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Exhibit 3.1
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
APCOA, INC.
Pursuant to Section 242 of the General Corporation Law of the State
of Delaware, APCOA, Inc., 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 unanimous written consent of the members of the Board
of Directors of the Corporation, filed with the minutes of the Board,
resolutions were duly adopted setting forth a proposed amendment of the Amended
and Restated Certificate of Incorporation of the Corporation and declaring said
amendment to be advisable. The resolution setting forth the proposed amendment
is as follows:
RESOLVED, that the Board of Directors determines that it is
advisable that the Corporation's Amended and Restated Certificate of
Incorporation be amended, upon stockholder approval, and in accordance
with Section 242 of the General Corporation Law of the State of Delaware,
to change the corporate name of the Corporation to "APCOA/Standard
Parking, Inc."
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders of the Corporation have given unanimous written consent to said
amendment and said amendment was duly adopted in accordance with the applicable
provisions of Sections 242 and 228 of the General Corporation Law of the State
of Delaware.
THIRD: Therefore, in accordance with the foregoing, Article I of
the Amended and Restated Certificate of Incorporation of the Corporation is
amended to read in its entirety as follows:
Article I
The name of the corporation (which is hereinafter referred to
as the "Corporation") is:
APCOA/Standard Parking, Inc.
FOURTH: That the capital of the Corporation shall not be reduced
under or by reason of said amendment.
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IN WITNESS WHEREOF, said APCOA, Inc. has caused this certificate to be
signed by G. Walter Stuelpe, Jr., its President, this 30th day of June, 1998.
APCOA, INC.
By: /s/
----------------------------------
Name: G. Walter Stuelpe, Jr.
Title: President
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AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
APCOA, INC.
(Originally incorporated on September 24, 1981, under the name of
120 OAKLAND PLACE, INC.)
APCOA, Inc., 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 the Board of Directors of the Corporation, has duly
adopted resolutions setting forth a proposed amendment and restatement of the
Certificate of Incorporation of the Corporation and declaring said amendment and
restatement to be advisable. The resolution setting forth the proposed amendment
and restatement is as follows:
RESOLVED, that the Corporation's Certificate of Incorporation be
amended in accordance with Section 242 of the General Corporation Law of
the State of Delaware to effect certain changes in said Certificate of
Incorporation, and that the Amended and Restated Certificate of
Incorporation attached hereto be adopted, in accordance with Sections 242
and 245 of the General Corporation Law of the State of Delaware, as the
Amended and Restated Certificate of Incorporation of the Corporation.
SECOND: That in lieu of a meeting and vote of stockholders, both of
the stockholders of the Corporation have given their written consent to said
amendment and restatement was duly adopted in accordance with the applicable
provisions of Sections 242, 245 and 228 of the General Corporation Law of the
State of Delaware.
THIRD: That the capital of the Corporation shall not be reduced
under or by reason of said amendment and restatement.
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IN WITNESS WHEREOF, said APCOA, Inc. has caused this certificate to
be signed by its President, and attested by its Assistant Secretary, this 24th
day of February, 1994.
By: /s/ G. Walter Stuelpe, Jr.
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Name: G. Walter Stuelpe, Jr.
Title: President
ATTEST:
By: /s/ William J. Montis
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Name: William J. Montis
Assistant Secretary
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AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
APCOA, INC.
ARTICLE I
The name of the corporation (which is hereinafter referred to as the
"Corporation") is:
APCOA, Inc.
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is The Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle. The name of the Corporation's registered agent
at such address is The Corporation Trust Company.
ARTICLE III
The purpose of the Corporation shall be to engage in any lawful act
or activity for which corporations may be organized and incorporated under the
General Corporation Law of the State of Delaware.
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ARTICLE IV
Section 1. The Corporation shall be authorized to issue 5,000 shares of capital
stock, of which 3000 shares shall be shares of Common Stock, $1.00 par value
("Common Stock"), and 2000 shares shall be shares of Preferred Stock, $.01 par
value ("Preferred Stock").
Section 2. Shares of Preferred Stock may be issued from time to time
in one or more series. The Board of Directors of the Corporation (hereinafter
referred to as the "Board") is hereby authorized to fix the voting rights, if
any, designations, powers, preferences and the relative, participation, optional
or other rights, if any, and the qualifications, limitations or restrictions
thereof, of any unissued series of Preferred Stock; and to fix the number of
shares constituting such series, and to increase or decrease the number of
shares of any such series (but not below the number of shares thereof then
outstanding).
Section 3. Except as otherwise provided by law or by the resolution
or resolutions adopted by the Board designating the rights, power and
preferences of any series of Preferred Stock, the Common Stock shall have the
exclusive right to vote for the election of directors and for all other
purposes. Each share of Common Stock shall have one vote, and the Common Stock
shall vote together as a single class.
ARTICLE V
Unless and except to the extent that the By-Laws of the Corporation
shall so require, the election of directors of the Corporation need not be by
written ballot.
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ARTICLE VI
In furtherance and not in limitation of the powers conferred by law,
the Board is expressly authorized and empowered to make, alter and repeal the
By-Laws of the Corporation by a majority vote at any regular or special meeting
of the Board or by written consent, subject to the power of the stockholders of
the Corporation to alter or repeal any By-Laws made by the Board.
ARTICLE VII
The Corporation reserves the right at any time from time to time to
amend, alter, change or repeal any provision contained in this Certificate of
Incorporation, and any other provisions authorized by the laws of the State of
Delaware at the time in force may be added or inserted, in the manner now or
hereafter prescribed by law; and all rights, preferences and privileges of
whatsoever nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to this Certificate of Incorporation in its present
form or as hereafter amended are granted subject to the right reserved in this
Article.
ARTICLE VIII
Section 1. Elimination of Certain Liability of Directors. A director of the
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions
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not in good faith or which involve intentional misconduct or a knowing violation
of 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.
Section 2. Indemnification and Insurance.
(a) Right to Indemnification. 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, 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, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a 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, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and
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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 (b) 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. The right to indemnification conferred in this Section
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; provided, however, that, if the General Corporation Law
of the State of Delaware requires, 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, by or on behalf of such
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Section or otherwise. The Corporation may, by action of the Board, provide
indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
(b) Right of Claimant to Bring Suit. If a claim under paragraph (a)
of this Section is not paid in full by the Corporation within thirty days after
a written claim
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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 shall be entitled to be
paid also the expense of prosecuting such claim. It shall 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 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, independent legal counsel, or its
stockholders) to have made a determination prior 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, 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.
(c) Non-Exclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section shall not be exclusive of any other right
which any
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person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, By-Law, agreement, vote of stockholders or
disinterested directors or otherwise.
(d) Insurance. 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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