EXHIBIT 3.5
C&S-550 934E#5158 0426 ORG&FI $62.50
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MICHIGAN DEPARTMENT OF COMMERCE -- CORPORATION AND SECURITIES BUREAU
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(FOR BUREAU USE ONLY) FILED Date Received
Adjustments made pursuant to APR 23 1993 APR 23 1993
telephone authorization from Administrator
Doris at C T Corporation System, MICHIGAN DEPARTMENT
Detroit OF COMMERCE
Corporation &
Securities Bureau
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CERTIFICATE OF MERGER / SHARE EXCHANGE
FOR USE BY DOMESTIC PROFIT OR FOREIGN PROFIT CORPORATIONS
(Please read information and instructions on last page)
Pursuant to the provisions of Act 284, Public Acts of 1972 (profit
corporations), the undersigned corporations execute the following Certificate:
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1 a. The name of each constituent corporation or name of the corporation whose
shares will be acquired and its corporation identification number (CID) is:
GATEWAY HOMES, INC. -
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CHAMPION HOME BUILDERS CO. 416-343
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b. The name of the surviving or acquiring corporation and its corporation
identification number is:
CHAMPION HOME BUILDERS CO. 416-343
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2 a. For each constituent corporation of the merger, state:
Designation Indicate class
and number of Indicate class or series
outstanding shares or series of entitled to
in each class shares entitled vote as
Name of corporation or series to vote a class
GATEWAY HOMES, INC. 1,000 COMMON N/A N/A
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CHAMPION HOME
BUILDERS CO. 1,000 COMMON N/A N/A
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If the number of shares is subject to change prior to the effective date of
the merger, the manner in which the change may occur is as follows:
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2 b. If a merger, the amendments to the Articles, or a restatement of the
Articles, of the surviving corporation to be effected by the merger are as
follows:
N/A
3. The terms and conditions of the proposed merger, including the manner and
basis of converting the shares of each constituent corporation into
shares, bonds, or other securities of the surviving corporation are as
follows:
The shares of Gateway common stock held in the name of
Champion Enterprises Inc. shall be cancelled and one share
of Gateway common stock shall be issued to Champion for
each share cancelled.
4. (Complete for any foreign corporation only)
This merger or share exchange is permitted by the laws of the state of
ALABAMA, the jurisdiction under which GATEWAY HOMES, INC. (name of
foreign corporation) is organized and the plan of merger or share
exchange was adopted and approved by such corporation pursuant to and
in accordance with the laws of that jurisdiction.
5. (Complete only if an effective date is desired other than the date of
filing. This date must be no more than 90 days after receipt of this
document in this office).
The merger or share exchange shall be effective on the day of
, 19 .
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(Complete applicable section for each constituent corporation)
a. The plan of merger or share exchange was approved by the unanimous consent
of the incorporators of ___________________________________, which has not
commenced business, has not issued any shares, and has not elected a Board
of Directors. (Incorporators must sign on this page of the Certificate.)
b. The plan of merger or share exchange has been adopted by the Board of
_________________________________________, in accordance with Section 701
or 702 of the Act.
c. The plan of merger or share exchange was approved by the shareholders of
the following constituent corporations in accordance with Section 703(a):
Champion Home Builders Co.
GATEWAY HOMES, INC.
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The plan of merger or share exchange will be furnished by the surviving or
acquiring corporation, on request and without cost, to any shareholder of
any constituent corporation.
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Sign this area for item 6a, incorporators only:
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Signed this _______ day of __________________________, 19 _____.
_______________________________ ______________________________
_______________________________ ______________________________
Sign this area for items 6b and 6c:
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Signed this 5th day of APRIL, 1993.
CHAMPION HOME BUILDERS CO. (Name of Corporation)
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By /s/ Gerald W. Paga
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GERALD W. PAGA
VICE PRESIDENT - FINANCE AND TREASURER
(Type or Print Name and Title)
Signed this 5th day of APRIL, 1993
GATEWAY HOMES, INC. (Name of Corporation)
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By /s/ James M. Curch
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JAMES M. CURCH
CHAIRMAN OF THE BOARD OF DIRECTORS
(Type or Print Name and Title)
DOCUMENT WILL BE RETURNED TO NAME AND MAILING ADDRESS Name of person or
INDICATED IN THE BOX BELOW. Include name, street and organization remitting
number (or P.O. box), city, state and ZIP code. fees:
_______________________
Ms. Claudia L. Saari
C T CORPORATION SYSTEM _______________________
615 Griswold St.
Ste 1020 Preparer's name and
Detroit, MI 48226 business telephone
number:
_______________________
(___)__________________
INFORMATION AND INSTRUCTIONS
1. The merger or share exchange cannot be filed until this form, or a
comparable document, is submitted.
2. Submit one original copy of this document. Upon filing, a microfilm copy
will be prepared for the records of the Corporation and Securities Bureau.
The original copy will be returned to the address appearing in the box
above as evidence of filing.
Since this document must be microfilmed, it is important that the filing
be legible. Documents with poor black and white contrast, or otherwise
illegible, will be rejected.
3. This certificate is to be used pursuant to sections 701 through 707 of the
Act for the purpose of merging or exchanging shares of two or more
domestic and/or foreign corporations and pursuant to section 731 if the
merger or share exchange involves one or more foreign corporations.
4. If more than two corporations are merging or exchanging shares, the
certificate may be adjusted as necessary, or the format may be used as a
guide in drafting your own certificate. If additional space is required
for any section, continue the section on an attachment.
5. Item 5 - This document is effective on the date approved and filed by the
Bureau. A later effective date, no more than 90 days after the date of
delivery, may be stated.
6. A domestic nonprofit charitable purpose corporation must obtain the
consent of the Michigan Attorney General if it is merging or exchanging
share with a for profit corporation. Contact the Charitable Trust
Division; Michigan Attorney General; Room 670, Law Building; 525 West
Ottawa; Lansing, Michigan 48913 at least 45 days before the desired
effective date of the merger or share exchange.
7. This certificate must be signed in ink by the president, vice-president,
chairperson, or vice-chairperson of each corporation that is merging or
share exchanging, unless the incorporators of a domestic profit
corporation approve the merger or share exchange pursuant to sections 706
and 707 of the Act. In that event, the certificate must be signed in ink
by a majority of the incorporators if more than one of that corporation in
item 5.
8. FEES: Nonrefundable fee (Make remittance payable to the State
of Michigan).........................................................$50.00
Merger - If the survivor is a domestic profit corporation whose
authorized shares are increased:
first 60,000 authorized shares..................................$50.00
each additional 20,000 authorized shares........................$30.00
Share Exchange - Franchise fees are required for the articles of
incorporation of the new corporation, if it is a
domestic corporation.
Credit - If a foreign corporation authorized to transact business in this
State merges or exchanges shares with a domestic profit corporation, the
amount of franchise fees required to be paid by that domestic corporation
shall be reduced by the initial or additional franchise fees paid to this
State by the foreign corporation.
9. Mail form and fee to:
Michigan Department of Commerce, Corporation and Securities Bureau,
Corporation Division, P.O. Box 30054, 6546 Mercantile Way, Lansing,
MI 48909, Telephone: (517) 334-6302
RECEIVED FILED
JUN 26 1987 JUN 26 1987
MICHIGAN DEPT. OF COMMERCE Administrator
CORPORATION DIVISION MICHIGAN DEPARTMENT OF COMMERCE
Corporation & Securities Bureau
Effective June 27, 1987
at 12:01 a.m.
CERTIFICATE OF MERGER
of
CHAMPION HOME BUILDERS CO.
into
CHB MERGER CORP.
Pursuant to the provisions of Act 284, Public Acts of 1972,
as amended, the undersigned corporations execute
the following Certificate of Merger:
1. PLAN OF MERGER.
The Plan of Merger is as follows:
a. Constituent Corporations. The name of each constituent corporation
and its corporation identification number (CID) is:
Champion Home Builders Co. (002-205)
CHB Merger Corp. (416-343)
b. Surviving Corporation. The name of the surviving corporation and its
corporation identification number (CID) is:
CHB Merger Corp. (416-343)
C. Capital Stock: Share Information.
Designation and
number of Class or Class or
outstanding series of series
Name shares in each shares entitled
of class or entitled to vote as
Corporation series to vote a class
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Champion Common Stock Common Common
Home $1.00 par value Stock Stock
Builders Co. 36,324,721 shares
CHB Common Stock Common Common
Merger Corp. $1.00 par value Stock Stock
1,000 shares
d. Terms and Conditions. The terms and conditions of the proposed
merger, including the manner and basis of converting the shares of each
constituent corporation into shares, or other securities of, or other interest
in, the surviving corporation, or into cash or other consideration, are as
follows:
(i) Merger and Effective Date. On the effective date of the
merger, Champion Home Builders Co. ("Champion") shall be merged with
and into CHB Merger Corp. ("CHB") (the "Merger"), with CHB being the
surviving corporation, pursuant to and with the effect provided by the
laws of Michigan. On such effective date, the separate existence of
Champion shall cease and CHB shall continue unaffected and unimpaired,
with all its rights, powers, purposes and franchises unaffected. The
Merger shall become effective at 12:0l a.m., June 27, 1987
(the "Effective Date").
(ii) Articles of Incorporation. On the Effective Date, the
Articles of Incorporation of CHB as in effect immediately prior to the
Merger shall be amended as set forth below and as so amended shall
thereafter remain the Articles of Incorporation of CHB, as the
surviving corporation, until altered, amended, or repealed thereafter
in accordance with the provisions thereof and applicable law.
(iii) Bylaws. The Bylaws of CHB, as in effect immediately
prior to the Merger, shall continue as the Bylaws of CHB, as the
surviving corporation, and shall remain in full force and effect until
altered, amended or repealed thereafter in accordance with the
provisions thereof and applicable law.
(iv) Directors and Officers. On and after the Effective Date
of the Merger, the persons who are directors and officers of CHB
immediately prior to the Merger shall continue as the directors and
officers, respectively, of CHB, as the surviving corporation, and shall
continue to hold office as provided in the Bylaws of CHB, as the
surviving corporation.
(v) Corporate Acts. All corporate acts, plans, policies,
agreements, arrangements, approvals, and authorizations of Champion,
its shareholders, Board of Directors and committees thereof, officers
and agents, which were effective immediately prior to the Effective
Date of the Merger shall be taken for all purposes as the corporate
acts, plans, policies, agreements, arrangements, approvals and
authorizations of CHB, as the surviving corporation, and shall be as
effective and binding thereon as the same were with respect to Champion
except for the assumption of certain of these acts, plans, policies,
agreements, arrangements. approvals and authorizations by Champion
Enterprises, Inc. ("Enterprises") instead of by CHB as the surviving
corporation, pursuant to the Agreement and Plan of Merger dated March
15, 1987 by and among Champion, CHB and Enterprises.
(vi) Conversion of Shares. On the Effective Date of the
Merger:
A. Champion Common Stock. Each share of the Common
Stock of Champion, $1.00 par value ("Champion Common Stock"),
issued and outstanding or held in the treasury of Champion
immediately prior to the Effective Date shall, by virtue of
the Merger and without any action on the part of the holder
thereof, be converted into shares of the Common Stock of
Enterprises, $1.00 par value ("Enterprises Common Stock"), or
cash, as follows:
2
(1) All shareholders of Champion owning one
hundred (100) or more shares of Champion Common Stock
shall receive, in exchange therefor, one (1) share of
Enterprises Common Stock for each five (5) shares of
Champion Common Stock, and cash for any resulting
fractions of Enterprises Common Stock at the rate per
whole share of Enterprises Common Stock obtained by
multiplying the closing price of the Champion Common
Stock on the American Stock Exchange on June 26, 1987
(the "Closing Price") by five (5); and
(2) All shareholders of Champion owning
ninety-nine (99) or fewer shares of Champion Common
Stock shall receive, in exchange therefor, cash for
each share owned in an amount equal to the Closing
Price.
