Exhibit 3.1
PAGE 1
State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF
"NORTH AMERICAN VAN LINES, INC." AS RECEIVED AND FILED IN THIS OFFICE.
THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:
CERTIFICATE OF INCORPORATION, FILED THE TWENTIETH DAY OF AUGUST, A.D.
1993, AT 4 O'CLOCK P.M.
CERTIFICATE OF AMENDMENT, FILED THE TWELFTH DAY OF NOVEMBER, A.D. 1993, AT
9 O'CLOCK A.M.
RESTATED CERTIFICATE, FILED THE TWELFTH DAY OF NOVEMBER, A.D. 1993, AT
9:05 O'CLOCK A.M.
CERTIFICATE OF DESIGNATION, FILED THE TWENTY-THIRD DAY OF DECEMBER, A.D.
1993, AT 1 O'CLOCK P.M.
CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "NAVL, INC." TO "NORTH
AMERICAN VAN LINES, INC.", FILED THE THIRTY-FIRST DAY OF DECEMBER, A.D. 1993, AT
8:31 O'CLOCK A.M.
RESTATED CERTIFICATE, FILED THE TWELFTH DAY OF SEPTEMBER, A.D. 1996, AT 10
O'CLOCK A.M.
CERTIFICATE OF OWNERSHIP, FILED THE THIRTIETH DAY OF MARCH, A.D. 1998, AT
12 O'CLOCK P.M.
[SEAL] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
2348453 8100H AUTHENTICATION: 0056973
991461081 DATE: 11-01-99
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:00 PM 08/20/1993
932325182 -- 2348453
CERTIFICATE OF INCORPORATION
OF
NAVL, INC.
FIRST: The name of the Corporation is NAVL, Inc. (hereinafter the
"Corporation").
SECOND: 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.
THIRD: 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 as set forth in Title 8 of the Delaware Code (the
"GCL"), including without in any way limiting the generality of the foregoing,
to provide or arrange for the provision of transportation services by motor
carrier or otherwise.
FOURTH: The Corporation shall have authority to issue 20,000 shares of
capital stock, divided as follows among the classes set out below:
1. 10,000 shares of non-voting Preferred Stock, Series A (par value
$100.00) to have such preferences, limitations and relative rights, up to
the full extent permitted by law, as may be prescribed by appropriate
action of the Board of Directors of the Corporation in an amendment to
these Articles of Incorporation prior to the issuance of any such shares;
and
2. 10,000 shares of Common Stock (par value $1.00 per share) each of which
shall be entitled to one vote on all matters and to receive the net assets
of the Corporation upon liquidation.
FIFTH: No holder of any class of capital stock of the Corporation shall
have any preemptive right to subscribe to or purchase (i) any shares of capital
stock of the Corporation, (ii) any securities convertible into such shares, or
(iii) any options, warrants or rights to purchase such shares or securities
convertible into such shares.
SIXTH: The name and mailing address of the Sole Incorporator is as
follows:
Name Mailing Address
- ---- ---------------
Deborah M. Reusch P.O. Box 636
Wilmington, DE 19899
SEVENTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(1) The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors.
(2) The directors shall have concurrent power with the stockholders
to make, alter, amend, change, add to or repeal the By-laws of the
Corporation.
(3) The number of directors of the Corporation shall be three,
except as otherwise from time to time fixed by, or in the manner provided
in, the By-laws of the Corporation. Election of directors need not be by
written ballot unless the By-laws so provide.
(4) No director shall be personally liable to the Corporation or any
of 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) pursuant to Section 174 of the Delaware
General Corporation Law or (iv) for any transaction from which the
director derived an improper personal benefit. Any repeal or modification
of this Article SEVENTH 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 with respect to acts
or omissions occurring prior to such repeal or modification.
(5) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered
to exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation, subject, nevertheless, to the
provisions of the GCL, this Certificate of Incorporation, and any By-laws
adopted by the stockholders; provided, however, that no By-laws hereafter
adopted by the stockholders shall invalidate any prior act of the
directors which would have been valid if such By-laws had not been
adopted.
EIGHTH: Meetings of stockholders may be held within or without the State
of Delaware, as the By-laws may provide. The books of the Corporation may be
kept (subject to any provision contained in the GCL) 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 By-laws of the Corporation.
NINTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
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 this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of the GCL or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
the provisions of Section 279 of the GCL, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case
3
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 this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this 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 this Corporation, as the case may be,
and also on this Corporation.
TENTH: 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.
ELEVENTH: The names and mailing addresses of the individuals who are to
serve as directors of the Corporation until the first annual meeting of
stockholders or until their successors are elected and qualify are as follows:
Name Mailing Address
---- ---------------
Nancy S. Fleischman Three Commercial Place
Norfolk, VA 23510-2191
J. Gary Lane Three Commercial Place
Norfolk, VA 23510-2191
William A. Noell, Jr. Three Commercial Place
Norfolk, VA 23510-2191
I, THE UNDERSIGNED, being the Sole Incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the GCL, do 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
20th day of August, 1993.
/s/ Deborah M. Reusch
---------------------
Deborah M. Reusch
Sole Incorporator
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 11/12/1993
933165246 -- 2348453
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
NAVL, INC.
