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Exhibit 3.5
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:30 PM 05/23/1997
971170800 - 2557884
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
ITCO ACQUISITION COMPANY, INC.
Pursuant to Section 242 of the Delaware General Corporation
Law (the "DGCL"), ITCO Acquisition Company, Inc., a Delaware corporation (the
"Corporation"), for purposes of amending its Certificate of Incorporation, DOES
HEREBY CERTIFY AS FOLLOWS:
FIRST, that the Corporation's Certificate of Incorporation is
amended by deleting in its entirety existing Article First and inserting the
following in lieu thereof:
"FIRST: The name of the Corporation is ITCO Logistics
Corporation."
SECOND, that this Certificate of Amendment of the
Corporation's Certificate of Incorporation has been duly adopted by the Board of
Directors of the Corporation in accordance with the provisions of Section 242 of
the DGCL and has been approved by the written consent of the holders of all of
the Corporation's issued and outstanding Common Stock in accordance with the
provisions of Section 228 of the DGCL.
IN WITNESS WHEREOF, the Corporation has caused this
Certificate of Amendment to be signed by V. Edward Easterling, Jr., its
President and Secretary as of the 25th day of March, 1997.
ITCO ACQUISITION COMPANY, INC.
By: /s/ V. EDWARD EASTERLING, JR.
--------------------------------
V. Edward Easterling, Jr.
President and Treasurer
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 12:00 PM 11/29/1995
950276034 - 2557884
CERTIFICATE OF CORRECTION FILED TO CORRECT
A CERTAIN ERROR IN THE CERTIFICATE OF INCORPORATION
OF ITCO ACQUISITION COMPANY, INC.
FILED IN THE OFFICE OF THE SECRETARY OF STATE
OF DELAWARE ON NOVEMBER 13, 1995
ITCO Acquisition Company, Inc., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware,
DOES HEREBY CERTIFY:
1. The name of the corporation is ITCO Acquisition Company, Inc.
2. That a Certificate of Incorporation was filed by the Secretary
of State of Delaware on November 13, 1995 and that said Certificate requires
correction as permitted by Section 103 of the General Corporation Law of the
State of Delaware.
3. The inaccuracy or defect of said Certificate to be corrected
is as follows: the total number of shares of stock which the Corporation shall
have authority to issue is 300,000. This correction will accurately reflect the
sum of 250,000 shares of common stock, $.01 par value, and 50,000 shares of
preferred stock, $.01 par value, authorized by the Certificate of Incorporation
filed on November 13, 1995.
4. The first paragraph of Article Fourth of the Certificate is
corrected to read as follows:
A. The total number of shares of stock which the
Corporation shall have authority to issue is 300,000 shares of
capital stock, classified as (i) 250,000 shares of common
stock, $.01 par value ("Common Stock") and (ii) 50,000 shares
of preferred stock, $.01 par value ("Preferred Stock").
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IN WITNESS WHEREOF, ITCO Acquisition Company, Inc. has caused
this certificate to be executed as of the 28th day of November, 1995.
ITCO ACQUISITION COMPANY, INC.
By: /s/ V. Edward Easterling, Jr.
V. Edward Easterling, Jr.
President
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 02:00 PM 11/13/1995
950263251 - 2557884
CERTIFICATE OF INCORPORATION
OF
ITCO ACQUISITION COMPANY, INC.
FIRST: The name of the Corporation is ITCO Acquisition
Company, Inc.
SECOND: The address of the registered office of the
Corporation in the State of Delaware is 1201 North Market Street in the City of
Wilmington, County of New Castle. The name and address of its registered agent
is Delaware Corporation Organizers, Inc., Wilmington, Delaware 19801.
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.
FOURTH:
A. The total number of shares of stock which the Corporation
shall have authority to issue is 1,001,000 shares of capital stock, classified
as (i) 250,000 shares of common stock, $.01 par value ("Common Stock") and (ii)
50,000 shares of preferred stock, $.01 par value ("Preferred Stock").