Provided, however, that those shareholders of
Champion whose shares would otherwise be converted only into a
right to receive cash pursuant to paragraph (2) above and who
elected, prior to the Effective Date, to have their shares
converted pursuant to paragraph (1) above by giving written
notice of such election to Champion before such date shall
have their shares converted pursuant to paragraph (1). Such
shareholders who, as of the Effective Date, had not served
written notice of such an election shall receive cash for each
share owned in accordance with paragraph (2) above.
B. CHB Common Stock. Each share of the Common Stock
of CHB, issued and outstanding immediately prior to the
Effective Date of the Merger shall, by virtue of the Merger
and without any action on the part of the holder thereof,
remain outstanding as one (1) share of Common Stock of CHB, as
the surviving corporation.
C. Enterprises Common Stock. Each share of
Enterprises Common Stock issued and outstanding immediately
prior to the Effective Date of the Merger shall, by virtue of
the Merger and without any action on the part of the holder
thereof, be converted into and shall represent the right to
receive the par value thereof in cash.
D. Exchange of, and Payment for, Champion Shares.
Following the Effective Date of the Merger, each registered
holder of a certificate representing shares of Champion Common
Stock shall be entitled to receive upon presentation thereof
for exchange to an exchange
3
agent (the "Exchange Agent") designated by Enterprises a new
certificate or new certificates representing the number of
shares of Enterprises Common Stock and/or the cash payment, if
any, as provided in Subparagraph A above. Promptly after the
Effective Date of the Merger, the Exchange Agent shall mail or
cause to be mailed to each holder of record of an outstanding
certificate or certificates which prior thereto represented
shares of Champion Common Stock a letter of transmittal and
instructions for use in effecting the surrender of such
certificate or certificates for exchange and/or payment as
aforesaid. Upon surrender to the Exchange Agent of such
certificate or certificates, together with such letter of
transmittal, duly executed, the Exchange Agent shall promptly
cause the issuance and/or payment to the persons entitled
thereto of the certificates for shares of Enterprises Common
Stock and/or the cash payment, as aforesaid, to which such
persons are entitled. No interest will be paid or accrued on
any cash payable upon surrender of any certificates of
Champion Common Stock.
Until so surrendered, each outstanding certificate
which prior to the Effective Date represented shares of
Champion Common Stock shall be deemed for all corporate
purposes to evidence ownership of the number of shares of
Enterprises Common Stock, and/or the cash payment, into which
such shares of Champion Common Stock shall have been converted
as aforesaid.
On the Effective Date, the stock transfer books for
the shares of Champion Common Stock shall be closed, and no
transfer of such shares shall thereafter be registered on
such transfer books.
(vii) Additional Action. If at any time CHB, as the surviving
corporation, shall request the execution of any other documents or the
taking of any other action by or on behalf of Champion to effectuate
the Merger provided herein or to vest in CHB, as the surviving
corporation, title to and possession of all properties or rights owned
by Champion on the Effective Date of the Merger, the proper officers
and directors of Champion shall execute all such documents and take all
such action as CHB, as the surviving corporation, shall consider
requisite or convenient to accomplish such purposes.
e. Amendment to Articles of Incorporation of CHB. On the Effective Date
of the Merger, the Articles of Incorporation of CHB, as in effect immediately
prior to the Merger, shall be amended as set forth below:
4
Article FIRST shall be amended to read in its entirety as follows:
FIRST: The name of the Corporation is Champion Home Builders Co.
2. AUTHORIZATION OF MERGER.
The plan of merger was adopted by the Board of Directors of Champion
and CHB, the constituent corporations, and was approved by the Shareholders of
such corporations in accordance with Sections 701 to 704 of the Michigan
Business Corporation Act, as amended, or pursuant to Section 407 of the
Michigan Business Corporation Act, as amended, by written consent and written
notice, if required by that Section.
Signed this 26th day of June, 1987.
CHAMPION HOME BUILDERS CO.
By: /s/ RODNEY A. KNIGHT
---------------------------------
Rodney A. Knight
Its: Vice President-Legal
Affairs and Secretary
Signed this 26th day of June, 1987.
CHB MERGER CORP.
By: /s/ ROBERT A. POST
---------------------------------
Robert A. Post
Its: President
5
MICHIGAN DEPARTMENT OF COMMERCE - CORPORATION AND SECURITIES BUREAU
(FOR BUREAU USE ONLY) DATE RECEIVED
FILED MAR 09 1987
MAR 09 1987
Administrator
MICHIGAN DEPARTMENT OF COMMERCE
EFFECTIVE DATE: Corporation & Securities Bureau
CORPORATION IDENTIFICATION NUMBER 416-343
ARTICLES OF INCORPORATION
FOR USE BY DOMESTIC PROFIT CORPORATIONS
(Please read instructions on last page before completing form)
Pursuant to the provisions of Act 284, Public Acts of 1972, as amended,
the undersigned corporation executes the following Articles:
ARTICLE I
The name of the corporation is:
CHB Merger Corp.
ARTICLE II
The purpose or purposes for which the corporation is organized is to engage in
any activity within the purposes for which corporations may be organized under
the Business Corporation Act of Michigan.
ARTICLE III
The total authorized capital stock is:
Common Shares 50,000 Par Value Per Share $ 1.00
1. --------------- --------
Preferred Shares Par Value Per Share $
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and/or shares without par value as follows:
Common Shares Stated Value Per Share $
2. --------------- --------
Preferred Shares Stated Value Per Share $
--------------- --------
3. A statement of all or any of the relative rights, preferences and
limitations of the shares of each class is as follows:
ARTICLE IV
1. The address of the registered office is:
615 Griswold Street Detroit, Michigan 48226
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(Street Address) (City) (Zip Code)
2. The mailing address of the registered office if different than above:
Same , Michigan
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(P.O. Box) (City) (Zip Code)
3. The name of the resident agent at the registered office is: The Corporation
Company
ARTICLE V
The name(s) and address(es) of the incorporator(s) is (are) as follows:
Name Residence or Business Address
Rodney A. Knight 5573 North Street, Dryden, Michigan 48428
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ARTICLE VI
When a compromise or arrangement or a plan of reorganization of this corporation
is proposed between this corporation and its creditors or any class of them or
between this corporation and its shareholders or any class of them, a court of
equity jurisdiction within the state, on application of this corporation or of a
creditor or shareholder thereof, or on application of a receiver appointed for
the corporation, may order a meeting of the creditors or class of creditors or
of the shareholders or class of shareholders to be affected by the proposed
compromise or arrangement or reorganization, to be summoned in such manner as
the court directs. If a majority in number representing 3/4 in value of the
creditors or class of creditors, or of the shareholders or class of
shareholders to be affected by the proposed compromise or arrangement or a
reorganization, agree to a compromise or arrangement or a reorganization of
this corporation as a consequence of the compromise or arrangement, the
compromise or arrangement and the reorganization, if sanctioned by the court to
which the application has been made, shall be binding on all the creditors or
class of creditors, or on all the shareholders or class of shareholders and
also on this corporation.
ARTICLE VII
Any action required or permitted by the Act to be taken at an annual or special
meeting of shareholders may be taken without a meeting, without prior notice
and without a vote, if a consent in writing, setting forth the action so taken,
is signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take the action at a
meeting at which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to shareholders who have not
consented in writing.
Use space below for additional Articles or for continuation of previous
Articles. Please identify any Article being continued or added. Attach
additional pages if needed.
I, the incorporator sign my name this 5th day of March, 1987.
/s/ Rodney A. Knight
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Rodney A. Knight
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DOCUMENT WILL BE RETURNED TO NAME AND MAILING ADDRESS INDICATED IN THE BOX
BELOW. Include name, street and number (or P.O. box), city, state and ZIP code.
MICHAEL DALIDA Telephone:
615 GRISWOLD Area Code ______________
STE 1414
DETROIT MI 48226 Number _________________
INFORMATION AND INSTRUCTIONS
1. Submit one original copy of this document. Upon filing, a microfilm copy
will be prepared for the records of the Corporation ??? Securities Bureau.
The original copy will then be returned to the address appearing in the box
above as ??? filing.
Since this ??? must be microfilmed, it is important that the filing be
legible. Documents with poor black and white ??? otherwise illegible, will
be rejected.
2. This document ??? used pursuant to the provisions of Act 284, P.A. of
1972, by one or more persons for the purpose of ??? domestic profit
corporation.
3. Article I -- The corporate name of a domestic profit corporation is
required to contain one of the following words or abbreviations:
"Corporation", "Company", "Incorporated", "Limited", "Corp.", "Co.",
"Inc.", or "Ltd.".
4. Article II -- State, in general terms, the character of the particular
business to be carried on. Under section 202(b) of the Act, it is
sufficient to state substantially, alone or without specifically enumerated
purposes, that the corporation may engage in any activity within the
purposes for which corporations may be organized under the Act. The Act
requires, however, that educational corporations state their specific
purposes.
5. Article III (2) -- The Act requires the incorporators of a domestic
corporation having shares without par value to submit in writing the amount
of consideration proposed to be received for each share which shall be
allocated to stated capital. Such stated value may be indicated either in
item 2 of article III or in a written statement accompanying the articles
of incorporation.
6. Article IV -- A post office box may not be designated as the address of
the registered office. The mailing address may differ from the address of
the registered office only if a post office box address in the same city as
the registered office is designated as the mailing address.
7. Article V -- The Act requires one or more incorporators. The address(es)
should include a street number and name (or other designation), city and
state.
8. The duration of the corporation should be stated in the articles only if
the duration is not perpetual.
9. This document is effective on the date approved and filed by the Bureau. A
later effective date, no more than 90 days after the date of delivery, may
be stated as an additional article.
10. The articles must be signed in ink by each incorporator. The names of the
incorporators as set out in article V should correspond with the
signatures.
11. FEES: Filing fee........................................... $10.00
Franchise fee -- 1/2 mill (.0005) on each dollar
of authorized capital stock, with a minimum
franchise fee of..................................... $25.00
Total minimum fees (Make remittance payable to
State of Michigan)................................... $35.00
12. Mail form and fee to:
Michigan Department of Commerce
Corporation and Securities Bureau
Corporation Division
P.O. Box 30054
Lansing, MI 48909
Telephone: (517) 373-0493
ARTICLES OF INCORPORATION
OF
A-1 CHAMPION GP, INC.
These Articles of Incorporation are signed by the incorporator for the
purpose of forming a profit corporation pursuant to the provisions of Act 284,
Public Acts of 1972, as amended, as follows:
ARTICLE I
The name of the corporation is A-l Champion GP, Inc.
ARTICLE II
The purpose or purposes for which the corporation is formed is to
engage in any activity within the purposes for which corporations may be formed
under the Business Corporation Act of Michigan (the "Act").
ARTICLE III
The total authorized shares are 1,000 shares of Common Stock.
ARTICLE IV
The corporation has only one class of stock.
ARTICLE V
The address and mailing address of the registered office is:
30600 Telegraph Road
Bingham Farms, Michigan 48025
The name of the resident agent at the registered office is The
Corporation Company.
ARTICLE VI
The name and address of the incorporator is as follows:
Name Residence or Business Address
---- -----------------------------
Jay L. Kreindler 2701 Cambridge Court, Suite 300
Auburn Hills, Michigan 48326
ARTICLE VII
The duration of the corporation is perpetual.
