EXHIBIT 3.9
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 10/25/2002
020636513 - 3579801
CERTIFICATE OF INCORPORATION
OF
TRANSCORE CREDIT CORPORATION
1. Name.
The name of the Corporation is TransCore Credit Corporation (the
"Corporation").
2. Registered Office and Agent.
The address of its registered office in the State of Delaware, is
Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle
County, Delaware 19801. The name of its registered agent at such address
is The Corporation Trust Company.
3. Corporate Purposes.
The nature of the businesses or purposes to be conducted or promoted by
the Corporation is to engage exclusively in the following activities:
(a) To act as facilitator of TransCore Holdings, Inc.'s (together with
its subsidiaries and affiliates "TransCore") surety bonds to be
issued in favor of entities in the US and Puerto Rico, primarily
responsible for transportation infrastructure or services, by
providing a dedicated first loss indemnity pool of capital available
for supporting the credit and underwriting of such surety bonds;
(b) To enter into one or more agreements relating to the provision of
first loss indemnification to the issuers of TransCore's surety
bonds;
(c) To execute, deliver and perform agreements evidencing, necessitated
by, or in connection with any and all of the foregoing;
(d) To issue capital stock as provided for herein; and
(e) To engage in any lawful act or activity and to exercise any powers
permitted to corporations organized under the General Corporation
Laws of the State of Delaware that are incidental to and necessary,
suitable or convenient for the accomplishment of the purposes
specified in clauses (a) through (d) above.
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4. Capital Stock.
(a) The total number of shares of all classes of stock which the
Corporation shall be authorized to issue is one thousand (1,000)
shares, consisting of one thousand (1,000) shares of Common Stock,
$1.00 par value.
(b) Except as otherwise expressly provided by law, all voting rights
shall be vested in the holders of the Common Stock, and at each
meeting of stockholders of the Corporation, each holder of Common
Stock shall be entitled to one vote for each share on each matter to
come before the meeting.
(c) Dividends may be declared upon and paid to the holders of the Common
Stock as the board of directors of the Corporation (the "Board of
Directors") shall determine.
5. Incorporator.
The name and mailing address of the sole incorporator is as follows:
Heather M. Jagaczewski
Stevens & Lee
One Glenhardie Corporate Center
1275 Drummers Lane
P.O. Box 236
Wayne, PA 19087-0236
6. Duration.
The Corporation is to have perpetual existence.
7. Powers of Board of Directors.
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized:
(a) To make, alter or repeal the Bylaws of the Corporation, subject to
any limitation set forth in the Bylaws or in this Certificate of
Incorporation.
(b) To set apart out of any of the funds of the Corporation available
for dividends a reserve or reserves for any proper purpose and to
abolish any such reserve in the manner in which it was created.
(c) By a majority of the whole Board, to designate one or more
committees, each committee to consist of one or more of the
Directors of the Corporation. The Board may designate one or more
Directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. The
Bylaws may provide that in the absence or disqualification of a
member of a committee, the member or members thereof present at any
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meeting and not disqualified from voting, whether or not he, she or
they constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of any
such absent or disqualified member. Any such committee, to the
extent provided in the resolution of the Board of Directors, or in
the Bylaws of the Corporation, shall have and may exercise all the
powers and authority of the Board of Directors in the management of
the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority
in reference to amending the certificate of incorporation, adopting
an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all
of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the Bylaws of the Corporation; and, unless
the resolution or Bylaws expressly so provide, no such committee
shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
(d) To exercise, in addition to the powers and authorities herein or by
law conferred upon it, any such powers and authorities and do all
such acts and things as may be exercised or done by the Corporation,
subject nevertheless, to the provisions of the laws of the State of
Delaware and of this Certificate of Incorporation and of the Bylaws
of the Corporation.
8. No Director Liability.
(a) To the fullest extent permitted by the General Corporation Law of
Delaware, including, without limitation, as provided in Section
102(b)(7) of the General Corporation Law of Delaware, as the same
exists or may hereafter be amended, a director of this corporation
shall not be personally liable to this corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director. If the General Corporation Law of Delaware is amended
after approval by the stockholders of this provision to authorize
corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of this
corporation shall be eliminated or limited to the fullest extent
permitted by the General Corporation Law of Delaware, as so amended.
Any repeal or modification of this Article 8 by the stockholders of
this corporation shall not adversely affect any right or protection
of a director of this corporation existing at the time of such
repeal or modification or with respect to events occurring prior to
such time.