The designation and the powers, preferences, rights,
qualifications, limitations, and restrictions of the Preferred Stock and the
Common Stock are as follows:
1. Provisions Relating to the Preferred Stock.
(a) The Preferred Stock may be issued from time to time in one
or more classes or series, the shares of each class or series to have such
designations and powers, preferences, and rights, and qualifications,
limitations, and restrictions thereof, as are stated and expressed herein and in
the resolution or resolutions providing for the issue of such class or series
adopted, as hereinafter prescribed, by the entire Board of Directors of the
Corporation (the "Board of Directors") or (to the extent permitted by law) by
any duly designated committee thereof ("Committee").
(b) Authority is hereby expressly granted to and vested in the
Board of Directors or Committee to authorize the issuance of the Preferred Stock
from time to time in one or more classes or series, and with respect to each
class or series of the
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Preferred Stock, to fix and state by the resolution or resolutions from time to
time adopted providing for the issuance thereof the following:
(i) whether or not the class or series is to have
voting rights, full, special, or limited, or is to be without
voting rights, and whether or not such class or series is to
be entitled to vote as a separate class either alone or
together with the holders of one or more classes or series of
stock;
(ii) the number of shares to constitute the class or
series and the designations thereof;
(iii) the preferences, and relative, participating,
optional, or other special rights, if any, and the
qualifications, limitations, or restrictions thereof, if any,
with respect to any class or series;
(iv) whether or not the shares of any class or
series shall be redeemable at the option of the Corporation or
the holders thereof or upon the happening of any specified
event, and, if redeemable, the redemption price or prices
(which may be payable in the form of cash, notes, securities,
or other property), and the time or times at which, and the
terms and conditions upon which, such shares shall be
redeemable and the manner of redemption;
(v) whether or not the shares of a class or series
shall be subject to the operation of retirement or sinking
funds to be applied to the purchase or redemption of such
shares for retirement, and, if such retirement or sinking fund
or funds are to be established, the annual amount thereof, and
the terms and provisions relative to the operation thereof;
(vi) the dividend rate, whether dividends are
payable in cash, stock of the Corporation, or other property,
the conditions upon which and the times when such dividends
are payable, the preference to or the relation to the payment
of dividends payable on any other class or classes or series
of stock, whether or not such dividends shall be cumulative or
noncumulative, and if cumulative, the date or dates from which
such dividends shall accumulate;
(vii) the preferences, if any, and the amounts
thereof which the holders of any class or series thereof shall
be entitled to receive upon
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the voluntary or involuntary dissolution of, or upon any
distribution of the assets of, the Corporation;
(viii) whether or not the shares of any class or
series, at the option of the Corporation or the holder thereof
or upon the happening of any specified event, shall be
convertible into or exchangeable for, the shares of any other
class or classes of stock, securities, or other property of
the Corporation and the conversion price or prices or ratio or
ratios or the rate or rates at which such exchange may be
made, with such adjustments, if any, as shall be stated and
expressed or provided for in such resolution or resolutions;
and
(ix) such other special rights and protective
provisions with respect to any class or series as may to the
Board of Directors or Committee seem advisable.
(c) The shares of each class or series of the Preferred
Stock may vary from the shares of any other class or series thereof in any or
all of the foregoing respects. The Board of Directors or Committee may increase
the number of shares of the Preferred Stock designated for any existing class or
series by a resolution adding to such class or series authorized and unissued
shares of the Preferred Stock not designated for any other class or series. The
Board of Directors or Committee may decrease the number of shares of the
Preferred Stock designated for any existing class or series by a resolution
subtracting from such class or series authorized and unissued shares of the
Preferred Stock designated for such existing class or series, and the shares so
subtracted become authorized, unissued, and undesignated shares of the Preferred
Stock.