ARTICLE VIII
A director of the corporation shall not be personally liable to the
corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director. However, this provision does not eliminate or limit the
liability of a director for any of the following:
(a) any breach of the director's duty of loyalty to the
corporation or its shareholders;
(b) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
(c) a violation of Section 551(l) of the Act;
(d) a transaction from which the director derived an improper
personal benefit; or
(e) an act or omission occurring prior to the date this Article
becomes effective.
Any repeal, amendment or other modification of this Article shall not
increase the liability or alleged liability of any director of the corporation
then existing with respect to any state of facts then or theretofore existing or
any action, suit or proceeding theretofore or thereafter brought or threatened
based in whole or in part upon any such state of facts. If the Act is
subsequently amended to authorize corporate action further eliminating or
limiting personal liability of directors, then the liability of directors shall
be eliminated or limited to the fullest extent permitted by the Act as so
amended.
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ARTICLE IX
Any action required or permitted by the Act, these Articles or the
Bylaws of the corporation to be taken at an annual or special meeting of
shareholders may be taken without a meeting, without prior notice and without a
vote, if consents in writing, setting forth the action so taken, are signed by
the holders of outstanding shares having not less than the minimum number of
votes that would be necessary to authorize or take the action at a meeting at
which all shares entitled to vote on the action were present and voted. The
written consents shall bear the date of signature of each shareholder who signs
the consent. No written consents shall be effective to take the corporate action
referred to unless, within 60 days after the record date for determining
shareholders entitled to express consent to or to dissent from a proposal
without a meeting, written consents dated not more than 10 days before the
record date and signed by a sufficient number of shareholders to take the action
are delivered to the corporation, Delivery shall be to the corporation's
registered office, its principal place of business, or an officer or agent of
the corporation having custody of the minutes of the proceedings of its
shareholders. Delivery made to a corporation's registered office shall be by
hand or by certified or registered mail, return receipt requested. Prompt notice
of the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to shareholders who would have been entitled to
notice of the shareholder meeting if the action had been taken at a meeting and
who have not consented in writing.
I, the sole incorporator, sign my name this 7th day of December, 2001.
/s/ Jay L. Kreindler
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Jay L. Kreindler
Prepared by, and when filed return to:
Jay L. Kreindler
A-l Champion GP, Inc.
2701 Cambridge Court, Suite 300
Auburn Hills, Michigan 48326
(248)340-7688
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CERTIFICATE OF LIMITED PARTNERSHIP
OF
A-1 HOMES GROUP, L.P.
The undersigned General Partner, desiring to form a limited partnership
(the "Partnership"), pursuant to Section 2.15 of the Texas Revised Limited
Partnership Act (the "Act"), hereby duly executes this Certificate of Limited
Partnership, to be effective as of 11:59 p.m. on December 31, 2001.
1. The name of the Partnership is A-1 Homes Group, L.P.
2. The address of the registered office of the Partnership is 350 North
St. Paul Street, Dallas, Texas 75201, and the name of the registered agent for
service of process whose business office address will be the same as the
registered office address is CT Corporation System.
3. The duration of the Partnership shall be perpetual.
4. The address of the principal office of the Partnership where its
partnership records are to be kept or made available under Section 1.07 of the
Act is 3800 E. 42nd St., Suite 604, Odessa, Texas 79762.
5. The name, the mailing address, and the street address of the business
or residence of the sole general partner of the Partnership is as follows:
NAME MAILING AND STREET ADDRESS
A-1 Champion GP, Inc. 2701 Cambridge Ct., Suite 300, Auburn Hills,
Michigan 48326
6. This certificate of limited partnership shall be effective at
11:59 p.m. on December 31, 2001, as set forth in that certain Plan of Conversion
providing for the conversion of Cal-Nel, Inc. into the Partnership.
7. The Partnership is being formed by the conversion of Cal-Nel, Inc., a
Texas corporation incorporated on March 3, 1998 and having its address at 3800
E. 42nd St., Suite 604, Odessa Texas 79762.
EXECUTED the 7th day of December, 2001.
GENERAL PARTNER
A-1 Champion GP, Inc.
By: [SIG]
Its: VP/Secretary & General Counsel
MICHIGAN DEPARTMENT OF CONSUMER & INDUSTRY SERVICES
CORPORATION, SECURITIES AND LAND DEVELOPMENT BUREAU
Date Received
(FOR BUREAU USE ONLY)
This document is effective on the date filed, unless
a subsequent effective date within 90 days after
received date is stated in the document.
Name
Jay Kreindler / Champion Enterprises, Inc.
Address
2701 University Dr. Suite 300
City State Zip Code
Auburn Hills MI 48326
EFFECTIVE DATE:
DOCUMENT WILL BE RETURNED TO THE NAME AND ADDRESS YOU ENTER ABOVE.
IF LEFT BLANK DOCUMENT WILL BE MAILED TO THE REGISTERED OFFICE.
CERTIFICATE OF AMENDMENT TO THE ARTICLES OF INCORPORATION
FOR USE BY DOMESTIC PROFIT AND NONPROFIT CORPORATIONS
(Please read information and instructions on the last page)
Pursuant to the provisions of Act 284, Public Acts of 1972 (profit
corporations), or Act 162, Public Acts of 1982 (nonprofit corporations),
the undersigned corporation executes the following Certificate:
1. The present name of the corporation is: Champion Home Centers, Inc.
2. The identification number assigned by the Bureau is: 507-720
3. Article I of the Articles of Incorporation is hereby amended to read as
follows:
The name of the corporation is Champion Retail, Inc.
COMPLETE ONLY ONE OF THE FOLLOWING:
4. (FOR AMENDMENTS ADOPTED BY UNANIMOUS CONSENT OF INCORPORATORS BEFORE THE
FIRST MEETING OF THE BOARD OF DIRECTORS OR TRUSTEES.)
The foregoing amendment to the Articles of Incorporation was duly adopted on
the ______ day of ________________, ______, in accordance with the
provisions of the Act by the unanimous consent of the incorporator(s) before
the first meeting of the Board of Directors or Trustees.
Signed this ______ day of _____________________, ______
----------------------------------- ---------------------------------
(Signature) (Signature)
----------------------------------- ---------------------------------
(Type or Print Name) (Type or Print Name)
----------------------------------- ---------------------------------
(Signature) (Signature)
----------------------------------- ---------------------------------
(Type or Print Name) (Type or Print Name)
5. (FOR PROFIT AND NONPROFIT CORPORATIONS WHOSE ARTICLES STATE THE CORPORATION
IS ORGANIZED ON A STOCK OR ON A MEMBERSHIP BASIS.)
The foregoing amendment to the Articles of Incorporation was duly adopted on
the 4th day of November, 1999 by the shareholders if a profit
--- --------- ----
corporation, or by the shareholders or members if a nonprofit corporation
(check one of the following)
at a meeting the necessary votes were case in favor of the amendment.
---
by written consent of the shareholders or members having not less than
--- the minimum number of votes required by statute in accordance with
Section 407(1) and (2) of the Act if a nonprofit corporation, or Section
407(1) of the Act if a profit corporation. Written notice to
shareholders or members who have not consented in writing has been
given. (Note: Written consent by less than all of the shareholders or
members is permitted only if such provision appears in the Articles of
Incorporation.)
X by written consent of all the shareholders or members entitled to vote
--- in accordance with section 407(3) of the Act if a nonprofit corporation,
or Section 407(2) of the Act if a profit corporation.
by the board of a profit corporation pursuant to section 611(2).
---
Profit Corporations Nonprofit Corporations
Signed this 8th day of November, 1999 Signed this day of ,
--- -------- ---- --- -------- ----
By /s/ John J. Collins, Jr. By
------------------------------ -----------------------------------
(Signature of an authorized (Signature of President,
officer or agent) Vice-President, Chairperson or
Vice-Chairperson)
John J. Collins, Jr.
- ------------------------------------- -------------------------------------
(Type or Print Name) (Type or Print Name) (Type or
Print Title)
ARTICLES OF INCORPORATION
OF
CHAMPION HOME CENTERS, INC.
These Articles of Incorporation are signed by the incorporator for the
purpose of forming a profit corporation pursuant to the provisions of Act 284,
Public Acts of 1972, as amended, as follows:
ARTICLE I
The name of the corporation is Champion Home Centers, Inc.
ARTICLE II
The purpose or purposes for which the corporation is formed is to
engage in any activity within the purposes for which corporations may be formed
under the Business Corporation Act of Michigan (the "Act").
ARTICLE III
The total authorized shares is 1,000 shares of Common Stock.
ARTICLE IV
The corporation has only one class of stock.
ARTICLE V
The address and mailing address of the registered office is:
30600 Telegraph Road
Bingham Farms, MI 48025
The name of the resident agent at the registered office is The
Corporation Company.
ARTICLE VI
The name and address of the incorporator are as follows:
Name Residence or Business Address
---- -----------------------------
Jay L. Kreindler 2701 University Drive
Suite 300
Auburn Hills, MI 48326
ARTICLE VII
The duration of the corporation is perpetual.
ARTICLE VIII
A director of the corporation shall not be personally liable to the
corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director. However, this provision does not eliminate or limit the
liability of a director for any of the following:
(a) any breach of the director's duty of loyalty to the
corporation or its shareholders;
(b) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
(c) a violation of Section 551(1) of the Act;
(d) a transaction from which the director derived an improper
personal benefit; or
(e) an act or omission occurring prior to the date this Article
becomes effective.
Any repeal, amendment or other modification of this Article shall not
increase the liability or alleged liability of any director of the corporation
then existing with respect to any state of facts then or theretofore existing or
any action, suit or proceeding theretofore or thereafter brought or threatened
based in whole or in part upon any such state of facts. If the Act is
subsequently amended to authorize corporate action further eliminating or
limiting personal liability of directors, then the liability of directors shall
be eliminated or limited to the fullest extent permitted by the Act as so
amended.
-2-
ARTICLE IX
Any action required or permitted by the Act, these Articles or the
Bylaws of the corporation to be taken at an annual or special meeting of
shareholders may be taken without a meeting, without prior notice and without a
vote, if consents in writing, setting forth the action so taken, are signed by
the holders of outstanding shares having not less than the minimum number of
votes that would be necessary to authorize or take the action at a meeting at
which all shares entitled to vote on the action were present and voted. The
written consents shall bear the date of signature of each shareholder who signs
the consent. No written consents shall be effective to take the corporate action
referred to unless, within 60 days after the record date for determining
shareholders entitled to express consent to or to dissent from a proposal
without a meeting, written consents dated not more than 10 days before the
record date and signed by a sufficient number of shareholders to take the action
are delivered to the corporation. Delivery shall be to the corporation's
registered office, its principal place of business, or an officer or agent of
the corporation having custody of the minutes of the proceedings of its
shareholders. Delivery made to a corporation's registered office shall be by
hand or by certified or registered mail, return receipt requested. Prompt notice
of the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to shareholders who would have been entitled to
notice of the shareholder meeting if the action had been taken at a meeting and
who have not consented in writing.
I, the sole incorporator, sign my name this 6th day of November, 1997.
/s/ Jay L. Kreindler
--------------------------------
Jay L. Kreindler
-3-
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 03:00 PM 09/22/1993
932655361 - 772937
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
REDMAN HOMES, INC.
The undersigned, being the Executive Vice President and Secretary,
respectively, of Redman Homes, Inc., a Delaware corporation (the "Corporation"),
do hereby certify:
FIRST: The name of the Corporation is Redman Homes, Inc.
