EX 3.3
CERTIFICATE OF INCORPORATION
OF
UAG NORTHEAST, INC.
* * * * * *
ARTICLE I
The name of the corporation (the "Corporation") is: UAG Northeast,
Inc.
ARTICLE II
The address of its registered office in the State of Delaware is 1013
Centre Road, in the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Prentice-Hall Corporation System, Inc..
ARTICLE III
The nature of the business and 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.
ARTICLE IV
The total authorized capital stock of the Corporation shall be one
hundred (100) shares of Common Stock, par value $0.01 per share.
ARTICLE V
The name and mailing address of the incorporator is as follows:
Chan H. Lee
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
ARTICLE VI
The Corporation is to have perpetual existence.
ARTICLE VII
In furtherance and not in limitation of the powers conferred by
statute, the By-Laws of the Corporation may be made, altered, amended or
repealed by the stockholders or by the Board of Directors.
ARTICLE VIII
Elections of directors need not be by written ballot.
ARTICLE IX
The Corporation shall indemnify to the fullest extent permitted under
and in accordance with the laws of the State of Delaware 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 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, trustee, employee or agent or in any
other capacity with another corporation, partnership, joint venture, trust or
other enterprise, 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 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.
Expenses incurred in defending a civil or criminal action, suit or
proceeding shall (in the case of any action, suit or proceeding against a
director or officer of the Corporation) or may (in the case of any action, suit
or proceeding against a trustee, employee or agent) be paid by the Corporation
in advance of the final disposition of such action, suit or proceeding as
authorized by the Board upon receipt of an undertaking by or on behalf of the
indemnified person to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation as authorized in
this Article.
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The indemnification and other rights set forth in this Article shall
not be exclusive of any provisions with respect thereto in the By-Laws or any
other contract or agreement between the Corporation and any officer, director,
employee or agent of the Corporation.
Neither the amendment nor repeal of this Article nor the adoption of
any provision of this Certificate of Incorporation inconsistent with Article
shall eliminate or reduce the effect of this Article in respect of any matter
occurring before such amendment, repeal or adoption of an inconsistent
provision or in respect of any cause of action, suit or claim relating to any
such matter which would have given rise to a right of indemnification or right
to receive expenses pursuant to this Article if such provision had not been so
amended or repealed or if a provision inconsistent therewith had not been so
adopted.
ARTICLE X
No director shall be personally liable to the Corporation or any
stockholder for monetary damages for breach of fiduciary duty as a director,
except for any matter in respect of which such director (A) shall be liable
under Section 174 of the General Corporation Law of the State of Delaware or
any amendment thereto or successor provision thereto, or (B) shall be liable by
reason that, in addition to any and all other requirements for liability, he:
(i) shall have breached his duty of loyalty to the
Corporation or its stockholders;
(ii) shall not have acted in good faith or, in failing to
act, shall not have acted in good faith;
(iii) shall have acted in a manner involving intentional
misconduct or a knowing violation of law or, in failing to act, shall
have acted in a manner involving intentional misconduct or a knowing
violation of law; or
(iv) shall have derived an improper personal benefit.
If the General Corporation Law of the State of Delaware is amended
after the date of the filing of this Certificate of Incorporation 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 General
Corporation Law of the State of Delaware, as so amended.
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ARTICLE XI
Meetings of stockholders may be held within or without the State of
Delaware, as the By-Laws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-Laws of the Corporation.
ARTICLE XII
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in any manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purposes of forming a corporation pursuant to the General Corporation Law of
the State of Delaware makes this Certificate, hereby declaring and certifying
that this is his act and deed and the facts herein stated are true and,
accordingly, has hereunto set his hand this 29th day of May, 1996.
/s/ Chan H. Lee
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Chan H. Lee
Incorporator
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EX-3.4
BYLAWS
OF
UAG NORTHEAST, INC.
--------------------------------
Article I.
Stockholders
Section 1.1. Annual Meetings. An annual meeting of stockholders shall
be held for the election of directors at such date, time and place, either
within or without the State of Delaware, as may be designated by resolution of
the Board of Directors from time to time. Any other proper business may be
transacted at the annual meeting.
Section 1.2. Special Meetings. Special meetings of stockholders for
any purpose or purposes may be called at any time by the Board of Directors, or
by a committee of the Board of Directors which has been duly designated by the
Board of Directors, and whose powers and authority, as expressly provided in a
resolution of the Board of Directors, include the power to call such meetings,
but such special meetings may not be called by any other person or persons.
Section 1.3. Notice of Meetings. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting
shall be given which shall state the place, date and hour of the meeting, and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called. Unless otherwise provided by law, the written notice of any meeting
shall be given not less than ten nor more than sixty days before the date of
the meeting to each stockholder entitled to vote at such meeting. If mailed,
such notice shall be deemed to be given when deposited in the mail, postage
prepaid, directed to the stockholder at his address as it appears on the
records of the corporation.
Section 1.4. Adjournments. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the
meeting and place thereof are announced at the meeting at which the adjournment
is taken. At the adjourned meeting the corporation may transact any business
which might have been transacted at the original meeting. If the adjournment is
for more than thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
Section 1.5. Quorum. At each meeting of stockholders, except where
otherwise provided by law or the corporation's Certificate of Incorporation
(the "Certificate of Incorporation") or these Bylaws, the holders of a majority
of the votes represented by the outstanding shares of stock entitled to vote at
the meeting, present in person or by proxy, shall constitute a quorum. In the
absence of a quorum, the stockholders so present may, by majority vote, adjourn
the meeting from time to time in the manner provided in Section 1.4 of these
Bylaws until a quorum shall attend. Shares of its own stock belonging to the
corporation or to another corporation, if a majority of the shares entitled to
vote in the election of directors of such other corporation is held, by the
corporation, shall neither be entitled to vote nor be counted for quorum
purposes; provided, however, that the foregoing shall not limit the right of
the corporation to vote stock, including but not limited to its own stock, held
by it in a fiduciary capacity.
Section 1.6. Organization. Meetings of stockholders shall be presided
over by the Chairman of the Board, if any, or in his absence by the Vice
Chairman of the Board, if any, or in his absence by the President, or in his
absence by a Vice President, or in the absence of the foregoing persons by a
chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 1.7. Voting; Proxies. Except as otherwise provided by the
Certificate of Incorporation, each stockholder entitled to vote at any meetings
of stockholders shall be entitled to one vote for each share of stock held by
him which has voting power upon the matter in question. Each stockholder
entitled to vote at a meeting of stockholders may authorize another person or
persons to act for him by proxy, but no such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a longer period.
A duly executed proxy shall be irrevocable if it states that it is irrevocable
and if, and only as long as, it is coupled with an interest sufficient in law
to support an irrevocable power. A stockholder may revoke any proxy which is
not irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or another duly executed proxy bearing
a later date with the Secretary of the corporation. Voting at meetings of
stockholders need not be by written ballot and need not be conducted by
inspectors unless the holders of a majority of the votes represented by the
outstanding shares of all classes of stock entitled to vote thereon present in
person or by proxy at such meeting shall so determine. At all meetings of
stockholders for the election of directors a plurality of the votes cast shall
be sufficient to elect. All other elections and questions shall, unless
otherwise provided by law or by the Certificate of Incorporation or these
Bylaws, be decided by the vote of the
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holders of a majority of the votes represented by the shares of stock entitled
to vote thereon present in person or represented by proxy at such meeting.
Section 1.8. Fixing Date for Determination of Stockholders of Record.
In order that the corporation may determine the stockholders entitled to notice
of or to vote at any meeting of stockholders or any adjournment thereof, or to
express consent to corporate action in writing without a meeting, or entitled
to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board
of Directors may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted by the Board
of Directors and which record date: (1) in the case of determination of
stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall not be more than sixty nor less than ten days before the date of
such meeting; (2) in the case of determination of stockholders entitled to
express consent to corporate action in writing without a meeting, shall not be
more than ten days from the date upon which the resolution fixing the record
date is adopted by the Board of Directors; and (3) in the case of any other
action, shall not be more than sixty days prior to such other action. If no
record date is fixed: (1) the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held; (2) the record date for determining stockholders
entitled to express consent to corporate action in writing without a meeting
when no prior action of the Board of Directors is required by law, shall be the
first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the corporation in accordance with
applicable law, or, if prior action by the Board of Directors is required by
law, shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action; and (3) the record
date for determining stockholders for any other purpose shall be at the close
of business on the day on which the Board of Directors adopts the resolution
relating thereto. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
Section 1.9. List of Stockholders Entitled to Vote. The Secretary
shall prepare and make, at least ten days before every meeting of stockholders,
a complete list of the stockholders entitled to vote at the meeting, arranged
in alphabetical order, and showing the address of each stockholder and the
number and type of shares registered in the name of each stockholder. Such
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list shall be open to the examination of any stockholder for any purpose
germane to the meeting, during ordinary business hours, for a period of at
least ten days prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof and may be inspected by any stockholder who is
present. Upon the willful neglect or refusal of the directors to produce such a
list at any meeting of the election of directors, they shall be ineligible for
election to any office at such meeting. The stock ledger shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger,
the list of stockholders or the books of the corporation, or to vote in person
or by proxy at any meeting of stockholders.
Section 1.10. Action by Consent of Stockholders. Unless otherwise
restricted by the Certificate of Incorporation, any action required or
permitted to be taken at any annual or special meeting of the stockholders may
be taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed by the
holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such 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 those stockholders who have not consented in
writing.
Article II.
Board of Directors
Section 2.1. Number; Qualifications; Advisory Directors. The Board of
Directors shall consist of one or more members, as set forth in the Certificate
of Incorporation determined from time to time by resolution of the Board of
Directors. Directors need not be stockholders. The Board of Directors may
appoint one or more Advisory Directors who may participate in meetings of the
Board but who shall not be entitled to vote on any matters before the Board.
Section 2.2. Election; Resignation; Removal; Vacancies. The Board of
Directors shall initially consist of the persons named as Directors in the
Certificate of Incorporation, and each Director so elected shall hold office
until the next annual meeting of stockholders or until his successor is elected
and has qualified. At the next annual meeting of stockholders and at each
annual meeting thereafter, the stockholders, as provided in the Certificate of
Incorporation, shall elect Directors each of whom shall hold office for a term
of one year or until his
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successor is elected and qualified. Any Director may resign at any time upon
written notice to the corporation.
Section 2.3. Regular Meetings. Regular meetings of the Board of
Directors may be held at such places within or without the State of Delaware
and at such times as the Board of Directors may from time to time determine,
and if so determined, notices thereof need not be given.
Section 2.4. Special Meetings. Special meetings of the Board of
Directors may be held at any time or place within or without the State of
Delaware whenever called by the President, any Vice President, the Secretary,
or by any member of the Board of Directors. Reasonable notice thereof shall be
given by the person or persons calling the meeting.
Section 2.5. Telephonic Meetings Permitted. Members of the Board of
Directors, or any committee designated by the Board, may participate in a
meeting of such Board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
provision shall constitute presence in person at such meeting.
Section 2.6. Quorum; Vote Required for Action. At all meetings of the
Board of Directors a majority of the whole Board shall constitute a quorum for
the transaction of business. Except in cases in which the Certificate of
Incorporation or these Bylaws otherwise provide, the vote of a majority of the
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors.
Section 2.7. Organization. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board, if any, or in his absence by the
Vice Chairman of the Board, if any, or in his absence by the President, or in
their absence by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 2.8. Informal Action by Directors. Unless otherwise restricted
by the Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the Board
of such committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board or
committee.
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Article III.
Committees
Section 3.1. Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the corporation. The
Board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. In the absence or disqualification of a member of the committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in place of any
such absent or disqualified member. Any such committee, to the extent provided
in the resolution of the Board of Directors, shall have and may exercise all
the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation
under Sections 251 or 252 of the General Corporation Law of the State of
Delaware, recommending to the stockholders the sale, lease or exchange of all
or substantially all of the corporation's property and assets, recommending to
the stockholders a dissolution of the corporation or a revocation of a
dissolution, or amending these Bylaws; and unless the resolution or the
Certificate of Incorporation expressly so provides, no such committee shall
have the power or authority to declare a dividend, to authorize the issuance of
stock, or to adopt a certificate of ownership and merger pursuant to Section
253 of the General Corporation Law of the State of Delaware.
Section 3.2. Committee Rules. Unless the Board of Directors otherwise
provides, each committee designated by the Board may make, alter and repeal
rules for the conduct of its business. In the absence of such rules each
committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article II of these Bylaws.
Article IV.
Officers
Section 4.1. Executive Officers; Election; Qualification; Term of
Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a
President and Secretary, and it may, if it so determines, choose a Chairman of
the Board and a Vice Chairman of the Board from among its members. The Board of
Directors may also choose one or more executive officers having
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such titles as the Board may deem appropriate, including but not limited to,
Vice Presidents, Assistant Secretaries, Managing Directors, one Treasurer and
one or more Assistant Treasurers. Each such officer shall hold office until the
first meeting of the Board of Directors after the annual meeting of
stockholders next succeeding his election, and until his successor is elected
and qualified or until his earlier resignation or removal. Any officer may
resign at any time upon written notice to the corporation. The Board of
Directors may remove any officer with or without cause at any time, but such
removal shall be without prejudice to the contractual rights of such officer,
if any, with the corporation. Any number of offices may be held by the same
person. Any vacancy occurring in any office of the corporation by death,
resignation, removal or otherwise may be filled for the unexpired portion of
the term by the Board of Directors at any regular or special meeting.
Section 4.2. Powers and Duties of Executive Officers. The officers of
the corporation shall have such powers and duties in the management of the
corporation as may be prescribed by the Board of Directors and, to the extent
not so provided, as generally pertain to their respective offices, subject to
the control of the Board of Directors. The Board of Directors may require any
officer, agent or employee to give security for the faithful performance of his
duties.
Article V.
Stock
Section 5.1. Certificates. Every holder of stock shall be entitled to
have a certificate signed by or in the name of the corporation by the Chairman
or Vice Chairman of the Board of Directors, if any, or the President or a Vice
President, and by the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary, of the corporation, certifying the number of shares
owned by him in the corporation. Any or all of the signatures on the
certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued by the corporation with the
same effect as if he were such officer, transfer agent, or registrar at the
date of issue.
Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of
New Certificates. The corporation may issue a new certificate of stock in the
place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the corporation may require the owner of the lost,
stolen or destroyed certificate, or his legal representative, to give the
corporation a bond sufficient to indemnify it against any claim that may be
made against it on account of the alleged loss, theft
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or destruction of any such certificate or the issuance of such new certificate.
Article VI.
Indemnification
Section 6.1. Right to Indemnification. The corporation shall indemnify
and hold harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any person who was or is made or
is threatened to be made a party or is otherwise involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that he, or a person for whom he is the
legal representative, is or was a director, advisory director or officer of the
corporation or any of its direct or indirect foreign subsidiaries or is or was
serving at the request of the corporation as a director, advisory director or
officer of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The corporation shall be required to indemnify a
person in connection with a proceeding initiated by such person only if the
proceeding was authorized by the Board of Directors of the corporation.
Section 6.2. Prepayment of Expenses. The corporation shall pay the
expenses incurred in defending any proceeding in advance of its final
disposition, provided, however, that the payment of expenses incurred by a
director, advisory director or officer in his capacity as such in advance of
the final disposition of the proceeding shall be made only upon receipt of an
undertaking by the director or officer to repay all amounts advanced if it
should be ultimately determined that the director, advisory director or officer
is not entitled to be indemnified under this Article VI or otherwise.
Section 6.3. Claims. If a claim for indemnification or payment of
expenses under this Article VI is not paid in full within ninety days after a
written claim therefor has been received by the corporation the claimant may
file suit to recover the unpaid amount of such claim and, if successful in
whole or in part, shall be entitled to be paid the expenses of prosecuting such
claim. In any such action the corporation shall have the burden of proving that
the claimant was not entitled to the requested indemnification or payment of
expenses under applicable law.
Section 6.4. Non-Exclusivity of Rights. The rights conferred on any
person by this Article VI shall not be exclusive of any other rights which such
person may have or hereafter acquire under any statute, provision of the
Certificate of
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Incorporation, these Bylaws, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 6.5. Other Indemnification. The corporation's obligation, if
any, to indemnify any person who was or is serving at its request as a
director, advisory director, officer, employee, fiduciary or agent of another
corporation, partnership, joint venture, trust, enterprise or non-profit entity
shall be reduced by any amount such person may collect as indemnification from
such other corporation, partnership, joint venture, trust, enterprise or
non-profit enterprise.
Section 6.6. Amendment or Repeal. Any repeal or modification of the
foregoing provisions of this Article VI shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission occurring
prior to the time of such repeal or modification.
Article VII.
Miscellaneous
Section 7.1. Fiscal Year. The fiscal year of the corporation shall
begin on January 1 and end on December 31, or such other period as may be
determined by resolution of the Board of Directors.
Section 7.2. Seal. The corporate seal shall have the name of the
corporation inscribed thereon and shall be in such form as may be approved from
time to time by the Board of Directors.
Section 7.3. Waiver of Notice of Meetings of Stockholders, Directors
and Committees. Any written waiver of notice, signed by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of any
regular or special meeting of the stockholders, directors, or members of a
committee of directors need be specified in any written waiver of notice.
Section 7.4. Interested Directors; Quorum. No contract or transaction
between the corporation and one or more of its directors or officers of a
corporation, partnership, association, or other organization or entity in which
one or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the Board or committee thereof which authorizes the contract or transaction, or
solely because
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his or their votes are counted for such purpose, if: (1) the material facts as
to his relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the
Board or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (2) the material facts as to
his relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (3) the contract or transaction is fair as to the corporation
as of the time it is authorized, approved or ratified, by the Board of
Directors, a committee thereof, 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
transaction.
Section 7.5. Form of Records. Any records maintained by the
corporation in the regular course of its business, including its stock ledger,
books of account, and minute books, may be kept on, or be in the form of, punch
cards, magnetic tape, photographs, microphotographs, or any other information
storage device, provided that the records so kept can be converted into clearly
legible form within a reasonable time. The corporation shall so convert any
records so kept upon the request of any person entitled to inspect the same.
Section 7.6. Amendment of Bylaws. These Bylaws may be altered or
repealed, and new Bylaws made, as provided in the Certificate of Incorporation
or, in the absence of provision therein, by the Board of Directors.
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EX 3.5
CERTIFICATE OF INCORPORATION
OF
UAG NORTHEAST (NY), INC.
UNDER SECTION 402 OF THE
BUSINESS CORPORATION LAW
* * * * *
THE UNDERSIGNED, being the age of eighteen years or over, for the
purpose of forming a corporation pursuant to Section 402 of the Business
Corporation Law of New York, do hereby certify:
First: The name of the Corporation is: UAG Northeast (NY), Inc.
Second: The purpose for which the Corporation is formed is to engage
in any lawful act or activity for which corporations may be organized under the
Business Corporation Law, provided that the Corporation may not engage in any
act or activity requiring the consent or approval of any state official,
department, board, agency or other body, without such consent or approval first
being obtained.
Third: The office of the Corporation is to be located in the County of
New York, State of New York.
Fourth: The aggregate number of shares which the Corporation shall
have authority to issue is one hundred (100) shares of Common Stock, having a
par value of one one-hundredth of one dollar ($0.01) each.
Fifth: Whenever shareholders are required or permitted to take any
action by vote, such action may be taken without a meeting on written consent,
setting forth the action so taken,
signed by the holders of that percentage of the Shares entitled to vote thereon
that would be necessary to take such action at a meeting of Shareholders.
Sixth: The Secretary of State is designated as the agent of the
Corporation upon whom process against the corporation may be served. The post
office address to which the Secretary of State shall mail a copy of any process
against the corporation served upon him is: c/o The Prentice Hall Corporation
System, 500 Central Avenue, Albany, New York 12206.
Seventh: The name and address of the registered agent which is to be
the agent of the Corporation upon whom process against it may be served is The
Prentice Hall Corporation System, 500 Central Avenue, Albany, New York 12206.
Eighth: Any one or more members of the Board of Directors of the
Corporation or of any committee thereof may participate in a meeting of said
Board or of any such committee by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time.
Ninth: The Corporation shall, to the fullest extent permitted by
Article 7 of the Business Corporation Law of the State of New York, as the same
may be amended and supplemented, indemnify any and all persons whom it shall
have power to indemnify under said Article from and against any and all of the
expenses, liabilities, or other matters referred to in or covered by said
Article, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which any
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person may be entitled under any By-Law, resolution of shareholders, resolution
of directors, agreement, or otherwise, as permitted by said Article, as to
action in any capacity in which he served at the request of the corporation.
IN WITNESS WHEREOF, the undersigned has made and signed this
Certificate of Incorporation this 24th day of October, 1996 and affirms the
statements contained therein as true under penalties of perjury.
/s/ Jeffrey B. Schwartz
-------------------------
Jeffrey B. Schwartz
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
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CERTIFICATE OF CHANGE
OF
UAG NORTHEAST (NY), INC.
(Under Section 805-A of the Business Corporation Law)
Anne Grigorakos
THE PRENTICE-HALL CORPORATION SYSTEM, INC.
375 Hudson Street, 11th Floor
New York, New York 10014
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Certificate of Change
of
UAG NORTHEAST (NY), INC.
(Under Section 805-A of the Business Corporation Law)
FIRST: The name of the corporation (the "corporation") is
UAG NORTHEAST (NY), INC.
SECOND: The certificate of incorporation of the corporation was filed
by the Department of State on
10-25-1996
THIRD: The certificate of incorporation of the corporation is hereby
changed, so as to change the post office address to which the Secretary of
State of New York shall mail a copy of any process against the corporation
served upon said Secretary of State and to change the address of the registered
agent; and to accomplish said changes, the statements in the certificate of
incorporation relating to said post office address and the designation of
registered agent are hereby stricken and the following statements are
substituted in lieu thereof:
"The post office address within the State of New York to which
the Secretary of State of New York shall mail a copy of any
process against the corporation served upon him is
c/o THE PRENTICE-HALL CORPORATION SYSTEM, INC. 80 State Street,
Albany, New York 12207"
"The name and the address of the registered agent of the
corporation are THE PRENTICE-HALL CORPORATION SYSTEM, INC. 80
State Street, Albany, New York 12207. Said registered agent is to
be the agent upon which process against the corporation may be
served."
FOURTH: A notice of the proposed changes was mailed by the undersigned
to the corporation not less than 30 days prior to the date of the delivery of
this certificate to the Department of
State and the corporation has not objected thereto. The person signing this
certificate is the agent of the corporation to whose address the Secretary of
State of New York is required to mail copies of process and the registered
agent of the corporation.
IN WITNESS WHEREOF, we have subscribed this document on the date set
forth below and do hereby affirm, under the penalties of perjury, that the
statements contained therein have been examined by us and are true and correct.
Date: March 3, 1997
THE PRENTICE-HALL CORPORATION SYSTEM
/s/ William G. Popeo
-----------------------------------
William G. Popeo, Vice President
/s/ John H. Pelletier
-----------------------------------
John H. Pelletier, Asst. Secretary
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EX-3.6
UAG Northeast (NY), Inc.
Incorporated Under the Laws of the
State of New York
BY-LAWS
ARTICLE I
OFFICES
The principal office of UAG Northeast (NY), Inc. (the "Corporation")
shall be located in the City of New York, County of New York, State of New
York. The Corporation may also have such other offices at such other places,
either within or without the State of New York, as the Board of Directors may
from time to time designate or the business of the Corporation may require.
ARTICLE II
SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of shareholders for the
election of directors and the transaction of any other business shall be held
in such City and State and at such time and place as may be designated by the
Board of Directors, and set forth in the notice of such meeting. If said day be
a legal holiday, said meeting shall be held on the next succeeding business
day. At the annual meeting any business may be transacted and any corporate
action may be taken, whether stated in the notice of meeting or not, except as
otherwise expressly provided by statute or the Certificate of Incorporation.
Section 2. Special Meetings. Special meetings of the shareholders for
any purpose may be called at any time by the Board of Directors, or by a
committee of the Board of Directors, duly designated by the Board of Directors,
and whose power and authority, as expressly provided in a resolution of the
Board of Directors, include the power to call such meetings, but such special
meetings may not be called by any other person or persons. Special meetings
shall be held at such place or places within or without the State of New York
as shall from time to time be designated by the Board of Directors and stated
in the notice of such meeting. At a special meeting no business shall be
transacted and no corporate action shall be taken other than that stated in the
notice of the meeting.
Section 3. Notice of Meetings. Written notice of the time and place of
any shareholder's meeting, whether annual or special, shall be given to each
shareholder entitled to vote thereat, by mailing the same to him at this
address as the same appears upon the records of the Corporation at least ten
days nor more than fifty days before the day of the meeting. Notice of any
adjourned meeting need not be given other than by announcement at the meeting
so adjourned, unless otherwise
ordered in connection with such adjournment. Such further notice, if any, shall
be given as may be required by law.
Section 4. Waiver of Notice. Notice of Meeting need not be given to
any shareholder who submits a signed waiver of notice, in person or by proxy,
whether before or after the meeting. The attendance of any shareholder at a
meeting, in person or by proxy, without protesting before the conclusion of the
meeting the lack of notice of such meeting, shall constitute a waiver of notice
by him.
Section 5. Quorum. Any number of shareholders, together holding at
least a majority of the capital stock of the Corporation issued and outstanding
and entitled to vote, who shall be present in person or represented by proxy at
any meeting duly called, shall constitute a quorum for the transaction of all
business.
Section 6. Adjournment of Meetings. If less than a quorum shall attend
at the time for which a meeting shall have been called, the meeting may adjourn
from time to time by a majority vote of the shareholders present or represented
by proxy and entitled to vote, without notice other than by announcement at the
meeting until a quorum shall attend. Any meeting at which a quorum is present
may also be adjourned in like manner and for such time or upon such call as may
be determined by a majority vote of the shareholders present or represented by
proxy and entitled to vote. At any adjourned meeting at which a quorum shall be
present, any business may be transacted and any corporate action may be taken
which might have been transacted at the meeting as originally called.
Section 7. Voting List. The Secretary shall prepare and make, at least
ten days before every election of directors, a complete list of the
shareholders entitled to vote, arranged in alphabetical order. Such list shall
be open at the place where the election is to be held for said ten days, to the
examination of any shareholder, and shall be produced and kept at the time and
place of the election during the whole time thereof, and subject to the
inspection of any shareholder who may be present.
Section 8. Voting. Each shareholder entitled to vote at any meeting
may vote either in person or by proxy, but no proxy shall be voted on or after
eleven months from its date, unless said proxy provides for a longer period.
Each shareholder entitled to vote shall at every meeting of the shareholders be
entitled to one vote for each share of stock registered in his name on the
books of the Corporation, provided, however, that, except where the transfer
books of the Corporation shall have been closed or a date shall have been fixed
as a record date for the determination of its shareholders entitled to vote, as
hereinafter provided, no share of stock shall be voted on at any election for
directors which shall have been transferred on the books of the Corporation
within twenty days next preceding such
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election of directors. At all meetings of shareholders all matters, except as
otherwise provided by statute, shall be determined by a majority vote of the
shareholders present or represented by proxy and entitled to vote.
Section 9. Record Date of Shareholders. The Board of Directors is
authorized to fix in advance a date not exceeding fifty days nor less than ten
days preceding the date of any meeting of shareholders, or the date for the
payment of any dividend, or the date for the allotment of rights, or the date
when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining the consent of shareholders for
any purposes as a record date for the determination of the shareholders
entitled to notice of, and to vote at, any such meeting, and any adjournment
thereof, or entitled to receive payment of any such dividend, or to any such
allotment of rights, or to exercise the rights in respect of any such change,
conversion or exchange of capital stock, or to give such consent, and, in such
case, such shareholders and only such shareholders as shall be shareholders of
records on the date so fixed shall be entitled to such notice of, and to vote
at, such meeting, and any adjournment thereof, or to receive payment of such
dividend, or to receive such allotment or rights, or to exercise such rights,
or to give such consent, as the case may be, notwithstanding any transfer of
any stock on the books of the Corporation, after such record date fixed as
aforesaid.
Section 10. Conduct of Meetings. The Chairman of the Board of
Directors or, in his absence the President or any Vice President designated by
the Chairman of the Board, shall preside at all regular or special meetings of
shareholders. To the maximum extent permitted by law, such presiding person
shall have the power to set procedural rules, including but not limited to
rules respecting the time allotted to shareholders to speak, governing all
aspects of the conduct of such meetings.
ARTICLE III
DIRECTORS
Section 1. Number and Qualifications. The board of directors shall
consist initially of three directors (except that where all shares of the
Corporation are owned beneficially and of record by less than three
shareholders, the number of directors may be less than three but not less than
the number of shareholders), and thereafter shall consist of such greater
number as may be fixed from time to time by resolution of the Board. The
directors need not be shareholders.
Section 2. Election of Directors. The directors shall be elected by
the shareholders at the annual meeting of shareholders.
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Section 3. Duration of Office. The directors chosen at any annual
meeting shall, except as hereinafter provided, hold office until the next
annual election and until the election and qualification of their successors.
Section 4. Removal and Resignation of Directors. Any director may be
removed from the Board of Directors, with or without cause, by the holders of a
majority of the shares of capital stock entitled to vote, at any special
meeting of the shareholders called for that purpose, and the office of such
director shall forthwith become vacant. Any director may be removed from the
Board of Directors, with cause, by a majority of the Board of Directors at any
special meeting of the Board of Directors called for that purpose.
Any director may resign at any time. Such resignation shall take
effect at the time specified therein, and if no time be specified, at the time
of its receipt by the President or Secretary. The acceptance of a resignation
shall not be necessary to make it effective, unless so specified therein.
Section 5. Filling of Vacancies. Any vacancy among the directors,
occurring from any cause whatsoever, may be filled by a majority of the
remaining directors, though less than a quorum, provided, however, that the
shareholders removing any director may at the same meeting fill the vacancy
caused by such removal, and provided further, that if the directors fail to
fill any such vacancy, the shareholders may at any special meeting called for
that purpose fill such vacancy. In case of any increase in the number of
directors, the additional directors may be elected by the directors in office
prior to such increase.
Any person elected to fill a vacancy shall hold office, subject to the
right of removal as hereinbefore provided, until the next annual election and
until the election and qualification of his successor.
Section 6. Regular Meetings. The Board of Directors shall hold an
annual meeting for the purpose of organization and the transaction of any
business immediately after the annual meeting of the shareholders, provided a
quorum is present. Other regular meetings may be held at such times as may be
determined from time to time by resolution of the Board of Directors.
Section 7. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board of Directors, if any, or
by the President.
Section 8. Notice and Place of Meetings. Regular meetings of the Board
of Directors may be held without notice at the principal office of the
Corporation, or at such place as shall be designated by the Board of Directors.
Notice shall be required for any special meeting, and, except as the Board of
Directors may otherwise determine by resolution, shall either be
-4-
mailed or sent by cable to each director addressed to him at his residence or
usual place of business at least five days before the day on which the meeting
is to be held. No notice of the annual meeting shall be required if held
immediately after the annual meeting of the shareholders and if a quorum is
present.
Notice of a meeting need not be given to any Director who submits a
signed waiver before or after the meeting, nor to any Director who attends the
meeting without protesting prior thereto or at its commencement the lack of
notice.
Section 9. Business Transacted at Meetings. Any business may be
transacted and any corporate action may be taken at any regular or special
meeting of the Board of Directors at which a quorum shall be present, whether
such business or proposed action be stated in the notice of such meeting or
not, unless special notice of such business or proposed action shall be
required by statute.
Section 10. Quorum. A majority of the Board of Directors at any time
in office, shall constitute a quorum. At any meeting at which a quorum is
present, the vote of a majority of the members present shall be the act of the
Board of Directors unless the act of a greater number is required by law, the
Certificate of Incorporation or these by-laws. If a quorum is not present at
the meeting of the Board of Directors, a majority of the Directors may adjourn
the meeting to such time and place as they may determine without notice other
than announcement at the meeting until enough Directors to constitute a quorum
shall attend. When a quorum is once present to organize a meeting, it is not
broken by the subsequent withdrawal of any Directors.
Section 11. Action Without A Meeting. Any action required or permitted
to be taken by the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board or the committee consent in
writing to the adoption of a resolution authorizing the action. The resolution
and the written consents thereto by the members of the Board or committee shall
be filed with the minutes of the proceedings of the Board or committee.
Section 12. Participation By Telephone or By Other Electronic Media.
Any one or more members of the Board or any committee thereof may participate
in a meeting of the Board or such committee by means of a conference telephone
or similar communications equipment allowing all persons participating in the
meeting to hear each other at the same time. Participation by such means shall
constitute presence in person at a meeting.
Section 13. Compensation. The Board of Directors may establish by
resolution reasonable compensation of all directors for services to the
Corporation as directors, including a fixed fee, if any, incurred in attending
each meeting. Nothing herein contained shall preclude any director from serving
the
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Corporation in any other capacity, as an officer, agent or otherwise, and
receiving compensation therefor.
ARTICLE IV
COMMITTEES
Section 1. Executive Committee. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate two or more of
their number to constitute an Executive Committee to hold office during the
pleasure of the Board, which Committee shall, during the intervals between
meetings of the Board of Directors, have and exercise all of the powers of the
Board of Directors in the management of the business and affairs of the
Corporation, subject only to such restrictions or limitations as the Board of
Directors may from time to time specify, or as limited by the New York Business
Corporation Law, and shall have power to authorize the seal of the Corporation
to be affixed to all papers which may require it.
Any member of the Executive Committee may be removed at any time, with
or without cause, by a resolution of a majority of the whole Board of
Directors.
Any person ceasing to be a director shall ipso facto cease to be a
member of the Executive Committee.
Any vacancy in the Executive Committee occurring from any cause
whatsoever may be filled from among the directors by a resolution of a majority
of the whole Board of Directors.
Section 2. Other Committees. Other committees, whose members need not
be directors, may be appointed by the Board of Directors, which committees
shall hold office for such time and have such powers and perform such duties as
may from time to time be assigned to them by the Board of Directors or the
committee or officer appointing them.
Any member of such a committee may be removed at any time, with or
without cause, by the Board of Directors or the committee or officer appointing
such committee. Any vacancy in a committee occurring from any cause whatsoever
may be filled by the Board of Directors or the committee or officer appointing
such committee.
Section 3. Resignation. Any member of a committee may resign at any
time. Such resignation shall be made in writing and shall take effect at the
time specified therein, or, if no time be specified, at the time of its receipt
by the President or Secretary. The acceptance of a resignation shall not be
necessary to make it effective unless so specified therein.
Section 4. Quorum. A majority of the members of a committee shall
constitute a quorum. The act of a majority of
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the members of a committee present at any meeting at which a quorum is present
shall be the act of such committee. The members of a committee shall act only
as a committee, and the individual members thereof shall have no powers as
such.
Section 5. Record of Proceedings. Each committee shall keep a record
of its acts and proceedings, and shall report the same to the Board of
Directors when and as required by the Board of Directors.
Section 6. Organization, Meetings, Notices. A committee may hold its
meetings at the principal office of the Corporation, or at any other place
which majority of the committee may at any time agree upon. Each committee may
make such rules as it may deem expedient for the regulation and carrying on of
its meetings and proceedings. Unless otherwise ordered by the Executive
Committee, any notice of a meeting of such Committee may be given by the
Secretary or by the chairman of the Committee and shall be sufficiently given
if mailed to each member at his residence or usual place of business at least
two days before the day on which the meeting is to be held, or if sent to him
at such place by telegraph or cable, or delivered personally or by telephone
not later than 24 hours before the times at which the meeting is to be held.
Section 7. Compensation. The members of any committee shall be
entitled to such compensation as may be allowed them by resolution of the Board
of Directors.
ARTICLE V
OFFICERS
Section 1. Number. The officers of the Corporation shall be a
President, one or more Vice Presidents, a Secretary and a Treasurer, and such
other officers as may be appointed in accordance with the provisions of Section
3 of this Article V. The Board of Directors in its discretion may also elect a
Chairman of the Board of Directors.
Section 2. Election, Term of Office and Qualifications. The officers,
except as provided in Section 3 of this Article V, shall be chosen annually by
the Board of Directors. Each such officer shall, except as herein otherwise
provided, hold office until his successor shall have been chosen and shall
qualify. Any two or more offices may be held by the same person except the
offices of the President and Secretary.
Section 3. Other Officers. Other officers, including one or more vice
presidents, assistant secretaries or assistant treasurers, may from time to
time be appointed by the Board of Directors, which other officers shall have
such powers and perform such duties as may be assigned to them by the Board of
Directors or the officer or committee appointing them.
-7-
Section 4. Removal of Officers. Any officer of the Corporation may be
removed from office, with or without cause, by a vote of a majority of the
Board of Directors.
Section 5. Resignation. Any officer of the Corporation may resign at
any time. Such resignation shall be in writing and shall take effect at the
time specified therein, and if no time be specified, at the time of its receipt
by the President or Secretary. The acceptance of a resignation shall not be
necessary in order to make it effective, unless so specified therein.
Section 6. Filling of Vacancies. A vacancy in any office shall be
filled by the Board of Directors.
Section 7. Compensation. The compensation of the officers shall be
fixed by the Board of Directors, or by any committee upon whom power in that
regard may be conferred by the Board of Directors.
Section 8. Chairman of the Board of Directors. The Chairman of the
Board of Directors, if any, shall be a director and shall preside at all
meetings of the Board of Directors and of the shareholders at which he shall be
present. He shall have such power and perform such duties as may from time to
time be assigned to him by the Board of Directors.
Section 9. President. The President shall have the general direction
of the business affairs and property of the Corporation, and of its several
Officers, and shall have and exercise all such powers and discharge such duties
as usually pertain to the office of President. He shall have responsibility for
the day-to-day affairs of the Corporation subject to the control of the Board
of Directors. He shall perform such duties as may be assigned to him from time
to time by the Board of Directors and shall, in the absence of the Chairman of
the Board, if any, perform and carry out the functions of the Chairman of the
Board.
Section 10. Vice Presidents. The Vice Presidents, if any, shall,
subject to the direction of the Board of Directors, at the request of the
President or in his absence, or in case of his inability to perform his duties
from any cause, perform the duties of the President, and, when so acting, shall
have all the powers of, and be subject to all restrictions upon, the President.
The Vice Presidents shall also perform such other duties as may be assigned to
them by the Board of Directors, and the Board of Directors may determine the
order of priority among them.
Section 11. Secretary. The Secretary shall attend all sessions of the
Board of Directors and all meetings of the shareholders and record all votes
and minutes of all proceedings
-8-
in a book to be kept for that purpose, and shall perform like duties for any
committee appointed by the Board. He shall give or cause to be given notice of
all meetings of shareholders and special meetings of the Board of Directors and
shall perform such other duties as may be prescribed by the Board of Directors.
He shall keep in safe custody the seal of the Corporation and affix it to any
instrument when authorized by the Board of Directors.
Section 12. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered by
the Board, taking proper vouchers for such disbursements, and shall render to
the president and directors at the regular meetings of the Board, or whenever
they may require it, an account of all his transactions as Treasurer and of the
financial condition of the Corporation.
ARTICLE VI
CAPITAL STOCK
Section 1. Issue of Certificate of Stock. Certificates of capital
stock shall be in such form as shall be approved by the Board of Directors.
They shall be numbered in the order of their issue, shall set forth thereon the
statements prescribed by Section 508, and, where applicable, by Sections 505,
616, 620, 709 and 1002 of the Business Corporation Law and by any other
applicable provision of law and shall be signed by the President or any Vice
President, and the Secretary or any Assistant Secretary or the Treasurer or any
Assistant Treasurer, and the seal of the Corporation or a facsimile thereof
shall be impressed or affixed or reproduced thereon. In case any officer or
officers who shall have signed any such certificate or certificates shall cease
to be such officer or officers of the Corporation, whether because of death,
resignation or otherwise, before such certificate or certificates shall have
been delivered by the Corporation, such certificate or certificates may
nevertheless be adopted by the Corporation and be issued and delivered as
though the person or persons who signed such certificate or certificates have
not ceased to be such officer or officers of the Corporation.
Section 2. Registration and Transfer of Shares. The name of each
person owning a share of the capital stock of the Corporation shall be entered
on the books of the Corporation together with the number of shares held by him,
the numbers of the certificates covering such shares and the dates of issue of
such certificates. The shares of stock of the Corporation shall be transferable
on the books of the Corporation by the holders thereof in person, or by their
duly authorized attorneys or legal
-9-
representatives, on surrender and cancellation of certificates for a like
number of shares, accompanied by an assignment of power of transfer endorsed
thereon or attached thereto, duly executed, and with such proof of the
authenticity of the signature as the Corporation or its agents may reasonably
require. A record shall be made of each transfer.
The Board of Directors may make other and further rules and
regulations concerning the transfer and registration of certificates for stock.
Section 3. Lost, Destroyed and Mutilated Certificates. The holder of
any stock of the Corporation shall immediately notify the Corporation of any
loss, theft, destruction or mutilation of the certificate therefor. The
Corporation may issue a new certificate of stock in the place of any
certificate theretofore issued by it alleged to have been lost, stolen or
destroyed, and the Board of Directors may, in its discretion and as a precedent
to the issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or his legal representatives, to give the Corporation a bond, in
such sum not exceeding double the value of the stock and with such surety or
sureties as they may require, to indemnify it against any claim that may be
made against it by reason of the issue of such new certificate and against all
other liability in the premises, or may remit such owner to such remedy or
remedies as he may have under the laws of the State of New York.
ARTICLE VII
DIVIDENDS AND SURPLUS
Section 1. General Discretion of Directors. The Board of Directors
shall have power to fix and vary the amount to be set aside or reserved as
working capital of the Corporation, or as reserves, or for other proper
purposes of the Corporation, and, subject to the requirements of the
Certificate of Incorporation, to determine whether, if any, part of the surplus
or net profits of the Corporation shall be declared in dividends and paid to
the shareholders and to fix the date or dates for the payment of dividends.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall
commence on the first day of January and end on the last day of December or
such dates as the Board of Directors may determine by resolution.
Section 2. Corporate Seal. The corporate seal shall be in such form as
approved by the Board of Directors and may be altered at their pleasure. The
corporate seal may be used by
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causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
Section 3. Notices. Except as otherwise expressly provided any notice
required by these by-laws to be given shall be sufficient if given by
depositing the same in a post office letter box in a sealed post-paid wrapper
addressed to the person entitled thereto at his address, as the same appear
upon the books of the Corporation, or by telegraphing or cabling the same to
such person at such addresses; and such notice shall be deemed to be given at
the time it is mailed, telegraphed or cabled.
Section 4. Waiver of Notice. Any shareholder or director may at any
time, by writing or by telegraph or by cable, waive any notice required to be
given under these by-laws, and if any shareholder or director shall be present
at any meeting his presence shall constitute a waiver of such notice.
Section 5. Contracts, Checks, Drafts. The Board of Directors, except
as may otherwise be required by law, may authorize any officer or officers,
agent or agents, in the name of and on behalf of the corporation to enter into
any contract or execute or deliver any instrument. All checks, drafts or other
orders for the payment of money, notes or other evidences of indebtedness
issued in the name of the Corporation, shall be signed by such officer or
officers, agent or agents of the Corporation, and in such manner, as shall from
time to time be designated by resolution of the Board of Directors.
Section 6. Deposits. All funds of the Corporation shall be deposited
from time to time to the credit of the Corporation in such bank or banks, trust
companies or other depositories as the Board of Directs may select, and, for
the purpose of such deposit, checks, drafts, warrants and other orders for the
payment of money which are payable to the order of the Corporation, may be
endorsed for deposit, assigned and delivered by any officer of the Corporation,
or by such agents of the Corporation as the Board of Directors or the President
may authorize for that purpose.
Section 7. Voting Stock of Other Corporations. Except as otherwise
ordered by the Board of Directors, the Chairman of the Board, if any, or the
Executive Committee, if any, the President shall have full power and authority
on behalf of the Corporation to attend and to act and to vote at any meeting of
the shareholders of any corporation of which the Corporation is a shareholder
and to execute a proxy to any other person to represent the Corporation at any
such meeting, and at any such meeting the President or the holder of any such
proxy, as the case may be, shall possess and may exercise any and all rights
and powers incident to ownership of such stock and which, as owner thereof, the
Corporation might have possessed and exercised if present. The Board of
Directors or the Executive Committee
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may from time to time confer like powers upon any other person or persons.
Section 8. Indemnification of Officers and Directors. The Corporation
shall indemnify any and all of its directors or officers, who shall serve as an
officer or director of any corporation at the request of this Corporation, to
the fullest extent permitted under and in accordance with the laws of the State
of New York.
ARTICLE IX
AMENDMENTS
The Board of Directors shall have the power to make, rescind, alter,
amend and repeal these by-laws, provided, however, that the shareholders shall
have power to rescind, alter, amend or repeal any by-laws made by the Board of
Directors, and to enact by-laws which if so expressed shall not be rescinded,
altered, amended or repealed by the Board of Directors.
-12-
EX 3.7
CERTIFICATE OF INCORPORATION
OF
DiFeo Partnership, 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.
NAME
The name of the corporation is DiFeo Partnership, 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.
PURPOSE
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.
ARTICLE IV.
CAPITAL
3. Authorized Shares. The aggregate number of shares of capital stock
which the corporation shall have authority to issue is two hundred (200)
shares, all of which are without par value. 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
director of the corporation until the first annual meeting of stockholders or
until his successor is 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 of 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.
-2-
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 of 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, as the
same presently exists or may hereafter be amended, a director of the
Corporation shall not be 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, (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 or modification.
-3-
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.
-4-
ARTICLE XIII.
INCORPORATOR
The name and address of the incorporator is as follows:
Joan M. Flood
c/o '21' International Holdings, Inc.
153 East 53rd Street, Suite 5900
New York, NY 10022
IN WITNESS WHEREOF, the incorporator has executed this Certificate of
Incorporation on the 15th day of January, 1992.
INCORPORATOR
/s/ Joan M. Flood
-----------------
Joan M. Flood
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, 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
- -------------------------------
Tambra S. King, Asst. Secretary
CERTIFICATE OF CORRECTION FILED TO CORRECT
A CERTAIN ERROR IN THE CERTIFICATE OF INCORPORATION
OF DIFEO PARTNERSHIP, INC. FILED IN THE OFFICE
OF THE SECRETARY OF STATE OF DELAWARE
ON JANUARY 15, 1992
DiFeo Partnership, Inc., a corporation organized and existing under
any by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
1. The name of the corporation is DiFeo Partnership, Inc.
2. That a Certificate of Incorporation was filed by the Secretary of
State of Delaware on January 15, 1992, and that said Certificate requires
correction as permitted by Section 103 of the General Corporation Law of the
State of Delaware.
3. The inaccuracy or defect of said Certificate to be corrected is as
follows: The authorized capital is incorrect.
4. Article IV of the Certificate is corrected to reads as follows:
"ARTICLE IV
CAPITAL
The aggregate number of shares of capital stock which the corporation
shall have authority to issue is 100 of the per share par value of $.01. 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."
Dated as of January 21, 1992.
/s/ Marshall S. Cogan
------------------------------
Marshall S. Cogan, Director
/s/ Frederick Marcus
------------------------------
Frederick Marcus, Director
/s/ E. P. Mager
------------------------------
Ezra P. Mager, Director
EX 3.9
CERTIFICATE OF INCORPORATION
OF
DiFeo Partnership VIII, 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 VIII, 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.
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
-2-
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
By 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
rights or protection of a director of the Corporation with respect to any act
or omission occurring prior to such repeal of modification.
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
-3-
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
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.
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
-4-
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
-5-
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 VIII, 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
- -------------------------------
Tambra S. King, Asst. Secretary
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
BEFORE PAYMENT OF CAPITAL
OF
DIFEO PARTENERSHIP VIII, INC.
DiFeo Partnership VIII, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
1. That Article I of the Certificate of Incorporation be and it hereby
is amended to read as follows:
"ARTICLE I"
The name of the corporation is DiFeo
Partnership VIII, Inc. (the "Corporation").
2. The corporation has not received any payment for any of the stock.
3. As of the date hereof, the Board of Directors of the corporation
has not held a meeting or adopted resolutions for the election of officers.
4. That the amendment has been duly adopted in accordance with the
provisions of Section 241 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said DiFeo Partnership VIII, Inc. has caused this
Certificate to be signed by Marshall S. Cogan and Ezra P. Mager, being all the
members of its Board of Directors, this 10th day of September, 1992.
DIFEO PARTNERSHIP VIII, INC.
By: /s/ Marshall S. Cogan
-------------------------------
Marshall S. Cogan, Director
By: /s/ E. P. Mager
-------------------------------
Ezra P. Mager, Director
EX-3.10
BYLAWS
OF
DIFEO PARTNERSHIP VIII, INC.
A DELAWARE CORPORATION
(THE "COMPANY")
(AS ADOPTED ON SEPTEMBER 10, 1992)
TABLE OF CONTENTS
I. OFFICES ...................................................... 1
1.1. Registered Office.................................1
1.2. Additional Offices................................1
II. STOCKHOLDERS MEETINGS......................................... 1
2.1. Annual Meetings...................................1
2.2. Special Meetings..................................1
2.3. Notices...........................................1
2.4. Quorum............................................2
2.5. Voting of Shares..................................2
2.5.1. Voting Lists ..............................2
2.5.2. Votes Per Share ...........................2
2.5.3. Proxies ...................................3
2.5.4. Required Vote .............................3
2.5.5. Consents in Lieu of Meeting ...............3
III. DIRECTORS .....................................................3
3.1. Purpose...........................................3
3.2. Number............................................3
3.3. Election..........................................3
3.4. Vacancies.........................................4
3.5. Removal...........................................4
3.6. Compensation......................................4
IV. BOARD MEETINGS .............................................. 4
4.1. Annual Meetings...................................4
4.2. Regular Meetings..................................4
4.3. Special Meetings..................................5
4.4. Quorum, Required Vote.............................5
4.5. Consent In Lieu of Meeting........................5
V. COMMITTEES OF DIRECTORS ..................................... 5
5.1. Establishment; Standing Committees................5
5.2. Available Powers..................................5
5.3. Unavailable Powers................................6
5.4. Alternate Members.................................6
5.5. Procedures........................................6
VI. OFFICERS .................................................... 7
6.1. Elected Officers..................................7
6.1.1. Chairman of the Board .................... 7
6.1.2. President ................................ 7
6.1.3. Vice Presidents .......................... 7
6.1.4. Secretary ............................... 8
6.1.5. Assistant Secretaries .................... 8
6.1.6. Treasurer ................................ 8
6.1.7. Assistant Treasurers ..................... 8
6.1.8. Divisional Officers ...................... 8
6.2. Election..........................................9
6.3. Appointed Officers................................9
(i)
6.4. Multiple Officeholders, Stockholder
and Director Officers...........................9
6.5. Compensation, Vacancies...........................9
6.6. Additional Powers and Duties......................9
6.7. Removal..........................................10
VII. SHARE CERTIFICATES ......................................... 10
7.1. Entitlement to Certificates......................10
7.2. Multiple Classes of Stock........................10
7.3. Signatures.......................................10
7.4. Issuance and Payment.............................10
7.5. Lost Certificates................................11
7.6. Transfer of Stock................................11
7.7. Registered Stockholders..........................11
VIII. INDEMNIFICATION ............................................11
8.1. General..........................................11
8.2. Actions by or in the Right of the Company........12
8.3. Indemnification Against Expenses.................12
8.4. Board Determinations.............................12
8.5. Advancement of Expenses..........................13
8.6. Nonexclusive.....................................13
8.7. Insurance........................................13
8.8. Certain Definitions..............................13
8.9. Change in Governing Law..........................14
IX. INTERESTED DIRECTORS, OFFICERS AND STOCKHOLDERS ............. 14
9.1. Validity.........................................14
9.2. Disclosure, Approval.............................14
9.3. Nonexclusive.....................................15
X. MISCELLANEOUS .............................................. 15
10.1. Place of Meetings................................15
10.2. Fixing Record Dates..............................15
10.3. Means of Giving Notice...........................16
10.4. Waiver of Notice.................................16
10.5. Attendance via Communications Equipment..........17
10.6. Dividends........................................17
10.7. Reserves.........................................17
10.8. Reports to Stockholders..........................17
10.9. Contracts and Negotiable Instruments.............17
10.10. Fiscal Year......................................18
10.11. Seal.............................................18
10.12. Books and Records................................18
10.13. Resignation......................................18
10.14. Surety Bonds.....................................18
10.15. Proxies in Respect of Securities
of Other Corporations..........................18
10.16. Amendments.......................................19
(ii)
BYLAWS
ARTICLE I.
OFFICES
Section 1.1. Registered Office. The registered office of the Company
within the State of Delaware shall be located at either (i) the principal place
of business of the Company in the State of Delaware or (ii) the office of the
corporation or individual acting as the Company's registered agent in Delaware.
Section 1.2. Additional Offices. The Company may, in addition to its
registered office in the State of Delaware, have such other offices and places
of business, both within and without the State of Delaware, as the Board of
Directors of the Company (the "Board") may from time to time determine or as
the business and affairs of the Company may require.
ARTICLE II.
STOCKHOLDERS MEETINGS
Section 2.1. Annual Meetings. Annual meetings of stockholders shall be
held at a place and time on any weekday which is not a holiday and which is not
more than 120 days after the end of the fiscal year of the Company as shall be
designated by the Board and stated in the notice of the meeting, at which the
stockholders shall elect the directors of the Company and transact such other
business as may properly be brought before the meeting.
Section 2.2. Special Meetings. Special meetings of the stockholders,
for any purpose or purposes, unless otherwise prescribed by law or by the
certificate of incorporation, (i) may be called by the chairman of the board or
the president and (ii) shall be called by the president or secretary at the
request in writing of a majority of the Board or stockholders owning capital
stock of the Company representing a majority of the votes of all capital stock
of the Company entitled to vote thereat. Such request of the Board or the
stockholders shall state the purpose or purposes of the proposed meeting.
Section 2.3. Notices. Written notice of each stockholders' meeting
stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote thereat by or at the direction of the officer
calling such meeting not less than ten (10) nor more than sixty (60) days
before the date of the meeting. If said notice is for a stockholders meeting
other than an annual meeting, it shall in addition state the purpose or
purposes for which said meeting is called, and the business transacted at such
meeting shall be
limited to the matters so stated in said notice and any matters reasonably
related thereto.
Section 2.4. Quorum. The presence at a stockholders' meeting of the
holders, present in person or represented by proxy, of capital stock of the
Company representing a majority of the votes of all capital stock of the
Company entitled to vote thereat shall constitute a quorum at such meeting for
the transaction of business except as otherwise provided by law, the
certificate of incorporation or these Bylaws. If a quorum shall not be present
or represented at any meeting of the stockholders, a majority of the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented. At such reconvened meeting at which a quorum shall be present
or represented, any business may be transacted which might have been transacted
at the meeting as originally notified. If the adjournment is for more than
thirty (30) days, or if after the adjournment a new record date is fixed for
the reconvened meeting, a notice of said meeting shall be given to each
stockholder entitled to vote at said meeting. The stockholders present at a
duly convened meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
Section 2.5. Voting of Shares.
Section 2.5.1. Voting Lists. The officer or agent who has charge of
the stock ledger of the Company shall prepare, at least ten (10) days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote thereat arranged in alphabetical order and showing the address and the
number of shares registered in the name of each stockholder. Such list shall be
open to the examination of any such stockholder, for any purpose germane to the
meeting, during ordinary business hours for a period of at least ten (10) days
prior to the meeting, either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the meeting, or, if
not so specified, at the place where the meeting is to be held. The list shall
also be produced and kept at the time and place of the meeting during the whole
time thereof, and may be inspected by any stockholder who is present. The
original stock transfer books shall be prima facie evidence as to who are the
stockholders entitled to examine such list or transfer books or to vote at any
meeting of stockholders. Failure to comply with the requirements of this
section shall not affect the validity of any action taken at said meeting.
Section 2.5.2. Votes Per Share. Unless otherwise provided in the
certificate of incorporation, each stockholder shall be entitled to one vote in
person or by proxy at every stockholders meeting for each share of capital
stock held by such stockholder.
2
Section 2.5.3. Proxies. Every stockholder entitled to vote at a
meeting or to express consent or dissent without a meeting or a stockholder's
duly authorized attorney-in-fact may authorize another person or persons to act
for him by proxy. Each proxy shall be in writing, executed by the stockholder
giving the proxy or by his duly authorized attorney. No proxy shall be voted on
or after three (3) years from its date, unless the proxy provides for a longer
period. Unless and until voted, every proxy shall be revocable at the pleasure
of the person who executed it, or his legal representatives or assigns, except
in those cases where an irrevocable proxy permitted by statute has been given.
Section 2.5.4. Required Vote. When a quorum is present at any meeting,
the vote of the holders, present in person or represented by proxy, of capital
stock of the Company representing a majority of the votes of all capital stock
of the Company entitled to vote thereat shall decide any question brought
before such meeting, unless the question is one upon which, by express
provision of law or the certificate of incorporation or these Bylaws, a
different vote is required, in which case such express provision shall govern
and control the decision of such question.
Section 2.5.5. Consents in Lieu of Meeting. Any action required to be
or which may be taken at any meeting of stockholders may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt, written notice of the
action taken by means of any such consent which is other than unanimous shall
be given to those stockholders who have not consented in writing.
ARTICLE III.
DIRECTORS
Section 3.1. Purpose. The business of the Company shall be managed by
or under the direction of the Board, which may exercise all such powers of the
Company and do all such lawful acts and things as are not by law, the
certificate of incorporation or these Bylaws directed or required to be
exercised or done by the stockholders. Directors need not be stockholders or
residents of the State of Delaware.
Section 3.2. Number. The number of directors constituting the Board
shall never be less than one and shall be determined by resolution of the
Board.
Section 3.3. Election. Directors shall be elected by the stockholders
by plurality vote at an annual stockholders meeting
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as provided in the certificate of incorporation, except as hereinafter
provided, and each director shall hold office until his successor has been duly
elected and qualified.
Section 3.4. Vacancies. Vacancies and newly-created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, though less than a quorum, or by
a sole remaining director, and the directors so chosen shall hold office until
their successors are duly elected and qualified. If there are no directors in
office, then an election of directors may be held in the manner provided by
law. If, at the time of filling any vacancy or any newly-created directorship,
the directors then in office shall constitute less than a majority of the whole
Board (as constituted immediately prior to any such increase), the Court of
Chancery may, upon application of any stockholder or stockholders holding at
least ten percent (10%) of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly-created directorships,
or to replace the directors chosen by the directors then in office. No decrease
in the size of the Board shall serve to shorten the term of an incumbent
director.
Section 3.5. Removal. Unless otherwise restricted by law, the
certificate of incorporation or these Bylaws, any director or the entire Board
may be removed, with or without cause, by a majority vote of the shares
entitled to vote at an election of directors, if notice of the intention to act
upon such matter shall have been given in the notice calling such meeting.
Section 3.6. Compensation. Unless otherwise restricted by the
certificate of incorporation or these Bylaws, the Board shall have the
authority to fix the compensation of directors. The directors may be reimbursed
their expenses, if any, of attendance at each meeting of the Board and may be
paid either a fixed sum for attendance at each meeting of the Board or a stated
salary as director. No such payment shall preclude any director from serving
the Company in any other capacity and receiving compensation therefor. Members
of committees of the Board may be allowed like compensation for attending
committee meetings.
ARTICLE IV.
BOARD MEETINGS
Section 4.1. Annual Meetings. The Board shall meet as soon as
practicable after the adjournment of each annual stockholders' meeting at the
place of the stockholders' meeting. No notice to the directors shall be
necessary to legally convene this meeting, provided a quorum is present.
Section 4.2. Regular Meetings. Regularly scheduled, periodic meetings
of the Board may be held without notice at such
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times and places as shall from time to time be determined by resolution of the
Board and communicated to all directors.
Section 4.3. Special Meetings. Special meetings of the Board (i) may
be called by the chairman of the board or president and (ii) shall be called by
the president or secretary on the written request of two directors or the sole
director, as the case may be. Notice of each special meeting of the Board shall
be given, either personally or as hereinafter provided, to each director at
least 24 hours before the meeting if such notice is delivered personally or by
means of telephone, telegram, telex or facsimile transmission and delivery; two
days before the meeting if such notice is delivered by a recognized express
delivery service; and three days before the meeting if such notice is delivered
through the United States mail. Any and all business may be transacted at a
special meeting which may be transacted at a regular meeting of the Board.
Except as may be otherwise expressly provided by law, the certificate of
incorporation or these Bylaws, neither the business to be transacted at, nor
the purpose of, any special meeting need be specified in the notice or waiver
of notice of such meeting.
Section 4.4. Quorum, Required Vote. A majority of the directors shall
constitute a quorum for the transaction of business at any meeting of the
Board, and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board, except as may be
otherwise specifically provided by law, the certificate of incorporation or
these Bylaws. If a quorum shall not be present at any meeting, a majority of
the directors present may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum is present.
Section 4.5. Consent In Lieu of Meeting. Unless otherwise restricted
by the certificate of incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board or any committee thereof may
be taken without a meeting, if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
ARTICLE V.
COMMITTEES OF DIRECTORS
Section 5.1. Establishment; Standing Committees. The Board may by
resolution establish, name or dissolve one or more committees, each committee
to consist of one or more of the directors. Each committee shall keep regular
minutes of its meetings and report the same to the Board when required.
Section 5.2. Available Powers. Any committee established pursuant to
Section 5.1 of these Bylaws, but only to the extent
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provided in the resolution of the Board establishing such committee or
otherwise delegating specific power and authority to such committee and as
limited by law, the certificate of incorporation and these Bylaws, shall have
and may exercise all the powers and authority of the Board in the management of
the business and affairs of the Company, and may authorize the seal of the
Company to be affixed to all papers which may require it. Without limiting the
foregoing, such committee may, but only to the extent authorized in the
resolution or resolutions providing for the issuance of shares of stock adopted
by the Board as provided in Section 151(a) of the General Corporation Law of
the State of Delaware, fix any of the preferences or rights of such shares
relating to dividends, redemption, dissolution, any distribution of assets of
the Company or the conversion into, or the exchange of such shares for, shares
of any other class or classes or any other series of the same or any other
class or classes of stock of the Company.
Section 5.3. Unavailable Powers. No committee of the Board shall have
the power or authority to amend the certificate of incorporation (except in
connection with the issuance of capital stock as provided in the previous
section); adopt an agreement of merger or consolidation; recommend to the
stockholders the sale, lease or exchange of all or substantially all of the
Company's property and assets, a dissolution of the Company or a revocation of
such a dissolution; amend the Bylaws of the Company; or, unless the resolution
establishing such committee or the certificate of incorporation expressly so
provides, declare a dividend, authorize the issuance of stock or adopt a
certificate of ownership and merger.
Section 5.4. Alternate Members. The Board may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of such committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board
to act at the meeting in the place of any such absent or disqualified member.
Section 5.5. Procedures. Time, place and notice, if any, of meetings
of a committee shall be determined by such committee. At meetings of a
committee, a majority of the number of members designated by the Board shall
constitute a quorum for the transaction of business. The act of a majority of
the members present at any meeting at which a quorum is present shall be the
act of the committee, except as otherwise specifically provided by law, the
certificate of incorporation or these Bylaws. If a quorum is not present at a
meeting of a committee, the members present may adjourn the meeting from time
to time, without notice other than an announcement at the meeting, until a
quorum is present.
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ARTICLE VI.
OFFICERS
Section 6.1. Elected Officers. The Board shall elect a chairman of the
board, a president, a treasurer and a secretary (collectively, the "Required
Officers") having the respective duties enumerated below and may elect such
other officers having the titles and duties set forth below which are not
reserved for the Required Officers or such other titles and duties as the Board
may by resolution from time to time establish:
Section 6.1.1. Chairman of the Board. The chairman of the board shall
be the ranking chief executive officer of the Company, shall have general
supervision of the affairs of the Company and general control of all of its
business and shall see that all orders and resolutions of the Board are carried
into effect. The chairman of the board, or in his absence, the president, shall
preside when present at all meetings of the shareholders and the Board. The
chairman of the board may execute bonds, mortgages and other contracts
requiring a seal under the seal of the Company, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the Board to some
other officer or agent of the Company. The chairman of the board may delegate
all or any of his powers or duties to the president, if and to the extent
deemed by the chairman of the board to be desirable or appropriate.
Section 6.1.2. President. The president shall be the chief operating
officer of the Company and shall, subject to the supervision of the chairman of
the board and the Board, have general management and control of the day-to-day
business operations of the Company. The president shall put into operation the
business policies of the Company as determined by the chairman of the board and
the Board and as communicated to him by such officer and bodies. He shall make
recommendations to the chairman of the board on all matters which would
normally be reserved for the final executive responsibility of the chairman of
the board. In the absence of the chairman of the board or in the event of his
inability or refusal to act, the president shall perform the duties and
exercise the powers of the chairman of the board.
Section 6.1.3. Vice Presidents. In the absence of the president or in
the event of his inability or refusal to act, the vice president (or in the
event there be more than one vice president, the vice presidents in the order
designated by the Board, or in the absence of any designation, then in the
order of their election or appointment) shall perform the duties of the
president, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the president. The vice presidents shall perform such
other duties and have such other powers as the Board may from time to time
prescribe.
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Section 6.1.4. Secretary. The secretary shall attend all meetings of
the stockholders, the Board and (as required) committees of the Board and shall
record all the proceedings of such meetings in books to be kept for that
purpose. He shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board and shall perform such other
duties as may be prescribed by the Board or the president. He shall have
custody of the corporate seal of the Company and he, or an assistant secretary,
shall have authority to affix the same to any instrument requiring it, and when
so affixed, it may be attested by his signature or by the signature of such
assistant secretary. The Board may give general authority to any other officer
to affix the seal of the Company and to attest the affixing thereof by his
signature.
Section 6.1.5. Assistant Secretaries. The assistant secretary, or if
there be more than one, the assistant secretaries in the order determined by
the Board (or if there be no such determination, then in the order of their
election or appointment) shall, in the absence of the secretary or in the event
of his inability or refusal to act, perform the duties and exercise the powers
of the secretary and shall perform such other duties and have such other powers
as the Board may from time to time prescribe.
Section 6.1.6. Treasurer. Unless the Board by resolution otherwise
provides, the treasurer shall be the chief accounting and financial officer of
the Company. The Treasurer shall have the custody of the corporate funds and
securities, shall keep full and accurate accounts of receipts and disbursements
in books belonging to the Company and shall deposit all moneys and other
valuable effects in the name and to the credit of the Company in such
depositories as may be designated by the Board. He shall disburse the funds of
the Company as may be ordered by the Board, taking proper vouchers for such
disbursements, and shall render to the president and the Board, at its regular
meetings, or when the Board so requires, an account of all his transactions as
treasurer and of the financial condition of the Company.
Section 6.1.7. Assistant Treasurers. The assistant treasurer, or if
there shall be more than one, the assistant treasurers in the order determined
by the Board (or if there be no such determination, then in the order of their
election or appointment) shall, in the absence of the treasurer or in the event
of his inability or refusal to act, perform the duties and exercise the powers
of the treasurer and shall perform such other duties and have such other powers
as the Board may from time to time prescribe.
Section 6.1.8. Divisional Officers. Each division of the Company, if
any, may have a president, secretary, treasurer or controller and one or more
vice presidents, assistant secretaries, assistant treasurers and other
assistant
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officers. Any number of such offices may be held by the same person. Such
divisional officers will be appointed by, report to and serve at the pleasure
of the Board and such other officers that the Board may place in authority over
them. The officers of each division shall have such authority with respect to
the business and affairs of that division as may be granted from time to time
by the Board, and in the regular course of business of such division may sign
contracts and other documents in the name of the division where so authorized;
provided that in no case and under no circumstances shall an officer of one
division have authority to bind any other division of the Company except as
necessary in the pursuit of the normal and usual business of the division of
which he is an officer.
Section 6.2. Election. All elected officers shall serve until their
successors are duly elected and qualified or until their earlier death,
disqualification, retirement, resignation or removal from office.
Section 6.3. Appointed Officers. The Board may also appoint or
delegate the power to appoint such other officers, assistant officers and
agents, and may also remove such officers and agents or delegate the power to
remove same, as it shall from time to time deem necessary, and the titles and
duties of such appointed officers may be as described in Section 6.1 for
elected officers; provided that the officers and any officer possessing
authority over or responsibility for any functions of the Board shall be
elected officers.
Section 6.4. Multiple Officeholders, Stockholder and Director
Officers. Any number of offices may be held by the same person, unless the
certificate of incorporation or these Bylaws otherwise provide. Officers need
not be stockholders or residents of the State of Delaware. Officers, such as
the chairman of the board, possessing authority over or responsibility for any
function of the Board must be directors.
Section 6.5. Compensation, Vacancies. The compensation of elected
officers shall be set by the Board. The Board shall also fill any vacancy in an
elected office. The compensation of appointed officers and the filling of
vacancies in appointed offices may be delegated by the Board to the same extent
as permitted by these Bylaws for the initial filling of such offices.
Section 6.6. Additional Powers and Duties. In addition to the
foregoing especially enumerated powers and duties, the several elected and
appointed officers of the Company shall perform such other duties and exercise
such further powers as may be provided by law, the certificate of incorporation
or these Bylaws or as the Board may from time to time determine or as may be
assigned to them by any competent committee or superior officer.
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Section 6.7. Removal. Any officer may be removed, either with or
without cause, by a majority of the directors at the time in office, at any
regular or special meeting of the Board.
ARTICLE VII.
SHARE CERTIFICATES
Section 7.1. Entitlement to Certificates. Every holder of the capital
stock of the Company, unless and to the extent the Board by resolution provides
that any or all classes or series of stock shall be uncertificated, shall be
entitled to have a certificate, in such form as is approved by the Board and
conforms with applicable law, certifying the number of shares owned by him.
Section 7.2. Multiple Classes of Stock. If the Company shall be
authorized to issue more than one class of capital stock or more than one
series of any class, a statement of the powers, designations, preferences and
relative, participating, optional or other special rights of each class of
stock or series thereof and the qualification, limitations or restrictions of
such preferences and/or rights shall, unless the Board shall by resolution
provide that such class or series of stock shall be uncertificated, be set
forth in full or summarized on the face or back of the certificate which the
Company shall issue to represent such class or series of stock; provided that,
to the extent allowed by law, in lieu of such statement, the face or back of
such certificate may state that the Company will furnish a copy of such
statement without charge to each requesting stockholder.
Section 7.3. Signatures. Each certificate representing capital stock
of the Company shall be signed by or in the name of the Company by (1) the
chairman of the board, the president or a vice president; and (2) the
treasurer, an assistant treasurer, the secretary or an assistant secretary of
the Company. The signatures of the officers of the Company may be facsimiles.
In case any officer who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to hold such office before such
certificate is issued, it may be issued by the Company with the same effect as
if he held such office on the date of issue.
Section 7.4. Issuance and Payment. Subject to the provisions of the
law, the certificate of incorporation or these Bylaws, shares may be issued for
such consideration and to such persons as the Board may determine from time to
time. Shares may not be issued until the full amount of the consideration has
been paid, unless upon the face or back of each certificate issued to represent
any partly paid shares of capital stock there shall have been set forth the
total amount of the consideration to be paid therefor and the amount paid
thereon up to and including the time said certificate is issued.
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Section 7.5. Lost Certificates. The Board may direct a new certificate
or certificates to be issued in place of any certificate or certificates
theretofore issued by the Company alleged to have been lost, stolen or
destroyed upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates, the Board may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require and/or
to give the Company a bond in such sum as it may direct as indemnity against
any claim that may be made against the Company with respect to the certificate
alleged to have been lost, stolen or destroyed.
Section 7.6. Transfer of Stock. Upon surrender to the Company or its
transfer agent, if any, of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to
transfer and of the payment of all taxes applicable to the transfer of said
shares, the Company shall be obligated to issue a new certificate to the person
entitled thereto, cancel the old certificate and record the transaction upon
its books; provided, however, that the Company shall not be so obligated unless
such transfer was made in compliance with applicable state and federal
securities laws.
Section 7.7. Registered Stockholders. The Company shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, vote and be held liable for calls and
assessments and shall not be bound to recognize any equitable or other claim to
or interest In such share or shares on the part of any person other than such
registered owner, whether or not it shall have express or other notice thereof,
except as otherwise provided by law.
