CHARTER AMENDMENT
CERTIFICATE OF AMENDMENT
TO CERTIFICATE OF INCORPORATION OF
U.S. AGGREGATES, INC.
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Adopted in accordance with the
provisions of Section 242 of the General
Corporation Law of the State of Delaware
Michael J. Stone, being Treasurer, of U.S. Aggregates, Inc., a
corporation duly organized and existing under and by virtue or the General
Corporation Law of the State of Delaware (the "Corporation"), DOES HERE-BY
CERTIFY &s. follows:
FIRST: The Board of Directors of the Corporation adapted the resolution
set forth below proposing the amendment to the Certificate of Incorporation (the
"Amendment") and directed that the Amendment be submitted to the holders of the
issued and outstanding shares or Common Stock of the Corporation entitled to
vote thereon for its consideration and approval:
RESOLVED, that the Board of Directors of the Corporation deems it
advisable and in the Corporation's best interest to amend its
Certificate of Incorporation of the Corporation by deleting Article
Four, Sections 4J and 4K to read as follows:
4J. SPECIAL REDEMPTIONS.
(i) If a Change in Ownership bas occurred or the
Corporation obtains knowledge that a Change in Ownership is to
occur, the Corporation shall give prompt written notice of
such Change in Ownership describing in reasonable detail the
definitive terms and date of consummation thereof to each
holder of Preferred Stock, but in any event such notice shall
not be given later than five days after the occurrence of such
Change in
Ownership. The holder or holders of a majority of the
Preferred Stock then outstanding may require the Corporation
to redeem all or any portion of the Preferred Stock owned by
such holder or holden at a price per Share equal to the
Liquidation Value thereof (plus all accrued and unpaid
dividends thereon) by giving written notice to the Corporation
of such election prior to the later of (a) 21 days aller
receipt of the Corpvrativn'3i notice and (b) five days prior
to the consummation of the Change in Ownership (the
"Expiration Date"). The Corporation shall give prompt written
notice of any such election to all other holders of Preferred
Stock within five days after the receipt thereof. and each
such holder shall have; until the later of (a) the Expiration
Date or (b) ten days after receipt of such second notice to
request redemption (by giving written notice to the
Corporation) of all or any portion of the Preferred Stock
owned by such bolder. Upon receipt of such election(s), the
Corporation, subject to Section 4L, shall be obligated to
redeem the aggregate number of Shares specified therein on the
later of (a) the occurrence of the change in Ownership or (b)
five days after the Corporation's receipt Of such election
(3). If in any cast; a proposed Change in Ownership does not
occur. all requests for redemption in connection therewith
shall be automatically rescinded. The term "Change in
Ownership" means any sale or issuance or series of sales
and/or issuances of shares of the Corporation's capital stock
by the Corporation or any holders thereof which results in any
Person or group of affiliated Persons (other than the owners
of Common Stock as of the date or the Purchase Agreement)
owning capital stock of the Corporation possessing the voting
power (under ordinary circumstances) to elect a majority of
the Board. James A. Harris, Michael J. Stone and all members
of Corporation's management who become holders of Common Stock
Agreements shall be deemed to be one Person for purposes of
determining a "Change in Ownership" under this paragraph.
(ii) If a Fundamental Change is proposed to occur,
the Corporation shall give written notice of such Fundamental
Change describing in reasonable detail the definitive terms
and date of consummation thereof to each holder of Preferred
Stock not more than 45 days or less than 20 days prior to the
consummation thereof. The holder or holders of it majority of
the Preferred Stock then outstanding may require the
Corporation to redeem all or any portion of the Preferred
Stock owned by such holder or holders at a price per Share
equal to the Liquidation Value thereof (plus all
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accrued and unpaid dividends thereon) by giving written notice
to the Corporation of such election prior to the later of (a)
ten days prior to the consummation of the Fundamental Change
or (b) ten days after receipt of notice from the Corporation.