SECOND: The Certificate of Incorporation was filed with the Secretary of
State of Delaware on June 17, 1971.
THIRD: The Certificate of Incorporation is hereby amended by adding the
provisions set forth in Exhibit A hereto (and incorporated herein by reference)
as Article THIRTEENTH.
FOURTH: The Certificate of Incorporation is hereby amended by adding the
provisions set forth in Exhibit B hereto (and incorporated herein by reference)
as Article FOURTEENTH.
FIRTH: The aforementioned amendments to the Certificate of Incorporation
were duly adopted in accordance with Section 242 of the General Corporation Law
of the State of Delaware (the "DGCL"). Written consent of the Corporation's
sole stockholder has been given 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 pursuant to Section 103(a)(2) of the DGCL by the
undersigned duly authorized officers of the Corporation as of the 7th day of
September, 1993.
REDMAN HOMES, INC.
By: /s/ Fergus J. Walker, Jr.
-------------------------
Fergus J. Walker, Jr.
Executive Vice President
ATTEST:
/s/ Paul L. Barrett
- -------------------
Paul L. Barrett
Secretary
EXHIBIT A
THIRTEENTH: The Corporation shall indemnify any person who was, is, or
is threatened to be made a party to a proceeding (as hereinafter defined) by
reason of the fact that he or she (i) is or was a director or officer of the
Corporation or (ii) while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent, or similar functionary of
another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise, to the
fullest extent permitted under the General Corporation Law of the State of
Delaware (the "DGCL"), as the same exists or may hereafter be amended. Such
right shall be a contract right and as such shall run to the benefit of any
director or officer who is elected and accepts the position of director or
officer of the Corporation or elects to continue to serve as a director or
officer of the Corporation while this Article Thirteenth is in effect. Any
repeal or amendment of this Article Thirteenth shall be prospective only and
shall not limit the rights of any such director or officer or the obligations of
the Corporation with respect to any claim arising from or related to the
services of such director of officer in any of the foregoing capacities prior to
any such repeal or amendment to this Article Thirteenth. Such right shall
include the right to be paid by the Corporation expenses incurred in
investigating or defending any such proceeding in advance of its final
disposition to the maximum extent permitted under the DGCL, as the same exists
or may hereafter be amended. If a claim for indemnification or advancement of
expenses hereunder is not paid in full by the Corporation within sixty (60) 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 shall
also be entitled to be paid the expenses of prosecuting such claim. It shall be
a defense to any such action that such indemnification or advancement of costs
of defense is not permitted under the DGCL, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its board of directors or any committee thereof, independent legal
counsel, or stockholders) to have made its determination prior to the
commencement of such action that indemnification of, or advancement of costs of
defense to, the claimant is permissible in the circumstances nor an actual
determination by the Corporation (including its board of directors or any
committee thereof, independent legal counsel, or stockholders) that such
A-1
indemnification or advancement is not permissible shall be a defense to the
action or create a presumption that such indemnification or advancement is not
permissible. In the event of the death of any person having a right of
indemnification under the foregoing provisions, such right shall inure to the
benefit of his or her heirs, executors, administrators, and personal
representatives. The rights conferred above shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute, by-law,
resolution of stockholders or directors, agreement, or otherwise.
The Corporation may additionally indemnify any employee or agent of
the Corporation to the fullest extent permitted by law.
Without limiting the generality of the foregoing, to the extent
permitted by then applicable law, the grant of mandatory indemnification
pursuant to this Article Thirteenth shall extend to proceeding involving the
negligence of such person.
As used herein, the term "proceeding" means any threatened, pending,
or completed action, suit, or proceeding, whether civil, criminal,
administrative, arbitrative, or investigative, any appeal in such an action,
suit, or proceeding, and any inquiry or investigation that could lead to such an
action, suit, or proceeding.
A-2
EXHIBIT B
FOURTEENTH: 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 not in good faith or which involve intentional
misconduct or knowing violation of law, (iii) under Section 174 of the DGCL, or
(iv) for any transaction from which the director derived an improper personal
benefit. Any repeal or amendment of this Article Fourteenth 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 arising
from an act or omission occurring prior to the time of such repeal or amendment.
In addition to the circumstances in which a director of the Corporation is not
personally liable as set forth in the foregoing provisions of this Article
Fourteenth, a director shall not be liable to the Corporation or its
stockholders to such further extent as permitted by any law hereafter enacted,
including without limitation any subsequent amendment to the DGCL.
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 12:40 PM 08/12/1998
981318097 - 2168750
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
REDMAN INDUSTRIES, INC.
Redman Industries, Inc., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That the Board of Directors of Redman Industries, Inc. has filed
with the minutes of the board, duly adopted resolutions setting forth a proposed
amendment to the Restated Certificate of incorporation of said corporation. The
resolution setting forth the proposed amendment as follows:
RESOLVED, that the Restated Certificate of Incorporation of this
corporation be amended by changing Article 4 so that, as amended the fourth
paragraph of said Article shall be and read as follows:
"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 $0.01 per share."
SECOND: That thereafter, upon written consent of the stockholders,
given in accordance with the provisions of Section 228, as amended by
Ch. 349, L. 1996, said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said stockholder, Champion Enterprises, Inc.,
has caused this certificate to be signed by Walter R. Young, Jr., its
President and Chairman of the Board of Directors, this 7th day of August,
1998.
Champion Enterprises, Inc.
By: /s/ Walter R. Young, Jr.
---------------------------------
Walter R. Young, Jr.
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:26 PM 07/13/1993
931945602 - 559316
CERTIFICATE OF AMENDMENT
TO THE RESTATED CERTIFICATE
OF INCORPORATION OF
REDMAN INDUSTRIES, INC.
The undersigned, being the Executive Vice President and Secretary,
respectively, of Redman Industries, Inc., a Delaware corporation (the
"Corporation"), do hereby certify:
FIRST: The name of the Corporation is Redman Industries, Inc.
SECOND: The Certificate of Incorporation was filed with the Secretary of
State of Delaware on November 14, 1960 under the name New Moon Homes, Inc. A
Restated Certificate of Incorporation was filed with the Secretary of State of
Delaware on August 18, 1989.
THIRD: Article FIRST of the Restated Certificate of Incorporation hereby
is amended to read in its entirety as follows:
"FIRST - The name of the corporation is Redman Corporation."
FOURTH: The aforementioned amendment to the Restated Certificate of
Incorporation was duly adopted in accordance with Section 242 of the General
Corporation of Law of the State of Delaware (the "DGCL"). Unanimous written
consent of the Corporation's sole stockholder has been given 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 pursuant to Section 103(a)(2) of the DGCL by the
undersigned duly authorized officers of the Corporation as of the 8th day of
July, 1993.
REDMAN INDUSTRIES, INC.
BY: /S/ FERGUS J. WALKER
----------------------
NAME: FERGUS J. WALKER
TITLE: EXECUTIVE VICE PRESIDENT
ATTEST:
/S/ PAUL L. BARRETT
- ----------------------
PAUL L. BARRETT,
SECRETARY
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
REDMAN INDUSTRIES, INC.
Redman Industries, Inc. (the "Corporation"), a corporation duly organized
and existing under and by virtue of the General Corporation Law of the State of
Delaware (the "DGCL"), DOES HEREBY CERTIFY THAT:
FIRST: The name of the Corporation is Redman Industries, Inc.
SECOND: The Certificate of Incorporation was filed with the Secretary of
State of Delaware on August 5, 1988.
THIRD: Article FOURTH of the Certificate of Incorporation of the
Corporation (the "Certificate of Incorporation") be, and it hereby is, amended
and restated to read in its entirety as set forth on Exhibit A attached hereto
and incorporated herein by reference.
FOURTH: The amendment to Article FOURTH of the Certificate of
Incorporation made by this Certificate of Amendment to the Certificate of
Incorporation (the "Certificate of Amendment") effects a reverse stock split by
means of the exchange and cancellation of issued stock described in Exhibit B
attached hereto and incorporated herein by reference.
FIFTH: This amendment effects a change in the amount of the stated capital
of the Corporation from $95,000.00 to $36,637.96, which is the amount of stated
capital which will be in effect upon the effectiveness of this Certificate of
Amendment. The Board of Directors of the Corporation has authorized the transfer
to surplus from stated capital of an amount equal to the difference between the
amount of stated capital in respect of the Old Common Stock and the amount of
stated capital in respect of the New Common Stock (both terms as defined in
Exhibit B).
SIXTH: The aforementioned amendment to the Certificate of Incorporation
was duly adopted in accordance with Section 242 of the General Corporation Law
of the State of Delaware (the "GCLD"). Written consent of the Corporation's
stockholders has been given in accordance with the provisions of Section 228 of
the GCLD and written notice has been given to nonconsenting stockholders as
provided in Section 228(d) of the GCLD.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed pursuant to Section 103(a)(2) of the DGCL by the
undersigned duly authorized officers of the Corporation as of this 7th day of
September, 1993.
REDMAN INDUSTRIES, INC.
By: /s/ Fergus J. Walker, Jr.
--------------------------------
Fergus J. Walker, Jr.
Executive Vice President
ATTEST:
By: /s/ Paul L. Barrett
-----------------------
Paul L. Barrett
Secretary
2
EXHIBIT A
ARTICLE IV
The total number of shares of stock which the Corporation shall have
authority to issue is 30,000,000, 10,000,000 of such shares to be classified as
preferred stock (the "Preferred Stock"), par value $0.01 per share, and
20,000,000 of such shares to be classified as common stock (the "Common Stock"),
par value $0.01 per share.
The designations and the powers, preferences, rights, qualifications,
limitations and restrictions of the Preferred Stock and Common Stock of the
Corporation are as follows:
A. Provisions Relating to the Preferred Stock.
1. 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
adopted by the board of directors of the Corporation as hereafter prescribed.
2. Authority is hereby expressly granted to and vested in the board of
directors of the Corporation to authorize the issuance of the Preferred Stock
from time to time in one or more classes or series, and with respect to each
such class or series of the Preferred Stock, to fix and state by the resolution
or resolutions from time to time adopted providing for the issuance thereof the
following:
a. whether or not such 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 other classes or series of stock;
b. the number of shares to constitute such class or series and
the designations thereof;
c. 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;
d. whether or not the shares of any such 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;
e. whether or not the shares of such 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;
f. 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 such dividends shall be cumulative or noncumulative, and if cumulative,
the date or dates from which such dividends shall accumulate;
g. the preferences, if any, and the amounts thereof which the
holders of any such class or series shall be entitled to receive upon the
voluntary or involuntary dissolution of, or upon any distribution of the assets
of, the Corporation;
h. whether or not the shares of any such 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 or of any other series of the same or 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
i. such other special rights and provisions with respect to any
such class or series as may to the board of directors of the Corporation seem
advisable.
3. 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 of the Corporation 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 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 of the Corporation may decrease
the number of shares of the Preferred Stock designated for any existing class or
series by a resolution, subtracting from such series unissued shares of the
Preferred Stock designated for such class or series, and the shares so
subtracted shall become authorized, unissued, and undesignated shares of the
Preferred Stock.
B. Provisions Relating to the Common Stock.
1. Except as otherwise required by law, and subject to any special
voting rights which may be granted any class or series of Preferred Stock in the
board of directors resolution which creates such class or series, each holder of
Common Stock shall be entitled to one vote for each share of Common Stock
standing in such holder's name on the records of the Corporation on each matter
submitted to a vote of the stockholders.