ARTICLE VIII.
INDEMNIFICATION
Section 8.1. General. The Company shall indemnify 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 (other than an action by or in the right of the Company), by
reason of the fact that he is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, 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 if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests
11
of the Company, 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, of 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
Company, and, with respect to any criminal action or proceeding, have
reasonable cause to believe that his conduct was unlawful.
Section 8.2. Actions by or in the Right of the Company. The Company
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the Company to procure a judgment in its favor by reason of the fact that he
is or was a director, officer, employee or agent of the Company, or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture or trust or other
enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit 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 Company and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Company unless
and only to the extent that the Court of Chancery or the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
Section 8.3. Indemnification Against Expenses. To the extent that a
director, officer, employee or agent of the Company has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to in
sections 8.1 and 8.2, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Section 8.4. Board Determinations. Any indemnification under sections
8.1 and 8.2 (unless ordered by a court) shall be made by the Company only as
authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in sections 8.1 and
8.2. Such determination shall be made (1) by the Board of Directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders.
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Section 8.5. Advancement of Expenses. Expenses incurred by an officer
or director in defending a civil or criminal action, suit or proceeding may be
paid by the Company in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Company as authorized by law or in this
section. Such expenses incurred by other employees and agents may be so paid
upon such terms and conditions, if any, as the Board of Directors deems
appropriate.
Section 8.6. Nonexclusive. The indemnification and advancement of
expenses provided by, or granted pursuant to, this section shall not be deemed
exclusive of any other rights to which any director, officer, employee or agent
of the Company seeking indemnification or advancement of expenses may be
entitled under any other Bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or agent of the
Company and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 8.7. Insurance. The Company may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the Company, or is or was serving at the request of the Company as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, or other enterprise, against any liability asserted
against him and incurred by him in any such capacity or arising out of his
status as such, whether or not the Company would have the power to indemnify
him against such liability under the provisions of the statutes, the
Certificate of Incorporation or this section.
Section 8.8. Certain Definitions. For purposes of this section, (a)
references to "the Company" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the
provisions of this section with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if
its separate existence had continued; (b) references to "other enterprises"
shall include employee benefit plans; (c) references to "fines" shall include
any excise
13
taxes assessed on a person with respect to an employee benefit plan; and (d)
references to "serving at the request of the Company" shall include any service
as a director, officer, employee or agent of the Company which imposes duties
on, or involves services by, such director, officer, employee, or agent with
respect to any employee benefit plan, its participants, or beneficiaries; and a
person who acted in good faith and in a manner he reasonably believed to be in
the interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests of
the Company" as referred to in this section.
Section 8.9. Change in Governing Law. In the event of any amendment or
addition to Section 145 of the General Corporation Law of the State of Delaware
or the addition of any other section to such law which shall limit
indemnification rights thereunder, the Company shall, to the extent permitted
by the General Corporation Law of the State of Delaware, indemnify to the
fullest extent authorized or permitted hereunder, 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 (including an action 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 Company or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, or other enterprise, 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.
ARTICLE IX.
INTERESTED DIRECTORS, OFFICERS AND STOCKHOLDERS
Section 9.1. Validity. Any contract or other transaction between the
Company and any of its directors, officers or stockholders (or any corporation
or firm in which any of them are directly or indirectly interested) shall be
valid for all purposes notwithstanding the presence of such director, officer
or stockholder at the meeting authorizing such contract or transaction, or his
participation or vote in such meeting or authorization.
Section 9.2. Disclosure, Approval. The foregoing shall, however, apply
only if the material facts of the relationship or the interest of each such
director, officer or stockholder is known or disclosed:
1. to the Board and it nevertheless in good faith authorizes
or ratifies the contract or transaction by a majority of the directors
present, each such interested director to be counted in determining
whether a quorum is
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present but not in calculating the majority necessary to carry the
vote; or
2. to the stockholders and they nevertheless in good faith
authorize or ratify the contract or transaction by a majority of the
shares present, each such interested person to be counted for quorum
and voting purposes.
Section 9.3. Nonexclusive. This provision shall not be construed to
invalidate any contract or transaction which would be valid in the absence of
this provision.
ARTICLE X.
MISCELLANEOUS
Section 10.1. Place of Meetings. All stockholders, directors and
committee meetings shall be held at such place or places, within or without the
State of Delaware, as shall be designated from time to time by the Board or
such committee and stated in the notices thereof. If no such place is so
designated, said meetings shall be held at the principal business office of the
Company.
Section 10.2. Fixing Record Dates.
(a) In order that the Company may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board may fix, in advance, a record date, which shall
not precede the date upon which the resolution fixing the record date is
adopted by the Board, and which record date shall not be more than sixty (60)
nor less than ten (10) days prior to any such action. If no record date is
fixed by the Board, the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day notice is given or, if notice is
waived, at the close of business on the day next preceding the day on which the
meeting is held. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board may fix a new record date for
the adjourned meeting.
(b) In order that the Company may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board, and which date
shall not be more than ten days after the date upon which the resolution fixing
the record date is adopted by the Board. If no record date has been fixed by
the Board, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the
Board is otherwise
15
required, shall be the first date on which a signed written consent setting
forth the action taken or proposed to be taken is delivered to the Company by
delivery to its registered office in the State of Delaware, its principal place
of business, or an officer or agent of the Company having custody of the book
in which proceedings of meetings of stockholders are recorded. Delivery made to
the Company's registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the Board
and prior action by the Board is required, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the day on which the Board adopts
the resolution taking such prior action.
(c) In order that the Company may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty (60) days prior to such
action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board adopts the resolution relating thereto.
Section 10.3. Means of Giving Notice. Whenever under law, the
certificate of incorporation or these Bylaws, notice is required to be given to
any director or stockholder, such notice may be given in writing and delivered
personally, through the United States mail, by a recognized express delivery
service (such as Federal Express) or by means of telegram, telex or facsimile
transmission, addressed to such director or stockholder at his address or telex
or facsimile transmission number, as the case may be, appearing on the records
of the Company, with postage and fees thereon prepaid. Such notice shall be
deemed to be given at the time when the same shall be deposited in the United
States mail or with an express delivery service or when transmitted, as the
case may be. Notice of any meeting of the Board may be given to a director by
telephone and shall be deemed to be given when actually received by the
director.
Section 10.4. Waiver of Notice. Whenever any notice is required to be
given under law, the certificate of incorporation or these bylaws, a written
waiver of such notice, signed before or after the date of such meeting by the
person or persons entitled to said notice, shall be deemed equivalent to such
required notice. All such waivers shall be filed with the corporate records.
Attendance at a meeting shall constitute a waiver of notice of such meeting,
except where a person attends for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
16
Section 10.5. Attendance via Communications Equipment. Unless
otherwise restricted by law, the certificate of incorporation or these Bylaws,
members of the Board, any committee thereof or the stockholders may hold a
meeting by means of conference telephone or other communications equipment by
means of which all persons participating in the meeting can effectively
communicate with each other. Such participation in a meeting shall constitute
presence in person at the meeting, except where a person participates in the
meeting for the express purpose of objecting to the transaction of any business
on the ground that the meeting is not lawfully called or convened.
Section 10.6. Dividends. Dividends on the capital stock of the
Company, paid in cash, property, or securities of the Company and as may be
limited by applicable law and applicable provisions of the certificate of
incorporation (if any), may be declared by the Board at any regular or special
meeting.
Section 10.7. Reserves. Before payment of any dividend, there may be
set aside out of any funds of the Company available for dividends such sum or
sums as the Board from time to time, in its absolute discretion, think proper
as a reserve or reserves to meet contingencies, for equalizing dividends, for
repairing or maintaining any property of the Company, or for such other purpose
as the Board shall determine to be in the best interest of the Company; and the
Board may modify or abolish any such reserve in the manner in which it was
created.
Section 10.8. Reports to Stockholders. The Board shall present at each
annual meeting of stockholders, and at any special meeting of stockholders when
called for by vote of the stockholders, a statement of the business and
condition of the Company.
Section 10.9. Contracts and Negotiable Instruments. Except as
otherwise provided by law or these Bylaws, any contract or other instrument
relative to the business of the Company may be executed and delivered in the
name of the Company and on its behalf by the chairman of the board or the
president; and the Board may authorize any other officer or agent of the
Company to enter into any contract or execute and deliver any contract in the
name and on behalf of the Company, and such authority may be general or
confined to specific instances as the Board may by resolution determine. All
bills, notes, checks or other instruments for the payment of money shall be
signed or countersigned by such officer, officers, agent or agents and in such
manner as are permitted by these Bylaws and/or as, from time to time, may be
prescribed by resolution (whether general or special) of the Board. Unless
authorized so to do by these Bylaws or by the Board, no officer, agent or
employee shall have any power or authority to bind the Company by any contract
or engagement, or to pledge its credit, or to render it liable pecuniarily for
any purpose or to any amount.
17
Section 10.10. Fiscal Year. The fiscal year of the Company shall be
fixed by resolution of the Board.
Section 10.11. Seal. The seal of the Company shall be in such form as
shall from time to time be adopted by the Board. The seal may be used by
causing it or a facsimile thereof to be impressed, affixed or otherwise
reproduced.
Section 10.12. Books and Records. The Company shall keep correct and
complete books and records of account and shall keep minutes of the proceedings
of its stockholders, Board and committees and shall keep at its registered
office or principal place of business, or at the office of its transfer agent
or registrar, a record of its stockholders, giving the names and addresses of
all stockholders and the number and class of the shares held by each.
Section 10.13. Resignation. Any director, committee member, officer or
agent may resign by giving written notice to the chairman of the board, the
president or the secretary. The resignation shall take effect at the time
specified therein, or immediately if no time is specified. Unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 10.14. Surety Bonds. Such officers and agents of the Company
(if any) as the president or the Board may direct, from time to time, shall be
bonded for the faithful performance of their duties and for the restoration to
the Company, in case of their death, resignation, retirement, disqualification
or removal from office, of all books, papers, vouchers, money and other
property of whatever kind in their possession or under their control belonging
to the Company, in such amounts and by such surety companies as the president
or the Board may determine. The premiums on such bonds shall be paid by the
Company, and the bonds so furnished shall be in the custody of the Secretary.
Section 10.15. Proxies in Respect of Securities of Other Corporations.
The chairman of the board, the president, any vice president or the secretary
may from time to time appoint an attorney or attorneys or an agent or agents
for the Company to exercise, in the name and on behalf of the Company, the
powers and rights which the Company may have as the holder of stock or other
securities in any other corporation to vote or consent in respect of such stock
or other securities, and the chairman of the board, the president, any vice
president or the secretary may instruct the person or persons so appointed as
to the manner of exercising such powers and rights; and the chairman of the
board, the president, any vice president or the secretary may execute or cause
to be executed, in the name and on behalf of the Company and under its
corporate seal or otherwise, all such written proxies or other instruments as
he may deem necessary or proper in order that the Company may exercise such
powers and rights.
18
Section 10.16. Amendments. These Bylaws may be altered, amended,
repealed or replaced by the stockholders, or by the Board when such power is
conferred upon the Board by the certificate of incorporation, at any annual
stockholders meeting or annual or regular meeting of the Board, or at any
special meeting of the stockholders or of the Board if notice of such
alteration, amendment, repeal or replacement is contained in the notice of such
special meeting. If the power to adopt, amend, repeal or replace these Bylaws
is conferred upon the Board by the certificate of incorporation, the power of
the stockholders to so adopt, amend, repeal or replace these Bylaws shall not
be divested or limited thereby.
19
EX 3.11
CERTIFICATE OF INCORPORATION
OF
DiFeo Partnership IX, 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 IX, 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.
-2-
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.
-3-
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 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 statute, 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.
-4-
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
-5-
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 IX, 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
- -------------------------------
Tambra S. King, Asst. Secretary
EX 3.13
CERTIFICATE OF INCORPORATION
OF
DiFeo Partnership II, 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 II, 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.
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
-2-
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.
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
-3-
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 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 statute, 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.
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
-4-
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
-5-
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 HCT, 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 hereinabove 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
- -------------------------------
Tambra S. King, Asst. Secretary
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
BEFORE PAYMENT OF CAPITAL
OF
DIFEO PARTNERSHIP II, INC.
DiFeo Partnership II, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
1. That Article I of the Certificate of Incorporation be and it hereby
is amended to read as follows:
"ARTICLE I"
The name of the corporation is DiFeo
Partnership HCT, Inc. (the "Corporation").
2. The corporation has not received any payment for any of the stock.
3. As of the date hereof, the Board of Directors of the corporation
has not held a meeting or adopted resolutions for the election of officers.
4. That the amendment has been duly adopted in accordance with the
provisions of Section 241 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said DiFeo Partnership II, Inc. has caused this
Certificate to be signed by Marshall S. Cogan and Ezra P. Mager, being all the
members of its Board of Directors, this 10th day of September, 1992.
DIFEO PARTNERSHIP II, INC.
By: /s/ M. S. Cogan
-------------------------------
Marshall S. Cogan, Director
By: /s/ E. P. Mager
-------------------------------
Ezra P. Mager, Director
EX 3.15
CERTIFICATE OF INCORPORATION
OF
DiFeo Partnership V, 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 V, 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.
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
-2-
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.
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
-3-
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 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 statute, 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.
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
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 "corporation") is
DIFEO PARTNERSHIP RCM, 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 hereinabove 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
- -------------------------------
Tambra S. King, Asst. Secretary
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
BEFORE PAYMENT OF CAPITAL
OF
DIFEO PARTENERSHIP V, INC.
DiFeo Partnership V, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
1. That Article I of the Certificate of Incorporation be and it hereby
is amended to read as follows:
"ARTICLE I"
The name of the corporation is DiFeo
Partnership RCM, Inc. (the "Corporation").
2. The corporation has not received any payment for any of the stock.
3. As of the date hereof, the Board of Directors of the corporation
has not held a meeting or adopted resolutions for the election of officers.
4. That the amendment has been duly adopted in accordance with the
provisions of Section 241 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said DiFeo Partnership V, Inc. has caused this
Certificate to be signed by Marshall S. Cogan and Ezra P. Mager, being all the
members of its Board of Directors, this 10th day of September, 1992.
DIFEO PARTNERSHIP II, INC.
By: /s/ M. S. Cogan
-------------------------------
Marshall S. Cogan, Director
By: /s/ E. P. Mager
-------------------------------
Ezra P. Mager, Director
EX 3.17
CERTIFICATE OF INCORPORATION
OF
DiFeo Partnership III, 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 III, 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.
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
-2-
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.
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
-3-
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 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 statute, 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 by 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.
-4-
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
-5-
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 RCT, 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 hereinabove 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
- -------------------------------
Tambra S. King, Asst. Secretary
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 01:00 PM 09/10/1992
732254015 - 2307822
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
BEFORE PAYMENT OF CAPITAL
OF
DIFEO PARTENERSHIP III, INC.
DiFeo Partnership III, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
1. That Article I of the Certificate of Incorporation be and it hereby
is amended to read as follows:
"ARTICLE I"
The name of the corporation is DiFeo
Partnership RCT, Inc. (the "Corporation").
2. The corporation has not received any payment for any of the stock.
3. As of the date hereof, the Board of Directors of the corporation
has not held a meeting or adopted resolutions for the election of officers.
4. That the amendment has been duly adopted in accordance with the
provisions of Section 241 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said DiFeo Partnership III, Inc. has caused this
Certificate to be signed by Marshall S. Cogan and Ezra P. Mager, being all the
members of its Board of Directors, this 10th day of September, 1992.
DIFEO PARTNERSHIP III, INC.
By: /s/ M. S. Cogan
------------------------------
Marshall S. Cogan, Director
By: /s/ Ezra P. Mager
------------------------------
Ezra P. Mager, Director
EX-3.19
CERTIFICATE OF INCORPORATION
OF
DiFeo Partnership VII, 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 VII, 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.
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,
-2-
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.
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
-3-
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 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 statute, 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 by 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.
-4-
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
-5-
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 SCT, 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 hereinabove 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
- -----------------------------
Tambra S. King, Asst. Secretary
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 01:00 PM 09/10/1992
922545210 - 2307779
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
BEFORE PAYMENT OF CAPITAL
OF
DIFEO PARTENERSHIP VII, INC.
DiFeo Partnership VII, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
1. That Article I of the Certificate of Incorporation be and it hereby
is amended to read as follows:
"ARTICLE I"
The name of the corporation is DiFeo
Partnership SCT, Inc. (the "Corporation").
2. The corporation has not received any payment for any of its stock.
3. As of the date hereof, the Board of Directors of the corporation
has not held a meeting or adopted resolutions for the election of officers.
4. That the amendment has been duly adopted in accordance with the
provisions of Section 241 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said DiFeo Partnership VII, Inc. has caused this
Certificate to be signed by Marshall S. Cogan and Ezra P. Mager, being all the
members of its Board of Directors, this 10th day of September, 1992.
DIFEO PARTNERSHIP VII, INC.
By: /s/ M. S. Cogan
------------------------------
Marshall S. Cogan, Director
By: /s/ E. P. Mager
------------------------------
Ezra P. Mager, Director
EX. 3.21
CERTIFICATE OF INCORPORATION
OF
HUDSON TOYOTA, INC.
Under the New Jersey Business Corporation Act
IT IS HEREBY CERTIFIED THAT:
(1) The name of the proposed corporation is Hudson Toyota, Inc.
(2) The corporation may engage in any activity within the purposes for
which corporations may be organized under the New Jersey Business
Corporation Act.
(3) The aggregate number of shares which the corporation shall have the
authority to issue is 1000 shares of Common Stock of the par value of
$1 per share.
(4) The address of the corporation's initial office is 919 Communipaw
Avenue, Jersey City, New Jersey 07304.
(5) The name of the corporation's initial register agent at such address
is Joseph C. DiFeo.
(6) The number of directors constituting the first board is three.
(7) The name and address of each person who is to serve as such director
is:
NAME ADDRESS
---- -------
Sam C. DiFeo 92 Gifford Avenue
Jersey City, New Jersey 07304
Dennis A. DiFeo 92 Gifford Avenue
Jersey City, New Jersey 07304
Joseph C. DiFeo 446 River Road
Nutley, New Jersey 07110
(8) The undersigned incorporator is of the age of 21 years or over.
IN WITNESS WHEREOF, this certificate has been subscribed this 9th day of
November 1970 by the undersigned.
/s/ Joseph C. Di Feo
------------------------------
JOSEPH C. DI FEO
446 River Road
Nutley, New Jersey 07110
Exhibit 3.23
CERTIFICATE OF INCORPORATION
OF
SOMERSET MOTORS INC.
To: The Secretary of State
of New Jersey
The undersigned, of the age of eighteen years or over, for the
purpose of forming a corporation pursuant to the provisions of Title 14A,
Corporations, General, of the New Jersey Statutes, does hereby execute the
following Certificate of Incorporation.
(1) The name of the corporation is
SOMERSET MOTORS INC.
(2) the purpose or purposes for which the corporation is organized
are: To do any lawful act or thing for which corporations may be organized
pursuant to the provisions of Title 14A, Corporations, General of the
New Jersey Statutes.
(3) The aggregate number of shares which the corporation shall have
the authority to issue is 2500 shares each of which shall have no par value.
(4) The address of the corporation's initial registered office is
947 Communipaw Ave., Jersey City, NJ 07304. The name of the corporation's
initial registered agent at such address is Lawrence Iannaccone Esq.
(5) The number of directors constituting the initial board of
directors shall be three and the names and addresses are as follows:
Name Address
Lawrence Iannaccone Esq. 947 Communipaw Ave.
Jersey City, NJ 07304
Samuel X. DiFeo 947 Communipaw Ave.
Jersey City, NJ 07304
Joseph C. DiFeo 947 Communipaw Ave.
Jersey City, NJ 07304
(6) The name and address of the Incorporator is as follows
Name Address
Bonnie J. Hall 830 Bear Tavern Road
West Trenton, NJ 08628
IN WITNESS WHEREOF, the undersigned of the above named corporation,
has hereunto signed this Certificate of Incorporation this twenty-fourth day of
May, 1989.
/s/ Bonnie J. Hall
----------------------------------
Bonnie J. Hall
Incorporator
EX-3.24
BYLAWS
OF
SOMERSET MOTORS INC.
* * * * * * * *
ARTICLE I - SHAREHOLDERS
Section 1. Place of Meeting: Notice; Waiver of Notice. All meetings of
shareholders shall be held at the principal office of the corporation or at
such other place, either within or outside of New Jersey, as shall be
specified in the notice of meeting. Written notice stating the place, day and
hour of the meeting shall be given not less than ten nor more than sixty days
before the date of the meeting, either personally or by mail, to each
shareholder of record entitled to vote at the meeting. The notice shall
designate with reasonable specificity the business to be conducted at the
meeting. Notice of a meeting need not be given to a shareholder who signs
waiver of such notice, in person or by proxy, whether before or after the
meeting.
Section 2. Annual Meeting. Unless otherwise fixed by the Board of Directors,
the annual meeting of shareholders shall be held on April 15, or if the same
shall be a Saturday, Sunday or holiday, on the next succeeding business day,
for the purpose of electing directors and for the transaction of such other
business as may come before the meeting.
Section 3. Special Meetings. Special meetings of shareholders, for any
purpose or purposes, may be called by the President or by
the Board of Directors by notice given to the shareholders as provided in
Section 1 above.
Section 4. Action by Shareholders Without a Meeting. Any action required or
permitted to be taken at a meeting of shareholders may be taken without a
meeting upon the written consent of the shareholders who are entitled to cast
the minimum number of votes which would be necessary to authorize such action
at a meeting at which all shareholders entitled to vote thereon were present
and voting, except that in the case of the annual election of directors and
any action to be taken pursuant to Chapter 10 of the New Jersey Business
Corporation Act, such action may be taken without a meeting only if all
shareholders consent thereto in writing. The written consent of the
shareholders, which may be executed in counterparts, shall be filed with the
minutes of the corporation. If action is taken by the written consent of less
than all of the shareholders, notice of such action shall be given to all
nonconsenting shareholders as required by the New Jersey Business Corporation
Act.
Section 5. Method of Voting. The shareholders shall vote by voice vote on all
matters including the election of directors, unless any shareholder demands
voting by written ballot prior to the vote. In the event a written ballot is
demanded, the person presiding at the meeting shall designate one person, who
may not be a nominee for director if the vote be to elect directors, as
inspector to tally the ballots and report the results of the voting.
-2-
Section 6. Presiding Officers at Meetings. The President and the Secretary, or
an officer or officers designated by the President, if either or both of them
are unable to attend the meeting, shall preside as President and Secretary of
each shareholders' meeting unless the majority of the shareholders present at
the meeting shall decide otherwise.
ARTICLE II - DIRECTORS
Section 1. Number; Term of Office. The Board of Directors shall consist of
between one (1) and four (4) persons as determined by the shareholders. The
directors shall hold office until the annual meeting of shareholders next
succeeding the filing of the Certificate of Incorporation, and until their
successors are elected and qualified. The directors elected at the first
annual meeting of shareholders and at each annual meeting thereafter shall
hold office for one year, and until their successors are elected and
qualified. The shareholders shall set, and may increase or decrease within the
limits set herein by resolution adopted from time to time, the number of
directors who shall serve on the Board of Directors.
Section 2. Regular Meetings. A regular meeting of the Board of Directors for
the purpose of electing officers and transacting such other business as may
come before the meeting shall be held without notice immediately following and
at the same place as the annual shareholders' meeting. The Board of Directors
may provide, by resolution, the place, day and hour for additional regular
meetings which may be held without notice.
-3-
Section 3. Special Meetings. Special meetings of the Board of Directors may be
called by the President or any director. Written notice of any special meeting
shall be given to each director at least two days prior thereto.
Section 4. Place of Meeting: Waiver of Notice. Meetings of the Board of
Directors shall be held at such place as shall be designated in the notice of
meeting. Notice of any meeting need not be given to any director who signs
a waiver of notice before or after the meeting.
Section 5. Quorum. The participation of directors with a majority of the votes
of the entire board shall constitute a quorum for the transaction of business.
Section 6. Manner of Acting. Any action approved by a majority of the votes of
directors at a meeting at which a quorum is present shall be the act of the
board, except as provided in the certificate of incorporation or by law.
Section 7. Action Without a Meeting. Any action required or permitted to be
taken pursuant to authorization voted at a meeting of the Board of Directors
may be taken without a meeting if, prior or subsequent to such action, all of
the directors consent thereto in writing. Such written consents may be
executed in counterparts, and shall be filed with the minutes of the
corporation.
Section 8. Telephonic Attendance at Meeting. Any or all directors may
participate in a meeting of the Board of Directors or a Committee of the Board
by means of conference telephone or
-4-
any means of communication by which all persons participating in the meeting
are able to hear each other.
Section 9. Vacancies. Any vacancy in the Board of Directors, including a
vacancy caused by an increase in the number of directors, shall be filled by
the affirmative vote of a majority of the shareholders.
Section 10. Committees. The Board of Directors, by resolution adopted by a
majority of the entire board, may appoint from among its members an executive
committee and one or more other committees. To the extent provided in such
resolution, each such committee shall have and may exercise all the authority
of the board, subject to the limitations on the permissible scope of the power
of any such committees allowed by law. The Board of Directors, by resolution
adopted by a majority of the entire board, may fill any vacancy in any
committee; abolish any committee at any time; and remove any director from
membership on any committee at any time, with or without cause.
ARTICLE III - OFFICERS
Section 1. Election. At its regular meeting following the annual meeting of
shareholders, the Board of Directors shall elect or appoint a President, a
Treasurer, a Secretary, and, if desired, a Chairman of the Board and/or one or
more Vice Presidents, and such other officers or agents as it shall deem
necessary or desirable. One person may hold two or more offices, but the
person serving as President may not serve simultaneously as Secretary.
Section 2. Vacancies. Any vacancy occurring among the officers, however
caused, may be filled by the Board of Directors for the unexpired portion of
the term.
Section 3. Chairman of the Board. The Chairman of the Board, if any, shall
preside at directors' meetings in lieu of the President and have such powers,
and shall perform such other duties, as may be prescribed from time to time by
the Board of Directors.
Section 4. President. The President shall be chief executive officer of the
corporation and, subject to the control of the Board of Directors, shall in
general supervise and control all of the business and affairs of the
corporation. Unless otherwise directed by the Board of Directors, all other
officers shall be subject to the authority and supervision of the President.
The President may enter into and execute in the name of the corporation
contracts or other instruments in the regular course of business or contracts
or other instruments not in the regular course of business which are
authorized, either generally or specifically, by the Board of Directors. The
President shall have the general powers and duties of management usually
vested in the office of President of a corporation.
Section 5. Vice President. A Vice President shall perform such duties and have
such authority as may be delegated from time to time by the President or by
the Board of Directors. In the absence of the President or in the event of the
President's death, inability, or refusal to act, the Vice President shall
-6-
perform the duties and be vested with the authority of the President.
Section 6. Treasurer. The Treasurer shall have charge and custody of and be
responsible for all funds and securities of the corporation, shall keep or
cause to be kept regular books of account for the corporation and shall
perform such other duties and possess such other powers as are incident to the
office of Treasurer or as shall be assigned to the Treasurer by the President
or by the Board of Directors.
Section 7. Secretary. The Secretary shall cause notices of all meetings to be
served as prescribed in these bylaws or by statute, shall keep or cause to be
kept the minutes of all meetings of the shareholders and of the Board of
Directors, shall have charge of the corporate records and seal of the
corporation and shall keep a register of the post-office address of each
shareholder which shall be furnished to the Secretary by such shareholder. The
Secretary shall perform such other duties and possess such other powers as are
incident to the office of Secretary or as are assigned by the President or by
the Board of Directors.
Section 8. Subordinate Officers and Agents. The Board of Directors may appoint
such other officers and agents as it shall deem necessary or desirable, who
shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the President
or the Board of Directors.
ARTICLE IV - EXECUTION OF DOCUMENTS
-7-
Section 1. Commercial Paper. All checks, notes, drafts and other commercial
paper of the corporation shall be signed by the President of the corporation
or by such other person or persons as the Board of Directors may from time to
time designate.
Section 2. Other Instruments. All deeds, mortgages and other instruments shall
be executed by the President of the corporation or any Vice President, and by
the Secretary, or such other person or persons as the Board of Directors may
from time to time designate.
ARTICLE V - FISCAL YEAR
The fiscal year of the corporation shall be the calendar year unless otherwise
determined by the Board of Directors.
ARTICLE VI - CERTIFICATES FOR SHARES
Section 1. Execution. Certificates representing shares of the corporation
shall be in such form as shall be determined by the Board of Directors and
shall be executed by the President or Vice President and by the Secretary or
the Treasurer, unless the Board of Directors shall direct otherwise.
Section 2. Fixing Record Date. For the purpose of determining the shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or to express consent to or dissent from any proposal
without any meeting or for the purpose of determining shareholders entitled to
receive payment of any dividend or allotment or any right, or in order to make
a determination of shareholders for any other purpose, the Board of Directors
may fix, in advance, a date as the record date for any such determination of
shareholders. Such date shall not be more
-8-
than sixty nor less than ten days before the date of such meeting, nor more
than sixty days prior to any other action or event to which it relates. When a
determination of shareholders of record for a shareholders' meeting has been
made as provided in this Section 2, such determination shall apply to any
adjournment thereof, unless the Board of Directors fixes a new record date for
the adjourned meeting.
ARTICLE VII - DIVIDENDS
The Board of Directors may from time to time declare, and the corporation may
pay, dividends or make other distributions on its outstanding shares in the
manner and upon the terms and conditions provided by the Certificate of
Incorporation and by statute.
ARTICLE VIII - AMENDMENT
These bylaws may be altered, amended or repealed and new bylaws may be
adopted by a majority of the votes cast at any regular or special meeting of
the shareholders, if notice of the proposed alteration or amendment be
contained in the notice of the meeting, or by the affirmative vote of a
majority of the votes of the directors at any regular or special meeting
called for that purpose.
ARTICLE IX - INDEMNIFICATION
Section 1. Definitions.
For purposes of this Article IX the following definitions,
as well as all other definitions set forth in N.J.S.A. 14A:3-5 shall apply:
-9-
a. "Corporate Agent" shall mean any person who is or was a director,
officer, employee or agent of the indemnifying corporation or of any
constituent corporation absorbed by the indemnifying corporation in
consolidation or merger and any person who is or was a director,
officer, trustee, employee or agent of any other enterprise, serving as such
at the request of the indemnifying corporation, or of any such constituent
corporation, or the legal representative of any such director, officer,
trustee, employee or agent. Furthermore, any Corporate Agent also serving as a
"fiduciary" of an employee benefit plan governed by the Act of Congress
entitled "Employee Retirement Income Security Act of 1974" (ERISA) as amended
from time to time, shall serve in such capacity as a Corporate Agent, if the
corporation shall have requested any such person to serve. Additionally, the
corporation shall be deemed to have requested such person to serve as a
fiduciary of an employee benefit plan, only where the performance by such
person of his duties to the corporation also imposes duties on, or otherwise
involves services by, such person to the plan or participants or beneficiaries
of the plan.
b. "Other Enterprise" shall mean any domestic or foreign corporation
other than the indemnifying corporation, and any partnership, joint venture,
sole proprietorship, trust or other enterprise, (including employee benefit
plans governed by ERISA) whether or not for profit served by a Corporate
Agent.
Section 2. Indemnification.
-10-
a. Any Corporate Agent shall be indemnified by the corporation to the
full extent permitted by N.J.S.A. 14A:3-5 in connection with any proceeding
involving the Corporate Agent by reason of his being or having been such a
Corporate Agent.
b. Any Corporate Agent may be insured by insurance purchased and
maintained by the corporation against any expenses incurred in any proceeding
and any liabilities asserted against him in his capacity as Corporate Agent,
whether or not the corporation would have the
power to indemnify him against such liability.
ARTICLE X - LOANS TO AND GUARANTEES
OF OBLIGATIONS OF OFFICERS, DIRECTORS
AND EMPLOYEES
This corporation may lend money to, or guarantee any obligation of, or
otherwise assist, any officer or other employee of this corporation or of any
subsidiary, even if said officer or other employee is also a director of this
corporation or of any subsidiary, whenever, in the judgment of the directors,
such loan, guarantee or assistance may reasonably be expected to benefit the
corporation. Such loan, guarantee or assistance must be authorized by a
majority of the entire board of directors of this corporation. Any such loan,
guarantee or other assistance may be made with or without interest, and may be
unsecured, or secured in such manner as the board of directors shall approve,
including, without limitation, a pledge of shares of this corporation, and may
be made upon such other terms and conditions as the board may determine. The
proceeds of any such loan may be applied to the purchase of shares of the
corporation and any
-11-
shares so purchased shall be deemed to be fully paid and non-assessable.
-12-
EX-3.25
AMENDED AND RESTATED PARTNERSHIP AGREEMENT
THIS AMENDED AND RESTATED PARTNERSHIP AGREEMENT is made as of this 28th day
of October, 1996, between the undersigned partners.
A. NAME AND BUSINESS. The partners hereby amend and restate the partnership
agreement referenced on Schedule "A" and agree to conduct business under the
name set forth on Schedule "A". The business of the partnership will be the
sale of new and used automobiles and related business ventures.
B. BUSINESS OFFICE. The partnership's business address is c/o United Auto
Group, Inc., 375 Park Avenue, New York, New York 10152.
C. PARTNER'S INTERESTS. The partners have the ownership interest in the
partnership as set forth on Schedule "A".
D. ALLOCATION AND DISTRIBUTION. A separate capital account shall be
maintained for each partner. Each partner's capital account shall be determined
and items of income, loss, credit, deduction and gains shall be allocated and
distributed, and their interest determined throughout the term of the
partnership in accordance with the requirements of Section 704(b) of the
Internal Revenue Code of 1986, as amended and any of the Treasury Regulations
promulgated from time to time thereunder.
E. MANAGEMENT, DUTIES AND RESTRICTIONS. Each partner will have rights in
the management of the partnership business in accordance with their ownership
interests. Either partner, without the consent of the other, may enter into and
deliver any contract, agreement, guarantee, agreement to borrow or lend money,
mortgage, security agreement or lease, or purchase or contract to purchase or
sell any type of property, whether or not in the ordinary course of the
partnership business.
F. BOOKS. The partnership books shall be maintained at the principal office
of the partnership.
G. TERM; VOLUNTARY TERMINATION. The partnership shall continue until
voluntarily or involuntarily terminated by the partners. If dissolved at any
time by agreement of the partners, the partners shall proceed with reasonable
promptness to liquidate the business of the partnership.
IN WITNESS WHEREOF, the partners have executed this Agreement by their duly
authorized officers.
DiFeo Partnership RCT, Inc. UAG Northeast (NY), Inc.
By: /s/ Philip N. Smith By: /s/ Philip N. Smith
------------------------------- -------------------------------
Name: Philip N. Smith Name: Philip N. Smith
Title: Secretary Title: Secretary
SCHEDULE "A"
A. Previous Partnership Agreement - That certain partnership agreement between
DiFeo Partnership RCT, Inc. and County Auto Group, Inc. dated October 1,
1992.
B. Partnership Name - County Auto Group Partnership
C. Partners' Ownership Interest -
1. DiFeo Partnership RCT, Inc. - 70%
2. UAG Northeast (NY), Inc. - 30%
EX-3.26
AMENDED AND RESTATED PARTNERSHIP AGREEMENT
THIS AMENDED AND RESTATED PARTNERSHIP AGREEMENT is made as of this 28th day
of October, 1996, between the undersigned partners.
A. NAME AND BUSINESS. The partners hereby amend and restate the partnership
agreement referenced on Schedule "A" and agree to conduct business under the
name set forth on Schedule "A". The business of the partnership will be the
sale of new and used automobiles and related business ventures.
B. BUSINESS OFFICE. The partnership's business address is c/o United Auto
Group, Inc., 375 Park Avenue, New York, New York 10152.
C. PARTNER'S INTERESTS. The partners have the ownership interest in the
partnership as set forth on Schedule "A".
D. ALLOCATION AND DISTRIBUTION. A separate capital account shall be
maintained for each partner. Each partner's capital account shall be determined
and items of income, loss, credit, deduction and gains shall be allocated and
distributed, and their interest determined throughout the term of the
partnership in accordance with the requirements of Section 704(b) of the
Internal Revenue Code of 1986, as amended and any of the Treasury Regulations
promulgated from time to time thereunder.
E. MANAGEMENT, DUTIES AND RESTRICTIONS. Each partner will have rights in
the management of the partnership business in accordance with their ownership
interests. Either partner, without the consent of the other, may enter into and
deliver any contract, agreement, guarantee, agreement to borrow or lend money,
mortgage, security agreement or lease, or purchase or contract to purchase or
sell any type of property, whether or not in the ordinary course of the
partnership business.
F. BOOKS. The partnership books shall be maintained at the principal office
of the partnership.
G. TERM; VOLUNTARY TERMINATION. The partnership shall continue until
voluntarily or involuntarily terminated by the partners. If dissolved at any
time by agreement of the partners, the partners shall proceed with reasonable
promptness to liquidate the business of the partnership.
IN WITNESS WHEREOF, the partners have executed this Agreement by their duly
authorized officers.
DiFeo Partnership, Inc. UAG Northeast, Inc.
By: /s/ Philip N. Smith By: /s/ Philip N. Smith
------------------------------- -------------------------------
Name: Philip N. Smith Name: Philip N. Smith
Title: Secretary Title: Secretary
SCHEDULE "A"
A. Previous Partnership Agreement - That certain partnership agreement between
DiFeo Partnership, Inc. and JS2, Inc.
B. Partnership Name - Danbury Auto Partnership
C. Partners' Ownership Interest -
1. DiFeo Partnership, Inc. - 70%
2. UAG Northeast, Inc. - 30%
EX-3.27
AMENDED AND RESTATED PARTNERSHIP AGREEMENT
THIS AMENDED AND RESTATED PARTNERSHIP AGREEMENT is made as of this 28th day
of October, 1996, between the undersigned partners.
A. NAME AND BUSINESS. The partners hereby amend and restate the partnership
agreement referenced on Schedule "A" and agree to conduct business under the
name set forth on Schedule "A". The business of the partnership will be the
sale of new and used automobiles and related business ventures.
B. BUSINESS OFFICE. The partnership's business address is c/o United Auto
Group, Inc., 375 Park Avenue, New York, New York 10152.
C. PARTNER'S INTERESTS. The partners have the ownership interest in the
partnership as set forth on Schedule "A".
D. ALLOCATION AND DISTRIBUTION. A separate capital account shall be
maintained for each partner. Each partner's capital account shall be determined
and items of income, loss, credit, deduction and gains shall be allocated and
distributed, and their interest determined throughout the term of the
partnership in accordance with the requirements of Section 704(b) of the
Internal Revenue Code of 1986, as amended and any of the Treasury Regulations
promulgated from time to time thereunder.
E. MANAGEMENT, DUTIES AND RESTRICTIONS. Each partner will have rights in
the management of the partnership business in accordance with their ownership
interests. Either partner, without the consent of the other, may enter into and
deliver any contract, agreement, guarantee, agreement to borrow or lend money,
mortgage, security agreement or lease, or purchase or contract to purchase or
sell any type of property, whether or not in the ordinary course of the
partnership business.
F. BOOKS. The partnership books shall be maintained at the principal office
of the partnership.
G. TERM; VOLUNTARY TERMINATION. The partnership shall continue until
voluntarily or involuntarily terminated by the partners. If dissolved at any
time by agreement of the partners, the partners shall proceed with reasonable
promptness to liquidate the business of the partnership.
IN WITNESS WHEREOF, the partners have executed this Agreement by their duly
authorized officers.
DiFeo Partnership, Inc. UAG Northeast, Inc.
By: /s/ Philip N. Smith By: /s/ Philip N. Smith
------------------------------- -------------------------------
Name: Philip N. Smith Name: Philip N. Smith
Title: Secretary Title: Secretary
SCHEDULE "A"
A. Previous Partnership Agreement - That certain partnership agreement between
DiFeo Partnership, Inc. and JS2, Inc.
B. Partnership Name - Danbury Chrysler Plymouth Partnership
C. Partners' Ownership Interest -
1. DiFeo Partnership, Inc. - 70%
2. UAG Northeast, Inc. - 30%
EX-3.28
AMENDED AND RESTATED PARTNERSHIP AGREEMENT
THIS AMENDED AND RESTATED PARTNERSHIP AGREEMENT is made as of this 28th day
of October, 1996, between the undersigned partners.
A. NAME AND BUSINESS. The partners hereby amend and restate the partnership
agreement referenced on Schedule "A" and agree to conduct business under the
name set forth on Schedule "A". The business of the partnership will be the
sale of new and used automobiles and related business ventures.
B. BUSINESS OFFICE. The partnership's business address is c/o United Auto
Group, Inc., 375 Park Avenue, New York, New York 10152.
C. PARTNER'S INTERESTS. The partners have the ownership interest in the
partnership as set forth on Schedule "A".
D. ALLOCATION AND DISTRIBUTION. A separate capital account shall be
maintained for each partner. Each partner's capital account shall be determined
and items of income, loss, credit, deduction and gains shall be allocated and
distributed, and their interest determined throughout the term of the
partnership in accordance with the requirements of Section 704(b) of the
Internal Revenue Code of 1986, as amended and any of the Treasury Regulations
promulgated from time to time thereunder.
E. MANAGEMENT, DUTIES AND RESTRICTIONS. Each partner will have rights in
the management of the partnership business in accordance with their ownership
interests. Either partner, without the consent of the other, may enter into and
deliver any contract, agreement, guarantee, agreement to borrow or lend money,
mortgage, security agreement or lease, or purchase or contract to purchase or
sell any type of property, whether or not in the ordinary course of the
partnership business.
F. BOOKS. The partnership books shall be maintained at the principal office
of the partnership.
G. TERM; VOLUNTARY TERMINATION. The partnership shall continue until
voluntarily or involuntarily terminated by the partners. If dissolved at any
time by agreement of the partners, the partners shall proceed with reasonable
promptness to liquidate the business of the partnership.
IN WITNESS WHEREOF, the partners have executed this Agreement by their duly
authorized officers.
DiFeo Partnership, Inc. UAG Northeast, Inc.
By: /s/ Philip N. Smith By: /s/ Philip N. Smith
------------------------------- -------------------------------
Name: Philip N. Smith Name: Philip N. Smith
Title: Secretary Title: Secretary
SCHEDULE "A"
A. Previous Partnership Agreement - That certain partnership agreement between
DiFeo Partnership, Inc. and DiFeo BMW, Inc. dated October 1, 1992.
B. Partnership Name - DiFeo BMW Partnership
C. Partners' Ownership Interest -
1. DiFeo Partnership, Inc. - 70%
2. UAG Northeast, Inc. - 30%
EX-3.29
AMENDED AND RESTATED PARTNERSHIP AGREEMENT
THIS AMENDED AND RESTATED PARTNERSHIP AGREEMENT is made as of this 28th day
of October, 1996, between the undersigned partners.
A. NAME AND BUSINESS. The partners hereby amend and restate the partnership
agreement referenced on Schedule "A" and agree to conduct business under the
name set forth on Schedule "A". The business of the partnership will be the
sale of new and used automobiles and related business ventures.
B. BUSINESS OFFICE. The partnership's business address is c/o United Auto
Group, Inc., 375 Park Avenue, New York, New York 10152.
C. PARTNER'S INTERESTS. The partners have the ownership interest in the
partnership as set forth on Schedule "A".
D. ALLOCATION AND DISTRIBUTION. A separate capital account shall be
maintained for each partner. Each partner's capital account shall be determined
and items of income, loss, credit, deduction and gains shall be allocated and
distributed, and their interest determined throughout the term of the
partnership in accordance with the requirements of Section 704(b) of the
Internal Revenue Code of 1986, as amended and any of the Treasury Regulations
promulgated from time to time thereunder.
E. MANAGEMENT, DUTIES AND RESTRICTIONS. Each partner will have rights in
the management of the partnership business in accordance with their ownership
interests. Either partner, without the consent of the other, may enter into and
deliver any contract, agreement, guarantee, agreement to borrow or lend money,
mortgage, security agreement or lease, or purchase or contract to purchase or
sell any type of property, whether or not in the ordinary course of the
partnership business.
F. BOOKS. The partnership books shall be maintained at the principal office
of the partnership.
G. TERM; VOLUNTARY TERMINATION. The partnership shall continue until
voluntarily or involuntarily terminated by the partners. If dissolved at any
time by agreement of the partners, the partners shall proceed with reasonable
promptness to liquidate the business of the partnership.
IN WITNESS WHEREOF, the partners have executed this Agreement by their duly
authorized officers.
DiFeo Partnership, Inc. UAG Northeast, Inc.
By: /s/ Philip N. Smith By: /s/ Philip N. Smith
------------------------------- -------------------------------
Name: Philip N. Smith Name: Philip N. Smith
Title: Secretary Title: Secretary
SCHEDULE "A"
A. Previous Partnership Agreement - That certain partnership agreement between
DiFeo Partnership, Inc. and JS1, Inc.
B. Partnership Name - DiFeo Chevrolet-Geo Partnership
C. Partners' Ownership Interest -
1. DiFeo Partnership, Inc. - 70%
2. UAG Northeast, Inc. - 30%
EX-3.30
AMENDED AND RESTATED PARTNERSHIP AGREEMENT
THIS AMENDED AND RESTATED PARTNERSHIP AGREEMENT is made as of this 28th day
of October, 1996, between the undersigned partners.
A. NAME AND BUSINESS. The partners hereby amend and restate the partnership
agreement referenced on Schedule "A" and agree to conduct business under the
name set forth on Schedule "A". The business of the partnership will be the
sale of new and used automobiles and related business ventures.
B. BUSINESS OFFICE. The partnership's business address is c/o United Auto
Group, Inc., 375 Park Avenue, New York, New York 10152.
C. PARTNER'S INTERESTS. The partners have the ownership interest in the
partnership as set forth on Schedule "A".
D. ALLOCATION AND DISTRIBUTION. A separate capital account shall be
maintained for each partner. Each partner's capital account shall be determined
and items of income, loss, credit, deduction and gains shall be allocated and
distributed, and their interest determined throughout the term of the
partnership in accordance with the requirements of Section 704(b) of the
Internal Revenue Code of 1986, as amended and any of the Treasury Regulations
promulgated from time to time thereunder.
E. MANAGEMENT, DUTIES AND RESTRICTIONS. Each partner will have rights in
the management of the partnership business in accordance with their ownership
interests. Either partner, without the consent of the other, may enter into and
deliver any contract, agreement, guarantee, agreement to borrow or lend money,
mortgage, security agreement or lease, or purchase or contract to purchase or
sell any type of property, whether or not in the ordinary course of the
partnership business.
F. BOOKS. The partnership books shall be maintained at the principal office
of the partnership.
G. TERM; VOLUNTARY TERMINATION. The partnership shall continue until
voluntarily or involuntarily terminated by the partners. If dissolved at any
time by agreement of the partners, the partners shall proceed with reasonable
promptness to liquidate the business of the partnership.
IN WITNESS WHEREOF, the partners have executed this Agreement by their duly
authorized officers.
DiFeo Partnership, Inc. UAG Northeast, Inc.
By: /s/ Philip N. Smith By: /s/ Philip N. Smith
------------------------------- -------------------------------
Name: Philip N. Smith Name: Philip N. Smith
Title: Secretary Title: Secretary
SCHEDULE "A"
A. Previous Partnership Agreement - That certain partnership agreement between
DiFeo Partnership, Inc. and Jeep-Eagle, Inc. dated October 1, 1992, as
amended.
B. Partnership Name - DiFeo Chrysler Plymouth Jeep Eagle Partnership
C. Partners' Ownership Interest -
1. DiFeo Partnership, Inc. - 70%
2. UAG Northeast, Inc. - 30%
EX-3.31
AMENDED AND RESTATED PARTNERSHIP AGREEMENT
THIS AMENDED AND RESTATED PARTNERSHIP AGREEMENT is made as of this 28th day
of October, 1996, between the undersigned partners.
A. NAME AND BUSINESS. The partners hereby amend and restate the partnership
agreement referenced on Schedule "A" and agree to conduct business under the
name set forth on Schedule "A". The business of the partnership will be the
sale of new and used automobiles and related business ventures.
B. BUSINESS OFFICE. The partnership's business address is c/o United Auto
Group, Inc., 375 Park Avenue, New York, New York 10152.
C. PARTNER'S INTERESTS. The partners have the ownership interest in the
partnership as set forth on Schedule "A".
D. ALLOCATION AND DISTRIBUTION. A separate capital account shall be
maintained for each partner. Each partner's capital account shall be determined
and items of income, loss, credit, deduction and gains shall be allocated and
distributed, and their interest determined throughout the term of the
partnership in accordance with the requirements of Section 704(b) of the
Internal Revenue Code of 1986, as amended and any of the Treasury Regulations
promulgated from time to time thereunder.
E. MANAGEMENT, DUTIES AND RESTRICTIONS. Each partner will have rights in
the management of the partnership business in accordance with their ownership
interests. Either partner, without the consent of the other, may enter into and
deliver any contract, agreement, guarantee, agreement to borrow or lend money,
mortgage, security agreement or lease, or purchase or contract to purchase or
sell any type of property, whether or not in the ordinary course of the
partnership business.
F. BOOKS. The partnership books shall be maintained at the principal office
of the partnership.
G. TERM; VOLUNTARY TERMINATION. The partnership shall continue until
voluntarily or involuntarily terminated by the partners. If dissolved at any
time by agreement of the partners, the partners shall proceed with reasonable
promptness to liquidate the business of the partnership.
IN WITNESS WHEREOF, the partners have executed this Agreement by their duly
authorized officers.
DiFeo Partnership, Inc. UAG Northeast, Inc.
By: /s/ Philip N. Smith By: /s/ Philip N. Smith
------------------------------- -------------------------------
Name: Philip N. Smith Name: Philip N. Smith
Title: Secretary Title: Secretary
SCHEDULE "A"
A. Previous Partnership Agreement - That certain partnership agreement between
DiFeo Partnership, Inc. and DiFeo Hyundai, Inc. dated October 1, 1992.
B. Partnership Name - DiFeo Hyundai Partnership
C. Partners' Ownership Interest -
1. DiFeo Partnership, Inc. - 70%
2. UAG Northeast, Inc. - 30%
EX-3.32
AMENDED AND RESTATED PARTNERSHIP AGREEMENT
THIS AMENDED AND RESTATED PARTNERSHIP AGREEMENT is made as of this 28th day
of October, 1996, between the undersigned partners.
A. NAME AND BUSINESS. The partners hereby amend and restate the partnership
agreement referenced on Schedule "A" and agree to conduct business under the
name set forth on Schedule "A". The business of the partnership will be the
sale of new and used automobiles and related business ventures.
B. BUSINESS OFFICE. The partnership's business address is c/o United Auto
Group, Inc., 375 Park Avenue, New York, New York 10152.
C. PARTNER'S INTERESTS. The partners have the ownership interest in the
partnership as set forth on Schedule "A".
D. ALLOCATION AND DISTRIBUTION. A separate capital account shall be
maintained for each partner. Each partner's capital account shall be determined
and items of income, loss, credit, deduction and gains shall be allocated and
distributed, and their interest determined throughout the term of the
partnership in accordance with the requirements of Section 704(b) of the
Internal Revenue Code of 1986, as amended and any of the Treasury Regulations
promulgated from time to time thereunder.
E. MANAGEMENT, DUTIES AND RESTRICTIONS. Each partner will have rights in
the management of the partnership business in accordance with their ownership
interests. Either partner, without the consent of the other, may enter into and
deliver any contract, agreement, guarantee, agreement to borrow or lend money,
mortgage, security agreement or lease, or purchase or contract to purchase or
sell any type of property, whether or not in the ordinary course of the
partnership business.
F. BOOKS. The partnership books shall be maintained at the principal office
of the partnership.
G. TERM; VOLUNTARY TERMINATION. The partnership shall continue until
voluntarily or involuntarily terminated by the partners. If dissolved at any
time by agreement of the partners, the partners shall proceed with reasonable
promptness to liquidate the business of the partnership.
IN WITNESS WHEREOF, the partners have executed this Agreement by their duly
authorized officers.
DiFeo Partnership, Inc. UAG Northeast, Inc.
By: /s/ Philip N. Smith By: /s/ Philip N. Smith
------------------------------- -------------------------------
Name: Philip N. Smith Name: Philip N. Smith
Title: Secretary Title: Secretary
SCHEDULE "A"
A. Previous Partnership Agreement - That certain partnership agreement between
DiFeo Partnership, Inc. and DiFeo Leasing Corporation dated October 1,
1992.
B. Partnership Name - DiFeo Leasing Partnership
C. Partners' Ownership Interest -
1. DiFeo Partnership, Inc. - 70%
2. UAG Northeast, Inc. - 30%
EX-3.33
AMENDED AND RESTATED PARTNERSHIP AGREEMENT
THIS AMENDED AND RESTATED PARTNERSHIP AGREEMENT is made as of this
28th day of October, 1996, between the undersigned partners.
A. NAME AND BUSINESS. The partners hereby amend and restate the partnership
agreement referenced on Schedule "A" and agree to conduct business under the
name set forth on Schedule "A". The business of the partnership will be the
sale of new and used automobiles and related business ventures.
B. BUSINESS OFFICE. The partnership's business address is c/o United Auto
Group, Inc., 375 Park Avenue, New York, New York 10152.
C. PARTNER'S INTERESTS. The partners have the ownership interest in the
partnership as set forth on Schedule "A".
D. ALLOCATION AND DISTRIBUTION. A separate capital account shall be
maintained for each partner. Each partner's capital account shall be determined
and items of income, loss, credit, deduction and gains shall be allocated and
distributed, and their interest determined throughout the term of the
partnership in accordance with the requirements of Section 704(b) of the
Internal Revenue Code of 1986, as amended and any of the Treasury Regulations
promulgated from time to time thereunder.
E. MANAGEMENT, DUTIES AND RESTRICTIONS. Each partner will have rights in
the management of the partnership business in accordance with their ownership
interests. Either partner, without the consent of the other, may enter into and
deliver any contract, agreement, guarantee, agreement to borrow or lend money,
mortgage, security agreement or lease, or purchase or contract to purchase or
sell any type of property, whether or not in the ordinary course of the
partnership business.
F. BOOKS. The partnership books shall be maintained at the principal office
of the partnership.
G. TERM; VOLUNTARY TERMINATION. The partnership shall continue until
voluntarily or involuntarily terminated by the partners. If dissolved at any
time by agreement of the partners, the partners shall proceed with reasonable
promptness to liquidate the business of the partnership.
IN WITNESS WHEREOF, the partners have executed this Agreement by their duly
authorized officers.
DiFeo Partnership, Inc. UAG Northeast, Inc.
By: /s/ Philip N. Smith By: /s/ Philip N. Smith
------------------------------- -------------------------------
Name: Philip N. Smith Name: Philip N. Smith
Title: Secretary Title: Secretary
SCHEDULE "A"
A. Previous Partnership Agreement - That certain partnership agreement between
DiFeo Partnership, Inc. and JS1, Inc.
B. Partnership Name - DiFeo Nissan Partnership
C. Partners' Ownership Interest -
1. DiFeo Partnership, Inc. - 70%
2. UAG Northeast, Inc. - 30%
EX-3.34
AMENDED AND RESTATED PARTNERSHIP AGREEMENT
THIS AMENDED AND RESTATED PARTNERSHIP AGREEMENT is made as of this 28th day
of October, 1996, between the undersigned partners.
A. NAME AND BUSINESS. The partners hereby amend and restate the partnership
agreement referenced on Schedule "A" and agree to conduct business under the
name set forth on Schedule "A". The business of the partnership will be the
sale of new and used automobiles and related business ventures.
B. BUSINESS OFFICE. The partnership's business address is c/o United Auto
Group, Inc., 375 Park Avenue, New York, New York 10152.
C. PARTNER'S INTERESTS. The partners have the ownership interest in the
partnership as set forth on Schedule "A".
D. ALLOCATION AND DISTRIBUTION. A separate capital account shall be
maintained for each partner. Each partner's capital account shall be determined
and items of income, loss, credit, deduction and gains shall be allocated and
distributed, and their interest determined throughout the term of the
partnership in accordance with the requirements of Section 704(b) of the
Internal Revenue Code of 1986, as amended and any of the Treasury Regulations
promulgated from time to time thereunder.
E. MANAGEMENT, DUTIES AND RESTRICTIONS. Each partner will have rights in
the management of the partnership business in accordance with their ownership
interests. Either partner, without the consent of the other, may enter into and
deliver any contract, agreement, guarantee, agreement to borrow or lend money,
mortgage, security agreement or lease, or purchase or contract to purchase or
sell any type of property, whether or not in the ordinary course of the
partnership business.
F. BOOKS. The partnership books shall be maintained at the principal office
of the partnership.
G. TERM; VOLUNTARY TERMINATION. The partnership shall continue until
voluntarily or involuntarily terminated by the partners. If dissolved at any
time by agreement of the partners, the partners shall proceed with reasonable
promptness to liquidate the business of the partnership.
IN WITNESS WHEREOF, the partners have executed this Agreement by their duly
authorized officers.
DiFeo Partnership, Inc. UAG Northeast, Inc.
By: /s/ Philip N. Smith By: /s/ Philip N. Smith
------------------------------- -------------------------------
Name: Philip N. Smith Name: Philip N. Smith
Title: Secretary Title: Secretary
SCHEDULE "A"
A. Previous Partnership Agreement - That certain partnership agreement between
DiFeo Partnership, Inc. and Fair Chevrolet Corp. dated October 1, 1992.
B. Partnership Name - Fair Chevrolet-Geo Partnership
C. Partners' Ownership Interest -
1. DiFeo Partnership, Inc. - 70%
2. UAG Northeast, Inc. - 30%
EX-3.35
AMENDED AND RESTATED PARTNERSHIP AGREEMENT
THIS AMENDED AND RESTATED PARTNERSHIP AGREEMENT is made as of this 28th day
of October, 1996, between the undersigned partners.
A. NAME AND BUSINESS. The partners hereby amend and restate the partnership
agreement referenced on Schedule "A" and agree to conduct business under the
name set forth on Schedule "A". The business of the partnership will be the
sale of new and used automobiles and related business ventures.
B. BUSINESS OFFICE. The partnership's business address is c/o United Auto
Group, Inc., 375 Park Avenue, New York, New York 10152.
C. PARTNER'S INTERESTS. The partners have the ownership interest in the
partnership as set forth on Schedule "A".
D. ALLOCATION AND DISTRIBUTION. A separate capital account shall be
maintained for each partner. Each partner's capital account shall be determined
and items of income, loss, credit, deduction and gains shall be allocated and
distributed, and their interest determined throughout the term of the
partnership in accordance with the requirements of Section 704(b) of the
Internal Revenue Code of 1986, as amended and any of the Treasury Regulations
promulgated from time to time thereunder.
E. MANAGEMENT, DUTIES AND RESTRICTIONS. Each partner will have rights in
the management of the partnership business in accordance with their ownership
interests. Either partner, without the consent of the other, may enter into and
deliver any contract, agreement, guarantee, agreement to borrow or lend money,
mortgage, security agreement or lease, or purchase or contract to purchase or
sell any type of property, whether or not in the ordinary course of the
partnership business.
F. BOOKS. The partnership books shall be maintained at the principal office
of the partnership.
G. TERM; VOLUNTARY TERMINATION. The partnership shall continue until
voluntarily or involuntarily terminated by the partners. If dissolved at any
time by agreement of the partners, the partners shall proceed with reasonable
promptness to liquidate the business of the partnership.
IN WITNESS WHEREOF, the partners have executed this Agreement by their duly
authorized officers.
DiFeo Partnership, Inc. UAG Northeast, Inc.
By: /s/ Philip N. Smith By: /s/ Philip N. Smith
------------------------------- -------------------------------
Name: Philip N. Smith Name: Philip N. Smith
Title: Secretary Title: Secretary
SCHEDULE "A"
A. Previous Partnership Agreement - That certain partnership agreement between
DiFeo Partnership, Inc. and Fair Hyundai Corp. dated October 1, 1992.
B. Partnership Name - Fair Hyundai Partnership
C. Partners' Ownership Interest -
1. DiFeo Partnership, Inc. - 70%
2. UAG Northeast, Inc. - 30%
EX-3.36
AMENDED AND RESTATED PARTNERSHIP AGREEMENT
THIS AMENDED AND RESTATED PARTNERSHIP AGREEMENT is made as of this 28th day
of October, 1996, between the undersigned partners.
A. NAME AND BUSINESS. The partners hereby amend and restate the partnership
agreement referenced on Schedule "A" and agree to conduct business under the
name set forth on Schedule "A". The business of the partnership will be the
sale of new and used automobiles and related business ventures.
B. BUSINESS OFFICE. The partnership's business address is c/o United Auto
Group, Inc., 375 Park Avenue, New York, New York 10152.
C. PARTNER'S INTERESTS. The partners have the ownership interest in the
partnership as set forth on Schedule "A".
D. ALLOCATION AND DISTRIBUTION. A separate capital account shall be
maintained for each partner. Each partner's capital account shall be determined
and items of income, loss, credit, deduction and gains shall be allocated and
distributed, and their interest determined throughout the term of the
partnership in accordance with the requirements of Section 704(b) of the
Internal Revenue Code of 1986, as amended and any of the Treasury Regulations
promulgated from time to time thereunder.
E. MANAGEMENT, DUTIES AND RESTRICTIONS. Each partner will have rights in
the management of the partnership business in accordance with their ownership
interests. Either partner, without the consent of the other, may enter into and
deliver any contract, agreement, guarantee, agreement to borrow or lend money,
mortgage, security agreement or lease, or purchase or contract to purchase or
sell any type of property, whether or not in the ordinary course of the
partnership business.
F. BOOKS. The partnership books shall be maintained at the principal office
of the partnership.
G. TERM; VOLUNTARY TERMINATION. The partnership shall continue until
voluntarily or involuntarily terminated by the partners. If dissolved at any
time by agreement of the partners, the partners shall proceed with reasonable
promptness to liquidate the business of the partnership.
IN WITNESS WHEREOF, the partners have executed this Agreement by their duly
authorized officers.
DiFeo Partnership HCT, Inc. Hudson Toyota, Inc.
By: /s/ Philip N. Smith By: /s/ Philip N. Smith
------------------------------- -------------------------------
Name: Philip N. Smith Name: Philip N. Smith
Title: Secretary Title: Secretary
SCHEDULE "A"
A. Previous Partnership Agreement - That certain partnership agreement between
DiFeo Partnership HCT, Inc. and Hudson Toyota, Inc. dated October 1, 1992.
B. Partnership Name - Hudson Motors Partnership
C. Partners' Ownership Interest -
1. DiFeo Partnership HCT, Inc. - 70%
2. Hudson Toyota, Inc. - 30%
EX-3.37
AMENDED AND RESTATED PARTNERSHIP AGREEMENT
THIS AMENDED AND RESTATED PARTNERSHIP AGREEMENT is made as of this 28th day
of October, 1996, between the undersigned partners.
A. NAME AND BUSINESS. The partners hereby amend and restate the partnership
agreement referenced on Schedule "A" and agree to conduct business under the
name set forth on Schedule "A". The business of the partnership will be the
sale of new and used automobiles and related business ventures.
B. BUSINESS OFFICE. The partnership's business address is c/o United Auto
Group, Inc., 375 Park Avenue, New York, New York 10152.
C. PARTNER'S INTERESTS. The partners have the ownership interest in the
partnership as set forth on Schedule "A".
D. ALLOCATION AND DISTRIBUTION. A separate capital account shall be
maintained for each partner. Each partner's capital account shall be determined
and items of income, loss, credit, deduction and gains shall be allocated and
distributed, and their interest determined throughout the term of the
partnership in accordance with the requirements of Section 704(b) of the
Internal Revenue Code of 1986, as amended and any of the Treasury Regulations
promulgated from time to time thereunder.
E. MANAGEMENT, DUTIES AND RESTRICTIONS. Each partner will have rights in
the management of the partnership business in accordance with their ownership
interests. Either partner, without the consent of the other, may enter into and
deliver any contract, agreement, guarantee, agreement to borrow or lend money,
mortgage, security agreement or lease, or purchase or contract to purchase or
sell any type of property, whether or not in the ordinary course of the
partnership business.
F. BOOKS. The partnership books shall be maintained at the principal office
of the partnership.
G. TERM; VOLUNTARY TERMINATION. The partnership shall continue until
voluntarily or involuntarily terminated by the partners. If dissolved at any
time by agreement of the partners, the partners shall proceed with reasonable
promptness to liquidate the business of the partnership.
IN WITNESS WHEREOF, the partners have executed this Agreement by their duly
authorized officers.
DiFeo Partnership, Inc. UAG Northeast, Inc.
By: /s/ Philip N. Smith By: /s/ Philip N. Smith
------------------------------- -------------------------------
Name: Philip N. Smith Name: Philip N. Smith
Title: Secretary Title: Secretary
SCHEDULE "A"
A. Previous Partnership Agreement - That certain partnership agreement between
DiFeo Partnership, Inc. and J&F Oldsmobile Corp. dated October 1, 1992.
B. Partnership Name - J&F Oldsmobile-Isuzu Partnership
C. Partners' Ownership Interest -
1. DiFeo Partnership, Inc. - 70%
2. UAG Northeast, Inc. - 30%
EX-3.38
AMENDED AND RESTATED PARTNERSHIP AGREEMENT
THIS AMENDED AND RESTATED PARTNERSHIP AGREEMENT is made as of this 28th day
of October, 1996, between the undersigned partners.
A. NAME AND BUSINESS. The partners hereby amend and restate the partnership
agreement referenced on Schedule "A" and agree to conduct business under the
name set forth on Schedule "A". The business of the partnership will be the
sale of new and used automobiles and related business ventures.
B. BUSINESS OFFICE. The partnership's business address is c/o United Auto
Group, Inc., 375 Park Avenue, New York, New York 10152.
C. PARTNER'S INTERESTS. The partners have the ownership interest in the
partnership as set forth on Schedule "A".
D. ALLOCATION AND DISTRIBUTION. A separate capital account shall be
maintained for each partner. Each partner's capital account shall be determined
and items of income, loss, credit, deduction and gains shall be allocated and
distributed, and their interest determined throughout the term of the
partnership in accordance with the requirements of Section 704(b) of the
Internal Revenue Code of 1986, as amended and any of the Treasury Regulations
promulgated from time to time thereunder.
E. MANAGEMENT, DUTIES AND RESTRICTIONS. Each partner will have rights in
the management of the partnership business in accordance with their ownership
interests. Either partner, without the consent of the other, may enter into and
deliver any contract, agreement, guarantee, agreement to borrow or lend money,
mortgage, security agreement or lease, or purchase or contract to purchase or
sell any type of property, whether or not in the ordinary course of the
partnership business.
F. BOOKS. The partnership books shall be maintained at the principal office
of the partnership.
G. TERM; VOLUNTARY TERMINATION. The partnership shall continue until
voluntarily or involuntarily terminated by the partners. If dissolved at any
time by agreement of the partners, the partners shall proceed with reasonable
promptness to liquidate the business of the partnership.
IN WITNESS WHEREOF, the partners have executed this Agreement by their duly
authorized officers.
DiFeo Partnership IX, Inc. UAG Northeast, Inc.
By: /s/ Philip N. Smith By: /s/ Philip N. Smith
------------------------------- -------------------------------
Name: Philip N. Smith Name: Philip N. Smith
Title: Secretary Title: Secretary
SCHEDULE "A"
A. Previous Partnership Agreement - That certain partnership agreement between
DiFeo Partnership, Inc. and JS 4, Inc.
B. Partnership Name - OCM Partnership
C. Partners' Ownership Interest -
1. DiFeo Partnership IX, Inc. - 70%
2. UAG Northeast, Inc. - 30%
EX-3.39
AMENDED AND RESTATED PARTNERSHIP AGREEMENT
THIS AMENDED AND RESTATED PARTNERSHIP AGREEMENT is made as of this 28th day
of October, 1996, between the undersigned partners.
A. NAME AND BUSINESS. The partners hereby amend and restate the partnership
agreement referenced on Schedule "A" and agree to conduct business under the
name set forth on Schedule "A". The business of the partnership will be the
sale of new and used automobiles and related business ventures.
B. BUSINESS OFFICE. The partnership's business address is c/o United Auto
Group, Inc., 375 Park Avenue, New York, New York 10152.
C. PARTNER'S INTERESTS. The partners have the ownership interest in the
partnership as set forth on Schedule "A".
D. ALLOCATION AND DISTRIBUTION. A separate capital account shall be
maintained for each partner. Each partner's capital account shall be determined
and items of income, loss, credit, deduction and gains shall be allocated and
distributed, and their interest determined throughout the term of the
partnership in accordance with the requirements of Section 704(b) of the
Internal Revenue Code of 1986, as amended and any of the Treasury Regulations
promulgated from time to time thereunder.
E. MANAGEMENT, DUTIES AND RESTRICTIONS. Each partner will have rights in
the management of the partnership business in accordance with their ownership
interests. Either partner, without the consent of the other, may enter into and
deliver any contract, agreement, guarantee, agreement to borrow or lend money,
mortgage, security agreement or lease, or purchase or contract to purchase or
sell any type of property, whether or not in the ordinary course of the
partnership business.
F. BOOKS. The partnership books shall be maintained at the principal office
of the partnership.
G. TERM; VOLUNTARY TERMINATION. The partnership shall continue until
voluntarily or involuntarily terminated by the partners. If dissolved at any
time by agreement of the partners, the partners shall proceed with reasonable
promptness to liquidate the business of the partnership.
IN WITNESS WHEREOF, the partners have executed this Agreement by their duly
authorized officers.
DiFeo Partnership VIII, Inc. UAG Northeast, Inc.
By: /s/ Philip N. Smith By: /s/ Philip N. Smith
------------------------------- -------------------------------
Name: Philip N. Smith Name: Philip N. Smith
Title: Secretary Title: Secretary
SCHEDULE "A"
A. Previous Partnership Agreement - That certain partnership agreement between
DiFeo Partnership, Inc. and JS 4, Inc.
B. Partnership Name - OCT Partnership
C. Partners' Ownership Interest -
1. DiFeo Partnership VIII, Inc. - 70%
2. UAG Northeast, Inc. - 30%
EX-3.40
AMENDED AND RESTATED PARTNERSHIP AGREEMENT
THIS AMENDED AND RESTATED PARTNERSHIP AGREEMENT is made as of this 28th day
of October, 1996, between the undersigned partners.
A. NAME AND BUSINESS. The partners hereby amend and restate the partnership
agreement referenced on Schedule "A" and agree to conduct business under the
name set forth on Schedule "A". The business of the partnership will be the
sale of new and used automobiles and related business ventures.
B. BUSINESS OFFICE. The partnership's business address is c/o United Auto
Group, Inc., 375 Park Avenue, New York, New York 10152.
C. PARTNER'S INTERESTS. The partners have the ownership interest in the
partnership as set forth on Schedule "A".
D. ALLOCATION AND DISTRIBUTION. A separate capital account shall be
maintained for each partner. Each partner's capital account shall be determined
and items of income, loss, credit, deduction and gains shall be allocated and
distributed, and their interest determined throughout the term of the
partnership in accordance with the requirements of Section 704(b) of the
Internal Revenue Code of 1986, as amended and any of the Treasury Regulations
promulgated from time to time thereunder.
E. MANAGEMENT, DUTIES AND RESTRICTIONS. Each partner will have rights in
the management of the partnership business in accordance with their ownership
interests. Either partner, without the consent of the other, may enter into and
deliver any contract, agreement, guarantee, agreement to borrow or lend money,
mortgage, security agreement or lease, or purchase or contract to purchase or
sell any type of property, whether or not in the ordinary course of the
partnership business.
F. BOOKS. The partnership books shall be maintained at the principal office
of the partnership.
G. TERM; VOLUNTARY TERMINATION. The partnership shall continue until
voluntarily or involuntarily terminated by the partners. If dissolved at any
time by agreement of the partners, the partners shall proceed with reasonable
promptness to liquidate the business of the partnership.
IN WITNESS WHEREOF, the partners have executed this Agreement by their duly
authorized officers.
DiFeo Partnership RCM, Inc. UAG Northeast (NY), Inc.