----------
Pursuant to Section 241 of the
General Corporation Law of the State of Delaware
----------
NAVL, Inc., a Delaware corporation (hereinafter called the "Corporation"),
hereby does certify as follows:
FIRST: Article FOURTH of the Corporation's Certificate of Incorporation
hereby is amended to read in its entirety as set forth below:
FOURTH: The Corporation shall have authority to issue 20,000 shares of
capital stock, divided as follows among the classes set out below:
1. 10,000 shares of non-voting Preferred Stock, Series A (par
value $100.00), to have such preferences, limitations and
relative rights, up to the full extent permitted by law, as
may be prescribed in one or more resolutions providing for the
issue of such stock adopted by the Board of Directors.
2. 10,000 shares of Common Stock (par value $1.00 per share)
each of which shall be entitled to one vote on all matters and
to receive the net assets of the Corporation upon liquidation.
SECOND: The foregoing amendment duly was adopted by the Board of
directors, at a time when the Corporation has not received any payment for
any stock, in accordance with Section 241 of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, NAVL, Inc. has caused this Certificate to be executed
in its corporate name this 10th day of November, 1993.
NAVL, Inc.
By /s/ William A. Noell, Jr.
----------------------------
William A. Noell, Jr.
Vice President
ATTEST
[SEAL]
/s/ Dezora M. Martin
- --------------------
Dezora M. Martin
Corporate Secretary
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:05 AM 11/12/1993
933165247 -- 2348453
RESTATED
CERTIFICATE OF INCORPORATION
OF
NAVL, INC.
----------
Pursuant to Section 245 of the
General Corporation Law of the State of Delaware
----------
[Original Certificate of Incorporation was filed on August 20, 1993]
FIRST: The name of the Corporation is NAVL, Inc. (hereinafter the
"Corporation").
SECOND: 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.
THIRD: 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 as set forth in Title 8 of the Delaware Code (the
"GCL"), including without in any way limiting the generality of the foregoing,
to provide or arrange for the provision of transportation services, by motor
carrier or otherwise.
FOURTH: The Corporation shall have authority to issue 20,000 shares of
capital stock, divided as follows among the classes set out below:
1. 10,000 shares of non-voting Preferred Stock, Series A (par value
$100.00), to have such preferences, limitations and relative rights, up to
the full extent permitted by law, as may be prescribed in one or more
resolutions providing for the issue of such stock adopted by the Board of
Directors.
2. 10,000 shares of Common Stock (par value $1.00 per share) each of which
shall be entitled to one vote on all matters and to receive the net assets
of the Corporation upon liquidation.
FIFTH: No holder of any class of capital stock of the Corporation shall
have any preemptive right to subscribe to or purchase (i) any shares of capital
stock of the Corporation, (ii) any securities convertible into such shares, or
(iii) any options, warrants or rights to purchase such shares or securities
convertible into such shares.
SIXTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
2
(1) The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors.
(2) The directors shall have concurrent power with the stockholders
to make, alter, amend, change, add to or repeal the By-laws of the
Corporation.
(3) The number of directors of the Corporation shall be three,
except as otherwise from time to time fixed by, or in the manner provided
in, the By-laws of the Corporation. Election of director's need not be by
written ballot unless the By-laws so provide.
(4) No director shall be personally liable to the Corporation or any
of 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) pursuant to Section 174 of the Delaware
General Corporation Law or (iv) for any transaction from which the
director derived an improper personal benefit. Any repeal or modification
of this Article SEVENTH 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 with respect to acts
or omissions occurring prior to such repeal or modification.
(5) In addition to the powers and authority hereinbefore or by
statue expressly conferred upon them, the directors are hereby empowered
to exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation, subject, nevertheless, to the
provisions of the GCL, this Certificate of Incorporation, and any By-laws
adopted by the stockholders; provided, however, that no By-laws hereafter
adopted by the stockholders shall invalidate any prior act of the
directors which would have been valid if such By-laws had not been
adopted.
SEVENTH: Meetings of stockholders may be held within or without the State
of Delaware, as the By-laws may provide. The books of the Corporation may be
kept (subject to any provision contained in the GCL) 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 By-laws of the Corporation.
EIGHTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
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 this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of the GCL or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
the provisions of Section 279 of the GCL, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number
3
representing three-fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this Corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of
this 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 this Corporation, as the case may be, and also on this
Corporation.
NINTH: 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.
TENTH: The names and mailing addresses of the individuals who are to serve
directors of the Corporation until the first annual meeting of stockholders or
until their successors are elected and qualify are as follows:
Name Mailing Address
---- ---------------
Nancy S. Fleischman Three Commercial Place
Norfolk, VA 23510-2191
J. Gary Lane Three Commercial Place
Norfolk, VA 23510-2191
William A. Noell, Jr. Three Commercial Place
Norfolk, VA 23510-2191
WE, THE UNDERSIGNED, being a Vice President and the Corporate Secretary of
NAVL, Inc., for the purpose of restating the Certificate of Incorporation
pursuant Section 245 of the GCL, hereby certify that (1) the foregoing Restated
Certificate of Incorporation duly was adopted in accordance with the provisions
of Section 245 of the GCL, with such exceptions as are permitted by the GCL,
and with such renumbering of Articles as results therefrom, (2) the foregoing
Restated Certificate of Incorporation only restates and integrates and does not
amend the provision of the Corporation's Certificate of Incorporation as
theretofore amended and supplemented and (3) there is no discrepancy between
those provisions and the provisions of this Restated Certificate of
Incorporation. We further hereby declare and certify that this is our act and
deed and the facts herein stated are true, and accordingly have hereunto set our
hands this 11th day of November, 1993.
