EXHIBIT 3.3
CERTIFICATE OF INCORPORATION OF
ELAN FINANCE CORP.
ARTICLE I
The name of the Corporation is Elan Finance Corp. (the "Corporation").
ARTICLE II
The address of the registered office of the Corporation in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name of its registered agent at that address is The Corporation Trust
Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
the State of Delaware (the "DGCL").
ARTICLE IV
The total number of shares that the Corporation is authorized to issue is
one thousand (1,000) shares of common stock of the Corporation, par value of
$0.01 per share ("Common Stock"). Each holder of Common Stock shall be entitled
to one vote in person or by proxy for each share of Common Stock held by such
holder. The holders of Common Stock are entitled to the entire voting power, all
dividends declared and paid by the Corporation and all assets of the Corporation
in the event of any liquidation, dissolution, or winding up of the Corporation.
ARTICLE V
The Corporation is to have perpetual existence.
ARTICLE VI
A. No Personal Liability. 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 a knowing violation of law, (iii) under Section 174 of the DGCL or
(iv) for any transaction from which the director derived any improper personal
benefit. If the DGCL is amended after approval by the stockholders of this
Article 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 permitted by
the DGCL, as so amended. Any repeal or modification of this Article shall not
adversely affect any right or protection of a director of the Corporation
existing under this Certificate of Incorporation.
B. Indemnification. To the full extent permitted by the DGCL, the
Corporation is also authorized to provide indemnification (and advancement of
expenses) to any and all persons whom it shall have power to indemnify from and
against any and all expenses, liabilities or other matters. 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 an
official capacity and as to action in another capacity while holding such
office, and such indemnification shall continue as to a person who has ceased to
be such a person and shall inure to the benefit of the heirs, executors and
administrators of such a person.
3.3-1
ARTICLE VII
The Corporation reserves the right to amend, alter, change or repeal any
provisions contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
ARTICLE VIII
The board of directors of the Corporation ("Board of Directors") shall have
the power without the assent or vote of the stockholders to make, amend,
supplement or repeal the by-laws; provided, however, that the stockholders may
change or repeal any by-law adopted by the Board of Directors; and provided,
further, that no amendment or supplement to the by-laws adopted by the Board of
Directors shall vary or conflict with any amendment or supplement adopted by the
stockholders.
ARTICLE IX
The number of directors which shall constitute the whole Board of Directors
of the Corporation shall be determined pursuant to the by-laws of the
Corporation as provided therein. Election of directors need not be by written
ballot unless the by-laws so provide.
ARTICLE X
Whenever a compromise or arrangement is proposed between the Corporation
and its creditors or any class of them and/or between the 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 the
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for the Corporation under the provisions of
Section 291 of Title 8 of the DGCL on the application of trustees in dissolution
or of any receiver or receivers appointed for the Corporation under the
provisions of Section 279 of Title 8 of the DGCL order a meeting of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of the
Corporation as a 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 the Corporation, as the case may be, and also on the
Corporation.
ARTICLE XI
The name and mailing address of the incorporator is as follows:
Name Address
---- -------
James Wallick Cahill Gordon & Reindel LLP
80 Pine Street
New York, New York 10005
3.3-2
THE UNDERSIGNED, being the incorporator of the Corporation, for the purpose
of forming a corporation pursuant to the DGCL, does make this Certificate,
hereby declaring and certifying that this is my act and deed and the facts
herein stated are true, and accordingly have hereunto set my hand this 25th day
of October, 2004.
/s/ James Wallick
----------------------------------------
James Wallick
3.3-3