By: /s/ Philip N. Smith By: /s/ Philip N. Smith
------------------------------- -------------------------------
Name: Philip N. Smith Name: Philip N. Smith
Title: Secretary Title: Secretary
SCHEDULE "A"
A. Previous Partnership Agreement - That certain partnership agreement between
DiFeo Partnership RCM, Inc. and Rockland Motors Corp. dated October 1,
1992.
B. Partnership Name - Rockland Motors Partnership
C. Partners' Ownership Interest -
1. DiFeo Partnership RCM, Inc. - 70%
2. UAG Northeast (NY), Inc. - 30%
EX-3.41
AMENDED AND RESTATED PARTNERSHIP AGREEMENT
THIS AMENDED AND RESTATED PARTNERSHIP AGREEMENT is made as of this 28th day
of October, 1996, between the undersigned partners.
A. NAME AND BUSINESS. The partners hereby amend and restate the partnership
agreement referenced on Schedule "A" and agree to conduct business under the
name set forth on Schedule "A". The business of the partnership will be the
sale of new and used automobiles and related business ventures.
B. BUSINESS OFFICE. The partnership's business address is c/o United Auto
Group, Inc., 375 Park Avenue, New York, New York 10152.
C. PARTNER'S INTERESTS. The partners have the ownership interest in the
partnership as set forth on Schedule "A".
D. ALLOCATION AND DISTRIBUTION. A separate capital account shall be
maintained for each partner. Each partner's capital account shall be determined
and items of income, loss, credit, deduction and gains shall be allocated and
distributed, and their interest determined throughout the term of the
partnership in accordance with the requirements of Section 704(b) of the
Internal Revenue Code of 1986, as amended and any of the Treasury Regulations
promulgated from time to time thereunder.
E. MANAGEMENT, DUTIES AND RESTRICTIONS. Each partner will have rights in
the management of the partnership business in accordance with their ownership
interests. Either partner, without the consent of the other, may enter into and
deliver any contract, agreement, guarantee, agreement to borrow or lend money,
mortgage, security agreement or lease, or purchase or contract to purchase or
sell any type of property, whether or not in the ordinary course of the
partnership business.
F. BOOKS. The partnership books shall be maintained at the principal office
of the partnership.
G. TERM; VOLUNTARY TERMINATION. The partnership shall continue until
voluntarily or involuntarily terminated by the partners. If dissolved at any
time by agreement of the partners, the partners shall proceed with reasonable
promptness to liquidate the business of the partnership.
IN WITNESS WHEREOF, the partners have executed this Agreement by their duly
authorized officers.
DiFeo Partnership SCT, Inc. Somerset Motors, Inc.
By: /s/ Philip N. Smith By: /s/ Philip N. Smith
------------------------------- -------------------------------
Name: Philip N. Smith Name: Philip N. Smith
Title: Secretary Title: Secretary
SCHEDULE "A"
A. Previous Partnership Agreement - That certain partnership agreement between
DiFeo Partnership SCT, Inc. and Somerset Motors, Inc. dated October 1,
1992.
B. Partnership Name - Somerset Motors Partnership
C. Partners' Ownership Interest -
1. DiFeo Partnership SCT, Inc. - 70%
2. Somerset Motors, Inc. - 30%
EX 3.42
CERTIFICATE OF INCORPORATION
OF
UNITED LANDERS, INC.
* * * * * * * *
ARTICLE I
NAME
The name of the corporation (the "Corporation") is: United Landers,
Inc.
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of its registered office in the State of Delaware is 32
Loockerman Square, Suite L-100 in the City of Dover, County of Kent. The name
of its registered agent at such address is The Prentice-Hall Corporation
System, Inc.
ARTICLE III
PURPOSE
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.
ARTICLE IV
CAPITAL
The total number of shares of stock which the Corporation shall have
authority to issue is 100 shares of Common Stock, each of which shall have a
par value of $.01 per share.
ARTICLE V
INCORPORATOR
The name and mailing address of the incorporator is as follows:
Adam M. Klein Willkie Farr & Gallagher
153 East 53rd Street
New York, New York 10022
ARTICLE VI
BYLAWS
In furtherance and not in limitation of the powers conferred by
statute, the bylaws of the Corporation may be made, altered, amended or
repealed by the stockholders or by a majority of the entire board of directors.
ARTICLE VII
ELECTION OF DIRECTORS
The election of directors need not be by written ballot.
ARTICLE VIII
INDEMNIFICATION AND LIMITATION OF LIABILITY
(a) The Corporation shall indemnify to the fullest extent permitted
under and in accordance with the laws of the State of Delaware any person who
was or is a party or is threatened to be made a party to any threatened,
pending or
-2-
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative 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, trustee, employee or agent of or in any
other capacity with another corporation, partnership, joint venture, trust or
other enterprise, 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 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.
(b) Expenses (including attorneys' fees) incurred in defending any
civil, criminal, administrative or investigative action, suit or proceeding
shall (in the case of any action, suit or proceeding against a director of the
Corporation) or may (in the case of any action, suit or proceeding against an
officer, trustee, employee or agent) be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding as authorized by the
Board upon receipt of an undertaking by or on behalf of the indemnified person
to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article.
(c) The indemnification and other rights set forth in this paragraph
shall not be exclusive of any provisions with
-3-
respect thereto in the By-Laws or any other contract or agreement between the
Corporation and any officer, director, employee or agent of the Corporation.
(d) Neither the amendment nor repeal of this Article VIII,
subparagraph (a), (b) or (c), nor the adoption of any provision of this
Certificate of Incorporation inconsistent with this Article VIII, subparagraph
(a), (b) or (c), shall eliminate or reduce the effect of this Article VIII,
subparagraphs (a), (b) and (c), in respect of any matter occurring prior to
such amendment, repeal or adoption of an inconsistent provision or in respect
of any cause of action, suit or claim relating to any such matter which would
have given rise to a right of indemnification or right to receive expenses
pursuant to this Article VIII, subparagraph (a), (b) or (c), if such provision
had not been so adopted.
(e) No director shall be personally liable to the Corporation or any
stockholder for monetary damages for breach of fiduciary duty as a director,
except for any matter in respect of which such director (a) shall be liable
under Section 174 of the General Corporation Law of the State of Delaware or
any amendment thereto or successor provision thereto, or (b) shall be liable by
reason that, in addition to any and all other requirements for liability, he:
(i) shall have breached his duty of loyalty to the Corporation or its
stockholders;
(ii) shall have acted, or have failed to act, not in good faith;
-4-
(iii) shall have acted, or have failed to act, in a manner involving
intentional misconduct or a knowing violation of law; or
(iv) shall have derived an improper personal benefit.
If the General Corporation Law of the State of Delaware 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 General
Corporation Law of the State of Delaware, as so amended.
THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware makes this Certificate, hereby declaring and certifying that
this is his act and deed and the facts herein stated are true and, accordingly,
has hereunto set his hand this 26th day of July, 1995.
/s/ Adam M. Klein
------------------------------
Adam M. Klein
EX 3.44
ARTICLES OF INCORPORATION
OF
LANDERS AUTO SALES, INC.
The undersigned, natural persons of the age of twenty-one years or
more, acting as the incorporators of a corporation under the Arkansas Business
Corporation Act (act 576 of 1965), adopt the following Articles of
Incorporation for such corporation:
FIRST: The name of the Corporation is:
LANDERS AUTO SALES, INC.
SECOND: The purpose or purposes for which the corporation is organized are:
To carry on, conduct and engage in the operation of a business
consisting of the sale of motor vehicles and any and all kinds of
equipment and accessories including the sale of any and all items
generally sold in or about the operation of motor vehicle sales
business and to do any and all things generally performed or done in
the operation of a motor vehicle sales business.
To execute on behalf of itself and others, instruments and documents
to effectuate and carry out all of said purposes and to do everything
necessary and proper that may be incident to carrying on such business
and the protection of the corporation and its property.
To appoint such officers and agents as the affairs of the corporation
shall require, and allow them suitable compensation from time to time.
To make by-laws as may be deemed necessary for the exercise of its
corporate powers, the management, regulation and government of its
affairs and property, the transfer of its stock and the calling and
holding of meetings of its stockholders, and do all other things
authorized under the laws under which this corporation is organized.
To do any and all other acts or things and to exercise any and all
other powers which a natural person could do or exercise.
THIRD: The aggregate number of shares which the corporation shall have the
authority to issue is 100 shares with no par value.
FOURTH: The amount of capital with which this corporation will begin business
is $300.00.
FIFTH: The period of duration is perpetual.
SIXTH: The address of the initial registered office of this corporation is
1621 Military, Benton, Arkansas.
SEVENTH: The name of its initial registered agent at such address is Bob J.
Landers.
EIGHTH: The number of directors constituting the initial Board of Directors is
two. At such time that stock is owned by more than two individuals the
Board of Directors shall consist of three persons, if there are three
or more shareholders; said directors to be elected at the annual
meeting or special meeting called for that purpose of the shareholders
next following the time when the shares become owned of record by more
than two shareholders.
NINTH: The name and address of each incorporation is:
NAME STREET ADDRESS, CITY & STATE SHARES
Bob J. Landers 1022 Pinewood, Benton, Arkansas 5
Steve J. Landers 2200 Banny, Benton, Arkansas 5
DATED: June 2, 1975
SIGNATURE OF INCORPORATORS:
/s/ Bob J. Landers
------------------------
Bob J. Landers
/s/ Steve J. Landers
------------------------
Steve J. Landers
-2-
STATE OF ARKANSAS - OFFICE OF THE SECRETARY OF STATE
CERTIFICATE OF AMENDMENT
Landers Auto Sales, Inc., a corporation duly organized, created and
existing under and by virtue of the laws of the State of Arkansas, by its
President and its Secretary, DOES HEREBY CERTIFY:
A. That all shareholders and all directors were notified within the
time and manner provided in the "Arkansas Business Corporation Act" (Act 576 of
1965), and that this Amendment is filed pursuant to said Act.
B. That at a special joint meeting of the stockholders and directors
of said corporation, duly called and held at the office of the Company, in the
City of Benton, State of Arkansas, on September 28, 1988, the Amendment to the
Articles of Incorporation, as herein stated, was offered and unanimously
adopted.
C. That the number of shares outstanding are ten (10), and the number
of shares entitled to vote thereon are ten (10). The number of shares which
voted for are ten (10), and the number of shares which voted against are zero
(0).
D. That the following Article of the Articles of Incorporation of this
corporation was amended, Article THIRD, to read as follows:
THIRD: The aggregate number of shares which the Corporation shall have
authority to issue is one hundred (100) shares without par value, of
which ninety-seven and one-half (97.5) shares shall be
designated Series A, and two and one-half (2.5) shares shall be
designated Series B. The holders of Series A shares shall have
unlimited voting rights, and together are entitled to receive the net
assets of the Corporation on dissolution. The holders of Series B
shares shall have no voting rights except to the extent guaranteed by
law, shall be redeemable by the Corporation on demand of the holder or
the Corporation, shall not be entitled to dividends, and shall not be
transferred other than by reacquisition by the Corporation. Shares
issued prior to the effective date of this Amendment, are hereby
designated Series A. Series B shares shall be subject to all
conditions and provisions incorporated in any purchase agreement
between the Corporation and the purchaser of Series B shares.
IN WITNESS WHEREOF, the said Corporation, Landers Auto Sales, Inc.,
has caused its corporate name to be subscribed by its President, who hereby
certifies that the statements contained in the foregoing Certificate of
Amendment are true and correct to the best of his knowledge and beliefs, and
its corporate seal hereto affixed and duly attested by its Secretary, on this
28th day of September, 1988.
LANDERS AUTO SALES, INC.
----------------------------
CORPORATE NAME
/s/ Steve J. Landers
----------------------------
PRESIDENT
1701 I-30 Frontage Rd.
----------------------------
ADDRESS
Benton, Ark 72015
ATTEST:
/s/ Bob J. Landers
- ------------------------
SECRETARY
-2-
AMENDMENT AND RESTATEMENT OF THE
ARTICLES OF INCORPORATION
OF
LANDERS AUTO SALES, INC.
The undersigned certifies that he is the duly elected, qualified and
acting President of Landers Auto Sales, Inc., a corporation organized and
existing under the laws of Arkansas (the "Corporation"), and does hereby
certify as follows:
1. A copy of the Restated Articles of Incorporation of the Corporation
is attached hereto.
2. The Restated Articles of Incorporation of the Corporation were duly
adopted by the stockholders of the Corporation on August 15, 1995.
3. The number of outstanding shares of capital stock of the
Corporation is ten, all of which are entitled to vote. Ten shares voted for,
and no shares voted against, adoption of the Restated Articles of Incorporation
of the Corporation.
IN WITNESS WHEREOF, the Corporation has caused its corporate name to
be subscribed by its President, who hereby verifies that the statements
contained in the foregoing certificate are true and correct to the best of his
knowledge and belief.
Date: August 15, 1995
LANDERS AUTO SALES, INC.
By /s/ Steve Landers
---------------------------
Steve Landers, President
Attested by:
/s/ George G. Lowrance
- -----------------------------
George Lowrance, Secretary
ACKNOWLEDGEMENT
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
On this date, before the undersigned, a Notary Public, duly
commissioned, qualified and acting within and for said County and State,
appeared in person the parties who executed the foregoing instrument, to me
personally known, who said they were duly authorized to execute the foregoing
instrument for and in the name and behalf of said corporation and further
stated and acknowledged that they had so executed said foregoing instrument for
the purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 15th day
of August, 1995.
/s/ Elizabeth C. White
---------------------------
Notary Public
-2-
RESTATED ARTICLES OF INCORPORATION
OF
LANDERS AUTO SALES, INC.
********
ARTICLE I
NAME
The name of the corporation (the "Corporation") is: Landers Auto
Sales, Inc.
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of its registered office in the State of Arkansas is Congo
Exit 118 -- Highway I-30, Benton, Arkansas 72015. The name of its registered
agent at such address is Steve Landers.
ARTICLE III
PURPOSE
The purpose for which the Corporation is organized is to engage in any
lawful business. The Corporation primarily engages in the operation of a
business consisting of the sale, lease and repair of motor vehicles and the
sale of motor vehicle parts and accessories.
ARTICLE IV
CAPITAL
The total number of shares of capital stock which the Corporation
shall have authority to issue is 100 shares of common stock, each of which
shall have a par value of $.01 per share. Each holder of any such shares shall
be entitled to one vote per share in any stockholder vote in which such holder
is entitled to participate.
ARTICLE V
APPLICATION OF NEW BUSINESS CORPORATION ACT
The Corporation hereby elects to be governed by the provisions of the
Arkansas Business Corporation Act of 1987 (A.C.A. Title 4, Chapter 27).
ARTICLE VI
ELIMINATION OF CERTAIN LIABILITY OF DIRECTORS
To the fullest extent permitted by law, 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 a knowing violation of law, (iii)
for unlawful distributions under Section 4-27-833 of the Arkansas Business
Corporation Act, (iv) for any transaction from which the director derived an
improper personal benefit or
-2-
(v) for any action, omission, transaction or breach of a director's duty
creating any third-party liability to any person or entity other than the
Corporation or stockholder.
If the Arkansas Business Corporation Act 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 Arkansas Business
Corporation Act as so amended.
ARTICLE VII
INDEMNIFICATION
The Corporation shall indemnify to the fullest extent permitted under
and in accordance with the laws of the State of Arkansas 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 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), 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
-3-
action or proceeding, had no reasonable cause to believe his conduct was
unlawful.
Expenses (including attorneys' fees) incurred by a director or officer
in defending any civil or criminal action, suit or proceeding shall be paid by
the Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the indemnified
person to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article
VII. Such expenses incurred by other employees and agents may be so paid upon
such terms and conditions, if any, as the board of directors deems appropriate.
The indemnification and advancement of expenses provided by this
Article VII shall not be deemed exclusive of any rights to which those seeking
indemnification or advancement of expenses may be entitled under any applicable
law, Bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in their official capacities and as to action in
other capacities while holding such office.
Neither the amendment nor repeal of this Article VII nor the adoption
of any provision of these Restated Articles of Incorporation inconsistent with
this Article VII shall eliminate or reduce the effect of this Article VII in
respect of any matter occurring prior to such amendment, repeal or adoption of
an inconsistent provision or in respect of any cause of action, suit or claim
relating to any such matter which would have given rise to a right of
indemnification or right to receive expenses
-4-
pursuant to this Article VII if such provision had not been so amended or
repealed or if a provision inconsistent therewith had not been so adopted.
* * * * *
-5-
AMENDMENT TO THE
ARTICLES OF INCORPORATION
OF
LANDERS AUTO SALES, INC.
The undersigned, as the duly elected, qualified and acting President
and Secretary of Landers Auto Sales, Inc. (the "Corporation"), pursuant to
applicable provisions of the Arkansas Business Corporation Act [codified as
Ark. Code Ann. ss.64-101 et. seq. (1966 Repl)], as amended, hereby certify as
follows:
1. That a special meeting of the stockholders of said Corporation,
duly called and held at the office of the Corporation in the City of Benton,
State of Arkansas, on March 3, 1995, pursuant to waiver of notice and consent
executed by the shareholders, the amendment to the Articles of Incorporation,
herein stated was offered and adopted.
2. That the number of shares outstanding are 10 and that the number of
shares entitled to vote thereon are 10 (100%). The number of shares which voted
for the amendments were 10. The number of shares which voted against the
amendments were zero.
3. That Article Third of the Articles of Incorporation of this
Corporation was amended to read as follows:
THIRD: The aggregate number of shares which the Corporation
shall have authority to issue is one hundred (100) shares
with no par value.
IN WITNESS WHEREOF, Landers Auto Sales, Inc. has caused its corporate
name to be subscribed by its President who hereby verifies that the statements
contained in the foregoing certificate of amendment are true and correct to the
best of his knowledge and belief, an its corporate seal affixed and duly
attested by its Secretary, on this 3rd day of March, 1995.
LANDERS AUTO SALES, INC.
By: /s/ Steve Landers
---------------------
Steve Landers
[CORPORATE SEAL]
ATTEST:
/s/ Bob J. Landers
- ------------------------
Secretary
ACKNOWLEDGMENT
STATE OF ARKANSAS )
) ss.
COUNTY OF SALINE )
On this date appeared before the undersigned a Notary Public and for
said County and State, known to me personally to be the parties who executed
the foregoing Certificate of Amendment to Articles of Incorporation,
acknowledged they had executed same.
WITNESS my hand and seal this 3rd day of March, 1995.
/s/ Mary Lynn Seabaugh
-------------------------
Notary Public
[SEAL]
My Commission Expires:
3-26-2002
- ----------------------
-2-
EX-3.45
BYLAWS
OF
LANDERS AUTO SALES, INC.
(as amended and restated
as of August 1, 1995)
ARTICLE I
Stockholders
Section 1.1. Annual Meetings. An annual meeting of stockholders shall
be held for the election of directors at such date, time and place, either
within or without the State of Arkansas, as may be designated by resolution of
the Board of Directors from time to time. Any other proper business may be
transacted at the annual meeting.
Section 1.2. Special Meetings. Special meetings of stockholders for
any purpose or purposes may be called at any time by (i) the Board of
Directors, (ii) a committee of the Board of Directors which has been duly
designated by the Board of Directors, and whose powers and authority, as
expressly provided in a resolution of the Board of Directors, include the power
to call such meetings, or (iii) the holders of at least 10% of all the votes
entitled to be cast on any issue proposed to be considered at the proposed
special meeting, provided, such holders sign, date and deliver to the Secretary
of the corporation one or more written demands for the meeting describing the
purpose or purposes for which it is to be held.
Section 1.3. Notice of Meetings. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting
shall be given which shall state the place, date and hour of the meeting, and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called. Except as provided below or as otherwise provided by law, the
written notice of any meeting shall be given not less than ten nor more than
sixty days before the date of the meeting to each stockholder entitled to vote
at such meeting. Notice of a meeting at which a proposal to increase the
authorized capital stock or bond indebtedness of the corporation is to be
submitted shall state the purpose or purposes for which the meeting is called
and shall be given not less than sixty nor more than seventy-five days before
the date of the meeting. If mailed, such notice shall be deemed to be given
when deposited in the mail, postage prepaid, directed to the stockholder at his
address as it appears on the records of the corporation.
Section 1.4. Adjournments. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the
meeting and place thereof are announced at the meeting at which the adjournment
is taken. At the adjourned meeting the corporation may transact any business
which might have been transacted at the original meeting. If a new record date
is or must be fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
Section 1.5. Quorum. At each meeting of stockholders, except where
otherwise provided by law or the corporation's Certificate of Incorporation
(the "Certificate of Incorporation") or these Bylaws, the holders of a majority
of the votes represented by the outstanding shares of stock entitled to vote at
the meeting, present in person or by proxy, shall constitute a quorum. In the
absence of a quorum, the stockholders so present may, by majority vote, adjourn
the meeting from time to time in the manner provided in Section 1.4 of these
Bylaws until a quorum shall attend. Shares of its own stock belonging to the
corporation or to another corporation, if a majority of the shares entitled to
vote in the election of directors of such other corporation is held by the
corporation, shall neither be entitled to vote nor be counted for quorum
purposes; provided, however, that the foregoing shall not limit the right of
the corporation to vote stock, including but not limited to its own stock, held
by it in a fiduciary capacity.
Section 1.6. Organization. Meetings of stockholders shall be presided
over by the Chairman of the Board, if any, or in his absence by the Vice
Chairman of the Board, if any, or in his absence by the President, or in his
absence by a Vice President, or in the absence of the foregoing persons by a
chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 1.7. Voting; Proxies. Except as otherwise provided by the
Certificate of Incorporation, each stockholder entitled to vote at any meetings
of stockholders shall be entitled to one vote for each share of stock held by
him which has voting power upon the matter in question. Each stockholder
entitled to vote at a meeting of stockholders may authorize another person or
persons to act for him by proxy, but no such proxy shall be voted or acted upon
after eleven months from its date, unless the proxy provides for a longer
period. A duly executed proxy shall be irrevocable if it states that it is
irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A stockholder may revoke any
proxy which is not irrevocable by attending the meeting and voting in person or
by filing an instrument in writing revoking the proxy
-2-
or another duly executed proxy bearing a later date with the Secretary of the
corporation. Voting at meetings of stockholders need not be by written ballot
and need not be conducted by inspectors unless the holders of a majority of the
votes represented by the outstanding shares of all classes of stock entitled to
vote thereon present in person or by proxy at such meeting shall so determine.
At all meetings of stockholders for the election of directors a plurality of
the votes cast shall be sufficient to elect. All other elections and questions
shall, unless otherwise provided by law or by the Certificate of Incorporation,
be decided by a majority of the votes cast on any such election or question.
Section 1.8. Fixing Date for Determination of Stockholders of Record.
In order that the corporation may determine the stockholders entitled to notice
of or to vote at any meeting of stockholders or any adjournment thereof, or to
express consent to corporate action in writing without a meeting, or entitled
to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board
of Directors may fix a record date, which record date shall not be more than
seventy days prior to such meeting or action. If no record date is fixed: (i)
the record date for determining stockholders entitled to notice of or to vote
at a meeting of stockholders shall be at the close of business on the day next
preceding the day on which the first notice is delivered to stockholders, or,
if notice is waived, at the close of business on the day next preceding the day
on which the meeting is held; (ii) the record date for determining stockholders
entitled to express consent to corporate action in writing without a meeting
shall be the date on which the first stockholder signs the consent; and (iii)
the record date for determining stockholders for any other purpose shall be at
the close of business on the day on which the Board of Directors adopts the
resolution relating thereto. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting unless the Board of Directors fixes a new record
date for the adjourned meeting, which it must do if the meeting is adjourned to
a date more than one hundred twenty days after the date fixed for the original
meeting.
Section 1.9. List of Stockholders Entitled to Vote. The corporation
shall prepare an alphabetical list of the stockholders entitled to vote at the
meeting, arranged by voting group and showing the address of and the number of
shares held by each stockholder. Such list shall be open to the examination of
any stockholder, his agent or attorney, during ordinary business hours, for a
period beginning two business days after notice of the meeting is given and
continuing through the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the corporation's principal office. The
list
-3-
shall also be made available at the meeting and any stockholder, his agent
or attorney is entitle to inspect the list at any time during the meeting or
any adjournment. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list of stockholders or
the books of the corporation, or to vote in person or by proxy at any meeting
of stockholders.
Section 1.10. Action by Consent of Stockholders. Unless otherwise
restricted by the Certificate of Incorporation, any action required or
permitted to be taken at any annual or special meeting of the stockholders may
be taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed by the
holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted, provided, however,
that action by written consent on proposals to increase the capital stock or
bond indebtedness of the corporation shall be signed by all of the
stockholders. Any written consent executed by one or more shareholders pursuant
to this section shall be delivered to the corporation for inclusion in the
minutes or filing with the corporate records.
ARTICLE II
Board of Directors
Section 2.1. Number; Qualifications; Advisory Directors. The Board of
Directors shall consist of at least one and not more than ten members, as
determined from time to time by resolution of the Board of Directors. Directors
need not be stockholders. The Board of Directors may appoint one or more
Advisory Directors who may participate in meetings of the Board but who shall
not be entitled to vote on any matters before the Board.
Section 2.2. Election; Resignation; Removal. At each annual meeting of
stockholders, the stockholders shall elect Directors, each of whom shall hold
office until the next annual meeting of stockholders and until his successor is
elected and qualified. Any Director may resign at any time upon written notice
to the Board of Directors, its chairman or the corporation. Such resignation
shall take effect at the time specified therein, and if no time is specified,
at the time of its receipt by the Board of Directors, its chairman or the
corporation. Any director may be removed from the Board of Directors, with or
without cause, by the holders of a majority of the shares of capital stock
entitled to vote, and the office of such director shall forthwith become
vacant.
Section 2.3. Filling of Vacancies. Any vacancy among the directors,
occurring from any cause whatsoever, may be filled by
-4-
a majority of the remaining directors, though less than a quorum, provided,
however, that the stockholders removing any director may at the same meeting
fill the vacancy caused by such removal, and provided further, that if the
directors fail to fill any such vacancy, the stockholders may at any special
meeting called for that purpose fill such vacancy. In case of any increase in
the number o! directors, the additional directors may be elected by the
directors in office prior to such increase. Any person elected to fill a
vacancy shall hold office, subject to the right of removal as hereinbefore
provided, until the next annual election and until his successor is elected and
qualifies.
Section 2.4. Regular Meetings. Regular meetings of the Board of
Directors may be held at such places within or without the State of Arkansas
and at such times as the Board of Directors may from time to time determine,
and notices thereof need not be given.
Section 2.5. Special Meetings. Special meetings of the Board of
Directors may be held at any time or place within or without the State of
Arkansas whenever called by the President, any Vice President, the Secretary,
or by any member of the Board of Directors. Reasonable notice thereof shall be
given by the person or persons calling the meeting.
Section 2.6. Telephonic Meetings Permitted. Members of the Board of
Directors, or any committee designated by the Board, may participate in a
meeting of such Board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
provision shall constitute presence in person at such meeting.
Section 2.7. Quorum; Vote Required for Action. At all meetings of the
Board of Directors a majority of the whole Board shall constitute a quorum for
the transaction of business. Except in cases in which the Certificate of
Incorporation or these Bylaws otherwise provide, the vote of a majority of the
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors.
Section 2.8. Organization. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board, if any, or in his absence by the
Vice Chairman of the Board, if any, or in his absence by the President, or in
their absence by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 2.9. Informal Action by Directors. Unless otherwise restricted
by the Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof,
-5-
may be taken without a meeting if all members of the Board or such committee,
as the case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board or committee.
ARTICLE III
Committees
Section 3.1. Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of two or more of the directors of the corporation. The
Board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. Any such committee, to the extent provided in the resolution of
the Board of Directors, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it, provided, however, that no such
committee shall (i) authorize distributions, (ii) approve or propose to
stockholders action that requires stockholder approval under the Arkansas
Business Corporation Act, (iii) fill vacancies on the Board of Directors or on
any of its committees, (iv) amend the Certificate of Incorporation, (v) adopt,
amend or repeal Bylaws, (vi) approve a plan of merger not requiring stockholder
approval, (vii) authorize or approve reacquisition of shares (except according
to a formula or method prescribed by the Board of Directors) or (viii)
authorize or approve the issuance or sale or contract for sale of shares, or
determine the designation and relative rights, preferences and limitations of a
class or series of shares (except that the Board of Directors may authorize a
committee or a senior executive officer of the corporation to do so within the
limits specifically prescribed by the Board of Directors).
Section 3.2. Committee Rules. Unless the Board of Directors otherwise
provides, each committee designated by the Board may make, alter and repeal
rules for the conduct of its business. In the absence of such rules each
committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article II of these Bylaws.
ARTICLE IV
Officers
Section 4.1. Executive Officers; Election; Qualification; Term of
Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a
President and Secretary, and it may, if it so determines, choose a Chairman of
the Board and a Vice
-6-
Chairman of the Board from among its members. The Board of Directors may also
choose one or more executive officers having such titles as the Board may deem
appropriate, including but not limited to, Vice Presidents, Assistant
Secretaries, Managing Directors, one Treasurer and one or more Assistant
Treasurers. Each such officer shall hold office until the first meeting of the
Board of Directors after the annual meeting of stockholders next succeeding his
election, and until his successor is elected and qualified or until his earlier
resignation or removal. Any officer may resign at any time upon written notice
to the corporation. The Board of Directors may remove any officer with or
without cause at any time, but such removal shall be without prejudice to the
contractual rights of such officer, if any, with the corporation. Any number of
offices may be held by the same person. Any vacancy occurring in any office of
the corporation by death, resignation, removal or otherwise may be filled for
the unexpired portion of the term by the Board of Directors at any regular or
special meeting.
Section 4.2. Powers and Duties of Executive officers. The officers of
the corporation shall have such powers and duties in the management of the
corporation as may be prescribed by the Board of Directors and, to the extent
not so provided, as generally pertain to their respective offices, subject to
the control of the Board of Directors. The Board of Directors may require any
officer, agent or employee to give security for the faithful performance of his
duties.
ARTICLE V
Stock
Section 5.1. Certificates. Every holder of stock shall be entitled to
have a certificate signed by or in the name of the corporation by the Chairman
or Vice Chairman of the Board of Directors, if any, or the President or a Vice
President, and by the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary, of the corporation, certifying the number of shares
owned by him in the corporation. Any or all of the signatures on the
certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued by the corporation with the
same effect as if he were such officer, transfer agent, or registrar at the
date of issue.
Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New
Certificates. The corporation may issue a new certificate of stock in the place
of any certificate theretofore issued by it, alleged to have been lost, stolen
or destroyed, and the corporation may require the owner of the lost, stolen or
destroyed certificate, or his legal representative, to give the
-7-
corporation a bond sufficient to indemnify it against any claim that may be
made against it on account of the alleged loss, theft or destruction of any
such certificate or the issuance of such new certificate.
ARTICLE VI
Indemnification
Section 6.1. Right to Indemnification. The corporation shall indemnify
and hold harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any person who was or is made or
is threatened to be made a party or is otherwise involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "proceeding") by reason of the fact that he,
or a person for whom he is the legal representative, is or was a director,
advisory director, officer, employee or agent of the corporation or any of its
direct or indirect foreign subsidiaries or is or was serving at the request of
the corporation as a director, advisory director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust, enterprise or
non-profit entity, including service with respect to employee benefit plans,
against all expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with
such proceeding. The corporation shall be required to indemnify a person in
connection with a proceeding initiated by such person only if the proceeding
was authorized by the Board of Directors of the corporation.
Section 6.2. Prepayment of Expenses. The corporation shall pay the
expenses incurred in Defending any proceeding in advance of its final
disposition, provided, however, that the payment of expenses incurred by a
director, advisory director or officer in his capacity as such in advance of
the final disposition of the proceeding shall be made only upon receipt of an
undertaking by such director, advisory director or officer to repay all amounts
advanced if it should be ultimately determined that the director, advisory
director or officer is not entitled to be indemnified under this Article VI or
otherwise.
Section 6.3. Claims. If a claim for indemnification or payment of
expenses under this Article VI is not paid in full within ninety days after a
written claim therefor has been received by the corporation the claimant may
file suit to recover the unpaid amount of such claim and, if successful in
whole or in part, shall be entitled to be paid the expenses of prosecuting such
claim. In any such action, the corporation shall have the burden of proving
that the claimant was not entitled to the requested indemnification or payment
of expenses under applicable law.
-8-
Section 6.4. Non-Exclusivity of Rights. The rights conferred on any
person by this Article VI shall not be exclusive of any other rights which such
person may have or hereafter acquire under any statute, provision of the
Certificate of incorporation, these Bylaws, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 6.5. Other Indemnification. The corporation's obligation, if
any, to indemnify any person who was or is serving at its request as a
director, advisory director, officer, employee, fiduciary or agent of another
corporation, partnership, joint venture, trust, enterprise or non-profit entity
shall be reduced by any amount such person may collect as indemnification from
such other corporation, partnership, joint venture, trust, enterprise or
non-profit enterprise.
Section 6.6. Amendment or Repeal. Any repeal or
modification of the foregoing provisions of this Article VI shall not adversely
affect any right or protection hereunder of any person in respect of any act or
omission occurring prior to the time of such repeal or modification.
ARTICLE VII
Miscellaneous
Section 7.1. Fiscal Year. The fiscal year of the corporation shall be
a 52/53 week year, ending on the Sunday closest to December 31, or such other
period as may be determined by resolution of the Board of Directors.
Section 7.2. Seal. The corporate seal shall have the name of the
corporation inscribed thereon and shall be in such form as may be approved from
time to time by the Board of Directors.
Section 7.3. Interested Directors; Quorum. No contract or transaction
between the corporation and one or more of its directors or officers of a
corporation, partnership, association, or other organization or entity in which
one or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the Board or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose, if: (i) the
material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the
committee, and the Board or committee authorizes, approves or ratifies the
contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum, provided, however, that such majority consists of more than one
director; or (ii) the material facts as to his
-9-
relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically authorized, approved or ratified by the
stockholders; or (iii) the contract or transaction was fair to the corporation.
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 at which the
contract or transaction is voted upon.
Section 7.4. Form of Records. Any records maintained by the
corporation in the regular course of its business, including its stock ledger,
books of account, and minute books, may be kept on, or be in the form of, punch
cards, magnetic tape, photographs, microphotographs, or any other information
storage device, provided that the records so kept can be converted into clearly
legible form within a reasonable time. The corporation shall so convert any
records so kept upon the request of any person entitled to inspect the same.
Section 7.5. Amendment of Bylaws. These Bylaws may be altered or
repealed, and new Bylaws made, (i) by the Board of Directors unless (A) the
Certificate of Incorporation or the Arkansas Business Corporation Act reserve
this power exclusively to the stockholders in whole or part or (B) the
stockholders in amending or repealing a particular Bylaw provide expressly that
the Board of Directors may not amend or repeal that Bylaw, or (ii) by the
stockholders.
* * * * *
10
EX 3.46
ARTICLES OF INCORPORATION
OF
LANDERS BUICK-PONTIAC, INC.
The undersigned person hereby states the following to form a
corporation pursuant to the Arkansas Business Corporation Act:
1. The name of the corporation is Landers Buick-Pontiac, Inc.
2. The corporation is authorized to issue one thousand (1000) shares
of stock and each share shall have a par value of One Dollar ($1.00).
3. The initial registered office of this corporation shall be located
at 3652 Highway 5, Benton, Arkansas 72015 and the name of the registered agent
of this corporation at that address is Lance Landers.
4. The name and address of the incorporator is:
Lance Landers 3652 Highway 5
Benton, Arkansas 72015
5. The nature of the business of the corporation and the objects or
purposes proposed to be transacted, promoted or carried on by it are as
follows:
a) The primary purpose of the corporation shall be the operation
of an automobile dealership, including without limitation the
purchase and sale of new and used motor vehicles; the financing
thereof; the purchase and sale of insurance generally associated
with said business; and all other matters incidental thereto and
associated therewith.
b) To conduct any other business enterprise not contrary to law.
c) To exercise any and all of the powers enumerated in the
Arkansas Business Corporation Act, as it now exists or may
hereafter be amended.
6. The President and Secretary of the corporation shall have the
authority on behalf of the corporation to enter into any contract between the
corporation and its shareholders: (a) imposing restrictions on the future
transfer (whether intervivos, by inheritance or testamentary gift),
hypothecation
or other disposition of its shares; (b) granting purchase options
to the corporation or its shareholders; (c) requiring the corporation or its
shareholders to purchase such shares upon stated contingencies.
7. The number of Directors constituting the initial Board of Directors
shall be one. The member of the initial Board of Directors and his address is:
Lance Landers 3652 Highway 5
Benton, Arkansas 72015
8. All shares of stock issued by the corporation shall be represented
by certificates.
9. To the fullest extent permitted by the Arkansas Business
Corporation Act as it now exists or may hereafter be amended, a Director of
this corporation shall not be liable to the corporation or its shareholders for
monetary damages for breach of fiduciary duty as a Director.
10. All shareholders are entitled to cumulate their votes for
Directors. The corporation elects to have preemptive rights.
11. The corporation may indemnify 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 to the fullest extent permitted by the Arkansas
Business Corporation Act, as it now exists or may hereafter be amended.
EXECUTED this 22nd day of November, 1994.
/s/ Lance Landers
-----------------------------------
Lance Landers, Incorporator
ARTICLES OF AMENDMENT TO THE
ARTICLES OF INCORPORATION OF
LANDERS BUICK-PONTIAC, INC.
I, Lance Landers, the President and Secretary, of Landers
Buick-Pontiac, Inc., a corporation duly organized, created, and existing under
and by virtue of the laws of the State of Arkansas, hereby certify that:
1. The following Amendment to the Articles of Incorporation of Landers
Buick-Pontiac, Inc. was adopted by unanimous consent of the Board of Directors
and Stockholders of said corporation on March 14, 1995.
RESOLVED, that the Articles of Incorporation shall be amended as
follows:
2: The corporation is authorized to have and issue two classes of
shares of stock. The corporation is authorized to issue 1000
shares of Class A which shall have the full voting rights. The
Class A share shall have a par value of One Dollar ($1.00) each.
The Corporation is authorized to issue 1000 shares of Class B
non-voting shares. The Class B shares shall have a par value of
One Dollar ($1.00) each. The Class B shares are redeemable or
convertible:
(I)(i) At the option of the corporation, or upon the
occurrence of a designated event determined by the Board of
Directors; (ii) For cash, indebtedness, securities, or other
property; (iii) In a designated amount or in an amount
determined in accordance with a designated formula or by
reference to extrinsic data or events determined by the
Board of Directors.
(II) Dividends are non cumulative.
(III) Upon dissolution the Class B shares shall be entitled
to no more than twenty percent (20%) of the total sums
available for distribution.
The Board of Directors shall have the authority to determine, in
whole or in part, the preferences, limitations and relative
rights within the limits set forth in A.C.A. 4-27-601 of any
class of shares before issuance.
9: 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; provided, however, this
provision does not eliminate or limit the liability of a director
(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) for voting for or assenting to an
unlawful distribution by the corporation, as provided in Section
4-27-833 of the Arkansas Business Corporation Act, (iv) for any
transaction from which the director derived any improper personal
benefit, or (v) for any action, omission, transaction, or breach
of a director's duty creating any third party liability to any
person or entity other than the corporation or its stockholders.
If the Arkansas Business Corporation Act is amended after the
effective date of the adoption of this Paragraph 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 Arkansas Business Corporation Act, as so
amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the corporation shall not adversely affect any
right or protection of a director of the corporation existing at
the time of such repeal or modification.
11: Directors and officers of the corporation shall be
indemnified to the fullest extent now or hereafter permitted by
law in connection with any actual or threatened action or
proceeding (including civil, criminal, administrative, or
investigative proceedings) arising out of their service to the
corporation or to another organization at the corporation's
request. Persons who are not directors and officers of the
corporation may be similarly indemnified with respect to their
service to the corporation or to another organization at the
corporation's request
-2-
to the extent authorized at any time by the Board of Directors.
2. On the date of the adoption of the foregoing resolution there were
1000 shares of $1.00 par value common stock outstanding and entitled to vote
thereon. The number of shares voted for and against such amendment were as
follows:
FOR AGAINST
--- -------
1000 -0-
IN TESTIMONY WHEREOF, we have hereunto set our hands as President and
Secretary of Landers Buick-Pontiac, Inc. on March 14, 1995.
/s/ Lance Landers
--------------------------------------
Lance Landers, President and Secretary
-3-
ARTICLES OF AMENDMENT TO THE
ARTICLES OF INCORPORATION
OF
LANDERS BUICK-PONTIAC, INC.
I, Lance Landers, the President and Secretary, of Landers
Buick-Pontiac, Inc., a corporation duly organized, created and existing under
and by virtue of the laws of the State of Arkansas, hereby certify as follows:
1. The following Amendments to the Articles of Incorporation of
Landers Buick-Pontiac, Inc. were adopted by unanimous consent of the Board of
Directors and shareholders of said corporation effective December 28, 1995:
RESOLVED, that the Articles of Incorporation be amended to add Article
12 to read as follows:
By unanimous vote of the shareholders, the Corporation hereby
elects to be governed by the provisions of the Arkansas Business
Corporation Act of 1987 (Acts 1987, No. 958).
RESOLVED, that Article 2 of the Articles of Incorporation be amended
as follows:
The Corporation is authorized to issue two thousand (2,000)
shares of capital stock and each share shall have a par value of
one dollar ($1.00).
2. On the date of the adoption of the foregoing resolution there were
1,000 shares of common stock outstanding and entitled to vote thereon. The
number of shares voted for and against such amendment were as follows:
FOR AGAINST
--- -------
1,000 -0-
IN TESTIMONY WHEREOF, I have hereunto set my hand as President and
Secretary, of Landers Buick-Pontiac, Inc. on December 28, 1995. I further
verify that the statements contained herein are true and correct to the best of
my knowledge and belief.
/s/ Lance Landers
------------------------------------
Lance Landers, President/Secretary
EX 3.48
ARTICLES OF INCORPORATION OF
LANDERS UNITED AUTO GROUP, INC.
THE UNDERSIGNED, in order to form a business corporation for the
purposes stated, pursuant to the provisions of the Arkansas Business
Corporation Act, (codified as Ark. Code Ann. 4-27-101, et. seq. (1987 Supp.)),
hereby states as follows:
I. NAME OF THE CORPORATION
The name of the corporation is Landers United Auto Group, Inc.,
(hereinafter referred to as the "Corporation").
II. AUTHORIZED CAPITAL STOCK
The total number of shares of capital stock which the Corporation
shall have authority to issue is 100 shares of common stock, each of which
shall have a par value of $.01 per share. Each holder of any such shares shall
be entitled to one vote per share in any stockholder vote in which such holder
is entitled to participate.
III. REGISTERED OFFICE AND AGENT
The street address of the initial registered office of the Corporation
shall be Congo Exit - Highway I-30, Benton, Arkansas 72015. The registered
agent of the Corporation at such address is Steve Landers.
IV. INCORPORATOR
The name and address of each incorporator of the Corporation is as
follows:
Name Address
---- -------
John Landers Congo Exit - Highway I-30
Benton, Arkansas 72015
V. PRIMARY PURPOSE OF CORPORATION
The purpose for which the Corporation is organized is to engage in any
lawful business. The Corporation primarily engages in the operations of a
business consisting of the sale, lease and repair of motor vehicles and the
sale of motor vehicles parts and accessories.
VI. BOARD OF DIRECTORS
The number of directors constituting the initial Board of Directors
shall be three (3). The number of directors may thereafter be changed in
accordance with the bylaws of the Corporation.
The name and address of each individual who is to serve as a member of
the initial Board of Directors of the Corporation is as follows:
Name Address
---- -------
Steve Landers Congo Exit - Highway I-30
Benton, Arkansas 72015
John Landers Congo Exit - Highway I-30
Benton, Arkansas 72015
George Lowrance 375 Park Avenue
New York, NY 10022
VII. ELIMINATION OF CERTAIN LIABILITY OF DIRECTORS
To the fullest extent permitted by law, a director of the Corporation
shall not be personally liable to the Corporation or
-2-
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) for unlawful distributions under Section 4-27-833 of the Arkansas
Business Corporation Act, (iv) for any transaction from which the director
derived an improper personal benefit or (v) for any action, omission,
transaction or breach of a director's duty creating any third-party liability
to any person or entity other than the Corporation or stockholders. If the
Arkansas Business Corporation Act 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 Arkansas Business Corporation Act as so
amended.
VIII. INDEMNIFICATION
The Corporation shall indemnify to the fullest extent permitted under
and in accordance with the laws of the State of Arkansas 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 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
-3-
venture, trust or other enterprise, 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 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.
Expenses (including attorneys' fees) incurred by a director or officer
in defending any civil or criminal action, suit or proceeding shall be paid by
the Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the indemnified
person to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article
VIII. Such expenses incurred by other employees and agents may be so paid upon
such terms and conditions, if any, as the board of directors deems appropriate.
The indemnification and advancement of expenses provided by this
Article VIII shall not be deemed exclusive of any rights to which those seeking
indemnification or advancement of expenses may be entitled under any applicable
law, bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in their official capacities and as to action in
other capacities while holding such office.
Neither the amendment nor repeal of this Article VIII nor the adoption
of any provision of these Articles of Incorporation
-4-
inconsistent with this Article VIII shall eliminate or reduce the effect of
this Article VIII in respect of any matter occurring prior to such amendment,
repeal or adoption of an inconsistent provision or in respect of any cause of
action, suit or claim relating to any such matter which would have given rise
to a right of indemnification or right to receive expenses pursuant to this
Articles VIII if such provision had not been so amended or repealed or if a
provision inconsistent therewith had not been so adopted.
EXECUTED this 13th day of December, 1995.
/s/ John Landers
-------------------------------
John Landers, Incorporator
-5-
EX 3.50
ARTICLES OF INCORPORATION OF
LANDERS UNITED AUTO GROUP NO. 2, INC.
THE UNDERSIGNED, in order to form a business corporation for the
purposes stated, pursuant to the provisions of the Arkansas Business
Corporation Act, (codified as Ark. Code Ann. 4-27-101, et. seq. (1987 Supp.)),
hereby states as follows:
I. NAME OF THE CORPORATION
The name of the corporation is Landers United Auto Group No. 2, Inc.,
(hereinafter referred to as the "Corporation").
II. AUTHORIZED CAPITAL STOCK
The total number of shares of capital stock which the Corporation
shall have authority to issue is 100 shares of common stock, each of which
shall have a par value of $.01 per share. Each holder of any such shares shall
be entitled to one vote per share in any stockholder vote in which such holder
is entitled to participate.
III. REGISTERED OFFICE AND AGENT
The street address of the initial registered office of the Corporation
shall be Congo Exit - Highway I-30, Benton, Arkansas 72015. The registered
agent of the Corporation at such address is Steve Landers.
IV. INCORPORATOR
The name and address of each incorporator of the Corporation is as
follows:
Name Address
---- -------
John Landers Congo Exit - Highway I-30
Benton, Arkansas 72015
V. PRIMARY PURPOSE OF CORPORATION
The purpose for which the Corporation is organized is to engage in any
lawful business. The Corporation primarily engages in the operations of a
business consisting of the sale, lease and repair of motor vehicles and the
sale of motor vehicle parts and accessories.
VI. BOARD OF DIRECTORS
The number of directors constituting the initial Board of Directors
shall be three (3). The number of directors may thereafter be changed in
accordance with the bylaws of the Corporation.
The name and address of each individual who is to serve as a member of
the initial Board of Directors of the Corporation is as follows:
Name Address
---- -------
Steve Landers Congo Exit - Highway I-30
Benton, Arkansas 72015
John Landers Congo Exit - Highway I-30
Benton, Arkansas 72015
George Lowrance 375 Park Avenue
New York, NY 10022
-2-
VII. ELIMINATION OF CERTAIN LIABILITY OF DIRECTORS
To the fullest extent permitted by law, 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 a knowing violation of law, (iii)
for unlawful distributions under Section 4-27-833 of the Arkansas Business
Corporation Act, (iv) for any transaction from which the director derived an
improper personal benefit or (v) for any action, omission, transaction or
breach of a director's duty creating any third-party liability to any person or
entity other than the Corporation or stockholders.
If the Arkansas Business Corporation Act 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 Arkansas Business
Corporation Act as so amended.
VIII. INDEMNIFICATION
The Corporation shall indemnify to the fullest extent permitted under
and in accordance with the laws of the State of Arkansas 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 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,
-3-
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, 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 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.
Expenses (including attorneys' fees) incurred by a director or officer
in defending any civil or criminal action, suit or proceeding shall be paid by
the Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the indemnified
person to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article
VIII. Such expenses incurred by other employees and agents may be so paid upon
such terms and conditions, if any, as the board of directors deems appropriate.
The indemnification and advancement of expenses provided by this
Article VIII shall not be deemed exclusive of any rights to which those seeking
indemnification or advancement of expenses may be entitled under any applicable
law, bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise, both as
-4-
to action in their official capacities and as to action in other capacities
while holding such office.
Neither the amendment nor repeal of this Article VIII nor the adoption
of any provision of these Articles of Incorporation inconsistent with this
Article VIII shall eliminate or reduce the effect of this Article VIII in
respect of any matter occurring prior to such amendment, repeal or adoption of
an inconsistent provision or in respect of any cause of action, suit or claim
relating to any such matter which would have given rise to a right of
indemnification or right to receive expenses pursuant to this Articles VIII if
such provisions had not been so amended or repealed or if a provision
inconsistent therewith had not been so adopted.
EXECUTED this 8th day of May, 1996.
/s/ John Landers
-----------------------------------
John Landers, Incorporator
-5-
EX 3.52
ARTICLES OF INCORPORATION OF
LANDERS UNITED AUTO GROUP NO. 3, INC.
THE UNDERSIGNED, in order to form a business corporation for the
purposes stated, pursuant to the provisions of the Arkansas Business
Corporation Act, (codified as Ark. Code Ann. 4-27-101, et. seq. (1987 Supp.)),
hereby states as follows:
I. NAME OF THE CORPORATION
The name of the corporation is Landers United Auto Group No. 3, Inc.,
(hereinafter referred to as the "Corporation").
II. AUTHORIZED CAPITAL STOCK
The total number of shares of capital stock which the Corporation
shall have authority to issue is 100 shares of common stock, each of which
shall have a par value of $.01 per share. Each holder of any such shares shall
be entitled to one vote per share in any stockholder vote in which such holder
is entitled to participate.
III. REGISTERED OFFICE AND AGENT
The street address of the initial registered office of the Corporation
shall be Congo Exit - Highway I-30, Benton, Arkansas 72015. The registered
agent of the Corporation at such address is Steve Landers.
IV. INCORPORATOR
The name and address of each incorporator of the Corporation is as
follows:
Name Address
---- -------
John Landers Congo Exit - Highway I-30
Benton, Arkansas 72015
V. PRIMARY PURPOSE OF CORPORATION
The purpose for which the Corporation is organized is to engage in any
lawful business. The Corporation primarily engages in the operations of a
business consisting of the sale, lease and repair of motor vehicles and the
sale of motor vehicle parts and accessories.
VI. BOARD OF DIRECTORS
The number of directors constituting the initial Board of Directors
shall be three (3). The number of directors may thereafter be changed in
accordance with the bylaws of the Corporation.
The name and address of each individual who is to serve as a member of
the initial Board of Directors of the Corporation is as follows:
Name Address
---- -------
Steve Landers Congo Exit - Highway I-30
Benton, Arkansas 72015
John Landers Congo Exit - Highway I-30
Benton, Arkansas 72015
George Lowrance 375 Park Avenue
New York, NY 10022
-2-
VII. ELIMINATION OF CERTAIN LIABILITY OF DIRECTORS
To the fullest extent permitted by law, 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 a knowing violation of law, (iii)
for unlawful distributions under Section 4-27-833 of the Arkansas Business
Corporation Act, (iv) for any transaction from which the director derived an
improper personal benefit or (v) for any action, omission, transaction or
breach of a director's duty creating any third-party liability to any person or
entity other than the Corporation or stockholders.
If the Arkansas Business Corporation Act 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 Arkansas Business
Corporation Act as so amended.
VIII. INDEMNIFICATION
The Corporation shall indemnify to the fullest extent permitted under
and in accordance with the laws of the State of Arkansas 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 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,
-3-
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, 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 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.
Expenses (including attorneys' fees) incurred by a director or officer
in defending any civil or criminal action, suit or proceeding shall be paid by
the Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the indemnified
person to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article
VIII. Such expenses incurred by other employees and agents may be so paid upon
such terms and conditions, if any, as the board of directors deems appropriate.
The indemnification and advancement of expenses provided by this
Article VIII shall not be deemed exclusive of any rights to which those seeking
indemnification or advancement of expenses may be entitled under any applicable
law, bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise, both as
-4-
to action in their official capacities and as to action in other capacities
while holding such office.
Neither the amendment nor repeal of this Article VIII nor the adoption
of any provision of these Articles of Incorporation inconsistent with this
Article VIII shall eliminate or reduce the effect of this Article VIII in
respect of any matter occurring prior to such amendment, repeal or adoption of
an inconsistent provision or in respect of any cause of action, suit or claim
relating to any such matter which would have given rise to a right of
indemnification or right to receive expenses pursuant to this Articles VIII if
such provisions had not been so amended or repealed or if a provision
inconsistent therewith had not been so adopted.
EXECUTED this 5th day of June, 1996.
/s/ John Landers
-----------------------------------
John Landers, Incorporator
EX 3.54
ARTICLES OF INCORPORATION OF
LANDERS UNITED AUTO GROUP NO. 4, INC.
THE UNDERSIGNED, in order to form a business corporation for the
purposes stated, pursuant to the provisions of the Arkansas Business
Corporation Act, (codified as Ark. Code Ann. 4-27-101, et. seq. (1987 Supp.)),
hereby states as follows:
I. NAME OF THE CORPORATION
The name of the corporation is Landers United Auto Group No. 4, Inc.,
(hereinafter referred to as the "Corporation").
II. AUTHORIZED CAPITAL STOCK
The total number of shares of capital stock which the Corporation
shall have authority to issue is 100 shares of common stock, each of which
shall have a par value of $.01 per share. Each holder of any such shares shall
be entitled to one vote per share in any stockholder vote in which such holder
is entitled to participate.
III. REGISTERED OFFICE AND AGENT
The street address of the initial registered office of the Corporation
shall be Congo Exit - Highway I-30, Benton, Arkansas 72015. The registered
agent of the Corporation at such address is Steve Landers.
IV. INCORPORATOR
The name and address of each incorporator of the Corporation is as
follows:
Name Address
---- -------
John Landers Congo Exit - Highway I-30
Benton, Arkansas 72015
V. PRIMARY PURPOSE OF CORPORATION
The purpose for which the Corporation is organized is to engage in any
lawful business. The Corporation primarily engages in the operations of a
business consisting of the sale, lease and repair of motor vehicles and the
sale of motor vehicle parts and accessories.
VI. BOARD OF DIRECTORS
The number of directors constituting the initial Board of Directors
shall be three (3). The number of directors may thereafter be changed in
accordance with the bylaws of the Corporation.
The name and address of each individual who is to serve as a member of
the initial Board of Directors of the Corporation is as follows:
Name Address
---- -------
Steve Landers Congo Exit - Highway I-30
Benton, Arkansas 72015
John Landers Congo Exit - Highway I-30
Benton, Arkansas 72015
George Lowrance 375 Park Avenue
New York, NY 10022
VII. ELIMINATION OF CERTAIN LIABILITY OF DIRECTORS
To the fullest extent permitted by law, a director of the Corporation
shall not be personally liable to the Corporation or
-2-
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) for unlawful distributions under Section 4-27-833 of the Arkansas
Business Corporation Act, (iv) for any transaction from which the director
derived an improper personal benefit or (v) for any action, omission,
transaction or breach of a director's duty creating any third-party liability
to any person or entity other than the Corporation or stockholders.
If the Arkansas Business Corporation Act 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 Arkansas Business
Corporation Act as so amended.
VIII. INDEMNIFICATION
The Corporation shall indemnify to the fullest extent permitted under
and in accordance with the laws of the State of Arkansas 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 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
-3-
venture, trust or other enterprise, 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 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.
Expenses (including attorneys' fees) incurred by a director or officer
in defending any civil or criminal action, suit or proceeding shall be paid by
the Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the indemnified
person to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article
VIII. Such expenses incurred by other employees and agents may be so paid upon
such terms and conditions, if any, as the board of directors deems appropriate.
The indemnification and advancement of expenses provided by this
Article VIII shall not be deemed exclusive of any rights to which those seeking
indemnification or advancement of expenses may be entitled under any applicable
law, bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in their official capacities and as to action in
other capacities while holding such office.
Neither the amendment nor repeal of this Article VIII nor the adoption
of any provision of these Articles of Incorporation
-4-
inconsistent with this Article VIII shall eliminate or reduce the effect of
this Article VIII in respect of any matter occurring prior to such amendment,
repeal or adoption of an inconsistent provision or in respect of any cause of
action, suit or claim relating to any such matter which would have given rise
to a right of indemnification or right to receive expenses pursuant to this
Articles VIII if such provisions had not been so amended or repealed or if a
provision inconsistent therewith had not been so adopted.
EXECUTED this 12th day of November, 1996.
/s/ John Landers
-------------------------------
John Landers, Incorporator
EX 3.56
CERTIFICATE OF INCORPORATION
OF
UAG ATLANTA, INC.
FIRST: The name of the corporation is UAG Atlanta, Inc.
SECOND: The address of the corporation's registered office in
the State of Delaware is 1201 North Market Street, Post Office Box 1347, in the
City of Wilmington, County of New Castle. The name of the corporation's
registered agent at such address is Delaware Corporation Organizers, Inc.
THIRD: The purpose of the corporation is to engage in any
lawful act or activity for which corporations may be organized under the
Delaware General Corporation Law.
FOURTH: The total number of shares of stock which the
corporation is authorized to issue is one thousand (1,000) shares of common
stock, having a par value of one dollar ($1.00) per share.
FIFTH: The business and affairs of the corporation shall be
managed by or under the direction of the board of directors, and the directors
need not be elected by ballot unless required by the by-laws of the
corporation.
SIXTH: In furtherance and not in limitation of the powers
conferred by the laws of the State of Delaware, the board of directors is
expressly authorized to make, amend and repeal the by-laws.
SEVENTH: 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
a knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived
an improper personal benefit. If the Delaware General Corporation Law 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 Delaware General Corporation Law, as so amended. Any repeal or
modification of this provision shall not adversely affect any right or
protection of a director of the corporation existing at the time of such
repeal or modification.
EIGHTH: The corporation reserves the right to amend and
repeal any provision contained in this Certificate of Incorporation in the
manner from time to time prescribed by the laws of the State of Delaware. All
rights herein conferred are granted subject to this reservation.
NINTH: The incorporator is Karen A. Gimbutas, whose mailing
address is P.O. Box 1347, Wilmington, Delaware 19899.
-2-
I, THE UNDERSIGNED, being the incorporator, for the purpose
of forming a corporation under the laws of the State of Delaware do make, file
and record this Certificate of Incorporation and, accordingly, have hereto set
my hand this 17th day of November, 1995.
/s/ Karen A. Gimbutas
-----------------------------
Karen A. Gimbutas
-3-
Exhibit 3.57
BYLAWS
OF
UAG ATLANTA, INC.
TABLE OF CONTENTS
Page
----
ARTICLE I - SHAREHOLDERS....................................................................................... 1
Section 1. Annual Meetings.................................................................................. 1
Section 2. Special Meeting.................................................................................. 1
Section 3. Notice of Meetings; Waiver....................................................................... 1
Section 4. Quorum; Required Shareholder Vote; Adjournment................................................... 2
Section 5. Proxies ...................................................................................... 2
Section 6. Action of Shareholders Without Meeting........................................................... 2
Section 7. Record Date...................................................................................... 3
ARTICLE II - DIRECTORS......................................................................................... 4
Section 1. Power of Directors.............................................................................. 4
Section 2. Composition of the Board; Qualification;
Term of Office........................................................................ 4
Section 3. Vacancies ...................................................................................... 4
Section 4. Removal ...................................................................................... 4
Section 5. Meetings of the Board; Notice of Meetinqs;
Waiver of Notice...................................................................... 4
Section 6. Quorum; Vote Requirement; Adjournment........................................................... 5
Section 7. Action of Board or Committees Without Meeting................................................... 6
Section 8. Committees...................................................................................... 6
ARTICLE III - OFFICERS......................................................................................... 7
Section 1. Generally...................................................................................... 7
Section 2. President...................................................................................... 7
Section 3. Vice President................................................................................. 7
Section 4. Secretary...................................................................................... 7
Section 5. Treasurer...................................................................................... 7
Section 6. Removal of Officers............................................................................ 7
Section 7. Compensation................................................................................... 8
ARTICLE IV - CAPITAL STOCK..................................................................................... 8
Section 1. Form ...................................................................................... 8
Section 2. Transfer of Stock............................................................................... 8
Section 3. Rights of Holder................................................................................ 9
ARTICLE V - SIGNATURES AND SEAL................................................................................ 9
Section 1. Contracts and Deeds.............................................................................. 9
Section 2. Seal ...................................................................................... 9
ARTICLE VI - AMENDMENTS........................................................................................ 9
ARTICLE VII - INDEMNITY........................................................................................ 10
ARTICLE I.
SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of the shareholders
for the election of Directors and for the transaction of such other business
as may properly come before such annual meeting shall be held at such place,
either within or without the State of Delaware, on the fifth (5th) Wednesday
of each calendar year or on such other date within six (6) months after the
end of each fiscal year of the Corporation and at such time as the Board of
Directors may from time to time by resolution provide. The Board of Directors
may specify by resolution prior to any special meeting of shareholders held
within the year that such special meeting shall be in lieu of the annual
meeting.
Section 2. Special Meeting. Special meetings of the shareholders may
be called at any time by the Board of Directors, the President or upon written
request of the holders of at least twenty-five (25%) percent of all the votes
entitled to be cast on any issue proposed to be considered at the proposed
meeting. Such special meetings shall be held on such date and at such time and
place, either within or without the State of Delaware, as is determined by the
Board of Directors and stated in the call and notice of such meeting.
Section 3. Notice of Meetings; Waiver. Notice of any annual or
special meeting may be given by the President, the Secretary or by the person
or persons calling such meeting. Written notice of each annual or special
meeting of shareholders, stating the date, time and place of such meeting, and
the purpose of any special meeting,shall be mailed to each shareholder
entitled to vote at or to notice of such meeting at his or her address shown
on the books of the Corporation not less than ten (10) nor more than sixty
(60) days prior to such meeting unless such shareholder waives notice of such
meeting. Any shareholder may execute a waiver of notice, in person or by
proxy, either before or after any annual or special meeting, and shall be
deemed to have waived notice, and any and all objections to the adequacy of
such notice, if present at such meeting in person or by proxy unless the
shareholder provides written notice to the Corporation prior to the taking of
any action by the shareholders at such meeting that his or her attendance is
not deemed to be a waiver of the requirement that such notice be given or of
the adequacy of any notice that may have been given to such shareholder.
Neither the business transacted at, nor the purpose of, any annual or special
meeting need be stated in the waiver of notice of such meeting, except that,
with respect to a waiver of notice of an annual or special meeting at which a
plan of merger or consolidation, amendment of the Corporation's Articles of
Incorporation, sale of assets requiring shareholder approval or any other
action that would entitle shareholders to dissent under the Delaware General
Corporation Law is considered, information
as required by the Delaware General Corporation Law must be delivered to the
shareholder prior to his or her execution of the waiver of notice or the
waiver itself must conspicuously and specifically waive the right to such
information. No notice need be given of the date, time and place of
reconvening of any adjourned annual or special meeting, if the date, time and
place to which such meeting is adjourned are announced at the adjourned
meeting; provided, however, that if a new record date is fixed for the
adjourned meeting, notice of the adjourned meeting must be given to persons
who are shareholders as of the new record date.
Section 4. Quorum; Required Shareholder Vote; Adjournment. Shares
entitled to vote as a separate voting group may take action on a matter at an
annual or special meeting of shareholders only if a quorum of those shares
exists with respect to that matter. A majority of the votes entitled to be
cast on the matter by the voting group constitutes a quorum of that voting
group for action on that matter. Once a share is represented, at any annual or
special meeting, for any purpose other than solely to object to holding the
meeting or transacting business at the meeting, it shall be deemed present for
quorum purposes for the remainder of the meeting and for any adjournment of
that meeting unless a new record date is or must be set for that adjourned
meeting. If a quorum is present, action on a matter (other than the election
of directors) by a voting group is approved if the votes cast within the
voting group favoring the action exceed the votes cast opposing the action,
unless the Articles of Incorporation, these Bylaws or the Delaware General
Corporation Law requires a greater number of affirmative votes. The holders of
a majority of the voting shares represented at an annual or special meeting
may adjourn such meeting from time to time, whether or not a quorum is
present.
Section 5. Proxies. A shareholder may vote either in person or by a
proxy that he or she has duly executed in writing and delivered to the
Secretary or other officer or agent authorized to tabulate votes. No proxy
shall be valid after eleven (11) months from the date thereof unless a
longer period is expressly provided in the proxy.
Section 6. Action of Shareholders Without Meeting. Any action
required or permitted to be taken at a meeting of the shareholders may be
taken without a meeting if a written consent (which may take the form of one
or more counterpart copies), setting forth the action so taken, shall (i) be
signed by persons who would be entitled to vote at a meeting shares having
voting power to cast not less than the minimum number (or numbers, in the case
of voting by groups) of votes that would be necessary to authorize or take the
proposed action at a meeting at which all shareholders entitled to vote were
present and voted and (ii) delivered to the Corporation for inclusion in the
minutes or filing with the corporate records. No such consent shall be
effective unless each consenting shareholder shall have been
2
furnished the same material that, under the Delaware General Corporation Law,
would have been required to be sent to shareholders in a notice of a meeting
at which the proposed action would have been submitted to the shareholders for
action, including notice of any applicable dissenters, rights, or the written
consent contains an express waiver of the right to receive the material
otherwise required to be furnished.
Section 7. Record Date.
(a) For the purpose of determining shareholders entitled to notice of
or to vote at any meeting of shareholders, or shareholders entitled to demand
a special meeting of shareholders, or shareholders entitled to take any other
action, the Board may fix in advance (but not retroactively from the date the
Board takes such action) a date as the record date for any such determination
of shareholders, such date in any case to be not more than 70 days prior to
the meeting or action requiring such determination of shareholders. If no
record date is fixed for the determination of shareholders entitled to notice
of or to vote at a meeting of shareholders, the close of business on the last
business day before the first notice of such meeting is delivered to
shareholders shall be the record date. If no record date is fixed for
determining shareholders entitled to demand a special meeting, or to take
other action, the date of receipt of notice by the Corporation of demand for
such meeting, or the date on which such other action is to be taken by the
shareholders, shall be the record date for such purpose; provided, however,
that if no record date is fixed for determining shareholders entitled to take
action without a meeting, the date the first shareholder signs the consent
shall be the record date for such purpose.
(b) A separate record date may be established for each voting group
entitled to vote separately on a matter at a meeting.
(c) A determination of shareholders entitled to notice of or to vote
at a shareholders' meeting is effective for any adjournment of the meeting
unless the Board fixes a new record date, which it must do if the meeting is
adjourned to a date more than 120 days after the date fixed for the original
meeting.
(d) For the purpose of determining shareholders entitled to a
distribution by the Corporation (other than one involving a purchase,
redemption or other reacquisition of the Corporation's shares), the record
date shall be the date fixed for such purpose by the Board or, if the Board
does not fix such a date, the date on which the Board authorizes such
distribution.
3
ARTICLE II.
DIRECTORS
Section 1. Power of Directors. The Board of Directors shall manage
the business of the Corporation and may exercise all the powers of the
Corporation, subject to any restrictions imposed by law, by the Articles of
Incorporation, by these Bylaws, by any lawful agreement among the
shareholders or any amendments thereto.
Section 2. Composition of the Board; Qualification; Term of Office.
The Board of Directors of the Corporation shall consist of one or more
individuals, who are natural persons of the age of eighteen years or older,
the exact number to be fixed by resolution of the incorporator of the
Corporation, the shareholders or the Board of Directors. Directors shall be
elected by plurality vote of the shareholders at the annual meeting or at a
special meeting called for the purpose of electing directors.
Directors need not be residents of the State of Delaware or shareholders of
the Corporation. Each Director shall hold office for the term to which he or
she is elected and until his or her successor has been elected or appointed,
and has qualified, or until his or her earlier resignation, removal from
office, death or incapacity to serve.
Section 3. Vacancies. A vacancy occurring on the Board of Directors
by reason of the proper removal of a Director by the shareholders shall be
filled by the shareholders, or, if authorized by the shareholders, by the
remaining Directors. Any other vacancy occurring on the Board of Directors may
be filled by the affirmative vote of a majority of the remaining Directors
though less than a quorum of the Board of Directors, or by the sole remaining
Director, as the case may be, or, if the vacancy is not so filled, or if no
Director remains, by the shareholders; provided, however , that if a vacant
office was held by a Director elected by a voting group of shareholders, only
the holders of shares of that voting group or the remaining Directors elected
by that voting group shall be entitled to vote to fill that vacancy. A
Director elected to fill a vacancy shall serve for the unexpired term of his
or her predecessor in office.
Section 4. Removal. At any meeting of the shareholders called for
the purpose, the entire Board of Directors or any individual director may, by
the unanimous vote of the shares of the Corporation outstanding and entitled
to vote for election of directors, be removed from office, with or without
cause.
Section 5. Meetings of the Board; Notice of Meetinqs; Waiver of
Notice. A regular annual meeting of the Board shall be held, without other
notice than this Bylaw, immediately after, and at the same place as, the annual
meeting of shareholders.
4
The Board may provide, by resolution, the date, time and place within or
without the State of Delaware, for the holding of additional regular meetings
without other notice than such resolution.
Special meetings of the Board may be called by the President or the
presiding officer of the Board, if different from the President, on not less
than one (1) day's notice to each Director by mail, telegram, cablegram,
facsimile transmission or other form of wire or wireless communication, or
personal delivery or other form of communication authorized under the
circumstances by the Delaware General Corporation Law, and shall be called by
the President or the Secretary in like manner and on like notice on the
written request of any two or more members of the Board. Such notice shall
state the time, date and place of such meeting, but any Director may execute a
written waiver of notice signed by the Director and delivered to the
Corporation, either before or after any regular or special meeting of the
Board of Directors, and shall be deemed to have waived notice, and any and all
objections to the adequacy of such notice, if present at such meeting, unless
the Director at the beginning of the meeting (or promptly upon his or her
arrival) objects to holding the meeting or transacting business at the meeting
and does not thereafter vote for or assent to action taken at the meeting.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the Board of Directors need be stated in the notice or
waiver of notice of such meeting. Any regular or special meeting of the Board
of Directors may be held at any place within or without the State of Delaware.
Section 6. Quorum; Vote Requirement; Adjournment. A majority of the
fixed number of Directors shall constitute a quorum for the transaction of
business at any regular or special meeting of the Board of Directors. When a
quorum is present, the vote of a majority of the Directors present shall be
the act of the Board of Directors, unless a greater vote is required by law,
by the Articles of Incorporation or by these Bylaws. A Director who is present
at a meeting when corporate action is taken is deemed to have assented to the
action unless:
(a) He or she objects at the beginning of the meeting (or promptly
upon his arrival) to holding it or transacting business at the meeting;
(b) His or her dissent or abstention from the action taken is entered
in the minutes of the meeting; or
(c) He or she does not vote in favor of the action taken and delivers
written notice of his or her dissent or abstention to the presiding officer of
the meeting before its adjournment or to the Corporation immediately after
adjournment of the meeting.
A meeting of the Board of Directors may be adjourned by a majority of the
Directors present, whether or not a quorum
5
exists. Notice of the time, date and place of the adjourned meeting and of the
business to be transacted thereat, other than by announcement at the meeting
at which the adjournment is taken, shall not be required. At any adjourned
meeting at which a quorum is present, any business may be transacted that
could have been transacted at the meeting originally called.
