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EXHIBIT 3.118
Certificate of Incorporation
of
The National Payroll Company, Inc.
FIRST: The name of the Corporation is: The National Payroll Company, Inc.
(the "Corporation").
SECOND: The registered office of the Corporation and registered agent in
the State of Delaware is to be located at 32 Loockerman Square, Suite L-100 in
the City of Dover, County of Kent. The name of its registered agent is The
Prentice-Hall Corporation System, Inc.
THIRD: The nature of the business, and the objects and purposes proposed
to be transacted, promoted and carried on, are to do any and all things herein
mentioned, as fully and to the same extent as natural persons might or could
do, and in any part of the world, viz:
To do any lawful act or thing for which a corporation may be organized
under the General Corporation Law of the State of Delaware (the "GCL").
FOURTH: The aggregate number of shares of stock which the Corporation
shall have authority to issue is One Thousand (1,000) with a par value of one
cent ($.01) per share, all of which shall be designated "Common Stock".
FIFTH: The name and mailing address of the Incorporator is:
Spencer McAdams
c/o Olshan Grundman Frome & Rosensweig
505 Park Avenue
New York, New York 10022
SIXTH: A. 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
directors' duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the GCL, or (iv) for any
transaction from which the director derived an improper personal benefit. If
the GCL is amended 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 fullest extent
permitted by the GCL, as so amended. Any repeal or
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modification of this Paragraph A by the stockholders of the Corporation shall
not adversely affect any right or protection of a director of the Corporation
with respect to events occurring prior to the time of such repeal or
modification.
B. (1) Each person who was or is made a party or is threatened to be made
a party to or is involved in any action, suit, or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she or a person of whom he or she is the legal
representative is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation, as a
director, officer or employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or
agent or in any other capacity while serving as a director, officer, employee
or agent, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the GCL as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights
than said law permitted the Corporation to provide prior to such amendment),
against all expense, liability and loss (including attorneys' fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that except
as provided in paragraph (2) of this Paragraph B with respect to proceedings
seeking to enforce rights to indemnification, the Corporation shall indemnify
any such person seeking indemnification in connection with a proceeding (or
part thereof) initiated by such person only if such proceeding (or part
thereof) was authorized by the Board of Directors of the Corporation. The right
to indemnification conferred in this Paragraph B shall be a contract right and
shall include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that if the GCL requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director or officer (and not in
any other capacity) in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be
made only upon delivery to the Corporation of an undertaking by or on behalf of
such director or officer to repay all amounts so advanced if it shall
ultimately be
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determined that such director or officer is not entitled to be indemnified
under this Paragraph B or otherwise.
(2) If a claim under paragraph (1) of this Paragraph B is not paid in full
by the Corporation within thirty 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 be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the GCL for the
Corporation to indemnify the claimant for the amount claimed but the burden of
proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel or
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
GCL, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel or stockholders) that the claimant has not
met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not set the applicable standard of
conduct.
(3) The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
Paragraph B shall not be exclusive of any other right which any person may have
or hereafter acquire under any statute, provision of the certificate of
incorporation, By-Laws, agreement, vote of stockholders or disinterested
directors or otherwise.
(4) The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the GCL.
(5) The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification, and rights to be paid by
the Corporation for the expenses incurred in defending any proceeding in
advance of its final disposition, to any agent of the Corporation to the fullest
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extent of the provisions of this Paragraph B with respect to the
indemnification and advancement of expenses of directors, officers and
employees of the Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand this 10th day of December,
1993.
/s/ Spencer McAdams
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Spencer McAdams
Sole Incorporator
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