2. Provisions Relating to the Common Stock.
(a) Each share of Common Stock of the Corporation shall have
identical rights and privileges in every respect. The holders of shares of
Common Stock shall be entitled to vote upon all matters submitted to a vote of
the stockholders of the Corporation and shall be entitled to one vote for each
share of Common Stock.
(b) Subject to the prior rights and preferences, if any,
applicable to shares of the Preferred Stock or any series thereof, the holders
of shares of the Common Stock shall be entitled to receive such dividends
(payable in cash, stock or otherwise) as may be declared thereon by the Board of
Directors or Committee at any time and from time to time out of any funds of the
Corporation legally available therefor.
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(c) In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Corporation, after distribution in full of the
preferential amounts, if any, to be distributed to the holders of shares of the
Preferred Stock or any series thereof, the holders of shares of the Common Stock
shall be entitled to receive all of the remaining assets of the Corporation
available for distribution to its stockholders, ratably in proportion to the
number of shares of the Common Stock held by them. A liquidation, dissolution,
or winding-up of the Corporation, as such terms are used in this paragraph (c),
shall not be deemed to be occasioned by or to include any consolidation or
merger of the Corporation with or into any other corporation or corporations or
other entity or a sale, lease, exchange, or conveyance of all or a part of the
assets of the Corporation.
3. General
(a) Subject to the foregoing provisions of this Certificate of
Incorporation, the Corporation may issue shares of its Preferred Stock and
Common Stock from time to time for such consideration (not less than the par
value thereof) as may be fixed by the Board of Directors or Committee, which is
expressly authorized to fix the same in its absolute and uncontrolled discretion
subject to the foregoing conditions. Shares so issued for which the
consideration shall have been paid or delivered to the Corporation shall be
deemed fully paid stock and shall not be liable to any further call or
assessment thereon, and the holders of such shares shall not be liable for any
further payments in respect of such shares.
(b) The Corporation shall have authority to create and issue
rights and options entitling their holders to purchase shares of the
Corporation's capital stock of any class or series or other securities of the
Corporation, and such rights and options shall be evidenced by instrument(s)
approved by the Board of Directors or Committee. The Board of Directors or
Committee shall be empowered to set the exercise price, duration, times for
exercise, and other terms of such options or rights; provided, however, that the
consideration to be received for any shares of capital stock subject thereto
shall not be less than the par value thereof.
B. The holders of capital stock of the Corporation shall not have
preemptive rights to acquire additional, unissued, or treasury shares of the
Corporation, or securities of the Corporation convertible into or carrying a
right to subscribe to or acquire shares.
C. Cumulative voting shall not be allowed in the election of
directors or for any other purpose.
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FIFTH: From time to time the Corporation may issue its authorized shares
for such consideration per share (with respect to shares having a par value, not
less than the par value thereof), either in money or money's worth of property
or services, and for such other consideration, whether greater or less, now or
from time to time hereafter permitted by law, as may be fixed by the Board of
Directors; and all shares so issued shall be fully paid and nonassessable.
No holder of any shares of any class shall as such holder have any
preemptive right to subscribe for or purchase any other shares or securities of
any class, whether now or hereafter authorized, which at any time may be offered
for sale or sold by the Corporation.
