THIRD
AMENDED
AND
RESTATED
CERTIFICATE OF INCORPORATION
OF
NEWSTATE HOLDINGS, INC.
NewState Holdings, Inc., a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is NewState Holdings, Inc. The
date of filing of its original Certificate of Incorporation
with the Secretary of State was June 3, 1991.
2. This Third Amended and Restated Certificate of Incorporation
restates and integrates and further amends the Certificate of
Incorporation and Second Amended and Restated Certificate of
Incorporation of this corporation.
3. The text of the Second Amended and Restated Certificate of
Incorporation is amended in its entirety to read as herein set
forth:
ARTICLE I
Name
The name of the Corporation is NewState Holdings, Inc.
ARTICLE II
Registered Office and Registered Agent
The address of the initial registered office of the Corporation is
Corporation Trust Center, 1209 Orange Street, Wilmington, Now Castle County,
Delaware.
The name of the registered agent of the Corporation at such address is
The Corporation Trust Company.
ARTICLE III
Purposes and Powers
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 General
Corporation Law of Delaware.
ARTICLE IV
Capital Stock
4.1 Authorized Stock and Classes of Stock. The Corporation shall have
authority to issue 50,000,000 shares, consisting of 40,000,000 shares
of Common Stock, $0.01 par value per share, and 10,000,000 shares of
Preferred Stock, $0.01 par value per share. The Board of Directors is
authorized, subject to limitations prescribed by law, to provide for
the issuance of the shares of Preferred Stock in series, and by filing
a certificate pursuant to the applicable law of the State of Delaware,
to establish from time to time the number of shares to be included in
each such series, and to fix the designation, voting power, other
powers. Preferences and rights of the shares of each such series and
any qualifications, limitations or restrictions thereof. The number of
authorized shares of Preferred Stock may be increased or decreased (but
not below the number of shares thereof outstanding) by the affirmative
vote of the holders of a majority of the stock entitled to vote
thereon, without a vote of the holders of the outstanding Preferred
Stock as a class, or of any series thereof as a class, unless a vote of
any such holders is required pursuant to the certificate or
certificates establishing any such series of Preferred Stock.
4.2 Voting Rights and Cumulative Voting. Each share of issued and
outstanding Common Stock shall have one vote on all matters submitted
to a shareholder vote; provided, however, that directors shall be
elected in the manner provided in Section 3.02 of the Fourth Amended
and Restated Bylaws of the Corporation.
4.3 Dissolution and Liquidation Rights and Preferences. In the event of
voluntary or involuntary dissolution or liquidation of the Corporation,
any assets of the Corporation shall be distributed to the Common Stock
shareholders by equal apportionment of such assets among the issued and
outstanding shares of Common Stock without regard to class.
4.4 Issuance and Disposition. The Corporation, in the discretion and upon
resolution of the Board of Directors, may at any time, and from time to
time, issue and dispose of any of the unissued Common Stock or treasury
stock of the Corporation and may create optional rights to purchase or
subscribe for shares of Common Stock of the Corporation. Such stock may
be issued and disposed of for such kind and amount of consideration and
to such persons, firms and corporations, and such optional rights may
be created, and warrants or other evidence of such rights issued, on
such terms, at such prices and in such manner, as may be determined by
resolution adopted by the Board of Directors, subject to any provision
of law then applicable and subject to any other provisions of this
Third Amended and Restated Certificate of Incorporation and any
provisions of the Fourth Amended and Restated Bylaws of the
Corporation.
4.5 Pre-emptive Rights, Restrictions and Shareholder Obligations. No
shareholder of the Corporation shall have any pre-emptive or other
preferential right to subscribe for any of the unissued stock or
treasury stock to be issued or sold, or for any additional shares of
stock or other securities of any class, or for rights, warrants or
options to purchase stock or subscribe for securities of any kind
convertible into stock or carrying stock purchase warrants or
privileges. All lawful restrictions on the sale or other disposition of
shares may be placed upon all or a portion or portions of the
certificate or certificates evidencing the Corporation's shares. No
shareholder or subscriber to the stock of the Corporation shall be
under any obligation to the creditors of the Corporation with respect
to such stock other than the obligation to pay the Corporation the full
consideration for which the stock was issued or is to be issued.
4.6 Amendments to Certificate of Incorporation. The Corporation's
Certificate of Incorporation may be amended or repealed only by the
affirmative vote of the holders of a majority of the issued and
outstanding shares of Common Stock.
ARTICLE V
Board of Directors
Upon the filing of this Third Amended and Restated Certificate of
Incorporation, the business of the Corporation shall be managed by the Board of
Directors. The number of directors shall be fixed in the manner provided in the
Bylaws. The current Board of Directors of the Corporation shall consist of up to
six individuals, whose names and addresses appear below:
Name Address
---- -------
Ernest B. Kim NewState Holdings, Inc.
156 W. 56th Street
Suite 2005
New York, New York 10019
Jin K. Kim NewState Holdings, Inc.
156 W. 56th Street
Suite 2005
New York, New York 10019
Sun W. Young 38 W. 32nd Street
Suite 900A
New York, New York 10001
A. Sungil Noh 39 W. 32nd Street
Suite 1204
New York, New York 10001
ARTICLE VI
Limitation of Liability
A Director of the Corporation shall not be personally liable to the
Corporation or its shareholders 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 shareholders, (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 Delaware General Corporation
Law, or (iv) for any transaction from which the Director derived any improper
personal benefit.
Notwithstanding any other provisions herein, personal liability of a
director shall be eliminated to the greatest extent possible as is now, or in
the future, provided for by law.
ARTICLE VII
Transaction With and By Directors, Officers and Shareholders
The Corporation may enter into contracts or transact business with one
or more of its directors, officers, or shareholders, or with any corporation,
partnership, association, business, trust company, organization or other concern
in which any one or more of its directors, officers or shareholders is in any
way interested and, in the absence of fraud, no such contract or transaction
shall be invalidated or in any way affected by the fact that such director,
officer or shareholder of the Corporation has or may have interests which are or
might be adverse to the interests of the Corporation even though the vote or
action of such director, officer, or shareholder having such adverse interests
may have been necessary to obligate the Corporation upon such contract or
transaction if:
(1) the material facts as to his 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 or committee
in good faith authorizes the contract or transaction by the
unanimous affirmative vote of the disinterested directors, even
though the disinterested directors be less than a quorum; or
(2) the material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the
shareholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of
the shareholders; or
(3) the contract or transaction is fair to the Corporation as of
the time it is authorized, approved or ratified, by the Board
of Directors, a committee or the shareholders.
At any meeting of the Board of Directors or of the shareholders of the
Corporation which shall authorize or ratify any such contract or transaction,
any such director or shareholder may vote or act with like force and effect as
if he had no such interest, provided that the provisions of either (1), (2), or
(3) have been complied with.
No director or officer shall be disqualified from holding office as
director or officer of the Corporation by reason of any such adverse interests.
In the absence of fraud, no director, officer or shareholder having such adverse
interest shall be liable to the Corporation or to any director, officer,
shareholder or to any creditor thereof, or to any other person for any loss
incurred under or by reason of such contract or transaction, nor shall any such
director, officer or shareholder be accountable for any gains or profits
realized thereon.
ARTICLE VIII
By-Laws
The By-laws of the Corporation may be adopted, amended or repealed only
by the affirmative vote of a majority of the directors at a meeting of the Board
of Directors of the Corporation or by the affirmative vote of the majority of
the issued and outstanding shares of Common Stock at a meeting of the
shareholders of the Corporation.
