EXHIBIT 3.5
CERTIFICATE OF INCORPORATION
OF
AMTECH CREDIT CORPORATION
ARTICLE I
The name of the Corporation is Amtech Credit corporation.
ARTICLE II
The name of the corporation's registered agent and the address of
its registered office in the State of Delaware is The Corporation Trust
Company, 1209 Orange Street, Wilmington, New Castle County, Delaware
19801.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Delaware
General Corporation Law, as the same exists or may hereafter be amended.
ARTICLE IV
The total number of shares of capital stock which the corporation
shall have the authority to issue is One Hundred Thousand (100,000) shares
of Common Stock, $0.01 par value.
ARTICLE V
The business and affairs of the corporation shall be managed by the
Board of Directors. The number of directors constituting the initial Board
of Directors is one (1), and the name of the person who is to serve as
director until the first annual Meeting of stockholders or until his
successor is duly elected and qualified is as follows:
Director Address
-------- -------
David P. Cook 4514 Cole Avenue
Suite 1200, LB #28
Dallas, Texas 75205
ARTICLE VI
In furtherance and not limitation of the powers conferred by the
Delaware General Corporation Law, the Board of Directors is expressly
authorized to alter, amend or repeal the bylaws of the Corporation or to
adopt new bylaws.
ARTICLE VII
The incorporator is G. Russell Mortenson, whose mailing address is
4514 Cole Avenue, Suite 1200, LB#28, Dallas, Texas 75205.
ARTICLE VIII
A director of the Corporation shall not be personally liable to the
Corporation of its stockholders for monetary damages for breach of
fiduciary duty as a director, except 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
Delaware General Corporation Law, or (iv) for any transaction from which
the director derived any improper personal benefit. If the Delaware
General Corporation Law is amended after the filing of this Certificate of
Incorporation to authorize corporation 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 Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such
repeal or modification.
ARTICLE IX
A. Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director or officer of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan (hereinafter an
"indemnitee"), whether the basis of such proceeding is alleged action in an
official capacity as a director or officer or in any other capacity while
serving as a director or officer shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than permitted prior thereto), against
all expense, liability and loss (including, without limitation, attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such indemnitee in connection
therewith and such indemnification shall continue as to an indemnitee who has
ceased to be a director or officer and shall inure to the benefit of the
indemnitee's heirs, executors and administrators; provided, however, that,
except for a proceeding brought by an indemnitee to enforce his rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was
authorized by the board of directors of the Corporation. The right to
indemnification conferred in this Article IX shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition (hereinafter
an "advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnitee led for such expenses under this
Article or otherwise.
B. If a claim under this Article is not paid in full by the corporation
within a reasonable time after a written claim has been received by the
Corporation, the indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If successful in whole or
in part in any such suit, or advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall be entitled to be paid also the expense of
prosecuting or defending such suit. In (i) any suit brought by the indemnitee to
enforce a right to indemnification hereunder (but not in a suit brought by the
indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and (ii) any suit by the corporation to recover an advancement of
expenses pursuant to the terms of an undertaking the Corporation shall be
entitled to recover such expenses upon a final adjudication that, the indemnitee
has not met the applicable standard of conduct set forth in the Delaware General
Corporation Law. Neither the failure of the Corporation (including its board of
directors, independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification met
the applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its board of
directors, independent legal counsel, or its stockholders) that the indemnitee
has not met such applicable standard of conduct, shall create a presumption that
the indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense in such suit. In any suit
brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder or by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Article or otherwise shall be on the
corporation.
C. The rights to indemnification and to the advancement of expenses
conferred in this Article IX shall not be exclusive of any other right which any
person may have or hereafter acquire under this Certificate of Incorporation or
any bylaw, agreement, vote of stockholders or disinterested directors or
otherwise.
D. The Corporation may maintain insurance, at its expense, to protect
itself and any director or officer of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any such expense,
liability or loss under the Delaware General Corporation Law.
E. The Corporation may, to the extent authorized from time to time by the
board of directors, grant rights to indemnification and to the advancement of
expenses to any employee or agent of the corporation to the fullest extent of
the provisions of this Article IX with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
ARTICLE X
No stockholder of the Corporation will be entitled to cumulative voting
with respect to the election of directors or, by reason of his holding shares of
any class of capital stock of the Corporation, have any preferential rights to
purchase or subscribe to any shares of any class of capital stock of the
Corporation, or any notes, debentures, bonds, warrants, options or other
securities of the Corporation, now or hereafter authorized.