Section 7. Action of Board or Committees Without Meeting. Any action
required or permitted to be taken at a meeting of the Board of Directors or
any committee thereof may be taken without a meeting if written consent (which
may be in counterparts), setting forth the action so taken, is signed by all
of the Directors or committee members and delivered to the Corporation for
inclusion in the minutes or filing with the corporate records.
Section 8. Committees.
(a) Except as otherwise provided by the Articles of Incorporation or
these Bylaws, the Board may create one or more committees and appoint members
of the Board to serve on them. Each committee may have one or more members,
who serve at the pleasure of the Board.
(b) The provisions of these Bylaws and of the Delaware General
Corporation Law that govern meetings, action without meetings, notice and
waiver of notice, and quorum and voting requirements of the Board, shall apply
as well to committees created under this Section 8 and their members.
(c) To the extent specified by the Articles of Incorporation, these
Bylaws and any resolution of the Board, each committee may exercise the
authority of the Board; provided, however, that a committee may not:
(i) Approve, or propose to shareholders for approval, action
required by the Delaware General Corporation Law to be approved by
shareholders;
(ii) Fill vacancies on the Board or on any of its
committees;
(iii) Exercise any authority that the Board may have to
amend the Articles of Incorporation;
(iv) Adopt, amend or repeal Bylaws; or
(v) Approve a plan of merger not requiring shareholder
approval.
6
ARTICLE III.
OFFICERS
Section 1. Generally. The officers of the Corporation shall consist
of a President, a Secretary, a Treasurer and such other officers or assistant
officers, including Vice Presidents and Assistant Secretaries, as may be
elected by the Board of Directors. The Board of Directors may designate the
order in which Vice Presidents may act. Each officer shall hold office for the
term for which he or she has been elected and until he or she is removed or
his or her successor has been elected and qualified. Any two or more offices
may be held by the same person.
Section 2. President. The President shall be the chief executive
officer of the Corporation and shall have responsibility for the general and
active management of the operations of the Corporation. He or she shall be
responsible for the administration of the Corporation, including general
supervision of the policies of the Corporation and general and active
management of the financial affairs of the Corporation.
Section 3. Vice President. If a Vice President is elected, in the
absence of the President or in the event of his or her inability or refusal to
act, the Vice President (or in the event there be more than one Vice
President, the Vice Presidents in the order designated, or in the absence of
any designation, then in the order of their election) shall perform the duties
of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President. The Vice President or Vice
Presidents, as the case may be, shall perform such other duties and have such
other powers as the President or the Board of Directors may from time to time
prescribe.
Section 4. Secretary. The Secretary shall keep the minutes of the
proceedings of the shareholders and of the Board of Directors, shall
authenticate records of the Corporation, shall have custody of and attest the
seal of the Corporation and shall perform such other duties and have such
other powers as the President or the Board of Directors may from time to time
prescribe.
Section 5. Treasurer. The Treasurer shall be responsible for the
maintenance of proper financial books and records of the Corporation and shall
perform such other duties and have such other powers as the President or the
Board of Directors may from time to time prescribe.
Section 6. Removal of Officers. Any officer may be removed at any
time by the Board of Directors, and such vacancy may be filled by the Board of
Directors. This provision shall not prevent the making of a contract of
employment for a definite term with any officer and shall have no effect upon
any cause of
7
action that any officer may have as a result of removal in breach of a contract
of employment.
Section 7. Compensation. The salaries of the officers shall be fixed
from time to time by the Board of Directors or by an officer to whom that
function has been delegated by the Board. No officer shall be prevented from
receiving such salary by reason of the fact that he or she is also a Director
of the Corporation.
ARTICLE IV.
CAPITAL STOCK
Section 1. Form. The interest of each shareholder shall be evidenced
by a certificate or certificates representing shares of stock of the
Corporation, which shall be in such form as the Board of Directors may from
time to time adopt and shall be issued in numerical order from the stock book
of the Corporation. Each certificate shall exhibit the holder's name, the
number of shares and class of shares and series, if any, represented thereby,
the name of the Corporation and a statement that the Corporation is organized
under the laws of the State of Delaware. Each certificate shall be signed,
either manually or in facsimile, by one or more officers of the Corporation
specified by resolution of the Board of Directors, but in the absence of such
specification, shall be valid if executed by the President or Vice President
and countersigned by the Secretary or any Assistant Secretary. Each stock
certificate may, but need not be, sealed with the seal of the Corporation. No
share certificate shall be issued until the consideration for the shares
represented thereby has been fully paid. If the certificate is signed in
facsimile, it must be countersigned, either manually or by facsimile, by a
transfer agent or registered by a registrar other than the Corporation itself
or an employee of the Corporation.
Section 2. Transfer of Stock. Shares of stock of the Corporation
shall be transferred on the books of the Corporation upon surrender to the
Corporation of the certificate or certificates representing the shares to be
transferred, accompanied by an assignment in writing of such shares properly
executed by the shareholder of record or his or her duly authorized
attorney-in-fact and with all taxes on the transfer having been paid. The
Corporation may refuse any requested transfer until furnished evidence
satisfactory to it that such transfer is proper. Upon the surrender of a
certificate for transfer of stock, such certificate shall at once be
conspicuously marked on its face "Cancelled" or "Void" and filed with the
permanent stock records of the Corporation. The Board of Directors may make
such additional rules concerning the issuance, transfer and registration of
stock and requirements regarding the establishment of lost, destroyed or
wrongfully taken stock certificates (including any requirement of an
8
indemnity bond prior to issuance of any replacement certificate) as it deems
appropriate.
Section 3. Rights of Holder. The Corporation shall be entitled to
treat the holder of record of any share of the Corporation as the person
entitled to vote such share (to the extent such share is entitled to vote), to
receive any distribution with respect to such share and for all other purposes
and accordingly shall not be bound to recognize any equitable or other claim
to or interest in such share on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
law.
ARTICLE V.
SIGNATURES AND SEAL
Section 1. Contracts and Deeds. All contracts, deeds and other
instruments shall be signed on behalf of the Corporation by the President or
by such other officer, officers, agent or agents as the Board of Directors may
from time to time by resolution provide.
Section 2. Seal. The seal of the Corporation shall be as follows:
If the seal is affixed to a document, the signature of the Secretary or an
Assistant Secretary shall attest the seal. The seal and its attestation may be
lithographed or otherwise printed on any document and shall have, to the
extent permitted by law, the same force and effect as if it had been affixed
and attested manually.
ARTICLE VI.
AMENDMENTS
The Board of Directors shall have the power to alter, amend or repeal
these Bylaws or adopt new Bylaws, unless the shareholders have adopted,
altered, amended or repealed a particular Bylaw provision and, in doing so,
have expressly reserved to the shareholders the right of amendment or repeal
thereof. The Corporation's shareholders have the right to alter, amend or
repeal these Bylaws, or to adopt new Bylaws, even though such provisions may
also be adopted, altered, amended or repealed by the Board.
9
ARTICLE VII.
INDEMNITY
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 (including any action by or
in the right of the Corporation) by reason of the fact that he or she 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 or officer of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, shall be indemnified by the Corporation against expenses
(including reasonable attorneys, fees), judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good
faith and in a manner he or she believed in good faith to be in or not opposed
to the best interests of the Corporation (and with respect to any criminal
action or proceeding, if he or she had no reasonable cause to believe his or
her conduct was unlawful), to the maximum extent permitted by, and in the
manner provided by, the Delaware General Corporation Law, as the same may be
hereafter amended.
10
CONSENT OF INCORPORATOR
OF
UAG ATLANTA, INC.
The undersigned, being the sole incorporator of UAG Atlanta, Inc., a
Delaware corporation, hereby adopts the following resolutions pursuant to
Section 108(c) of the Delaware General Corporation Law:
RESOLVED that the by-laws attached hereto shall be
the by-laws of the corporation.
RESOLVED that each of the following persons is
hereby elected to serve as a director of the corporation until
the first annual meeting of stockholders or until his or her
successor is elected and qualified and that they shall
constitute the initial Board of Directors of the corporation:
Carl Spielvogel
Ezra P. Mager
Arthur J. Rawl
George A. Lowrance
/s/ Karen A. Gimbutas
---------------------------------
Karen A. Gimbutas
December 4, 1995
EX 3.58
ARTICLES OF INCORPORATION
OF
ATLANTA TOYOTA, INC.
The undersigned, a natural person of the age of eighteen (18) years or
more, acting as incorporator of a corporation under the Texas Business
Corporation Act, does hereby adopt the following Articles of Incorporation for
such corporation.
ARTICLE ONE
The name of the corporation (hereinafter called the "Corporation") is
ATLANTA TOYOTA, INC.
ARTICLE TWO
The period of its duration is perpetual.
ARTICLE THREE
The purpose for which the Corporation is organized is the transaction
of any or all lawful business for which corporations may be incorporated under
the Texas Business Corporation Act.
ARTICLE FOUR
The enumeration herein of any specific powers shall not be held to
limit or restrict in any manner the exercise by the Corporation of the general
powers conferred upon corporations by the laws of the State of Texas.
ARTICLE FIVE
The aggregate number of shares that the Corporation shall have
authority to issue is ten thousand (10,000). All of such shares shall be of the
par value of ten cents ($.10) per share,
shall be of the same class, and shall be designated as "Common Stock."
ARTICLE SIX
No holder of any shares of any class of stock of the Corporation
shall, as such holder, have any preemptive or preferential right to receive,
purchase, or subscribe to (a) any unissued or treasury shares of any class of
stock (whether now or hereafter authorized) of the Corporation, (b) any
obligations, evidences of indebtedness, or other securities of the Corporation
convertible into or exchangeable for, or carrying or accompanied by any rights
to receive, purchase, or subscribe to, any such unissued or treasury shares,
(c) any right of subscription to or to receive, or any warrant or option for
the purchase of, any thereof, or (d) any other securities that may be issued or
sold by the Corporation, other than such (if any) as the Board of Directors of
the Corporation, in its sole and absolute discretion, may determine from time
to time.
ARTICLE SEVEN
Cumulative voting for the election of directors shall not be
permitted.
ARTICLE EIGHT
The Corporation will not commence business until it has received for
the issuance of its shares consideration of the value of One Thousand Dollars
($1,000), consisting of money, labor done, or property actually received.
-2-
ARTICLE NINE
The Corporation shall have the power to purchase, directly or
indirectly, its own shares to the extent of the aggregate of unrestricted
capital surplus available therefor and unrestricted reduction surplus available
therefor, without submitting such purchase to a vote of shareholders.
ARTICLE TEN
Notwithstanding any provisions of the Texas Business Corporation Act
now or hereafter in force requiring for the approval of any action the
affirmative vote of two-thirds, or any other percentage greater than a
majority, of the outstanding shares entitled by law to vote thereon or of the
outstanding shares of a class or series entitled by law to vote separately as a
class of series thereon, such action may, to the extent permitted by law, be
authorized and taken by the affirmative vote of the holders of a majority of
such outstanding shares, or such outstanding shares of a class or series, as
applicable. Except as provided in the preceding sentence or as otherwise
required by law, the vote of the holders of a majority of the shares entitled
to vote and represented in person or by proxy at any shareholders' meeting at
which a quorum is present shall be the act of the shareholders' meeting.
ARTICLE ELEVEN
The street address of the Corporation's initial registered office is
501 Carillon Tower East, 13601 Preston Road, LB 186,
-3-
Dallas Texas 75240, and the name of its initial registered agent as such
address is Carl Westcott.
ARTICLE TWELVE
The number of directors constituting the initial Board of Directors is
one (1), and the name and address of the person who is to serve as a director
until the first annual meeting of the shareholders or until his successor is
elected and qualified are as follows:
Name Address
---- -------
Carl Westcott 501 Carillon Tower East
13601 Preston Road, LB 186
Dallas, Texas 75240
ARTICLE THIRTEEN
The name and address of the incorporator are as follows:
Name Address
---- -------
Thomas D. Moore, Jr. First RepublicBank Center
3600 Tower II
Dallas, Texas 75201
IN WITNESS WHEREOF, I have hereunto set my hand this 4th day of April,
1988.
/s/ Thomas D. Moore, Jr.
------------------------
Thomas D. Moore, Jr.
STATE OF TEXAS ss.
ss.
COUNTY OF DALLAS ss.
I, KIM REEVES, a Notary Public, do hereby certify that on this 4th day
of April, 1988, personally appeared Thomas D. Moore, Jr., who being by me first
duly sworn, declared that he is the person who signed the foregoing document as
incorporator, and that the statements contained therein are true.
Notarial Seal: /s/ Kim Reeves
-------------------------
Notary Public in and for
the State of Texas
-4-
STATEMENT OF CHANGE OF REGISTERED OFFICE
OR REGISTERED AGENT OR BOTH BY A PROFIT
CORPORATION
1. The name of the corporation is ATLANTA TOYOTA, INC.
------------------------------------------
2. The address, including street and number, of its present registered
office as shown in the records of the Secretary of State of Texas before
filing this statement is
501 CARILLON TOWER EAST, 13601 PRESTON ROAD, DALLAS, TEXAS 75240
-------------------------------------------------------------------------
3. The address, including street and number, to which its registered office
is to be changed is
1303 MARSH LANE CARROLLTON, TEXAS 75006
-------------------------------------------------------------------------
(Give new address or state "no change")
4. The name of its present registered agent, as shown in the records of the
Secretary of State of the State of Texas, before filing this statement is
CARL WESTCOTT
-------------------------------------------------------------------------
5. The name of its new registered agent is
NO CHANGE
-------------------------------------------------------------------------
(Give new name or state "no change")
6. The address of its registered office and the address of the office of its
registered agent, as changed, will be identical.
7. Such change was authorized by: (Check One)
[ ] A. The Board of Directors.
[X] B. An officer of the corporation so authorized by the Board of
Directors.
/s/ C. WESTCOTT
-------------------------
An Authorized Officer
CARL WESTCOTT
OFFICE OF THE [STATE SEAL] CORPORATIONS SECTION
SECRETARY OF STATE P.O. BOX 13697
AUSTIN, TEXAS 78711-3697
STATEMENT OF CHANGE OF REGISTERED OFFICE OR
REGISTERED AGENT OR BOTH BY A CORPORATION,
LIMITED LIABILITY COMPANY OR LIMITED PARTNERSHIP
1. The name of the entity is Atlanta Toyota, Inc.
The entity's charter/certificate of authority/file number is 01073169-00
2. The registered office address as PRESENTLY shown in the records of the
Texas secretary of state is:
1303 Marsh Lane, Carrollton, TX 75006
3. A. ___ The address of the NEW registered office is: (Please provide
street address, city, state and zip code. The address must be in Texas.)
c/o C T CORPORATION SYSTEM 350 N. St. Paul St. Dallas TX 75201
OR B. ___ The registered office address will not change.
4. The name of the registered agent as PRESENTLY shown in the records of the
Texas secretary of state is
Carl Westcott
5. A. ___ The name of the NEW registered agent is C T CORPORATION SYSTEM.
OR B. ___ The registered agent will not change.
6. Following the changes shown above, the address of the registered office
and the address of the office of the registered agent will continue to be
identical, as required by law.
7. The changes shown above were authorized by: Business Corporations may
select A or B Limited Liability Companies may select D or E Non-Profit
Corporations may select A, B, or C Limited Partnerships select F
A. ___ The board of directors; OR
B. xx An officer of the corporation so authorized by the board of
directors; OR
C. ___ The members of the corporation in whom management of the
corporation is vested pursuant to article 2.14C of the Texas
Non-Profit Corporation Act.
D. ___ Its members
E. ___ Its managers
F. ___ The limited partnership
/s/ George
-----------------------------------
(Authorized Officer of Corporation)
(Authorized Member or Manager of LLC)
(General Partner of Limited Partnership)
EX-3.59
BYLAWS OF
ATLANTA TOYOTA, INC.
ss. ss. ss. ss. ss.
ARTICLE I
OFFICES
Section 1. Registered Office and Agency. The registered office of the
Corporation shall be 501 Carillon Tower East, 13601 Preston Road, Dallas,
Texas. The name of its registered agent at such address is Carl Westcott.
Section 2. Other Offices. The Corporation may have, in addition to its
registered office, offices and places of business at such places, both within
and without the State of Texas, as the Board of Directors may from time to time
determine or the business of the Corporation may require.
ARTICLE II
SHAREHOLDERS' MEETINGS
Section 1. Annual Meeting. An annual meeting of the shareholders shall
be held at such time as the Board of Directors may decide, at which they shall
elect a Board of Directors and transact such other business as may properly be
brought before the meeting.
Section 2. Special Meetings. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
Articles of Incorporation or by these Bylaws, may be called by the Chairman of
the Board, the President, the Board of Directors, or the holders of not less
than one-tenth in number of all the shares entitled to vote at the meetings.
Section 3. Place of Meetings. Meetings of shareholders shall be held
at such places, within or without the State of Texas, as may from time to time
be fixed by the Board of Directors or as shall be specified or fixed in the
respective notices or waivers of notice thereof.
Section 4. Voting List. The officer or agent having charge of the
stock transfer books for shares of the Corporation shall make, at least ten
days before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such meeting or any adjournment thereof arranged in
alphabetical order, with the address of and the number of shares held by each,
which list, for a period of ten days prior to such meeting, shall be kept on
file at the registered office of the Corporation and shall be subject to
inspection by any shareholder
at any time during usual business hours. Such list shall also be produced and
kept open at the time and place of the meeting and shall be subject to the
inspection of any shareholder during the whole time of the meeting.
Section 5. Notice of Meetings. Written or printed notice stating the
place, day, and hour of each meeting of the shareholders and, in case of a
special meeting, the purpose or purposes for which the meeting is called shall
be delivered not less than ten nor more than fifty days before the date of the
meeting, either personally or by mail, by or at the direction of the President,
the Secretary, or the body, officer, or person calling the meeting, to each
shareholder of record entitled to vote at the meeting. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mails
addressed to the shareholder at his address as it appears on the stock transfer
books of the Corporation, with postage thereon prepaid.
Section 6. Quorum of Shareholders. The holders of a majority of the
shares issued and outstanding and entitled to vote thereat, present in person
or represented by proxy, shall be requisite and shall constitute a quorum at
each meeting of shareholders for the transaction of business except as
otherwise provided by statute or by the Articles of Incorporation. If, however,
such quorum shall not be present or represented at any meeting of the
shareholders, the shareholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present or represented. At any such adjourned meeting at which a
quorum shall be present or represented, any business may be transacted that
might have been transacted at the meeting as originally notified. When a quorum
is present at any meeting, the vote of the holders of a majority of the shares
entitled to vote and present in person or represented by proxy shall be the act
of the shareholders' meeting, unless the vote of a greater number is required
by statute, the Articles of Incorporation, or these Bylaws, in which case the
vote of such greater number shall be requisite to constitute the act of the
meeting. The shareholders present or represented at a duly organized meeting
and entitled to vote thereat may continue to transact business until
adjournment, notwithstanding the withdrawal of enough shareholders to leave
less than a quorum.
Section 7. Voting of Shares. Each outstanding share, regardless of
class, shall be entitled to one vote on each matter submitted to a vote at a
meeting of shareholders, except as and to the extent otherwise provided by
statute or the Articles of Incorporation. At any meeting of the shareholders
every shareholder having the right to vote shall be entitled to vote either in
person or by proxy executed in writing by such shareholder or by his duly
authorized attorney-in-fact. No proxy shall be valid after eleven months from
the date of its execution unless otherwise provided in the proxy. Each proxy
shall be
-2-
revocable unless expressly provided therein to be irrevocable and unless
otherwise made irrevocable by law. Each proxy shall be filed with the Secretary
of the Corporation prior to or at the time of the meeting. Any vote may be
taken viva voce or by show of hands unless someone entitled to vote objects, in
which case written ballots shall be used.
Section 8. Action without Meeting. Any action required by statute to
be taken at a meeting of the shareholders, or any action that may be taken at a
meeting of the shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken, shall be signed by all of the
shareholders entitled to vote with respect to the subject matter thereof and
such consent shall have the same force and effect as a unanimous vote of the
shareholders. Any such signed consent, or a signed copy thereof, shall be
placed in the minute book of the Corporation.
Section 9. Telephone Meetings. Shareholders may participate in and
hold a meeting of shareholders by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
section shall constitute presence in person at such meeting, except where a
person participates in the meeting for the express purpose of objecting to the
transaction of any business on the grounds that the meeting is not lawfully
called or convened. ARTICLE III
BOARD OF DIRECTORS
Section 1. Management of the Corporation. The business and affairs of the
Corporation shall be managed by its Board of Directors, which may exercise all
such powers of the Corporation and do all such lawful acts and things as are
not by statute or by the Articles of Incorporation or by these Bylaws directed
or required to be exercised or done by the shareholders.
Section 2. Number and Qualifications. The Board of Directors shall consist
of one or more directors. The number of directors shall be fixed from time to
time by resolution of the Board of Directors. The number of directors may be
increased or decreased from time to time by the Board of Directors, except that
no decrease shall have the effect of shortening the term of any incumbent
director. Any directorship to be filled by reason of any increase in the number
of directors may be filled by election at any annual meeting or at a special
meeting of shareholders called for that purpose or may be filled by the Board
of Directors for a term of office continuing only until the next election of
one or more directors by the shareholders; provided that the Board of Directors
may not fill more than two such directorships during the period between any two
successive annual meetings of shareholders. None of the directors need be
-3-
shareholders of the Corporation or residents of the State of Texas.
Section 3. Election and Term of Office. At each annual meeting of
shareholders the shareholders shall elect directors to hold office until the
next succeeding annual meeting. At each election, the persons receiving the
greatest number of votes shall be the directors. Each director elected shall
hold office for the term for which he is elected and until his successor shall
have been elected and shall have qualified or until his earlier death,
resignation, retirement, disqualification, or removal.
Section 4. Removal. Any director may be removed either for or without
cause at any special or annual meeting of shareholders, by the affirmative vote
of a majority in number of shares of the shareholders present in person or by
proxy at such meeting and entitled to vote for the election of such director if
notice of intention to act upon such matter shall have been given in the notice
calling such meeting.
Section 5. Vacancies. Any vacancy occurring in the Board of Directors
may be filled by election at an annual or special meeting of shareholders
called for that purpose or by an affirmative vote of a majority of the
remaining directors though less than a quorum of the board of directors. A
director elected to fill a vacancy shall be elected for the unexpired term of
his predecessor in office.
Section 6. Place of Meetings. Meetings of the Board of Directors,
annual, regular, or special, may be held either within or without the State of
Texas.
Section 7. Annual Meetings. The first meeting of each newly elected
Board shall be held for the purpose of organization and the transaction of any
other business without notice immediately following the annual meeting of
shareholders, and at the same place, unless by unanimous consent of the
directors then elected and serving such time or place shall be changed.
Section 8. Regular Meetings. Regular meetings of the Board of
Directors, of which no notice shall be necessary, shall be held at such times
and places as may be fixed from time to time by resolution adopted by the Board
and communicated to all directors. Except as otherwise provided by statute, the
Articles of Incorporation, or these Bylaws, any and all business may be
transacted at any regular meeting.
Section 9. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the President, or the
Secretary on twenty-four hours' notice to each director, either personally or
by mail or by telegram. Except as may be otherwise expressly provided by
statute, the Articles of Incorporation, or these Bylaws, neither the business
-4-
to be transacted at, nor the purpose of, any meeting of the Board of Directors
need be specified in the notice or waiver of notice of such meeting.
Section 10. Quorum and Manner of Acting. At all meetings of the Board
of Directors the presence of a majority of the number of directors fixed by
these Bylaws shall be necessary and sufficient to constitute a quorum for the
transaction of business except as otherwise provided by statute, the Articles
of Incorporation, or these Bylaws. The act of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors unless the act of a greater number is required by statute, the
Articles of Incorporation, or these Bylaws, in which case the act of such
greater number shall be requisite to constitute the act of the Board. If a
quorum shall not be present at any meeting of directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present. At any such
adjourned meeting any business may be transacted that might have been
transacted at the meeting as originally convened.
Section 11. Action without a Meeting. Any action required or permitted
to be taken at a meeting of the Board of Directors may be taken without a
meeting if a consent in writing, setting forth the action so taken, is signed
by all members of the Board of Directors, and such consent shall have the same
force and effect as a unanimous vote at a meeting. Any such signed consent, or
a signed copy thereof, shall be placed in the minute book of the Corporation.
Section 12. Directors' Compensation. The Board of Directors shall have
authority to determine, from time to time, the amount of compensation, if any,
that shall be paid to its members for their services as directors. The Board
also shall have power in its discretion to provide for and to pay to directors
rendering services to the Corporation not ordinarily rendered by directors as
such special compensation appropriate to the value of such services as
determined by the Board from time to time. Nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
Section 13. Procedure. The Board of Directors shall keep regular
minutes of its proceedings. The minutes shall be placed in the minute book of
the Corporation.
ARTICLE IV
NOTICES
Section 1. Manner of Giving Notice. Whenever, as provided by statute,
the Articles of Incorporation, or these Bylaws, notice is required to be given
to any director or
-5-
shareholder and no provision is made as to how such notice shall be given, it
shall not be construed to mean personal notice, but any such notice may be
given in writing by mail, postage prepaid, addressed to such director or
shareholder at his address as it appears on the records or (in the case of a
shareholder) the stock transfer books of the Corporation. Any notice required
or permitted to be given by mail shall be deemed to be delivered at the time
when the same shall be deposited in the United States mails as aforesaid.
Section 2. Waiver of Notice. Whenever any notice is required to be
given to any shareholder or director of the Corporation as provided by statute,
the Articles of Incorporation, or these Bylaws, a waiver thereof in writing
signed by the person or persons entitled to such notice, whether before or
after the time stated therein, shall be deemed equivalent to giving of such
notice.
ARTICLE V
EXECUTIVE COMMITTEE
Section 1. Constitution and Powers. The Board of Directors, by
resolution adopted by affirmative vote of a majority of the entire board, may
designate two or more directors to constitute an Executive Committee, which
Executive Committee shall have and may exercise, when the Board is not in
session, all of the authority and powers of the Board of Directors in the
business and affairs of the Corporation, even though such authority and powers
be herein provided or directed to be exercised by a designated officer of the
Corporation; provided that the foregoing shall not be construed as authorizing
action by the Executive Committee with respect to any action that by statute,
the Articles of Incorporation, or these Bylaws is required to be taken by vote
of a specified proportion of the number of directors fixed by these Bylaws, or
any other action required or specified by the Texas Business Corporation Act or
other applicable law or by these Bylaws or by the Articles of Incorporation to
be taken by the Board of Directors, as such. So far as practicable, members of
the Executive Committee shall be appointed by the Board of Directors at its
first meeting after each annual meeting of shareholders and, unless sooner
discharged by affirmative vote of a majority of the entire Board, shall hold
office until their respective successors are appointed and qualify or until
their earlier respective removals, deaths, resignations, retirements, or
disqualifications.
Section 2. Meetings. Regular meetings of the Executive Committee, of
which no notice shall be necessary, shall be held at such times and places as
may be fixed from time to time by resolution adopted by affirmative vote of a
majority of the whole Committee and communicated to all of the members thereof.
Special meetings of the Executive Committee may be called by the Chairman of
the Board, the President, or any member thereof at
-6-
any time on twenty-four hours' notice to each member, either personally or by
mail or telegram. Except as may be otherwise expressly provided by statute, the
Articles of Incorporation, or these Bylaws, neither the business to be
transacted at, nor the purpose of, any meeting of the Executive Committee need
be specified in the notice or waiver of notice of such meeting. A majority of
the Executive Committee shall constitute a quorum for the transaction of
business, and the act of a majority of those present at any meeting at which a
quorum is present shall be the act of the Executive Committee.
Section 3. Records. The Executive Committee shall keep a record of its
acts and proceedings and shall report the same, from time to time, to the Board
of Directors. The Secretary of the Corporation, or, in his absence, an
Assistant Secretary, shall act as secretary of the Executive Committee or the
Committee may, in its discretion, appoint its own secretary.
Section 4. Vacancies. Any vacancy in the Executive Committee may be
filled by affirmative vote of a majority of the entire Board.
ARTICLE VI
OTHER COMMITTEES OF THE BOARD
Section 1. Other Committees. The Board of Directors may, by resolution
adopted by affirmative vote of a majority of the entire Board, designate two or
more directors to constitute another committee or committees for any purpose;
provided, that any such other committee or committees shall have and may
exercise only the power of recommending action to the Board of Directors and
the Executive Committee and of carrying out and implementing any instructions
or any policies, plans, and programs theretofore approved, authorized, and
adopted by the Board of Directors or the Executive Committee.
ARTICLE VII
OFFICERS, EMPLOYEES, AND AGENTS: POWERS AND DUTIES
Section 1. Elected Officers. The elected officers of the Corporation
shall be a Chairman of the Board (if the Board of Directors shall determine the
election of such officer to be appropriate), a President, one or more Vice
Presidents as may be determined from time to time by the Board (and, in the
case of each such Vice President, with such descriptive title, if any, as the
Board of Directors shall deem appropriate), a Secretary, and a Treasurer. The
Chairman of the Board, if any, shall be a member of the Board of Directors. No
other elected officer of the Corporation need be a member of the Board of
Directors.
-7-
Section 2. Election. So far as is practicable, all elected officers
shall be elected by the Board of Directors at its first meeting after each
annual meeting of shareholders.
Section 3. Appointive Officers. The Board of Directors may also
appoint one or more Assistant Secretaries and Assistant Treasurers and such
other officers and assistant officers and agents (none of whom need be a member
of the Board) as it shall from time to time deem necessary, who will exercise
such powers and perform such duties as shall be set forth in these Bylaws or
determined from time to time by the Board of Directors or the Executive
Committee.
Section 4. Two or More Offices. Any two or more offices may be held by
the same person.
Section 5. Compensation. The compensation of all officers of the
Corporation shall be fixed from time to time by the Board of Directors or the
Executive Committee. The Board of Directors or the Executive Committee may from
time to time delegate to the President the authority to fix the compensation of
any or all of the other officers of the Corporation.
Section 6. Term of Office; Removal; Filling of Vacancies. Each elected
officer of the Corporation shall hold office until his successor is chosen and
qualified in his stead or until his earlier death, resignation, retirement,
disqualification, or removal from office. Each appointive officer shall hold
office at the pleasure of the Board of Directors without the necessity of
periodic reappointment. Any officer or agent elected or appointed by the Board
of Directors may be removed at any time by the Board of Directors whenever in
its judgment the best interests of the Corporation will be served thereby, but
such removal shall be without prejudice to the contract rights, if any, of the
person so removed. Election or appointment of an officer or agent will not of
itself create contract rights. If the office of any officer becomes vacant for
any reason, the vacancy may be filled by the Board of Directors.
Section 7. Chairman of the Board. The Chairman of the Board, if a
person is elected to such office by the Board of Directors, shall be the chief
executive officer of the Corporation and shall preside when present at all
meetings of the shareholders and of the Board of Directors. He shall have
general authority to execute bonds, deeds, and contracts in the name of the
Corporation and to affix the corporate seal thereto; to sign stock
certificates; to cause the employment or appointment of such employees and
agents of the Corporation as the proper conduct of operations may require and
to fix their compensation, subject to the provisions of these Bylaws; to remove
or suspend any employee or agent who shall have been employed or
-8-
appointed under his authority or under authority of an officer subordinate to
him; to suspend for cause, pending final action by the authority that shall
have elected or appointed him, any officer subordinate to the Chairman of the
Board; and in general to exercise all the powers usually appertaining to the
office of the chief executive officer of a corporation, except as otherwise
provided by statute, the Articles of Incorporation, or these Bylaws. He shall
advise, counsel, and direct the President and other officers of the Corporation
and shall exercise such powers and perform such duties as shall be assigned to
or required of him from time to time by the Board of Directors or the Executive
Committee.
Section 8. President. The President shall be the chief operating
officer of the Corporation and, subject to the provisions of these Bylaws,
shall have general and active control of the day to day affairs of the
Corporation. If the Board of Directors has not elected a person to the office
of Chairman of the Board, the President shall also be the chief executive
officer of the Corporation and exercise all of the powers and discharge all of
the duties of the Chairman of the Board. As between the Corporation and third
parties, any action taken by the President in the performance of the duties of
the Chairman of the Board shall be conclusive evidence that there is no
Chairman of the Board. In the absence of the Chairman of the Board, or if such
officer shall not have been elected or be serving, the President shall preside
when present at meetings of the shareholders and the Board of Directors. In the
absence or disability of the President, his duties shall be performed and his
powers may be exercised by the Vice Presidents in order of their seniority,
unless otherwise determined by the Chairman of the Board, the President, the
Board of Directors, or the Executive Committee.
Section 9. Vice Presidents. Each Vice President shall have such titles
as may be prescribed by the Board of Directors, and shall generally assist the
President and shall have such powers and perform such duties and services as
shall from time to time be prescribed or delegated to him by the President, the
Board of Directors, or the Executive Committee.
Section 10. Treasurer. The Treasurer shall have the care and custody
of all monies, funds, and securities of the Corporation; shall deposit or cause
to be deposited all such funds in and with such depositories as the Board of
Directors or the Executive Committee shall from time to time direct or as shall
be selected in accordance with procedure established by the Board or the
Executive Committee; shall advise upon all terms of credit granted by the
Corporation; and shall be responsible for the collection of all its accounts
and shall cause to be kept full and accurate accounts of all receipts and
disbursements of the Corporation. He shall have the power to endorse for
deposit or collection or otherwise all checks, drafts, notes, bills of
exchange, or other commercial papers payable to the Corporation and to give
proper receipts or discharges for all payments to the Corporation. The
Treasurer shall generally perform all the duties usually appertaining to the
office of treasurer of a
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corporation. In the absence or disability of the Treasurer his duties shall be
performed and his powers may be exercised by the Assistant Treasurers in the
order of their seniority, unless otherwise determined by the Treasurer, the
Chairman of the Board, the President, the Board of Directors, or the Executive
Committee. If required by the Board of Directors, he shall give the Corporation
a bond in such form, in such sum, and with such surety or sureties as shall be
satisfactory to the Board for the faithful performance of the duties of his
office.
Section 11. Assistant Treasurers. Each Assistant Treasurer shall
generally assist the Treasurer and shall have such powers and perform such
duties and services as shall from time to time be prescribed or delegated to
him by the Treasurer, the Chairman of the Board, the President, the Board of
Directors, or the Executive Committee.
Section 12. Secretary. The Secretary shall see that notice is given of
all meetings of the shareholders and special meetings of the Board of Directors
and shall keep and attest true records of all proceedings at all meetings of
the shareholders and the Board. He shall have charge of the corporate seal and
have authority to attest any and all instruments or writings to which the same
may be affixed. He shall keep and account for all books, documents, papers, and
records of the Corporation except those for which some other officer or agent
is properly accountable. He shall have authority to sign stock certificates and
shall generally perform all the duties usually appertaining to the office of
secretary of a corporation. In the absence or disability of the Secretary, his
duties shall be performed and his powers may be exercised by the Assistant
Secretaries in the order of their seniority, unless otherwise determined by the
Secretary, the Chairman of the Board, the President, the Board of Directors, or
the Executive Committee.
Section 13. Assistant Secretaries. Each Assistant Secretary shall
generally assist the Secretary and shall have such powers and perform such
duties and services as shall from time to time be prescribed or delegated to
him by the Secretary, the Chairman of the Board, the President, the Board of
Directors, or the Executive Committee.
Section 14. Additional Powers and Duties. In addition to the foregoing
especially enumerated duties, services, and powers, the several elected and
appointive officers of the Corporation shall perform such other duties and
services and exercise such further powers as may be provided by statute, the
Articles of Incorporation, or these Bylaws or as the Board of Directors or the
Executive Committee may from time to time determine or as may be assigned to
them by any competent superior officer.
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ARTICLE VIII
STOCK AND TRANSFER OF STOCK
Section 1. Certificates Representing Shares. Certificates in such form
as may be determined by the Board of Directors and as shall conform to the
requirements of the statutes, the Articles of Incorporation, and these Bylaws
shall be delivered representing all shares to which shareholders are entitled.
Such certificates shall be consecutively numbered and shall be entered in the
books of the Corporation as they are issued. Each certificate shall state on
the face thereof that the Corporation is organized under the laws of Texas, the
holder's name, the number and class of shares that such certificate represents,
the par value of such shares or a statement that such shares are without par
value, and such other matters as may be required by law. Each certificate shall
be signed by the President or a Vice President and the Secretary or an
Assistant Secretary and may be sealed with the seal of the Corporation or a
facsimile thereof. If any certificate is countersigned by a transfer agent or
registered by a registrar, either of which is other than the Corporation or an
employee of the Corporation, the signature of any such officer may be
facsimile.
Section 2. Lost Certificates. The Board of Directors, the Executive
Committee, the President, or such other officer or officers of the Corporation
as the Board of Directors may from time to time designate, in its or his
discretion, may direct a new certificate or certificates representing shares to
be issued in place of any certificate or certificates theretofore issued by the
Corporation alleged to have been lost, stolen, or destroyed upon the making of
an affidavit of that fact by the person claiming the certificate or
certificates to be lost, stolen, or destroyed. When authorizing such issue of a
new certificate or certificates, the Board of Directors, the Executive
Committee, the President, or such other officer or officers, in its or his or
their discretion and as a condition precedent to the issuance thereof, may
require the owner of such lost, stolen, or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it or he shall require and/or give the Corporation a bond in such form, in
such sum, and with such surety or sureties as it or he may direct as indemnity
against any claim that may be made against the Corporation with respect to the
certificate or certificates alleged to have been lost, stolen, or destroyed.
Section 3. Transfers of Shares. Shares of stock shall be transferable
only on the books of the Corporation by the holder thereof in person or by his
duly authorized attorney. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate representing shares, duly endorsed or
accompanied by proper evidence of succession, assignment, or authority to
transfer, with all required stock transfer tax stamps affixed thereto and
cancelled or accompanied by sufficient
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funds to pay such taxes, it shall be the duty of the Corporation or the
transfer agent of the Corporation to issue a new certificate to the person
entitled thereto, cancel the old certificate, and record the transaction upon
its books.
Section 4. Registered Shareholders. The Corporation shall be entitled
to treat the holder of record of any share or shares of stock as the holder in
fact thereof and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
Section 5. Preemptive Rights. No shareholder or other person shall
have any preemptive rights whatsoever.
ARTICLE IX
MISCELLANEOUS
Section 1. Dividends. Dividends upon the outstanding shares of the
Corporation, except as provided by statute and the Articles of Incorporation,
may be declared by the Board of Directors at any annual, regular, or special
meeting. Dividends may be declared and paid in cash, in property, or in shares
of the Corporation, or in any combination thereof. The declaration and payment
shall be at the discretion of the Board of Directors.
Section 2. Reserves. There may be created from time to time by
resolution of the Board of Directors, out of the earned surplus of the
Corporation, such reserve or reserves as the directors in their discretion
think proper to provide for contingencies, or to equalize dividends, or to
repair or maintain any property of the Corporation, or for such other purpose
as the directors shall think beneficial to the Corporation, and the directors
may modify or abolish any such reserve in the manner in which it was created.
Section 3. Signature of Negotiable Instruments. All bills, notes,
checks, or other instruments for the payment of money shall be signed or
countersigned by such officer, officers, agent, or agents and in such manner as
are permitted by these Bylaws or in such manner as, from time to time, may be
prescribed by resolution (whether general or special) of the Board of Directors
or the Executive Committee.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be
determined by the Board of Directors from time to time.
Section 5. Seal. The Corporation's seal shall be in such form as shall
be adopted and approved from time to time by the Board of Directors. The seal
may be used by causing it, or a
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facsimile thereof, to be impressed, affixed, imprinted, or in any manner
reproduced.
Section 6. Closing of Transfer Books and Fixing Record Date. For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or entitled to receive
payment of any dividend, or in order to make a determination of shareholders
for any other proper purpose, the Board of Directors may provide that the stock
transfer books of the Corporation shall be closed for a stated period but not
to exceed, in any case, fifty days. If the stock transfer books shall be closed
for the purpose of determining shareholders entitled to notice of or to vote at
a meeting of shareholders, such books shall be closed at least ten days
immediately preceding such meeting. In lieu of closing the stock transfer
books, the Board of Directors may fix in advance a date as the record date for
any such determination of shareholders, such date in any case to be not more
than fifty days and, in case of a meeting of shareholders, not less than ten
days prior to the date on which the particular action requiring such
determination of shareholders is to be taken. If the stock transfer books are
not closed and no record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, or shareholders
entitled to receive payment of a dividend, the date on which notice of the
meeting is mailed or the date on which the resolution of the Board of Directors
declaring such dividend is adopted, as the case may be, shall be the record
date for such determination of shareholders. When a determination of
shareholders entitled to vote at any meeting has been made as provided in this
section, such determination shall apply to any adjournment thereof except where
the determination has been made through the closing of stock transfer books and
the stated period of closing has expired.
Section 7. Surety Bonds. Such officers and agents of the Corporation
(if any) as the Chairman of the Board or the Board of Directors may direct,
from time to time, shall be bonded for the faithful performance of their duties
and for the restoration to the Corporation, in case of their death,
resignation, retirement, disqualification, or removal from office, of all
books, papers, vouchers, money, and other property of whatever kind in their
possession or under their control belonging to the Corporation, in such amounts
and by such surety companies as the Chairman of the Board, the Board of
Directors, or the Executive Committee may determine. The premiums on such bonds
shall be paid by the Corporation, and the bonds so furnished shall be in the
custody of the Secretary.
ARTICLE X
AMENDMENTS
Section 1. These Bylaws may be altered, amended, or repealed or new
Bylaws may be adopted at any meeting of the Board
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of Directors at which a quorum is present, provided notice of the proposed
alteration, amendment, or repeal or adoption be contained in the notice of such
meeting.
I, Charlotte Earls, hereby certify that I am the duly elected and
qualified Assistant Secretary of Atlanta Toyota, Inc., and that the foregoing
is a true and correct copy of the Bylaws of Atlanta Toyota, Inc., adopted at
the organizational meeting of the Board of Directors of the Corporation as of
the 6th day of April, 1988.
IN WITNESS WHEREOF, I have hereunto affixed my name as Assistant
Secretary on this 25th day of April, 1988.
/s/ Charlotte Earls
---------------------------------
Charlotte Earls, Assistant
Secretary
EX 3.60
CERTIFICATE OF INCORPORATION
OF
UAG ATLANTA II, INC.
FIRST: The name of the corporation is UAG Atlanta II, Inc.
SECOND: The address of the corporation's registered office in the
State of Delaware is 1201 North Market Street, Post Office Box 1347, in the
City of Wilmington, County of New Castle. The name of the corporation's
registered agent at such address is Delaware Corporation Organizers, Inc.
THIRD: The purpose of the corporation is to engage in any lawful act
or activity for which corporations may be organized under the Delaware General
Corporation Law.
FOURTH: The total number of shares of stock which the corporation is
authorized to issue is one thousand (1,000) shares of common stock, having a
par value of one dollar ($1.00) per share.
FIFTH: The business and affairs of the corporation shall be managed by
or under the direction of the board of directors, and the directors need not be
elected by ballot unless required by the by-laws of the corporation.
SIXTH: In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware, the board of directors is expressly
authorized to make, amend and repeal the by-laws.
SEVENTH: 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
a knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit. If the Delaware General Corporation Law 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 Delaware
General Corporation Law, as so amended. Any repeal or modification of this
provision shall not adversely affect any right or protection of a director of
the corporation existing at the time of such repeal or modification.
EIGHTH: The corporation reserves the right to amend and repeal any
provision contained in this Certificate of Incorporation in the manner from
time to time prescribed by the laws of the State of Delaware. All rights herein
conferred are granted subject to this reservation.
NINTH: The incorporator is Siobain M. Perkins, whose mailing address
is P.O. Box 1347, Wilmington, Delaware 19899.
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I, THE UNDERSIGNED, being the incorporator, for the purpose of forming
a corporation under the laws of the State of Delaware, do make, file and record
this Certificate of Incorporation and, accordingly, have hereto set my hand
this 13th day of February, 1996.
/s/ Siobain M. Perkins
-----------------------------------
Siobain M. Perkins
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EX 3.62
ARTICLES OF INCORPORATION
I.
The name of the Corporation is:
Steve Rayman Nissan, Inc.
II.
The Corporation shall have authority to issue not more than 1,000
shares of common stock of $.10 par value per share. The Corporation may
purchase its own shares of capital stock as provided by law. The Board of
Directors may from time to time distribute to shareholders its assets, in cash
or in property, as permitted by applicable law.
III.
The initial registered office of the Corporation shall be at 1600
Atlanta Financial Center, 3343 Peachtree Road, N.E., Atlanta, Fulton County,
Georgia 30326. The initial registered agent of the Corporation shall be Bruce
A. Wobeck.
IV.
The name and address of the incorporator is:
Bruce A. Wobeck
MORRIS, MANNING & MARTIN
1600 Atlanta Financial Center
3343 Peachtree Road, N.E.
Atlanta, Georgia 30326
V.
The mailing address of the initial principal office of the Corporation
is:
6889 Jonesboro Road
Morrow, Georgia 30260
VI.
The Corporation shall have perpetual duration.
VII.
The Corporation is organized for the purpose of engaging in any and
all lawful businesses not specifically prohibited to corporations for profit
under the laws of the State of Georgia, and the Corporation shall have all
powers necessary to conduct any such businesses and all other powers enumerated
in the Georgia Business Corporation Code or under any act amendatory thereof,
supplemental thereto or substituted therefor.
VIII.
No director of the Corporation shall have personal liability
to the Corporation or to its shareholders for monetary damages for breach of
fiduciary duty of care or other duty as a director, except that this Article
VIII shall not eliminate or limit the liability of a director: (i) for any
appropriation, in violation of his duties, of any business opportunity of the
Corporation; (ii) for acts or omissions which involve intentional misconduct or
a knowing violation of law; (iii) for the types of liability set forth in
Section 14-2-832 of the Georgia Business Corporation Code; or (iv) for any
transaction from which the director received an improper personal benefit. This
Article VIII shall not eliminate or limit the liability of a director for any
act or omission occurring prior to the date when Section 14-2-202(b)(4) of the
Georgia Business Corporation Code became effective. Neither the amendment nor
repeal of this Article VIII, nor the adoption of any provision of the Articles
of
-2-
Incorporation of the Corporation inconsistent with this Article VIII, shall
eliminate or reduce the effect of this Article VIII in respect of any act or
failure to act, or any cause of action, suit or claim that, but for this
Article VIII, would accrue or arise prior to any amendment, repeal or adoption
of such an inconsistent provision. If the Georgia Business Corporation Code is
subsequently amended to provide for further limitations on the personal
liability of directors of corporations for breach of duty of care or other duty
as a director, then the personal liability of the directors of the Corporation
shall be so further limited to the greatest extent permitted by the Georgia
Business Corporation Code.
IX.
None of the holders of any stock of the Corporation of any kind, class
or series now or hereafter authorized shall have preemptive rights with respect
to any shares of capital stock of the Corporation of any kind, class or series
now or hereafter authorized.
X.
Any action required or permitted to be taken at a shareholders'
meeting may be taken without a meeting if the action is taken by all of the
shareholders entitled to vote on the action, or by persons who would be
entitled to vote at a meeting those shares having power to cast not less than
the minimum number (or numbers, in the case of voting by groups) of votes that
would be necessary to authorize or take such actions at a meeting at which all
shares entitled to vote were present
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and voted. The action must be evidenced by one or more written consents
describing the action taken, signed by shareholders entitled to take action
without a meeting and delivered to the corporation for inclusion in the minutes
or filing with the corporate records.
XI.
The initial Board of Directors shall consist of two (2) members who
shall be as follows:
Steve Rayman
Richard W. Keffer, Jr.
IN WITNESS WHEREOF, the undersigned has executed these Articles of
Incorporation.
/s/ Bruce A. Wobeck
------------------------------
Incorporator
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ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
STEVE RAYMAN OF NISSAN, INC.
I
The name of the Corporation is STEVE RAYMAN NISSAN, INC.
II
Effective as of the date hereof, Article I of the Articles of
Incorporation of the Corporation is amended to read as follows:
"The name of the Corporation is UNITED NISSAN, INC."
III
All other provisions of the Articles of Incorporation shall remain in
full force and effect.
IV
These Articles of Amendment to the Corporation's Articles of
Incorporation were duly approved by the Corporation's Board of Directors in
accordance with the provisions of Section 14-2-1002 of the Georgia Business
Corporation Code, and no shareholder action was required with respect thereto.
IN WITNESS WHEREOF, the Corporation has caused these Articles of
Amendment to be executed, adopted and attested by its duly authorized officers
as of the 1st day of May, 1996.
STEVE RAYMAN NISSAN, INC.
By: /s/ George Lowrance
------------------------------
Vice President and Secretary
ARTICLES OF AMENDMENT
1.
The name of the corporation is:
Steve Rayman Nissan, Inc.
2.
Article II of the Articles of Incorporation of the corporation shall
be amended to be and read as follows:
"ARTICLE II
The Corporation shall have authority to issue not more than
10,000 shares of common stock of $100.00 par value per share. The
Corporation may purchase its own shares of capital stock as provided
by law. The Board of Directors may from time to time distribute to
shareholders its assets, in cash or in property, as permitted by
applicable law."
3.
The amendment was duly adopted on March 19, 1993 by the Incorporator
prior to the issuance of shares of stock. Shareholder action was not required.
IN WITNESS WHEREOF, the undersigned Incorporator has executed these
Articles of Amendment on the 19th day of March, 1993.
By: /s/ Bruce A. Wobeck
---------------------------
Bruce A. Wobeck
Incorporator
EX-3.63
B Y L A W S
O F
S T E V E R A Y M A N N I S S A N, I N C.
TABLE OF CONTENTS
ARTICLE I
OFFICES
Section 1. Registered Office.....................................................................................1
Section 2. Other Offices .......................................................................................1
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meeting......................................................................................1
Section 2. Time of Meeting.......................................................................................1
Section 3. Special Meetings......................................................................................1
Section 4. Notice of Meetings....................................................................................2
Section 5. Waiver of Notice......................................................................................2
Section 6. Voting Group .......................................................................................2
Section 7. Quorum .......................................................................................3
Section 8. Voting .......................................................................................3
Section 9. Action of Shareholders Without a Meeting..............................................................3
Section 10. Removal of Directors..................................................................................4
Section 11. Record Date .......................................................................................4
ARTICLE III
BOARD OF DIRECTORS
Section 1. General Powers .......................................................................................4
Section 2. Number and Election...................................................................................5
Section 3. Term of Office .......................................................................................5
Section 4. Vacancy .......................................................................................5
Section 5. Meetings of the Board of Directors....................................................................5
Section 6. Notice of Meetings....................................................................................5
Section 7. Waiver of Notice......................................................................................6
Section 8. Place of Meetings.....................................................................................6
Section 9. Participation by Communication........................................................................6
Section 10. Quorum .......................................................................................6
Section 11. Voting .......................................................................................6
Section 12. Action Without a Meeting..............................................................................6
Section 13. Compensation of Directors.............................................................................6
Section 14. General Powers of Directors...........................................................................7
Section 15. Specific Powers of Directors..........................................................................7
ARTICLE IV
COMMITTEES
Section 1. Appointing Committees.................................................................................7
Section 2. Powers of Committees..................................................................................8
Section 3. Committee Meetings....................................................................................8
Section 4. Removal from Committees...............................................................................8
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ARTICLE V
OFFICERS
Section 1. Number .......................................................................................8
Section 2. Election and Term.....................................................................................8
Section 3. Salaries .......................................................................................9
Section 4. Chairman of the Board.................................................................................9
Section 5. President .......................................................................................9
Section 6. Vice President ......................................................................................10
Section 7. Secretary ......................................................................................10
Section 8. Treasurer ......................................................................................10
Section 9. Duties of Officers May Be Delegated..................................................................11
ARTICLE VI
CONTRACTS. CHECKS. DRAFTS.
BANK ACCOUNTS AND DOCUMENTS
Section 1. Execution of Contracts and Documents.................................................................11
Section 2. Loans ......................................................................................11
Section 3. Checks and Drafts....................................................................................12
Section 4. Deposits ......................................................................................12
Section 5. Proxies ......................................................................................12
Section 6. Conflicting Interest Transactions of Directors or Officers ..........................................12
ARTICLE VII
CAPITAL STOCK
Section 1. Authorization and Issuance of Shares.................................................................12
Section 2. Capital Stock ......................................................................................13
Section 3. Record of Shareholders...............................................................................13
Section 4. Lost Certificates....................................................................................13
Section 5. Transfers of Stock...................................................................................14
Section 6. Registered Shareholders..............................................................................14
Section 7. Fractional Shares or Scrip...........................................................................14
ARTICLE VIII
INDEMNIFICATION
Section 1. Definitions ......................................................................................15
Section 2. Indemnification......................................................................................16
Section 3. Advances for Expenses................................................................................17
Section 4. Court-Ordered Indemnification and Advances for Expenses..............................................17
Section 5. Determination and Authorization of Indemnification...................................................18
Section 6. Shareholder Approved Indemnification.................................................................19
Section 7. Indemnification of Employees and Agents..............................................................20
Section 8. Insurance ......................................................................................20
Section 9. Not Exclusive of Other Rights........................................................................20
Section 10. Severability ......................................................................................20
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ARTICLE IX
EMERGENCY POWERS
Section 1. Power to Adopt ......................................................................................21
Section 2. Lines of Succession of Officers or Agents............................................................21
Section 3. Chance of Office.....................................................................................21
Section 4. Effect of Bylaws.....................................................................................21
Section 5. Notices ......................................................................................21
Section 6. Quorum ......................................................................................21
Section 7. Liability ......................................................................................21
ARTICLE X
GENERAL PROVISIONS
Section 1. Fiscal Year ......................................................................................22
Section 2. Corporate Seal ......................................................................................22
Section 3. Annual Statements....................................................................................22
Section 4. Inspection of Books and Records......................................................................22
Section 5. Conflict with Articles of Incorporation..............................................................23
Section 6. Dividends ......................................................................................23
Section 7. Adoption of Amendments to Incentive Stock Option Plans...............................................23
ARTICLE XI
AMENDMENTS 23
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BYLAWS OF
STEVE RAYMAN NISSAN, INC.
ARTICLE I
Offices
Section 1. Registered Office. The registered office shall be in the
State of Georgia, County of Clayton. The Board of Directors from time to time
may change the address of the registered office, which may be, but need not
be, the principal office of the Corporation.
Section 2. Other Offices. The Corporation may also have offices at
such other places both within and without the State of Georgia as the Board of
Directors may from time to time determine and the business of the Corporation
may require or make desirable.
ARTICLE II
Meetings of Shareholders
Section 1. Place of Meeting. All meetings of the Shareholders may be
held either within or without the State of Georgia, but in the absence of
notice to the contrary Shareholders, meetings shall be held at the principal
office of the Corporation.
Section 2. Time of Meeting. The Annual Meeting of the Shareholders
shall be held annually within six (6) months after the end of each fiscal year
of the Corporation. Failure to hold the Annual Meeting as aforesaid shall not
work a forfeiture or dissolution of the Corporation nor shall such failure
affect otherwise valid corporate acts.
Section 3. Special Meetings. Special Meetings of the Shareholders may
be called (a) by the Board of Directors or the person or persons authorized by
the Articles of Incorporation or these Bylaws, or (b) upon the written request
of the holders of at least twenty-five percent (25%), or such greater or
lesser percentage as may be provided in the Articles of Incorporation, of all
the votes entitled to be cast on any issue proposed to be considered at the
proposed Special Meeting; provided, however, such written request shall be
signed and dated by such holders and delivered to the Secretary of the
Corporation and, further provided, such written request shall set forth the
purpose or purposes for which such meeting is to be held, or (c) if the
Corporation has 100 or fewer shareholders of record, upon written request of
the holders of at least twenty-five percent (25%), or
such lesser percentage as may be provided in the Articles of Incorporation, of
all the votes entitled to be cast on any issue to be considered at the
proposed Special Meeting; provided, however, such written request shall be
signed and dated by such holders and delivered to the Secretary of the
Corporation and, further provided, such written request shall set forth the
purpose or purposes for which such meeting is to be held. Business transacted
at such Special Meetings shall be restricted to the purpose or purposes stated
in the notice.
Section 4. Notice of Meetings. A Corporation shall give notice
stating the date, time and place of each Shareholders, Meeting, whether
special or annual, not less than ten (10) nor more than sixty (60) days before
the date of the meeting, and shall be in writing unless oral notice is
reasonable under the circumstances, and may be communicated in person, by
telephone, telegraph, teletype, or other form of wire or wireless
communication, or by mail or private carrier, to each Shareholder of record
entitled to vote at such meeting, at such address as last appears on the books
of the Corporation. In the case of a Special Meeting, the notice of the
meeting must include a description of purpose or purposes for which the
meeting is called. Notice of any adjourned meeting need not be given otherwise
than by announcement at the meeting, at which the adjournment is taken;
provided however, if a new record date for the adjourned meeting is or must be
fixed pursuant to Section 11 of Article II of these Bylaws, notice of the
adjourned meeting shall be given to persons who are Shareholders as of the new
record date.
Section 5. Waiver of Notice. Any Shareholder may waive notice of any
meeting, whether special or annual, either before, at or after the meeting,
and a Shareholder's attendance at a meeting, either in person or by proxy,
shall of itself constitute a waiver of notice and waiver of any and all
objections to the date, time, place, manner of calling, or consideration of a
particular matter at the meeting that is not within the purpose or purposes
described in the meeting notice, except when the Shareholder attends the
meeting solely for the purpose of stating such objection. However, any waiver
of the notice of a meeting of Shareholders required with respect to an
amendment of the Articles of Incorporation, a plan of merger or share
exchange, a sale of assets, or any other action which would entitle the
Shareholder to dissent pursuant to O.C.G.A. ss. 14-2-1302 and obtain payment
for his shares shall not be effective except upon compliance with the
provisions of O.C.G.A. ss. 14-2-706(c).
Section 6. Voting Group. A Voting Group means all shares of one or
more classes or series that under the Articles of Incorporation or the Georgia
Business Corporation Code ("Code") are entitled to vote and be counted
together collectively on a matter at a meeting of the Shareholders. All shares
entitled by the Articles of Incorporation or the Code to vote generally on the
matter are for that purpose a single Voting Group. If the
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Articles of Incorporation or the Code provide for voting by a single Voting
Group on a matter, action on that matter is taken when voted upon by that
Voting Group as provided in Section 7. If the Articles of Incorporation or the
Code provide for voting by two or more Voting Groups on a matter, action on
that matter is taken only when voted upon by each of those Voting Groups
counted separately as provided in Section 7. Action may be taken by one Voting
Group on a matter even though no action is taken by another Voting Group
entitled to vote on the matter.
Section 7. Quorum. Shares entitled to vote as a separate Voting Group
may take action on a matter at a meeting only if a quorum of those shares
exists with respect to that matter. Unless the Articles of Incorporation
provide otherwise, a majority of the votes entitled to be cast on the matter
by the Voting Group constitutes a quorum of that Voting Group for action on
that matter. Once a share is represented for any purpose at a meeting other
than solely to object to holding the meeting or transacting business at the
meeting, it is deemed present for quorum purposes for the remainder of the
meeting and for any adjournment of that meeting unless a new record date is or
must be set for that adjourned meeting. If a quorum exists, action on a matter
(other than the election of Directors) by a Voting Group is approved if the
votes cast within the Voting Group favoring the action exceed the votes cast
opposing the action, unless the Articles of Incorporation, these Bylaws or the
Code requires a greater number of affirmative votes.
Section 8. Voting. Except as otherwise provided for in the Articles
of Incorporation, each outstanding share having voting rights shall be
entitled to one vote on each matter submitted to a vote at a Shareholders,
Meeting. At any meeting of the Shareholders, each Shareholder having the right
to vote shall be entitled to vote in person or by proxy appointed by an
instrument in writing subscribed to by the Shareholder and bearing a date not
more than eleven (11) months prior to such meeting, unless such instrument
provides for a longer period.
Section 9. Action of Shareholders Without a Meeting. Any action
required to be taken at a meeting of the Shareholders, or any action which may
be taken at a meeting of the Shareholders, may be taken without a meeting if
written consent and approval, setting forth the action authorized, shall be
signed by all Shareholders entitled to vote on such action or, if so provided
in the Articles of Incorporation, any persons who would be entitled to vote at
a meeting those shares having voting power to cast not less than the minimum
number (or numbers, in the case of voting by groups) of votes that would be
necessary to authorize or take such actions at a meeting at which all shares
entitled to vote were present and voted, provided that action by less than
unanimous written consent may not be taken with respect to any election of
Directors as to which Shareholders would be entitled to cumulative voting.
Such approval and consent so filed shall have the same effect as a unanimous
vote of the Shareholders of a
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Special Meeting called for considering the action authorized. However, no such
majority written consent shall be effective except upon compliance with the
provisions of O.C.G.A. ss. 14-2-704(b).
Section 10. Removal of Directors. At any meeting of Shareholders with
respect to which notice of such purpose has been given, one or more Directors
may be removed, with or without cause, by the affirmative vote of the holders
of a majority of the shares entitled to vote at an election of Directors;
provided, however, if cumulative voting is required for the election of
Directors, then a Director may be removed if the votes cast against his
removal would be sufficient to elect him when cumulatively voted at an
election of the entire Board of Directors. If a Director is elected by a
Voting Group of Shareholders, only the Shareholders of that Voting Group may
participate in the vote to remove the Director. If the Directors have
staggered terms, Directors may be removed only for cause unless the Articles
of Incorporation provide otherwise. A removed Director's successor may be
elected at the same meeting to serve the unexpired term.
Section 11. Record Date. For the purpose of determining Shareholders
entitled to notice of or to vote at any meeting of Shareholders or any
adjournment thereof, or in order to make a determination of Shareholders for
any other proper purpose, the Board of Directors of the Corporation may fix in
advance a date as the record date not more than seventy (70) days before the
meeting or action requiring a determination of Shareholders. When a
determination of Shareholders entitled to notice of or to vote at any meeting
of Shareholders has been made as provided in this Section 11, such
determination shall apply to any adjournment and reconvened meeting thereof,
unless the Board of Directors sets a new record date under this section for
the reconvened meeting. If the adjournment is for a date more than 120 days
after the date fixed for the original meeting, a new record date must be
fixed.
ARTICLE III
Board of Directors
Section 1. General Powers. All corporate powers shall be exercised by
or under the authority of, and the business and affairs of the Corporation
shall be managed under the direction of, the Board of Directors. In addition
to the powers and authority expressly conferred upon it by these Bylaws, the
Board of Directors shall exercise all such powers of the Corporation and do
all such lawful acts and things as are not by law, by any legal agreement
among Shareholders, by the Articles of Incorporation, or by these Bylaws
directed or required to be exercised or done by the Shareholders.
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Section 2. Number and Election. The Board of Directors of the
Corporation shall consist of not less than one (1) nor more than three (3)
individuals. The precise number of Directors shall be fixed by resolution of
either the Shareholders or the Board of Directors from time to time. The
Directors shall be elected at the Annual Meeting of the Shareholders by a
plurality of the votes cast by the shares represented in person or by proxy,
except that a succeeding Board of Directors may be elected at a Special
Meeting of the Shareholders and as provided in Section 10 of Article II.
Directors need not be Shareholders.
Section 3. Term of Office. The terms of all Directors shall expire at
the next Annual Meeting of Shareholders following their election. Despite the
expiration of a Director's term, the Director shall continue to serve until a
successor is elected and qualifies, or until there is a decrease in the number
of Directors.
Section 4. Vacancy. Any vacancy occurring in the Board of Directors
by death, resignation, retirement, disqualification, increase in the number of
Directors or otherwise may be filled by the first to take action of (a) the
Shareholders, or (b) the Board of Directors, and if the Directors remaining in
office constitute fewer than a quorum of the Board of Directors, they may fill
the vacancy by the affirmative vote of a majority of the remaining Directors
though less than a quorum of the Board of Directors. If a vacancy occurs as
provided for in Section 10 of Article II, such vacancy may be filled as
provided for in such section. If the vacant office was held by a Director
elected by a Voting Group of Shareholders, only the holders of shares of that
Voting Group or the remaining Directors elected by that Voting Group are
entitled to fill the vacancy.
Section 5. Meetings of the Board of Directors. The first meeting of
each newly elected Board of Directors shall follow immediately after the
Annual Meeting of the Shareholders and be held at the same place as the Annual
Meeting of the Shareholders, or may be held at such time and place as shall be
fixed by the consent in writing of all the Directors. No notice of such
meeting to the newly elected Directors shall be necessary in order legally to
constitute a meeting of the Board of Directors, provided a quorum shall be
present.
Section 6. Notice of Meetings. Unless the Articles of Incorporation
provide otherwise, regular meetings of the Board of Directors may be held
without notice of the date, time, place or purpose of the meeting. Unless the
Articles of Incorporation provide otherwise, every Special Meeting shall be
preceded by at least two (2) days' notice of the date, time and place of the
meeting. Such notice shall be in writing unless oral notice is reasonable
under the circumstances, and may be communicated in person, by telephone,
telegraph, teletype, telecopy, or other forms of wire or wireless
communication, or by mail or private carrier. Such notice need not specify the
purpose of the Special
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Meeting of the Board unless required by the Articles of Incorporation.
Section 7. Waiver of Notice. A Director may waive notice of any
meeting either before or after the meeting stated in the notice. Except as
specified herein, the waiver must be in writing, signed by the Director
entitled to notice, and delivered to the Corporation for inclusion in the
minutes or filing with the corporate records. A Director's attendance at or
participation in a meeting waives any required notice to the Director of the
meeting unless the Director at the beginning of the meeting (or promptly upon
arrival) objects to holding the meeting or transacting business at the meeting
and does not thereafter vote for or assent to action taken at the meeting.
Section 8. Place of Meetings. The Directors may hold their meetings
at the principal office of the Corporation or at such other place or places,
either in the State of Georgia or elsewhere, as they may from time to time
determine.
Section 9. Participation by Communication. Unless the Articles of
Incorporation provide otherwise, the Board of Directors may permit any or all
Directors to participate in a regular or special meeting by, or conduct the
meeting through the use of any means of communication by which all Directors
participating may simultaneously hear each other during the meeting. A
Director participating in a meeting by this means is deemed to be present in
person at the meeting.
Section 10. Quorum. Unless a greater number is required by the
Articles of Incorporation or the Code, a majority of the Directors in office
immediately before the meeting begins shall constitute a quorum of the Board
of Directors.
Section 11. Voting. If a quorum is present when a vote is taken, the
affirmative vote of a majority of the Directors present is the act of the
Board of Directors unless the Articles of Incorporation or the Code requires
the vote of a greater number of Directors.
Section 12. Action Without a Meeting. Unless the Articles of
Incorporation provide otherwise, action required or permitted to be taken at a
Board of Directors, meeting may be taken without a meeting if the action is
taken by all members of the Board of Directors. The action must be evidenced
by one or more written consents describing the action taken, signed by each
Director, and delivered to the Corporation for inclusion in the minutes or
filing with the corporate records.
Section 13. Compensation of Directors. Unless the Articles of
Incorporation provide otherwise, the Board of Directors may fix the
compensation of Directors.
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Section 14. General Powers of Directors. The Board of Directors shall
have, in addition to such powers as are herein expressly conferred on it and
all such powers as may be conferred on it by law, all such powers as may be
exercised by the Corporation, subject to the provisions of the Articles of
Incorporation and the Code.
Section 15. Specific Powers of Directors. The Board of Directors
shall also have power:
(a) to purchase or otherwise acquire property, rights, or
privileges for the Corporation, which the Corporation has
power to make, at such prices and on such terms as the Board
of Directors may deem proper;
(b) to pay for such property, rights or privileges in whole or
in part with money, stocks, bonds, debentures or other
securities of the Corporation, or by the delivery of other
property of the Corporation;
(c) to create, make and issue mortgages, bonds, deeds of trust,
trust agreements and negotiable or transferable instruments
and securities, secured by mortgages or otherwise, and to do
every act and thing necessary to effectuate the same;
(d) to elect the corporate officers and fix their salaries, to
appoint employees and trustees, and to dismiss them at its
discretion, to fix their duties and emoluments, and to
change them from time to time, and to require security as it
may deem proper;
(e) to confer on any officer of the Corporation the power of
selecting, discharging or suspending such employees; and
(f) to determine by whom and in what manner the Corporation's
bills, notes, receipts, acceptances, endorsements, checks,
releases, contracts, or other documents shall be signed.
ARTICLE IV
Committees
Section 1. Appointing Committees. Unless the Articles of
Incorporation provide otherwise, the Board of Directors may create one (1) or
more committees and appoint members of the Board of Directors to serve on
them. Each committee may have one or more members, who serve at the pleasure
of the Board of Directors.
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Section 2. Powers of Committees. To the extent specified by the Board
of Directors or in the Articles of Incorporation, each committee may exercise
the authority granted to the Board of Directors, except that a committee may
not:
(a) approve or propose to Shareholders action that the Code
requires to be approved by Shareholders;
(b) fill vacancies on the Board of Directors or on any of its
committees;
(c) amend the Articles of Incorporation pursuant to O.C.G.A. ss.
14-2-1002;
(d) adopt, amend, or repeal Bylaws; or
(e) approve a plan of merger not requiring Shareholder approval.
Section 3. Committee Meetings. Quorum and Voting . Sections 6, 7, 8,
9, 10, 11 and 12 of Article III of these Bylaws which govern meetings, action
without meetings, notice and waiver of notice, and quorum and voting
requirements of the Board of Directors, apply to committees and their members.
Section 4. Removal from Committees. The Board of Directors shall have
power at any given time to remove any member of any committee, with or without
cause, and to fill vacancies in and to dissolve any such committee.
ARTICLE V
Officers
Section 1. Number. The officers of the Corporation shall be
designated and elected by the Board of Directors with such responsibilities
and duties as may be designated by the Board of Directors consistent with this
Article V. The Board of Directors shall elect at least one officer who shall
be responsible for preparing minutes of the Directors, and Shareholders,
meetings and for authenticating records of the Corporation. Any two or more
offices may be held by the same person. No officer need be a Shareholder.
Section 2. Election and Term. All officers shall be appointed by the
Board of Directors or by a duly appointed officer pursuant to this Article V
and shall serve at the pleasure of the Board of Directors and the appointing
officers as the case may be. All officers, however appointed, may be removed
with or without cause by the Board of Directors and any officer appointed by
another officer may also be removed by the appointing officer with or without
cause.
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Section 3. Salaries. The salaries and compensation of all officers
appointed by the Board of Directors shall be fixed by the Board of Directors,
unless the Directors delegate such power to any officer or officers. Any
payment made to an officer of the Corporation such as salary, commission,
bonus, interest, or rent, or entertainment expense incurred by him, which
shall be disallowed in whole or in part as a deductible expense by the
Internal Revenue Service, shall be reimbursed by such officer to the
Corporation to the full extent of such disallowance. It shall be the duty of
the Directors, as a Board, to enforce payment of each amount disallowed. In
lieu of payment by the officer, subject to the determination of the Directors,
proportionate amounts may be withheld from his or her future compensation
payments until the amount owed to the Corporation has been recovered.
Section 4. Chairman of the Board. The Chairman of the Board shall
preside at all meetings of the Shareholders and Board of Directors, shall have
the same authority as the President to execute documents on behalf of the
Corporation, and shall have such other powers as may be specifically
designated by the Board of Directors.
Section 5. President.
(a) The President shall be elected by the Board of Directors and
shall be the Chief Operating Officer of the Corporation. He
shall preside at all meetings of the Shareholders and the
Board of Directors in the absence of the Chairman; he shall
have general and active management of the business of the
Corporation, and shall exercise general supervision and
administration over all of its affairs with power to make
all contracts in the conduct of the regular and ordinary
business of the Corporation, and shall see that all orders
and resolutions of the Board of Directors are carried into
effect.
(b) The President shall execute deeds, bonds, notes, mortgages
and other contracts on behalf of the Corporation.
(c) The President shall be ex-officio a member of all standing
committees and shall have the general powers and duties of
supervision and management usually vested in the office of
the President of a Corporation.
(d) The President may appoint and discharge agents and employees
of the Corporation and fix their compensation subject to the
general supervisory power of the Board of Directors, and do
and perform such other duties as from time to time may be
assigned to the President by the Board of Directors and as
may be authorized by law.
