EXHIBIT 3.3
CERTIFICATE OF INCORPORATION
OF
KEVCO DELAWARE, INC.
ARTICLE ONE
The name of the corporation is KEVCO DELAWARE, INC.
ARTICLE TWO
The corporation will have perpetual existence.
ARTICLE THREE
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.
ARTICLE FOUR
The aggregate number of shares of capital stock that the corporation will
have authority to issue is 1,000 shares of common stock, having a par value of
$.01 per share.
ARTICLE FIVE
No stockholder of the corporation will, solely by reason of holding shares
of any class, have any preemptive or preferential right to purchase or subscribe
for any shares of the corporation, now or hereafter to be authorized, or any
notes, debentures, bonds or other securities convertible into or carrying
warrants, rights or options to purchase shares of any class, now or hereafter to
be authorized, whether or not the issuance of any such shares or such notes,
debentures, bonds or other securities would adversely affect the dividend,
voting or any other rights of such stockholder. The board of directors may
authorize the issuance of, and the corporation may issue, shares of any class of
the corporation, or any notes, debentures, bonds or other securities convertible
into or carrying warrants, rights
or options to purchase any such shares, without offering any shares of any class
to the existing holders of any class of stock of the corporation.
ARTICLE SIX
At all meetings of stockholders, a quorum will be present if the holders of
a majority of the shares entitled to vote at the meeting are represented at the
meeting in person or by proxy.
ARTICLE SEVEN
Stockholders of the corporation will not have the right of cumulative
voting for the election of directors or for any other purpose.
ARTICLE EIGHT
The board of directors is expressly authorized to alter, amend or repeal
the bylaws of the corporation and to adopt new bylaws.
ARTICLE NINE
(a) (i) The corporation shall, to the fullest extent provided by the
Delaware General Corporation Law, as the same exists or may hereafter be
amended, indemnify each of its directors from and against any and all of the
expenses, liabilities or other matters referred to in or covered by such law;
(ii) The corporation may, to the fullest extent permitted by the
Delaware General Corporation Law, as the same exists or may hereafter be
amended, indemnify any officer, employee or agent of the corporation, from and
against any and all of the expenses, liabilities or other matters referred to in
or covered by such law.
(iii) Such indemnification may be provided pursuant to any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his director or officer capacity and as to action in another
capacity while holding such office, will continue as to a person who has ceased
to be a director, officer, employee or agent, and will inure to the benefit of
the heirs, executors and administrators of such a person.
(b) To the extent indemnified under the preceding paragraph (a), if a
claim is not paid in full by the corporation within 30 days after a written
claim has been received by the corporation, 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 will be entitled
to be paid also the expense of prosecuting such claim. It will be a defense to
any such action (other than an action brought to enforce a claim for expenses
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 that make it
permissible under the laws of the State of Delaware for the corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense will be on the corporation. 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
action that indemnification of the claimant is proper in the circumstances
because he has met the applicable standard of conduct set forth in the laws of
the State of Delaware nor an actual determination by the corporation (including
its board of directors, independent legal counsel, or its stockholders) that the
claimant has not met such applicable standard of conduct, will be a defense to
the action or create a presumption that the claimant has not met the applicable
standard of conduct.
ARTICLE TEN
To the fullest extent permitted by the laws of the State of Delaware as the
same exist or may hereafter be amended, a director of the corporation will not
be liable to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director. Any repeal or modification of this Article will
not increase the personal liability of any director of the corporation for any
act or occurrence taking place before such repeal or modification, or adversely
affect any right or protection of a director of the corporation existing at the
time of such repeal or modification. The provisions of this Article Ten shall
not be deemed to limit or preclude indemnification of a director by the
corporation for any liability of a director that has not been eliminated by the
provisions of this Article Ten.
ARTICLE ELEVEN
The address of the corporation's initial registered office is 1209 Orange
Street, Wilmington, Delaware 19801, County of New Castle, and the name of its
initial registered agent at that address is The Corporation Trust Company.
ARTICLE TWELVE
The number of directors constituting the initial board of directors of the
corporation is two and the names and mailing addresses of such persons, who are
to serve as directors until the first annual meeting of the stockholders or
until their successors are elected and qualified, are:
Jerry E. Kimmel 1300 So. University Drive, Suite 200
Fort Worth, Texas 76107
Richard S. Tucker 777 Main Street, Suite 1800
Fort Worth, Texas 76102-5306
Hereafter, the number of directors will be determined in accordance with
the bylaws of the corporation.
ARTICLE THIRTEEN
The powers of the incorporator will terminate upon the filing of this
Certificate. The name and mailing address of the incorporator is:
Richard S. Tucker 777 Main Street, Suite 1800
Fort Worth, Texas 76102-5306
EXECUTED on this the 8th day of October, 1996.
/s/ Richard S. Tucker
-----------------------------------
Richard S. Tucker