SIXTH: The name and the mailing address of the incorporator is:
Name: Mailing Address
----- ---------------
David H. Oden 901 Main Street
Suite 3100
Dallas, TX 75219
SEVENTH: The number of directors shall be fixed by the bylaws of the
Corporation and until changed in accordance with the manner prescribed by the
bylaws shall be one (1). The names and addresses of those who are to serve as
directors until the first annual meeting of stockholders, or until their
successors be elected and qualified, are as follows:
Name: Address
----- -------
V. Edward Easterling, Jr. 750 North St. Paul
Suite 1200
Dallas, TX 75201
EIGHTH: 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;
(b) To authorize and cause to be executed mortgages and liens
upon the real and personal property of the Corporation;
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(c) 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;
(d) By a majority of the whole Board of Directors, to
designate one or more committees, each committee to consist of two or more of
the directors of the Corporation. The Board of Directors 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. Any such committee, to
the extent provided in the resolution or in the bylaws of the Corporation, shall
have and may exercise the powers 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; provided, however,
the bylaws may provide that in the absence or disqualification of any member of
such committee or committees the member or members thereof present at any
meeting and not disqualified from voting whether or not he 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; and
(e) When and as authorized by the affirmative vote of the
holders of a majority of the stock issued and outstanding having voting power
given at a stockholders' meeting duly called upon such notice as is required by
statute, or when authorized by the written consent of the holders of a majority
of the voting stock issued and outstanding, to sell, lease or exchange all or
substantially all of the property and assets of the Corporation, including its
goodwill and its corporate franchises, upon such terms and conditions and for
such consideration, which may consist in whole or in part of money or property
including securities of any other corporation or corporations, as the Board of
Directors shall deem expedient and for the best interests 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 Title 8 of the Delaware Code 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 Title 8 of the
Delaware Code 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
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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 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: Meetings of stockholders may be held within or without 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 directors
need not be by written ballot unless the bylaws of the Corporation shall so
provide.
ELEVENTH: The Corporation is to have perpetual existence.
TWELFTH: 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.
THIRTEENTH: No director of the Corporation shall be 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 not in good faith or that involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit. If the Delaware General Corporation Law hereafter is amended
to authorize the further elimination or limitation of the liability of
directors, then the liability of a director of the Corporation, in addition to
the limitation on personal liability provided herein, shall be limited to the
fullest extent permitted by the amended Delaware General Corporation Law. Any
repeal or modification of this Section by the stockholders of the Corporation
shall be prospective only and shall not adversely affect any limitation on the
personal liability of a director of the Corporation existing at the time of such
repeal or modification.
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THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, does 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 13th day of November, 1995.
/s/ DAVID H. ODEN
---------------------------
David H. Oden, Incorporator
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CERTIFICATE OF MERGER
MERGING
ITCO MERGER CORPORATION
INTO
ITCO LOGISTICS CORPORATION
------------------------------------------------
Pursuant to Sections 103 and 251 of the
General Corporation Law of the State of Delaware
------------------------------------------------
ITCO Logistics Corporation hereby certifies that:
FIRST: The name and state of incorporation of each of the constituent
corporations are as follows:
Name State of Incorporation
ITCO Merger Corporation Delaware
ITCO Logistics Corporation Delaware
SECOND: An agreement and plan of merger (the "Merger Agreement") in
connection with the merger (the "Merger") of ITCO Merger Corporation
("Acquisition") into ITCO Logistics Corporation (the "Corporation") has been
approved, adopted, certified, executed and acknowledged by Acquisition and the
Corporation in accordance with the provisions Section 251 of the General
Corporation Law of Delaware (the "Act").
THIRD: The name of the surviving corporation (the "Surviving Corporation")
is ITCO Logistics Corporation.
FOURTH: The Certificate of Incorporation of the Surviving Corporation
shall be the Certificate of Incorporation of the Surviving Corporation.
FIFTH: The executed Merger Agreement is on file at an office of the
Surviving Corporation located at 814 East Main Street, Lincolnton, NC 28093.
SIXTH: A copy of the Merger Agreement will be furnished by the Surviving
Corporation, on request and without cost, to any stockholder of Acquisition or
the Corporation.
SEVENTH: The Merger shall be effective upon the filing of this Certificate
of Merger with the Secretary of State of the State of Delaware.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of Merger
to be executed by its duly authorized officer, on this 20 day of May, 1998.
ITCO LOGISTICS CORPORATION
By: /s/ WILLIAM H. GAITHER
William H. Gaither
President and Chief Executive Officer