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The President may from time to time appoint one or more
Assistant Secretaries of the Corporation.
Section 6. Vice President. The Vice President, if one shall so be
elected, shall, in the absence or disability of the President, perform all of
the duties and exercise all of the powers of the President and shall perform
such other duties as the Board of Directors shall request or delegate. If
there is more than one (1) Vice President, the one designated by the Board of
Directors shall act in the absence of the President.
Section 7. Secretary. The Secretary, if one shall so be elected,
shall keep accurate records of the acts and proceedings of all meetings of
Shareholders, Directors and committees of Directors. The Secretary shall give,
or cause to be given, notice of all meetings of the Shareholders and any
meetings of the Board of Directors, and other notices required by law or these
Bylaws, and shall perform such other duties as may be prescribed by the Board
of Directors or President, under whose supervision the Secretary shall be. The
Secretary shall keep in safe custody the seal of the Corporation, and the
Secretary or any other officer may affix the same to any instrument requiring
it and, when so affixed, it may be attested by the Secretary's signature or by
the signature of an Assistant Secretary. Notwithstanding the foregoing, unless
otherwise required by law or the Code, the seal of the Corporation need not be
affixed to any documents or instruments, nor must the Secretary or Assistant
Secretary attest any such document or instrument. In the absence or disability
of the Secretary or at the direction of the President, any Assistant Secretary
or other officer designated by the Board of Directors may perform the duties
and exercise the powers of the Secretary.
Section 8. Treasurer.
(a) The Treasurer, if one shall so be elected, shall have
custody of and be responsible for all funds and securities,
receipts and disbursements of the Corporation, and shall
keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation, and
shall deposit or cause to be deposited, all monies and other
valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the
Board of Directors.
(b) The Treasurer shall disburse the funds of the Corporation as
may be ordered by the Board of Directors or by the
President, taking proper vouchers for such disbursements,
and shall render to the President and Directors, whenever
they may require it, an account of all transactions as
Treasurer and of the financial condition of the Corporation,
and at the regular meeting of the Board of Directors next
preceding the
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Annual Shareholders, Meeting, a like report for the
preceding year.
(c) The Treasurer shall keep an account of stock registered and
transferred in such manner and subject to such regulations
as the Board of Directors may prescribe.
(d) The Treasurer shall give the Corporation a bond, if required
by the Board of Directors, in such sum and in form and with
security satisfactory to the Board of Directors for the
faithful performance of the duties of the office and the
restoration to the Corporation in case of the Treasurer's
death, resignation or removal from office, of all books,
papers, vouchers, money and other property of whatever kind
in the possession of the Treasurer, belonging to the
Corporation. The Treasurer shall perform such other duties
as the Board of Directors may from time to time prescribe or
require.
Section 9. Duties of Officers May Be Delegated. In case of the
absence of any officer of the Corporation, or for any other reason that the
Board of Directors may deem sufficient, the Board may delegate, for the time
being, the powers or duties, or any of them, of such officer to any other
officer, or to any Director, a majority of the entire Board of Directors
concurring therein.
ARTICLE VI
Contracts. Checks. Drafts. Bank Accounts and Documents
Section 1. Execution of Contracts and Documents. The Board of
Directors, except as otherwise provided in these Bylaws, may authorize any
officer or officers or agent or agents of the Corporation to enter into any
contract or execute and deliver any instrument in the name and on the behalf
of the Corporation, and such authority may be general or confined to specific
instances, and unless so authorized by the Board of Directors or by an officer
or committee to whom the power to prescribe such authority is delegated
pursuant to the provisions of these Bylaws, no officer, agent or employee
shall have any power or authority to bind the Corporation by any contract or
engagement or to pledge its credit or to render it liable for damages, whether
monetary or otherwise, for any purpose or for any amount.
Section 2. Loans. No loan shall be contracted on behalf of the
Corporation, and no negotiable paper shall be issued in its name, unless
authorized by the Board of Directors. When so authorized, any officer or agent
of the Corporation may effect loans and advances at any time for the
Corporation from any bank, trust company or other institution, or from any
firm, Corporation or individual, and for such loans and advances may make,
execute and deliver promissory notes or other evidence of indebtedness of
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the Corporation, and when authorized as aforesaid, as security for the payment
of any and all loans, advances, indebtedness and liabilities of the
Corporation may mortgage, pledge, hypothecate or transfer any real or personal
property at any time held by the Corporation and to that end execute
instruments of mortgage or pledge or otherwise transfer said property. Such
authority may be general or confined to specific instances.
Section 3. Checks and Drafts. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation shall be signed by the President or such other person
or persons and in such manner as shall, from time to time, be determined by
the Board of Directors.
Section 4. Deposits. All funds of the Corporation shall be deposited
to the credit of the Corporation under such conditions and in such banks,
trust companies or other depositories as the Board of Directors may designate
or as may be designated by an officer or officers or agent or agents of the
Corporation to whom such power may, from time to time, be determined by the
Board of Directors.
Section 5. Proxies. Unless otherwise provided by the Board of
Directors, the President may from time to time appoint an attorney or
attorneys or agent or agents of the Corporation in the name and on behalf of
the Corporation to cast the vote which the Corporation may be entitled to cast
as a Shareholder or otherwise in any other corporation any or the stock or
other securities of which is held by the Corporation, at meetings of the
holders of the stock or other securities of such other corporation, and may
instruct the person or persons so appointed as to the manner of casting such
vote or giving such consent, and may execute or cause to be executed in the
name and on behalf of the Corporation such written proxies or other
instruments as the President may deem necessary or proper in the premises.
Section 6. Conflicting Interest Transactions of Directors or
Officers. Contracts and transactions of the Corporation in which a Director or
officer may have a conflicting interest (as such term is defined in O.C.G.A.
ss. 14-2-860) shall not be voidable solely because of the involvement o r vote
of such Director or officer provided compliance with the provisions of
O.C.G.A. ss. ss. 14-2-860 through 14-2-864.
ARTICLE VII
Capital Stock
Section 1. Authorization and Issuance of Shares. In accordance with
the Code, the Board of Directors may authorize shares of any class or series
provided for in the Articles of Incorporation to be issued for any
consideration valid under the
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provisions of the Code. To the extent provided in the Articles of
Incorporation, the Board of Directors shall determine the preferences,
limitations, and relative rights of the shares.
Section 2. Capital Stock. All shares issued by the Corporation shall
be evidenced by a certificate or certificates. Each certificate of stock of
the Corporation shall be numbered, shall be entered in the books of the
Corporation, and shall be signed, either manually or in facsimile, by any one
of the President, a Vice President, the Secretary, or the Treasurer or such
other officer or officers as designated to sign such certificates, from time
to time, by the Board of Directors. In any case in which any officer or
officers who shall have signed, or whose facsimile signature or signatures
shall have been used on, any such certificate or certificates shall cease to
be such officer or officers of the Corporation, whether because of death,
resignation or otherwise, before such certificate or certificates shall have
been delivered by the Corporation, such certificate or certificates may
nevertheless be delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature shall have been used
thereon had not ceased to be such officer or officers. If a share certificate
is signed in facsimile, then it shall be countersigned by a transfer agent or
registered by a registrar other than the Corporation itself or an employee of
the Corporation. The corporate seal need not be affixed to the share
certificate. Each certificate representing shares shall set forth upon the
face thereof:
(a) The name of the Corporation;
(b) That the Corporation is organized under the laws of the
State of Georgia;
(c) The name of the person to whom issued; and
(d) The number and class of shares and the designation of the
series, if any, such certificate represents.
Section 3. Record of Shareholders. The Corporation shall keep a
record of the Shareholders of the Corporation which readily shows, in
alphabetical order or by alphabetical index, and by classes of stock, the
names of the Shareholders, including those Shareholders entitled to vote, with
the address of and the number of shares held by each.
Section 4. Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost
or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost
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or destroyed certificate or certificates, or his or her legal representative,
to advertise the same in such manner as it shall require or give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate
alleged to have been lost, stolen or destroyed.
Section 5. Transfers of Stock. The transfers of stock shall be made
on the books of the Corporation by the holder thereof, or by an attorney
lawfully constituted in writing, and upon surrender of the certificate
therefor, or in the case of a certificate alleged to have been lost, stolen or
destroyed, upon compliance with the provisions of Section 4 of this Article
VII of these Bylaws.
Section 6. Registered Shareholders. The Corporation shall be entitled
to treat the holder of record of any share or shares of stock as the holder in
fact thereof and, accordingly, shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except
as otherwise provided by laws of the state of incorporation.
Section 7. Fractional Shares or Scrip. The Board of Directors may:
(a) issue fractions of a share or pay in money the value of
fractions of a share;
(b) arrange for disposition of fractional shares by or for the
account of the Shareholders;
(c) issue scrip in registered or bearer form entitling the
holder to receive a full share upon surrendering enough
scrip to equal the full share.
Each certificate representing scrip shall be conspicuously labeled "scrip" and
shall contain the information required by O.C.G.A. ss. 14-2-625(b). Holders of
fractional shares shall be entitled to exercise the rights of a Shareholder,
including the right to vote, to receive dividends, and to participate in the
assets of the Corporation upon liquidation. Holders of scrip shall not, unless
expressly authorized by the Board of Directors, be entitled to exercise any
rights of a Shareholder of the Corporation, including voting rights,
dividends, and the right to participate in distribution of assets of the
Corporation in the event of liquidation. The Board of Directors may authorize
the issuance of scrip subject to any condition considered desirable,
including: (i) that the scrip will become void if not exchanged for full
shares before a specified date and (ii) that the shares for which the scrip is
exchangeable may be sold and the proceeds paid to the scripholders.
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ARTICLE VIII
Indemnification
Section 1. Definitions. As used in this Article VIII, the term:
(a) "Corporation" includes any domestic or foreign predecessor
entity of the Corporation in a merger or other transaction
in which the predecessor's existence ceased upon
consummation of the transaction.
(b) "Director" means an individual who is or was a director of
the Corporation or an individual who, while a director of
the Corporation, is or was serving at the Corporation's
request as a director, officer, partner, trustee, employee,
or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or
other enterprise. A director is considered to be serving an
employee benefit plan at the Corporation's request if his
duties to the Corporation also impose duties on, or
otherwise involve services by, him to the plan or to
participants in or beneficiaries of the plan. Director
includes, unless the context requires otherwise, the estate
or personal representative of a director.
(c) "Expenses" include attorneys, fees.
(d) "Liability" means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax assessed
with respect to an employee benefit plan), or reasonable
expenses incurred with respect to a proceeding.
(e) "Officer" means an individual who is or was an officer of
the Corporation or an individual who, while an officer of
the Corporation, is and was serving at the Corporation's
request as a director, officer, partner, trustee, employee!
or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or
other enterprise. An officer the Corporation's request if
his duties to the Corporation also impose duties on, or
otherwise involve services by, him to the plan or to
participants in or beneficiaries of the plan. Officer
includes, unless the context requires otherwise, the estate
or personal representative of an officer.
(f) "Party" includes an individual who was, is, or is threatened
to be made a named defendant or respondent in a proceeding.
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(g) "Proceeding" means any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal,
administrative, or investigative and whether formal or
informal.
Section 2. Indemnification.
(a) Except as provided in subsections (d) and (e) of this
Section 2 below, the Corporation shall indemnify an
individual who is made a party to a proceeding because he is
or was a director or officer against liability incurred by
him in the proceeding if the individual acted in a manner he
believed in good faith to be in or not opposed to the best
interests of the Corporation and, in the case of any
criminal proceeding, he had no reasonable cause to be
believe his conduct was unlawful.
(b) An individual's conduct with respect to an employee benefit
plan for a purpose he believed in good faith to be in the
interests of the participants in and beneficiaries of the
plan is conduct that satisfies the requirement of subsection
(a) of this Section 2 above.
(c) The termination of a proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere
or its equivalent shall not, of itself, be determinative
that an individual did not meet the standard of conduct set
forth in subsection (a) of this Section 2 above.
(d) The Corporation shall not indemnify an individual under this
Article VIII:
(1) In connection with a proceeding by or in the right
of the Corporation in which such individual was
adjudged liable to the Corporation; or
(2) In connection with any other proceeding in which
such individual was adjudged liable on the basis
that personal benefit was improperly received by
him unless, and then only to the extent that, a
court of competent jurisdiction determines pursuant
to Section 14-2-854 of the Code that in view of the
circumstances of the case, such individual is
fairly and reasonably entitled to indemnification.
(e) Indemnification permitted under this Article VIII in
connection with a proceeding by or in the right of the
Corporation is limited to reasonable expenses incurred in
connection with the proceeding.
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Section 3. Advances for Expenses.
(a) The Corporation shall pay for or reimburse the reasonable
expenses incurred by a director or officer who is a party to
a proceeding in advance of final disposition of the
proceeding if:
(1) Such individual furnishes the Corporation a written
affirmation of his good faith belief that he has
met the standard of conduct set forth in subsection
(a) of Section 2 above; and
(2) Such individual furnishes the Corporation a written
undertaking, executed personally or on his behalf,
to repay any advances if it is ultimately
determined that he is not entitled to
indemnification under this Article VIII.
(b) The undertaking required by paragraph (2) of subsection (a)
of this Section 3 must be an unlimited general obligation of
the director or officer but need not be secured and may be
accepted without reference to financial ability to make
repayment.
Section 4. Court-Ordered Indemnification and Advances for Expenses.
Unless the Articles of Incorporation provide otherwise, a director or officer
of the Corporation who is a party to a proceeding may apply for
indemnification or advances for expenses to the court conducting the
proceeding or to another court of competent jurisdiction. On receipt of an
application, the court after giving any notice the court considers necessary
may order indemnification or advances for expenses if it determines:
(a) The individual is entitled to mandatory indemnification
under Code Section 14-2-852, in which case the court shall
also order the Corporation to pay such individual's
reasonable expenses incurred to obtain court ordered
indemnification;
(b) The individual is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances,
whether or not he met the standard of conduct set forth in
subsection (a) of Section 2 above or was adjudged liable as
described in subsection (d) of Section 2 above, but if he
was adjudged so liable his indemnification is limited to
reasonable expenses incurred unless the Articles of
Incorporation or a contract or resolution approved or
ratified by the Shareholders pursuant to Section 6 of this
Article VIII below provides otherwise; or
(c) In the case of advances for expenses, the individual is
entitled pursuant to the Articles of Incorporation or
-17-
any applicable resolution or agreement, to payment or
reimbursement of his reasonable expenses incurred as a party
to a proceeding in advance of final disposition of the
proceeding.
Section 5. Determination and Authorization of Indemnification.
(a) The Corporation shall not indemnify a director or officer
under Section 2 of this Article VIII above unless a
determination has been made in the specific case that
indemnification of such individual is permissible in the
circumstances because he has met the standard of conduct set
forth in subsection (a) of Section 2 of this Article VIII
above; provided, however, that regardless of the result or
absence of any such determination, and unless limited by the
Articles of Incorporation, to the extent that such
individual has been successful, on the merits or otherwise,
in the defense of any proceeding to which he was a party, or
in defense of any claim, issue or matter therein, because he
is or was a director or officer, the Corporation shall
indemnify such individual against reasonable expenses
incurred by him in connection therewith.
(b) The determination specified in subsection (a) of this
Section 5 shall be made:
(1) By the Board of Directors by majority vote of a
quorum consisting of Directors not at the time
parties to the proceeding;
(2) If a quorum cannot be obtained under paragraph (1)
of this subsection (b) of this Section 5, by
majority vote of a committee duly designated by the
Board of Directors (in which designation Directors
who are parties may participate), consisting solely
of two or more Directors not at the time parties to
the proceeding;
(3) By special legal counsel:
(A) Selected by the Board of Directors or its
committee in the manner prescribed in
paragraphs (1) and (2) of this subsection
(b) of this Section 5; or
(B) If a quorum of the Board of Directors
cannot be obtained under paragraph (1) of
this subsection (b) of this Section 5 and
a committee cannot be designated under
paragraph (2) of this subsection (b) of
this Section 5, selected by a majority
vote of the
-18-
full Board of Directors (in which
selection Directors who are parties may
participate); or
(4) By the Shareholders, but shares owned by or voted
under the control of directors or officers who are
at the time parties to the proceeding may not be
voted on the determination.
(c) Evaluation as to reasonableness of expenses shall be made in
the same manner as the determination that indemnification is
permissible, except that if the determination is made by
special legal counsel, evaluation as to reasonableness of
expenses shall be made by those entitled under paragraph (3)
of subsection (b) of this Section 5 to select counsel.
Section 6. Shareholder Approved Indemnification.
(a) If authorized by the Articles of Incorporation or a contract
or resolution approved or ratified by the Shareholders of
the Corporation by a majority of the votes entitled to be
cast, the Corporation may indemnify or obligate itself to
indemnify a director or officer made a party to a
proceeding, including a proceeding brought by or in the
right of the Corporation, without regard to the limitations
in other Sections of this Article VIII.
(b) The Corporation shall not indemnify an individual under this
Section 6 for any liability incurred in a proceeding in
which such individual is adjudged liable to the Corporation
or is subjected to injunctive relief in favor of the
Corporation:
(1) For any appropriation, in violation of his duties,
of any business opportunity of the Corporation;
(2) For acts or omissions which involve intentional
misconduct or a knowing violation of law;
(3) For the types of liability set forth in Code
Section 14-2-832 of the Code; or
(4) For any transaction from which he received an
improper personal benefit.
(c) Where approved or authorized in the manner described in
subsection (a) of this Section 6, the Corporation may
advance or reimburse expenses incurred in advance of final
disposition of the proceeding only if:
(1) The Director furnishes the Corporation a written
affirmation of his good faith belief that his
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conduct does not constitute behavior of the kind
described in subsection (b) of this Section 6; and
(2) The Director furnishes the Corporation a written
undertaking, executed personally or on his behalf
to repay any advance if it is ultimately determined
that he is not entitled to indemnification under
this Section 6 of this Article VIII.
Section 7. Indemnification of Employees and Agents. Unless the
Articles of Incorporation provide otherwise, the Corporation may indemnify and
advance expenses to an employee or agent of the Corporation who is not a
director or officer to the same extent, consistent with public policy, that
may be provided by the Articles of Incorporation, these Bylaws, general or
specific action of the Board of Directors, or contract.
Section 8. Insurance. The Corporation may purchase and maintain
insurance on behalf of an individual who is or was a director, officer,
employee, or agent of the Corporation or who, while a director, officer,
employee, or agent of the Corporation, is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee or agent of
another foreign or domestic corporation, partnership, joint venture, trust,
employee benefit plan, or other enterprise against liability asserted against
or incurred by him in that capacity or arising from his status as a director,
officer, employee, or agent, whether or not the Corporation would have power
to indemnify him against the same liability under Sections 2 and 5 of this
Article VIII above.
Section 9. Not Exclusive of Other Rights. The indemnification
provided by this Article VIII shall not be deemed exclusive of any other
rights, in respect of indemnification or otherwise, to which those seeking
indemnification may be entitled apart from the provisions of this Article VIII
and shall apply both as to action by a director, officer, employee or agent in
his official capacity and as to action in another capacity while holding such
office or position, and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
Section 10. Severability. In the event that any of the provisions of
Article VIII is held by a court of competent jurisdiction to be invalid, void
or otherwise unenforceable, the remaining provisions of this Article VIII
shall remain enforceable to the fullest extent permitted by law.
-20-
ARTICLE IX
Emergency Powers
Section 1. Power to Adopt. Unless the Articles of Incorporation
provide otherwise, the Board of Directors may adopt bylaws to be effective
only in an emergency, which bylaws shall be subject to amendment or repeal by
the Shareholders. An emergency exists for purposes of this Section if a quorum
of the Directors cannot readily be assembled because of some catastrophic
event. The emergency bylaws may make any provision that may be practical and
necessary for the circumstances of the emergency.
Section 2. Lines of Succession of Officers or Agents. The Board of
Directors, either before or during any such emergency, may provide, and from
time to time modify, lines of succession in the event that during such an
emergency any or all officers or agents of the Corporation shall for any
reason be rendered incapable of discharging their duties.
Section 3. Chance of Office. The Board of Directors, either before or
during any such emergency, may, effective in the emergency, change the head
office or designate several alternative head offices or regional offices, or
authorize the officers so to do.
Section 4. Effect of Bylaws. To the extent not inconsistent with any
emergency bylaws so adopted, these Bylaws shall remain in effect during any
such emergency and, upon its termination, the emergency bylaws shall cease to
be operative.
Section 5. Notices. Unless otherwise provided in emergency bylaws,
notice of any meeting of the Board of Directors during any such emergency may
be given only to such of the Directors as it may be feasible to reach at the
time, and by such means as may be feasible at the time, including publication,
radio or television.
Section 6. Quorum. To the extent required to constitute a quorum at
any meeting of the Board of Directors during any such emergency, the officers
of the Corporation who are present shall, unless otherwise provided in the
emergency bylaws, be deemed, in order of rank and within the same rank and
order of seniority, Directors for such meeting.
Section 7. Liability. Corporate action taken in good faith in
accordance with the emergency bylaws binds the Corporation and may not be used
to impose liability on a corporate director, officer, employee or agent.
-21-
ARTICLE X
General Provisions
Section 1. Fiscal Year. The Board of Directors is authorized to fix
the fiscal year of the Corporation and to change the fiscal year of the
Corporation from time to time as it deems appropriate provided such change is
not in violation of any provision of the Internal Revenue Code of 1986, as
amended, or in violation of any applicable state statute.
Section 2. Corporate Seal. The seal of the Corporation shall be in
the following form, to-wit:
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise. In the event it is inconvenient to use
such a seal at any time, the signature of am officer of the Corporation
followed by the word "Seal" enclosed in parentheses shall be deemed the seal
of the Corporation.
Section 3. Annual Statements. Not later than four (4) months after
the close of each fiscal year, and in any case prior to the next annual
meeting of Shareholders, the Corporation shall prepare:
(a) A balance sheet showing in reasonable detail the financial
condition of the Corporation as of the close of its fiscal year, and
(b) A profit and loss statement showing the results of its
operations during its fiscal year.
Section 4. Inspection of Books and Records. The inspection rights of
Shareholders owning two percent (2%) or less of the shares outstanding of the
Corporation are limited as provided under Section 14-2-1602(e) of the Code, as
follows: unless consented to in writing by Board of Directors, in its sole
discretion, such Shareholders have no right to inspect the following books and
records of the Corporation:
(a) Excerpts from Minutes of any meeting of the Board of
Directors, records of any action of a committee of the Board
of Directors while acting in place of the Board of Directors
on behalf of the Corporation, minutes of any meeting of the
Shareholders, and records of action taken by the
Shareholders or Board of Directors without a meeting, to the
extent not subject to inspection under subsection
14-2-1602(a) of the Code;
-22-
(b) Accounting records of the Corporation; and
(c) The record of Shareholders.
Section 5. Conflict with Articles of Incorporation. In the event that
any provision of these Bylaws conflicts with any provision of the Articles of
Incorporation, the Articles of Incorporation shall govern.
Section 6. Dividends. Subject to limitations imposed by Georgia
statutes, distributions to the Shareholders may be declared at such time or
times, and in such amounts as the Board of Directors shall from time to time
determine.
Section 7. Adoption of Amendments to Incentive Stock Option Plans. In
addition to the rights of the Board of Directors to approve the adoption of
amendments to any incentive stock option plans of the Corporation which
qualify under Section 422A of the Internal Revenue Code of 1986, as amended,
the Shareholders of the Corporation may approve any such amendment by written
consent of the Shareholders which is signed by Shareholders having voting
power to cast not less than the minimum number of votes that would be
necessary to authorize such action, as provided in and subject to the
provisions of Section 14-2-704, as amended, of the Code.
ARTICLE XI
Amendments
Except as otherwise provided in these Bylaws, the Board of Directors
shall have power to alter, amend or repeal these Bylaws or adopt new Bylaws by
majority vote of all of the Directors, but any Bylaws adopted by the Board of
Directors may be altered, amended or repealed, and new Bylaws adopted, by the
Shareholders by majority vote of all of the shares having voting power. The
Shareholders may prescribe by expressing in the action they take in adopting
any Bylaw or Bylaws that the Bylaw or Bylaws so adopted shall not be altered,
amended or repealed by the Board of Directors.
-23-
EX 3.64
CERTIFICATE OF INCORPORATION
OF
UAG ATLANTA III, INC.
FIRST: The name of the corporation is UAG Atlanta III, Inc.
SECOND: The address of the corporation's registered office in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of the corporation's registered agent at such address is
The Corporation Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act
or activity for which corporations may be organized under the Delaware General
Corporation Law.
FOURTH: The total number of shares of stock which the corporation is
authorized to issue is one thousand (1,000) shares of common stock, having a
par value of one dollar ($1.00) per share.
FIFTH: The business and affairs of the corporation shall be managed by
or under the direction of the board of directors, and the directors need not be
elected by ballot unless required by the by-laws of the corporation.
SIXTH: In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware, the board of directors is expressly
authorized to make, amend and repeal the by-laws.
SEVENTH: 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
a knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit. If the Delaware General Corporation Law 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 Delaware
General Corporation Law, as so amended. Any repeal or modification of this
provision shall not adversely affect any right or protection of a director of
the corporation existing at the time of such repeal or modification.
EIGHTH: The corporation reserves the right to amend and repeal any
provision contained in this Certificate of Incorporation in the manner from
time to time prescribed by the laws of the State of Delaware. All rights herein
conferred are granted subject to this reservation.
NINTH: The incorporator is David G. Thunhorst, whose mailing address
is 2700 Cain Tower, Peachtree Center, 229 Peachtree Street, N.E., Atlanta,
Georgia 30303.
-2-
I, THE UNDERSIGNED, being the incorporator, for the purpose of forming
a corporation under the laws of the State of Delaware, do make, file and record
this Certificate of Incorporation and, accordingly, have hereto set my hand
this 4th day of June, 1996.
/s/ David G. Thunhorst
-----------------------------------
David G. Thunhorst
-3-
EX 3.66
ARTICLES OF INCORPORATION
OF
JIM HICKMAN DATSUN, INC.
I.
The name of the corporation is JIM HICKMAN DATSUN, INC.
II.
The general nature of the business or businesses to be transacted by
the corporation are as follows: To buy, sell, own, lease, rent, repair, store,
design, manufacture, construct, import, export and otherwise deal in personal
and real property of every nature and sort at wholesale and retail including
primarily, but not limited to, a new and used automobiles and automobile parts.
To conduct a general repair and service business including primarily
but not limited to automobile repair and servicing.
To own real estate, borrow money, lend money, buy, sell and guarantee
the obligations of others and conduct financing, brokerage and discount and
factoring business in connection with the foregoing or otherwise.
In general, to carry on any other business in connection with the
foregoing, and to have and exercise all the powers conferred by the laws of the
State of Georgia upon corporations formed pursuant thereto.
III.
The authorized capital stock of the corporation shall be $1,000,000
which shall consist of 10,000 shares of $100.00 par value common stock.
IV.
The amount of capital with which the corporation will begin business
is not less than Five Hundred ($500.00) Dollars.
V.
The corporation is to have perpetual existence.
VI.
The address of the initial registered office of the corporation shall
be 2530 First National Bank Tower, Two Peachtree Street, N.W., Atlanta, Georgia
30303, located in Fulton County, and the initial registered agent of the
corporation shall be Terry L. Revel, at such address.
VII.
The number of directors constituting the first Board of Directors
shall be Two and the name and street address of each member of the first Board
of Directors is:
DIRECTORS STREET ADDRESS
--------- --------------
James F. Hickman 2270 Dallas Road
Marietta, GA 30060
Lynda M. Hickman 2270 Dallas Road
Marietta, GA 30060
-2-
VIII.
The name and street address of each incorporator of the corporation is
as follows:
DIRECTORS STREET ADDRESS
--------- --------------
Theodore H. Milby, Esq. 2530 First National Bank Tower
Two Peachtree St., N.W.
Atlanta, GA 30303
IX.
None of the holders of the capital stock of the corporation shall be
entitled, as a matter of right by virtue of their holding of capital stock of
the corporation, to purchase, subscribe for or otherwise acquire any new or
additional shares of stock of the corporation of any class or of any options or
warrants to purchase, subscribe for or otherwise acquire any such new or
additional shares, or any shares, evidences of indebtedness or other securities
convertible into or carrying options or warrants to purchase, subscribe for or
otherwise acquire any such new or additional shares.
X.
The Board of Directors of the corporation may, from time to time and
at its discretion, distribute a portion of the assets of the corporation to its
shareholders out ? capital surplus of the corporation.
The Board of Directors of the corporation may, from time to time and
at its discretion, cause the corporation to
-3-
purchase its own shares to the extent of unreserved and unrestricted capital
surplus available for said purchase.
IN WITNESS WHEREOF, the Undersigned has executed these Articles of
Incorporation on October 14, 1976.
/s/ Theodore H. Milby
-----------------------------------
THEODORE H. MILBY, ESQ.,
Incorporator
-4-
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
HICKMAN NISSAN, INC.
I
The name of the Corporation is HICKMAN NISSAN, INC.
II
Effective as of the date hereof, Article I of the Articles of
Incorporation of the Corporation is amended to read as follows:
"The name of the Corporation is PEACHTREE NISSAN, INC."
III
All other provisions of the Articles of Incorporation shall remain in
full force and effect.
IV
These Articles of Amendment to the Corporation's Articles of
Incorporation were duly approved by the Corporation's Board of Directors in
accordance with the provisions of Section 14-2-1002 of the Georgia Business
Corporation Code, and no shareholder action was required with respect thereto.
IN WITNESS WHEREOF, the Corporation has caused these Articles of
Amendment to be executed and attested by its duly authorized officers as of the
15th day of July, 1996.
HICKMAN NISSAN, INC.
By: /s/ George S(?)
-------------------------------
Vice President and Secretary
ARTICLES OF AMENDMENT
HICKMAN DATSUN, INC.
I.
The name of the Corporation is "HICKMAN DATSUN, INC."
II.
The Amendment is to amend Article I. of the Articles of Incorporation
to delete the same in its entirety and to substitute therefore the following:
I.
The name of the Corporation is "HICKMAN NISSAN, INC."
III.
This Amendment was adopted by the Shareholders of the Corporation on
July 25, 1985.
IV.
The Amendment was adopted by the unanimous vote of all Shareholders.
IN WITNESS WHEREOF, Hickman Datsun, Inc. has executed these Articles
of Amendment on this 31st day of July, 1985.
Hickman Datsun, Inc.
By: /s/ Lynda Hickman Smith
-------------------------------
Lynda Hickman Smith, President
Attest: /s/ John L. Corley
-------------------------------
John L. Corley, Secretary
(CORPORATE SEAL)
GEORGIA
FULTON COUNTY
ARTICLES OF AMENDMENT
Pursuant to the provisions of Georgia Code, Title 22, Chapter 9, "JIM
HICKMAN DATSUN, INC." executes these Articles of Amendment:
I
The name of the corporation is "JIM HICKMAN DATSUN, INC."
II
The Articles of Incorporation of "JIM HICKMAN DATSUN, INC." are hereby
amended by deleting Article I in its entirety and substituting therefore the
following:
I
"The name of the corporation is "HICKMAN DATSUN, INC."
III
Said Amendment is adopted this 28th day of October, 1976, by the sole
incorporator prior to the holding of the organization meeting of the Board of
Directors and prior to the issuance of any shares.
IN WITNESS WHEREOF, "JIM HICKMAN DATSUN, INC." has executed these
Articles of Amendment this 28th day of October, 1976.
JIM HICKMAN DATSUN, INC.
By: /s/ Theodore H. Milby
-------------------------------
THEODORE H. MILBY, Incorporator
EX-3.67
BY-LAWS
OF
HICKMAN DATSUN, INC.
(ADOPTED: November 10, 1976)
ARTICLE I.
OFFICES
The address of the registered office of the corporation is 2400 First
National Bank Tower, Atlanta, GA; and the name of the registered agent is Terry
L. Nevel.
The corporation may have other offices at such places within or
without the State of Georgia as the Board of Directors may from time to time
designate or the business of the corporation may require or make desirable.
ARTICLE II.
SHAREHOLDERS MEETINGS
Section 1. PLACE OF MEETING. The Board of Directors may designate any
place within or without the State of Georgia as the place of meeting for any
annual or for any special meeting called by the Board of Directors. A waiver of
notice signed by all shareholders entitled to vote at a meeting may designate
any place within or without the State of Georgia as the place for the holding
of such meeting. If no designation is made, or if a special meeting be
otherwise called, the place of meeting shall be the principal office of the
corporation in the State of Georgia.
Section 2. ANNUAL MEETING. An annual meeting of the shareholders shall
be held on the 15th day of April in each year if not a legal holiday; and if
such is a legal holiday, then on the next following day not a legal holiday, at
such time and place as
the Board of Directors shall determine, at which time the shareholders
shall elect a Board of Directors and transact such other business as may
properly be brought before the meeting. Notwithstanding the foregoing, the
Board of Directors may cause the annual meeting of shareholders to be held on
such other date in any year as they shall determine to be in the best interests
of the corporation; and any business transacted at said meeting shall have the
same validity as if transacted on the day designated herein.
Section 3. SPECIAL MEETINGS. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by statute or the articles
of incorporation, may be called by the President, or the Chairman of the Board
of Directors, if any. The President or Secretary shall call a special meeting
when: (1) requested in writing by any two or more of the directors; or (2)
requested in writing by shareholders owning a majority of the shares entitled
to vote. Such written request shall state the purpose or purposes of the
proposed meeting.
Section 4. NOTICE. Except as otherwise required by statute or the
articles of incorporation, written notice of each meeting of the shareholders,
whether annual or special, shall be served, either personally or by mail, upon
each shareholder of record entitled to vote at such meeting, not less than ten
(10) nor more than fifty (50) days before the meeting. If mailed, such notice
shall be directed to a shareholder at his post office address last shown on the
records of the corporation. Notice of any
- 2 -
special meeting of shareholders shall state the purpose or purposes
for which the meeting is called. Notice of any meeting of shareholders shall
not be required to be given to any shareholder who, in person or by his
attorney thereunto authorized, either before or after such meeting, shall waive
such notice. Attendance of a shareholder at a meeting, either in person or by
proxy, shall itself constitute waiver of notice and waiver of any and all
objections to the place and time of the meeting and manner in which it has been
called or convened, except when a shareholder attends a meeting solely for the
purpose of stating, at the beginning of the meeting, any such objections to the
transaction of business. Notice of the time and place of any adjourned meeting
need not be given otherwise than by the announcement at the meeting at which
adjournment is taken.
Section 5. QUORUM. The holders of a majority of the stock issued,
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the shareholders and shall
be requisite for the transaction of business, except as otherwise provided by
law, by the articles of incorporation, or by these by-laws. If, however, such
majority shall not be present or represented at any meeting of the
shareholders, the shareholders entitled to vote thereat, present in person or
by proxy, shall have the power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until the requisite
amount of voting stock shall be present. At such adjourned meeting at which a
- 3 -
quorum shall be present in person or by proxy, any business may be transacted
that might have been transacted at the meeting originally called.
Section 6. VOTING, PROXIES. At every meeting of the shareholders, any
shareholder having the right to vote shall be entitled to vote in person or by
proxy, but no proxy shall be voted after eleven months from its date, unless
said proxy provides for a longer period. Each shareholder shall have one vote
for each share of stock having voting power, registered in his name on the
books of the corporation. If a quorum is present, the affirmative vote of the
majority of the shares represented at the meeting entitled to vote on the
subject matter shall be the act of the shareholders, except as otherwise
provided by law, by the articles of incorporation or by these by-laws.
Section 7. FIXING OF RECORD DATE. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or shareholders entitled to receive payment of
dividend, the Board of Directors may fix in advance a date as the record date
for any such determination of shareholders, such date in any case to be not
less than ten (10) nor more than fifty (50) days prior to the date on which the
particular action, requiring such determination of shareholders, is to be
taken. If no record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, or shareholders
entitled to receive payment of dividends, the date on which notice of the
meeting is mailed, or on the date on which the resolution of the
- 4 -
Board of Directors declaring such dividend is adopted, as the case may
be, shall be the record date. When a determination of shareholders entitled to
vote at any meeting of shareholders has been made as provided in this section,
such determination shall apply to any adjournment thereof.
Section 8. INFORMAL ACTIONS BY SHAREHOLDERS. Any action required to be
taken at a meeting of the shareholders, or any other action which may be taken
at a meeting of the shareholders, may be taken without a meeting if written
consent, setting forth the action so taken, shall be signed by all the
shareholders entitled to vote with respect to the subject matter thereof. Such
consent shall have the same force and effect as a unanimous vote of the
shareholders; provided, however, that no consent shall be effective as approval
of a plan of merger or plan of consolidation pursuant to Section 22-1003 of the
Georgia Business Corporation Code unless:
(1) prior to the execution of the consent, the shareholders
shall have been given
(i) a clear and concise statement that if the plan of merger
or consolidation is effected the shareholders dissenting therefrom are
entitled, if they file a written objection to such plan before the vote of the
shareholders is taken thereon and comply with the further provisions of Section
22-1202 of the Georgia Business Corporation Code regarding the rights of
dissenting shareholders, to be paid the fair value of their shares,
- 5 -
(ii) a copy of the plan of merger or consolidation or
an outline of the material features of the plan, and
(iii) a copy of the most recent annual balance sheet and
annual profit and loss statement of each of the merging or consolidating
corporations and of each other corporation securities of which are to be
delivered pursuant to the plan of merger or consolidation; or
(2) the written consent itself conspicuously and specifically
states that waiver of the right to receive such information is expressly made.
ARTICLE III.
DIRECTORS
Section 1. GENERAL POWERS. Except as may be otherwise provided by any
legal agreement among shareholders, the property and business of the
corporation shall be managed by its Board of Directors. In addition to the
powers and authority by these by-laws expressly conferred upon, the Board of
Directors may exercise all such powers of the corporation and do all such
lawful acts and things as are not by law, or by any legal agreement among
shareholders, or by the articles of incorporation or by these by-laws directed
or required to be exercised or done by the shareholders.
Section 2. NUMBER, TENURE, QUALIFICATIONS. The Board of Directors
shall consist of not less than one nor more than five members, the precise
number to be fixed by resolution of the shareholders from time to time. Each
director shall hold office until the annual meeting of shareholders held next
after his
- 6 -
election and until a qualified successor shall be elected, or until his
earlier death, resignation, incapacity to serve or removal. Directors need
not be shareholders.
Section 3. VACANCIES, HOW FILLED. If any vacancy shall occur among the
directors by reason of the death, resignation, removal or incapacity to serve
of a director, the remaining directors shall continue to act, and such
vacancies may be filled by the vote of the majority of the directors then in
office, though less than a quorum, and if not therefore filled by action of the
directors, may be filled by the shareholders at any meeting held during the
existence of such vacancy. A director elected to fill a vacancy shall be
elected for the unexpired term of his predecessor in office.
Section 4. PLACE OF MEETING. The Board of Directors may hold its
meetings at such place or places within or without the State of Georgia as it
may from time to time determine.
Section 5. COMPENSATION. Directors may be allowed such compensation
for attendance at regular or special meetings of the Board of Directors and of
any special meeting or standing committees thereof as may be from time to time
determined by resolution of the Board of Directors.
Section 6. REGULAR MEETINGS. A regular annual meeting of the Board
of Directors shall be held without other notice than this by-law immediately
after, and at the same place as, the annual meeting of shareholders. The Board
of Directors may provide, by resolution, the time and place within or without
the
- 7 -
State of Georgia, for the holding of additional regular meetings without
other notice than such resolution.
Section 7. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board (if any) or the President
on not less than two (2) days' notice by mail, telegram, cablegram or personal
delivery to each director and shall be called by the Chairman of the Board (if
any), the President or the Secretary in like manner and on like notice on the
written request of any two (2) or more directors. Any such special meeting
shall be held at such time and place as shall be stated in the notice of the
meeting.
Section 8. NOTICE, WAIVER BY ATTENDANCE. No notice of a meeting of the
Board of Directors need be given to any director who signs a waiver of notice
either before or after the meeting. The attendance of a director at a meeting
shall constitute a waiver of notice of such meeting and waiver of any and all
objections to the place of the meeting, the time of the meeting or the manner
in which it has been called or convened except when a director states, at the
beginning of the meeting, any such objection or objections to the transaction
of business.
Section 9. QUORUM. At all meetings of the Board of Directors, the
presence of a majority of the directors shall constitute a quorum for the
transaction of business. In the absence of a quorum a majority of the
directors present at any meeting may adjourn from time to time until a quorum
be had. Notice of the time and place of any adjourned meeting need only
- 8 -
be given by announcement at the meeting at which the adjournment is taken.
Section 10. MANNER OF ACTING. The act of the majority
of the directors present at a meeting at which a quorum is present shall
be the act of the Board of Directors.
Section 11. EXECUTIVE COMMITTEE. In furtherance and not in limitation
of the powers conferred by statute, the Board of Directors may establish an
Executive Committee of two (2) or more directors constituted and appointed by
the Board of Directors from their number who shall meet when deemed necessary.
They shall have authority to exercise all the powers of the board which may be
lawfully delegated and not inconsistent with these by-laws, at any time and
when the board is not in session. The committee shall elect a chairman, and a
majority of the whole committee shall constitute a quorum; and the act of a
majority of members present at a meeting at which a quorum is present shall be
the act of the committee provided all members of the committee have had notice
of such meeting or waived such notice. Notice of meetings of the executive
committee shall be the same as required for a special meeting of the Board of
Directors as outlined in Section 7 of this Article III.
Section 12. ACTION WITHOUT FORMAL MEETING. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if written consent thereto is
signed by all members of the Board of Directors or of such committee, as the
case may be,
- 9 -
and such written consent is filed with the minutes of the proceedings of the
Board or committee.
Section 13. CONFERENCE CALL MEETINGS. Members of the Board of
Directors, or any committee designated by such Board, may participate in a
meeting of such Board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other and participation in a meeting pursuant to this
Section shall constitute presence in person at such meeting.
ARTICLE IV.
OFFICERS
Section 1. GENERALLY. The Board of Directors at its first meeting
after each annual meeting shall elect the following officers: a President, one
or more Vice-Presidents, a Secretary and a Treasurer. The Board of Directors at
any time and from time to time may appoint such other officers as it shall deem
necessary, including a Chairman of the Board of Directors, one or more
Assistant Vice-Presidents, one or more Assistant Treasurers, and one or more
Assistant Secretaries, who shall hold their offices for such terms as shall be
determined by the Board of Directors and shall exercise such powers and perform
such duties as are specified by these by-laws or as shall be determined from
time to time by the Board of Directors. Any person may hold two or more
offices, except that no person may hold the office of President and Secretary.
No officer need be a shareholder.
Section 2. COMPENSATION. The salaries of the officers of the
corporation shall be fixed by the Board of Directors, except
- 10 -
that the Board of Directors may delegate to any officer or officers the
power to fix the compensation of any other officer.
Section 3. TENURE. Each officer of the corporation shall hold office
until his successor is chosen or until his earlier resignation, death or
removal, or the termination of his office. Any officer may be removed by the
Board of Directors whenever in its judgment the best interest of the
corporation will be served thereby.
Section 4. VACANCIES. A vacancy in any office, because of death,
resignation, removal, disqualification or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term.
Section 5. PRESIDENT. The President shall be a director. The President
shall be the principal executive officer of the corporation and, subject to the
control of the Board of Directors, shall in general manage, supervise and
control all of the business and affairs of the corporation. He shall, when
present, preside at all meetings of all of the stockholders. He may sign, with
the Secretary or any other proper officer or the corporation thereunto
authorized by the Board of Directors, certificates for shares of the
corporation, any deeds, mortgages, bonds, policies of insurance, contracts,
investment certificates, or other instruments which the Board of Directors has
authorized to be executed, except in cases where signing the execution thereof
shall be expressly delegated by the Board of Directors or by the by-laws to
some other officer or agent of the corporation, or shall be required by law to
be otherwise signed or executed;
- 11 -
and in general shall perform all duties incident to the office of President
and such other duties as may be prescribed by the Board of Directors from
time to time.
Section 6. VICE-PRESIDENTS. In the absence of the President or in the
event of his death or inability or refusal to act, the Vice-President (or in
the event there be more than one Vice-President, the Vice-Presidents in the
order designated at the time of their election, or in the absence of any
designation, then in order of election) shall perform the duties of the
President and, when so acting, shall have all the powers of and be subject to
all the restrictions upon the President. Any Vice-President may sign, with the
Secretary or an assistant Secretary, certificates for shares of the corporation
and shall perform such other duties as shall from time to time be assigned to
him by the President or by the Board of Directors. All Vice-Presidents shall
have such other duties as prescribed by the Board of Directors from time to
time.
Section 7. THE SECRETARY. The Secretary shall: (a) attend and keep the
minutes of the shareholders' meetings and of the Board of Directors' meetings
in one or more books provided for that purpose; (b) see that all notices are
duly given in accordance with the provisions of these by-laws as required by
law; (c) be custodian of the corporate records and of the seal of the
corporation and see that the seal of the corporation is affixed to all
documents, the execution of which on behalf of the corporation under its seal
is duly authorized; (d) keep a register of the post office address of each
shareholder which
- 12 -
shall be furnished to the Secretary by such shareholder; (e) sign with the
President or a Vice-President certificates for shares of the corporation, the
issuance of which shall have been authorized by resolution of the Board of
Directors; (f) have general charge of the stock transfer books of the
corporation; (g) in general perform all duties incident to the office of
Secretary and such other duties as from time to time may be assigned to him by
the President or the Board of Directors.
Section 8. THE TREASURER. The Treasurer shall: (a) have charge and
custody of and be responsible for all funds and securities of the corporation;
receive and give receipts for moneys due and payable to the corporation from
any source whatsoever, and deposit all such moneys in the name of the
corporation in such banks, trust companies, or other depositories as shall be
selected by the Board of Directors; and (b) in general perform all the duties
incident to the office of Treasurer and such other duties as from time to time
may be assigned by the Board of Directors.
Section 9. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The
assistant Secretaries, when authorized by the Board of Directors, may sign with
the President or a Vice-President certificates for shares of the corporation
the issuance of which shall have been authorized by a resolution of the Board
of Directors. The assistant Secretaries and Treasurers, in general, shall
perform such duties as shall be assigned by the Secretary or Treasurer,
respectively, or by the President or by the Board of Directors.
- 13 -
ARTICLE V.
CAPITAL STOCK
Section 1. FORM. The interest of each shareholder shall be evidenced
by a certificate representing shares of stock of the corporation, which shall
be in such form as the Board of Directors may from time to time adopt and shall
be numbered and shall be entered in the books of the corporation as they are
issued. Each certificate shall exhibit the holder's name, the number of shares
and class of shares and series, if any, represented thereby, a statement that
the corporation is organized under the laws of the State of Georgia, and the
par value of each share or a statement that the shares are without par value.
Each certificate shall be signed by the President or a Vice-President and the
Secretary or an Assistant Secretary and shall be sealed with the seal of the
corporation.
Section 2. TRANSFER. Transfers of stock shall be made on the books of
the corporation only by the person named in the certificate, or by attorney
lawfully constituted in writing, and upon surrender of the certificate thereof,
or in the case of a certificate alleged to have been lost, stolen or destroyed,
upon compliance with the provisions of Section 4, Article V of these by-laws.
Section 3. RIGHTS OF HOLDER. The corporation shall be entitled to
treat the holder of any share of the corporation as the person entitled to vote
such share, to receive any dividend or other distribution with respect to such
share, and for all other purposes and accordingly shall not be bound to
recognize
- 14 -
any equitable or other claim to or interest in such share on the part
of any other person, whether or not it shall have the express or other notice
thereof, except as otherwise provided by law.
Section 4. LOST OR DESTROYED CERTIFICATES. Any person claiming a
certificate of stock to be lost, stolen or destroyed shall make an affidavit or
affirmation of the fact in such manner as the Board of Directors may require
and shall if the Board of Directors so require, give the corporation a bond of
indemnity in form and amount and with one or more sureties satisfactory to the
Board of Directors, whereupon an appropriate new certificate may be issued in
lieu of the one alleged to have been lost, stolen or destroyed.
ARTICLE VI.
FISCAL YEAR
The fiscal year of the corporation shall be established by the
Board of Directors of the corporation.
ARTICLE VII.
SEAL
The corporate seal shall be in such form as the Board of Directors
may from time to time determine.
ARTICLE VIII.
ANNUAL STATEMENTS
Not later than four months after the close of each fiscal year, and in
any case prior to the next annual meeting of shareholders, the corporation
shall prepare:
- 15 -
(A) A balance sheet showing in reasonable detail the
financial condition of the corporation as of the close
of the fiscal year, and
(B) A profit and loss statement showing the results of its
operation during the fiscal year.
Upon written request, the corporation promptly shall mail to any
shareholder of record a copy of the most recent such balance sheet and profit
and loss statement.
ARTICLE IX.
INDEMNIFICATION
Section 1. ACTION BY PERSONS OTHER THAN THE CORPORATION. Under the
circumstances prescribed in Section 3 and 4 of this Article, the corporation
shall indemnify and hold harmless any person who was or is a party or is
threatened to be made a party of any, threatened, pending or completed action,
suit or proceeding, or investigation, whether civil, criminal, or
administrative (other than an action 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 now 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 attorney's
fees), 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 a manner he reasonably believed to be in or not opposed to the best interest
of the corporation, and, with respect to criminal action or proceeding,
- 16 -
he 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,
of itself, create a presumption that the person did not act in a manner
which he reasonably believed to be in or not opposed to the best interest
of the corporation, and with respect to any criminal action or proceeding,
had reasonable cause to believe that his conduct was unlawful.
Section 2. ACTIONS BY OR IN THE NAME OF THE CORPORATION. Under the
circumstances prescribed in Sections 3 and 4 of this Article the corporation
shall indemnify and hold harmless any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor
by reason of the fact 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) actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of the
corporation; except that no indemnification shall be made in respect to any
claim issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to the
corporation,
- 17 -
unless and only to the extent that the court in which such action
or suit was brought shall determine upon the application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expense
which the court shall deem proper.
Section 3. SUCCESSFUL DEFENSE. To the extent that a director, officer,
employee or agent of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Section 1
and 2 of this Article, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorney's fees) actually and
reasonably incurred by him in connection therewith.
Section 4. AUTHORIZATION OF INDEMNIFICATION. Except as provided in
Section 3 of this Article and except as may be ordered by a court, any
indemnification under Sections 1 and 2 of this Article shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth
in Sections 1 and 2. Such determination shall be made (1) by the Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested directors so
directs, by the firm of independent legal counsel then employed by the
corporation, in a written opinion.
- 18 -
Section 5. PREPAYMENT OF EXPENSES. Expenses incurred in defending a
civil or criminal action, suit or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit or proceeding as
authorized by the Board of Directors in the specific case upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to
repay such amount unless it shall ultimately be determined that he is entitled
to be indemnified by the corporation as authorized in this section.
Section 6. NON-EXCLUSIVE RIGHT. The indemnification provided by this
section shall not be deemed exclusive of any other right to which the person
indemnified hereunder shall be entitled and shall inure to the benefit of the
heirs, executors or administrators of such persons.
Section 7. INSURANCE. The corporation may 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 of another corporation,
partnership, joint venture, trust or other enterprise, against any liability
asserted against him and incurred by 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 this section.
Section 8. INFORMATION TO SHAREHOLDERS. If any expenses or other
amounts are paid by way of indemnification, otherwise than by court order or
by an insurance carrier pursuant to insurance
- 19 -
maintained by the corporation, the corporation shall, not later than the next
annual meeting to the shareholders, unless such meeting is held within three
months from the date of such payment, and, in any event, within fifteen months
from the date of such payment, send by first class mail to its shareholders
of record at the time entitled to vote for the election of directors, a
statement specifying the persons paid, the amount paid, and the nature and
status at the time of such payment of the litigation or threatened litigation.
ARTICLE X.
NOTICES: WAIVER OF NOTICE
Section 1. NOTICES. Except as otherwise provided in these by-laws,
whenever under the provisions of these by-laws notice is required to be given
to any shareholder, director or officer, such notice shall be given either by
personal notice or by cable or telegraph, or by mail by depositing the same in
the post office or letter box in a postpaid sealed wrapper, addressed to such
shareholder, officer or director at such address as appears on the books of the
corporation, and such notice shall be deemed to be given at the time when the
same shall be thus sent or mailed.
Section 2. WAIVER OF NOTICE. Whenever any notice whatever is required
to be given by law, by the articles of incorporation or by these by-laws, a
waiver thereof by the person or persons entitled to said notice given before or
after the time stated therein, in writing, which shall include a waiver given
by telegraph, or cable, shall be deemed equivalent thereto. No
- 20 -
notice of any meeting need be given to any person who shall attend such
meeting.
ARTICLE XI.
AMENDMENTS
The by-laws of the corporation may be altered or amended and new
by-laws may be adopted by the shareholders or by the Board of Directors at any
regular or special meeting of the Board of Directors; provided, however, that,
if such action is to be taken at a meeting of the shareholders, notice of the
general nature of the proposed change in the by-laws shall have been given in
the notice of a meeting. Action by the shareholders with respect to by-laws
shall be taken by an affirmative vote of a majority of the shares entitled to
elect directors, and action by the directors with respect to by-laws shall be
taken by an affirmative vote of a majority of all directors then holding
office.
ARTICLE XII.
REIMBURSEMENT OF DISALLOWED PAYMENTS TO OFFICERS AND EMPLOYEES
In the event any payments to an officer or employee of this
corporation such as salary, commission, bonus, interest, or rent, or
entertainment expenses incurred by him, is thereafter disallowed in whole or in
part by the Internal Revenue Service as a proper deduction for income tax
purposes under Section 162 of the Internal Revenue Code of 1954, as amended (or
disallowed under any similar Code section which may subsequently replace
Section 162), such disa11owed payments shall be deemed to be an obligation owed
by such officer or employee to this corporation.
- 21 -
Such disallowed payments shall be reimbursed by such officer or
employee to this corporation on or before ninety (90) days following the final
determination of such disallowance by the Internal Revenue Service or entry of
the final judgment of such determination if adjudicated. It shall be the duty
of the Board of Directors to enforce reimbursement of each such amount
disallowed, including the withholding from future compensation payments to such
officer or employee until the amount owed to this corporation has been
recovered.
- 22 -
EX 3.68
CERTIFICATE OF INCORPORATION
OF
UAG WEST, INC.
FIRST: The name of the corporation is UAG West, Inc.
SECOND: The address of the corporation's registered office in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of the corporation's registered agent at such address is
The Corporation Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act
or activity for which corporations may be organized under the Delaware General
Corporation Law.
FOURTH: The total number of shares of stock which the corporation is
authorized to issue is one thousand (1,000) shares of common stock, having a
par value of one dollar ($1.00) per share.
FIFTH: The business and affairs of the corporation shall be managed by
or under the direction of the board of directors, and the directors need not be
elected by ballot unless required by the by-laws of the corporation.
SIXTH: In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware, the board of directors is expressly
authorized to make, amend and repeal the by-laws.
SEVENTH: 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 a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit. If
the Delaware General Corporation Law 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 Delaware General Corporation Law, as so
amended. Any repeal or modification of this provision shall not adversely
affect any right or protection of a director of the corporation existing at the
time of such repeal or modification.
EIGHTH: The corporation reserves the right to amend and repeal any
provision contained in this Certificate of Incorporation in the manner from
time to time prescribed by the laws of the State of Delaware. All rights herein
conferred are granted subject to this reservation.
NINTH: The incorporator is David G. Thunhorst, whose mailing address
is 2700 Cain Tower, Peachtree Center, 229 Peachtree Street, N.E., Atlanta,
Georgia 30303.
-2-
I, the Undersigned, being the incorporator, for the purpose of forming
a corporation under the laws of the State of Delaware, do make, file and record
this Certificate of Incorporation and, accordingly, have hereto set my hand
this 22nd day of May, 1996.
/s/ David G. Thunhorst
----------------------------------
David G. Thunhorst
-3-
EX 3.70
ARTICLES OF INCORPORATION
OF
LRP, LTD.
-----------------
We, the undersigned incorporators, having associated ourselves
together for the purpose of forming a corporation under the laws of the State
of Arizona, adopt the following Articles of Incorporation:
I.
NAME
The name of the corporation is LRP, LTD.
II.
PURPOSE
This corporation is organized for the purpose of transacting any or
all lawful business for which corporations may be incorporated under the laws
of the State of Arizona, as amended from time to time.
III.
INITIAL BUSINESS
The corporation initially intends actually to conduct in the State of
Arizona the business of purchasing, owning, leasing, selling, repairing and
servicing new and used motor vehicles and parts and accessories used in
connection herewith.
IV.
AUTHORIZED CAPITAL
The corporation shall have authority to issue ten million (10,000,000)
common shares without par value. Shares shall be paid for at such time, and in
such manner, as the Board of Directors shall determine.
V.
INITIAL BOARD OF DIRECTORS
The initial Board of Directors shall consist of four members, who
shall serve as the directors until the first annual meeting of the shareholders
or until their successors are elected and qualified, and whose names and
addresses are:
Name Address
---- -------
Steven Knappenberger 6725 E. McDowell Road
Scottsdale, Arizona 85257
Thomas N. Fannin 6725 E. McDowell Road
Scottsdale, Arizona 85257
Jay P. Beskind 6905 E. McDowell Road
Scottsdale, Arizona 85257
George W. Brochick 6725 E. McDowell Road
Scottsdale, Arizona 85257
VI.
LIMITATION OF DIRECTOR LIABILITY
No director of the corporation shall be personally liable to the
corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director; provided, however, that this Article shall not eliminate or
limit the liability of a director for (i) any breach of the director's duty of
loyalty to the corporation or its shareholders; (ii) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law; (iii) authorizing the unlawful payment of a dividend or other distribution
on the corporation's capital stock or the unlawful purchase of its capital
stock; (iv) a violation of Arizona Revised Statutes Section 10-041 -- Director
conflicts of interest; or (v) any transaction from which the director derived
an improper personal benefit.
VII.
INCORPORATORS
The names and addresses of the incorporators are:
Stephen M. Savage
Charlene Sarich
2 North Central Ave., #2200
Phoenix, Arizona 85004-2390
All powers, duties and responsibilities of the incorporators shall
cease at the time of delivery of these Articles of Incorporation to the Arizona
Corporation Commission for filing.
VIII.
STATUTORY AGENT
FC Service Corporation, an Arizona corporation, Two North Central
Avenue, Suite 2200, Phoenix, Arizona 85004-2390, is
-2-
hereby appointed the initial Statutory Agent for the corporation for the State
of Arizona.
IX.
Known Place of Business
The corporation's known place of business is 6725 E. McDowell Road,
Scottsdale, Arizona 85257.
IN WITNESS WHEREOF, the undersigned incorporators have hereunto
affixed their signatures this 21st day of July, 1995.
/s/ Stephen M. Savage
---------------------------------
Stephen M. Savage
/s/ Charlene Sarich
---------------------------------
Charlene Sarich
-3-
EX-3.71
BYLAWS
of
LRP, LTD.
ARTICLE I
Corporation Articles
Section 1.01. Reference to Articles. Any reference herein made to
the corporation's articles shall be deemed to refer to its articles of
incorporation and all amendments thereto as at any given time on file with the
Arizona Corporation Commission, together with any and all certificates filed
by the corporation with the Arizona Corporation Commission (or any successor
to its functions) pursuant to applicable law.
Section 1.02. Seniority. The articles shall in all respects be
considered senior and superior to these bylaws, with any inconsistency to be
resolved in favor of the articles, and with these bylaws to be deemed
automatically amended from time to time to eliminate any such inconsistency
which may then exist.
ARTICLE II
Corporation Offices
Section 2.01. Known Place of Business. The known place of business
of the corporation in the State of Arizona shall be the office of its
statutory agent unless otherwise designated in the articles. The corporation
may have such other offices, either within or without the State of Arizona, as
the board of directors may designate or as the business of the corporation may
require from time to time.
Section 2.02. Changes. The board of directors may change the
corporation's known place of business or its statutory agent from time to time
by filing a statement with the Arizona Corporation Commission pursuant to
applicable law.
ARTICLE III
Shareholders
Section 3.01. Annual Meetings. Each annual meeting of the
shareholders is to be held on the third Friday in the month of April of each
year, commencing with the year 1996 (unless that day be a legal holiday, in
which event the annual meeting shall be held on the next succeeding business
day) at a time and place as determined by the board of directors, or in the
absence of action by the board, as set forth in the notice given, or waiver
signed, with respect to such meeting pursuant to Section 3.03 below. At the
annual meeting, shareholders shall elect a board of directors and transact
such other business as may be properly brought before the meeting. If for any
reason any annual meeting is not held on the date determined as set forth
above, a deferred annual meeting may thereafter be called and held in lieu
thereof, at which the same proceedings (including the election of directors)
may be conducted. Any director elected at any annual meeting, deferred annual
meeting, or special meeting shall continue in office until the election of his
successor, subject to his earlier resignation pursuant to Section 7.01 below.
Section 3.02. Special Meetings. Special meetings of the shareholders
may be held whenever and wherever called for by the chairman of the board, the
president or the board of directors, or by the written demand of the holders
of not less than ten percent (10%) of all issued and outstanding shares of the
corporation entitled to vote at any such meeting. Any written demand by
shareholders shall state the purpose or purposes of the proposed meeting, and
business to be transacted at any such meeting shall be confined to the
purposes stated in the notice thereof, and to such additional matters as the
chairman of the meeting may rule to be germane to such purposes.
Section 3.03. Notices. Not less than ten (10) nor more than fifty
(50) days (inclusive of the date of meeting) before the date of any meeting of
the shareholders and at the direction of the person or persons calling the
meeting, the secretary of the corporation, or any other officer of the
corporation, shall cause a written notice setting forth the time, place, and
general purposes of the meeting to be delivered personally or to be deposited
in the mail, with first class or airmail postage prepaid, addressed to each
shareholder of record at his last address as it appears on the corporation's
records on the applicable record date.
Section 3.04. Waiver of Notice. Any shareholder may waive call or
notice of any annual, deferred annual, or special meeting (and any adjournment
thereof) at any time before, during which, or after it is held. Attendance of
a shareholder at any such meeting in person or by proxy shall automatically
evidence his waiver of call and notice of such meeting (and any adjournment
thereof) unless he or his proxy is attending the meeting for the express
purpose of objecting to the transaction of business because the meeting has
not been properly called or noticed. No call or notice of a meeting of the
shareholders shall be necessary if each shareholder waives the same in writing
or by attendance.
Section 3.05. Shareholders of Record. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders
(and at any adjournment of such meeting), or shareholders entitled to consent
to corporate action without a meeting or shareholders entitled to receive
payment of any
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dividend, or for any other lawful action, the board of directors may fix in
advance a record date which shall not be more than seventy (70) nor less than
ten (10) days before the date of such meeting or any such other action.
If no record date is fixed by the board of directors for determining
shareholders entitled to notice of, and to vote at, a meeting of shareholders,
the record date shall be at four o'clock in the afternoon on the day before
the day on which notice is given, or, if notice is waived, at the commencement
of the meeting. If no record date is fixed for determining shareholders
entitled to express written consent to corporate action without a meeting, the
record date shall be the time of the day on which the first written consent is
served upon an officer or director of the corporation.
A determination of shareholders of record entitled to notice of, and
to vote at, a meeting of shareholders shall apply to any adjournment of the
meeting; provided, however, that the board of directors may fix a new record
date for the adjourned meeting, and further provided that the adjournment or
adjournments of any such meeting do not exceed thirty (30) days in the
aggregate.
Section 3.06. Shareholder Record. The officer or agent having charge
of the stock transfer books for shares of the corporation shall make, at least
ten (10) days before every meeting of shareholders, a complete record of the
shareholders entitled to vote at the meeting (and at any adjournment thereof),
arranged in alphabetical order, showing the address and the number of shares
registered in the name of each shareholder. Such record shall be produced and
kept open (i) at the office of the corporation before the time of the meeting,
and (ii) at the time and place of the meeting; such record shall be subject to
the inspection of any shareholder during such times for any purpose germane to
the meeting.
Section 3.07. Proxies. Any shareholder entitled to vote thereat may
vote by proxy at any meeting of the shareholders (and at any adjournment
thereof) which is specified in such proxy, provided that his or her proxy is
executed in writing by such shareholder or his or her duly authorized
attorney-in-fact. No proxy shall be valid after eleven (11) months from the
date of its execution, unless otherwise specifically provided thereon. The
burden of proving the validity of any undated, irrevocable or otherwise
contested proxy at a meeting of the shareholders shall rest with the person
seeking to exercise the proxy. A telegram, cablegram or facsimile appearing to
have been transmitted by a shareholder or by his duly authorized
attorney-in-fact may be accepted as a sufficiently written and executed proxy.
Section 3.08. Voting. Except for the election of directors (which
shall be governed by cumulative voting pursuant to applicable law) and except
as may otherwise be required by the corporation's articles, these bylaws or by
statute, each issued
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and outstanding share of the corporation (specifically excluding shares held
in the treasury of the corporation) represented at any meeting of the
shareholders in person or by a proxy given pursuant to Section 3.07 above,
shall be entitled to one vote on each matter submitted to a vote of the
shareholders at such meeting. Unless otherwise required by the corporation's
articles or by applicable law, any question submitted to the shareholders
shall be resolved by a majority of the votes cast thereon, provided that
such votes constitute a majority of the quorum of that particular meeting,
whether or not such quorum is then present. Voting shall be by ballot on
any question as to which a ballot vote is demanded before the voting begins,
by any person entitled to vote on such question; otherwise, a voice vote shall
suffice. No ballot or change of vote shall be accepted after the polls have
been declared closed following the ending of the announced time for voting.
Section 3.09. Voting of Shares by Certain Holders. Shares of the
corporation held by another corporation may be voted by such corporation's
officer, agent, or proxy as its bylaws may prescribe, or in the absence of
such bylaw provision, by any other person designated by resolution of its
board of directors, and such officer, agent, or other person so designated may
vote such corporation's shares in this corporation in person or by proxy
appointed by him.
Shares held by an administrator, executor, legal representative,
guardian, conservator, or other legal representative, may be voted by such
representative, either in person or by proxy, without a transfer of such
shares into his name. Shares standing in the name of a trustee, other than a
trustee in bankruptcy, may be voted by such representative, either in person
or by proxy, but no such trustee shall be entitled to vote shares held by him
without a transfer of such shares into his name.
Shares standing in the name of a receiver, trustee in bankruptcy, or
assignee for the benefit of creditors may be voted by such representative,
either in person or by proxy. Shares held by or under the control of such a
receiver or trustee may be voted by such receiver or trustee, either in person
or by proxy, without the transfer thereof into his name if authority so to do
be contained in an appropriate order of the court by which such receiver or
trustee was appointed.
A shareholder whose shares are pledged shall be entitled to vote
such shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee shall be entitled to vote the shares so
transferred.
If shares stand in the names of two or more persons, whether
fiduciaries, members of a partnership, joint tenants, tenants in common,
tenants by the entirety, or tenants by community property or otherwise, or if
two or more persons have the same fiduciary relationship respecting the same
shares, unless the corporation
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is given a written instrument or order appointing them or creating the
relationship wherein it is so provided, their acts with respect to voting
shall have the following effect: (1) if only one votes, his act binds,
(2) if more than one votes, the act of the majority so voting binds all,
and (3) if more than one votes, but the vote is evenly split on any
particular matter, each faction may vote the shares in question proportionally.
Section 3.10. Quorum. At any meeting of the shareholders, the
presence in person or by proxy of the holders of a majority of the shares of
the corporation issued, outstanding, and entitled to vote at the meeting shall
constitute a quorum of the shareholders for all purposes. In the absence of a
quorum, any meeting may be adjourned from time to time by its chairman,
without notice other than by announcement at the meeting, until a quorum is
formed. At any such adjourned meeting at which a quorum is present, any
business may be transacted which might have been transacted at the meeting as
originally noticed. Once a quorum has been formed at any meeting, the
shareholders from time to time remaining in attendance may continue to
transact business until adjournment, notwithstanding the prior departure of
enough shareholders to leave less than a quorum. If an adjournment is for more
than thirty (30) days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each shareholder of record entitled to vote at the meeting.
Section 3.11. Election Inspectors. The board of directors, in
advance of any meeting of the shareholders, may appoint an election inspector
or inspectors to act at such meeting (and at any adjournment thereof). If an
election inspector or inspectors are not so appointed, the chairman of the
meeting may, or upon request of any person entitled to vote at the meeting
shall, make such appointment. If any person appointed as an inspector fails to
appear or to act, a substitute may be appointed by the chairman of the
meeting. If appointed, the election inspector or inspectors (acting through a
majority of them if there be more than one) shall determine the number of
shares outstanding, the authenticity, validity and effect of proxies and the
number of shares represented at the meeting in person and by proxy; they shall
receive and count votes, ballots and consents and announce the results
thereof; they shall hear and determine all challenges and questions pertaining
to proxies and voting; and, in general, they shall perform such acts as may be
proper to conduct elections and voting with complete fairness to all
shareholders. No such election inspector need be a shareholder of the
corporation.
Section 3.12. Organization and Conduct of Meetings. Each meeting of
the shareholders shall be called to order and thereafter chaired by the
chairman of the board of directors if there is one; or, if not, or if the
chairman of the board is absent or so requests, then by the president; or if
both the chairman of the board and the president are unavailable, then by
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such other officer of the corporation or such shareholder as may be appointed
by the board of directors. The corporation's secretary shall act as secretary
of each meeting of the shareholders; in his or her absence the chairman of the
meeting may appoint any person (whether a shareholder or not) to act as
secretary for the meeting. After calling a meeting to order, the chairman
thereof may require the registration of all shareholders intending to vote in
person and the filing of all proxies with the election inspector or
inspectors, if one or more have been appointed (or, if not, with the secretary
of the meeting). After the announced time for such filing of proxies has
ended, no further proxies or changes, substitutions or revocations of proxies
shall be accepted. If directors are to be elected, a tabulation of the proxies
so filed shall, if any person entitled to vote in such election so requests,
be announced at the meeting (or adjournment thereof) before the closing of the
election polls. Absent a showing of bad faith on his part, the chairman of a
meeting shall, among other things, have absolute authority to fix the period
of time allowed for the registration of shareholders and the filing of
proxies, to determine the order of business to be conducted at such meeting
and to establish reasonable rules for expediting the business of the meeting
(including any informal, or question and answer portions thereof).
Section 3.13. Shareholder Approval or Ratification. The board of
directors may submit any contract or act for approval or ratification of the
shareholders, either at a duly constituted meeting of the shareholders (the
notice of which either includes mention of the proposed submittal or is waived
pursuant to Section 3.04 above) or by unanimous written consent to corporate
action without a meeting pursuant to Section 3.15 below. If any contract or
act so submitted is approved or ratified by a majority of the votes cast
thereon at such meeting or by such unanimous written consent, the same shall
be valid and as binding upon the corporation and all of its shareholders as it
would be if it were the act of the shareholders.
Section 3.14. Informalities and Irregularities. All informalities or
irregularities in any call or notice of a meeting of the shareholders or in
the areas of credentials, proxies, quorums, voting, and similar matters, shall
be deemed waived if no objection is made at the meeting.
Section 3.15. Action by Shareholders Without a Meeting. Any action
required or permitted to be taken at a meeting of the shareholders of the
corporation may be taken without a meeting if a consent in writing, setting
forth the action so taken, is signed by all of the shareholders entitled to
vote with respect to the subject matter thereof. Such consent may be executed
in counterparts and shall have the same effect as a unanimous vote of the
shareholders of the corporation at a duly convened meeting.
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ARTICLE IV
Board of Directors
Section 4.01. Membership. The board of directors shall be comprised
of not less than two (2) nor more than seven (7) members who need not be
shareholders of the corporation. The directors shall regularly be elected at
each annual meeting of the shareholders. The board of directors shall have the
power to increase or decrease its size within the aforesaid limits and to fill
any vacancies that may occur in its membership in the interval between the
annual meetings of the shareholders, whether resulting from an increase in the
size of that board or otherwise. Each director elected by the shareholders or
the board of directors shall hold office until his or her successor is duly
elected and qualified; provided, however, that the shareholders entitled to
vote for the election of directors at a shareholders' meeting may fill any
vacancy in the board of directors, if not already filled, or substitute
another person to fill the vacancy, in which case the term of office of the
person elected by the board of directors shall forthwith terminate.