By /s/ William A. Noell, Jr.
----------------------------
William A. Noell, Jr.
Vice President
ATTEST
[SEAL]
/s/ Dezora M. Martin
- --------------------
Dezora M. Martin
Corporate Secretary
2. Restriction on Transfer. No purchaser from the Corporation or other
holder may transfer, assign, hypothecate or otherwise alienate or attempt to
alienate shares - or direct or indirect interest or interests therein - of
Preferred unless, as may be more particularly provided in the By-laws or by
resolution of the Board of Directors, both the following conditions are met:
(a) that such purchaser or holder first shall have offered in
writing to sell such shares to the Corporation for a consideration equal
to the par value of the shares, plus an amount equal to all dividends
whether or not declared, that are accrued and unpaid to the date such
shares are sold to the Corporation; and
(b) the Corporation shall not have accepted or rejected the offer
within fifteen business days from the date of its receipt by the
Corporation or shall have declined to purchase such shares.
Certificates evidencing interests in shares of Preferred shall be legended
to reflect or to provide notice of this restriction and may be legended to
provide notice of other restrictions imposed by applicable securities laws.
3. Redemption; Purchases. Redemption. At any time or from time to time,
after January 1,1999 (or, if earlier, on and after the effective date of [a] a
resolution of the Board of Directors authorizing the sale or other disposition
of more than ten percent (10%) by value of the assets of the Corporation, or [b]
an agreement between and among the Corporation and holders of all the
then-outstanding shares of the Preferred), the Corporation may redeem the whole
or any part of the Preferred then outstanding at a fixed redemption price per
share of par value, plus an amount equal to all dividends, whether or not
declared, that are accrued and unpaid to the date of redemption. Unless
otherwise provided in the subscription or other contract between the Corporation
and any purchaser for the sale and purchase of the Preferred, any notice
required by law of a proposed redemption of Preferred shall be given at least
thirty days, and not more than ninety days, prior to the date fixed for such
redemption to each holder of record of Preferred to be redeemed at the address
then appearing on the books of the Corporation. In case of the redemption of a
part only of the Preferred at the time outstanding, the Corporation shall select
by lot or pro rata, as the Board of Directors may determine, the shares to be
redeemed.
On or at any time before the redemption date, unless the holders of the
Preferred shall waive such requirement, the Corporation shall deposit in trust,
for the account of holders of the shares to be redeemed, funds necessary for
such redemption with a bank or trust company in good standing, organized under
the laws of the United States of America or of the State of New York, and having
capital, surplus and undivided profits aggregating at least $50,000,000,
designated in such notice of redemption. Upon making such deposit in trust,
whether or not the certificates therefor shall have been surrendered for
cancellation, all shares with respect to the redemption of which such deposit
shall have been made and such notice completed shall be deemed, from and after
the date fixed for redemption, no longer outstanding for any purpose, and all
rights with respect to such shares thereupon shall cease and terminate, except
only the right of the holders of the certificates for such shares to receive,
only out of the funds so deposited in trust, from and after the date of such
deposit, the amount payable upon the redemption thereof, without interest.
Purchases. Subject to the limitations, if any, contained in the
Certificate of Incorporation, the Corporation also may from time to time
purchase or otherwise acquire
4. Liquidation. The fixed liquidation price for each share of Preferred,
both on voluntary and involuntary liquidation or dissolution, shall be its par
value, plus an amount equal to all dividends, whether or not declared, that are
accrued and unpaid to the date of payment of the liquidation price. No payment
shall be made in respect of common stock on voluntary or involuntary liquidation
or dissolution unless and until all amounts payable on the Preferred as
aforesaid shall have been paid. The merger, consolidation or other similar form
or type of association between or among the Corporation and one or more other
entities shall not be deemed a liquidation or dissolution of the Corporation for
these purposes.
5. Voting Rights. The holders of shares of Preferred shall not be entitled
to vote on any matter, provided, however, that without the favorable vote of the
holders of more than two thirds of the outstanding shares of the Preferred
voting as a separate class at a meeting called in accordance with the provisions
of the General Corporation Law of the State of Delaware and the By-laws of the
Corporation, the Corporation shall not take any of the following actions:
(i) increase the number of authorized shares of the Preferred or
alter, change or amend any of the provisions of (a) the Certificate of
Incorporation of the Corporation or of any certificate amendatory thereof
or supplementary thereto or (b) the By-laws of the Corporation, so as to
affect materially and adversely the preferences, limitations, voting
rights or relative or other rights of any nature of the holders of
Preferred; or
(ii) authorize, create or issue a new class, or change a class with
subordinate and inferior rights into a class, of shares having rights and
preferences prior or equal to the rights and preferences of the holders of
shares of the Preferred."
IN WITNESS WHEREOF, the undersigned William A. Noell, Jr. and Dezora M.
Martin have made this certificate under the seal of NAVL, Inc. and have signed
as Vice President and the Secretary, respectively, of the Corporation this 23rd
day of December 1993.
/s/ William A. Noell
--------------------
Vice President
[Corporate Seal]
Attest:
/s/ Dezora M. Martin
- --------------------
Secretary
CERTIFICATE OF DESIGNATION EXHIBIT A
OF THE TO BOARD
PREFERRED STOCK, SERIES A (NON-VOTING) RESOLUTION
OF
NAVL, INC.