The Corporation shall give prompt written notice of such
election to all other holders of Preferred Stock (but in any
event within five days prior to the consummation of the
Fundamental Change), and each such bolder shall have until two
days after the receipt of such notice to request redemption
(by written notice given to the Corporation ) of a or any
portion of the Preferred Stock owned by such holder. Upon
receipt of such election(s), the Corporation, subject to
Section 4L, shall be obligated to redeem the aggregate number
of Shares specified therein upon the consummation of 'such
Fundamental Change. If any proposed Fundamental Change does
not occur, all requests for redemption in connection therewith
shall be automatically rescinded. The term "Fundamental
Change" means (a) a sale of transfer of more than 20% of the
assets or the Corporation and its Subsidiaries on a
consolidated basis (measured by either book value in
accordance with generally accepted accounting principles
consistently applied or fair market value determined in the
reasonably good faith judgment of the Board) in any
transaction or series of transactions (other than sales in the
ordinary course of business) and (b) any merger or
consolidation to which the Corporation is a party, except for
a merger in which the Corporation is the surviving corporation
and, after giving effect to such merger, the holders or the
Corporation's outstanding capital stock possessing a majority
of the voting power (under ordinary circumstances) to elect a
majority of the Board immediately prior in the merger shall
own the Corporation's outstanding capital stock possessing the
voting power (under ordinary circumstances) to elect a
majority of the Board.
4K. REDEMPTIONS ON REQUEST.
At any time after January 1, 2000, the holders of a
majority of the Preferred Stock may request redemption of 4 of
their Shares of Preferred Stock by delivering written notice
of such request to the Corporation. Within five days after
receipt of such request, the Corporation shall give written
notice of such request to all other
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holders of Preferred Stock, and such other holders may request
redemption of their Shares of Preferred Stock by delivering
written notice to the Corporation within five days after
receipt of the Corporation's notice. The Corporation, subject
to Section 4L, shall be required to redeem all Shares with
respect to which such redemption requests have been made at a
price per Share equal to the Liquidation Value thereof (plus
all accrued and unpaid dividends thereon) within 20 days after
receipt of the initial redemption request.
RESOLVED, that the Board of Directors of the Corporation deems it
advisable and in the Corporation's best interest to amend its
Certificate of Incorporation of the Corporation by adding Article Four.
Section 41. to read as follows:
4L. LIMITATION ON REDEMPTION OBLIGATIONS.
In the event that any Default or Event of Default
shall occur and be continuing, unless and until such Default
or Event of Default shall have been cured or waived or shall
have ceased to exist (the "Suspension Period"), the
Corporation shall not redeem any Shut* of Preferred Stock
requested to be redeemed by any holders thereof Within a
reasonable time of the Corporation becoming aware of the
existence of any condition or event that constitutes a Default
or an Event of Default, a written notice specifying the nature
and period of existence thereof and what action the
Corporation is taking or proposes to take with respect
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thereto shall be provided to the holders of Preferred
Stock. In the event that the Default or Event of Default is
duly cured or waived, the Suspension Period shall terminate
and the Corporation shall provide prompt written notice
specifying such event to the holders of Preferred Stock.
RESOLVED, that the Board of Directors of the Corporation deems it
advisable and in the Corporation's best interest to amend its
Certificate of Incorporation of the Corporation by adding the following
defined terms in the appropriate alphabetical order to Article Four,
Section 8:
"Default " has the meaning assigned to it in
paragraph 11B or the Note and Warrant Purchase Agreement.
"Event of Default" has the meaning assigned to it in
paragraph 11B of the Note and Warrant Purchase Agreement.
"Note and Warrant Purchase Agreement" means that
certain Note and Warrant Purchase Agreement dated as of
November 21. 1996. among the Corporation and each of the
purchasers listed on Annex I thereto, as amended from time to
time.
SECOND,:The Amendment was duly adopted in accordance with Section 228
and Section 242 of the General Corporation Law of the State of Delaware by the
holders of the issued and outstanding shares of the Common Stock and Preferred
Stock of the Corporation entitled to vote thereon.
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IN WITNESS WHEREOF, the undersigned does hereby certify under penalty
of perjury that this Certificate of Amendment is the act and deed of the
undersigned and the facts stated herein are true and accordingly have hereunto
set his hand this 21st day of November, 1996
U.S. AGGREGATES, INC.
a Delaware corporation
By: /s/ Michael J. Stone
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Michael J. Stone, Treasurer
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