Section 4.02. General Powers. The board of directors shall have the
power to control and manage all of the affairs and property of the corporation
and to exercise, in addition to the powers and authorities expressly conferred
upon it by these bylaws or by the articles of incorporation, all powers as may
be exercised, and to do all such things that may be done by the corporation
which are not expressly reserved to the shareholders, as permitted by the laws
of the State of Arizona. It may restrict, enlarge, or otherwise modify the
powers and duties of any or all of the officers of this corporation. Without
limiting the generality of the foregoing, the board of directors may fix
record dates for determining shareholders of various classes having the right
to notice of and to vote at meetings and adjournments thereof, or the right to
receive dividends or other distributions, or the right to give consents to or
to dissent from certain actions or for any other purpose for which record
dates are or might be relevant, and to determine whether or not transfer books
should be closed in connection therewith.
Section 4.03. Regular Meetings. A regular annual meeting of the
board of directors shall be held as soon as practicable after the adjournment
of each annual meeting of the shareholders, either at the place of the
shareholders' meeting or at such other place as the directors elected at the
shareholders' meeting may have been informed of at or before the time of their
election. Additional regular meetings may be held at regular intervals at such
places and at such times as the board of directors may determine.
Section 4.04. Special Meetings. Special meetings of the board of
directors may be held whenever and wherever called for
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by the chairman of the board, the president, or the number of directors that
would be required to constitute a quorum.
Section 4.05. Notices. No notice need be given of regular meetings
of the board of directors. Written notice of the time and place (but not
necessarily the purpose or all of the purposes) of any special meeting shall
be given to each director in person or via mail, telegram or facsimile
addressed to him at his latest address appearing on the corporation's records.
Notice to any director of any such special meeting shall be deemed given
sufficiently in advance when (i) if given by mail, the same is deposited in
the mail, with first class or airmail postage prepaid, at least four (4) days
before the meeting date, (ii) if personally delivered or given by telegram or
facsimile, the same is handed to the director, or the telegram is delivered to
the telegraph office for fast transmittal or the facsimile is initiated, at
least forty-eight (48) hours before the convening of the meeting, or (iii) by
communicating actual notice to the director at least twenty-four (24) hours
before convening the meeting. Any person who has given notice hereunder may
make an affidavit that notice was given, which, as to the facts, shall be
conclusive.
Section 4.06. Waiver of Notice. Any director may waive call or
notice of any meeting (and any adjournment thereof) at any time before, during
which, or after it is held. Attendance of a director at any meeting shall
automatically evidence his waiver of call and notice of such meeting (and any
adjournment thereof) unless he is attending the meeting for the express
purpose of objecting to the transaction of business because the meeting has
not been properly called or noticed. No call or notice of a meeting of
directors shall be necessary if each of them waives the same in writing or by
attendance. Any meeting, once properly called and noticed (or as to which call
and notice have been waived) and at which a quorum is formed, may be adjourned
to another time and place by a majority of those in attendance.
Section 4.07. Quorum. A quorum for the transaction of business at
any meeting or adjourned meeting of the board of directors shall consist of a
majority of the directors then in office. Once a quorum has been formed, the
directors from time to time remaining in attendance at such meeting before its
adjournment shall continue to be legally competent to transact business
properly brought before the meeting, notwithstanding the prior departure from
the meeting of enough directors to leave less than a quorum.
Section 4.08. Voting. Any matter submitted to a meeting of the board
of directors shall be resolved by a majority of the votes cast thereon.
Section 4.09. Power to Act Notwithstanding Vacancy. Pending the
filling of vacancies in the board of directors, a
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majority of a full board of directors may exercise the powers of the board
of directors.
Section 4.10. Removal. Any director may be removed from the board of
directors, with or without cause, subject only to limitations provided by law.
Section 4.11. Executive Committee. The board of directors, by
resolution adopted by a majority of the full board, may name one or more of
its members as an executive committee. An executive committee shall have and
may exercise the powers of the board of directors in the management of the
business and affairs of the corporation while the board is not in session,
subject to such limitations as may be included in the board's resolution;
provided, however, that an executive committee shall not have the authority of
the board of directors in reference to the following matters: (1) the
submission to shareholders of any action that requires shareholders'
authorization or approval under applicable law; (2) the filling of vacancies
on the board of directors or on any committee of the board of directors; (3)
the amendment or repeal of the bylaws, or the adoption of new bylaws; and (4)
the fixing of compensation of directors for serving on the board or on any
committee of the board of directors. Any member of the executive committee may
be removed, with or without cause, by the board of directors. If any vacancy
occurs in the executive committee, it shall be filled by the board of
directors. The board of directors, with or without cause, may dissolve any
committee or remove any member thereof at any time.
Section 4.12. Other Committees. The board of directors, from time to
time, by resolution adopted by a majority of the full board, may appoint other
standing or temporary committees from its membership and vest such committees
with such powers as the board may include in its resolution; provided,
however, that such committees shall be restricted in their authority as
specifically set forth with respect to the executive committee in section 4.11
above.
Section 4.13. Tenure. Except in the case of resignation,
disqualification, removal, or the inability to serve for any reason, each
member of any committee established under this Article IV shall hold office
until the next regular annual meeting of the board of directors until his or
her successor is elected and qualified.
Section 4.14. Meetings. Regular meetings of committees established
under this Article IV may be held without notice at such times and places as
the committees may fix from time to time by resolution. Special meetings of a
committee may be called by any member thereof upon giving notice to other
members of the committee in the manner provided in Section 4.04 for special
meetings of the board of directors.
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Section 4.15. Quorum. A majority of the members of a committee shall
constitute a quorum for the transaction of business at any meeting thereof,
and action of any committee must be authorized by the affirmative vote of a
majority of the members present at a meeting at which a quorum is present.
Section 4.16. Presumption of Assent. A director of the corporation
who is present at a meeting of the board of directors or of any committee at
which action is taken on any matter shall be presumed to have assented to the
action taken unless his dissent is entered in the minutes of the meeting or
unless he files his written dissent to such action with the person acting as
secretary of the meeting before the adjournment thereof or forwards such
dissent by registered or certified mail to the secretary of the corporation
within two business days after the adjournment of the meeting. A right to
dissent shall not be available to a director who voted in favor of the action.
Section 4.17. Compensation. By resolution of the board of directors,
each director may be paid his expenses, if any, of attendance at each meeting
of the board of directors or of any committee, and may be paid a fixed sum for
attendance at each such meeting and/or a stated salary as a director or
committee member. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefrom.
Section 4.18. Action by Directors Without a Meeting. Any action
required or permitted to be taken at a meeting of the board of directors or of
any committee thereof may be taken without a meeting if a consent in writing,
setting forth the action so taken, is signed by all directors or committee
members. Such consent may be executed in counterparts and shall have the same
effect as a unanimous vote of the directors or committee members of the
corporation at a duly convened meeting.
Section 4.19. Meetings by Conference Telephone. Any member of the
board of directors or of a committee of the board may participate in any
meeting of the board or such committee by means of a conference telephone or
similar communication equipment whereby all members participating in such
meeting can hear one another. Such participation shall constitute attendance
in person, unless otherwise stated as provided in Section 4.06 above.
ARTICLE V
Officers - General
Section 5.01. Elections and Appointments. The board of directors
shall elect or appoint a president, one or more vice presidents, a secretary,
and a treasurer, and may choose a chairman of the board. The regular election
or appointment of officers shall take place at each annual meeting of the
board of
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directors, but elections of officers may be held at any other meeting
of the board. A person elected or appointed to any office shall continue to
hold that office until the election or appointment of his successor, subject
to action earlier taken pursuant to Sections 5.04 and 7.01 below. Any two or
more offices may be held by the same person, except the offices of president
and secretary.
Section 5.02. Additional Appointments. In addition to the officers
contemplated in Section 5.01 above, the board of directors may elect or
appoint other corporate or divisional officers or agents with such authority
to perform such duties as may be prescribed from time to time by the board of
directors, by the president or, in the case of assistant officers (as, for
example, one or more assistant secretaries), by the superior officer of any
person so elected or appointed. Each of such persons (in the order designated
by the board) shall be vested with all of the powers and charged with all of
the duties of his or her superior officer in the event of such superior
officer's absence or disability.
Section 5.03. Bonds and Other Requirements. The board of directors
may require any officer to give bond to the corporation (with sufficient
surety, and conditioned for the faithful performance of the duties of his or
her office) and to comply with such other conditions as may from time to time
be required of him or her by the board.
Section 5.04. Removal; Delegation of Duties. The board of directors
may, whenever in its judgment the best interests of the corporation will be
served thereby, remove any officer or agent of the corporation or temporarily
delegate his or her powers and duties to any other officer or to any director.
Such removal or delegation shall be without prejudice to the contract rights,
if any, of the person so removed or whose powers and duties have been
delegated. Election or appointment of an officer or agent shall not of itself
create contract rights.
Section 5.05. Salaries. The salaries of officers may be fixed from
time to time by the board of directors or (except as to the president's own)
left to the discretion of the president. No officer shall be prevented from
receiving a salary by reason of the fact that he or she is also a director of
the corporation.
ARTICLE VI
Specific Officers
Section 6.01. Chairman of the Board. The board of directors may
elect a chairman to serve as a general executive officer of the corporation,
and, if specifically designated as such by the board, as the chief executive
officer of the corporation. If elected, the chairman shall preside at all
meetings of the board of directors and be vested with such other
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powers and duties as the board may from time to time delegate to him or her.
Section 6.02. President and Vice President. Unless otherwise
specified by resolution of the board of directors, the president shall be the
chief executive officer of the corporation. The president shall supervise the
business and affairs of the corporation and the performance by all of its
other officers of their respective duties, subject to the control of the board
of directors (and of its chairman, if the chairman has been specifically
designated as chief executive officer of the corporation). One or more vice
presidents shall be elected by the board of directors to perform such duties
as may be designated by the board or be assigned or delegated to them by the
chief executive officer. Any one of the vice presidents as authorized by the
board shall be vested with all of the powers and charged with all of the
duties of the president in the event of his or her absence or inability to
act. Except as may otherwise be specifically provided in a resolution of the
board of directors, the president or any vice president shall be a proper
officer to sign, on behalf of the corporation, any deed, bill of sale,
assignment, option, mortgage, pledge, note, bond, evidence of indebtedness,
application, consent (to service of process or otherwise), agreement,
indenture or other instrument of any significant importance to the
corporation. The president or any vice president may represent the corporation
at any meeting of the shareholders of any other corporation in which this
corporation then holds shares, and may vote this corporation's shares in such
other corporation in person or by proxy appointed by him or her, provided that
the board of directors may from time to time confer the foregoing authority
upon any other person or persons.
Section 6.03. Secretary. The secretary shall keep the minutes of
meetings of the shareholders, board of directors, and any committee, and all
unanimous written consents of the shareholders, board of directors, and any
committee of the corporation, and shall see that all notices are duly given in
accordance with the provisions of these bylaws or as required by law, and in
case of his or her absence or refusal or neglect so to do, notices may be
served by any person thereunto directed by the president. The secretary shall
be custodian of the corporate seal and corporate records, and, in general,
perform all duties incident to the office. Except as may otherwise be
specifically provided in a resolution of the board of directors, the secretary
and each assistant secretary shall be a proper officer to take charge of the
corporation's stock transfer books and to compile the voting record pursuant
to Section 3.06 above, and to impress the corporation's seal on any instrument
signed by the president, any vice president, or any other duly authorized
person, and to attest to the same.
Section 6.04. Treasurer. The treasurer shall keep full and accurate
accounts of receipts and disbursements in books
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belonging to the corporation, and shall cause all money and other valuable
effects to be deposited in the name and to the credit of the corporation in
such depositories, subject to withdrawal in such manner, as may be designated
by the board of directors. He or she shall render to the president, the
directors, and the shareholders at proper times an account of all his or her
transactions as treasurer and of the financial condition of the corporation.
The treasurer shall be responsible for preparing and filing such financial
reports, financial statements, and returns as may be required by law.
ARTICLE VII
Resignations and Vacancies
Section 7.01. Resignations. Any director, committee member, or
officer may resign from his or her office at any time by written notice
delivered or addressed to the corporation at its known place of business. Any
such resignation shall be effective upon its receipt by the corporation unless
some later time is fixed in such notice, and then from that time. The
acceptance of a resignation shall not be required to make it effective.
Section 7.02. Vacancies. If the office of any director, committee
member, or officer becomes vacant by reason of his or her death, resignation,
disqualification, removal, or otherwise, the board of directors may choose a
successor to hold office for the unexpired term.
ARTICLE VIII
Seal
The board of directors may provide for a seal of the corporation,
which shall have inscribed thereon the name of the corporation and the state
and year of its incorporation.
ARTICLE IX
Certificates Representing Shares
Section 9.01. Form. Each certificate representing shares of the
corporation shall be in such form as may from time to time be prescribed by
the board of directors, shall be consecutively numbered, and shall exhibit
such information as may be required by applicable law.
Section 9.02. Signatures and Seal. All certificates issued for
shares of the corporation (whether new, re-issued, or transferred) shall bear
the signatures of the president or a vice president, and of the secretary or
an assistant secretary, and the impression of the corporation's corporate
seal, if any. The signatures of such officers of the corporation and the
impression
-13-
of its corporate seal may be in facsimile form on any certificate
that is countersigned by a transfer agent and/or registered by a registrar
duly appointed by the corporation and other than the corporation itself or one
of its employees. If a supply of unissued certificates bearing the facsimile
signature of a person remains when that person ceases to hold the office of
the corporation indicated on such certificates, they may still be
countersigned, registered, issued, and delivered by the corporation's transfer
agent and/or registrar thereafter, the same as though such person had
continued to hold the office indicated on such certificate.
Section 9.03. Ownership. The corporation shall be entitled to treat
the registered owner of any share as the absolute owner thereof and,
accordingly, shall not be bound to recognize any beneficial, equitable or
other claim to, or interest in, such share on the part of any other person,
whether or not it has notice thereof, except as may expressly be provided by
applicable law.
Section 9.04. Transfers. Transfers of shares of the corporation may
be made on the stock transfer books of the corporation only at the direction
of the person named in the certificate (or by his or her duly authorized
attorney-in-fact) and upon the surrender of such certificate. The transfer of
the shares of the corporation shall be subject to such restrictions on
transfer, if any, as may be imposed by the articles of incorporation, by any
amendment thereof, or by any agreement of the shareholders. No transfer shall
affect the right of the corporation to pay any dividend due upon the shares or
to treat the holder of record as the holder-in-fact until the transfer has
been recorded in the books of the corporation.
Section 9.05. Lost Certificates. In the event of the loss, theft, or
destruction of any certificates representing shares of the corporation or of
any predecessor corporation, the corporation may issue (or, in the case of any
such shares as to which a transfer agent and/or registrar have been appointed,
may direct such transfer agent and/or registrar to countersign, register, and
issue) a new certificate, and cause the same to be delivered to the owner of
the shares represented thereby, provided that the owner shall have submitted
such evidence showing, or an affidavit reciting, the circumstances of the
alleged loss, theft, or destruction, and his ownership of the certificate, as
the corporation considers satisfactory, together with any other facts that the
corporation considers pertinent, and further provided that a bond of
indemnity, with or without surety, shall have been provided in form and amount
satisfactory to the corporation (and to its transfer agent and/or registrar,
if applicable) , unless the shares represented by the certificate lost,
stolen, or destroyed have at the time of the issuance of the new certificate a
market value of $500 or less (as determined by the corporation on the basis of
such information as it may select) , in which case the requirement of a bond
may be waived.
-14-
The corporation may act through its president, any vice
president, its secretary, or its treasurer for any purpose of this Section
9.05.
ARTICLE X
Dividends
Subject to such restrictions or requirements as may be imposed by
applicable law or the corporation's articles or as may otherwise be binding
upon the corporation, the board of directors may from time to time declare and
the corporation may pay dividends on shares of the corporation outstanding on
the dates of record fixed by the board, to be paid in cash, in property, or in
shares of the corporation on or as of such payment or distribution dates as
the board may prescribe.
ARTICLE XI
Amendments
These bylaws may be altered, amended, supplemented, repealed, or
temporarily or permanently suspended, in whole or in part, or new bylaws may
be adopted, at any duly constituted meeting of the board of directors (the
notice of which meeting either includes mention of the proposed action
relative to the bylaws or is waived pursuant to Section 4.06 above) or,
alternatively, by unanimous written consent to corporate action without a
meeting of the board of directors, pursuant to Section 4.18 above. If,
however, any such action arises as a matter of necessity at any such meeting
and is otherwise proper, no notice thereof shall be required. Any amendment
made to a bylaw shall be noted on the margin of the bylaw amended, referring
to the page of the record where the amendment appears.
Certificate of Adoption
The undersigned secretary does hereby certify that the foregoing
bylaws were adopted by the board of directors of LRP, Ltd. pursuant to a
written consent of the board of directors dated as of August 1, 1995.
/s/ Tamara F. Knappenberger
----------------------------------
Tamara F. Knappenberger, Secretary
-15-
EX 3.72
ARTICLES OF INCORPORATION
OF
SA AUTOMOTIVE, LTD.
We, the undersigned incorporators, having associated ourselves
together for the purpose of forming a corporation under the laws of the State
of Arizona, hereby adopt the following Articles of Incorporation.
I.
The name of the corporation shall be:
SA Automotive, Ltd.
II.
This corporation is organized for the purpose of transacting any or
all lawful business for which corporations may be incorporated under the laws
of the State of Arizona, as amended from time to time. The corporation
initially intends to conduct the business of purchasing, owning, leasing,
selling, repairing and servicing new and used motor vehicles and parts and
accessories used in connection therewith.
III.
The corporation shall have authority to issue 1,000,000 shares of
common stock, each share to have a par value of $1.00. Shares shall be paid for
at such time, and in such manner as the Board of Directors shall determine.
IV.
The initial Board of Directors shall consist of three (3) members who
shall serve as directors until the first annual meeting of the shareholders or
until their successors are elected and qualified, and whose names and addresses
are:
Steven Knappenberger
5325 North 45th Place
Phoenix, Arizona 85018
Alan P. Johnson
3663 Rosecrans Street
San Diego, California 92110
Thomas N. Fannin
77 East Missouri
Phoenix, Arizona 85012
The names and addresses of the incorporators are:
Steven Knappenberger Revocable Trust
c/o Steven Knappenberger
5325 North 45th Place
Phoenix, Arizona 85018
Alan P. Johnson, as Trustee, udt
(under Declaration of Trust)
dated April 7, 1982, wherein
Alan P. Johnson is Trustor,
or any successor Trustee thereunder
c/o Alan P. Johnson
3663 Rosecrans Street
San Diego, California 92110
All powers, duties and responsibilities of the incorporators shall
cease at the time of delivery of these Articles of Incorporation to the Arizona
Corporation commission for filing.
VI.
FC Service Corporation, an Arizona corporation, Two North Central
Avenue, Suite 2200, Phoenix, Arizona 85004-2390, is hereby appointed the
initial statutory agent for the corporation for the State of Arizona.
VII.
The Corporation's known place of business shall be 6905 E. McDowell
Road, Scottsdale, Arizona 85257.
IN WITNESS WHEREOF, the undersigned incorporators have hereunto
affixed their signatures this 3rd day of June, 1986.
Steven Knappenberger
Revocable Trust
By /s/ Steven Knappenberger
-------------------------------
Steven Knappenberger, Trustee
Alan P. Johnson, as Trustee, udt
(under Declaration of Trust) dated
April 7, 1982, wherein Alan P.
Johnson is Trustor, or any
successor Trustee thereunder.
By /s/ Alan P. Johnson
--------------------------------
Alan P. Johnson, Trustee
3
ARTICLES OF AMENDMENT TO THE
ARTICLES OF INCORPORATION
OF
SA AUTOMOTIVE, LTD.
Pursuant to the provisions of A.R.S. ss. 10-061, SA Automotive, Ltd.,
an Arizona corporation (the "Corporation") hereby adopts these Articles of
Amendment and certifies as follows:
FIRST: The name of the Corporation is SA Automotive, Ltd.
SECOND: The Articles of Incorporation are hereby amended by adding new
Articles VIII and IX to read as follows:
"VIII
LIMITATION OF DIRECTOR LIABILITY
No director of the corporation shall be personally liable to the
corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director; provided, however, that this Article
shall not eliminate or limit the liability of a director for (i) any
breach of the director's duty of loyalty to the corporation or its
shareholders; (ii) acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law; (iii)
authorizing the unlawful payment of a dividend or other distribution
on the corporation's capital stock or the unlawful purchase of its
capital stock; (iv) a violation of Arizona Revised Statutes Section
10-041 -- Director conflicts of interest; or (v) any transaction from
which the director derived an improper personal benefit. This Article
shall not eliminate or limit the liability of a director for any act
or omission occurring before August 18, 1987.
IX
INDEMNIFICATION OF OFFICERS,
DIRECTORS, EMPLOYEES AND AGENTS
Subject to the further provisions hereof, the corporation shall
indemnify any and all of its existing and former director, officers,
employees, and agents against all expenses incurred by them
and each of them including but not limited to legal fees, judgments,
penalties, and amounts paid in settlement or compromise, which may
arise or be incurred, rendered, or levied in any legal action brought
or threatened against any of them for or on account of any action or
omission alleged to have been committed while acting within the scope
of employment as director, officer, employee or agent of the
corporation, whether or not any action is or has been filed against
them and whether or not any settlement or compromise is approved by a
court. Indemnification shall be made by the corporation whether the
legal action brought or threatened is by or in the right of the
corporation or any other person. Whenever any existing or former
director, officer, employee or agent shall report to the President of
the corporation or the chairman of the Board of Directors that he or
she has incurred or may incur expenses, including but not limited to
legal fees, judgments, penalties, and amounts paid in settlement or
compromise in a legal action brought or threatened against him or her
for or on account of any action or omission alleged to have been
committed by him or her while acting within the scope of his or her
employment as a director, officer, employee or agent of the
corporation, the Board of Directors shall, at its next regular or
special meeting held within a reasonable time thereafter, determine in
good faith whether, in regard to the matter involved in the action or
contemplated action, such person acted, failed to act, or refused to
act wilfully or with gross negligence or with fraudulent or criminal
intent. If the Board of Directors determines in good faith that such
person did not act, fail to act, or refuse to act wilfully or with
gross negligence or with fraudulent or criminal intent with regard to
the matter involved in the action or contemplated action,
indemnification shall be mandatory and shall be automatically extended
as specified herein, provided, however, that the corporation shall
have the right to refuse indemnification in any instance in which the
person to whom indemnification would otherwise have been applicable
shall have unreasonably refused to permit the corporation, at its own
expense and through counsel of its own choosing, to defend him or her
in the action."
2
THIRD: The foregoing Amendment to the Articles of Incorporation was
adopted by the directors and shareholders of the Corporation as of August 24,
1994, in the manner prescribed by the Arizona Business Corporation Act.
FOURTH: 1,271,010 shares of common stock without par value were
outstanding at the time of adoption of the Amendment and the total number of
shares entitled to vote thereon was 1,271,010.
FIFTH: All of the outstanding 1,271,010 shares of common stock without
par value voted for the Amendment, there being no other classes or series of
shares.
SIXTH: The Amendment does not provide for an exchange,
reclassification or cancellation of issued shares.
SEVENTH: The Amendment will not effect a change in the amount of the
Corporation's stated capital.
DATED: August 24, 1994.
SA AUTOMOTIVE, LTD., an Arizona
corporation
By: /s/ George W. Brochick
-------------------------------
George W. Brochick, President
By: /s/ Stephen M. Savage
-------------------------------
Stephen M. Savage, Assistant
Secretary
3
EX-3.74
ARTICLES OF INCORPORATION
OF
SL AUTOMOTIVE, LTD.
We, the undersigned incorporators, having associated
ourselves together for the purpose of forming a corporation under the laws of
the State of Arizona, hereby adopt the following Articles of Incorporation.
I.
The name of the corporation shall be:
SL Automotive, Ltd.
II.
This corporation is organized for the purpose of transacting
any or all lawful business for which corporations may be incorporated under
the laws of the State of Arizona, as amended from time to time. The
corporation initially intends to conduct the business of purchasing, owning,
leasing, selling, repairing and servicing new and used motor vehicles and
parts and accessories used in connection therewith.
III.
The corporation shall have authority to issue 1,000,000
shares of common stock, each share to have a par value of $1.00. Shares shall
be paid for at such time, and in such manner, as the Board of Directors shall
determine.
IV.
The initial Board of Directors shall consist of three (3)
members who shall serve as directors until the first annual meeting of the
shareholders or until their successors are elected and qualified, and whose
names and addresses are:
Steven Knappenberger
5325 North 45th Place
Phoenix, Arizona 85018
Alan P. Johnson
3663 Rosecrane Street
San Diego, California 92110
Thomas N. Fannin
77 East Missouri
Phoenix, Arizona 85012
The names and addresses of the incorporators are:
Steven Knappenberger Revocable Trust
c/o Steven Knappenberger
5325 North 45th Place
Phoenix, Arizona 85018
Scottsdale Management Group, Ltd.
6905 East McDowell Road
Scottsdale, Arizona 85257
All powers, duties and responsibilities of the incorporators
shall cease at the time of delivery of these Articles of Incorporation to the
Arizona Corporation Commission for filing.
VI.
No director of the corporation shall be personally liable to
the corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director; provided, however, that this Article shall not
eliminate or limit the liability of a director for (i) any breach of the
director's duty of loyalty to the corporation or its shareholders; (ii) acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) authorizing the unlawful payment of a dividend
or other distribution on the corporation's capital stock or the unlawful
purchase of its capital stock; (iv) a violation of Arizona Revised Statutes
Section 10-041 relating to director conflicts of interest; or (v) any
transaction from which the director derived an improper personal benefit.
VII.
PC Service Corporation, an Arizona corporation, Two North
Central Avenue, Suite 2200, Phoenix, Arizona 85004-2390, is hereby appointed
the initial statutory agent for the corporation for the State of Arizona.
VIII.
The corporation's known place of business shall be 6905 East
McDowell Road, Scottsdale, Arizona 85257.
-2-
IN WITNESS WHEREOF, the undersigned incorporators have
hereunto affixed their signatures this 8th day of April, 1988.
Steven Knappenberger Revocable Trust
By /s/ Steven Knappenberger
----------------------------------
Steven Knappenberger, Trustee
Scottsdale Management Group, Ltd.
By /s/ Steven Knappenberger
----------------------------------
Steven Knappenberger, President
-3-
ARTICLES OF AMENDMENT TO THE
ARTICLES OF INCORPORATION
OF
SL AUTOMOTIVE, LTD.
Pursuant to the provisions of A.R.S. ss. 10-061, SL
Automotive, Ltd., an Arizona corporation (the "Corporation") hereby adopts
these Articles of Amendment and certifies an follows:
FIRST: The name of the Corporation is SL Automotive, Ltd.
SECOND: Article III of the Articles of Incorporation of the
Corporation is amended to read as follows:
"The corporation shall have authority to issue ten million
shares of common stock, each share to be without par value.
Shares shall be paid for at such time, and in such manner,
as the Board of Directors shall determine."
THIRD: The foregoing Amendment to the Articles of
Incorporation was adopted by the directors and shareholders of the Corporation
as of July 14, 1992, in the manner prescribed by the Arizona Business
Corporation Act.
FOURTH: 500,000 shares of common stock with a par value of
$1.00 per share were outstanding at the time of adoption of the Amendment and
the total number of shares entitled to vote thereon was 500,000.
FIFTH: All of the outstanding 500,000 shares of common stock
with a par value of $1.00 per share voted for the Amendment, there being no
other classes or series of shares.
SIXTH: The Amendment does not provide for an exchange,
reclassification or cancellation of issued shares.
SEVENTH: The Amendment will not effect a change in the
amount of the Corporation's stated capital.
DATED: July 14, 1992.
SL AUTOMOTIVE, LTD., an Arizona corporation
By /s/ Jay P. Beskind
-------------------------------
Jay P. Beskind, President
By /s/ William T. Boutell, Jr.
-------------------------------
William T. Boutell, Jr.,
Assistant Secretary
ARTICLES OF AMENDMENT TO THE
ARTICLES OF INCORPORATION
OF
SL AUTOMOTIVE, LTD.
Pursuant to the provisions of A.R.S. ss. 10-061, SL
Automotive, Ltd., an Arizona corporation (the "Corporation") hereby adopts
these Articles of Amendment and certifies as follows:
FIRST: The name of the Corporation is SL Automotive, Ltd.
SECOND: The Articles of Incorporation are hereby amended by adding a
new Article IX to read as follows:
"IX
INDEMNIFICATION OF OFFICERS,
DIRECTORS, EMPLOYEES AND AGENTS
Subject to the further provisions hereof, the corporation shall
indemnify any and all of its existing and former directors, officers,
employees, and agents against all expenses incurred by them and each
of them including but not limited to legal fees, judgments,
penalties, and amounts paid in settlement or compromise, which may
arise or be incurred, rendered, or levied in any legal action brought
or threatened against any of them for or on account of any action or
omission alleged to have been committed while acting within the scope
of employment as director, officer, employee or agent of the
corporation, whether or not any action is or has been filed against
them and whether or not any settlement or compromise is approved by a
court. Indemnification shall be made by the corporation whether the
legal action brought or threatened is by or in the right of the
corporation or any other person. Whenever any existing or former
director, officer, employee or agent shall report to the President of
the corporation or the chairman of the Board of Directors that he or
she has incurred or may incur expenses, including but not limited to
legal fees, judgments, penalties, and amounts paid in settlement or
compromise in a legal action brought or threatened against him or her
for or on account of any action or omission alleged to have been
committed by him or her while acting within the scope of his or her
employment as a director, officer, employee or agent of the
corporation, the Board of Directors shall, at its next regular or
special meeting held within a
reasonable time thereafter, determine in good faith whether, in
regard to the matter involved in the action or contemplated action,
such person acted, failed to act, or refused to act willfully or with
gross negligence or with fraudulent or criminal intent. If the Board
of Directors determines in good faith that such person did not act,
fail to act, or refuse to act wilfully or with gross negligence or
with fraudulent or criminal intent with regard to the matter involved
in the action or contemplated action, indemnification shall be
mandatory and shall be automatically extended as specified herein,
provided, however, that the corporation shall have the right to
refuse indemnification in any instance in which the person to whom
indemnification would otherwise have been applicable shall have
unreasonably refused to permit the corporation, at its own expense
and through counsel of its own choosing, to defend him or her in the
action."
THIRD: The foregoing Amendment to the Articles of Incorporation was
adopted by the directors and shareholders of the Corporation as of August 24,
1994, in the manner prescribed by the Arizona Business Corporation Act.
FOURTH: 625,000 shares of common stock without par value were
outstanding at the time of adoption of the Amendment and the total number of
shares entitled to vote thereon was 625,000.
FIFTH: All of the outstanding 625,000 shares of common stock without
par value voted for the Amendment, there being no other classes or series of
shares.
SIXTH: The Amendment does not provide for an exchange,
reclassification or cancellation of issued shares.
SEVENTH: The Amendment will not effect a change in the amount of the
Corporation's stated capital.
DATED: August 24, 1994.
SL AUTOMOTIVE, LTD., an Arizona
corporation
By /s/ Jay P. Beskind
-----------------------------
Jay P. Beskind, President
By /s/ Stephen M. Savage
-----------------------------
Stephen M. Savage, Assistant
Secretary
EXHIBIT 3.76
ARTICLES OF INCORPORATION
OF
SCOTTSDALE AUDI, LTD.
FIRST: The name of the corporation is SCOTTSDALE AUDI, LTD.
SECOND: The purpose for which the corporation is organized
is the transaction of any or all lawful business for which corporations may be
incorporated under the laws of the State of Arizona, as they may be amended
from time to time. The character of business which the corporation initially
intends actually to conduct in the State of Arizona is to engage in automotive
retail sales and service.
THIRD: The aggregate number of shares that the corporation
shall have authority to issue is one million (1,000,000) common shares, all of
which shares shall be of a single class and shall have no par value.
FOURTH: The name and address of the initial statutory agent
of the corporation is General Investment Company, One Arizona Center, 19th
Floor, Phoenix, Arizona 85004. The address of the initial known place of
business of the corporation is 6725 E. McDowell Road, Scottsdale, Arizona
85257.
FIFTH: The number of directors constituting the initial
board of directors of the corporation is three (3). The names and addresses of
the persons who are to serve as directors until the first annual meeting of
shareholders, or until their successors are elected and are qualified are
Steven Knappenberger, 6725 E. McDowell Road, Scottsdale, Arizona 85257;
George Brochick, 6725 E. McDowell Road, Scottsdale, Arizona 85257 and Jay
Beskind, 6725 E. McDowell Road, Scottsdale, Arizona 85257.
SIXTH: The name and address of the incorporator is Steven
Knappenberger, 6725 E. McDowell Road, Scottsdale, Arizona 85257.
SEVENTH: The liability of a director or former director to the
corporation and its shareholders shall be eliminated to the fullest extent
permitted by Section __________ of the Arizona Revised Statutes.
If the Arizona Business Corporation Act is amended to
_____________________ further eliminating or limiting the liability of
directors, the liability of a director of the corporation shall be eliminated
or limited to the fullest extent permitted by the Arizona Business Corporation
Act, as amended.
Any repeal or modification of this Article Seventh shall not
adversely ________ right or protection of a director of the corporation
existing hereunder with ________ in _____ _____ connection occurring prior to
or at the time of such repeal or modification.
The provisions of this Article Seventh shall not be deemed to
__________ or __________ indemnification of a director by the corporation for
any liability of a director which has not been eliminated by the provisions of
this Article Seventh.
DATED: September 26, 1996.
/s/ Steven Knappenberger
-----------------------------
Steven Knappenberger
EX-3.77
BYLAWS
OF
SCOTTSDALE AUDI, LTD.
I. REFERENCES TO CERTAIN TERMS AND CONSTRUCTION
1.01. Certain References. Any reference herein made to law will be
deemed to refer to the law of the State of Arizona, including any applicable
provision of Chapters 1 through 17 of Title 10 of the Arizona Revised Statutes,
or any successor statute, as from time to time amended and in effect (sometimes
referred to herein as the "Arizona Business Corporation Act"). Any reference
herein made to the corporation's Articles will be deemed to refer to its
Articles of Incorporation and all amendments thereto as at any given time on
file with the Arizona Corporation Commission. Except as otherwise required by
law and subject to any procedures established by the corporation pursuant to
Arizona Revised Statutes Section 723, the term "shareholder" as used herein
shall mean one who is a holder of record of shares of the corporation.
References to specific sections of law herein made shall be deemed to refer to
such sections, or any comparable successor provisions, as from time to time
amended and in effect.
1.02. Seniority. The law and the Articles (in that order of
precedence) will in all respects be considered senior and superior to these
Bylaws, with any inconsistency to be resolved in favor of the law and such
Articles (in that order of precedence), and with these Bylaws to be deemed
automatically amended from time to time to eliminate any such inconsistency
which may then exist.
1.03. Computation of Time. The time during which an act is required to
be done, including the time for the giving of any required notice herein, shall
be computed by excluding the first day or hour, as the case may be, and
including the last day or hour.
II. OFFICES
2.01. Principal Office. The principal office of the corporation shall
be located at any place either within or outside the State of Arizona as
designated in the corporation's most current Annual Report filed with the
Arizona Corporation Commission or in any other document executed and delivered
to the Arizona Corporation Commission for filing. If a principal office is not
so designated, the principal office of the corporation shall mean the known
place of business of the corporation. The corporation may have such other
offices, either within or without
the State of Arizona, as the Board of Directors may designate or as the
business of the corporation may require from time to time.
2.02. Known Place of Business. A known place of business of the
corporation shall be located within the State of Arizona and may be, but need
not be, the address of the statutory agent of the corporation. The corporation
may change its known place of business from time to time in accordance with the
relevant provisions of the Arizona Business Corporation Act.
III. SHAREHOLDERS
3.01. Annual Shareholder Meetings. The annual meeting of the
shareholders shall be held each year on the third Friday in April, beginning
with the year 1997, at such time and place, either within or without the State
of Arizona, as shall be fixed by the Board of Directors or, in the absence of
action by the Board, as set forth in the notice given or waiver signed with
respect to such meeting pursuant to Section 3.03 below, for the purpose of
electing directors and for the transaction of such other business as may
properly come before the meeting. If any annual meeting is for any reason not
held on the date determined as aforesaid, a deferred annual meeting may
thereafter be called and held in lieu thereof, at which the same proceedings
may be conducted. If the day fixed for the annual meeting shall be a legal
holiday in the State of Arizona such meeting shall be held on the next
succeeding business day.
3.02. Special Shareholder Meetings. Special meetings of the
shareholders may be held whenever and wherever, either within or without the
State of Arizona, called for by or at the direction of the Chairman of the
Board, the President, or the Board of Directors. A special meeting of
shareholders shall also be called by the President or the Secretary at the
written request of the holder or holders of not less than 50% of all
outstanding votes entitled to be cast on any matter to be voted on at the
meeting. Any such written request by shareholders shall state the purpose or
purposes of the proposed meeting, and business to be transacted at any such
meeting shall be confined to the purposes stated in the notice thereof and to
such additional matters as the chairman of the meeting may rule to be germane
to such purposes.
3.03. Notice of Shareholders Meetings.
(a) Required Notice. Notice stating the place, day and hour of
any annual or special shareholders meeting shall be given not less than ten
(10) nor more than sixty (60) days before the date of the meeting by or at the
direction of the person or persons calling the meeting, to each shareholder
entitled to vote at such meeting and to any other shareholder entitled to
receive notice of the meeting by law or the Articles. Notices to shareholders
shall be given in accordance with, and
2
shall be deemed to be effective at the time and in the manner described in,
Arizona Revised Statutes Section 10-141. If no designation is made of the place
at which an annual or special meeting will be held in the notice for such
meeting, the place of the meeting will be at the principal place of business of
the corporation.
(b) Adjourned Meeting. If any shareholders meeting is adjourned
to a different date, time, or place, notice need not be given of the new date,
time, and place, if the new date, time, and place are announced at the meeting
before adjournment. But if a new record date for the adjourned meeting is fixed
or must be fixed in accordance with law or these Bylaws, then notice of the
adjourned meeting shall be given to those persons who are shareholders as of
the new record date and who are entitled to such notice pursuant to Section
3.03(a) above.
(c) Waiver of Notice. Any shareholder may waive notice of a
meeting (or any notice of any other action required to be given by the Arizona
Business Corporation Act, the corporation's Articles, or these Bylaws), at any
time before, during, or after the meeting or other action, by a writing signed
by the shareholder entitled to the notice. Each such waiver shall be delivered
to the corporation for inclusion in the minutes or filing with the corporate
records. Under certain circumstances, a shareholder's attendance at a meeting
may constitute a waiver of notice, unless the shareholder takes certain actions
to preserve his/her objections as described in the Arizona Business Corporation
Act.
(d) Contents of Notice. The notice of each special shareholders
meeting shall include a description of the purpose or purposes for which the
meeting is called. Except as required by law or the corporation's Articles, the
notice of an annual shareholders meeting need not include a description of the
purpose or purposes for which the meeting is called.
3.04. Fixing of Record Date. For the purpose of determining
shareholders of any voting group entitled to notice of or to vote at any
meeting of shareholders, or shareholders entitled to receive any distribution
or dividend, or in order to make a determination of shareholders for any other
proper purpose, the Board of Directors may fix in advance a date as the record
date. Such record date shall not be more than seventy (70) days prior to the
date on which the particular action requiring such determination of
shareholders is to be taken. If no record date is so fixed by the Board of
Directors, the record date for the determination of shareholders shall be as
provided in the Arizona Business Corporation Act.
When a determination of shareholders entitled to notice of or to vote
at any meeting of shareholders has been made as provided in this Section, such
determination shall apply to any adjournment thereof, unless the Board of
Directors fixes a new
3
record date, which it must do if the meeting is adjourned to a date more than
one hundred twenty (120) days after the date fixed for the original meeting.
3.05. Shareholder List. The corporation shall make a complete record
of the shareholders entitled to notice of each meeting of shareholders thereof,
arranged in alphabetical order, listing the address and the number of shares
held by each. The list shall be arranged by voting group and within each voting
group by class or series of shares. The shareholder list shall be available for
inspection by any shareholder, beginning two (2) business days after notice of
the meeting is given for which the list was prepared and continuing through the
meeting. The list shall be available at the corporation's principal office or
at another place identified in the meeting notice in the city where the meeting
is to be held. Failure to comply with this section shall not affect the
validity of any action taken at the meeting.
3.06. Shareholder Quorum and Voting Requirements.
(a) If the Articles or the Arizona Business Corporation Act
provide for voting by a single voting group on a matter, action on that matter
is taken when voted upon by that voting group.
(b) If the Articles or the Arizona Business Corporation Act
provide for voting by two (2) or more voting groups on a matter, action on that
matter is taken only when voted upon by each of those voting groups counted
separately.
(c) Shares entitled to vote as a separate voting group may take
action on a matter at a meeting only if a quorum of those shares exists with
respect to that matter. Unless the Articles or the Arizona Business Corporation
Act provide otherwise, a majority of the votes entitled to be cast on the
matter by the voting group constitutes a quorum of that voting group for action
on that matter.
(d) Once a share is represented for any purpose at a meeting, it
is deemed present for quorum purposes for the remainder of the meeting and for
any adjournment of that meeting, unless a new record date is or must be set for
that adjourned meeting.
(e) If a quorum exists, action on a matter (other than the
election of directors) by a voting group is approved if the votes cast within
the voting group favoring the action exceed the votes cast opposing the action,
unless the Articles or the Arizona Business Corporation Act require a greater
number of affirmative votes.
(f) Voting will be by ballot on any question as to which a ballot
vote is demanded prior to the time the voting begins by any person entitled to
vote on such question;
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otherwise, a voice vote will suffice. No ballot or change of vote will be
accepted after the polls have been declared closed following the ending of the
announced time for voting.
3.07. Proxies. At all meetings of shareholders, a shareholder may vote
in person or by proxy duly executed in writing by the shareholder or the
shareholder's duly authorized attorney-in-fact. Such proxy shall comply with
law and shall be filed with the Secretary of the corporation or other person
authorized to tabulate votes before or at the time of the meeting. No proxy
shall be valid after eleven (11) months from the date of its execution unless
otherwise provided in the proxy. The burden of proving the validity of any
undated, irrevocable, or otherwise contested proxy at a meeting of the
shareholders will rest with the person seeking to exercise the same. A
facsimile appearing to have been transmitted by a shareholder or by such
shareholder's duly authorized attorney-in-fact may be accepted as a
sufficiently written and executed proxy.
3.08. Voting of Shares. Unless otherwise provided in the Articles or
the Arizona Business Corporation Act, each outstanding share entitled to vote
shall be entitled to one (1) vote upon each matter submitted to a vote at a
meeting of shareholders.
3.09. Voting for Directors. Unless otherwise provided in the Articles,
directors are elected by a plurality of the votes cast by the shares entitled
to vote in the election at a meeting at which a quorum is present at the time
of such vote. As provided by law, shareholders shall be entitled to cumulative
voting in the election of directors.
3.10. Election Inspectors. The Board of Directors, in advance of any
meeting of the shareholders, may appoint an election inspector or inspectors to
act at such meeting (and at any adjournment thereof). If an election inspector
or inspectors are not so appointed, the chairman of the meeting may, or upon
request of any person entitled to vote at the meeting will, make such
appointment. If any person appointed as an inspector fails to appear or to act,
a substitute may be appointed by the chairman of the meeting. If appointed, the
election inspector or inspectors (acting through a majority of them if there be
more than one) will determine the number of shares outstanding, the
authenticity, validity, and effect of proxies, the credentials of persons
purporting to be shareholders or persons named or referred to in proxies, and
the number of shares represented at the meeting in person and by proxy; will
receive and count votes, ballots, and consents and announce the results
thereof; will hear and determine all challenges and questions pertaining to
proxies and voting; and, in general, will perform such acts as may be proper to
conduct elections and voting with complete fairness to all shareholders. No
such election inspector need be a shareholder of the corporation.
5
3.11. Organization and Conduct of Meetings. Each meeting of the
shareholders will be called to order and thereafter chaired by the Chairman of
the Board of Directors if there is one, or, if not, or if the Chairman of the
Board is absent or so requests, then by the President, or if both the Chairman
of the Board and the President are unavailable, then by such other officer of
the corporation or such shareholder as may be appointed by the Board of
Directors. The corporation's Secretary or in his or her absence, an Assistant
Secretary will act as secretary of each meeting of the shareholders. If neither
the Secretary nor an Assistant Secretary is in attendance, the chairman of the
meeting may appoint any person (whether a shareholder or not) to act as
secretary for the meeting. After calling a meeting to order, the chairman
thereof may require the registration of all shareholders intending to vote in
person and the filing of all proxies with the election inspector or inspectors,
if one or more have been appointed (or, if not, with the secretary of the
meeting). After the announced time for such filing of proxies has ended, no
further proxies or changes, substitutions, or revocations of proxies will be
accepted. If directors are to be elected, a tabulation of the proxies so filed
will, if any person entitled to vote in such election so requests, be announced
at the meeting (or adjournment thereof) prior to the closing of the election
polls. Absent a showing of bad faith on his or her part, the chairman of a
meeting will, among other things, have absolute authority to fix the period of
time allowed for the registration of shareholders and the filing of proxies, to
determine the order of business to be conducted at such meeting, and to
establish reasonable rules for expediting the business of the meeting and
preserving the orderly conduct thereof including any informal, or question and
answer portions thereof).
3.12. Shareholder Approval or Ratification. The Board of Directors may
submit any contract or act for approval or ratification of the shareholders at
a duly constituted meeting of the shareholders. Except as otherwise required by
law, if any contract or act so submitted is approved or ratified by a majority
of the votes cast thereon at such meeting, the same will be valid and as
binding upon the corporation and all of its shareholders as it would be if it
were the act of its shareholders.
3.13. Informalities and Irregularities. All informalities or
irregularities in any call or notice of a meeting of the shareholders or in the
areas of credentials, proxies, quorums, voting, and similar matters, will be
deemed waived if no objection is made at the meeting.
3.14. Shareholder Action by Written Consent. Any action required or
permitted to be taken at a meeting of the shareholders may be taken without a
meeting if one (1) or more consents in writing, setting forth the action so
taken, shall be signed by all of the shareholders entitled to vote with respect
6
to the subject matter thereof. The consents shall be delivered to the
corporation for inclusion in the minutes or filing with the corporate record.
Action taken by consent is effective when the last shareholder signs the
consent, unless the consent specifies a different effective date, except that
if, by law, the action to be taken requires that notice be given to
shareholders who are not entitled to vote on the matter, the effective date
shall not be prior to ten (10) days after the corporation shall give such
shareholders written notice of the proposed action, which notice shall contain
or be accompanied by the same material that would have been required if a
formal meeting had been called to consider the action. A consent signed under
this section has the effect of a meeting vote and may be described as such in
any document.
IV. BOARD OF DIRECTORS
4.01. General Powers. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of the corporation shall
be managed under the direction of, the Board of Directors.
4.02. Number, Tenure, and Qualification of Directors. Unless otherwise
provided in the Articles of Incorporation, the authorized number of directors
shall be not less than two nor more than seven. The number of directors in
office from time to time shall be within the limits specified above, as
prescribed from time to time by resolution adopted by either the shareholders
or the Board of Directors. The directors will regularly be elected at each
annual meeting of the shareholders, but directors may be elected at any other
meeting of the shareholders. Each director shall hold office until the annual
meeting of shareholders following his/her election, subject to his/her earlier
resignation or removal. However, if a director's term expires, he/she shall
continue to serve until his/her successor shall have been elected and
qualified, until his/her resignation or removal, or until there is a decrease
in the number of directors. Unless required by the Articles, directors do not
need to be residents of the State of Arizona or shareholders of the
corporation.
4.03. Regular Meetings of the Board of Directors. A regular annual
meeting of the Board of Directors is to be held as soon as practicable after
the adjournment of each annual meeting of the shareholders, either at the place
of the shareholders meeting or at such other place as the directors elected at
the shareholders meeting may have been informed of at or prior to the time of
their election. Additional regular meetings may be held at regular intervals at
such places and at such times as the Board of Directors may determine.
4.04. Special Meetings of the Board of Directors. Special meetings of
the Board of Directors may be held whenever
7
and wherever called for by the Chairman of the Board, the President, or the
number of directors that would be required to constitute a quorum.
4.05. Notice of, and Waiver of Notice for, Directors Meetings. No
notice need be given of regular meetings of the Board of Directors. Notice of
the time and place of any special directors meeting shall be given at least 48
hours prior thereto. Notice shall be given in accordance with and shall be
deemed to be effective at the time and in the manner described in Arizona
Revised Statutes Section 10-141. Any director may waive notice of any meeting
and any adjournment thereof at any time before, during, or after it is held.
Except as provided in the next sentence below, the waiver must be in writing,
signed by the director entitled to the notice, and filed with the minutes or
corporate records. The attendance of a director at or participation of a
director in a meeting shall constitute a waiver of notice of such meeting,
unless the director at the beginning of the meeting (or promptly upon his/her
arrival) objects to holding the meeting or transacting business at the meeting,
and does not thereafter vote for or assent to action taken at the meeting.
4.06. Director Quorum. A majority of the number of directors
prescribed according to Section 4.02 above, or if no number is so prescribed,
the number in office immediately before the meeting begins, shall constitute a
quorum for the transaction of business at any meeting of the Board of
Directors, unless the Articles require a greater number.
4.07. Directors, Manner of Acting.
(a) If a quorum is present when a vote is taken, the affirmative
vote of a majority of the directors present shall be the act of the Board of
Directors unless the Articles require a greater percentage.
(b) Unless the Articles provide otherwise, any or all directors
may participate in a regular or special meeting by, or conduct the meeting
through the use of, any means of communication by which all directors
participating may simultaneously hear each other during the meeting, in which
case, any required notice of the meeting may generally describe the
arrangements (rather than or in addition to the place) for the holding thereof.
A director participating in a meeting by this means is deemed to be present in
person at the meeting.
(c) A director who is present at a meeting of the Board of
Directors or a committee of the Board of Directors when corporate action is
taken is deemed to have assented to the action taken unless: (1) the director
objects at the beginning of the meeting (or promptly upon his/her arrival) to
holding it or transacting business at the meeting; or (2) his/her dissent or
abstention from the action taken is entered in the minutes of the
8
meeting; or (3) he/she delivers written notice of his/her dissent or abstention
to the presiding officer of the meeting before its adjournment or to the
corporation before 5:00 p.m. on the next business day after the meeting. The
right of dissent or abstention is not available to a director who votes in
favor of the action taken.
4.08. Director Action Without a Meeting. Unless the Articles provide
otherwise, any action required or permitted to be taken by the Board of
Directors at a meeting may be taken without a meeting if the action is taken by
unanimous written consent of the Board of Directors as evidenced by one (1) or
more written consents describing the action taken, signed by each director and
filed with the minutes or corporate records. Action taken by consent is
effective when the last director signs the consent, unless the consent
specifies a different effective date. A signed consent has the effect of a
meeting vote and may be described as such in any document.
4.09. Removal of Directors by Shareholders. The shareholders may
remove one (1) or more directors at a meeting called for that purpose if notice
has been given that a purpose of the meeting is such removal. The removal may
be with or without cause unless the Articles provide that directors may only be
removed with cause. If a director is elected by a voting group of shareholders,
only the shareholders of that voting group may participate in a shareholder
vote to remove him. If less than the entire Board of Directors is to be
removed, a director may not be removed if the number of votes sufficient to
elect the director under cumulative voting is voted against the director's
removal.
4.10. Board of Director Vacancies.
(a) Unless the Articles provide otherwise, if a vacancy occurs on
the Board of Directors, including a vacancy resulting from an increase in the
number of directors, either the shareholders or the Board of Directors may fill
the vacancy.
(b) If the vacant office was held by a director elected by a
voting group of shareholders, only the holders of shares of that voting group
are entitled to vote to fill the vacancy if it is filled by the shareholders.
(c) A vacancy that will occur at a specific later date (by reason
of resignation effective at a later date) may be filled before the vacancy
occurs, but the new director may not take office until the vacancy occurs.
(d) The term of a director elected to fill a vacancy expires at
the next shareholders meeting at which directors are elected.
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4.11. Director Compensation. Unless otherwise provided in the Articles
by resolution of the Board of Directors, each director may be paid his/her
expenses, if any, of attendance at each meeting of the Board of Directors or
any committee thereof, and may be paid a stated salary as director or a fixed
sum for attendance at each meeting of the Board of Directors or any committee
thereof, or both. No such payment shall preclude any director from serving the
corporation in any capacity and receiving compensation therefor.
4.12. Director Committees.
(a) Creation of Committees. Unless the Articles provide
otherwise, the Board of Directors may create one (1) or more committees and
appoint members of the Board of Directors to serve on them. Each committee
shall have one (1) or more members, who serve at the pleasure of the Board of
Directors.
(b) Selection of Members. The creation of a committee and
appointment of members to it shall be approved by the greater of (1) a majority
of all the directors in office when the action is taken or (2) the number of
directors required by the Articles to take such action.
(c) Required Procedures. Sections 4.03 through 4.08 of this
Article IV, which govern meetings, action without meetings, notice and waiver
of notice, and quorum and voting requirements of the Board of Directors, apply
to committees and their members.
(d) Authority. Unless limited by the Articles, each committee may
exercise those aspects of the authority of the Board of Directors which the
Board of Directors confers upon such committee in the resolution creating the
committee, provided, however, that a committee may not: (1) authorize
distributions; (2) approve or propose to shareholders action that requires
shareholder approval under the Arizona Business Corporation Act; (3) fill
vacancies on the Board of Directors or on any of its committees; (4) amend the
Articles of Incorporation without shareholder action as provided by law; (5)
adopt, amend or repeal these Bylaws; (6) approve a plan of merger not requiring
shareholder approval; (7) authorize or approve reacquisition of shares, except
according to a formula or method prescribed by the Board of Directors; (8)
authorize or approve the issuance or sale or contract for sale of shares or
determine the designation and relative rights, preferences, and limitations of
a class or series of shares, except within limits specifically prescribed by
the Board of Directors; or (9) fix the compensation of directors for serving on
the Board of Directors or any committee of the Board of Directors.
4.13. Director Resignations. Any director or committee member may
resign from his or her office at any time by
10
written notice delivered to the Board of Directors, the Chairman of the Board,
or the corporation at its known place of business. Any such resignation will be
effective upon its receipt unless some later time is therein fixed, and then
from that time. The acceptance of a resignation will not be required to make it
effective.
V. OFFICERS
5.01. Number of Officers. The officers of the corporation shall be a
President, a Secretary, and a Treasurer, each of whom shall be appointed by the
Board of Directors. Such other officers and assistant officers as may be deemed
necessary, including any Vice Presidents, may be appointed by the Board of
Directors. If specifically authorized by the Board of Directors, an officer may
appoint one (1) or more other officers or assistant officers. The same
individual may simultaneously hold more than one (1) office in the corporation.
5.02. Appointment and Term of Office. The officers of the corporation
shall be appointed by the Board of Directors for a term as determined by the
Board of Directors. The designation of a specified term grants to the officer
no contract rights, and the Board of Directors can remove the officer at any
time prior to the termination of such term. If no term is specified, an officer
of the corporation shall hold office until he or she resigns, dies, or until he
or she is removed in the manner provided by law or in Section 5.03 of this
Article V. The regular election or appointment of officers will take place at
each annual meeting of the Board of Directors, but elections of officers may
be, held at any other meeting of the Board.
5.03. Resignation and Removal of Officers. An officer may resign at
any time by delivering written notice to the corporation at its known place of
business. A resignation is effective when the notice is delivered unless the
notice specifies a later effective date or event. Any officer may be removed by
the Board of Directors at any time, with or without cause. Such removal shall
be without prejudice to the contract rights, if any, of the person so removed.
Appointment of an officer shall not of itself create contract rights.
5.04. Duties of Officers. Officers of the corporation shall have
authority to perform such duties as may be prescribed from time to time by law,
in these Bylaws, or by the Board of Directors, the President, or the superior
officer of any such officer. Each officer of the corporation (in the order
designated herein or by the Board) will be vested with all of the powers and
charged with all of the duties of his or her superior officer in the event of
such superior officer's absence, death, or disability.
11
5.05. Bonds and Other Requirements. The Board of Directors may require
any officer to give bond to the corporation (with sufficient surety and
conditioned for the faithful performance of the duties of his or her office)
and to comply with such other conditions as may from time to time be required
of him or her by the Board of Directors.
5.06. President. Unless otherwise specified by resolution of the Board
of Directors, the President shall be the principal executive officer of the
corporation and, subject to the control of the Board of Directors, shall
supervise and control all of the business and affairs of the corporation and
the performance by all of its other officers of their respective duties and in
general shall perform all duties incident to the office of President and such
other duties as may be prescribed by the Board of Directors from time to time.
The President shall, when present, and in the absence of a Chairman of the
Board, preside at all meetings of the shareholders and of the Board of
Directors. The President will be a proper officer to sign on behalf of the
corporation any deed, bill of sale, assignment, option, mortgage, pledge, note,
bond, evidence of indebtedness, application, consent (to service of process or
otherwise), agreement, indenture, contract, or other instrument, except in each
such case where the signing and execution thereof shall be expressly delegated
by the Board of Directors or by these Bylaws to some other officer or agent of
the corporation, or shall be required by law to be otherwise signed or
executed. The President may represent the corporation at any meeting of the
shareholders or members of any other corporation, association, partnership,
joint venture, or other entity in which the corporation then holds shares of
capital stock or has an interest, and may vote such shares of capital stock or
other interest in person or by proxy appointed by him or her, provided that the
Board of Directors may from time to time confer the foregoing authority upon
any other person or persons.
5.07. The Vice President. If appointed, in the absence of the
President or in the event of his/her death or disability, the Vice-President
(or in the event there be more than one Vice-President, the Vice-Presidents in
the order designated at the time of their election, or in the absence of any
such designation, then in the order of their appointment) shall perform the
duties of the President, and when so acting, shall have all the powers of and
be subject to all the restrictions upon the President. If there is no
Vice-President or in the event of the death or disability of all
Vice-Presidents, then the Treasurer shall perform such duties of the President
in the event of his or her absence, death, or disability. Each Vice-President
will be a proper officer to sign on behalf of the corporation any deed, bill of
sale, assignment, option, mortgage, pledge, note, bond, evidence of
indebtedness, application, consent (to service of process or otherwise),
agreement, indenture, contract, or other instrument, except in each such case
where the signing and execution thereof shall be
12
expressly delegated by the Board of Directors or by these Bylaws to some other
officer or agent of the corporation, or shall be required by law to be
otherwise signed or executed. Any Vice-President may represent the corporation
at any meeting of the shareholders or members of any other corporation,
association, partnership, joint venture, or other entity in which the
corporation then holds shares of capital stock or has an interest, and may vote
such shares of capital stock or other interest in person or by proxy appointed
by him or her, provided that the Board of Directors may from time to time
confer the foregoing authority upon any other person or persons. A
Vice-President shall perform such other duties as from time to time may be
assigned to him/her by the President or by the Board of Directors.
5.08. The Secretary. The Secretary shall: (a) keep the minutes of the
proceedings of the shareholders and of the Board of Directors and any committee
of the Board of Directors and all unanimous written consents of the
shareholders, Board of Directors, and any committee of the Board of Directors
in one (1) or more books provided for that purpose; (b) see that all notices
are duly given in accordance with the provisions of these Bylaws or as required
by law; (c) be custodian of the corporate records and of any seal of the
corporation; (d) when requested or required, authenticate any records of the
corporation; (e) keep a register of the address of each shareholder which shall
be furnished to the Secretary by such shareholder; and (f) in general perform
all duties incident to the office of Secretary and such other duties as from
time to time may be assigned to him/her by the President or by the Board of
Directors. Except as may otherwise be specifically provided in a resolution of
the Board of Directors, the Secretary will be a proper officer to take charge
of the corporation's stock transfer books and to compile the voting record
pursuant to Section 3.05 above, and to impress the corporation's seal, if any,
on any instrument signed by the President, any Vice President, or any other
duly authorized person, and to attest to the same. In the absence of the
Secretary, a secretary pro tempore may be chosen by the directors or
shareholders as appropriate to perform the duties of the Secretary.
5.09. The Treasurer. The Treasurer shall: (a) have charge and custody
of and be responsible for all funds and securities of the corporation; (b)
receive and give receipts for moneys due and payable to the corporation from
any source whatsoever, and deposit all such moneys in the name of the
corporation in such bank, trust companies, or other depositories as shall be
selected by the Board of Directors or any proper officer; (c) keep full and
accurate accounts of receipts and disbursements in books and records of the
corporation; and (d) in general perform all Of the duties incident to the
office of Treasurer and such other duties as from time to time may be assigned
to him/her by the President or by the Board of Directors. The Treasurer will
render to the President, the
13
directors, and the shareholders at proper times an account of all his or her
transactions as Treasurer and of the financial condition of the corporation.
The Treasurer shall be responsible for preparing and filing such financial
reports, financial statements, and returns as may be required by law.
5.10. Assistant Secretaries and Assistant Treasurers. The Assistant
Secretaries and the Assistant Treasurers, when authorized by the Board of
Directors, may sign with the President or a Vice-President certificates for
shares of the corporation, the issuance of which shall have been authorized by
a resolution of the Board of Directors. The Assistant Secretaries and Assistant
Treasurers, in general, shall perform such duties as shall be assigned to them
by the Secretary or the Treasurer, respectively, or by the President or the
Board of Directors.
5.11. Chairman of the Board. The Board of Directors may elect a
Chairman to serve as a general executive officer of the corporation, and, if
specifically designated as such by the Board of Directors, as the chief
executive officer of the corporation. If elected, the Chairman will preside at
all meetings of the Board of Directors and be vested with such other powers and
duties as the Board of Directors may from time to time delegate to him or her.
5.12. Salaries. The salaries of the officers of the corporation may be
fixed from time to time by the Board of Directors or (except as to the
President's own) left to the discretion of the President. No officer will be
prevented from receiving a salary by reason of the fact that he or she is also
a director of the corporation.
5.13. Additional Appointments. In addition to the officers
contemplated in this Article V, the Board of Directors may appoint other agents
of the corporation with such authority to perform such duties as may be
prescribed from time to time by the Board of Directors.
VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.01. Certificates for Shares.
(a) Content. Certificates representing shares of the corporation
shall, at a minimum, state on their face the name of the issuing corporation
and that it is formed under the laws of the State of Arizona, the name of the
person to whom issued, and the number and class of shares and the designation
of the series, if any, the certificate represents. Such certificates shall be
signed (either manually or by facsimile to the extent allowable by law) by one
or more officers of the corporation, as determined by the Board of Directors,
or, if no such determination is made, by any of the Chairman of the Board (if
any), the President, any Vice-President, the Secretary,
14
or the Treasurer of the corporation, and may be sealed with a corporate seal or
a facsimile thereof. Each certificate for shares shall be consecutively
numbered or otherwise identified and will exhibit such information as may be
required by law. If a supply of unissued certificates bearing the facsimile
signature of a person remains when that person ceases to hold the office of the
corporation indicated on such certificates or ceases to be the transfer agent
or registrar of the corporation, they may still be issued by the corporation
and countersigned, registered, issued, and delivered by the corporation's
transfer agent and/or registrar thereafter, as though such person had continued
to hold the office indicated on such certificate.
(b) Legend as to Class or Series. If the corporation is
authorized to issue different classes of shares or different series within a
class, the designations, relative rights, preferences, and limitations
applicable to each class and the variations in rights, preferences, and
limitations determined for each series (and the authority of the Board of
Directors to determine variations for future series) shall be summarized on the
front or back of each certificate. Alternatively, each certificate may state
conspicuously on its front or back that the corporation will furnish a
shareholder this information on request in writing and without charge.
(c) Shareholder List. The name and address of the person to whom
shares are issued, with the number of shares and date of issue, shall be
entered on the stock transfer books of the corporation.
(d) Lost Certificates. In the event of the loss, theft, or
destruction of any certificate representing shares of the corporation or of any
predecessor corporation, the corporation may issue (or, in the case of any such
shares as to which a transfer agent and/or registrar have been appointed, may
direct such transfer agent and/or registrar to countersign, register, and
issue) a new certificate, and cause the same to be delivered to the registered
owner of the shares represented thereby; provided that such owner shall have
submitted such evidence showing the circumstances of the alleged loss, theft,
or destruction, and his, her, or its ownership of the certificate, as the
corporation considers satisfactory, together with any other facts that the
corporation considers pertinent; and further provided that, if so required by
the corporation, the owner shall provide a bond or other indemnity in form and
amount satisfactory to the corporation (and to its transfer agent and/or
registrar, if applicable).
6.02. Registration of the Transfer of Shares. Registration of the
transfer of shares of the corporation shall be made only on the stock transfer
books of the corporation. In order to register a transfer, the record owner
shall surrender the shares to the corporation for cancellation, properly
endorsed by the appropriate person or persons with reasonable assurances
15
that the endorsements are genuine and effective. Unless the corporation has
established a procedure by which a beneficial owner of shares held by a nominee
is to be recognized by the corporation as the owner, the corporation will be
entitled to treat the registered owner of any share of the capital stock of the
corporation as the absolute owner thereof and, accordingly, will not be bound
to recognize any beneficial, equitable, or other claim to, or interest in, such
share on the part of any other person, whether or not it has notice thereof,
except as may expressly be provided by applicable law.
6.03. Shares Without Certificates. The Board of Directors may
authorize the issuance of uncertificated shares by the corporation and may
prescribe procedures for the issuance and registration of transfer thereof and
with respect to such other matters as the Board of Directors shall deem
necessary or appropriate.
VII. DISTRIBUTIONS
7.01. Distributions. Subject to such restrictions or requirements as
may be imposed by applicable law or the corporation's Articles or as may
otherwise be binding upon the corporation, the Board of Directors may from time
to time declare, and the corporation may pay or make, dividends or other
distributions to its shareholders.
VIII. CORPORATE SEAL
8.01. Corporate Seal. The Board of Directors may provide for a
corporate seal of the corporation that will have inscribed thereon any
designation including the name of the corporation, Arizona as the state of
incorporation, the year of incorporation, and the words "Corporate Seal."
IX. AMENDMENTS
9.01. Amendments. The corporation's Board of Directors may amend or
repeal the corporation's Bylaws unless:
(1) the Articles or the Arizona Business Corporation Act reserve
this power exclusively to the shareholders in whole or part;
or
(2) the shareholders in adopting, amending, or repealing a
particular Bylaw provide expressly that the Board of
Directors may not amend or repeal that Bylaw.
The corporation's shareholders may amend or repeal the corporation's
Bylaws even though the Bylaws may also be amended or repealed by its Board of
Directors.
16
EX 3.78
ARTICLES OF INCORPORATION
OF
SCOTTSDALE EUROCARS, LTD.
============================
I
NAME
The name of the corporation is SCOTTSDALE EUROCARS, LTD.
II
PURPOSE
The purpose for which this corporation is organized is the
transaction of any or all lawful business for which corporations may be
incorporated under the laws of the State of Arizona, as they may be amended
from time to time, and specifically, but not in limitation thereof, the
purpose of purchasing, owning, leasing, selling, repairing and servicing of
new and used motor vehicles and parts and accessories used in connection
therewith.
III
INITIAL BUSINESS
The corporation initially intends to conduct the business of
purchasing, owning, leasing, selling, repairing and servicing of new and used
motor vehicles and parts and accessories used in connection therewith.
IV
AUTHORIZED CAPITAL
The corporation shall have authority to issue One Million
(1,000,000) shares of common stock, each share to have a par value of $1.00.
V
STOCK RIGHTS AND OPTIONS - OFFICERS
The corporation may issue rights and options to purchase
shares of stock of the corporation to directors, officers, or employees of the
corporation or of any affiliate thereof, and no shareholder approval or
ratification of any such issuance of rights and options shall be required.
VI
STATUTORY AGENT
The name and address of the initial statutory agent of the
corporation is Fennemore, Craig, von Ammon, Udall & Powers, A Professional
Corporation, 1700 First Interstate Bank Plaza, 100 West Washington Street,
Phoenix, Arizona 85003.
VII
BOARD OF DIRECTORS
The initial Board of Directors shall consist of three (3)
directors. The persons who are to serve as directors until the first annual
meeting of the shareholders or until their successors are elected and
qualified are:
Steven Knappenberger
5325 North 45th Place
Phoenix, Arizona 85018
Alan P. Johnson
3663 Rosecrans Street
San Diego, California 92110
Thomas N. Fannin
77 East Missouri
Phoenix, Arizona 85012
VIII
NUMBER OF DIRECTORS
The number of persons to service on the Board of Directors
shall be fixed by the By-Laws.
IX
DISTRIBUTIONS FROM CAPITAL SURPLUS
The Board of Directors of the corporation may, from time to
time, distribute on a pro rata basis to its shareholders
-2-
out of the capital surplus of the corporation a portion of its assets, in cash
or property.
X
INDEMNIFICATION OF OFFICERS,
DIRECTORS, EMPLOYEES AND AGENTS
Subject to the further provisions hereof, the corporation
shall indemnify any and all of its existing and former directors, officers,
employees, and agents against all expenses incurred by them and each of them,
including but not limited to legal fees, judgments, penalties, and amounts
paid in settlement or compromise, which may arise or be incurred, rendered, or
levied in any legal action brought or threatened against any of them for or on
account of any action or omission alleged to have been committed while acting
within the scope of employment as director, officer, employee or agent of the
corporation, whether or not any action is or has been filed against them and
whether or not any settlement or compromise is approved by a court.
Indemnification shall be made by the corporation whether the legal action
brought or threatened is by or in the right of the corporation or any other
person. Whenever any existing or former director, officer, employee or agent
shall report to the President of the corporation or the chairman of the Board
of Directors that he or she has incurred or any incur expenses, including but
not limited to legal fees, judgments, penalties, and amounts paid in
settlement or compromise in a legal action brought or threatened against him
or her for or on account of any action or omission alleged to have been
committed by him or her while acting within the scope of his or her employment
as a director, officer, employee or agent of the corporation, the Board of
Directors shall, at its next regular or special meeting held within a
reasonable time thereafter, determine in good faith whether, in regard to the
matter involved in the action or contemplated action, such person acted,
failed to act, or refused to act wilfully or with gross negligence or with
fraudulent or criminal intent. If the Board of Directors determines in good
faith that such person did not act, fail to act, or refuse to act wilfully or
with gross negligence or with fraudulent or criminal intent with regard to the
matter involved in the action or contemplated action, indemnification shall be
mandatory and shall be automatically extended as specified herein, provided,
however, that the corporation shall have the right to refuse indemnification
in any instance in which the person to whom indemnification would otherwise
have been applicable shall have unreasonably refused to permit the
corporation, at its own expense and through counsel of its own choosing, to
defend him or her in the action.
-3-
XI
REPURCHASE OF SHARES
The Board of Directors of the corporation may, from time to
time, cause the corporation to repurchase its own shares to the extent of the
unreserved and unrestricted earned and capital surplus of the corporation.
XII
INCORPORATORS
The incorporators of the corporation are:
Steven Knappenberger
5325 North 45th Place
Phoenix, Arizona 85018
Tamara F. Knappenberger
5325 North 45th Place
Phoenix, Arizona 85018
All powers, duties and responsibilities of the incorporators shall cease at
the time of delivery of these Articles of Incorporation to the Arizona
Corporation Commission for filing.
XIII
KNOWN PLACE OF BUSINESS
The known place of business of the corporation shall be 6925
East McDowell Road, Scottsdale, Arizona 85257.
DATED this 20th day of January 1984.
/s/ Steven Knappenberger
-------------------------------------
Steven Knappenberger, Incorporator
/s/ Tamara F. Knappenberger
-------------------------------------
Tamara F. Knappenberger, Incorporator
-4-
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
SCOTTSDALE EUROCARS, LTD.
Pursuant to the provisions of A.R.S. ss. 10-061, Scottsdale
Eurocars, Ltd., an Arizona corporation, hereby adopts the attached Articles of
Amendment and certifies as follows:
FIRST: The name of the corporation, prior to the effective
date of the Amendment referred to herein, was Scottsdale Eurocars, Ltd.