1. Dividends. Holders of Preferred Stock, Series A (par value, $100 per
share)(the Preferred), shall be entitled, commencing January 1, 1994, to receive
cumulative dividends at the annual rate of $7.00 per share, payable in arrears,
one quarter in each of March, June, September and December in each year, on such
specific date during such months as from time to time may be determined and
declared by the Board of Directors. If the required dividend payment for any
quarter shall not have been paid in full within five business days after the end
of such quarter, the annual rate of dividends on the Preferred shall be
increased to $9.00 per share for the period from the end of such quarter to the
date when payment of all dividends on the Preferred shall be fully current.
Dividends in arrears (computed on the basis of a 360-day year), shall not bear
interest. In addition so any other restriction imposed by law on the declaration
or payment of dividends on common stock, no dividend may be declared or paid on
common stock unless (1) simultaneously therewith there shall have been declared
and paid, or set apart for payment, all quarterly cash dividends, accrued and
unpaid on the Preferred, to and including the last day of the March, June,
September or December coincident with or next following the date of such
declaration or payment of such dividend on common stock, and (2) so long as any
Preferred is outstanding, the aggregate of all dividends declared or paid on
common stock shall as no time exceed the aggregate of all dividends declared and
paid, or set apart for payment, to holders of the Preferred.
2. Restriction on Transfer. No purchaser from the Corporation or other
holder may transfer, assign, hypothecate or otherwise alienate or attempt to
alienate shares - or direct or indirect interest or interests therein - of
Preferred unless, as may be more particularly provided in the By-laws or by
resolution of the Board of Directors, both the following conditions are met:
(a) that such purchaser or holder first shall have offered in
writing to sell such shares to the Corporation for a consideration equal
to the par value of the shares, plus an amount equal to all dividends,
whether or not declared, that are accrued and unpaid to the date such
share are sold so the Corporation; and
(b) the Corporation shall not have accepted or rejected the offer
within fifteen business days from the date of its receipt by the
Corporation or shall have declined to purchase such shares.
Certificates evidencing interests in shares of Preferred shall be legended
to reflect or to provide notice of this restriction and may be legended to
provide notice of other restrictions imposed by applicable securities laws.
3. Redemption; Purchases. Redemption. At any time or from time to time,
after January 1,1999 (or, if earlier, on and after the effective date of [a] a
resolution of the Board of Directors authorizing the sale or other disposition
of more than ten percent (10%) by value of the assets of the Corporation, or [b]
an agreement between and among the Corporation and holders of all the
then-outstanding shares of the Preferred), the Corporation may redeem the whole
or any part of the Preferred then outstanding at a fixed redemption price per
share of par value, plus an amount equal to all dividends, whether or not
declared, that are accrued and unpaid to the date of redemption. Unless
otherwise provided in the subscription or other contract between the Corporation
and any purchaser for the sale and purchase of the Preferred, any notice
required by law of a proposed redemption of Preferred shall be given at least
thirty days, and not more than ninety days, prior to the date fixed for such
redemption to each holder of record of Preferred to be redeemed at the address
then appearing on the books of the Corporation. In case of the redemption of a
part only of the Preferred at the time outstanding, the Corporation shall select
by lot or pro rata, as the Board of Directors may determine, the shares to be
redeemed.
On or at any time before the redemption date, unless the holders of the
Preferred shall waive such requirement, the Corporation shall deposit in trust,
for the account of holders of the shares to be redeemed, funds necessary for
such redemption with a bank or trust company in good standing, organized under
the laws of the United States of America or of the State of New York, and having
capital, surplus and undivided profits aggregating at least $50,000,000,
designated in such notion of redemption. Upon making such deposit in trust,
whether or not the certificates therefor shall have been surrendered for
cancellation, all shares with respect to the redemption of which such deposit
shall have been made and such notice completed shall be deemed, from and after
the date fixed for redemption, no longer outstanding for any purpose, and all
rights with respect to such shares thereupon shall cease and terminate, except
only the right of the holders of the certificates for such shares to receive,
only out of the funds so deposited in trust, from and after the date of such
deposit, the amount payable upon the redemption thereof, without interest.
Purchases. Subject to the limitations, if any, contained in the
Certificate of Incorporation, the Corporation also may from time so time
purchase or otherwise acquire for a consideration shares of Preferred.
4. Liquidation. The fixed liquidation price for each share of Preferred,
both on voluntary and involuntary liquidation or dissolution, shall be its par
value, plus an amount equal to all dividends, whether or not declared, that are
accrued and unpaid to the date of payment of the liquidation price. No payment
shall be made in respect of common stock on voluntary or involuntary liquidation
or dissolution unless and until all amounts payable on the Preferred as
aforesaid shall have been paid. The merger, consolidation or other similar form
or type of association between or among the Corporation and one or more other
entities shall not be deemed a liquidation or dissolution of the Corporation for
these purposes.