2. Subject to the rights of the holders of the Preferred Stock, the
holders of the Common Stock shall be entitled to receive when, as, and if
declared by the board of directors of the Corporation, out of funds legally
available therefor, dividends payable in cash, stock, or otherwise.
3. Upon any liquidation, dissolution, or winding up of the Corporation,
whether voluntary or involuntary, and after the holders of the Preferred Stock
and the holders of any bonds, debentures, or other obligations of the
Corporation shall have been paid in full the amounts to which they shall be
entitled (if any), or a sum sufficient for such payment in full shall have been
set aside, the remaining net assets of the corporation shall be distributed pro
rata to the holders of the Common Stock in accordance with their respective
rights and interests, to the exclusion of the holders of the Preferred Stock and
any bonds, debentures, or other obligations of the Corporation.
C. General.
1. 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 of the Corporation,
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.
2. 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 of the Corporation. The board of directors of the Corporation 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.
EXHIBIT B
Upon the adoption of the Certificate of Amendment by the holders of the
Corporation's Common Stock, par value $0.01 per share, and due execution and
filing with the Secretary of State of the State of Delaware of this Certificate
of Amendment incorporating such amendment to Article FOURTH, every share of
Common Stock, par value $0.01 per share ("Old Common Stock"), of the Corporation
authorized and outstanding as of the effective date of such amendment shall be
automatically converted into, and deemed for all purposes to be, 0.3856627368
shares of Common Stock, par value $0.01 per share ("New Common Stock"), of the
Corporation, and written notice thereof shall forthwith be given by the
secretary of the Corporation to the holders of the outstanding shares of the Old
Common Stock in person or at their latest addresses reflected on the records of
the Corporation, together with notice of the procedures hereinafter specified
for exchange or replacement of the certificates representing shares of the Old
Common Stock. Upon surrender of the certificate(s) representing shares of the
Old Common Stock by the registered holder thereof in properly endorsed and due
form for exchange and cancellation (together with all necessary stock powers and
other appropriate documentation), or upon receipt of evidence reasonably
satisfactory to the President, Executive Vice President or any Vice President of
the Corporation of the loss, theft, or destruction of the certificate(s)
therefor from the registered holder of such stock (together with delivery of an
indemnity bond in appropriate amount, payable to the Corporation, if the
President, Executive Vice President or any Vice president shall so require it in
their reasonable judgment), the President, Executive Vice President or any Vice
President of the Corporation or his designee shall accept and cancel the
certificate(s) surrendered, if applicable, and shall issue to such holder
certificate(s), endorsed with such legends as are required or are appropriate,
in such denominations as such holder may request, amounting in the aggregate to
0.3856627368 shares of the New Common Stock for every one share of the Old
Common Stock as shall have been surrendered or for which satisfactory evidence
of loss, theft, or destruction shall have been received. The President,
Executive Vice President or any Vice President, or his designee, shall enter the
fact of cancellation of the old share certificate(s) for Old Common Stock and
the issuance of the new certificate(s) for New Common Stock and the appropriate
name or names of the holders of such shares represented by the new
certificate(s)
on its stock records and transfer books. To the extent that the holders of the
shares of the Old Common Stock shall not present their shares for exchange in
the manner specified above, such failure to act shall in no circumstance affect
their status as holders of the new Common stock or the validity of their
shares, except that each certificate they hold after the effective date of this
Certificate of Amendment which prior thereto represented shares of the Old
Common Stock shall be deemed to represent the appropriate number, as determined
above, of the authorized and outstanding shares of the New Common Stock for
every purpose.
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:27 PM 07/13/1993
931945603 - 2168750
CERTIFICATE OF AMENDMENT
TO THE CERTIFICATE
OF INCORPORATION OF
REDMAN HOLDING CORPORATION
The undersigned, being the Executive Vice President and Secretary,
respectively, of Redman Holding Corporation, a Delaware corporation (the
"Corporation"), do hereby certify:
FIRST: The name of the Corporation is Redman Holding Corporation.
SECOND: The Certificate of Incorporation was filed with the Secretary of
State of Delaware on August 5, 1988.
THIRD: Article FIRST of the Certificate of Incorporation hereby is amended
to read in its entirety as follows:
"FIRST - The name of the corporation is Redman Industries, Inc."
FOURTH: The aforementioned amendment to the Certificate of Incorporation
was duly adopted in accordance with Section 242 of the General Corporation of
Law of the State of Delaware (the "DGCL") Written consent of the Corporation's
stockholders has been given in accordance with the provisions of Section 228 of
the DGCL and written notice has been given to nonconsenting stockholders as
provided in Section 228(d).
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed pursuant to Section 103(a)(2) of the DGCL by the
undersigned duly authorized officers of the Corporation as of the 8th day of
July, 1993.
REDMAN HOLDING CORPORATION
BY: /S/ FERGUS J. WALKER
----------------------
Name: Fergus J. Walker
Title: Executive Vice President
ATTEST:
/S/ PAUL L. BARRETT
- ----------------------
Paul L. Barrett,
SECRETARY
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
AFTER PAYMENT OF CAPITAL OF
REDMAN HOLDING CORPORATION
(Pursuant to Section 242 of the General Corporation
Law of the State of Delaware)
Redman Holding Corporation, a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware, does hereby
certify:
FIRST: That Article Fourth and Article Sixth of the Certificate of
Incorporation of the Corporation be, and they hereby are, amended and restated
to read in their entirety, respectively, as set forth on Exhibit A attached
hereto and incorporated herein by this reference.
SECOND: That the Certificate of Incorporation of the Corporation be, and
it hereby is, amended in part to add Article Tenth thereto as set forth on
Exhibit A attached hereto and incorporated herein by this reference.
THIRD: That the attached amendments to the Certificate of Incorporation
of the Corporation were duly adopted by the directors of the Corporation in
accordance with the provisions of Section 242 of the General Corporation Law of
the State of Delaware.
FOURTH: That the attached amendments to the Certificate of Incorporation
of the Corporation were duly adopted by the sole stockholder of the Corporation
in accordance with the provisions of Section 242 of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, Redman Holding Corporation has caused this Certificate
to be executed by its Vice President and attested by its Assistant Secretary as
of this 12th day of October, 1988.
REDMAN HOLDING CORPORATION
By: /s/ Thomas W. Sturgess
________________________
Thomas W. Sturgess
Vice President
ATTEST:
/s/ Suzanne C. Goddard
________________________
Suzanne C. Goddard,
Assistant Secretary
EXHIBIT A
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 40,000,000, 10,000,000 of such shares to be
classified as preferred stock (the "Preferred Stock"), par value $0.01 per
share, and 30,000,000 of such shares to be classified as common stock (the
"Common Stock"), par value $0.01 per share.
The designations and the powers, preferences, rights, qualifications,
limitations, and restrictions of the Preferred Stock and the Common Stock of
the Corporation are as follows:
A. Provisions Relating to the Preferred Stock.
1. 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 issuance of such class or series adopted by
the board of directors of the Corporation as hereafter prescribed.
2. Authority is hereby expressly granted to and vested in the board
of directors of the Corporation to authorize the issuance of the Preferred
Stock from time to time in one or more classes or series, and with respect to
each such class or series of the 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 such 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 other classes or
series of stock;
(ii) the number of shares to constitute such 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 such class or series;
(iv) whether or not the shares of any such 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 such 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, or a combination thereof, 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 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 such class or series shall be entitled to receive upon the
voluntary or involuntary dissolution of, or upon any distribution of the
assets of, the Corporation;
(viii) whether or not the shares of any such 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 or of any other series of the same or
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 provisions with respect to any
such class or series as may to the board of directors of the Corporation
seem advisable.
3. 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 of the Corporation 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
2
of the Corporation may decrease the number of shares of the Preferred Stock
designated for any existing class or series by a resolution, subtracting from
such series unissued shares of the Preferred Stock designated for such class or
series, and the shares so subtracted shall become authorized, unissued, and
undesignated shares of the Preferred Stock.
B. Provisions Relating to the Common Stock.
1. Except as otherwise required by law, and subject to any
special voting rights which may be granted any class or series of Preferred
Stock in the board of directors resolution which creates such class or series,
each holder of Common Stock shall be entitled to one vote for each share of
Common Stock standing in such holder's name on the records of the Corporation on
each matter submitted to a vote of the stockholders.
2. Subject to the rights of the holders of the Preferred
Stock, the holders of the Common Stock shall be entitled to receive when, as,
and if declared by the board of directors of the Corporation, out of funds
legally available therefor, dividends payable in cash, stock, or otherwise.
3. Upon any liquidation, dissolution, or winding up of the
Corporation, whether voluntary or involuntary, and after the holders of the
Preferred Stock and the holders of any bonds, debentures, or other obligations
of the Corporation shall have been paid in full the amounts to which they shall
be entitled (if any), or a sum sufficient for such payment in full shall have
been set aside, the remaining net assets of the Corporation shall be distributed
pro rata to the holders of the Common Stock in accordance with their respective
rights and interests, to the exclusion of the holders of the Preferred Stock and
any bonds, debentures, or other obligations of the Corporation.
C. General.
1. 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 of the Corporation,
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 not be liable for any further
payments in respect of such shares.
2. The Corporation shall have authority to create and issue
rights and options entitling their holders to purchase
3
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 of the Corporation. The board
of directors of the Corporation 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.
D. Exchange Effected.
The amendment to Article Fourth of the Certificate of
Incorporation of the Corporation made by this Certificate of Amendment of
Certificate of Incorporation effects an exchange and cancellation of issued
shares in the following manner:
Upon the adoption of the Certificate of Amendment by the
holder of the Corporation's Common Stock, par value $1.00 per share,
and due execution and filing with the Secretary of State of the State
of Delaware of this Certificate of Amendment setting forth such
amendment to Article Fourth, every share of the Common Stock, par value
$1.00 per share ("Old Common Stock"), of the Corporation authorized and
outstanding as of the effective date of such Certificate of Amendment
shall be automatically converted into, and deemed for all purposes to
be, 100 shares of Common Stock, par value $.01 per share ("New Common
Stock"), of the Corporation, and written notice thereof shall forthwith
be given by the secretary of the Corporation to the holder of the
outstanding shares of the Old Common Stock in person or at its latest
address reflected on the records of the Corporation, together with
notice of the procedures hereinafter specified for exchange or
replacement of the certificate or certificates representing shares of
the Old Common Stock. Upon surrender of the certificate(s) representing
shares of the Old Common Stock by the registered holder thereof in
properly endorsed and due form for exchange and cancellation (together
with all necessary stock powers and other appropriate documentation),
or upon receipt of evidence reasonably satisfactory to the executive
officers of the Corporation of the loss, theft, or destruction of the
certificate(s) therefor from the registered holder of such stock
(together with delivery of an indemnity bond in appropriate amount,
payable to the Corporation, if the executive officers shall so require
it in their reasonable judgment), the executive officers of the
Corporation, or their designee, shall accept and cancel the
certificate(s) surrendered, if applicable, and shall issue to such
holder certificate(s), endorsed with such legends as are required or
are appropriate, in such denominations as such holder may request,
amounting in the aggregate to 100
4
shares of the New Common Stock for every one share of the Old Common
Stock as shall have been surrendered or for which satisfactory
evidence of loss, theft, or destruction shall have been received. The
executive officers, or their designee, shall enter the fact of
cancellation of the old share certificate(s) for Old Common Stock and
the issuance of the new certificate(s) for New Common Stock and the
appropriate name or names of the holder or holders of such shares
represented by the new certificate(s) on its stock records and
transfer books. To the extent that the holder of the shares of the Old
Common Stock shall not present its shares for exchange in the manner
specified above, such failure to act shall in no circumstance affect
its status as holder of the New Common Stock or the validity of its
shares, except that each certificate it holds after the effective date
of the Certificate of Amendment that prior thereto represented shares
of the Old Common Stock shall be deemed to represent the appropriate
number as determined above of the authorized and outstanding shares
of the New Common Stock for every purpose.