SECOND: The document attached hereto as Exhibit A and by
this reference incorporated herein sets forth an Amendment to the Articles of
Incorporation which was adopted by the sole shareholder of the corporation on
March 30, 1984, in the manner prescribed by the Arizona Business Corporation
Act.
THIRD: 1,000 common shares without par value were
outstanding at the time of adoption of the Amendment and the number of shares
entitled to vote thereon was 1,000.
FOURTH: All of the 1,000 no par value common shares
outstanding voted for the Amendment, there being no other classes or series of
shares.
FIFTH: The Amendment does not provide for an exchange,
reclassification or cancellation of issued shares.
SIXTH: The Amendment will not effect a change in the amount
of the corporation's stated capital.
DATED: March 30, 1984.
SCOTTSDALE EUROCARS, LTD.
By /s/ Steven Knappenberger
-------------------------------
Steven Knappenberger, President
By /s/ Alan P. Johnson
------------------------------
Alan P. Johnson, Secretary
EXHIBIT A
The title of the Articles of Incorporation is amended to
read as follows: "ARTICLES OF INCORPORATION OF SCOTTSDALE EURO-PORSCHE, LTD."
Article I of the Articles of Incorporation is amended to
read as follows:
"The name of the corporation shall be:
Scottsdale Euro-Porsche, Ltd."
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF SCOTTSDALE EURO-PORSCHE, LTD.
Pursuant to the provisions of A.R.S. ss. 10-061, Scottsdale
Euro-Porsche, Ltd., an Arizona corporation, hereby adopts the attached
Articles of Amendment and certifies as follows:
FIRST: The name of the corporation, prior to the effective
date of the Amendment referred to herein, was Scottsdale Euro-Porsche, Ltd.
SECOND: The document attached hereto as Exhibit A and by
this reference incorporated herein sets forth an Amendment to the Articles of
Incorporation which was adopted by the sole shareholder of the corporation on
February 2, 1987, in the manner prescribed by the Arizona Business Corporation
Act.
THIRD: 1,000 common shares with a par value of $1.00 per
share were outstanding at the time of adoption of the Amendment and the number
of shares entitled to vote thereon was 1,000.
FOURTH: All of the 1,000 common shares outstanding with a
par value of $1.00 voted for the Amendment, there being no other classes or
series of shares.
FIFTH: The Amendment does not provide for an exchange,
reclassification or cancellation of issued shares.
SIXTH: The Amendment will not effect a change in the amount
of the corporation's stated capital.
DATED: February 2, 1987.
SCOTTSDALE EURO-PORSCHE, LTD.
By /s/ Steven Knappenberger
---------------------------------------
Steven Knappenberger, President
By /s/ Alan P. Johnson
--------------------------------------
Alan P. Johnson, Secretary
EXHIBIT A
The title of the Articles of Incorporation is amended to
read as follows: "ARTICLES OF INCORPORATION OF SCOTTSDALE MANAGEMENT GROUP,
LTD."
Article I of the Articles of Incorporation is amended to
read as follows:
"The name of the corporation shall be SCOTTSDALE MANAGEMENT
GROUP, LTD."
ARTICLES OF AMENDMENT TO THE
ARTICLES OF INCORPORATION
OF
SCOTTSDALE MANAGEMENT GROUP, LTD.
Pursuant to the provisions of A.R.S. ss. 10-061, Scottsdale
Management Group, Ltd., an Arizona corporation (the "Corporation") hereby
adopts these Articles of Amendment and certifies as follows:
FIRST: The name of the Corporation is Scottsdale Management
Group, Ltd.
SECOND: Article III of the Articles of Incorporation of the
Corporation is amended to read as follows:
"The corporation shall have authority to issue ten million
shares of common stock, each share to be without par value.
Shares shall be paid for at such time, and in such manner,
as the Board of Directors shall determine."
THIRD: The foregoing Amendment to the Articles of
Incorporation was adopted by the directors and shareholders of the Corporation
as of July 14, 1992, in the manner prescribed by the Arizona Business
Corporation Act.
FOURTH: 101,251 shares of common stock with a par value of
$1.00 per share were outstanding at the time of adoption of the Amendment and
the total number of shares entitled to vote thereon was 101,251.
FIFTH: All of the outstanding 101,251 shares of common stock
with a par value of $1.00 per share voted for the Amendment, there being no
other classes or series of shares.
SIXTH: The Amendment does not provide for an exchange,
reclassification or cancellation of issued shares.
SEVENTH: The Amendment will not effect a change in the
amount of the Corporation's stated capital.
DATED: July 14, 1992.
SCOTTSDALE MANAGEMENT GROUP, LTD.,
an Arizona corporation
By /s/ Steven Knappenberger
-------------------------------
Steven Knappenberger, President
By /s/ William T. Boutell, Jr.
-------------------------------
William T. Boutell, Jr.,
Assistant Secretary
ARTICLES OF AMENDMENT TO THE
ARTICLES OF INCORPORATION
OF
SCOTTSDALE MANAGEMENT GROUP, LTD.
Pursuant to the provisions of A.R.S. ss. 10-061, Scottsdale
Management Group, Ltd., an Arizona corporation (the "Corporation") hereby
adopts these Articles of Amendment and certifies as follows:
FIRST: The name of the Corporation is Scottsdale Management
Group, Ltd.
SECOND: The Articles of Incorporation are hereby amended by
adding a new Article XIV to read as follows:
"XIV
LIMITATION OF DIRECTOR LIABILITY
No director of the corporation shall be personally
liable to the corporation or its shareholders for monetary
damages for breach of fiduciary duty as a director;
provided, however, that this Article shall not eliminate or
limit the liability of a director for (i) any breach of the
director's duty of loyalty to the corporation or its
shareholders; (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation
of law; (iii) authorizing the unlawful payment of a dividend
or other distribution on the corporation's capital stock or
the unlawful purchase of its capital stock; (iv) a violation
of Arizona Revised Statutes Section 10-041 - Directors
conflicts of interest; or (v) any transaction from which the
director derived an improper personal benefit. This Article
shall not eliminate or limit the liability of a director for
any act or omission occurring before August 18, 1987."
THIRD: The foregoing Amendment to the Articles of
Incorporation was adopted by the directors and shareholders of the Corporation
as of August 24, 1994, in the manner prescribed by the Arizona Business
Corporation Act.
FOURTH: 101,251 shares of common stock without par value
were outstanding at the time of adoption of the Amendment and the total number
of shares entitled to vote thereon was 101,251.
FIFTH: All of the outstanding 101,251 shares of common stock
without par value voted for the Amendment, there being no other classes or
series of shares.
SIXTH: The Amendment does not provide for an exchange,
reclassification or cancellation of issued shares.
SEVENTH: The Amendment will not effect a change in the
amount of the Corporation's stated capital.
DATED: August 24, 1994.
SCOTTSDALE MANAGEMENT GROUP, LTD.,
an Arizona corporation
By /s/ Steven Knappenberger
-------------------------------------
Steven Knappenberger, President
By /s/ Stephen M. Savage
-------------------------------------
Stephen M. Savage,
Assistant Secretary
2
ARTICLES OF AMENDMENT TO THE
ARTICLES OF INCORPORATION
OF
SCOTTSDALE MANAGEMENT GROUP, LTD.
Pursuant to the provisions of A.R.S. ss. 10-061, Scottsdale
Management Group, Ltd., an Arizona corporation (the "Corporation") hereby
adopts these Articles of Amendment and certifies as follows:
FIRST: The name of the Corporation is Scottsdale Management Group,
Ltd.
SECOND: The Articles of Incorporation are hereby amended by adding a
new Article XIV to read as follows:
"XIV
LIMITATION OF DIRECTOR LIABILITY
No director of the corporation shall be personally liable to
the corporation or its shareholders for monetary damages for breach
of fiduciary duty as a director; provided, however, that this Article
shall not eliminate or limit the liability of a director for (i) any
breach of the director's duty of loyalty to the corporation or its
shareholders; (ii) acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law; (iii)
authorizing the unlawful payment of a dividend or other distribution
on the corporation's capital stock or the unlawful purchase of its
capital stock; (iv) a violation of Arizona Revised Statutes Section
10-041 -- Director conflicts of interest; or (v) any transaction from
which the director derived an improper personal benefit. This Article
shall not eliminate or limit the liability of a director for any act
or omission occurring before August 18, 1987."
THIRD: The foregoing Amendment to the Articles of Incorporation was
adopted by the directors and shareholders of the Corporation as of August 24,
1994, in the manner prescribed by the Arizona Business Corporation Act.
FOURTH: 101,251 shares of common stock without par value were
outstanding at the time of adoption of the Amendment and the total number of
shares entitled to vote thereon was 101,251.
FIFTH: All of the outstanding 101,251 shares of common stock without
par value voted for the Amendment, there being no other classes or series of
shares.
SIXTH: The Amendment does not provide for an exchange,
reclassification or cancellation of issued shares.
SEVENTH: The Amendment will not effect a change in the amount of the
Corporation's stated capital.
DATED: August 24, 1994.
SCOTTSDALE MANAGEMENT GROUP, LTD.,
an Arizona corporation
By /s/ Steven Knappenberger
-------------------------------
Steven Knappenberger, President
By /s/ Stephen M. Savage
-------------------------------
Stephen M. Savage,
Assistant Secretary
2
EX 3.80
ARTICLES OF INCORPORATION
OF
SK MOTORS, LTD.
FIRST: The name of the corporation is SK MOTORS, LTD.
SECOND: The purpose for which the corporation is organized
is the transaction of any or all lawful business for which corporations may be
incorporated under the laws of the State of Arizona, as they may be amended
from time to time. The character of business which the corporation initially
intends actually to conduct in the State of Arizona is to engage in automotive
retail sales and service.
THIRD: The aggregate number of shares that the corporation
shall have authority to issue is one million (1,000,000) common shares, all of
which shares shall be of a single class and shall have no par value.
FOURTH: The name and address of the initial statutory agent
of the corporation is General Investment Company, One Arizona Center, 19th
Floor, Phoenix, Arizona 85004. The address of the initial known place of
business of the corporation is 6725 E. McDowell Road, Scottsdale, Arizona
85257.
FIFTH: The number of directors constituting the initial
board of directors of the corporation is three (3). The names and addresses of
the persons who are to serve as directors until the first annual meeting of
shareholders, or until their successors are elected and are qualified are
Steven Knappenberger, 6725 E. McDowell Road, Scottsdale, Arizona 85257; George
Brochick, 6725 E. McDowell Road, Scottsdale, Arizona
85257 and Jay Beskind, 6725 E. McDowell Road, Scottsdale, Arizona 85257.
SIXTH: The name and address of the incorporator is Steven
Knappenberger, 6725 E. McDowell Road, Scottsdale, Arizona 85257.
SEVENTH: The liability of a director or former director to
the corporation and its shareholders shall be eliminated to the fullest extent
permitted by Section __________ of the Arizona Revised Statutes.
If the Arizona Business Corporation Act is amended to
____________________ further eliminating or limiting the liability of
directors, the liability of a director of the corporation shall be eliminated
or limited to the fullest extent permitted by the Arizona Business Corporation
Act, as amended.
Any repeal or modification of this Article Seventh shall not
adversely ________ right or protection of a director of the corporation
existing hereunder with ________ in _____ _____ connection occurring prior to
or at the time of such repeal or modification.
The provisions of this Article Seventh shall not be deemed
to __________ or __________ indemnification of a director by the corporation
for any liability of a director which has not been eliminated by the
provisions of this Article Seventh.
DATED: September 26, 1996.
/s/ Steven Knappenberger
------------------------------
Steven Knappenberger
EX-3.82
ARTICLES OF INCORPORATION
OF
SCOTTSDALE PORSCHE+AUDI, LTD
---------------------------
I
NAME
The name of the corporation is SCOTTSDALE PORSCHE+AUDI, LTD.
II
PURPOSE
The purpose for which this corporation is organized is the transaction
of any or all lawful business for which corporations may be incorporated under
the laws of the State of Arizona, as they may be amended from time to time, and
specifically, but not in limitation thereof, the purpose of purchasing, owning,
leasing, selling, repairing and servicing of new and used motor vehicles and
parts and accessories used in connection therewith.
III
INITIAL BUSINESS
The corporation initially intends to conduct the business of
purchasing, owning, leasing, selling, repairing and servicing of new and used
motor vehicles and parts and accessories used in connection therewith.
IV
AUTHORIZED CAPITAL
The corporation shall have authority to issue One Million (1,000,000)
shares of common stock, each share to have a par value of $1.00.
V
STOCK RIGHTS AND OPTIONS - OFFICERS
The corporation may issue rights and options to purchase shares of
stock of the corporation to directors, officers, or employees of the
corporation or of any affiliate thereof, and no shareholder approval or
ratification of any such issuance of rights and options shall be required.
VI
STATUTORY AGENT
The name and address of the initial statutory agent of the corporation
is
William T. Boutell, Jr.
Powers, Ehrenreich, Boutell & Kurn
3550 North Central, Suite 1600
Phoenix, Arizona 85012
VII
BOARD OF DIRECTORS
The initial Board of Directors shall consist of three directors. The
persons who are to serve as directors until the first annual meeting of the
shareholders or until their successors are elected and qualified are:
Steven Knappenberger
136 West Victoria Square
Phoenix, Arizona 85013
Alan P. Johnson
120 Ocean View
Del Mar, California 92014
Thomas N. Fannin
77 East Missouri
Phoenix, Arizona 85012
VIII
NUMBER OF DIRECTORS
The number of persons to serve on the Board of Directors shall be
fixed by the By-Laws.
IX
DISTRIBUTIONS FROM CAPITAL SURPLUS
The Board of Directors of the corporation may, from time to time,
distribute on a pro rata basis to its shareholders out of the capital surplus
of the corporation a portion of its assets, in cash or property.
-2-
X
INDEMNIFICATION OF OFFICERS,
DIRECTORS, EMPLOYEES AND AGENTS
Subject to the further provisions hereof, the corporation shall
indemnify any and all of its existing and former directors, officers,
employees, and agents against all expenses incurred by them and each of them,
including but not limited to legal fees, judgments, penalties, and amounts paid
in settlement or compromise, which may arise or be incurred, rendered, or
levied in any legal action brought or threatened against any of them for or on
account of any action or omission alleged to have been committed while acting
within the scope of employment as director, officer, employee or agent of the
corporation, whether or not any action is or has been filed against them and
whether or not any settlement or compromise is approved by a court.
Indemnification shall be made by the corporation whether the legal action
brought or threatened is by or in the right of the corporation or any other
person. Whenever any existing or former director, officer, employee or agent
shall report to the President of the corporation or the chairman of the Board
of Directors that he or she has incurred or may incur expenses, including but
not limited to legal fees, judgments, penalties, and amounts paid in settlement
or compromise in a legal action brought or threatened against him or her for or
on account of any action or omission alleged to have been committed by him or
her while acting within the scope of his or her employment as a director,
officer, employee or agent of the corporation, the Board of Directors shall, at
its next regular or special meeting held within a reasonable time thereafter,
determine in good faith whether, in regard to the matter involved in the action
or contemplated action, such person acted, failed to act, or refused to act
willfully or with gross negligence or with fraudulent or criminal intent. If
the Board of Directors determines in good faith that such person did not act,
fail to act, or refuse to act willfully or with gross negligence or with
fraudulent or criminal intent with regard to the matter involved in the action
or contemplated action, indemnification shall be mandatory and shall be
automatically extended as specified herein, provided, however, that the
corporation shall have the right to refuse indemnification in any instance in
which the person to whom indemnification would otherwise have been applicable
shall have unreasonably refused to permit the corporation, at its own expense
and through counsel of its own choosing, to defend him or her in the action.
-3-
XI
REPURCHASE OF SHARES
The Board of Directors of the corporation may, from time to time,
cause the corporation to repurchase its own shares to the extent of the
unreserved and unrestricted earned and capital surplus of the corporation.
XII
INCORPORATORS
The incorporators of the corporation are:
Steven Knappenberger
136 West Victoria Square
Phoenix, Arizona 85013
Tamara F. Knappenberger
136 West Victoria Square
Phoenix, Arizona 85013
All powers, duties and responsibilities of the incorporators shall cease at the
time of delivery of these Articles of Incorporation to the Arizona Corporation
Commission for filing.
XIII
KNOWN PLACE OF BUSINESS
The known place of business of the corporation shall be 136 West
Victoria Square, Phoenix, Arizona 85013.
DATED this ___ day of __________, 1980.
/s/Steven Knappenberger
------------------------------
Steven Knappenberger
/s/Tamara F. Knappenberger
------------------------------
Tamara F. Knappenberger
I, William T. Boutell, Jr., having been designated to act as Statutory
Agent, hereby consent to act in that capacity until removal or resignation is
submitted in accordance with the Arizona Revised Statutes.
/s/ William T. Boutell, Jr.
------------------------------
William T. Boutell, Jr.
Statutory Agent
-4-
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF SCOTTSDALE PORSCHE+AUDI, LTD.
Pursuant to the provisions of A.R.S. ss. 10-061, Scottsdale
Porsche+Audi, Ltd., an Arizona corporation, hereby adopts the attached Articles
of Amendment and certifies as follows:
FIRST: The name of the corporation, prior to the effective date of the
Amendment referred to herein, was Scottsdale Porsche+Audi, Ltd.
SECOND: The document attached hereto as Exhibit A and by this
reference incorporated herein sets forth an Amendment to the Articles of
Incorporation which was adopted by the sole shareholder of the corporation on
May 21, 1985, in the manner prescribed by the Arizona Business Corporation Act.
THIRD: 324,999 common shares with a par value of $1.00 per share were
outstanding at the time of adoption of the Amendment and the number of shares
entitled to vote thereon was 324,999.
FOURTH: All of the 324,999 common shares outstanding with a par value
of $1.00 voted for the Amendment, there being no other classes or series of
shares.
FIFTH: The Amendment does not provide for an exchange,
reclassification or cancellation of issued shares.
SIXTH: The Amendment will not effect a change in the amount of the
corporation's stated capital.
DATED: May 21, 1985.
SCOTTSDALE PORSCHE+AUDI, LTD.
By /s/Jay P. Beskind
------------------------------
Jay P. Beskind, President
By /s/Steven Knappenberger
------------------------------
Steven Knappenberger, Secretary
EXHIBIT A
The title of the Articles of Incorporation is amended to read as
follows: "ARTICLES OF INCORPORATION OF SPA AUTOMOTIVE, LTD."
Article I of the Articles of Incorporation is amended to read as
follows:
"The Name of the corporation shall be SPA AUTOMOTIVE LTD."
ARTICLES OF AMENDMENT TO THE
ARTICLES OF INCORPORATION
OF
SPA AUTOMOTIVE, LTD.
Pursuant to the provisions of A.R.S. ss. 10-061, SPA Automotive, Ltd.,
an Arizona corporation (the "Corporation") hereby adopts these Articles of
Amendment and certifies as follows:
FIRST: The name of the Corporation is SPA Automotive, Ltd.
SECOND: Article IV of the Articles of Incorporation of the Corporation
is amended to read as follows:
"AUTHORIZED CAPITAL
The corporation shall have authority to issue ten million
shares of common stock, each share to be without par value. Shares
shall be paid for at such time, and in such manner, as the Board of
Directors shall determine."
THIRD: The foregoing Amendment to the Articles of Incorporation was
adopted by the directors and shareholders of the Corporation was of July 14,
1992, in the manner prescribed by the Arizona Business Corporation Act.
FOURTH: 324,999 shares of common stock with a par value of $1.000 per
share were outstanding at the time of adoption of the Amendment and the total
number of shares entitled to vote thereon was 324,999.
FIFTH: All of the outstanding 324,999 shares of common stock with a
par value of $1.00 per share voted for the Amendment, there being no other
classes or series of shares.
SIXTH: The Amendment does not provide for an exchange,
reclassification or cancellation of issued shares.
SEVENTH: The Amendment will not effect a change in the amount of the
Corporation's stated capital.
DATED: July 14, 1992.
SPA AUTOMOTIVE, LTD., an Arizona
corporation
By /s/ Jay P. Beskind
--------------------------------
Jay P. Beskind, President
By /s/William T. Boutell, Jr.
--------------------------------
William T. Boutell, Jr.,
Assistant Secretary
-2-
ARTICLES OF AMENDMENT TO THE
ARTICLES OF INCORPORATION
OF
SPA AUTOMOTIVE, LTD.
Pursuant to the provisions of A.R.S. ss. 10-061, SPA Automotive, Ltd.,
an Arizona corporation (the "Corporation") hereby adopts these Articles of
Amendment and certifies as follows:
FIRST: The name of the Corporation is SPA Automotive, Ltd.
SECOND: The Articles of Incorporation are hereby amended by adding a
new Article XIV to read as follows:
"XIV
LIMITATION OF DIRECTOR LIABILITY
No director of the corporation shall be personally liable to
the corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director; provided, however, that this Article
shall not eliminate or limit the liability of a director for (i) any
breach of the director's duty of loyalty to the corporation or its
shareholders; (ii) acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law; (iii)
authorizing the unlawful payment of a dividend or other distribution
on the corporation's capital stock or the unlawful purchase of its
capital stock; (iv) a violation of Arizona Revised Statutes Section
10-041 - Director conflicts of interest; or (v) any transaction from
which the director derived an improper personal benefit. This Article
shall not eliminate or limit the liability of a director for any act
or omission occurring before August 18, 1987."
THIRD: The foregoing Amendment to the Articles of Incorporation was
adopted by the directors and shareholders of the Corporation as of August 24,
1994, in the manner prescribed by the Arizona Business Corporation Act.
FOURTH: 511,125 shares of common stock without par value were
outstanding at the time of adoption of the Amendment and the total number of
shares entitled to vote thereon was 511,125.
FIFTH: All of the outstanding 511,125 shares of common stock without
par value voted for the Amendment, there being no other classes or series of
shares.
SIXTH: The Amendment does not provide for an exchange,
reclassification or cancellation of issued shares.
SEVENTH: The Amendment will not effect a change in the amount of the
Corporation's stated capital.
DATED: August 24, 1994.
SPA AUTOMOTIVE, LTD., an Arizona
corporation
By /s/ Jay P. Beskind
-----------------------------
Jay P. Beskind, President
By /s/ Stephen M. Savage
-----------------------------
Stephen M. Savage,
Assistant secretary
-2-
EX 3.84
ARTICLES OF INCORPORATION
OF
SUN BMW, LTD.
----------------------------
We, the undersigned incorporators, having associated
ourselves together for the purpose of forming a corporation under the laws of
the State of Arizona, adopt the following Articles of Incorporation:
I.
NAME
The name of the corporation is SUN BMW, LTD.
II.
PURPOSE
This corporation is organized for the purpose of transacting
any or all lawful business for which corporations may be incorporated under
the laws of the State of Arizona, as amended from time to time.
III.
INITIAL BUSINESS
The corporation initially intends actually to conduct in the
State of Arizona the business of purchasing, owning, leasing, selling,
repairing and servicing new and used motor vehicles and parts and accessories
used in connection therewith.
IV.
AUTHORIZED CAPITAL
The corporation shall have authority to issue ten million
(10,000,000) common shares with no par value per share. Shares shall be paid
for at such time, and in such manner, as the Board of Directors shall
- -------------.
V.
INITIAL BOARD OF DIRECTORS
The initial Board of Directors shall consist of four
members, who shall serve as the directors until the first annual meeting of
the shareholders or until their successors are elected and qualified, and
whose names and addresses are:
Name Address
Steven Knappenberger 6725 E. McDowell Road
Scottsdale, Arizona 85257
Thomas N. Fannin 6725 E. McDowell Road
Scottsdale, Arizona 85257
Jay P. Beskind 6905 E. McDowell Road
Scottsdale, Arizona 85257
George W. Brochick 6725 E. McDowell Road
Scottsdale, Arizona 85257
VI.
LIMITATION OF DIRECTOR LIABILITY
No director of the corporation shall be personally liable to
the corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director; provided, however, that this Article shall not
eliminate or limit the liability of a director for (i) any breach of the
director's duty of loyalty to the corporation or its shareholders; (ii) acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) authorizing the unlawful payment of a dividend
or other distribution on the corporation's capital stock or the unlawful
purchase of its capital stock; (iv) a violation of Arizona Revised Statutes
Section 10-041 -- Director conflicts of interest; or (v) any transaction from
which the director derived an improper personal benefit.
VII.
INCORPORATORS
The names and addresses of the incorporators are:
Stephen M. Savage
Steven B. Sterbach
2 North Central Ave., #2200
Phoenix, Arizona 85004-2390
All powers, duties and responsibilities of the incorporators
shall cease at the time of delivery of these Articles of Incorporation to the
Arizona Corporation Commission for filing.
VIII.
STATUTORY AGENT
PC Service Corporation, an Arizona corporation, Two North
Central Avenue, Suite 2200, Phoenix, Arizona 85004-2390, is hereby appointed
the initial Statutory Agent for the corporation for the State of Arizona.
IX.
Known Place of Business
The corporation's known place of business is 6725 E. McDowell
Road, Scottsdale, Arizona 85257.
-2-
IN WITNESS WHEREOF, the undersigned incorporators have
hereunto affixed their signatures this 6th day of January, 1995.
/s/ Stephen M. Savage
---------------------------
Stephen M. Savage
/s/ Steven E. Sterbach
---------------------------
Steven E. Sterbach
-3-
EX 3.86
CERTIFICATE OF INCORPORATION
OF
UAG ATLANTA IV, INC.
FIRST: The name of the corporation is UAG Atlanta IV, Inc.
SECOND: The address of the corporation's registered office in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of the corporation's registered agent at such address is
The Corporation Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act
or activity for which corporations may be organized under the Delaware General
Corporation Law.
FOURTH: The total number of shares of stock which the corporation is
authorized to issue is one thousand (1,000) shares of common stock, having a
par value of one dollar ($1.00) per share.
FIFTH: The business and affairs of the corporation shall be managed
by or under the direction of the board of directors, and the directors need
not be elected by ballot unless required by the by-laws of the corporation.
SIXTH: In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware, the board of
directors is expressly authorized to make, amend and repeal by-laws.
SEVENTH: 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
a knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived
an improper personal benefit. If the Delaware General Corporation Law 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 Delaware General Corporation Law, as so amended. Any repeal or
modification of this provision shall not adversely affect any right or
protection of a director of the corporation existing at the time of such
repeal or modification.
EIGHTH: The corporation reserves the right to amend and repeal any
provision contained in this Certificate of Incorporation in the manner from
time to time prescribed by the laws of the State of Delaware.
All rights herein conferred are granted subject to this reservation.
-2-
NINTH: The incorporator is David G. Thunhorst, whose mailing address
is 2700 International Tower, Peachtree Center, 229 Peachtree Street, N.E.,
Atlanta, Georgia 30303.
I, the Undersigned, being the incorporator, for the purpose of
forming a corporation under the laws of the State of Delaware, do make, file
and record this Certificate of Incorporation and, accordingly, have hereto set
my hand this 12th day of August, 1996.
/s/David G. Thunhorst
---------------------------
David G. Thunhorst
-3-
EX 3.88
ARTICLES OF INCORPORATION
OF
EVANS-DAILEY VOLKSWAGEN, LTD.
I.
The name of the corporation is:
EVANS-DAILEY VOLKSWAGEN, LTD.
II.
The corporation shall have perpetual duration.
III.
The corporation is organized for the following purposes:
operating a new and used automobile dealership, including but not limited to
service of both new and used automobiles, trucks and other vehicles; both
wholesale and retail sales of automotive parts and accessories of every kind;
together with the carrying on of all other activities relating to businesses
of a similar nature.
IV.
The total number of shares of all classes of stock which the
corporation shall have authority to issue is 1,000,000 shares, of which
500,000 shares shall be Class A Common Stock, the par value of each share of
which shall be $1.00, and 500,000 shares shall be Class B Common Stock, the
par value of each share of which shall be $1.00.
The respective designations, rights, preferences,
privileges, voting powers and restrictions of each class of stock are as
follows:
The holder of one class of Common Stock of the corporation
shall not be the registered holder of any other class of stock in the
corporation; excepting, however, nothing herein shall prohibit a sole
stockholder from holding all of the issued and outstanding shares of both
classes of stock.
The holders of Class A Common Stock and the Directors
elected by Class A Common stockholders shall have the sole voice and
discretion in all dealings and negotiations with the manufacturer(s) and/or
distributor(s) and/or franchisor(s) of new automobiles and parts and
accessories therefor.
The holders of the Class A Common Stock by a majority vote
thereof shall have the right to elect one-half of the Board of Directors and
the holders of the Class B Common Stock by a majority vote thereof shall have
the right to elect the other one-half of the Board of Directors.
Each outstanding share of Class A Common Stock and each
outstanding share of Class B Common Stock shall be entitled to one vote.
Any vacancy occurring on the Board of Directors shall be
filled only by a majority vote of the holders of the class of stock which had
elected the original director.
-2-
V.
The corporation shall not commence business until it shall
have received not less than $1,000.00 in payment for the issuance of shares of
stock, of which one-half of said amount shall be in payment for the issuance
of Class A Common Stock and the other one-half of said amount shall be in
payment for the issuance of Class B Common Stock.
VI.
The initial registered office of the corporation shall be
230 Candler Building, Atlanta, Georgia, 30303. The initial registered agent of
the corporation shall be ERNEST H. STANFORD, JR.
VII.
The initial board of directors shall consist of two (2)
members who shall be:
Class A Director: CHARLES F. EVANS, 3595 Spring Vally Blvd.,
College Park, Georgia
Class B Director: ELMER E. DAILEY, Old Salem Road, Conyers,
Georgia
VIII.
The name and address of the incorporator are:
E.H. STANFORD, 230 Candler Building, Atlanta, Georgia 30303
-3-
IX.
Stock in the corporation can only be sold, transferred
and/or conveyed by a stockholder to a person not an existing stockholder or
stockholders only after said stockholder or stockholders desiring to sell his
or their stock shall first offer said stock to the corporation with a
thirty-day option, at a price no greater than the book value of said stock
reflected and shown by the books of the corporation, as determined by an audit
of the books; then if the corporation refuses to buy said stock or fails to
exercise its option within the allotted thirty days, the stockholder or
stockholders desiring to sell his or their stock shall then offer said stock
to the remaining stockholders of the class of stock offered for sale,
pro-rata, with a thirty-day option, at a price no greater than the book value
of said stock reflected and shown by the books of the corporation, as
determined by an audit of the books. In the event all of said remaining
stockholders of that class do not accept the offer and buy the tendered stock,
then said stock may be sold to an outsider or third person. Any and all stock
offered for sale may be purchased by any one of the remaining stockholders of
that class if the other stockholders of that class decline to purchase said
stock. In the event of the death of any stockholder, his devisee or heirs
shall offer to sell to the remaining stockholders of that same class,
pro-rata, stock belonging to the deceased stockholder on a basis of an audit
as outlined above. In the event all of said remaining stockholders of that
same class do not accept the offer of the tendered stock,
-4-
then said devisee or heirs may retain the same. In the further event that
there by only two stockholders of the corporation, one Class A stockholder and
one Class B stockholder, then the offer aforementioned shall be, and only
then, across class lines to the sole remaining stockholder.
IN WITNESS WHEREOF, the undersigned executes these Articles
of Incorporation.
/s/ E.H. Stanford
----------------------
E.H. STANFORD
Incorporator
-5-
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
CHARLES EVANS B.M.W., INC.
I
The name of the Corporation is CHARLES EVANS B.M.W., INC.
II
Effective as of the date hereof, Article I of the Articles
of Incorporation of the Corporation is amended to read as follows:
"The name of the Corporation is UAG ATLANTA IV MOTORS, INC.
III
All other provisions of the Articles of Incorporation shall
remain in full force and effect.
IV
These Articles of Amendment to the Corporation's Articles of
Incorporation were duly adopted and approved by the Corporation's Board of
Directors on October 28, 1996 in accordance with the provisions of Section
14-2-1002 of the Georgia Business Corporation Code, and no shareholder action
was required with respect thereto.
IN WITNESS WHEREOF, the Corporation has caused these
Articles of Amendment to be executed and attested by its duly authorized
officers as of the 28th day of October, 1996.
CHARLES EVANS BMW, INC.
By: /s/ Thomas C. Olney
-----------------------
Thomas C. Olney
President
STATE OF GEORGIA
COUNTY OF GWINNETT
ARTICLES OF MERGER
OF
CHARLES EVANS B.M.W., INC.
AND
CHARLES EVANS VOLKSWAGEN, INC.
INTO
CHARLES EVANS VOLKSWAGEN, INC.
I.
Charles Evans B.M.W., Inc., was incorporated in Rockdale
County, Georgia, on June 3, 1974, and was assigned Charter No. 7404428.
Charles Evans Volkswagen, Inc., was incorporated in Fulton County, Georgia, on
June 2, 1970, and was assigned Charter No. 0720283.
II.
The Agreement and Plan of Merger attached hereto as Exhibit
A, and by reference made a part hereof, was duly approved by the Board of
Directors of Charles Evans B.M.W., Inc., and Charles Evans Volkswagen, Inc.
The surviving corporation shall be Charles Evans Volkswagen, Inc., and its
name shall be changed to Charles Evans B.M.W., Inc.
III.
The vote of the holders of a majority of the shares of each
of said corporations was required to adopt the Plan of Merger. There are
10,000 shares of $1.00 Par Value Common Stock of Charles Evans B.M.W., Inc.,
issued and outstanding, the holder of all of which voted for the Plan of
Merger. There are 501 shares of $1.00 Par Value Class A Common Stock, and 500
shares of $1.00 Par Value Class B Common Stock, of Charles Evans Volkswagen,
Inc., issued and outstanding, the holder of all of which voted for the Plan of
Merger.
IV.
The merger shall be effective upon delivery of these
Articles of Merger to the Secretary of State.
CHARLES EVANS B.M.W., INC.
By: __________________________
Its: _____________________
[CORPORATE SEAL]
Attest:
By: __________________
Its: _____________
CHARLES EVANS VOLKSWAGEN, INC.
By: __________________________
Its: _____________________
[CORPORATE SEAL]
Attest:
By: __________________
Its: _____________
-2-
EX-3.89
BY-LAWS OF
CHARLES EVANS B.M.W., INC.
ARTICLE I. OFFICES
The principal office of the corporation in the State of Georgia, shall
be located in the City of Conyers, County of Rockdale. The corporation may have
such other offices, either within or without the State of Georgia as the Board
of Directors may designate or as the business of the corporation may require
from time to time.
ARTICLE II. SHAREHOLDERS
SECTION I. Annual Meeting. The annual meeting of the shareholders
shall be held on the first Monday in the month of April in each year, beginning
with the year 1975, at the hour of 10:00 o'clock A.M. for the purpose of
electing Directors and for the transaction of such other business as may come
before the meeting. If the day fixed for the annual meeting shall be a legal
holiday in the State of Georgia, such meeting shall be held on the next
succeeding business day. If the election of Directors shall not be held on the
day designated herein for any annual meeting of the shareholders, or at any
adjournment thereof, the Board of Directors shall cause the election to be held
at a special meeting of the shareholders as soon thereafter as conveniently may
be.
SECTION 2. Special Meetings. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by statute, may be called
by the President or by the Board of Directors, and shall be called by the
President at the
request of the holders of not less than twenty-five (25%) per cent of all the
outstanding shares of the corporation entitled to vote at the
meeting.
SECTION 3. Place of Meeting. The Board of Directors may designate any
place, either within or without the State of Georgia, unless otherwise
prescribed by statute, as the place of meeting for any annual meeting or for
any special meeting called by the Board of Directors. A waiver of notice signed
by all shareholders entitled to vote at a meeting may designate any place,
either within or without the State of Georgia, unless otherwise prescribed by
statute, as the place for the holding of such meeting. If no designation is
made, or if a special meeting be otherwise called, the place of meeting shall
be the principal office of the corporation in the State of Georgia.
SECTION 4. Notice of Meeting. Written notice stating the place, day
and hour of the meeting and, in case of special meeting, the purpose or
purposes for which the meeting is called, shall unless otherwise prescribed by
statute, be delivered not less than ten nor more than thirty days before the
date of the meeting, either personally or by mail, at the direction of the
President, or the Secretary, or the persons calling the meeting, to each
shareholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail,
addressed to the shareholder at his address as it appears on the stock transfer
books of the corporation, with the postage thereon prepaid.
- 2 -
SECTION 5. Closing of Transfer Books or Fixing of Record Date. For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or shareholders entitled to
receive payment of any dividend, or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors of the
corporation may provide that the stock transfer books shall be closed for a
stated period but not to exceed, in any case, thirty days. If the stock
transfer books shall be closed for the purpose of determining shareholders
entitled to notice of or to vote at a meeting of shareholders, such books,
shall be closed for at least ten days immediately preceding such meeting. In
lieu of closing the stock transfer books, the Board of Directors may fix in
advance a date as the record date for any such determination of shareholders,
such date in any case to be not more than thirty days, and, in case of a
meeting of shareholders, not less than ten days prior to the date on which the
particular action, requiring such determination of shareholders, is to be
taken. If the stock transfer books are not closed and no record date is fixed
for the determination of shareholders entitled to notice of or to vote at a
meeting of shareholders, or shareholders entitled to receive payment of a
dividend, the date on which notice of the meeting is mailed or the date on
which the resolution of the Board of Directors declaring such dividend is
adopted, as the case may be, shall be the record date for such determination of
shareholders. When a determination of shareholders entitled to vote at any
meeting of
- 3 -
shareholders has been made as provided in this section, such determination
shall apply to any adjournment thereof.
SECTION 6. Voting Lists. The officer or agent having charge of the
stock transfer books for shares of the corporation shall make a complete list
of the shareholders entitled to vote at each meeting of shareholders or any
adjournment thereof, arranged in alphabetical order, with the address of and
the number of shares held by each. Such list shall be produced and kept open at
the time and place of the meeting and shall be subject to the inspection of any
shareholder during the whole time of the meeting for the purposes thereof.
SECTION 7. Quorum. A majority of the outstanding shares of the
corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of shareholders. If less than a majority of
the outstanding shares are represented at a meeting, a majority of the shares
so represented may adjourn the meeting from time to time without further
notice. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted,
at the meeting as originally noticed. The shareholders present at a duly
organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum.
SECTION 8. Proxies. At all meetings of shareholders, a shareholder may
vote in person or by proxy executed in writing by shareholder or by his duly
authorized attorney in fact. Such proxy shall be filed with the secretary of
the corporation before
- 4 -
or at the time of the meeting. No proxy shall be valid after three months
from the date of its execution, unless otherwise provided in the proxy.
SECTION 9. Voting of Shares. Subject to the provisions of Section 12
of this Article II, each outstanding share entitled to vote shall be entitled
to one vote upon each matter submitted to a vote at a meeting of shareholders.
SECTION 10. Voting of Shares by Certain Holders. Shares standing in
the name of another corporation may be voted by such officer, agent, or proxy
as the by-laws of such corporation may prescribe, or, in the absence of such
provision, as the board of directors of such corporation may determine.
Shares held by an administrator, executor, guardian or conservator may
be voted by him, either in person or by proxy, without a transfer of such
shares into his name. Shares standing in the name of a trustee may be voted by
him, either in person or by proxy, but no trustee shall be entitled to vote
shares held by him without a transfer of such shares into his name.
Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be voted by
such receiver without the transfer thereof into his name if authority so to do
be contained in an appropriate order of the court by which such receiver was
appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the
- 5 -
name of the pledgee, and thereafter the pledgee shall be entitled to vote the
shares so transferred.
Shares of its own stock belonging to the corporation shall not be
voted, directly or indirectly, at any meeting, and shall not be counted in
determining the total number of outstanding shares at any given time.
SECTION 11. Informal Action by Shareholders. Unless otherwise provided
by law, any action required to be taken at a meeting of the shareholders, or
any other action which may be taken at a meeting of the shareholders, may be
taken without a meeting if a consent in writing, setting forth the action so
taken, shall be signed by all of the shareholders entitled to vote with respect
to the subject matter thereof.
SECTION 12. Cumulative Voting. Unless otherwise provided by law, at
each election for Directors every shareholder entitled to vote at such election
shall have the right to vote, in person or by proxy, the number of shares owned
by him for as many persons as there are Directors to be elected and for whose
election he has a right to vote, or to cumulate his votes by giving one
candidate as many votes as the number of such Directors multiplied by the
number of his shares shall equal, or by distributing such votes on the same
principles among any number of candidates.
ARTICLE III. BOARD OF DIRECTORS
SECTION 1. General Powers. The business and affairs of the corporation
shall be managed by its Board of Directors.
- 6 -
SECTION 2. Number, Tenure and Qualifications. The number of directors
of the corporation shall be three. Each director shall hold office until the
next annual meeting of shareholders and until his successor shall have been
elected and qualified.
SECTION 3. Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this by-law immediately
after, and at the same place as, the annual meeting of shareholders. The Board
of Directors may provide, by resolution, the time and place for the
holding of additional regular meetings without other notice than such
resolution.
SECTION 4. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the President or any two
directors. The person or persons authorized to call special meetings of the
Board of Directors may fix the place for holding any special meeting of the
Board of Directors called by them.
SECTION 5. Notice. Notice of any special meeting shall be given at
least ten (10) days previously thereto by written notice delivered personally
or mailed to each director at his business address, or by telegram. If mailed,
such notice shall be deemed to be delivered when deposited in the United
States mail so addressed, with postage thereon prepaid. If notice be given by
telegram, such notice shall be deemed to be delivered when the telegram is
delivered to the telegraph company. Any director may waive notice of any
meeting. The attendance of a director at a meeting shall constitute a waiver
of notice of such meeting, except where a director attends a meeting for the
express purpose
- 7 -
of objecting to the transaction of business because the meeting is not
lawfully called or convened.
SECTION 6. Quorum. A majority of the number of directors fixed by
Section 2 of this Article III shall constitute a quorum for the transaction of
business at any meeting of the Board of Directors, but if less than such
majority is present at a meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice.
SECTION 7. Manner of Acting. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors.
SECTION 8. Action Without a Meeting. Any action that may be taken by
the Board of Directors at a meeting may be taken without a meeting if a consent
in writing, setting forth the action so to be taken, shall be signed before
such action by all of the Directors.
SECTION 9. Vacancies. Any vacancy occurring in the Board of Directors
may be filled by the affirmative vote of a majority of the remaining directors
though less than a quorum of the Board of Directors, unless otherwise provided
by law. A director elected to fill a vacancy shall be elected for the unexpired
term of his predecessor in office. Any directorship to be filled by reason of
an increase in the number of directors may be filled by election by the Board
of Directors for a term of office continuing only until the next election of
Directors by the shareholders.
- 8 -
SECTION 10. Compensation. By resolution of the Board of Directors,
each Director may be paid his expenses, if any, of attendance at each meeting
of the Board of Directors, and may be paid a stated salary as director or a
fixed sum for attendance at each meeting of the Board of Directors or both. No
such payment shall preclude any director from serving the corporation in any
other capacity and receiving compensation therefor.
SECTION 11. Presumption of Assent. A director of the corporation who
is present at a meeting of the Board of Directors at which action on any
corporate matter is taken shall be presumed to have assented to the action
taken unless his dissent shall be entered in the minutes of the meeting or
unless he shall file his written dissent to such action with the person acting
as the Secretary of the meeting before the adjournment thereof or shall forward
such dissent by registered mail mail to the Secretary of the corporation
immediately after the adjournment of the meeting. Such right to dissent shall
not apply to a Director who voted in favor of such action.
ARTICLE IV. OFFICERS
SECTION 1. Number. The officers of the corporation shall be a
President, a Vice-President, a Secretary and a Treasurer, each of whom shall be
elected by the Board of Directors. Such other officers and assistant officers
as may be deemed necessary may be elected or appointed by the Board of
Directors.
SECTION 2. Election and Term of Office. The officers of the
corporation to be elected by the Board of Directors shall be elected annually
by the Board of Directors at the first meeting
- 9 -
of the Board of Directors held after each annual meeting of the
shareholders. If the election of officers shall not be held at such meeting,
such election shall be held as soon thereafter as conveniently may be. Each
officer shall hold office until his successor shall have been duly elected and
shall have qualified or until his death or until he shall resign or shall have
been removed in the manner hereinafter provided.
SECTION 3. Removal. Any officer or agent may be removed by the Board
of Directors whenever in its judgment, the best interests of the corporation
will be served thereby, but such removal shall be without prejudice to the
contract rights, if any, of the person so removed. Election or appointment of
an officer or agent shall not of itself create contract rights.
SECTION 4. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term.
SECTION 5. President. The President shall be the principal executive
officer of the corporation and, subject to the control of the Board of
Directors, shall in general supervise and control all of the business and
affairs of the corporation. He shall, when present, preside at all meetings of
the shareholders and of the Board of Directors. He may sign, with the Secretary
or any other proper officer of the corporation thereunto authorized by the
Board of Directors, certificates for shares of the corporation, any deeds,
mortgages, bonds, contracts, or other instruments which the Board of Directors
has authorized to be
- 10 -
executed, except in cases where the signing and execution thereof shall be
expressly delegated by the Board of Directors or by these By-Laws to some
other officer or agent of the corporation, or shall be required by law to be
otherwise signed or executed; and in general shall perform all duties incident
to the office of President and such other duties as may be prescribed by the
Board of Directors from time to time.
SECTION 6. Vice-President. In the absence of the President or in event
of his death, inability or refusal to act, the Vice-President shall perform the
duties of the President, and when so acting, shall have all the powers of and
be subject to all the restrictions upon the President. The Vice-President shall
perform such other duties as from time to time may be assigned to him by the
President or by the Board of Directors.
SECTION 7. Secretary. The Secretary shall: (a) keep the minutes of the
proceedings of the shareholders and of the Board of directors in one or more
books provided for that purpose; (b) see that all notices are duly given in
accordance with the provisions of these By-Laws or as required by law; (c) be
custodian of the corporate records and of the seal of the corporation and see
that the seal of the corporation is affixed to all documents the execution of
which on behalf of the corporation under its seal is duly authorized; (d) to
keep a register of the postoffice address of each shareholder; (e) sign with
the President, certificates for shares of the corporation, the issuance of
which shall have been authorized by resolution of the Board of Directors; (f)
have general charge of the stock
-11-
transfer books of the corporation; and (g) in general perform all
duties incident to the office of Secretary and such other duties as from time
to time may be assigned to him by the President or by the Board of Directors.
SECTION 8. Treasurer. The Treasurer shall: (a) have charge and custody
of and be responsible for all funds and securities of the corporation; (b)
receive and give receipts for moneys due and payable to the corporation from
any source whatsoever, and deposit all such moneys in the name of the
corporation in such banks, trust companies or other depositaries as shall be
selected in accordance with the provisions of Article V of these By-Laws; and
(c) in general perform all of the duties incident to the office of Treasurer
and such other duties as from time to time may be assigned to him by the
President or by the Board of Directors. If required by the Board of Directors,
the Treasurer shall give a bond for the faithful discharge of his duties in
such sum and with such surety or sureties as the Board of Directors shall
determine.
SECTION 9. Salaries. The salaries of the officers shall be fixed from
time to time by the Board of Directors and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a director of the
corporation.
ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. Contracts. The Board of Directors may authorize any officer
or officers, agent or agents, to enter into any contract or execute and deliver
any instrument in the name of and
- 12 -
on behalf of the corporation, and such authority may be general or confined
to specific instances.
SECTION 2. Loans. No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority may be
general or confined to specific instances.
SECTION 3. Checks, drafts, etc. All checks, drafts, or other orders
for the payment of money, notes or other evidences of indebtedness issued in
the name of the corporation, shall be signed by such officer or officers, agent
or agents of the corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
SECTION 4. Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the corporation
in such banks, trust companies or other depositories as the Board of Directors
may select.
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 1. Certificates for Shares. Certificates representing shares
of the corporation shall be in such form as shall be determined by the Board of
Directors. Such certificates shall be signed by the President and by the
Secretary or by such other officers authorized by law and by the Board of
Directors so to do, and sealed with the corporate seal. All certificates for
shares shall be consecutively numbered or otherwise identified. The name and
address of the person to whom the shares represented thereby are issued, with
the number of shares and date of issue,
- 13 -
shall be entered on the stock transfer books of the corporation. All
certificates surrendered to the corporation for transfer shall be canceled and
no new certificate shall be issued until the former certificate for a like
number of shares shall have been surrendered and canceled, except that in case
of a lost, destroyed or mutilated certificate a new one may be issued therefor
upon such terms and indemnity to the corporation as the Board of Directors may
prescribe.
SECTION 2. Transfer of Shares. Transfer of shares of the corporation
shall be made only on the stock transfer books of the corporation by the holder
of record thereof or by his legal representative, who shall furnish proper
evidence of authority to transfer, or by his attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary of the
Corporation, and on surrender for cancellation of the certificate for such
shares. The person in whose name shares stand on the books of the corporation
shall be deemed by the corporation to be the owner thereof for all purposes.
ARTICLE VII. FISCAL YEAR
The fiscal year of the corporation shall begin on the 1st day of
January and end on the thirty-first day of December in each year.
ARTICLE VIII. DIVIDENDS
The Board of Directors may from time to time declare, and the
corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law and its articles of incorporation.
- 14 -
ARTICLE IX. CORPORATE SEAL
The Board of Directors shall provide a corporate seal which shall be
circular in form and shall have inscribed thereon the name of the corporation
and the state of incorporation and the word, "Corporate Seal".
ARTICLE X. WAIVER OF NOTICE
Unless otherwise provided by law, whenever any notice is required to
be given to any shareholder or director of the corporation under the provisions
of these By-Laws or under the provisions of the articles of incorporation or
under the provisions of the Business Corporation Act, a waiver thereof in
writing, signed by the person or persons entitled to such notice, whether
before or after the time stated therein, shall be deemed equivalent to the
giving of such notice.
ARTICLE XI. AMENDMENTS
These By-Laws may be altered, amended or repealed and new By-Laws may
be adopted by the Board of Directors at any regular or special meeting of the
Board of Directors.
- 15 -
EX 3.90
CERTIFICATE OF INCORPORATION
OF
UAG ATLANTA V, INC.
FIRST: The name of the corporation is UAG Atlanta V, Inc.
SECOND: The address of the corporation's registered office in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, county of
New Castle. The name of the corporation's registered agent at such address is
The Corporation Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act
or activity for which corporations may be organized under the Delaware General
Corporation Law.
FOURTH: The total number of shares of stock which the corporation is
authorized to issue is one thousand (1,000) shares of common stock, having a
par value of one dollar ($1.00) per share.
FIFTH: The business and affairs of the corporation shall be managed
by or under the direction of the board of directors, and the directors need
not be elected by ballot unless required by the by-laws of the corporation.
SIXTH: In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware, the board of
directors is expressly authorized to make, amend and repeal by-laws.
SEVENTH: 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
a knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived
an improper personal benefit. If the Delaware General Corporation Law 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 Delaware General Corporation Law, as so amended. Any repeal or
modification of this provision shall not adversely affect any right or
protection of a director of the corporation existing at the time of such
repeal or modification.
EIGHTH: The corporation reserves the right to amend and repeal any
provision contained in this Certificate of Incorporation in the manner from
time to time prescribed by the laws of the State of Delaware.
All rights herein conferred are granted subject to this reservation.
-2-
NINTH: The incorporator is David G. Thunhorst, whose mailing address
is 2700 International Tower, Peachtree Center, 229 Peachtree Street, N.E.,
Atlanta, Georgia 30303.
I, the Undersigned, being the incorporator, for the purpose of
forming a corporation under the laws of the State of Delaware, do make, file
and record this Certificate of Incorporation and, accordingly, have hereto set
my hand this 12th day of September, 1996.
/s/David G. Thunhorst
--------------------------
David G. Thunhorst
-3-
EX 3.92
ARTICLES OF INCORPORATION
STATE OF GEORGIA
COUNTY OF ROCKDALE
The petition of CHARLES F. EVANS, hereinafter called Petitioner
respectfully shows:
1.
Petitioner desires for himself, his associates, and successors to be
incorporated under the name of:
CHARLES EVANS DATSUN, INC.
2.
The object of said corporation is pecuniary gain and profit.
3.
The general nature of the business or businesses to be transacted
shall be to operate in general business as a motor vehicle dealer and to
engage in the business of purchasing, acquiring, owning, leasing, selling,
transferring, encumbering, generally dealing in, repairing, renovating, and
servicing of all types of new and used automobiles, trucks, and other motor
vehicles and any parts and accessories used in connection therewith, and the
purchasing, acquiring, owning, selling, and generally dealing in all types of
supplies for all types of motor
vehicles, and to do all necessary and incidental acts in the conduct of the
aforesaid business.
4.
The maximum number of shares of stock shall be 500,000 shares of
stock of the par value of One Dollar ($1.00) per share, all of which shall be
common stock. However, said Corporation shall not begin business until the
consideration of Five Hundred Dollars ($500.00) has been received for the
issuance of shares.
5.
The period of duration of this Corporation shall be perpetual unless
sooner terminated by law.
6.
The principal office of the Corporation shall be in Rockdale County
at 1450 Iris Drive, Conyers, Georgia 30207, and its initial registered agent
shall be Charles F. Evans.
7.
The initial Board of Directors of said Corporation shall be three in
number, and said Board shall consist of the following named individuals, to
wit:
Charles F. Evans
Zingars Road
Conyers, Georgia 30207
Michael A. Pickett
2586 Queens Circle
Conyers, Georgia 30207
-2-
Sarah H. Pilgrim
4560 E. Ponce de Leon
Clarkston, Georgia 30021
8.
The names and addresses of the Incorporators are as follows:
Charles F. Evans
Zingara Road
Conyers, Georgia 30207
Michael A. Pickett
2586 Queens Circle
Conyers, Georgia 30207
Sarah H. Pilgrim
4560 E. Ponce de Leon
Clarkston, Georgia 30021
9.
Petitioner herewith exhibits a certificate of Secretary of the State
of Georgia as required by ss.22-803, Georgia Code Annotated.
WHEREFORE, PETITIONER PRAYS to be incorporated under the name and
style aforesaid with all the rights, powers, and privileges as may be
necessary, proper or incident to the conduct of the business aforesaid, and as
may be inherent or allowed to like incorporators under the laws of the State
of Georgia as they now exist or may hereafter exist.
VAUGHN, BARKSDALE & NATION
Attorneys for Petitioner
By: /s/ Robert W. Maddox
--------------------
-3-
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF CHARLES EVANS NISSAN, INC.
I
The name of the Corporation is CHARLES EVANS NISSAN, INC.
II
Effective as of the date hereof, Article I of the Articles of
Incorporation of the Corporation is amended to read as follows:
"The name of the Corporation is CONYERS NISSAN, INC."
III
All other provisions of the Articles of Incorporation shall remain in
full force and effect.
IV
These Articles of Amendment to the Corporation's Articles of
Incorporation were duly appointed by the Corporation's Board of Directors on
October 28, 1996 in accordance with the provisions of Section 14-2-1002 of the
Georgia Business Corporation Code, and no shareholder action was required with
respect thereto.
IN WITNESS WHEREOF, the Corporation has caused these Articles of
Amendment to be executed and attested by its duly authorized officers as of
the 28th day of October, 1996.
CHARLES EVANS NISSAN, INC.
By: /s/ Thomas C. Olney
--------------------
Thomas C. Olney
President
STATE OF GEORGIA
COUNTY OF ROCKDALE
ARTICLES OF AMENDMENT
The Board of Directors of CHARLES EVANS DATSUN, INC., a profit
corporation existing under the laws of the State of Georgia, did on the 12th
day of August, 1985, adopt a resolution to amend the Articles of Incorporation
of said corporation to reflect the following:
1.
The name of the corporation CHARLES EVANS DATSUN, INC. shall be
changed to CHARLES EVANS NISSAN, INC. Attached hereto is the Certificate of
the Secretary of State of Georgia as required by ss. 14-2-194(a) O.C.G.A.
2.
This Amendment was approved and adopted unanimously by all
shareholders and directors of the corporation on the 12th day of August, 1985.
At the time of said adoption, the number of shares outstanding and entitled to
vote thereupon was 500 shares of common stock.
3.
Except as amended hereby, the original Articles of Incorporation of
said corporation shall remain in full force and
effect and shall not be construed as having been altered in any other manner
whatsoever.
This the 12th day of August, 1985.
CHARLES EVANS DATSUN, INC.
By: /s/ Michael Pickett
Michael Pickett, Pres.
(SEAL)
ATTESTED TO:
/s/ Sarah Pilgrim
- -----------------------------
Sarah Pilgrim, Secretary
-2-
EX 3.94
CERTIFICATE OF INCORPORATION
OF
UAG TENNESSEE, INC.
FIRST: The name of the corporation is UAG Tennessee, Inc.
SECOND: The address of the corporation's registered office in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of the corporation's registered agent at such address is
The Corporation Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act
or activity for which corporations may be organized under the Delaware General
Corporation Law.
FOURTH: The total number of shares of stock which the corporation is
authorized to issue is one thousand (1,000) shares of common stock, having a
par value of one dollar ($1.00) per share.
FIFTH: The business and affairs of the corporation shall be managed
by or under the direction of the board of directors, and the directors need
not be elected by ballot unless required by the by-laws of the corporation.
SIXTH: In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware, the board of directors is expressly
authorized to make, amend and repeal by-laws.
SEVENTH: 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
a knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived
an improper personal benefit. If the Delaware General Corporation Law 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 Delaware General Corporation Law, as so amended. Any repeal or
modification of this provision shall not adversely affect any right or
protection of a director of the corporation existing at the time of such
repeal or modification.
EIGHTH: The corporation reserves the right to amend and repeal any
provision contained in this Certificate of Incorporation in the manner from
time to time prescribed by laws of the State of Delaware. All rights herein
conferred are granted subject to this reservation.
NINTH: The incorporator is David G. Thunhorst, whose mailing address
is 2700 International Tower, Peachtree Center, 229 Peachtree Street, N.E.,
Atlanta, Georgia 30303.
-2-
I, the Undersigned, being the incorporator, for the purpose of
forming a corporation under the laws of the State of Delaware, do make, file
and record this Certificate of Incorporation and, accordingly, have hereto set
my hand this 12th day of August, 1996.
/s/David G. Thunhorst
-------------------------
David G. Thunhorst
-3-
EX 3.96
AMENDED AND RESTATED CHARTER
OF
STANDEFER MOTOR SALES, INC.
UNDER SECTION 48-20-107 OF THE TENNESSEE BUSINESS CORPORATION ACT
Pursuant to the provisions of Section 48-20-107 of the
Tennessee Business Corporation Act, the undersigned corporation adopts the
following amended and restated charter:
Part I:
1. The name of the corporation is Standefer Motor Sales, Inc.
2. The address of the principal office of the corporation in the
State of Tennessee shall be 2121 Chapman Road, Chattanooga, Tennessee 37421,
County of Hamilton.
3. The duration of the corporation is perpetual.
4. The maximum number of shares that the corporation is authorized to
issue is one hundred thousand (100,000) shares, all without par value,
consisting of no more than ten thousand (10,000) shares of Class A voting
common stock without par value, and no more than ninety thousand (90,000)
shares of Class B nonvoting common stock without par value. The preferences,
limitations and relative rights in respect of the shares of each class are as
follows:
Each holder of Class A voting common stock is entitled at
each meeting of shareholders, and on each proposal presented
at the meeting, to one vote for each share of such stock
standing in his name on the books of the corporation on the
record date for the meeting. The holders of Class B
nonvoting common stock are not entitled to vote, or entitled
to participate in any meeting of shareholders, or entitled
to receive notice
of any such meeting. They are not considered shareholders for
the purpose of any election, meeting, consent instrument or
waiver of notice under any provision of law now in force or
later enacted. Except for the difference in voting rights,
all classes of common stock have the same relative rights and
shall be entitled to receive the net assets of the
corporation upon dissolution.
5. The corporation is for profit.
6. The address of the registered office of the corporation in the
State of Tennessee shall be 2121 Chapman Road in the City of Chattanooga,
37421, Hamilton County. Its registered agent at such address shall be Charles
A. Standefer.
7. No director of the corporation shall be liable to the corporation
or to its shareholders for monetary damages for breach of fiduciary duty as a
director, provided that the provisions of this Paragraph 7 shall not eliminate
or limit the liability of a director in violation of Subsection
48-12-102(b)(3) of the Tennessee Code Annotated, as existing on January 1,
1988 and as amended from time to time thereafter. It is intended that this
Paragraph 7 eliminate or limit the monetary liability of each director of the
corporation to the fullest extent permitted by Tennessee law, as existing on
January 1, 1988 and as amended from time to time thereafter. No amendment to
or repeal of this provision shall apply to or have any effect on liability or
alleged liability of any director of the corporation for or with respect to
any acts or omissions of such director occurring prior to such amendment or
repeal.
8. (a) Any director, officer, employee or agent of the
corporation, shall be entitled to indemnification against
-2-
liability and to advancement of expenses in accordance with Sections 48-18-501
through 48-18-509 of the Tennessee Code Annotated, as existing on January 1,
1988 and as amended from time to time thereafter.
(b) In addition, any director shall be entitled to
indemnification against liability and to advancement of expenses incurred by
him in connection with any proceeding to which he is a party because he is or
was a director of the corporation or arising out of his status as a director;
provided, however, that no indemnification may be made to or on behalf of any
director pursuant to this Subparagraph 8(b) in violation of Section 48-18-509
of the Tennessee Code Annotated, as existing on January 1, 1988 and as amended
from time to time thereafter.
(c) In addition, any officer, including any officer who is
also a director, shall be entitled to indemnification against liability and to
advancement of expenses incurred by him in connection with any proceeding to
which he is a party because he is or was an officer of the corporation or
arising out of his status as an officer; provided, however, that no
indemnification may be made to or on behalf of any officer pursuant to this
Subparagraph 8(c) in violation of Section 48-18-509 of the Tennessee Code
Annotated, as existing on January 1, 1988 and as amended from time to time
thereafter.
(d) Nothing contained in this Charter shall affect any
rights to indemnification against liability or advancement of expenses to
which any director, officer, employee or agent of the corporation may be
entitled by contract or otherwise under law.
-3-
(e) The terms used in this Paragraph 8 shall have the
meanings given them in or pursuant to Sections 48-18-501 through 48-18-509 of
the Tennessee Code Annotated, as existing on January 1, 1988 and as amended
from time to time thereafter. Neither Subparagraph (a), (b), (c), or (d), of
this Paragraph 8 shall be considered as a limitation on any other subparagraph
of this Paragraph 8.
(f) No amendment to or repeal of any subparagraph in this
Paragraph 8 shall apply to or have any effect on any indemnification of
liability or advancement of expenses arising out of any act or omission of any
director, officer, employee or agent occurring prior to such amendment or
repeal.
Part II:
1. The date the original charter was filed by the Secretary of State was
January 14, 1958. A charter amendment was filed by the Secretary of State on
July 17, 1967, changing the name of the corporation to its present name.
2. This amended and restated charter restates the text of the charter, as
previously amended, further amends or changes the charter as specified below,
and was duly authorized by unanimous consent of the shareholders and directors
on October 8, 1992:
A. Paragraph 2 of the charter is deleted and Paragraph 2 of the
amended and restated charter is substituted in lieu thereof
to include the current street address of the corporation's
principal office.
B. Paragraphs 3, 4, 5, 6 and 7 of the charter are deleted and
Paragraphs 3, 4, 5, 6 and 7 of the amended and restated
charter are substituted in lieu thereof.
-4-
C. Paragraph 8 of the amended and restated charter is added.
Part III:
The manner in which any exchange, reclassification or
cancellation of issued shares provided for in the amended and restated charter
shall be effected is as follows: each of the one hundred (100) shares of
issued and outstanding shares of common stock of the corporation as of the
date of this instrument shall be cancelled and exchanged for ten (10) shares
of the authorized but unissued Class A voting common stock of the corporation
and ninety (90) shares of the authorized but unissued Class B nonvoting common
stock of the corporation.
Part IV:
The Amended and Restated Charter shall be effective when
this instrument is filed by the Secretary of State of the State of Tennessee.
Dated __________________, 1992.
STANDEFER MOTOR SALES, INC.
By/s/ Charles A. Standefer
-----------------------------------
(Charles A. Standefer) President
-2-
ARTICLES OF AMENDMENT TO THE CHARTER
OF
STANDEFER MOTOR SALES, INC.
Pursuant to the provisions of the Tennessee Business
Corporation Act, the undersigned corporation adopts the following Articles of
Amendment to its Charter:
1. The name of the corporation is:
STANDEFER MOTOR SALES, INC.
2. Effective as of the date hereof, Paragraphs 1 and 6
of the Charter are amended to read as follows:
1. The name of the corporation is:
UNITED NISSAN, INC.
6. The name of the registered agent of the
corporation in the State of Tennessee and the registered office address is:
R. WAYNE PETERS
320 MCCALLIE AVENUE
CHATTANOOGA, TENNESSEE 37402
HAMILTON COUNTY
3. The amendment was duly adopted by the written
consent of the shareholders and directors on October 28, 1996.
4. No exchange, reclassification or cancellation of
issued shares is provided for by the amendment.
5. The amendment is to be effective when these articles
are filed by the Secretary of State.
IN WITNESS WHEREOF, the Corporation has caused these
Articles of Amendment to Charter to be executed and attested by its duly
authorized officers as of the 28th day of October, 1996.
STANDEFER MOTOR SALES, INC.
By:/s/ Karen S. Nicely, President
(Karen S. Nicely) President
CHANGE OF REGISTERED AGENT/OFFICE (BY CORPORATION)
PURSUANT TO THE PROVISIONS OF SECTION 48-15-102 OR 48-25-108 OF THE
TENNESSEE BUSINESS CORPORATION ACT OR SECTION 48-55-102 OR 48-65-108 OF THE
TENNESSEE NONPROFIT CORPORATION ACT, THE UNDERSIGNED CORPORATION HEREBY
SUBMITS THIS APPLICATION:
1. THE NAME OF THE CORPORATION IS UNITED NISSAN, INC. A
TENNESSEE CORPORATION.
2. THE STREET ADDRESS OF ITS CURRENT REGISTERED OFFICE IS 320
MCCALLIE AVENUE, CHATTANOOGA, TENNESSEE 37402.
3. IF THE CURRENT REGISTERED OFFICE IS TO BE CHANGED, THE STREET
ADDRESS OF THE NEW REGISTERED OFFICE, THE ZIP CODE OF SUCH OFFICE, AND THE
COUNTY IN WHICH THE OFFICE IS LOCATED IS C/O CT CORPORATION SYSTEM, 530 GAY
STREET, KNOXVILLE, TENNESSEE 37902 - KNOX COUNTY.
4. THE NAME OF THE CURRENT REGISTERED AGENT IS R. WAYNE
PETERS (RESIGNED).
5. IF THE CURRENT REGISTERED AGENT IS TO BE CHANGED, THE NAME OF
THE NEW REGISTERED AGENT IS CT CORPORATION SYSTEM.
6. AFTER THE CHANGE(S), THE STREET ADDRESSES OF THE REGISTERED
OFFICE AND THE BUSINESS OFFICE OF THE REGISTERED AGENT WILL BE IDENTICAL.
1/24/97 UNITED NISSAN, INC.
- ------------------------- --------------------------
SIGNATURE DATE NAME OF CORPORATION
VICE PRESIDENT /S/ LAUREN DOWLING
- ------------------------- --------------------------
SIGNER'S CAPACITY SIGNATURE
LAUREN DOWLING
--------------------------
NAME (TYPED OR PRINTED)
EX-3.97
BYLAWS
OF
STANDEFER AND DeFRIESE MOTOR COMPANY
(Incorporated under the laws of Tennessee)
- I -
PRINCIPAL OFFICE
The principal office of this Corporation shall be located at 2110
Dodson Avenue, Chattanooga, Tennessee, or at such other place as shall be so
designated by the Board of Directors.
- II -
STOCKHOLDERS' MEETINGS
1. Place of Meetings. Meetings of the stockholders shall be held at
the principal office of the Corporation or at any other place within the United
States the Board of Directors or stockholders may from time to time select.
2. Annual Meetings. An annual meeting of the stockholders shall be
held on the third Friday of February, provided such date is not a legal
holiday, and, if a legal holiday, then on the next succeeding day that is not a
legal holiday or a Sunday; and the stockholders shall elect a Board of
Directors and transact other business.
3. Special Meetings. Special meetings of the stockholders may be
called by the President, the Secretary or the Board of Directors upon due
written notice to the stockholders.
4. Notice of Meetings. Written notice of each and every meeting of the
stockholders, stating the place, day and hour of the meeting, and in the case
of a special meeting the purpose or
Standefer and DeFriese Motor Company
Bylaws--Page 2
purposes of the meeting, shall be given by the President or Secretary to each
stockholder entitled to vote at such meeting at least ten (10) days and not
more than fifteen (15) days prior to the date of such meeting.
5. Waiver of Notice. A stockholder, either before or after a
stockholders' meeting, may waive notice of the meeting. Attendance at a
stockholders' meeting, either in person or by proxy, of a person entitled to
notice shall constitute a waiver of notice of the meeting unless he attends for
the express purpose of objecting to the transaction of business on the ground
that the meeting was not lawfully called or convened.
6. Quorum. The holders of a majority of the shares of common stock of
the Corporation issued and outstanding and entitled to vote at the meeting and
present in person or represented by proxy duly executed in writing shall
constitute a quorum at all meetings of the stockholders, except as otherwise
provided by law.
7. Voting Rights. Each stockholder having the right to vote shall be
entitled at each meeting of the stockholders to one vote for each share of
stock having voting power and registered in his name on the books of the
Corporation; and all elections shall be had and all questions decided by vote
of a majority of stock represented at the meeting. There shall be no cumulative
voting.
Standefer and DeFriese Motor Company
Bylaws--Page 3
- III -
BOARD OF DIRECTORS
1. Number - Election - Term - Vacancies - Removal. The Board of
Directors of the Corporation shall consist of at least three (3) members, none
of whom need be resident in the State of Tennessee or hold shares in this
Corporation. Each director, except one appointed to fill a vacancy, shall be
elected at the annual meeting of stockholders, to serve for a term of one (1)
year or until his successor shall be elected and qualified. Vacancies on the
Board of Directors shall be filled by a majority of the remaining members of
the Board. Each director so selected to fill a vacancy shall serve until his
successor is elected by the stockholders at the next annual meeting or at a
special meeting earlier called for that purpose. At a meeting of the
stockholders called for that purpose the entire Board of Directors or any
individual director may be removed from office without assignment of cause by
the vote of a majority of the shares entitled to vote at an election of
directors.
2. General Powers. The Board of Directors shall have management and
control of the business and affairs of the Corporation.
3. Chairman of Board. The Board of Directors shall be empowered, in
its discretion, to elect from its membership a Chairman of the Board, who shall
serve for such term as the Board shall specify and who shall, in the interim
between meetings of the Board, interpret its policies and directions and who
shall
Standefer and DeFriese Motor Company
Bylaws--Page 4
preside at all meetings of the Board and who shall have such other duties and
responsibilities as the Board shall prescribe.
4. Presumption of Assent. Any director who is present at a meeting of
the Board of Directors at which action on any corporate matter is taken shall
be presumed to have assented to the action unless his dissent shall be entered
in the minutes of the meeting, or unless he shall file his written dissent to
such action with the person acting as Secretary of the meeting before the
adjournment thereof, or shall forward such dissent by registered mail to the
Secretary of the Corporation immediately after the adjournment of the meeting.
Such right to dissent shall not apply to a director who voted in favor of such
action.
- IV -
MEETINGS OF THE BOARD
1. Place of Meetings. The meetings of the Board of Directors shall be
held at the principal office of the Corporation or at any place within the
United States that a majority of the Board of Directors may from time to time
by resolution appoint.
2. Annual Meetings. The Board of Directors shall meet each year
immediately after the annual meeting of the stockholders to elect officers and
consider other business.
3. Special Meetings. Special meetings of the Board of Directors may be
called at any time by the President, or by the Secretary, or by a majority of
the members of the Board of Directors.
Standefer and DeFriese Motor Company
Bylaws--Page 5
4. Notice of Meetings. Notice of the annual meeting of the Board of
Directors need not be given. Written notice of each special meeting, setting
forth the place, day and hour of the meeting, shall be given to each director
at least ten (10) days and not more than fifteen (15) days prior to the date of
the meeting.