(b) (i) Each person who was or is made a party or is threatened to be
made a party to or is 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 is or was a director or officer of the
Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust
or other enterprise, including service with
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respect to employee benefit plans, whether the basis of such
Proceeding is alleged action in an official capacity as such
director or officer or additionally in the case of another
corporation, as an employee or agent or in any other capacity
while serving as such director, officer, employee, or agent
shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the General Corporation Law
of the State of Delaware, 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 said law permitted
the Corporation to provide prior to such amendment), against
all expense, liability and loss (including attorneys' fees,
judgments, fines, other expenses and losses, amounts paid or
to be paid in settlement, and excise taxes or penalties
arising under the Employee Retirement Income Security Act of
1974) reasonably incurred or suffered by such person in
connection therewith and such indemnification shall continue
as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of his or her
heirs, executors and administrators; provided, however, that,
except as provided in paragraph (ii) hereof, the Corporation
shall indemnify any such person seeking indemnification in
connection with a Proceeding (or part thereof) initiated by
such person only if such Proceeding (or part thereof) was
authorized by the board of directors of the Corporation and
provided further that the Corporation shall not be obligated
to make any payment under this Article 8 unless and until the
Corporation has funds available to pay any amount under this
Article 8 and such amount shall be payable solely from the
proceeds of insurance maintained by the Corporation. The right
to indemnification conferred in this Article 8 shall be a
contract right and shall include the right to be paid by the
Corporation the expenses (including attorneys' fees) incurred
in defending any such Proceeding in advance of its final
disposition; provided, however, that the payment of such
expenses incurred by a director or officer 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 person
while a director or officer including, without limitation,
service to an employee benefit plan) in advance of the final
disposition of a Proceeding, shall be made only upon delivery
to the Corporation of an undertaking, which undertaking shall
itself be sufficient without the need for further evaluation
of any credit aspects of the undertaking or with respect to
such advancement, by or on behalf of such director or officer,
to repay all amounts so advanced if it shall ultimately be
determined by a final, non-appealable order of a court of
competent jurisdiction that such director or officer is not
entitled to be indemnified under this Article 8 or otherwise.
(ii) If a claim under paragraph (i) of this Article 8 is not paid
in full by the Corporation within sixty (60) days after a
written claim, together with reasonable evidence as to the
amount of such expenses, has been received by the Corporation,
except in the case of a claim for advancement of
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expenses (including attorneys' fees), in which case the
applicable period shall be twenty (20) days, the claimant may
at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall also be entitled to be
paid the expense, including attorneys' fees, of prosecuting
such claim. It shall be a defense to any such action, other
than an action brought to enforce a claim for expenses
(including attorneys' fees) incurred in defending any
Proceeding in advance of its final disposition where the
required undertaking, if any is required, has been tendered to
the Corporation, that the claimant has not met the standards
of conduct which make it permissible under the General
Corporation Law of the State of Delaware for the Corporation
to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its board of
directors or a committee thereof, independent legal counsel,
or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the
claimant is proper in the circumstances because he or she has
met the applicable standard of conduct set forth in the
General Corporation Law of the State of Delaware, nor an
actual determination by the Corporation (including its board
of directors or a committee thereof, independent legal
counsel, or its stockholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the
action or create a presumption that the claimant has not met
the applicable standard of conduct. 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 8 or otherwise shall be on the
Corporation.
(iii) The right to indemnification and the payment of expenses
incurred in defending a Proceeding in advance of its final
disposition conferred in this Article 8 shall not be exclusive
of any other right which any person may have or hereafter
acquire under any statute, provision of the certificate of
incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, it being understood that
such right to indemnification and advancement may be enhanced
but in no event shall be diminished in any way.
(iv) The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of
the Corporation or another corporation, partnership, joint
venture, trust or other enterprise against any such expense,
liability or loss, whether or not the Corporation would have
the power to indemnify such person against such expense,
liability or loss under the General Corporation Law of the
State of Delaware.
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9. Stockholder Meetings.
Meetings of the stockholders may be held within or outside of the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be
kept (subject to any provision contained in the statutes) outside the
State of Delaware at such place or places as may be designated from time
to time by the Board of Directors or in the Bylaws of the Corporation.
Elections of the directors need not be by written ballot unless the Bylaws
of the Corporation shall so provide.
10. Corporate Restrictions.
(a) The Corporation shall not, without the affirmative vote of 100% of
the members of the Board of Directors which vote of each such
director shall be in writing and given prior to such action, do any
of the following:
(i) Engage in any business or activity other than those set forth
in Article 3;
(ii) Incur any indebtedness, or assume or guaranty any indebtedness
of any other entity, other than (A) indebtedness arising from
salaries, fees and expenses to its professional advisors and
counsel, directors, officers and employees, (B) other
indebtedness on account of incidentals or services supplied or
furnished to the Corporation, and (C) in the ordinary course
of the Corporation's business as set forth in Article 3;
(iii) Dissolve or liquidate, in whole or in part, consolidate or
merge with or into any other entity or convey or transfer its
properties and assets, substantially as an entirety to any
entity other than as permitted by Article 3 or Article 11(b);
(iv) Institute proceedings to be adjudicated bankrupt or insolvent,
or consent to the institution of bankruptcy or insolvency
proceedings against it or file a petition seeking, or consent
to, reorganization, liquidation or relief under any applicable
federal or state law relating to bankruptcy, insolvency,
reorganization or dissolution, or consent to the appointment
of a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Corporation or a substantial
part of its property, or make an assignment for the benefit of
creditors, or admit in writing its inability to pay its debts
as they become due, or take corporate action in furtherance of
any such action;
(v) Repeal, amend or otherwise modify any provision of Article 3,
Article 7 or this Article 11 of this Certificate of
Incorporation; or
(vi) Increase or reclassify the capital stock of the Corporation or
issue any additional shares of capital stock of the
Corporation.