SIXTH: The Corporation shall indemnify any person who was, is, or is
threatened to be made a party to a proceeding (as hereinafter defined) by
reason of the fact that he (i) is or was a director or officer of the
Corporation or (ii) while a director or officer of the Corporation, is or was
at the request of the Corporation as a director, officer, partner, venturer,
proprietor, trustee, employee, agent, or similar functionary of another foreign
or domestic corporation, partnership, joint venture, sole proprietorship,
trust, employee benefit plan, or other enterprise, to the fullest extent
permitted under the General Corporation Law of the State of Delaware (the
"GCLD"), as the same exists or may hereafter be amended. Such right shall be a
contract right and shall include the right to be paid by the Corporation
expenses incurred in defending any such proceeding in advance of its final
disposition to the maximum extent permitted under the GCLD, as the same exists
or may hereafter be amended. If a claim for indemnification or advancement of
expenses hereunder is not paid in full by the Corporation within 60 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 shall also be
entitled to be paid the expenses of prosecuting such claim. It shall be a
defense to any such action that such indemnification or advancement of costs of
defense are not permitted under the GCLD, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its board of directors or any committee thereof, independent legal
counsel, or stockholders) to have made its determination prior to the
commencement of such action that indemnification of, or advancement of costs of
defense to, the claimant is
5
permissible in the circumstances nor an actual determination by the Corporation
(including its board of directors or any committee thereof, independent legal
counsel, or stockholders) that such indemnification or advancement is not
permissible shall be a defense to the action or create a presumption that such
indemnification or advancement is not permissible. In the event of the death of
any person having a right of indemnification under the foregoing provisions,
such right shall inure to the benefit of his heirs, executors, administrators,
and personal representatives. The rights conferred above shall not be exclusive
of any other right which any person may have or hereafter acquire under any
statute, by-law, resolution of stockholders or directors, agreement, or
otherwise.
The Corporation may additionally indemnify any employee or agent of the
Corporation to the fullest extent permitted by law.
As used herein, the term "proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such an action, suit, or
proceeding, and any inquiry or investigation that could lead to such an action,
suit, or proceeding.
TENTH: 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 not in good faith or which involve intentional misconduct or knowing
violation of law, (iii) under Section 174 of the GCLD, or (iv) for any
transaction from which the director derived an improper personal benefit.
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:30 PM 09/17/1993
733260049 - 2168750
RESTATED CERTIFICATE OF INCORPORATION
OF
REDMAN INDUSTRIES, INC.
(Pursuant to Section 242 of the General
Corporation Law of the State of Delaware)
Redman Industries, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), does
hereby certify as follows:
1. The name of the corporation is REDMAN INDUSTRIES, INC. (the
"Corporation").
2. The name under which the Corporation was originally incorporated is
Redman Holding Corporation and the date of filing the original certificate of
Incorporation of the Corporation with the Secretary of State of the State of
Delaware was August 5, 1988.
3. This Restated Certificate of Incorporation amends and restates the
provisions of the Certificate of Incorporation of the Corporation, as amended,
and was duly adopted by the written consent of the stockholders of the
Corporation entitled to vote thereon in accordance with the provisions of
Sections 228, 242, and 245 of the General Corporation Law of the State of
Delaware.
4. The Certificate of Incorporation of the Corporation, as amended
and restated hereby, shall, upon its filing with the Secretary of State of the
State of Delaware, read in its entirety as follows:
FIRST: The name of the corporation is Redman Industries, Inc.
SECOND: The registered office of the corporation in the State of
Delaware is located at Corporation Trust Center, 1209 Orange Street in the City
of Wilmington, County of New Castle. The name of the registered agent of the
corporation at such address is The Corporation Trust Company.
THIRD: The purpose of the corporation and the nature and objects of
the business to be transacted, promoted, and carried on are to engage in any
lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 30,000,000 shares, divided into two
classes as follows: (i) 10,000,000 shares of Preferred Stock, par value $0.01
per share ("Preferred Stock"); and (ii) 20,000,000 shares of Common Stock, par
value $0.01 per share ("Common Stock").
The designations and the powers, preferences, rights,
qualifications, limitations, and restrictions of the Preferred Stock and the
Common Stock of the Corporation are as follows:
A. Provisions Relating to the Preferred Stock.
1. 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 issuance of such class or series
adopted by the board of directors of the Corporation as hereafter prescribed.
2. Authority is hereby expressly granted to and vested in the
board of directors of the Corporation to authorize the issuance of the Preferred
Stock from time to time in one or more classes or series, and with respect to
each such class or series of the 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 such 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 other classes or series of stock;
(ii) the number of shares to constitute such 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 such
class or series;
2
3. 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 of the Corporation 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 of the Corporation may decrease the number of shares of the
Preferred Stock designated for any existing class or series by a resolution,
subtracting from such series unissued shares of the Preferred Stock designated
for such class or series, and the shares so subtracted shall become authorized,
unissued, and undesignated shares of the Preferred Stock.
B. Provisions Relating to the Common Stock.
1. Except as otherwise required by law, and subject to any
special voting rights which may be granted any class or series of Preferred
Stock in the board of directors resolution which creates such class or series,
each holder of Common Stock shall be entitled to one vote for each share of
Common Stock standing in such holder's name on the records of the Corporation
on each matter submitted to a vote of the stockholders.
2. Subject to the rights of the holders of the Preferred
Stock, the holders of the Common Stock shall be entitled to receive when, as,
and if declared by the board of directors of the Corporation, out of funds
legally available therefor, dividends payable in cash, stock, or otherwise.
3. Upon any liquidation, dissolution, or winding up of the
Corporation, whether voluntary or involuntary, and after the holders of the
Preferred Stock and the holders of any bonds, debentures, or other obligations
of the Corporation shall have been paid in full the amounts to which they shall
be entitled (if any), or a sum sufficient for such payment in full shall have
been set aside, the remaining net assets of the Corporation shall be
distributed pro rata to the holders of the Common Stock in accordance with their
respective rights and interests, to the exclusion of the holders of the
Preferred Stock and any bonds, debentures, or other obligations of the
Corporation.
C. General.
1. 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
4
ratified by the board of directors, a committee thereof (to the extent
permitted by applicable law), or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting
of the board of directors or of a committee which authorizes the contract or
transactions.
SIXTH: The Corporation shall indemnify any person who was, is, or is
threatened to be made a party to a proceeding (as hereinafter defined) by
reason of the fact that he (i) is or was a director or officer of the
Corporation or (ii) while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent, or similar functionary of
another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise, to the
fullest extent permitted under the Delaware Code, as the same exists or may
hereafter be amended. Such right shall be a contract right and shall include
the right to be paid by the Corporation expenses incurred in defending any such
proceeding in advance of its final disposition to the maximum extent permitted
under the Delaware Code, as the same exists or may hereafter be amended. If a
claim for indemnification or advancement of expenses hereunder is not paid in
full by the Corporation within 60 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 shall also be entitled to be paid the expenses
of prosecuting such claim. It shall be a defense to any such action that such
indemnification or advancement of costs of defense are not permitted under the
Delaware Code, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its board of
directors or any committee thereof, independent legal counsel, or stockholders)
to have its determination prior to the commencement of such action that
indemnification of, or advancement or costs of defense to, the claimant is
permissible in the circumstances nor an actual determination by the Corporation
(including its board of directors or any committee thereof, independent legal
counsel, or stockholders) that such indemnification or advancement is not
permissible shall be a defense to the action or create a presumption that such
indemnification or advancement is not permissible. In the event of the death of
any person having a right of indemnification under the foregoing provisions,
such right shall inure to the benefit of his heirs, executors, administrators,
and personal representatives. The rights conferred above shall not be exclusive
of any other right which any person may have or hereafter acquire under any
statute, by-
6
law, resolution of stockholders or directors, agreement, or otherwise.
The Corporation may additionally indemnify any employee or agent of the
Corporation to the fullest extent permitted by law.
As used herein, the term "proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such an action, suit, or
proceeding, and any inquiry or investigation that could lead to such an action,
suit, or proceeding.
SEVENTH: All the powers of the Corporation, insofar as the same may be
lawfully vested by this Certificate of Incorporation in the board of directors,
are hereby conferred upon the board of directors. In furtherance and not in
limitation of that power, the board of directors shall have the power, upon the
affirmative vote of a majority of the directors at a meeting lawfully convened
and at least two-thirds (2/3) of the Classified Directors (as hereinafter
defined) than serving to make, adopt, alter, amend, and repeal from time to
time the Bylaws of the Corporation and to make from time to time new Bylaws of
the Corporation (subject to the right of the stockholders entitled to vote
thereon to adopt, alter, amend, and repeal Bylaws made by the board of
directors or to make new Bylaws); provided, however, that the stockholders of
the Corporation shall be entitled to adopt, alter, amend, or repeal Bylaws made
by the board of directors or to make new Bylaws solely upon the affirmative
vote of the holders of at least two-thirds (2/3) of the outstanding shares of
each class of capital stock of the Corporation then entitled to vote thereon.
EIGHTH: The Corporation reserves the right to amend, alter, change, or
repeal any provision contained in this certificate of incorporation in the
manner new or hereafter prescribed by law and all rights conferred on officers,
directors, and stockholders herein are granted subject to this reservation.
NINTH: 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 not in good faith or which involve intentional misconduct or
knowing violation of law, (iii) under Section 174
7
of the Delaware Code, or (iv) for any transaction from which the director
derived an improper personal benefit. Any repeal or amendment of this Article
NINTH 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 arising from an act or omission occurring prior to
the time of such repeal or amendment. In addition to the circumstances in which
a director of the Corporation is not personally liable as set forth in the
foregoing provisions of this Article NINTH, a director shall not be liable to
the Corporation or its stockholders to such further extent as permitted by any
law hereafter enacted, including without limitation any subsequent amendment to
the Delaware Code.
TENTH: The number of directors constituting the board of directors
shall be fixed by, or in the manner provided in, the Bylaws of the Corporation,
provided that such number shall be no fewer than five and no more than nine
(plus such number of directors as may be elected from time to time pursuant to
the terms of any series of Preferred Stock that may be issued and outstanding
from time to time). The directors of the Corporation (exclusive of directors
who are elected pursuant to the terms of, and serve as representatives of the
holders of, any series of Preferred Stock) shall be referred to herein as
"Classified Directors" and shall be divided into three classes, with the first
class referred to herein as "Class 1," the second class as "Class 2," and the
third class as "Class 3." Each class shall consist as nearly as possible of
one-third (1/3) of the total number of directors making up the entire board of
directors. The term of office of the initial Class 1 directors shall expire at
the 1994 annual meeting of stockholders, the term of office of the initial
Class 2 directors shall expire at the 1995 annual meeting of stockholders, and
the term of office of the initial Class 3 directors shall expire at the 1996
annual meeting of stockholders, with each director to hold office until his
successor shall have been duly elected and qualified. At each annual meeting of
stockholders, directors elected to succeed those directors whose terms then
expire shall be elected for a term of office to expire at the third succeeding
annual meeting of stockholders after their election, with each director to hold
office until his successor shall have been duly elected and qualified.