5. Voting Rights. The holders of shares of Preferred shall not be entitled
to vote on any matter, provided, however, that without the favorable vote of the
holders of more than two thirds of the outstanding shares of the Preferred
voting as a separate class at a meeting called in accordance with the provisions
of the General Corporation Law of the State of Delaware and the By-laws of the
Corporation, the Corporation shall not take any of the following actions:
(i) increase the number of authorized shares of the Preferred or
alter, change or amend any of the provisions of (a) the Certificate of
Incorporation of the Corporation or of any certificate amendatory thereof
or supplementary thereto or (b) the By-laws of the Corporation, so as to
affect materially and adversely the preferences, limitations, voting
rights or relative or other rights of any nature of the holders of
Preferred; or
(ii) authorize, create or issue a new class, or change a class with
subordinate and inferior rights into a class, of shares having rights and
preferences prior or equal to the rights and preferences of the holders of
shares of the Preferred.
END OF EXHIBIT A
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 08:31 AM 12/31/1993
933655035 -- 2348453
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
NAVL, INC.
----------
Pursuant to Section 242 of the
General Corporation Law of the State of Delaware
----------
NAVL, Inc., a Delaware corporation (hereinafter called the "Corporation"),
hereby does certify as follows:
FIRST: Article FIRST of the Corporation's Certificate of Incorporation
hereby is amended to read in its entirety as set forth below:
FIRST: The name of the Corporation is North American Van Lines, Inc.
(hereinafter the "Corporation").
SECOND: The foregoing amendment duly was adopted by the Board of
Directors, and by the sole stockholder entitled to vote thereon, in the
manner permitted by and with the effects provided in, respectively,
Section 141(f) and Section 228 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, NAVL, Inc. has caused this Certificate to be executed
in its corporate name this 27th day of December, 1993.
NAVL, Inc.
By /s/ William A. Noell, Jr.
----------------------------
William A. Noell, Jr.
Vice President
ATTEST
[SEAL]
/s/ Dezora M. Martin
- --------------------
Dezora M. Martin
Corporate Secretary
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 10:00 AM 09/12/1996
960265038 -- 2348453
RESTATED
CERTIFICATE OF INCORPORATION
OF
North American Van Lines, Inc.
----------
Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware
----------
1. The name of the Corporation is North American Van Lines, Inc. (the
"Corporation").
2. The Corporation was incorporated in Delaware on August 20, 1993, under
the name "NAVL, Inc." and, effective December 31, 1993, caused its name to be
changed to "North American Van Lines, Inc."
3. The provisions of the Corporation's Articles of Incorporation hereby
ore amended and restated to read in their entirety as set forth below. Said
amendment duly (i) was adopted by the Board of Directors and (ii) recommended to
the stockholders by unanimous written consent, effective July 19, 1996, in the
manner provided by Section 141 of the General Corporation Law of the State of
Delaware (GCL) and such amendment duly was adopted (i) by the stockholders of
the Corporation and (ii) as required by the applicable Certificate of
Designation, by more than two thirds of the holders of the outstanding shares of
the Preferred Stock, Series A, voting as a separate class - both, by unanimous
written consent, effective August 23, 1996, in the manner provided by Section
228 of the GCL.
[Text of Restated Articles]
FIRST: The name of the Corporation is North American Van Lines, Inc.
(hereinafter the "Corporation").
SECOND: 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.
THIRD: 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 as set forth in Title 8 of the Delaware Code (the
"GCL"), including without in any way limiting the generality of the foregoing,
to provide or arrange for the provision of transportation services by motor
carrier or otherwise.
FOURTH: The Corporation shall have authority to issue 20,000 shares of
capital stock, divided as follows among the classes set out below:
(1) 10,000 shares of non-voting Preferred Stock, Series A (par value,
$100.00 per share), to have the preferences, limitations and relative
rights set out below:
2
A. Dividends. Holders of Preferred Stock, Series A (par value, $100
per share)(the Preferred), shall be entitled, commencing January 1,
1994, to receive cumulative dividends at the annual rate of $7.00
per share, payable in arrears, one quarter in each of March, June,
September and December in each year, on such specific date during
such months as from time to time may be determined and declared by
the Board of Directors. If the required dividend payment for any
quarter shall not have been paid in full within five business days
after the end of such quarter, the annual rate of dividends on the
Preferred shall be increased to $9.00 per share for be period from
the end of such quarter to the date when payment of all dividends on
the Preferred shall be fully current. Dividends in arrears (computed
on the basis of a 360-day year) shall not bear interest. In addition
to any other restriction imposed by law on the declaration or
payment of dividends on common stock, no dividend may be declared or
paid on common stock unless simultaneously therewith there shall
have been declared and paid, or set part for payment, all quarterly
cash dividends, accrued and unpaid on the Preferred, to and
including the last day of March, June, September or December
coincident with or next following the date of such declaration or
payment of such dividend on common stock.
B. Restrictions on Transfer. No purchaser from the Corporation or
other holder may transfer, assign, hypothecate or otherwise alienate
or attempt to alienate shares - or direct or indirect interest or
interests therein - of Preferred unless, as may be more particularly
provided in the By-laws or by resolution of the Board of Directors,
both the following conditions are met:
(i) that such purchaser or holder first shall have offered in
writing to sell such shares to the Corporation for a consideration
equal to the par value of the shares, plus an amount equal to all
dividends, whether or not declared, that are accrued and unpaid to
the date such shares are sold to the Corporation; and
(ii) the Corporation shall not have accepted or rejected the
offer within fifteen business days from the date of its receipt by
the Corporation or shall have declined to purchase such shares.
Certificates evidencing interests in shares of Preferred shall be
legended to reflect or to provide notice of this restriction and may
be legended to provide notice of other restrictions imposed by
applicable securities laws.