(b) The Corporation shall not take any corporate action in connection
with any merger of the Corporation into, or consolidation of the
Corporation with, any
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other person or entity, or convey, transfer or lease substantially
all of its assets as an entirety to any person or entity unless, the
following conditions are satisfied:
(i) The person or entity surviving such merger or consolidation or
the person or entity which acquires by conveyance, transfer or
lease substantially all of the assets of the Corporation (A)
is organized under the laws of the United States or any state
or the District of Columbia, (B) has immediately following
such merger or consolidation or transfer a net worth at least
equal to that of the Corporation immediately prior to such
merger, consolidation or transfer (or whose obligations are
guaranteed by a person or entity with a net worth at least
equal to that of the Corporation immediately prior to such
merger, consolidation or transfer), (C) expressly assumes all
of the obligations of the Corporation in connection with the
indebtedness of the Corporation and (D) shall have a
certificate of incorporation, or other organizational document
containing provisions substantially similar to the provisions
of Article 3, Article 7 and Article 11 of this Certificate of
Incorporation.
(ii) Immediately after giving effect to such merger, consolidation
or transfer, no default or event of default shall have
occurred and be continuing under any of the surety bonds
issued by TransCore.
(iii) Such merger, consolidation or transfer shall be authorized by
(A) the affirmative vote of 100% of the entire Board of
Directors and (B) the affirmative vote of the holders of
outstanding shares of capital stock of the Corporation
representing 100% of all the votes entitled to be cast
thereon.
(c) The Corporation shall maintain its separate corporate existence and
identity and shall take all steps necessary to make it apparent to
third parties that the Corporation is an entity with assets and
liabilities distinct from those of TransCore or any affiliate of
TransCore. The Corporation shall therefore, at all times: (i)
promptly reimburse TransCore or any affiliate of TransCore for all
reasonable expenses paid or incurred by TransCore, any affiliate or
their personnel for or on behalf of the Corporation, including
appropriate allocations of (x) salaries and benefits of those
personnel performing services for the Corporation and (y) office
space, overhead, computing and other expenses attributable to
services performed for the Corporation, if any; (ii) maintain the
Corporation's books, accounting records and other corporate
documents and records separate from those of TransCore or any other
entity; (iii) prepare any financial statements separately from those
of TransCore and request that TransCore include certain footnotes in
any consolidated financial statements issued by TransCore to the
effect that TransCore contributed certain assets to the Corporation;
(iv) maintain the Corporation's books of account and payroll (if
any) separate from those of TransCore or any affiliate of TransCore;
(v) act solely in its corporate name and through its own authorized
officers and agents, invoices and letterhead; (vi) separately manage
the Corporation's liabilities from those of TransCore or any
affiliate of TransCore and pay its own liabilities, including all
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administrative expenses, from its own separate assets; (vii) hold
itself out as an entity; separate from TransCore and any affiliate
of TransCore and any other person; (viii) not commingle its assets
with those of TransCore, any affiliate of TransCore or any other
person; (ix) not pledge its assets for the benefit of any other
person or make loans or advances to any other person and (x)
maintain adequate capital in light of its contemplated business
operations. The Corporation shall abide by all corporate
formalities, including the maintenance of current minute books, and
shall cause any financial statements to be prepared in accordance
with generally accepted accounting principles in a manner that
indicates the separate existence of the Corporation and its assets
and liabilities. Other than those liabilities associated with the
issuance of surety bonds on behalf of TransCore, the Corporation
shall not assume the liabilities of TransCore or any affiliate of
TransCore, and shall not guarantee the liabilities of TransCore or
any affiliate of TransCore.
11. Reservation of Right to Amend Certificate of Incorporation.
The Corporation reserves the right to amend, alter, change or repeal any
provision 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.
12. Initial Directors.
The majority of directors constituting the Board of Directors shall be
representatives of AIG Highstar Capital, L.P. until such time as no AIG
Highstar Payment Commitment (as such term is defined in the Irrevocable
Funding, Warrant Purchase and Reimbursement Agreement dated as of October,
2002, among AIG Highstar Capital, L.P., the Company, and TransCore
Holdings, Inc.) remains outstanding. The number of directors constituting
the Board of Directors shall be and the following persons shall serve as
the initial directors of the Corporation:
Name Address
David G. Sparks 8158 Adams Drive, Hummelstown, PA 17036
Christopher H. Lee 175 Water Street, 26th Fl., New York, NY 10038
Michael Walsh 175 Water Street, 26th Fl., New York, NY 10038
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I, THE UNDERSIGNED, for the purpose of forming a corporation under the
laws of the State of Delaware, do make, file and record this Certificate, and do
certify that the facts herein stated are true, and I have accordingly hereunto
set my hand this 15th day of October, 2002.
________________________________________
Heather M. Jagaczewski, Incorporator
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