CERTIFICATE OF INCORPORATION
OF
DiFeo Partnership X, Inc.
THE UNDERSIGNED, acting as the incorporator of a corporation under
and in accordance with the General Corporation Law of the State of Delaware,
hereby adopts the following Certificate of Incorporation for such corporation:
ARTICLE I
The name of the corporation is DiFeo Partnership X, Inc. (the
"Corporation").
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the Corporation's registered office in the State of
Delaware is: Corporation Trust Center, 1209 Orange Street, Wilmington, New
Castle County, Delaware 19801. The name of the Corporation's registered agent
at such address is The Corporation Trust Company.
ARTICLE III
The purpose for which the Corporation is organized is to engage in
any and all lawful acts and activities for which corporations may be organized
under the General Corporation Law of the State of Delaware.
ARTICLE IV
3. Authorized Shares. The aggregate number of shares of capital stock
which the corporation shall have authority to issue is one hundred (100)
shares, par value $.01 per share. All of such shares shall be common stock of
the corporation. Unless specifically provided otherwise herein, the holders 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 V
BOARD OF DIRECTORS
The powers of the incorporator shall terminate upon the filing of
this Certificate of Incorporation, and the following person shall thereupon
serve as directors of the corporation until the first annual meeting of
stockholders or until their successors are duly elected and qualified:
Name Address
---- -------
Marshall S. Cogan 153 East 53rd Street
Suite 5901
New York, NY 10022
Frederick Marcus 153 East 53rd Street
Suite 5900
New York, NY 10022
Ezra P. Mager 153 East 53rd Street
Suite 5900
New York, NY 10022
ARTICLE VI
PREEMPTIVE RIGHTS DENIED; NO CUMULATIVE VOTE
No holder of any share of any class or series of the Corporation's
capital stock shall have any preemptive right to subscribe for, purchase or
receive any shares of the Corporation or any class or series now or hereafter
authorized, or any options 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 VII
DURATION
The Corporation shall have perpetual existence.
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ARTICLE VIII
ARRANGEMENT WITH CREDITORS
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 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 consequences 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.
ARTICLE IX
ELIMINATION OF CERTAIN LIABILITY OF DIRECTORS
To the fullest extent permitted by the General Corporation Law of the
State of Delaware, as the same presently 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
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 a knowing violation of law,
(iii) under Section 174 of the General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit. Any
repeal or modification of this Article VIII shall not adversely affect any
right or protection of a director of the Corporation with respect to any act
or omission occurring prior to such repeal of modification.
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ARTICLE X
INDEMNIFICATION
The Corporation shall indemnify and advance expenses to any person
who was or is a 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 or officer of
the Corporation, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him
in connection with such action, suit or proceeding to the fullest extent
permitted by the General Corporation Law as the same exists or may hereafter
be amended; provided, however, that the Corporation shall be required to
indemnify a director or officer in connection with a proceeding initiated by
such director or officer only if such action, suit or proceeding is authorized
by the Board of Directors of the Corporation.
ARTICLE XI
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 statue, the board of directors of the
Corporation is expressly authorized to make, alter or repeal the by-laws of
the Corporation.
ARTICLE XII
SEVERABILITY
If any provisions 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 and if no such modification shall render it valid and
enforceable, then the Certificate of Incorporation shall be construed as if
not containing such provision.
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ARTICLE XIII
INCORPORATOR
The name and address of the incorporator is as follows:
Michael D. Cavalier, Esq.
Akin, Gump, Hauer & Feld, L.L.P.
4100 First City Center
1700 Pacific Avenue
Dallas, TX 75201
IN WITNESS WHEREOF, the incorporator has executed this Certificate of
Incorporation on this the 21st day of August, 1992.
INCORPORATOR
/s/Michael D. Cavalier
Michael D. Cavalier
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CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE
AND OF REGISTERED AGENT
It is hereby certified that:
1. The name of the corporation (hereinafter called the "corporation") is
DIFEO PARTNERSHIP X, INC.
2. The registered office of the corporation within the State of Delaware is
hereby changed to 32 Loockerman Square, Suite L-100, City of Dover 19901,
County of Kent.
3. The registered agent of the corporation within the State of Delaware is
hereby changed to The Prentice-Hall Corporation System, Inc., the business
office of which is identical with the registered office of the corporation as
hereby changed.
4. The corporation has authorized the changes hereinbefore set forth by
resolution of its Board of Directors.
Signed on 3/16, 1994
/s/ E. P. Mager
------------------------------
Ezra P. Mager, President
Attest:
/s/ Tambra S. King
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Tambra S. King, Asst. Secretary