
from its actions as escrow agent, except only for intentional misconduct. In
performing its duties the Corporation will be entitled to rely, without any
inquiry, upon the written advice of its tax counsel and other experts engaged by
the Corporation. In the event that the Corporation requires further advice or
comfort regarding action to be taken by it as escrow agent, it may deposit the
Escrowed Stock at issue with a court of competent jurisdiction and make further
transfers thereof in a manner consistent with the rulings of such court.
SIXTH. The Board of Directors shall have power to make, amend and repeal
the Bylaws of the Corporation. Any Bylaws made by the Board of Directors under
the powers conferred hereby may be amended or repealed by the Board of Directors
or by the stockholders. The Corporation may, in its Bylaws, confer powers upon
its Board of Directors in addition to the foregoing and in addition to the
powers and authorities expressly conferred upon the Board of Directors by
applicable law.
SEVENTH. To the full extent permitted by the General Corporation Law of
the State of Delaware as presently or hereafter in effect, no Director of the
Corporation shall be personally
liable to the Corporation or its stockholder for or with respect to any acts or
omissions in the performance of his or her duties as a Director of the
Corporation. Any repeal or modification of this Article SEVENTH shall not
adversely affect any right or protection of a Director of the Corporation
existing immediately prior to such repeal or modification.
EIGHTH. Each person who is or was a Director or officer of the
Corporation, or while serving as a Director or officer of the Corporation is or
was serving at the request of the Board of Directors or an officer of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise (including the heirs,
executors, administrators or estate of such person), shall be indemnified by the
Corporation to the full extent permitted by the General Corporation Law of the
State of Delaware or any other applicable law as presently or hereafter in
effect. The Corporation may, by action of the Board of Directors, provide
indemnification to other employees and agents of the Corporation with the same
scope and effect as the foregoing indemnification of Directors and officers. The
right of indemnification provided in this Article EIGHTH shall not be exclusive
of any other rights to which any person seeking indemnification may otherwise be
entitled, and shall be applicable to matters otherwise within its scope
irrespective of whether such matters arose or arise before or after the adoption
of this Article EIGHTH. Without limiting the generality or the effect of the
foregoing, the Corporation may adopt Bylaws, or enter into one or more
agreements with any person, which provide for indemnification greater or
different than that provided in this Article EIGHTH. Notwithstanding anything
contained in this Certificate of Incorporation to the contrary, the amendment,
repeal or adoption of any provisions inconsistent with this Article EIGHTH shall
require the affirmative vote of the holders of at least 80% of the stock
entitled to vote, voting together as a single class. Any amendment repeal or
adoption of any provision inconsistent with this Article EIGHTH shall not
adversely affect any right or protection existing hereunder immediately prior to
such amendment repeal or adoption.
NINTH. The Corporation shall not be governed by Section 203 of the
General Corporation Law of the State of Delaware as it may be amended from time
to time."
Danielson Holding Corporation
Signed on JULY 20, 1999 By:________________________________
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Title:
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