CERTIFICATE OF INCORPORATION
OF
UAG CAPITAL MANAGEMENT, INC.
THE UNDERSIGNED, acting as incorporator of a corporation under and in
accordance with the General Corporation Law of the State of Delaware, do
hereby adopt the following Certificate of Incorporation for such corporation:
ARTICLE 1.
NAME
The name of the corporation is UAG Capital Management, Inc.
(hereinafter the "Corporation").
ARTICLE 2.
REGISTERED OFFICE AND AGENT
The registered office of the Corporation in the State of Delaware is
located at 1013 Centre Road, Wilmington, New Castle County, DE, 19805. The
name of the registered agent of the Corporation at such address is The
Prentice-Hall Corporation System, Inc.
ARTICLE 3.
PURPOSE
The purpose for which the Corporation is organized is to engage in any
lawful act or activity for which a corporation may be organized under the
General Corporation Law of the State of Delaware as set forth in Title 8 of
the Delaware Code (the "DGCL").
ARTICLE 4.
CAPITAL
The aggregate number of shares of stock which the Corporation shall have
authority to issue is 1,000 shares, par value $.01 per share, designated
Common Stock. Unless specifically provided otherwise herein, the holder of
such shares shall be entitled to one vote for each share held in any
stockholder vote in which any of such holders is entitled to participate.
ARTICLE 5.
DURATION
The Corporation shall have perpetual existence.
ARTICLE 6.
PREEMPTIVE RIGHTS DENIED; NO CUMULATIVE VOTE
No holder of stock of any class or series of the Corporation shall have
any preemptive rights to subscribe for, purchase or receive any shares of
stock of any class or series whether now or hereafter authorized, or any
optoins or warrants for such shares, or any securities convertible into or
exchangeable for such shares, which may at any time be issued, sold or offered
for sale by the Corporation. Cumulative voting by the holders of any class and
of any series of any such class of the stock of the Corporation at any
election of directors of the Corporation is hereby prohibited.
ARTICLE 7.
INCORPORATOR
The name of the incorporator of the Corporation is Tambra S. King, and
the mailing address of such incorporator is c/o Trace International Holdings,
Inc., 375 Park Avenue, 11th Floor, New York, New York 10152.
ARTICLE 8.
STOCKHOLDER MEETINGS
Meetings of the stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the DGCL) outside the State of Delaware
at such place or places as may be designated from time to time by the Board of
Directors or in the Bylaws of the Corporation.
ARTICLE 9.
ELIMINATION OF CERTAIN LIABILITY OF DIRECTORS
Pursuant to Section 102(b)(7) of the DGCL, a director of the Corporation
shall not be personally liable to the Corporation of 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; and (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 DGCL; or (iv) for any transaction from which
the director derived an improper personal benefit. To the fullest extent
permitted by the DGCI, as the same exists or may hereafter be amended, a
director of the Corporation shall not be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
ARTICLE 10.
INDEMNIFICATION
The Corporation shall indemnify any person who was or is a
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party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (whether or not by or in the right of the Corporation) by
reason of the fact that he 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 of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including
attorneys' fees), liability, loss, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, or itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and with respect to any criminal action or proceeding, have
reasonable cause to believe that his conduct was unlawful. The right to
indemnification under this Article 11 shall be a contract right and shall
include, with respect to directors and officers, the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance
of its disposition; provided, however, that if the DGCL requires, the payment
of such expenses incurred by a director or officer in advance of the final
disposition of a proceeding shall be made only upon delivery to the
Corporation of an undertaking, by or behalf of such director or officer, to
repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Article 11 or
otherwise. The Corporation may, by action of its Board of Directors, pay such
expenses incurred by employees and agents of the Corporation upon such terms
as the Board of Directors deems appropriate. Indemnification of, and
advancement of expenses to, such persons shall be mandatory to the extent that
applicable law provides that the Corporation may authorize such
indemnification and advancement of expenses. Such indemnification and
advancement of expenses shall be in addition to any other rights to which
those seeking indemnification and advancement of expenses may be entitled
under any law, Bylaw, agreement, vote of stockholders or otherwise. Any repeal
or amendment of this Article 11 by the stockholders of the Corporation or by
changes in applicable law shall, to the extent permitted by applicable law, be
prospective only, and shall not adversely affect any limitation on the
personal liability of any director, officer, employee or agent of the
Corporation at the time of such repeal or amendment.
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ARTICLE 11.
ARRANGEMENT WITH CREDITORS
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of the DGCL or on the application of trustees in
dissolution or of any receiver or receivers appointed for this corporation
under the provisions of Section 279 of the DGCL, order a meeting of the
creditors or class of creditors, and/or the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
Corporation as 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 this Corporation, as the case may be, and also on this
Corporation.
ARTICLE 12.
AMENDMENT OF CORPORATE DOCUMENTS
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
ARTICLE 13.
MISCELLANEOUS
Election of directors need not be by written ballot. Any director or the
entire board of directors may be removed, with or without cause, by the
holders of a majority of the shares then entitled to vote at an election of
directors, except as otherwise provided by law. In furtherance and not in
limitation of the powers conferred by statute, the board of directors of the
Corporation is expressly authorized to make, alter or repeal the bylaws of the
Corporation.
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ARTICLE 14.
SEVERABILITY
If any provision contained in this Certificate of Incorporation shall
for any reason be held invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not invalidate the entire
Certificate of Incorporation or any other provisions hereof. Such provision
shall be deemed to be modified to the extent necessary to render it valid and
enforceable, then the Certificate of Incorporation shall be construed as if
not containing such provision.
I, THE UNDERSIGNED, for the purpose of forming the Corporation under the
laws of the State of Delaware, do make, file, and record this Certificate of
Incorporation and do certify that this is my act and deed and that the facts
stated herein are true and accordingly, I do hereunto set my hand on this 3rd
day of March, 1997.
By:/s/ Tambra S. King
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Tambra S. King, Incorporator