C. Redemption; Purchases. Redemption. At any time or from time to
time, after January 1, 1999 (or, if earlier, on and after the
effective date of [a] a resolution of the Board of Directors
authorizing the sale or other disposition of more than ten percent
(10%) by value of the assets of the Corporation, or [b] an agreement
between and among the Corporation and holders of all the then-
outstanding shares of the Preferred), the Corporation may redeem the
whole or any part of the Preferred then outstanding at a fixed
redemption price per share of par value, plus an amount equal to all
dividends, whether or not declared, that are
3
accrued and unpaid to the date of redemption. Unless otherwise
provided in the subscription or other contract between the
Corporation and any purchaser for the sale and purchase of the
Preferred, any notice required by law of a proposed redemption of
Preferred shall be given at least thirty days, and not more than
ninety days, prior to the date fixed for such redemption to each
holder of record of Preferred to be redeemed at the address then
appearing on the books of the Corporation. In case of the redemption
of a part only of the Preferred at the time outstanding, the
Corporation shall select by lot or pro rata, as the Board of
Directors may determine, the shares to be redeemed.
On or at any time before the redemption date, unless the holders of
the Preferred shall waive such requirement, the Corporation shall
deposit in trust, for the account of holders of the shares to be
redeemed, funds necessary for such redemption with a bank or trust
company in good standing, organized under the laws of the United
States of America or of the State of New York, and having capital,
surplus and undivided profits aggregating at least $50,000,000,
designated in such notice of redemption. Upon making such deposit in
trust, whether or not the certificates therefor shall have been
surrendered for cancellation, all shares with respect to the
redemption of which such deposit shall have been made and such
notice completed shall be deemed, from and after the date fixed for
redemption, no longer outstanding for any purpose, and all rights
with respect to such shares thereupon shall cease and terminate,
except only the right of the holders of the certificates for such
shares to receive, only out of the funds so deposited in trust, from
and after the date of such deposit, the amount payable upon the
redemption thereof, without interest.
Purchases. Subject to the limitations, if any, contained in the
Certificate of Incorporation, the Corporation also may from time to
time purchase or otherwise acquire for a consideration shares of
Preferred.
D. Liquidation. The fixed liquidation price for each share of
Preferred, both on voluntary and involuntary liquidation or
dissolution, shall be its par value, plus an amount equal to all
dividends, whether or not declared, that are accrued and unpaid to
the date of payment of the liquidation price. No payment shall be
made in respect of common stock on voluntary or involuntary
liquidation or dissolution unless and until all amounts payable on
the Preferred as aforesaid shall have been paid. The merger,
consolidation or other similar form or type of association between
or among the Corporation and one or more other entities shall not be
deemed a liquidation or dissolution of the Corporation for these
purposes.
E. Voting Rights. The holders of shares of Preferred shall not be
entitled to vote on any matter, provided, however, that without the
favorable vote of the holders of more than two thirds of the
outstanding shares of the Preferred voting as a separate class at a
meeting called in accordance with the provisions of the General
Corporation Law of the State of Delaware and the By-laws of the
Corporation, the Corporation shall not take any of the following
actions:
(i) increase the number of authorized shares of the Preferred
or alter, change or amend any of the provisions of (a) the
Certificate of Incorporation of the
4
Corporation or of any certificate amendatory thereof or
supplementary thereto or (b) the By-laws of the Corporation, so as
to affect materially and adversely the preferences, limitations,
voting rights or relative or other rights of any nature of the
holders of Preferred; or
(ii) authorize, create or issue a new class, or change a class
with subordinate and inferior rights into a class, of shares having
rights and preferences prior or equal to the rights and preferences
of the holders of shares of the Preferred.
(2) 10,000 shares of Common Stock (par value, $1.00 per share) each of
which shall be entitled to one vote on all matters and, subject to the
rights of the non-voting Preferred Stock, Series A, to receive the net
assets of the Corporation upon liquidation.
FIFTH: No holder of any class of capital stock of the Corporation shall
have any preemptive right to subscribe to or purchase (i) any shares of capital
stock of the Corporation, (ii) any securities convertible into such shares, or
(iii) any options, warrants or rights to purchase such shares or securities
convertible into such shares.
SIXTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(1) The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors.
(2) The directors shall have concurrent power with the stockholders to
make, alter, amend, change, add to or repeal the By-laws of the
Corporation.
(3) The number of directors of the Corporation shall be three, except as
otherwise from time to time fixed by, or in the manner provided in, the
By-laws of the Corporation. Election of directors need not be by written
ballot unless the By-laws so provide.
(4) No director shall be personally liable so the Corporation or any of
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 so 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) pursuant to Section 174 of the Delaware
General Corporation Law or (iv) for any transaction from which the
director derived an improper personal benefit. Any repeal or modification
of this Article SIXTH 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 with respect to acts
or omissions occurring prior to such repeal or modification.
(5) In addition to the powers and authority hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation, subject, nevertheless, to the
provisions of the GCL, this Certificate of Incorporation, and any By-laws
adopted by the stockholders; provided, however, that no By-laws hereafter
adopted by the
5
stockholders shall invalidate any prior act of the directors which would
have been valid if such By-laws had not been adopted.
SEVENTH: Meetings of stockholders may be held within or without the State
of Delaware, as the By-laws may provide. The books of the Corporation may be
kept (subject to any provision contained in the GCL) 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 By-laws of the Corporation.
EIGHTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
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 this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of the GCL or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
the provisions of Section 279 of the GCL, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
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 this Corporation, as the case may be, agree so any compromise or
arrangement and to any reorganization of this 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 this Corporation, as the case
may be, and also on this Corporation.
NINTH: 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.
[End of Text of Restated Articles]
IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate
of Incorporation to be executed in its corporate name this 4th day of September
1996, by the undersigned authorized officer. NORTH AMERICAN VAN LINES, INC.
/s/ R. Alan Brogan
-------------------------------------
R. Alan Brogan
President and Chief Executive Officer
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 12:00 PM 03/30/1998
981121177 -- 2348453
CERTIFICATE OF OWNERSHIP AND MERGER
Merging
NA ACQUISITION CORPORATION
Into
NORTH AMERICAN VAN LINES, INC
NA ACQUISITION CORPORATION (hereinafter referred to as the
"Corporation"), a corporation organized and existing under the laws of the State
of Delaware, HEREBY CERTIFIES
FIRST That the Corporation was incorporated on December 19, 1997
pursuant to the General Corporation Law of the State of Delaware (the "DGCL")
under the name NA Acquisition Corporation
SECOND That the Corporation is the owner of all of the issued and
outstanding shares of stock of North American Van Lines, Inc, a Delaware
corporation ("NAVL") incorporated pursuant to the DGCL on August 20, 1993 under
the name NAVL, Inc
THIRD That the following resolutions of the Corporation, dated as of
March 30, 1998, providing for the Corporation to be merged with and into NAVL,
with NAVL continuing as the surviving corporation (the "Surviving Corporation")
of the Merger (the "Merger"), were adopted by the Board of Directors of the
Corporation pursuant to a unanimous written consent adopted on the date hereof
Merger
RESOLVED, that the form, terms and provisions of the Certificate of
Ownership and Merger (the "Certificate of Merger"), in the form attached
to these resolutions as Exhibit A, merging the Corporation with and into
NAVL, with NAVL as the Surviving Corporation in the Merger, be, and they
hereby are, approved;
RESOLVED FURTHER, that the directors of the Corporation shall be the
directors of NAVL as the Surviving Corporation in the Merger, and each of
the directors of NAVL immediately prior to the effective time of the
Merger (the "Effective Time") shall be removed from office at the
Effective Time, and Charles P. Pieper shall be Chairman of the Board of
Directors of NAVL as the Surviving Corporation in the Merger;
RESOLVED FURTHER, that the officers of NAVL prior to the Effective
Time (other than any such officer who is an employee of Norfolk Southern
Corporation who shall be removed from his respective office(s) at the
Effective Time) shall continue as officers of NAVL as the Surviving
Corporation in the Merger, except that R Barry Uber shall be President and
Chief Executive Officer and Kevin J. Conway shall be a Vice President of
NAVL as the Surviving Corporation in the Merger.
RESOLVED FURTHER, that the Certificate of Incorporation of the
Corporation, as amended, as set forth in Exhibit B attached to these
resolutions, shall be the Certificate of Incorporation of the Surviving
Corporation;
RESOLVED FURTHER, that the By-Laws of the Corporation shall become
the By-Laws of the Surviving Corporation;
RESOLVED FURTHER, that the name of the Surviving Corporation shall
be "North American Van Lines, Inc.".
RESOLVED FURTHER, that at the Effective Time each share of common
stock and each share of preferred stock of NAVL issued and outstanding
immediately prior to the Effective Time shall be canceled.
RESOLVED FURTHER, that at the Effective Time each share of common
stock of the Corporation issued and outstanding immediately prior to the
Effective Time shall be converted into one share of issued and outstanding
common stock of the Surviving Corporation, and
RESOLVED FURTHER, that the proper officers of the Corporation be,
and each of them hereby is, authorized and directed on behalf of the
Corporation to execute, acknowledge and file the Certificate of Merger
with the Secretary of State of the State of Delaware in accordance with
Section 253 of the DGCL.
2
FOURTH That the Merger has been approved on the date hereof by the
written consent of the holder of all of the issued and outstanding shares of
common stock of the Corporation, in accordance with Section 228 of the DGCL.
FIFTH Notwithstanding anything to the contrary, the Merger may be
terminated and abandoned by the Board of Directors of the Corporation at any
time prior to the filing of this Certificate
3
IN WITNESS WHEREOF, NA ACQUISITION CORPORATION has caused this
Certificate to be executed by its an officer thereunto duly authorized this 30th
day of March 1998
NA ACQUISITION CORPORATION
By /s/ Kevin J. Conway
----------------------
Name: Kevin J. Conway
Title: Vice President
4
Exhibit A
CERTIFICATE OF OWNERSHIP AND MERGER
Merging
NA ACQUISITION CORPORATION
Into
NORTH AMERICAN VAN LINES, INC
NA ACQUISITION CORPORATION (hereinafter referred to as the
"Corporation"), a corporation organized and existing under the laws of the State
of Delaware, HEREBY CERTIFIES
FIRST That the Corporation was incorporated on December 19, 1997
pursuant to the General Corporation Law of the State of Delaware (the "DGCL")
under the name NA Acquisition Corporation
SECOND That the Corporation is the owner of all of the issued and
outstanding shares of stock of North American Van Lines, Inc. a Delaware
corporation ("NAVL") incorporated pursuant to the DGCL on August 20, 1993 under
the name NAVL, Inc.