ARTICLE XI
Any amendment to this Certificate of Incorporation, any merger or
consolidation of this Corporation with or into another corporation or
joint-stock or other association, any sale, lease or exchange of all or
substantially all of the assets of this corporation, any dissolution of this
Corporation or any alteration of the powers, preference or special rights of the
shares of any class of the capital stock of this corporation shall require the
affirmative vote of the holders of at least two-thirds of the outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, the undersigned incorporator of the Corporation hereby
certifies that the facts herein stated are true, and accordingly has signed this
instrument this 25th day of November, 1987.
/s/ G. Russell Hortenson
-------------------------------------
G. Russell Hortenson
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 12/28/1990
903625268 - 2144950
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
AMTECH CREDIT CORPORATION
Pursuant to the provisions of Section 242 of the General Corporation
Law of Delaware, the undersigned corporation adopts the following
Certificate of Amendment to the Certificate of Incorporation of Amtech
Credit Corporation:
I
The following amendment to the Certificates of Incorporation was
duly adopted in accordance with Sections 242 and 228 of the General
Corporation Law of the State of Delaware by unanimous Consent of all
shareholders of the corporation. The amendment alters Article I of the
Certificate of Incorporation, and the full text of Article I as amended is
as follows:
Article I
The name of the corporation is AMGT Corporation.
II
The number of shares of voting stock of the corporation outstanding
at the time of such adoption was:
One Thousand
III
The holder of all of the shares of voting stock outstanding and
entitled to vote on said amendments has signed a Consent adopting such
amendment.
DATED: December 21, 1990.
AMTECH CREDIT CORPORATION
By: /s/ Steve M. York
---------------------------
Steve M. York
President and Treasurer
By: /s/ Cheryl Smith
---------------------------
Cheryl Smith
Assistant Secretary
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 03/28/1996
960090412 -2144950
CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED
OFFICE AND REGISTERED AGENT
OF
AMGT CORPORATION
The Board of Directors of: AMGT CORPORATION a Corporation of the State of
Delaware, on this 1st day of March , A.D. 1996, do hereby resolve and order that
the location of the Registered Office of this Corporation within this State be,
and the same hereby is:
1013 Centre Road, in the City of Wilmington, in the County of New Castle,
Delaware, 19805.
The name of the Registered Agent therein and in charge thereof upon whom
process against the Corporation may be served, is:
CORPORATION SERVICE COMPANY.
AMGT CORPORATION a Corporation of the State of Delaware, does hereby
certify that foregoing is a true copy of a resolution adopted by the Board of
Directors at a meeting held as herein stated.
IN WITNESS WHEREOF, said corporation has caused this Certificate to be
signed by Ronald A. Woessner, Vice President this 18th day of March A.D. 1996.
AMGT Corporation
/s/ Ronald A. Woessner
---------------------------
Authorized Officer
Ronald A. Woessner
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 08/13/2001
010396201-2144950
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
AMGT CORPORATION
AMGT Corporation, a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware (the "Corporation"),
does hereby certify:
FIRST: That by written consent of the Board of Directors dated as of
August 13, 2001, a resolution was duly adopted setting forth a
proposed amendment to the Certificate of Incorporation of the
Corporation declaring said amendment to be advisable and calling for
consideration of said proposed amendment by the sole Stockholder of
the Corporation. The resolution setting forth the amendment is as
follows:
RESOLVED, that it is hereby proposed that Article FIRST of the
Certificate of Incorporation of the Corporation be amended so that
the same as amendment would read as follows:
"FIRST. The name of the Corporation is TransCore Partners,
Inc."
SECOND: That thereafter, pursuant to the resolution of the Board of
Directors, the proposed amendment was approved by the sole
Stockholder of the Corporation by written consent dated as of August
13, 2001.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Sections 242 and 228 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
executed as of this 13 day of August, 2001.
AMGT CORPORATION
By: /s/ Claudia F. Wiegand
-----------------------
Name: Claudia F. Wiegand
Title: Vice President