Notwithstanding the foregoing, whenever the holders of any one or more
Classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by series or by class (excluding holders of Common
Stock), to elect directors, the election, term of office, filling of vacancies,
8
and other features of such directorships shall be governed by the terms of
this Certificate of Incorporation (including any amendment to this Certificate
of Incorporation that designates a series of Preferred Stock), and such
directors so elected by the holders of Preferred Stock shall not be divided
into classes pursuant to this Article TENTH unless expressly provided by such
terms.
Any or all Classified Directors may be removed, with cause, upon the
affirmative vote of the holders of a majority of the outstanding shares of each
class of capital stock of the Corporation then entitled to vote at an election
of such Classified Directors.
ELEVENTH: The Corporation expressly elects to be governed by Section
203 of the General Corporation Law of Delaware.
TWELFTH: Any action required or permitted to be taken by the
stockholders of the Corporation (including without limitation the election of
Classified Directors) shall be effected at an annual or special meeting of
stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders, provided that the foregoing prohibitions shall not
apply to any action to be taken exclusively by holders of any one or more
classes or series of Preferred Stock, voting separately by series or by class
(excluding holders or Common Stock). Special meetings of stockholders of the
Corporation may be called by the board of directors pursuant to a resolution
adopted by a majority of the Classified Directors then serving, by the Chairman
of the board of directors, or by any holder or holders of at least twenty-five
percent (25%) of the outstanding shares of capital stock of the Corporation then
entitled to vote on any matter for which the respective special meeting is being
called.
THIRTEENTH: Notwithstanding any other provisions of this Certificate
of Incorporation or any provision of law which might otherwise permit a lesser
vote or no vote, the affirmative vote of the holders of at least two-thirds
(2/3) of the outstanding shares of each class of capital stock of the
Corporation then entitled to vote thereon shall be required to amend, alter, or
repeal any one or more of Articles of this Restated Certificate of
Incorporation.
9
IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation to be executed and attested on this 15th day of
September, 1993.
REDMAN INDUSTRIES, INC.
By: /s/ Fergus J. Walker
--------------------
Fergus J. Walker,
Executive Vice President
ATTEST:
/s/ Paul L. Barrett
- --------------------
Paul L. Barrett,
Secretary
10
CERTIFICATE OF INCORPORATION
OF
REDMAN MOBILE HOMES, INC.
(Under Section 102 of the General Corporation Law
of the State of Delaware)
********************
FIRST: The name of the corporation is REDMAN MOBILE HOMES, INC.
SECOND: The registered office of the Corporation in the State of
Delaware is located at 100 West Tenth 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 or purposes to be conducted or
promoted by the Corporation 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, including without limitation the following:
A. To engage in and conduct, in all its several departments, phases and
branches, the business of designing, manufacturing, fabricating, assembling,
processing, leasing as lessee, purchasing or otherwise acquiring, investing
in, holding, owning, operating, servicing, mortgaging, pledging or otherwise
giving liens against, leasing as lessor, selling, assigning, exchanging,
transferring or otherwise disposing of, shipping, importing, exporting and
generally dealing in and with any and all classes of goods, wares and
merchandise and personal property of every class, character and description,
and generally to engage in and conduct any form of manufacturing or
mercantile business not contrary to law.
B. To take, lease as lessee, purchase or otherwise acquire, invest in,
own, hold, use, exchange, develop, improve, manage, operate, option,
subdivide or otherwise deal in and with, mortgage, encumber, lease as lessor,
sell, convey, assign, transfer, release or otherwise dispose of real property
of any and all kinds and any and all estates, rights and interests therein.
C. To engage in the business of managing, supervising and operating real
property, buildings and
structures; to negotiate and consummate for itself or for others leases with
respect to any such property; to enter into contracts and arrangements, either
as principal or as agent for the maintenance, repair and improvement of any
such property; to furnish financial (without banking or discount privileges),
management and other services to others; to purchase or otherwise acquire, own,
use, improve, maintain, sell, lease or otherwise dispose of any articles,
materials, machinery and property used for or in connection with the business
of the Corporation, and to engage in and conduct or authorize, license and
permit others to engage in and conduct any business or activity incident,
necessary, advisable or advantageous to the ownership of real property,
buildings and structures.
D. To carry on and conduct a general construction business, including the
designing, constructing, removing or otherwise engaging in any work upon
houses, buildings, factories and other structures of every description, and all
kinds of excavation and iron, steel, wood, masonry, mechanical, electrical and
earth construction and installations; to make, execute and take or receive any
contracts or assignments of contracts therefor or in anywise connected
therewith; to manufacture or otherwise acquire and furnish all building and
other materials and supplies connected therewith or required therefor; to
manufacture, produce, adapt and prepare, deal in and with any materials,
articles or things incidental to or required for or useful in connection with
any of its business.
E. To enter into joint ventures, associations or general or limited
partnership arrangements of every kind and character with any person, firm,
association or corporation.
F. To purchase or otherwise acquire the whole or any part of the property,
assets, business, good will and rights, and to undertake and assume the whole
or any part of the liabilities and obligations of any person, firm, association
or corporation, and to pay for the same in cash, in shares of stock of any
class of the Corporation or the bonds, notes or other obligations thereof, or
otherwise; to hold or in any manner to dispose of, the whole or any part of the
business so acquired, and to exercise all powers necessary or convenient in or
about the conduct, management and carrying on of any such business.
G. To subscribe for, purchase, borrow or otherwise acquire, own, hold,
sell, lend, exchange, pledge, hypothecate or otherwise dispose of or deal in
and with shares of stocks or bonds, debentures, notes, acceptances or other
obligations made, created or issued by any private, public, quasi-public or
other corporation or association, domestic or foreign, or by any domestic or
foreign state, government or governmental authority, or by any political or
administrative subdivision or department thereof, and any and all trust
participation or other certificates of or for, or receipt evidencing interest
in, any such shares or obligations and to issue in payment or exchange there-
for by any other lawful means and, while the owner of any shares, bonds,
debentures, notes, acceptances or other obligations, or of any interest
therein, to posesss and exercise all the rights, powers and privileges of
ownership, including the right to vote thereon for any and all purposes.
H. To borrow or raise moneys for any of the purposes of the
Corporation and, from time to time without limit as to amount, to draw,
make, accept, endorse, execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures and other negotiable or
non-negotiable instruments and evidences of indebtedness, and to secure the
payment of any thereof and of the interest thereon by mortgage upon or
pledge, conveyance or assignment in trust of the whole or any part of the
property of the Corporation, whether at the time owned or thereafter
acquired, and to sell, pledge or otherwise dispose of such bonds or other
obligations of the Corporation for its corporate purposes.
In general, to possess and exercise all the powers and privileges granted
by the Central Corporation Law of Delaware or by any other law of Delaware or
by this certificate of incorporation together with any powers incidental or
convenient to the conduct, promotion or attainment of the business or purposes
of the Corporation.
The business and purposes specified in the foregoing clauses shall, except
where otherwise expressed, be in nowise limited or restricted by reference to,
or inference from, the terms of any other clause in this certificate of
incorporation, but the business and purposes specified in each of the foregoing
clauses of this article shall be regarded as independent business and purposes.
FOURTH: The Corporation is authorized to issue only one class of stock,
which shall be designated "Capital Stock". The total number of shares of stock
which the Corporation shall have authority to issue is one thousand (1,000),
and the par value of each of such shares is One Dollar ($1.00).
FIFTH: The names and mailing addresses of the incorporators of the
Corporation are:
Name Mailing Address
---- ---------------
F. W. Burnett, Jr. 2300 Republic National Bank Building
Dallas, Texas 75201
Harry M. Roberts, Jr. 2300 Republic National Bank Building
Dallas, Texas 75201
David R. McAtee 2300 Republic National Bank Building
Dallas, Texas 75201
SIXTH: The following provisions are hereby adopted for the purpose of
defining, limiting and regulating the powers of the Corporation and of the
directors and stockholders:
A. Election of directors need not be by ballot;
B. The Board of Directors shall have power to make, alter, amend or
repeal the bylaws of the Corporation, except as otherwise provided in any
bylaws adopted by the stockholders then entitled to vote, but bylaws so
made, altered or amended by the Board of Directors may be altered or
repealed by the stockholders then entitled to vote;
C. The Corporation, its directors, officers and stockholders shall
possess and may exercise all powers and privileges which are now or may
hereafter be conferred by the laws of the State of Delaware; and
D. To the extent permitted by law and subject to the provisions of
this certificate of incorporation any contract, transaction or act of the
Corporation or of the Board of Directors or of any committee thereof which
shall be ratified by a majority in interest of a quorum of the stockholders
of the Corporation entitled to vote at any annual or special meeting called
for such purpose shall be as valid and binding as though ratified by every
stockholder of the Corporation; provided, however, that any failure to
submit any such contract, transaction or act to the stockholders for
approval and ratification or any failure of the stockholders to approve and
ratify such contract, transaction or act, when submitted, shall not be
deemed in any way to invalidate the same or deprive the Corporation, its
directors or officers of their right to proceed with such contract,
transaction or act.
SEVENTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
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 the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for
the 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 the 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 the
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 the Corporation, as the case may be, agree to any compromise
or arrangement and to any reorganization of the 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 the
Corporation, as the case may be, and also on the Corporation.
EIGHTH: Cumulative voting for the election of directors shall not be
permitted.
NINTH: No holder of any shares of capital stock of the Corporation
shall, as such holder, have any preemptive or preferential right to receive,
purchase or subscribe to any shares of capital stock of the Corporation; any
obligations, evidences of indebtedness or other securities of the Corporation
convertible into or accompanied by rights to receive, purchase or subscribe to
any shares of capital stock of the Corporation; any right of subscription to, or
any warrant or option for the purchase of, any thereof; or any other securities
that may be issued or sold by the Corporation.
TENTH: The Corporation shall have perpetual existence.
ELEVENTH: The stockholders of the Corporation shall not be personally
liable for the payment of the Corporation's debts.
TWELFTH: The Corporation reserves the right to take any lawful action
and to make any amendment of this certificate of incorporation in any form,
manner or substance now or hereafter authorized or permitted by law. All holders
of stock of the Corporation, by acceptance of their shares, agree that all
rights to which such shares entitle them are subject to the provisions of this
certificate of incorporation from the time of issuance thereof.
We, the undersigned, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, hereby
declaring and certifying that this is our act and deed and the facts stated
herein are true and accordingly, have hereunto set our hands this 15th day of
June, A.D., 1971.
/s/ F. W. Burnett, Jr.
------------------------------
F. W. Burnett, Jr.
/s/ Harry M. Roberts, Jr.
------------------------------
Harry M. Roberts, Jr.
/s/ David R. McAtee
------------------------------
David R. McAtee
THE STATE OF TEXAS }
COUNTY OF DALLAS }
BE IT REMEMBERED, that on this 15th day of June, A.D., 1971, personally
came before me, /s/ Nancy L. Seelen, a Notary Public in and for Dallas County,
Texas, F. W. BURNETT, JR., HARRY M. ROBERTS, JR. and DAVID R. MCATEE, all of the
parties to the foregoing Certificate of Incorporation, known to me personally to
be such, and severally acknowledged the said Certificate to be the act and deed
of the signers respectively
and that the facts therein stated are truly set forth.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, the day and year aforesaid.
/s/ Nancy L. Seelen
------------------------------
Notary Public in and for Dallas
County, Texas.
My Commission expires June 1, 1973.
[SEALER]
NANCY L. SEELEN, Notary public
in and for Dallas County, Texas
My commission expires June 1, 1973
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
REDMAN MOBILE HOMES, INC., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware, DOES
HEREBY CERTIFY.