THIRD That the following resolutions of the Corporation, dated as of
March 30, 1998, providing for the Corporation to be merged with and into NAVL,
with NAVL continuing as the surviving corporation (the "Surviving Corporation")
of the Merger (the "Merger"), were adopted by the Board of Directors of the
Corporation pursuant to a unanimous written consent adopted on the date hereof:
Merger
RESOLVED, that the form, terms and provisions of the Certificate of
Ownership and Merger (the "Certificate of Merger"), in the form attached
to these resolutions as Exhibit A, merging the Corporation with and into
NAVL, with NAVL as the Surviving Corporation in the Merger, be, and they
hereby are, approved.
RESOLVED FURTHER, that the directors of the Corporation shall be the
directors of NAVL as the Surviving Corporation in the Merger, and each of
the directors of NAVL, immediately prior to the effective time of the
Merger (the "Effective Time") shall be removed from office at the
Effective Time, and Charles P. Pieper shall be Chairman of the Board of
Directors of NAVL as the Surviving Corporation in the Merger;
RESOLVED FURTHER, that the officers of NAVL prior to the Effective
Time (other than any such officer who is an employee of Norfolk Southern
Corporation who shall be removed from his respective office(s) at the
Effective Time) shall continue as officers of NAVL as the Surviving
Corporation in the Merger, except that R Barry Uber shall be President and
Chief Executive Officer and Kevin J. Conway shall be a Vice President of
NAVL as the Surviving Corporation in the Merger;
RESOLVED FURTHER, that the Certificate of Incorporation of the
Corporation, as amended, as set forth in Exhibit B attached to these
resolutions, shall be the Certificate of Incorporation of the Surviving
Corporation;
RESOLVED FURTHER, that the By-Laws of the Corporation shall become
the By-Laws of the Surviving Corporation;
RESOLVED FURTHER, that the name of the Surviving Corporation shall
be "North American Van Lines, Inc.";
RESOLVED FURTHER, that at the Effective Time each share of common
stock and each share of preferred stock of NAVL issued and outstanding
immediately prior to the Effective Time shall be canceled;
RESOLVED FURTHER, that at the Effective Time each share of common
stock of the Corporation issued and outstanding immediately prior to the
Effective Time shall be converted into one share of issued and outstanding
common stock of the Surviving Corporation; and
RESOLVED FURTHER, that the proper officers of the Corporation be,
and each of them hereby is, authorized and directed on behalf of the
Corporation to execute, acknowledge and file the Certificate of Merger
with the Secretary of State of the State of Delaware in accordance with
Section 253 of the DGCL
2
FOURTH That the Merger has been approved on the date hereof by the
written consent of the holder of all of the issued and outstanding shares of
common stock of the Corporation, in accordance with Section 228 of the DGCL
FIFTH Notwithstanding anything to the contrary, the Merger may be
terminated and abandoned by the Board of Directors of the Corporation at any
time prior to the filing of this Certificate
3
IN WITNESS WHEREOF, NA ACQUISITION CORPORATION has caused this
Certificate to be executed by its an officer thereunto duly authorized this 30th
day of March 1998
NA ACQUISITION CORPORATION
By: Kevin J. Conway
----------------------
Name: Kevin J. Conway
Title: Vice President
4
Exhibit B
RESTATED
CERTIFICATE OF INCORPORATION
OF
NORTH AMERICAN VAN LINES, INC
FIRST: The name of the Corporation is North American Van Lines, Inc
SECOND: The Corporation's registered office in the State of Delaware
is at Corporation Trust Center, 1209 Orange Street in the City of Wilmington,
County of New Castle. The name of its registered agent at such address is The
Corporation Trust Company
THIRD: The nature of the business of the Corporation and as purpose
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of Delaware
FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is 1,000 shares of Common Stock, par value $.01
per share
FIFTH: The following provisions are inserted for the management of
the business and for the conduct of the affairs of the Corporation and for the
purpose of creating, defining, limiting and regulating the powers of the
Corporation and its directors and stockholders:
(a) The number of directors of the Corporation shall be fixed and
may be altered from time to time in the manner provided in the By-Laws,
and vacancies in the Board of Directors and newly created directorships
resulting from any increase in the authorized number of directors may be
filled, and directors may be removed, as provided in the By-Laws
(b) The election of directors may be conducted in any manner
approved by the stockholders at the time when the election is held and
need not be by ballot
(c) All corporate powers and authority of the Corporation (except as
at the time otherwise provided by law, by this Certificate of
Incorporation or by the By-Laws) shall be vested in and exercised by the
Board of Directors.
(d) The Board of Directors shall have the power without the assent
or vote of the stockholders to adopt, amend, alter or repeal the By-Laws
of the
Corporation, except to the extent that the By-Laws or this Certificate of
Incorporation otherwise provide
(e) No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of his or
her fiduciary duty as a director, provided that nothing contained in this
Certificate of Incorporation shall eliminate or limit the liability of a
director (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
the law, (iii) under Section 174 of the General Corporation Law of the
State of Delaware or (iv) for any transaction from which the director
derived an improper personal benefit
SIXTH: The Corporation reserves the right to amend or repeal any
provision contained in this Certificate of Incorporation in the manner now or
hereafter prescribed by the laws of the State of Delaware, and all rights herein
conferred upon stockholders or directors are granted subject to this
reservation.