FIRST: That the Board of Directors of said corporation, by the unanimous
written consent of its members, filed with the minutes of the board, adopted a
resolution proposing and declaring advisable the following amendment to the
Certificate of Incorporation of said corporation:
RESOLVED, that the Certificate of Incorporation of REDMAN
MOBILE HOMES, INC. be amended by changing the Article thereof
number "FIRST" so that, as amended, said Article shall be and read as
follows:
"FIRST: The name of the Corporation is REDMAN HOMES, INC."
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given unanimous written consent to said amendment in
accordance with the provisions of Section 228 of the General Corporation Law of
the State of Delaware.
THIRD: That the aforesaid 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.
IN WITNESS WHEREOF, said REDMAN MOBILE HOMES, INC. has caused this
certificate to be signed by , its Vice President, and attested by
Winston L. Adkins, its Assistant Secretary, this 13 day of December, 1976.
REDMAN MOBILE HOMES, INC.
By /s/
------------------------------
President
ATTEST:
By /s/ Winston L. Adkins
------------------------------
Assistant Secretary
1949299 ENDORSED
FILED
In the office of the Secretary of State
of the State of California
SEP 26 1995
/s/ Bill Jones
BILL JONES, Secretary of State
ARTICLES OF INCORPORATION
OF
SAN JOSE ADVANTAGE HOMES, INC.
ARTICLE I
The name of this corporation is SAN JOSE ADVANTAGE HOMES, INC.
ARTICLE II
The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of California other than the banking business, the trust company business or
the practice of a profession permitted to be incorporated by the California
Corporation Code.
ARTICLE III
The name and address in the state of California of this corporation's
initial agent for service of process are: Glenn Gilliam, 1260 Persian Drive,
Suite Bl, Sunnyvale, California 94089.
ARTICLE IV
The liability of the directors of the corporation for monetary damages
shall be eliminated to the fullest extent permissible under California law.
ARTICLE V
The corporation is authorized to provide indemnification of agents (as
defined in Section 317 of the corporation Code) for breach of duty to the
corporation and its shareholders through bylaws provisions or through agreements
with agents, or both, in excess of the indemnification otherwise permitted by
Section 317 of the Corporations Code, subject to the limits on such excess
indemnification set forth in Section 204 of the Corporations Code.
ARTICLE VI
This corporation is authorized to issue only one class of shares of
stock. The total number of shares which this corporation is authorized to issue
is One Million (l,000,000).
/s/ Peter M. Sproul
-----------------------------
PETER M. SPROUL, Esq.,
Initial Incorporator
I hereby declare that I am the person who executed the foregoing
Articles of Incorporation, which execution is my act and deed.
Dated: September 20, 1995
/s/ Peter M. Sproul
-----------------------------
PETER M. SPROUL, Esq.
Articles of Incorporation 2.
ARTICLES OF INCORPORATION
OF
SOUTHERN SHOWCASE FINANCE, INC.
These Articles of Incorporation are signed by the incorporator for the
purpose of forming a profit corporation pursuant to the provisions of Act 284,
Public Acts of 1972, as amended, as follows:
ARTICLE I
The name of the corporation is Southern Showcase Finance, Inc..
ARTICLE II
The purpose or purposes for which the corporation is formed is to
engage in any activity within the purposes for which corporations may be formed
under the Business Corporation Act of Michigan (the "Act").
ARTICLE III
The total authorized shares is 1,000 shares of Common Stock.
ARTICLE IV
The corporation has only one class of stock.
ARTICLE V
The address and mailing address of the registered office is:
30600 Telegraph Road
Bingham Farms, MI 48025
The name of the resident agent at the registered office is The
Corporation Company.
ARTICLE VI
The name and address of the incorporator are as follows:
Name Residence of Business Address
---- -----------------------------
Jay L. Kreindler 2701 University Drive
Suite 300
Auburn Hills, MI 48326
ARTICLE VII
The duration of the corporation is perpetual.
ARTICLE VIII
A director of the corporation shall not be personally liable to the
Corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director. However, this provision does not eliminate or limit the
liability of a director for any of the following:
(a) any breach of the director's duty of loyalty to the
corporation or its shareholders;
(b) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
(c) a violation of Section 551(l) of the Act;
(d) a transaction from which the director derived an improper
personal benefit; or
(e) an act or omission occurring prior to the date this Article
becomes effective.
Any repeal, amendment or other modification of this Article shall not
increase the liability or alleged liability of any director of the corporation
then existing with respect to any state of facts then or theretofore existing
or any action, suit or proceeding theretofore or thereafter brought or
threatened based in whole or in part upon any such state of facts. If the Act is
subsequently amended to authorize corporate action further eliminating or
limiting personal liability of directors, then the liability of directors shall
be eliminated or limited to the fullest extent permitted by the Act as so
amended.
-2-
ARTICLE IX
Any action required or permitted by the Act, these Articles or the
Bylaws of the corporation to be taken at an annual or special meeting of
shareholders may be taken without a meeting, without prior notice and without a
vote, if consents in writing, setting forth the action so taken, are signed by
the holders of outstanding shares having not less than the minimum number of
votes that would be necessary to authorize or take the action at a meeting at
which all shares entitled to vote on the action were present and voted. The
written consents shall bear the date of signature of each shareholder who signs
the consent. No written consents shall be effective to take the corporate action
referred to unless, within 60 days after the record date for determining
shareholders entitled to express consent to or to dissent from a proposal
without a meeting, written consents dated not more than 10 days before the
record date and signed by a sufficient number of shareholders to take the
action are delivered to the corporation. Delivery shall be to the corporation's
registered office, its principal place of business, or an officer or agent of
the corporation having custody of the minutes of the proceedings of its
shareholders. Delivery made to a corporation's registered office shall be by
hand or by certified or registered mail, return receipt requested. Prompt notice
of the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to shareholders who would have been entitled to
notice of the shareholder meeting if the action had been taken at a meeting and
who have not consented in writing.
I, the sole incorporator, sign my name this 28th day of April, 1998.
/s/ Jay L. Kreindler
--------------------------
Jay L. Kreindler
-3-
ARTICLES OF INCORPORATION
OF
WHITWORTH MANAGEMENT, INC.
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned do hereby associate themselves into a
corporation, under and by virtue of the Nevada Revised Statutes, Title 7,
Chapter 78, as amended, and do hereby certify and adopt the following Articles
of Incorporation:
ARTICLE I
The name of the corporation is WHITWORTH MANAGEMENT, INC.
ARTICLE II
The location of the principal office of the corporation in the
State of Nevada is 241 Ridge Street, Suite 440, Reno, Nevada. Branch offices may
hereafter be established at such other place or places, either within or without
the State of Nevada as may be determined from time to time by the Board of
Directors.
ARTICLE III
The purpose for which said corporation is formed is to engage in
any lawful activity. The corporation shall have all powers authorized by Title
7, Chapter 78, of the Nevada Revised Statues, as amended, except as otherwise
provided in these
ARTICLE IV
The amount of the authorized capital stock of this corporation
is 2,500 shares with no par value.
Any and all shares of stock of this corporation of any class
shall be paid in as the Board of Directors may designate and as provided by law,
in cash, real or personal property, option to purchase, or any other valuable
right or thing, for the uses and purposes of the corporation, and said shares of
stock when issued in exchange therefor shall thereupon and thereby become and be
fully paid, the same as though paid for in cash, and shall be nonassessable
forever, and the judgment of the Board of Directors of the corporation
concerning the value of the property, right or thing, acquired in purchase or
exchange for capital stock shall be conclusive. No stockholder shall have any
preemptive rights.
ARTICLE V
Section 1. Directors
Members of the governing board shall be known as "Directors,"
and the number thereof shall not be less than one nor more than nine, except
that, in cases where all the shares of the corporation are owned beneficially
and of record by either one or two stockholders, the number of directors may be
less than two but not less than the number of stockholders.
Section 2. Personal Liability
Directors of the corporation shall not be personally liable to
the corporation or its stockholders for damages for
2
breach of fiduciary duty as a director, except for (i) acts or omissions which
involve intentional misconduct, fraud, or a knowing violation of law; or (ii)
the payment of dividends in violation of the provisions of Chapter 78 of the
Nevada Revised Statutes. If Chapter 78 of the Nevada Revised Statutes is amended
after approval by the stockholders of this article to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the corporation shall be eliminated or limited to the
full extent permitted by Chapter 78 of the Nevada Revised Statutes, as so
amended.
Section 3. Indemnification
Each person who is or was a director of the corporation
(including the heirs, executors, administrators or estate of such person)
shall be indemnified by the corporation as of right to the full extent permitted
by Chapter 78 of the Nevada Revised Statutes against any liability, cost or
expense asserted against such director and incurred by such director by reason
of the fact that such person is or was a director. The expenses of directors,
past or present, incurred in defending a civil or criminal action, suit, or
proceeding must be paid by the corporation as incurred and in advance of the
final disposition of the action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director to repay the amount if it is
ultimately determined by a court of competent jurisdiction that he is not
entitled to be indemnified by the corporation.
3
Section 4. Indemnification and Insurance
The corporation to the full extent of its power to do so, shall
indemnify all directors, officers, employees, and/or agents in accordance with
the provisions the Nevada Revised Statutes. Further, the corporation shall have
power to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee, or agent or
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him in any such capacity or arising out
of his status as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of Nevada law.
Section 5. Modifications
Any repeal or modification of all or any portion of the
provisions of this Article by the stockholders of the corporation shall not
adversely affect any right or protection of an officer or director of the
corporation existing at the time of such repeal or modification.
ARTICLE VI
The name and address of the first Board of Directors of the
corporation, which is one (1), are as follows:
Sarah Smithson
45 Desert Springs Circle
Sparks, Nevada 89431
4
ARTICLE VII
The stock of this corporation, after the amount of the
subscription price, or par value has been fully paid in, shall be nonassessable
forever, and shall not be subject to pay the debts of the corporation.
ARTICLE VIII
The name and address of the incorporator signing these Articles
of Incorporation are as follows:
Sarah Smithson
45 Desert Springs Circle
Sparks, Nevada 89431
ARTICLE IX
The corporation is to have perpetual existence.
ARTICLE X
A resolution, in writing, signed by all of the members of the
Board of Directors of the corporation, shall be and constitute action by the
Board of Directors to the effect therein expressed with the same force and
effect as though such resolution had been passed at a duly convened meeting,
and it shall be the duty of the Secretary to record every such resolution in the
Minute Book of the corporation under its proper date.
ARTICLE XI
The Directors shall have the power to make and alter the Bylaws
of the corporation. Bylaws so made by the Directors under the power so conferred
may be altered, amended or repealed by the Directors or by the Stockholders at
any meeting called and held for that purpose.
5
IN WITNESS WHEREOF, I have hereunto set my hand and executed
these Articles of Incorporation this 4th day of February, 1988.
/s/ Sarah Smithson
-----------------------------
Sarah Smithson
STATE OF NEVADA )
) ss.
COUNTY OF WASHOE )
On this 4th day of February, 1988, personally appeared before
the undersigned, a Notary Public in and for the County of Washoe, State of
Nevada, Sarah Smithson, know to me to be the person described in and who
executed the foregoing instrument freely and voluntarily and for the uses and
purposes therein mentioned.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Donna Gerwin Ott
-----------------------------
Notary Public
[NOTARY SEAL]
DONNA GERWIN OTT
Notary Public - State of Nevada
Appointment Recorded in Washoe County
MY APPOINTMENT EXPIRES JAN 25, 1990
W/10/ss
[STAMP]
MCDONALD, CARANO, WILSON, MCCUNE,
BERGIN, FRANKOVICH & HICKS
6