5. Waiver of Notice. A director may waive notice of a special meeting
of the Board in writing either before or after the meeting. Attendance of a
director at a meeting shall constitute waiver of notice of that meeting unless
he attends for the express purpose of objecting to the transaction of business
because the meeting has not been lawfully called or convened.
6. Quorum. At all meetings of the Board of Directors, a majority of
all the directors in office shall constitute a quorum for the transaction of
business. If a quorum is present, the acts of the majority of the directors in
attendance shall be the acts of the Board, unless otherwise herein provided.
- V -
OFFICERS
1. Election - Title - Term. The officers of the Corporation shall be
elected by the Board of Directors and shall consist of a President, a Vice
President, a Secretary and a Treasurer and such other officers as the Board of
Directors may from time to time deem necessary. Officers shall hold office
until their successors are elected and have qualified, unless they are sooner
removed from office as provided in these Bylaws.
Standefer and DeFriese Motor Company
Bylaws--Page 6
Two or more offices may be held by the same person, except that one person
shall not at the same time hold the offices of President and Secretary or
Assistant Secretary.
2. Removal. An officer of the Corporation may be removed at any time
by a majority vote of the Board of Directors whenever in their judgment the
best interests of the Corporation will be served by the removal.
3. Duties. The duties of the officers of this Corporation shall be
such as usually appertain to such officers of private corporations except as
may be otherwise prescribed by the Board of Directors.
4. Compensation. The Board of Directors shall fix the compensation of
the officers of the Corporation. The authority to fix the compensation of all
officers other than the President may be delegated to the President, and the
authority to fix the compensation of the President may be delegated to the
Chairman of the Board, in the discretion of the Board of Directors.
- VI -
CAPITAL STOCK
1. Authorized Stock. The authorized capital stock of this Corporation
shall be such as is authorized by the Charter of Incorporation or any amendment
thereto.
2. Stated Value. The no par common stock of this Corporation shall
have such fixed or stated value as the Board of Directors shall from time to
time determine.
Standefer and DeFriese Motor Company
Bylaws--Page 7
3. Rights, Privileges, etc. of Holders. The rights, privileges, and
liabilities of the holders of stock in this Corporation shall be governed by
the provisions of the Charter of Incorporation or of any amendments thereto.
4. Stock Certificates. The capital stock of this Corporation shall be
represented by stock certificates on which shall be printed or to which shall
be attached a copy of the terms and conditions relating to such stock as are
set out in the Charter of Incorporation or any amendments thereto.
5. Transfer of Shares. The shares of stock of this Corporation may be
transferred at any time by endorsement of the certificate representing the same
by the holder thereof; but no such transfer shall be valid except as between
the parties thereto until the certificate representing the stock transferred
has been surrendered to the Corporation, and cancelled, and a new certificate
issued to the transferee.
6. Lost or Mislaid Certificates. In case any stockholder shall lose or
mislay a certificate of stock, a new certificate may be issued in lieu thereof
upon bond being made by such stockholder to indemnify the Corporation against
loss on account of the issuance of the new certificate, such bond to be in the
terms and form satisfactory to the Secretary of the Corporation.
- VII -
NOTICE - IN GENERAL
In any case hereunder when notice to stockholders or directors is
required such notice shall be in writing and either
Standefer and DeFriese Motor Company
Bylaws--Page 8
delivered by hand or mailed first-class United States mail, postage prepaid, to
the stockholder or director, as the case may be. If mailed, the notice shall be
addressed to the one to receive the notice at his address as it appears upon
the stock books or other records of the Corporation. If mailed, the time of
mailing the notice shall be the time of the giving of such notice for all
purposes hereunder.
- VIII -
SEAL
The Corporation shall have a seal in appropriate form, which seal
shall be kept by the Secretary and which shall be affixed to all stock
certificates and all other formal documents executed in the name of the
Corporation and to which by law or custom the corporate seal is required to be
affixed.
- IX -
MISCELLANEOUS
1. Stock and Securities of Other Corporations. In the absence of other
arrangement by the Board of Directors, the President of this Corporation may
vote, endorse for transfer, or take any other action necessary with respect to
shares of stock and securities issued by any other corporation and owned by
this Corporation; and he may make, execute and deliver any proxy, waiver or
consent with respect thereto.
2. Indemnification. The Corporation shall indemnify any present or
former officer or director or any person who may have served as a director or
officer of another corporation at the
Standefer and DeFriese Motor Company
Bylaws--Page 9
request of the Corporation against all liabilities imposed upon him and
expenses reasonably incurred by him, including counsel fees, in connection with
any claim made against him, or any action, suit or proceeding to which he may
be a party by reason of his being, or having been, a director or officer of the
Corporation, or of any such other corporation, and against all sums paid with
court approval in settlement of any such claim, action, suit or proceeding;
provided, however, that no director or officer shall be indemnified with
respect to matters in which he shall be adjudged to be liable for negligence or
misconduct in the performance of his duties, or with respect to any settlement
which the Board of Directors, as well as the court, shall disapprove as not
being for the best interest of the Corporation, or with respect to matters for
which such indemnification would be against public policy. Such right of
indemnification shall be in addition to any other rights to which such director
or officer may be entitled, and shall inure to the estate, executor,
administrator, heirs, legatees or devisees of such officers and directors.
- X -
AMENDMENT
These Bylaws may be altered, amended or repealed by the stockholders
at any regular meeting or at any special meeting called for that purpose,
provided, however, that notice of the proposed amendment, alteration or repeal
shall be given to each stockholder at least ten (10) days and not more than
fifteen (15)
Standefer and DeFriese Motor Company
Bylaws--Page 10
days prior to the date of the meeting at which the Bylaws are to be altered,
amended or repealed. Any stockholder, however, may in writing waive such
notice. If all the stockholders shall be present at any regular or special
meeting, the Bylaws may be altered, amended or repealed by unanimous vote
without any requirement of previous notice.
EX 3.98
CERTIFICATE OF INCORPORATION
OF
UAG TEXAS, INC.
FIRST: The name of the corporation is UAG Texas, Inc.
SECOND: The address of the corporation's registered office in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of the corporation's registered agent at such address is
The Corporation Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act
or activity for which corporations may be organized under the Delaware General
Corporation Law.
FOURTH: The total number of shares of stock which the corporation is
authorized to issue is one thousand (1,000) shares of common stock, having a
par value of one dollar ($1.00) per share.
FIFTH: The business and affairs of the corporation shall be managed
by or under the direction of the board of directors, and the directors need
not be elected by ballot unless required by the by-laws of the corporation.
SIXTH: In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware, the board of directors is expressly
authorized to make, amend and repeal by-laws.
SEVENTH: 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
a knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived
an improper personal benefit. If the Delaware General Corporation Law 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 Delaware General Corporation Law, as so amended. Any repeal or
modification of this provision shall not adversely affect any right or
protection of a director of the corporation existing at the time of such
repeal or modification.
EIGHTH: The corporation reserves the right to amend and repeal any
provision contained in this Certificate of Incorporation in the manner from
time to time prescribed by the laws of the State of Delaware.
All rights herein conferred are granted subject to this reservation.
NINTH: The incorporator is David G. Thunhorst, whose mailing address
is 2700 International Tower, Peachtree Center, 229 Peachtree Street, N.E.,
Atlanta, Georgia 30303.
-2-
I, the Undersigned, being the incorporator, for the purpose of
forming a corporation under the laws of the State of Delaware, do make, file
and record this Certificate of Incorporation and, accordingly, have hereto set
my hand this 10th day of December, 1996.
/s/ David G. Thunhorst
--------------------------
David G. Thunhorst
-3-
EX 3.100
CERTIFICATE OF INCORPORATION
OF
UAG TEXAS II, INC.
FIRST: The name of the corporation is UAG Texas II, Inc.
SECOND: The address of the corporation's registered office in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of the corporation's registered agent at such address is
The Corporation Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act
or activity for which corporations may be organized under the Delaware General
Corporation Law.
FOURTH: The total number of shares of stock which the corporation is
authorized to issue is one thousand (1,000) shares of common stock, having a
par value of one dollar ($1.00) per share.
FIFTH: The business and affairs of the corporation shall be managed
by or under the direction of the board of directors, and the directors need
not be elected by ballot unless required by the by-laws of the corporation.
SIXTH: In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware, the board of
directors is expressly authorized to make, amend and repeal by-laws.
SEVENTH: 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
a knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived
an improper personal benefit. If the Delaware General Corporation Law 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 Delaware General Corporation Law, as so amended. Any repeal or
modification of this provision shall not adversely affect any right or
protection of a director of the corporation existing at the time of such
repeal or modification.
EIGHTH: The corporation reserves the right to amend and repeal any
provision contained in this Certificate of Incorporation in the manner from
time to time prescribed by the laws of the State of Delaware.
All rights herein conferred are granted subject to this reservation.
-2-
NINTH: The incorporator is David G. Thunhorst, whose mailing address
is 2700 International Tower, Peachtree Center, 229 Peachtree Street, N.E.,
Atlanta, Georgia 30303.
I, the Undersigned, being the incorporator, for the purpose of
forming a corporation under the laws of the State of Delaware, do make, file
and record this Certificate of Incorporation and, accordingly, have hereto set
my hand this 12th day of December, 1996.
/s/David G. Thunhorst
----------------------
David G. Thunhorst
-3-
EX-3.102
CERTIFICATE OF LIMITED PARTNERSHIP
OF SHANNON AUTOMOTIVE LTD.
We, the undersigned, desiring to form a limited partnership (the
"Partnership") pursuant to the Texas Revised Limited Partnership Act, Article
6132a-l of the Revised Civil Statutes of the State of Texas, certify as
follows:
1. The name of the Partnership is SHANNON AUTOMOTIVE LTD.
2. The address of the registered office of the Partnership is 13403
Northwest Freeway, Suite 200, Houston, Texas. The name of the registered agent
for service of process is Frank J. Bramanti. The address of the registered
agent is 13403 Northwest Freeway, Suite 200, Houston, Texas.
3. The address of the principal office in the United States where records
of the Partnership are to be kept or made available is 13403 Northwest Freeway,
Suite 200, Houston, Texas.
4. The name, mailing address or street address of the business or residence
of each general partner is as follows:
Name Mailing Address and/or Street Address
---- -------------------------------------
CROWN JEEP EAGLE, INC. 17105 Northwest Freeway
Houston, Texas
5. The name, mailing address or street address of the business or residence
of each limited partner is as follows:
Name Mailing Address and/or Street Address
---- -------------------------------------
BYRON PROPERTIES, INC. 13403 Northwest Freeway
Suite 200
Houston, Texas
IN WITNESS WHEREOF, we have hereunto set our hands this 5th day of June,
1990.
GENERAL PARTNER,
CROWN JEEP EAGLE, INC.
By: /s/ Kevin J. Coffey
--------------------------------
Kevin J. Coffey, President
LIMITED PARTNER:
BYRON PROPERTIES, INC.
By: /s/ J. Robert Dickerson
--------------------------------
Vice President
THE STATE OF TEXAS ss.
ss.
COUNTY OF HARRIS ss.
This instrument was acknowledged on the 5th day of June, 1990, by KEVIN J.
COFFEY, President of CROWN JEEP EAGLE, INC., a Texas corporation, on behalf of
said corporation.
/s/ Theresa Pagitt
-----------------------------------
Notary Public - State of Texas
THE STATE OF TEXAS ss.
ss.
COUNTY OF HARRIS ss.
This instrument was acknowledged on the 5th day of June, 1990, by J. Robert
Dickerson, Vice President of BYRON PROPERTIES, INC., a Texas corporation, on
behalf of said corporation.
/s/ Theresa Pagitt
-----------------------------------
Notary Public - State of Texas
AMENDMENT TO AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
This amendment to the Amended and Restated Agreement of Limited Partnership
of SHANNON AUTOMOTIVE LTD., a Texas limited partnership ( the "Agreement"),
entered into effective as of January 1, 1996 by and between CROWN JEEP EAGLE,
INC., a Delaware corporation, as the General Partner, and BERYLSON, INC., a
Texas corporation, as the Limited Partner, as follows:
1. The definition of "Sharing Ratio" under Article I of the Agreement is
amended to read as follows, effective January 1, 1996:
"Sharing Ratio" shall mean the ratio in which the General Partner and
Limited Partner share gains and losses and shall be as follows:
Limited Partner General Partner
11% 89%
2. Except as amended as expressly provided above, the terms of the
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment to Amended and
Restated Agreement of Limited Partnership as of the date set forth above.
CROWN JEEP EAGLE, INC.
General Partner
By: /s/ Kevin J. Coffey
-------------------------------
Kevin J. Coffey, President
BERYLSON, INC.,
Limited Partner
By: /s/ Paul J. Rhodes
-------------------------------
Paul J. Rhodes, President
AMENDMENT
TO THE
CERTIFICATE OF LIMITED PARTNERSHIP
OF
SHANNON AUTOMOTIVE LTD.
I
The name of the limited partnership is SHANNON AUTOMOTIVE LTD. (the
"Partnership")
II
Effective as of the date hereof, the Certificate of Limited Partnership is
amended by deleting Section through and including Section 5 in their entirety,
and inserting the following:
1. The general partner is UAG TEXAS II, INC.
2. The limited partner is UAG TEXAS, INC.
3. The address of the registered office of the Partnership is 13403
Northwest Freeway, Suite 200, Houston, Texas. The name of the registered agent
for service of process is Frank J. Bramanti. The address of the registered
agent is 13403 Northwest Freeway, Suite 200, Houston, Texas.
4. The address of the principal office in the United States where records
of the Partnership are to be kept or made available is 375 Park Avenue, Suite
2201, New York, New York 10152.
5. The name, mailing address or street address of the business or residence
of the general partner is as follows:
Name Mailing Address and/or Street Address
---- -------------------------------------
UAG Texas II, Inc. 375 Park Avenue
Suite 2201
New York, New York 10152
6. The name, mailing address or street address of the business or residence
of the limited partnership is as follows:
Name Mailing Address and/or Street Address
---- -------------------------------------
UAG Texas, Inc. 375 Park Avenue
Suite 2201
New York, New York 10152
All other provisions of the Certificate of Limited Partnership shall remain
in full force and effect.
This Amendment to the Certificate of Limited Partnership was duly
approved by the Partnership in accordance with the provisions of the Texas
Limited Partnership Act. Article 6132a-1 of the Revised Civil Statutes of the
State of Texas.
IN WITNESS WHEREOF, the Partnership has caused this Amendment to be
executed and attested by its duly authorized partners as of the ____ day of
April, 1997.
UAG TEXAS II, INC.
General Partner
By: /s/ George Lowrance
--------------------------------
Its:
EX 3.103
CERTIFICATE OF INCORPORATION
OF
UAG NEVADA, INC.
FIRST: The name of the corporation is UAG Nevada, Inc.
SECOND: The address of the corporation's registered office in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of the corporation's registered agent at such address is
The Corporation Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act
or activity for which corporations may be organized under the Delaware General
Corporation Law.
FOURTH: The total number of shares of stock which the corporation is
authorized to issue is one thousand (1,000) shares of common stock, having a
par value of one dollar ($1.00) per share.
FIFTH: The business and affairs of the corporation shall be managed
by or under the direction of the Board of directors, and the directors need
not be elected by ballot unless required by the by-laws of the corporation.
SIXTH: In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware, the board of directors is expressly
authorized to make, amend and repeal by-laws.
SEVENTH: 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 a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal benefit.
If the Delaware General Corporation Law 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 Delaware General Corporation
Law, as so amended. Any repeal or modification of this provision shall not
adversely affect any right or protection of a director of the corporation
existing at the time of such repeal or modification.
EIGHTH: The corporation reserves the right to amend and repeal any
provision contained in this Certificate of Incorporation in the manner from
time to time prescribed by the laws of the State of Delaware. All rights
herein conferred are granted subject to this reservation.
NINTH: The incorporator is David G. Thunhorst, Esq. whose mailing
address is 2700 International Tower, Peachtree Center, 229 Peachtree Street,
N.E., Atlanta, Georgia 30303, County of Fulton.
I, the Undersigned, being the incorporator, for the purpose of
forming a corporation under the laws of the State of Delaware, do make, file
and record this Certificate of Incorporation and,
-2-
accordingly, have hereto set my hand this 28th day of February, 1997.
/s/ David G. Thunhorst
----------------------------
David G. Thunhorst
-3-
EXHIBIT 3.105
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
GARY HANNA NISSAN, INC.
Gary Hanna Nissan, Inc. (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Nevada, does hereby certify:
FIRST: That, the Board of Directors of the Corporation
unanimously adopted a resolution setting forth a proposed amendment to the
Certificate of Incorporation of the Corporation, declaring said amendment to
be advisable, and directing that said amendment be presented to the
stockholders of the Corporation for consideration at a special meeting of the
stockholders or by written consent of the stockholders. The resolution setting
forth the proposed amendment is as follows:
"NOW, THEREFORE, BE IT RESOLVED, that the Articles
of Incorporation be amended to change the name of the
corporation and that such amendment be affected by deleting
Article 1 in its entirety and substituting the following in
lieu thereof:
"The name of the Corporation is UNITED NISSAN, INC."
SECOND: That the foregoing resolution has been adopted by
the unanimous written consent of the holder of record of all the outstanding
stock of the Corporation entitled to vote thereon.
THIRD: That the aforesaid amendment was duly adopted in
accordance with the provisions of Section 78.385 of the General Corporation
Law of the State of Nevada.
IN WITNESS WHEREOF, the Corporation has caused this
certificate to be signed as of this 22 day of April, 1997.
GARY HANNA NISSAN, INC.
By: /s/ George G. Lowrance
--------------------------
George G. Lowrance
Vice President
Amended by:
/s/ Philip N. Smith, Jr.,
- --------------------------
Philip N. Smith, Jr.,
Secretary
CERTIFICATE OF AMENDMENT TO
ARTICLES OF INCORPORATION OF
HANNA-EPPRECHT NISSAN, INC.
THE UNDERSIGNED, being the President and Secretary of
HANNA-EPPRECHT NISSAN, INC., hereby certify that by the unanimous consent of
the Directors of the Corporation (by a Resolution in Lieu of a Directors
Meeting dated the 24th day of May, 1990), and by the unanimous consent of the
Shareholders of all of the issued and outstanding shares of the corporation
(by a Resolution in Lieu of a Shareholders Meeting, dated the 24th day of May,
1990), Article I of the Corporation's Articles of Incorporation has been
deleted and the following Amendment to the Corporation's Articles of
Incorporation has been approved as the new Article I of said Articles:
The name of the corporation is:
GARY HANNA NISSAN, INC.
Dated: May 24, 1990.
/s/ Gary W. Hanna
-------------------------
GARY W. HANNA, President
/s/ Donna J. Owens
-------------------------
DONNA J. OWENS, Secretary
CERTIFICATE OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
HANNA-EPPRECHT DATSUN, INC.
THE UNDERSIGNED, being the President and Secretary of
HANNA-EPPRECHT DATSUN, INC., hereby certify that by the unanimous consent of
the Directors of the Corporation (by a Resolution in Lieu of a Directors
Meeting dated the 18th day of July, 1985), and by the unanimous consent of the
Shareholders of all of the issued and outstanding shares of the corporation
(by a Resolution in Lieu of a Shareholders Meeting, dated the 18th day of July
1985), Article I of the Corporation's Articles of Incorporation has been
deleted and the following Amendment to the Corporation's Articles of
Incorporation has been approved as the new Article I of said Articles:
"The name of the corporation is:
HANNA-EPPRECHT NISSAN, INC.
Dated: July 18, 1985.
/s/ Gary Hanna
------------------------
GARY HANNA, President
/s/ Walt Epprecht
------------------------
WALT EPPRECHT, Secretary
AMENDMENT
TO
RESTATED ARTICLES OF INCORPORATION
OF
HANNA-EPPRECHT DATSUN, INC.
THE UNDERSIGNED, being the President and Secretary of
HANNA-EPPRECHT DATSUN, INC. hereby certify that by unanimous consent of the
Directors and Shareholders of the corporation (by Resolutions in lieu of
meetings dated the 4th day of September, 1980), the Articles of Incorporation
of HANNA-EPPRECHT DATSUN, INC. have been amended as follows:
Article V - Powers - is amended by adding sub-section (f)
which states as follows:
(f) To be licensed as an insurance agent in conformity with
NRS 683A.140 and any other statutes of the State of Nevada
that may be necessary in order to make the corporation able
to be an insurance agent or agency, or to sell insurance or
to brokerage insurance and to do anything necessary or
expedient for any transaction which the corporation may have
regarding insurance.
IN WITNESS WHEREOF, the first amendment of the restated
Articles of Incorporation are executed the 4th day of September, 1980.
/s/ Gary Hanna,
------------------------
GARY HANNA, President
/s/ W. J. Epprecht
------------------------
W.J. EPPRECHT, Secretary
STATE OF NEVADA )
) SS:
COUNTY OF CLARK )
On September 4, 1980, personally appeared before me, a
Notary Public, in and for said County and State, GARY HANNA, and W. J.
EPPRECHT who acknowledged to me that they executed the above and foregoing
Amendment.
/s/ E.S. Packham
-----------------
NOTARY PUBLIC
-2-
CERTIFICATE OF
AMENDMENT TO
ARTICLES OF INCORPORATION
OF
HANNA-EPPRECHT DATSUN, INC.
THE UNDERSIGNED, being the President and Secretary of
HANNA-EPPRECHT DATSUN, INC., hereby certify that by the unanimous consent of
the Directors of the Corporation (by Resolution in Lieu of a Directors Meeting
dated the 18th day of August, 1980) and by the unanimous consent of the
Shareholders of all of the issued and outstanding shares of the Corporation
(by Resolution in Lieu of a Shareholders Meeting, dated the 18th day of
August, 1980), Article VI of the corporations Articles of Incorporation has
been deleted and the following amendments to the corporations Articles of
Incorporation has been approved as the new articles VI and XIII of said
Articles:
ARTICLE VI - CAPITAL STOCK:
Section 1. This Corporation is authorized to issue two
classes of shares to be designated respectively "common stock" and "preferred
stock"; the total number of shares in which this Corporation shall have the
authority to issue is 4,000 shares and the aggregate par value of all shares
that are to have a par value shall be $300,000.00. The Capital stock shall be
as follows: One Thousand (1,000) shares shall be common stock that shall have
no par value; and there shall be Three Thousand Shares
(3,000) shares of preferred stock that shall have a par value of One Hundred
Dollars ($100.00) per share.
Section 2. The preference, privileges and restrictions
granted to, or imposed upon, the respected classes and shares and the holders
thereof, are as follows:
A. The holders of common stock shall have the sole right to
vote for the Board of Directors of the Corporation, except
in that situation (specified below) where a full quarterly
dividend has not been paid on the preferred stock for eight
consecutive quarters.
B. The holders of preferred stock shall be entitled, when
and as declared by the Board of Directors to dividends out
of any funds of this corporation at the time legally
available for the declaration of dividends, at the annual
rate of 6% of the par value of such shares, payable in
preference and priority to any payment of any dividends on
common stock and payable quarterly or otherwise as the Board
of Directors may from time to time determine. The right to
such dividends of preferred shall be cumulative, and before
any dividends are paid on the common stock, all accrued but
unpaid dividends shall be paid on the preferred stock.
C. After dividends have been declared and paid, or set apart
for payment, on the preferred stock as set forth above in
sub-paragraph B, additional dividends may be declared and
paid or set apart for payment from
-2-
any remaining surplus or net profits, ratably and equally per
share, on all shares of common stock.
D. Preferred shareholders shall have a liquidation
preference over common shareholders in the corporate assets
upon liquidation. This preference shall be such that the
preferred shareholders shall receive the par value of their
shares plus any declared but unpaid dividends before any
assets shall be distributed to the common shareholders. The
liquidation preference shall expressly not extend to accrued
but unpaid dividends.
Section 3. Redemption of preferred stock will be on the
following basis:
A. The corporation may, at the option of the Board of
Directors, redeem all or any part of the outstanding stock.
B. Such redemption may take place at any time, as determined
by Resolution of Board of Directors.
C. The Redemption price shall be $100.00 per share plus
declared or unpaid dividends thereon.
D. Notice of Redemption shall be mailed at least 30 days and
not more than 90 days prior to such redemption to holders of
record of stock to be redeemed at their addresses as they
shall appear on the books of the corporation. Such notice
shall contain the date and price of redemption, the manner
in which the redemption is to be effected, and the effect of
such redemption on
-3-
the rights of the stockholders who fail to present their
shares for redemption.
E. If notice of redemption shall have been given as provided
in Section III (D) above, and if, on or before the
redemption date stated in the notice, the funds necessary
for such redemption shall have been set aside, and from and
after the designated redemption date, all rights with
respect to such preferred stock, including, but not limited
to, the right to receive dividends, and to vote at corporate
meetings, shall cease, except only the right to receive
payment for the shares called for redemption but without
interest.
F. The Board of Directors shall have the power to the extent
permitted by law, to determine the sources of the funds to
be used for redeeming such stock. However, the corporation
shall not exercise its rights to redeem if the corporation
is insolvent or would become insolvent as a result of such
redemption.
Section 4. Both common stock and the preferred stock
shall be issued for such consideration, but not less than the par value
thereof, as shall be fixed from time to time by the Board of Directors. In the
absence of fraud, the judgment of the Directors as to the value of any
property or services received in full or partial payment for shares shall be
conclusive. When shares are issued upon payment of the consideration fixed by
the Board of Directors, such shares shall be taken to be fully paid stock and
shall be non accessible.
-4-
Section 5. Except as provided by the Board of Directors, no
holder of any shares of stock of the corporation shall have any pre-emptive
right to purchase, subscribe before, or otherwise acquire any shares of stock
of the corporation of any class now or hereafter authorized, or any securities
exchangeable for or convertible into such shares, or any warrants or other
instruments evidencing rights or options to subscribe for, purchase, or
otherwise acquire such shares.
Section 6. The corporation shall have the power to create
and issue rights, warrants, or options entitling the holder thereof to
purchase from the corporation any share of the capital stock of any class or
classes, upon such terms and conditions and at such time and prices as the
Board of Directors may provide, which terms and conditions shall be
incorporated by an instrument or instruments evidencing such rights. In the
absence of fraud, the judgment of the Directors as to the adequacy of
consideration for the issuance of such rights or options and the sufficiency
thereof shall be conclusive.
Section 7. The number of shares of common stock authorized
to be issued shall be 1,000 shares.
ARTICLE XIII - SPECIAL PROVISION FOR PREFERRED STOCK VOTING RIGHTS.
Section 1. In the event that the directors of the
corporation do not declare a full quarterly dividend on the preferred shares
in at least one quarter for eight consecutive quarters, then at the beginning
of the quarter for the following
-5-
eight consecutive quarters in which the full quarterly dividend has not been
paid the holders of the preferred stock shall have the right to elect, by
cumulative voting, additional directors to the Board of Directors. These
directors shall be in addition to the directors which the holders of the
common stock shall elect, and shall have the same powers, privileges, rights
and duties as the directors elected by the common shareholders.
Such voting for directors shall be such that they shall
elect equal representation on the Board of Directors.
Section 2. For purposes of this Article full quarterly
dividend is defined as a dividend paid for one quarter equal to one quarter of
the amount necessary to pay 6% of the par value of each preferred share for a
year. Specifically, this amount shall be $1.50 per preferred share for the
quarter in which the dividend is paid. (The $1.50 = one quarter of $6.00,
which is the amount necessary to pay a full dividend on $100 par value
preferred shares in one year).
Section 3. It is the intent of this section that at least
one full quarterly dividend must be paid to the preferred shareholders if they
are not to have the right to elect additional directors in one specific
quarter out of each eight consecutive quarters regardless of the fact that
there may be a payment of less than a full quarterly dividend on the preferred
shares in any one or more of the eight consecutive quarters. Such payment of
less than full quarterly dividend in any one quarter shall not be added
together, or accumulated, in calculating whether a full quarterly dividend has
been paid, in
-6-
eight consecutive quarters, which shall be completely disregarded for purposes
of this article. Only if a full quarterly dividend is paid in one specific
quarter out of each eight consecutive quarters shall the preferred
shareholders not have the right to elect additional directors to the Board of
Directors.
Section 4. Immediately upon the conclusion of eight
consecutive quarters in which no full quarterly dividends have been paid, the
preferred shareholders or any one of them, shall have the right to call a
special meeting of the preferred shareholders for the purpose of electing two
additional directors. Fifty percent of the preferred shares shall represent a
quorum, and if the owners of fifty percent or more of the preferred shares are
present, either in person or by proxy, the election of the additional
directors may be accomplished and shall be valid. Immediately upon their
election, the additional directors shall have all the rights, privileges,
powers and duties as the directors elected by the common shareholders shall
possess. Such additional right to elect directors shall exist annually
thereafter in the preferred shareholders, unless such right shall be required
to be relinquished under the provisions of Paragraph 5 of this Article.
Section 5. If at any time after the preferred shareholders
have the right to elect additional directors to the Board of Directors by
reason of the non-payment of at least one full quarterly dividend in eight
consecutive quarters, the Board of Directors of the Corporation shall declare
a full quarterly dividend for the preferred shares for two consecutive
quarters, then the preferred shareholders shall forfeit the right to elect the
additional directors. Immediately upon receipt of payment by the preferred
shareholders of the two consecutive quarterly dividends, the directors elected
by the preferred shareholders shall no longer be members of the Board of
Directors, and shall resign from the Board of Directors. If after two
consecutive full quarterly dividends are paid, and the directors elected by
the preferred shareholders are removed from the Board of Directors, a full
quarterly dividend is not paid at least once in eight consecutive quarters,
-7-
then the preferred shareholders shall have the right to elect additional
directors to the Board of Directors as specified in this Article. These
directors shall serve until such as two consecutive full quarterly dividends
are paid on the preferred shares. This sequence shall occur as long as these
Articles of Incorporation are in effect.
DATED: August 18, 1980
/s/ Gary Hanna
---------------------------
GARY HANNA, President
/s/ W. J. Epprecht
---------------------------
J. EPPRECHT, Secretary
STATE OF NEVADA )
) SS:
COUNTY OF CLARK )
On this 18th day of August, 1980, personally appeared before
me, a Notary Public, GARY HANNA and W. J. EPPRECHT, known to be the President
and Secretary, respectively of HANNA-EPPRECHT
-8-
DATSUN, INC., and acknowledged to me that they executed the foregoing Restated
Articles of Incorporation of HANNA-EPPRECHT DATSUN, INC.
/s/ Patricia L. Groom
-------------------------
NOTARY PUBLIC
-9-
RESTATED
ARTICLES OF INCORPORATION
OF
HANNA-EPPRECHT DATSUN, INC.
THE UNDERSIGNED, being the President and Secretary of
HANNA-EPPRECHT DATSUN, INC., hereby certify that by unanimous consent of the
Directors of the Corporation (by Resolution in Lieu of Directors Meeting dated
the 18th day of August, 1980) and by unanimous consent of the Shareholders of
all of the issued and outstanding shares of the Corporation (by Resolution in
Lieu of the Shareholders Meeting, dated the 18th day of August, 1980), the
Articles of Incorporation of HANNA-EPPRECHT DATSUN, INC. have been totally
restated deleting in their entirety the existing Articles of Incorporation and
substituting in their stead the Restated Articles of Incorporation which read
as follows:
RESTATED
ARTICLES OF INCORPORATION
OF
HANNA-EPPRECHT DATSUN, INC.
ARTICLE I - NAME. The exact name of this Corporation is:
HANNA-EPPRECHT DATSUN, INC.
ARTICLE II - PRINCIPAL OFFICE AND REGISTERED AGENT.
The principal office and place of business in the State of
Nevada of this Corporation shall be located at 5606 S. Eastern Avenue, Las
Vegas, Nevada. The Resident Agent of the Corporation
is ROBERT E. CLARK PROFESSIONAL CORPORATION, LTD., whose address is 5606 So.
Eastern Avenue, Las Vegas, Nevada.
ARTICLE III - DURATION: The Corporation shall have perpetual existence.
ARTICLE IV - PURPOSES: The purpose, object and nature of the business for
which this corporation is organized are:
(a) To engage in any lawful activity,
(b) To carry on such business as may be necessary,
convenient, or desirable to accomplish the above purposes,
and to do all other things incidental thereto which are not
forbidden by law or by these Articles of Incorporation.
ARTICLE V - POWERS: The powers of the Corporation shall be those powers
granted by 78.060 and 78.070 of the Nevada Revised Statutes under which this
corporation is formed. In addition, the corporation shall have the following
specific powers:
(a) To elect or appoint officers and agents of the
corporation and to fix their compensation;
(b) To act as an agent for any individual, association,
partnership, corporation or other legal entity;
(c) To receive, acquire, hold, exercise rights arising out
of the ownership or possession thereof, sell, or otherwise
dispose of, shares or other interests in, or obligations of,
individuals, association, partnerships, corporations,
or governments;
-2-
(d) To receive, acquire, hold, pledge, transfer, or otherwise
dispose of shares of the corporation, but such shares may
only be purchased, directly or indirectly, out of earned
surplus;
(e) To make gifts or contributions for the public
welfare or for charitable, scientific or educational
purposes, and in time of war, to make donations in aid of
war activities.
ARTICLE VI - CAPITAL STOCK:
Section 1. This Corporation is authorized to issue two
classes of shares to be designated respectively "common stock" and "preferred
stock"; the total number of shares in which this Corporation shall have the
authority to issue is 4,000 shares and the aggregate par value of all shares
that are to have a par value shall be $300,000.00. The Capital stock shall be
as follows: One Thousand (1,000) shares shall be common stock that shall have
no par value; and there shall be Three Thousand Shares (3,000) shares of
preferred stock that shall have a par value of One Hundred Dollars ($100.00)
per share.
Section 2. The preference, privileges and restrictions
granted to, or imposed upon, the respected classes and shares and the holders
thereof, are as follows:
A. The holders of common stock shall have the sole right to
vote for the Board of Directors of the Corporation, except
in that situation (specified below) where a full quarterly
dividend has not been paid on the preferred stock for eight
consecutive quarters.
-3-
B. The holders of preferred stock shall be entitled, when
and as declared by the Board of Directors to dividends out
of any funds of this corporation at the time legally
available for the declaration of dividends, at the annual
rate of 6% of the par value of such shares, payable in
preference and priority to any payment of any dividends on
common stock and payable quarterly or otherwise as the Board
of Directors may from time to time determine. The right to
such dividends of preferred shall be cumulative, and before
any dividends are paid on the common stock, all accrued but
unpaid dividends shall be paid on the preferred stock.
C. After dividends have been declared and paid, or set apart
for payment, on the preferred stock as set forth above in
sub-paragraph B, additional dividends may be declared and
paid or set apart for payment from any remaining surplus or
net profits, ratably and equally per share, on all shares of
common stock.
D. Preferred shareholders shall have a liquidation
preference over common shareholders in the corporate assets
upon liquidation. This preference shall be such that the
preferred shareholders shall receive the par value of their
shares plus any declared but unpaid dividends before any
assets shall be distributed to the common shareholders. The
liquidation preference shall expressly not extend to accrued
but unpaid dividends.
-4-
Section 3. Redemption of preferred stock will be on the
following basis:
A. The Corporation may, at the option of the Board of
Directors, redeem all or any part of the outstanding stock.
B. Such redemption may take place at any time, as determined
by Resolution of Board of Directors.
C. The Redemption price shall be $100.00 per share plus
declared or unpaid dividends thereon.
D. Notice of Redemption shall be mailed at least 30 days and
not more than 90 days to such redemption to holders of record
of stock to be redeemed at their addresses as they shall
appear on the books of the corporation. Such notice shall
contain the date and price of redemption, the manner in which
the redemption is to be effected, and the effect of such
redemption on the rights of the stockholders who fail to
present their shares for redemption.
E. If notice of redemption shall have been given as provided
in Section III (D) above, and if, on or before the redemption
date stated in the notice, the funds necessary for such
redemption shall have been set aside, and from and after the
designated redemption date, all rights with respect to such
preferred stock, including, but not limited to, the right to
receive dividends, and to vote at corporate meetings, shall
-5-
cease, except only the right to receive payment for the
shares called for redemption but without interest.
F. The Board of Directors shall have the power to the extent
permitted by law, to determine the sources of the funds to
be used for redeeming such stock. However, the corporation
shall not exercise its rights to redeem if the corporation
is insolvent or would become insolvent as a result of such
redemption.
Section 4. Both common stock and the preferred stock shall be
issued for such consideration, but not less than the par value thereof, as
shall be fixed from time to time by the Board of Directors. In the absence of
fraud, the judgment of the Directors as to the value of any property or
services received in full or partial payment for shares shall be conclusive.
When shares are issued upon payment of the consideration fixed by the Board of
Directors, such shares shall be taken to be fully paid stock and shall be non
accessible.
Section 5. Except as provided by the Board of Directors, no
holder of any shares of stock of the corporation shall have any pre-emptive
right to purchase, subscribe before, or otherwise acquire any shares of stock
of the corporation of any class now or hereafter authorized, or any securities
exchangeable for or convertible into such shares, or any warrants or other
instruments evidencing rights or options to subscribe for, purchase, or
otherwise acquire such shares.
Section 6. The corporation shall have the power to create
and issue rights, warrants, or options entitling the
-6-
holder thereof to purchase from the corporation any share of the capital stock
of any class or classes, upon such terms and conditions and at such times and
prices as the Board of Directors may provide, which terms and conditions shall
be incorporated by an instrument or instruments evidencing such rights. In the
absence of fraud, the judgment of the Directors as to the adequacy of
consideration for the issuance of such rights or options and the sufficiency
thereof shall be conclusive.
Section 7. The number of shares of common stock authorized
to be issued shall be 1,000 shares. ARTICLE VII - MANAGEMENT: For the
management of the business, and for the conduct of the affairs of the
corporation, and for the future definition, limitation, and regulation of the
powers of the corporation and its directors and stockholders, it is further
provided:
Section 1. Size of Board. The initial number of the Board of
Directors shall be two (2). Thereafter, the number of directors shall be as
specified in the By-Laws of the corporation, and such number may from time to
time be increased or decreased in such manner as prescribed by the By-Laws.
Directors need not be stockholders.
Section 2. Powers of Board. In furtherance and not in
limitation of the powers conferred by the laws of the State of Nevada, the
Board of Directors is expressly authorized and empowered:
-7-
(a) To make, alter, amend, and repeal the By-Laws subject to
the power of the stockholders to alter or repeal the By-Laws
made by the Board of Directors;
(b) Subject to the applicable provisions of the By-Laws then
in effect, to determine, from time to time, whether and to
what extent, and at what times and places, and under what
conditions and regulations, the accounts and books of the
corporation, or any of them, shall be open to stockholder
inspection. No stockholder shall have any right to inspect
any of the accounts, books or documents of the corporation,
except as permitted by law, unless and until authorized to
do so by resolution of the Board of Directors or of the
Stockholders of the Corporation;
(c) To authorize and issue, without stockholder consent,
obligations of the corporation, secured and unsecured, under
such terms and conditions as the Board, in its sole
discretion, may determine, and to pledge or mortgage, as
security therefore, any real or personal property of the
corporation, including after-acquired property;
(d) To determine whether any and, if so, what part, of the
earned surplus of the corporation shall be paid in dividends
to the stockholders, and to direct and determine other use
and disposition of any such earned surplus;
-8-
(e) To fix, from time to time, the amount of the profits of
the corporation to be reserved as working capital or for any
other lawful purpose;
(f) To establish bonus, profit-sharing, stock option, or
other types of incentive compensation plans for the
employees, including officers and directors, of the
corporation, and to fix the amount of profits to be shared
or distributed, and to determine the persons to participate
in any such plans and the amount of their respective
participations.
(g) To designate, by resolution or resolutions passed by a
majority of the whole Board, one or more committees, each
consisting of two or more directors, which, to the extent
permitted by law and authorized by the resolution or the
By-Laws, shall have and may exercise the powers of the
Board;
(h) To provide for the reasonable compensation of its own
member by By-Laws, and to fix the terms and conditions upon
which such compensation will be paid;
(i) In addition to the powers and authority hereinbefore, or
by statute, expressly conferred upon it, the Board of
Directors may exercise all such powers and do all such acts
and things as may be exercised or done by the corporation,
subject nevertheless, to the provisions of the laws of the
State of Nevada, of these Articles of Incorporation, and of
the By-Laws of the corporation.
-9-
Section 3. Interested Directors. No contract or transaction
between this corporation and any of its directors, or between this corporation
and any other corporation, firm association, or other legal entity shall be
invalidated by reason of the fact that the director of the corporation has a
direct or indirect interest, pecuniary or otherwise, in such corporation,
firm, association, or legal entity, or because the interested director was
present at the meeting of the Board of Directors which acted upon or in
reference to such contract or transaction, or because he participated in such
action, provided that: (1) the interest of each such director shall have been
disclosed to or known by the Board and a disinterested majority of the Board
shall have nonetheless ratified and approved such contract or transaction
(such interested director or directors may be counted in determining whether a
quorum is present for the meeting at which such ratification or approval is
given); or (2) the conditions of N.R.S. 78.140 are met.
Section 4. Names and Resident Addresses. The names and post
office addresses of the first Board of Directors which shall consist of two
(2) persons, and who shall hold office until their successors are duly elected
and qualified, are as follows:
NAMES RESIDENT ADDRESSES
----- ------------------
W. J. EPPRECHT 3470 Boulder Highway
Las Vegas, NV
GARY HANNA 3470 Boulder Highway
Las Vegas, NV
ARTICLE VIII - PLACE OF MEETING: CORPORATE BOOKS. Subject to the laws of the
State of Nevada, the stockholders and the
-10-
Directors shall have power to hold their meetings, and the Directors shall
have power to have an office or offices and to maintain the books of the
Corporation outside the State of Nevada, at such place or places as may from
time to time be designated in the By-Laws or by appropriate resolution.
ARTICLE IX - AMENDMENT OF ARTICLES. The provisions of these Articles of
Incorporation may be amended, altered or repealed from time to time to the
extent and in the manner prescribed by the laws of the State of Nevada, and
additional provisions authorized by such laws as are then in force may be
added. All rights herein conferred on the directors, officers and stockholders
are granted subject to this reservation.
ARTICLE X - INCORPORATORS: The names and addresses of the incorporators
signing these Articles of Incorporation are as follows:
NAMES POST OFFICE ADDRESSES
----- ---------------------
SHIRLEY WEBB 2002 Kamber Ct.
Las Vegas, NV 89119
DEBRA K. AMIGONE 2965 LaCanada St.
Las Vegas, NV 89109
MICHELINA MARROCELLI 4836 Knollwood Drive
Las Vegas, NV 89117
ARTICLE XI - NON-ASSESSMENT. The capital stock of the corporation, after the
amount of the subscription price has been paid in money, property, or
services, as the Directors shall determine, shall not be subject to assessment
to pay the debts of the corporation, nor for any other purpose, and no stock
issued as fully paid up shall ever be assessable or assessed, and the
-11-
Articles of Incorporation shall not be amended in this particular period. The
Corporation shall have the power to redeem its stock.
ARTICLE XII - INDEMNIFICATION. The Corporation shall indemnify each of its
officers and directors whether or not at an office (that is executor,
administrator and heirs) against all reasonable expenses actually and
necessarily incurred by him, including but not limited to counsel fees and
judgment costs, in connection with the defense of any litigation, (including
any civil, criminal or administration action, suit or proceeding) to which he
may have been a party because he is or was a director or officer of the
corporation. He shall have no right to reimbursement, however, in relation to
manners in which he has been judged liable to the corporation for gross
negligence or willful misconduct in the performance of his duties. The right
to indemnification for expenses shall also apply to expenses of suits, which
are compromised or settled, if the court having jurisdiction over the action
shall approve such settlement. The foregoing right of indemnification shall
be, in addition to and not exclusive of, all of the rights of which the
directors or officers may be entitled.
ARTICLE XIII - SPECIAL PROVISION FOR PREFERRED STOCK VOTING RIGHTS.
Section 1. In the event that the directors of the
corporation do not declare a full quarterly dividend on the preferred shares
in at least one quarter for eight consecutive quarters, then at the beginning
of the quarter for the following
-12-
eight consecutive quarters in which the full quarterly dividend has not been
paid the holders of the preferred stock shall have the right to elect, by
cumulative voting, additional directors to the Board of Directors. These
directors shall be in addition to the directors which the holders of the
common stock shall elect, and shall have the same powers, privileges, rights
and duties as the directors elected by the common shareholders.
Such voting for directors shall be such that they shall
elect equal representation on the Board of Directors.
Section 2. For purposes of this Article full quarterly
dividend is defined as a dividend paid for one quarter equal to one quarter of
the amount necessary to pay 6% of the par value of each preferred share for a
year. Specifically, this amount shall be $1.50 per preferred share for the
quarter in which the dividend is paid. (The $1.50 = one quarter of $6.00,
which is the amount necessary to pay a full dividend on $100 par value
preferred shares in one year).
Section 3. It is the intent of this section that at least
one full quarterly dividend must be paid to the preferred shareholders if they
are not to have the right to elect additional directors in one specific
quarter out of each eight consecutive quarters regardless of the fact that
there may be a payment of less than a full quarterly dividend on the preferred
shares in any one or more of the eight consecutive quarters. Such payment of
less than full quarterly dividend in any one quarter shall not be added
together, or accumulated, in calculating whether a full quarterly dividend has
been paid, in
-13-
eight consecutive quarters, which shall be completely disregarded for purposes
of this article. Only if a full quarterly dividend is paid in one specific
quarter out of each eight consecutive quarters shall the preferred
shareholders not have the right to elect additional directors to the Board of
Directors.
Section 4. Immediately upon the conclusion of eight
consecutive quarters in which no full quarterly dividends have been paid, the
preferred shareholders or any one of them, shall have the right to call a
special meeting of the preferred shareholders for the purpose of electing two
additional directors. Fifty percent of the preferred shares shall represent a
quorum, and if the owners of fifty percent or more of the preferred shares are
present, either in person or by proxy, the election of the additional
directors may be accomplished and shall be valid. Immediately upon their
election, the additional directors shall have all the rights, privileges,
powers and duties as the directors elected by the common shareholders shall
possess. Such additional right to elect directors shall exist annually
thereafter in the preferred shareholders, unless such right shall be required
to be relinquished under the provisions of Paragraph 5 of this Article.
Section 5. If at any time after the preferred shareholders
have the right to elect additional directors to the Board of Directors by
reason of the non-payment of at least one full quarterly dividend in eight
consecutive quarters, the Board of Directors of the Corporation shall declare
a full quarterly dividend for the preferred shares for two consecutive
quarters,
-14-
then the preferred shareholders shall forfeit the right to elect the
additional directors. Immediately upon receipt of payment by the preferred
shareholders of the two consecutive quarterly dividends, the directors elected
by the preferred shareholders shall no longer be members of the Board of
Directors, and shall resign from the Board of Directors. If after two
consecutive full quarterly dividends are paid, and the directors elected by
the preferred shareholders are removed from the Board of Directors, a full
quarterly dividend is not paid at least once in eight consecutive quarters,
then the preferred shareholders shall have the right to elect additional
directors to the Board of Directors as specified in this Article. These
directors shall serve until such as two consecutive full quarterly dividends
are paid on the preferred shares. This sequence shall occur as long as these
Articles of Incorporation are in effect.
IN WITNESS WHEREOF, this Restatement of the Articles of
Incorporation and amendments are executed this 18th day of August, 1980.
/s/ Gary Hanna,
------------------------------
GARY HANNA, PRESIDENT
/s/ W. J. Epprecht
------------------------------
W. J. EPPRECHT, SECRETARY
STATE OF NEVADA )
) SS:
COUNTY OF CLARK )
On this 18th day of August, 1980, personally appeared before
me, a Notary Public, GARY HANNA and W. J. EPPRECHT, known to be the President
and Secretary, respectively of HANNA-EPPRECHT DATSUN, INC., and acknowledged
to me that they executed the
-15-
foregoing Restated Articles of Incorporation of HANNA-EPPRECHT DATSUN, INC.
/s/ Patricia L. Groom
--------------------------
NOTARY PUBLIC
-16-
CERTIFICATE OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
HANNA-EPPRECHT LAS VEGAS DATSUN, INC.
THE UNDERSIGNED, being the President and Secretary of
HANNA-EPPRECHT LAS VEGAS DATSUN, INC. hereby certify that by the unanimous
consent of the Directors of the Corporation (by a Resolution in Lieu of a
Directors Meeting dated the 15th day of August, 1980) and by the unanimous
consent of the Shareholders of all of the issued and outstanding shares of the
corporation (by a Resolution in Lieu of a Shareholders Meeting, dated the 15th
day of August, 1980) Article I of the Corporation's Articles of Incorporation
has been deleted and the following Amendment to the Corporation's Articles of
Incorporation has been approved as the new Article I of said Articles:
"That the name of the Corporation is:
HANNA-EPPRECHT DATSUN, INC.
DATED: August 15, 1980
/s/ Gary Hanna,
----------------------------
GARY HANNA, PRESIDENT
/s/ W. J. Epprecht
-----------------------------
W. J. EPPRECHT, SECRETARY
STATE OF NEVADA )
) SS:
COUNTY OF CLARK )
On this 15th day of August, 1980, personally appeared before
CERTIFICATE OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
EPPRECHT HANNA LAS VEGAS DATSUN, INC.
THE UNDERSIGNED, being the President and Secretary of
EPPRECHT HANNA LAS VEGAS DATSUN, INC. hereby certify that by the unanimous
consent of the Directors of the Corporation (by a Resolution in Lieu of a
Directors Meeting dated the 24th day of July, 1980) and by the unanimous
consent of the Shareholders of all of the issued and outstanding shares of the
corporation (by a Resolution in Lieu of a Shareholders Meeting, dated the 24th
day of July, 1980) Article I of the Corporation's Articles of Incorporation
has been deleted and the following Amendment to the Corporation's Articles of
Incorporation has been approved as the new Article I of said Articles:
"That the name of the Corporation is:
HANNA-EPPRECHT LAS VEGAS DATSUN, INC.
DATED: July 24, 1980
/s/ Walter J. Epprecht
-----------------------------
WALTER J. EPPRECHT, Secretary
/s/ Gary Hanna,
-----------------------------
GARY HANNA, President
ARTICLES OF INCORPORATION
OF
EPPRECHT HANNA LAS VEGAS DATSUN, INC.
KNOW ALL MEN BY THESE PRESENTS:
That we, the undersigned, have this day voluntarily
associated ourselves together for the purpose of forming a corporation under
and pursuant to the laws of the State of Nevada, and we do hereby certify
that:
ARTICLE I - NAME: The exact name of this corporation is:
EPPRECHT HANNA LAS VEGAS DATSUN, INC.
ARTICLE II - PRINCIPLE OFFICE AND REGISTERED AGENT:
The principal office and place of business in the State of
Nevada of this corporation shall be located at 5606 So. Eastern Avenue, Las
Vegas, Nevada. The resident agent of the corporation is ROBERT E. CLARK
PROFESSIONAL CORPORATION, LTD., whose address is 5606 So. Eastern Avenue, Las
Vegas, Nevada.
ARTICLE III - DURATION: The Corporation shall have perpetual existence.
ARTICLE IV - PURPOSES: The purpose, object and nature of the business for
which this corporation is organized are:
(a) To engage in any lawful activity,
(b) To carry on such business as may be necessary,
convenient, or desirable to accomplish the above purposes,
and to do all other things incidental thereto which are not
forbidden by law or by these Articles of Incorporation.
ARTICLE V - POWERS: The powers of the Corporation shall be those powers
granted by 78.060 and 78.070 of the Nevada Revised Statutes under which this
corporation is formed. In addition, the corporation shall have the following
specific powers:
(a) To elect or appoint officers and agents of the
corporation and to fix their compensation;
(b) To act as an agent for any individual, association,
partnership, corporation or other legal entity;
(c) To receive, acquire, hold, exercise rights arising out
of the ownership or possession thereof, sell, or otherwise
dispose of, shares or other interests in, or obligations of,
individuals, association, partnerships, corporations, or
governments;
(d) To receive, acquire, hold, pledge, transfer, or
otherwise dispose of shares of the corporation, but such
shares may only be purchased, directly or indirectly, out of
earned surplus;
(e) To make gifts or contributions for the public welfare or
for charitable, scientific or educational purposes, and in
time of war, to make donations in aid of war activities.
ARTICLE VI - CAPITAL STOCK:
Section 1. Authorized Shares. The total number of shares
which this corporation is authorized to issue is 2500 shares
of Common Stock of no par value.
-2-
Section 2. Voting Rights of Stockholders. Each holder of the
Common Stock shall be entitled to one vote for each share of
stock standing in his name on the books of the corporation.
At each election of directors, each holder of the Common
Stock shall have as many votes as the number of shares of
Common Stock owned by him multiplied by the number of
directors to be elected by the holders of the Common Stock.
These votes may be divided among the total number of
directors to be elected by the holders of Common Stock, or
distributed among any lesser number, in such proportion as
the holder may desire.
Section 3. Consideration for shares. The Common Stock shall
be issued for such consideration, as shall be fixed from
time to time by the Board of Directors. In the absence of
fraud, the judgment of the Directors as to the value of any
property or services received in full or partial payment for
shares shall be conclusive. When shares are issued upon
payment of the consideration fixed by the Board of
Directors, such shares shall be taken to be fully paid stock
and shall be non-assessable. The Articles shall not be
amended in this particular.
Section 4. Pre-emptive rights. Except as may otherwise be
provided by the Board of Directors, no holder of any shares
of the stock of the corporation, shall have any pre-emptive
rights to purchase,
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subscribe for, or otherwise acquire any shares of stock of
the corporation of any class now or hereafter authorized, or
any securities exchangeable for or convertible into such
shares, or any warrants or other instruments evidencing
rights or options to subscribe for, purchase, or otherwise
acquire such shares.
Section 5: Stock Rights and Options. The Corporation shall
have the power to create and issue rights, warrants, or
options entitling the holders thereof to purchase from the
corporation any shares of its capital stock of any class or
classes, upon such terms and conditions and at such times
and prices as the Board of Directors may provide, which
terms and conditions shall be incorporated in an instrument
or instruments evidencing such rights. In the absence of
fraud, the judgment of the Directors as to the adequacy of
consideration for the issuance of such rights or options and
the sufficiency thereof shall be conclusive.
ARTICLE VII - MANAGEMENT: For the management of the business, and for the
conduct of the affairs of the corporation, and for the future definition,
limitation, and regulation of the powers of the corporation and its directors
and stockholders, it is further provided:
Section 1. Size of Board. The initial number of the Board of
Directors shall be two (2). Thereafter, the number of
directors shall be as specified in the By-
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Laws of the corporation, and such number may from time to
time be increased or decreased in such manner as prescribed
by the By-Laws. Directors need not be stockholders.
Section 2. Powers of Board. In furtherance and not in
limitation of the powers conferred by the laws of the State
of Nevada, the Board of Directors is expressly authorized
and empowered:
(a) To make, alter, amend, and repeal the By-Laws
subject to the power of the stockholders to alter or repeal
the By-Laws made by the Board of Directors;
(b) Subject to the applicable provisions of the
By-Laws then in effect, to determine, from time to time,
whether and to what extent, and at what times and places,
and under what conditions and regulations, the accounts and
books of the corporation, or any of them, shall be open to
stockholder inspection. No stockholder shall have any right
to inspect any of the accounts, books or documents of the
corporation, except as permitted by law, unless and until
authorized to do so by resolution of the Board of Directors
or of the Stockholders of the Corporation;
(c) To authorize and issue, without stockholder
consent, obligations of the Corporation, secured and
unsecured, under such terms and conditions as the Board, in
its sole discretion, may determine, and to pledge or
mortgage, as security therefore, any real or
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personal property of the corporation, including
after-acquired property;
(d) To determine whether any and, if so, what part,
of the earned surplus of the corporation shall be paid in
dividends to the stockholders, and to direct and determine
other use and disposition of any such earned surplus;
(e) To fix, from time to time, the amount of the
profits of the corporation to be reserved as working capital
or for any other lawful purpose;
(f) To establish bonus, profit-sharing, stock
option, or other types of incentive compensation plans for
the employees, including officers and directors, of the
corporation, and to fix the amount of profits to be shared
or distributed, and to determine the persons to participate
in any such plans and the amount of their respective
participations.
(g) To designate, by resolution or resolutions
passed by a majority of the whole Board, one or more
committees, each consisting of two or more directors, which,
to the extent permitted by law and authorized by the
resolution or the By-Laws, shall have and may exercise the
powers of the Board;
(h) To provide for the reasonable compensation of
its own members by By-Law, and to fix the terms and
conditions upon which such compensation will be paid;
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(i) In addition to the powers and authority
hereinbefore, or by statute, expressly conferred upon it,
the Board of Directors may exercise all such powers and do
all such acts and things as may be exercised or done by the
corporation, subject, nevertheless, to the provisions of the
laws of the State of Nevada, of these Articles of
Incorporation, and of the By-Laws of the corporation.
Section 3. Interested Directors. No contract or transaction
between this corporation and any of its directors, or
between this corporation and any other corporation, firm
association, or other legal entity shall be invalidated by
reason of the fact that the director of the corporation has
a direct or indirect interest, pecuniary or otherwise, in
such corporation, firm, association, or legal entity, or
because the interested director was present at the meeting
of the Board of Directors which acted upon or in reference
to such contract or transaction, or because he participated
in such action, provided that: (1) the interest of each such
director shall have been disclosed to or known by the Board
and a disinterested majority of the Board shall have
nonetheless ratified and approved such contract or
transaction (such interested director or directors may be
counted in determining whether a quorum is present for the
meeting
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at which such ratification or approval is given); or (2) the
conditions of N.R.S. 78.140 are met.
Section 4. Names and Resident Addresses. The names and post
office addresses of the first Board of Directors which shall
consist of two (2) persons, and who shall hold office until
their successors are duly elected and qualified, are as
follows:
NAMES RESIDENT ADDRESSES
----- ------------------
WALTER J. EPPRECHT 3470 Boulder Highway
Las Vegas, NV
GARY HANNA 3470 Boulder Highway
Las Vegas, NV
ARTICLE VIII - PLACE OF MEETING: CORPORATE BOOKS. Subject to the laws of the
State of Nevada, the stockholders and the Directors shall have power to hold
their meetings, and the Directors shall have power to have an office or
offices and to maintain the books of the Corporation outside the State of
Nevada, at such place or places as may from time to time be designated in the
By-Laws or by appropriate resolution.
ARTICLE IX - AMENDMENT OF ARTICLES. The provisions of these Articles of
Incorporation may be amended, altered or repealed from time to time to the
extent and in the manner prescribed by the laws of the State of Nevada, and
additional provisions authorized by such laws as are then in force may be
added. All rights herein conferred on the directors, officers and stockholders
are granted subject to this reservation.
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ARTICLE X - INCORPORATORS: The names and addresses of the incorporators
signing these Articles of Incorporation are as follows:
NAMES RESIDENT ADDRESSES
----- ------------------
SHIRLEY WEBB 2002 Kamber Ct.
Las Vegas, NV 89119
DEBRA K. AMIGONE 2965 LaCanada St.
Las Vegas, NV 89109
MICHELINA MARROCELLI 4836 Knollwood Drive
Las Vegas, NV 89117
IN WITNESS WHEREOF, the undersigned incorporators have
executed these Articles of Incorporation this 15th day of July, 1980.
/s/ Shirley Webb
-----------------------------
SHIRLEY WEBB
/s/ Debra K. Amigone
-----------------------------
DEBRA K. AMIGONE
/s/ Michelina Marrocelli
-----------------------------
MICHELINA MARROCELLI
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STATE OF NEVADA )
) ss:
COUNTY OF CLARK )
On July 15, 1980, personally appeared before me, a Notary
Public, SHIRLEY WEBB, DEBRA K. AMIGONE AND MICHELINA MARROCELLI, who
acknowledged to me that they executed the foregoing Articles of Incorporation
for EPPREHT HANNA LAS VEGAS DATSUN, INC.
/s/ Patricia L. Groom
--------------------------
Notary Public
EX-3.106
BY-LAWS
OF
HANNA-EPPRECHT DATSUN, INC.
ARTICLE I
OFFICES
SECTION 1. Principal Office. The principal office of the Corporation
shall be located in the City of Las Vegas, County of Clark, Nevada.
SECTION 2. Other Offices. In addition to the principal office at 5606
So. Eastern Ave., Las Vegas, Nevada, other offices may also be maintained at
such other place or places, either within or without the State of Nevada, as
may be designated from time to tine by the Board of Directors, where any and
all business of the Corporation may be transacted, and where meetings of the
stockholders and of the Directors may be held with the same effect as though
done or held at said principal office.
ARTICLE II
MEETING OF STOCKHOLDERS
SECTION 1. Annual Meetings. The annual meeting of the stockholders,
commencing with the year 1981, shall be held, at the principal office of the
Corporation at 5606 So. Eastern Ave., Las Vegas, Nevada, or at such other place
as may be specified or fixed in the notice of such meetings on the 15th day of
September, of each and every year at 10:00 o'clock in the A.M., for the
election of directors and for the transaction of such other business as may
properly come before said meeting. If the day fixed for the annual meeting
shall be a legal holiday, such
meeting shall be held on the next succeeding business day. If the election of
directors shall not be held on the day designated herein for any annual
meeting, or at the adjournment thereof, the Board of Directors shall cause the
election to be held at a meeting of the stockholders as soon thereafter as may
conveniently be had.
SECTION 2. Notice of Annual Meeting. The Secretary shall mail, in the
manner provided in Section 5 of Article II of these By-Laws, or deliver a
written or printed notice of each annual meeting to each stockholder of record,
entitled to vote thereat, or may notify by telegram, as least ten and not more
than sixty days before the date of such meeting.
SECTION 3. Place of Meeting. The Board of Directors may designate any
place either within or without the State of Nevada as the place of meeting for
any annual meeting or for any special meeting called by the Board of Directors.
A waiver of notice signed by all stockholders may designate any place either
within or without the State of Nevada, as the place for the holding of such
meeting. If no designation is made, or if a special meeting be otherwise
called, the place of meeting shall be the principal office of the Corporation
in the State of Nevada, except as otherwise provided in Section 6, Article II
of these By-Laws, entitled "Meeting of All Stockholders".
SECTION 4. Special Meetings. Special meetings of the stockholders
shall be held at the principal office of the Corporation or at such other place
as shall be specified or fixed in a notice thereof. Such meetings of the
stockholders may be
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called at any time by the President or Secretary, or by a majority of the Board
of Directors then in office, and shall be called by the President with or
without Board approval on the written request of the holders of record of at
least fifty percent (50%) of the number of shares of the Corporation then
outstanding and entitled to vote, which written request shall state the object
of such meeting.
SECTION 5. Notice of Meetings. Written or printed notice stating the
place, day and hour of the meeting and, in case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not
less than ten nor more than sixty days before the date of the meeting, either
personally or by mail, by or at the direction of the President or the Secretary
to each stockholder of record entitled to vote at such meeting. If mailed, such
notice shall be deemed to be delivered when deposited in the United States
mail, addressed to the stockholder at his address as it appears on the records
of the Corporation, with postage prepaid.
Any stockholder may at any time, by a duly signed statement in writing
to that effect, waive any statutory or other notice of any meeting, whether
such statement be signed before or after such meeting.
SECTION 6. Meeting of All Stockholders. If all the stockholders shall
meet at any time and place, either within or without the State of Nevada, and
consent to the holding of the meeting at such time and place, such meeting
shall be valid
-3-
without call or notice and at such meeting any corporate action may be taken.
SECTION 7. Quorum. At all stockholder's meetings, the presence in
person or by proxy of the holders of a majority of the outstanding stock
entitled to vote shall be necessary to constitute a quorum for the transaction
of business, but a lesser number may adjourn to some future time not less than
seven nor more than twenty-one days later, and the Secretary shall thereupon
give at least three days notice by mail to each stockholder entitled to vote
who is absent from such meeting.
SECTION 8. Mode of Voting. At all meetings of the stockholders the
voting may be voice vote, but any qualified voter may demand a stock vote
whereupon such stock vote shall be taken by ballot, each of which shall state
the name of the stockholder voting and the number of shares voted by him and,
if such ballot be cast by proxy, it shall also state the name of such proxy;
provided, however, that the mode of voting prescribed by statute for any
particular case shall be in such case followed.
SECTION 9. Proxies. At any meeting of the stockholders, any
stockholder may be represented and vote by a proxy or proxies appointed by an
instrument in writing. In the event any such instrument in writing shall
designate two or more persons to act as proxies, a majority of such persons
present at the meeting, or, if only one shall be present, then that one shall
have and may exercise all of the powers conferred by such written instrument
upon all of the persons so designated unless the instrument shall otherwise
provide. No such proxy shall be valid
-4-
after the expiration of six months from the date of its execution, unless
coupled with an interest, or unless the person executing it specified therein
the length of time for which it is to continue in force, which in no case shall
exceed seven years from the date of its execution. Subject to the above, any
proxy duly executed is not revoked and continues in full force and effect until
an instrument revoking it or a duly executed proxy bearing a later date is
filed with the secretary of the Corporation. At no time shall any proxy be
valid which shall be filed less than ten hours before the commencement of the
meeting.
SECTION 10. Voting Lists. The officer or agent in charge of the
transfer books for shares of the corporation shall make, at least three days
before each meeting of stockholders, a complete list of the stockholders
entitled to vote at such meeting, arranged in alphabetical order with the
number of shares held by each, which list for a period of two days prior to
such meeting shall be kept on file at the registered office of the corporation
and shall be subject to inspection by any stockholder at any time during the
whole time of the meeting. The original share ledger or transfer book, or
duplicate thereof, kept in this state, shall be prima facie evidence as to who
are the stockholders entitled to examine such list or share ledger or transfer
book or to vote at any meeting of stockholders.
SECTION 11. Closing Transfer Books or Fixing of Record Date. For the
purpose of determining stockholders entitled to notice or to vote for any
meeting of stockholders, the Board of Directors of the Corporation may provide
that the stock transfer
-5-
books be closed for a stated period but not to exceed in any case sixty (60)
days before such determination. If the stock transfer books be closed for the
purpose of determining stockholders entitled to notice of a meeting of
stockholders, such books shall be closed for at least fifteen days immediately
preceding such meeting. In lieu of closing the stock transfer books, the Board
of Directors may fix in advance a date in any case to be not more than sixty
(60) days, nor less than ten (10) days prior to the date on which the
particular action, requiring such determination of stockholders, is to be
taken. If the stock transfer books are not closed and no record date is fixed
for determination of stockholders entitled to notice of a meeting of
stockholders, or stockholders entitled to receive payment of a dividend, the
date on which notice of the meeting is mailed or the date on which the
resolution of the Board of Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determinations of shareholders.
SECTION 12. Voting of Shares. Subject to the provisions of Section 14
of this Article, each outstanding share entitled to vote shall be entitled to
one vote upon each matter submitted to vote at a meeting of stockholders.
SECTION 13. Voting of Shares by Certain Holders. Shares standing in
the name of another corporation, domestic or foreign, may be voted by such
officer, agent or proxy as the By-Laws of such corporation may prescribe, or,
in the absence of such provisions, as the Board of Directors of such
corporation may determine.
-6-
Shares standing in the name of a deceased person may be voted by his
administrator or executor, either in person or by proxy. Shares standing in the
name of a guardian, conservator or trustee may be voted by such fiduciary
either in person or by proxy, but no guardian, conservator, or trustee shall be
entitled, as such fiduciary, to vote shares held by him without a transfer of
such shares into his name.
Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be voted by
such receiver without the transfer thereof into his name if authority so to do
be contained in an appropriate order of the court at which such receiver was
appointed.
A stockholder whose shares are pledged shall be entitled to vote such
shares until shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Shares of its own stock belonging to this corporation shall not be
voted, directly or indirectly, at any meeting and shall not be counted in
determining the total number of outstanding shares at any time, but shares of
its own stock held by it in a fiduciary capacity may be voted and shall be
counted in determining the total number of outstanding shares at any given
time.
SECTION 14. Cumulative Voting. Directors shall be elected by a
plurality vote. At each election for directors, every stockholder entitled to
vote at such election shall have the
-7-
right to vote, in person or by proxy, the number of shares owned by him for as
many persons as there are directors to be elected and for whose election he has
a right to vote, or to cumulate his vote by giving one candidate as many votes
as the number of such directors multiplied by the number of his shares equal,
or by distributing such votes on the same principle among any number of
candidates, and directors of this corporation shall not be elected otherwise.
SECTION 15. Informal Action by Stockholders. Any action required to be
taken at a meeting of the stockholders or any other action which may be taken
at a meeting of the stockholders except the election of directors may be taken
without a meeting if a consent in writing setting forth the action so taken
shall be signed by all of the stockholders entitled to vote with respect to the
subject matter thereof.
ARTICLE III
DIRECTORS
SECTION 1. General Powers. The Board of Directors shall have the
control and general management of the affairs and business of the Corporation.
Such directors shall in all cases act as a Board, regularly convened, by a
majority, and they may adopt such rules and regulations for the conduct of
their meetings and the management of the Corporation, as they may deem proper,
not inconsistent with these By-Laws, the Articles of Incorporation and the laws
of the State of Nevada. The Board of Directors shall further have the right to
delegate certain other powers to the Executive Committee as provided in these
By-Laws.
-8-
SECTION 2. The Number of Directors. The affairs and business of this
Corporation shall be managed by a Board of Directors consisting of two (2)
member(s), at least one of whom shall be a citizen of the United States, and
all of whom shall be of full age.
SECTION 3. Election. The Directors of the Corporation shall be elected
at the annual meeting of the stockholders, except as hereinafter otherwise
provided for the filling of vacancies. Each director shall hold office for a
term of one year and until his successor shall have been duly chosen and shall
have qualified, or until his death, or until he shall resign or shall have been
removed in the manner hereinafter provided.
SECTION 4. Vacancies in the Board. Any vacancy in the Board of
Directors occurring during the year through death, resignation, removal or
other cause, including vacancies caused by an increase in the number of
directors, shall be filled for the unexpired portion they constitute a quorum,
at any special meeting of the Board called for that purpose, or at any regular
meeting thereof; provided, however, that in the event the remaining directors
do not represent a quorum of the number set forth in Section 2 hereof, a
majority of such remaining directors may elect directors to fill any vacancies
then existing.
SECTION 5. Directors Meetings. Annual meeting of the Board of
Directors shall be held each year immediately following the annual meeting of
the stockholders. Other regular meetings of the Board of Directors shall from
time to time by resolution be
-9-
prescribed. No further notice of such annual or regular meeting of the Board of
Directors need be given.
SECTION 6. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the President or any two
directors. The person or persons authorized to call special meetings of the
Board of Directors may fix any place, either within or without the State of
Nevada, as the place for holding any special meeting of the Board of Directors
called by them.
SECTION 7. Notice. Notice of any special meeting shall be given at
least twenty-four hours previous thereto by written notice if personally
delivered, or five days previous thereto if mailed to each director at his
business address, or by telegram. If mailed, such notice shall be deemed to
have been delivered when deposited in the United States mail so addressed, with
postage thereon prepaid. If notice is given by telegram, such notice shall be
deemed to be delivered when the telegram is delivered to the telegraph company.
Any director may waive notice of any meeting. The attendance of a director at
any meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened.
SECTION 8. Chairman. At all meetings of the Board of Directors, the
President shall serve as Chairman, or in the absence of the President, the
directors present shall choose by majority vote a director to preside as
Chairman.
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SECTION 9. Quorum and Manner of Acting. A majority of the d4rectors,
whose number is designated in Section 2 herein, shall constitute a quorum for
the transaction of business at any meeting and the act of a majority of the
directors present at any meeting at which a quorum is present shall be the act
of the Board of Directors. In the absence of a quorum, the majority of the
directors present may adjourn any meeting from time to time until a quorum be
had. Notice of any adjourned meeting need not be given. The directors shall act
only as a Board and the individual directors shall have no power as such.
SECTION 10. Removal of Directors. Any one or more of the directors may
be removed either with or without cause at any time by the vote or written
consent of the stockholders representing not less than two-thirds of the issued
and outstanding capital stock entitled to voting power.
SECTION 11. Voting. At all meetings of the Board of Directors, each
director is to have one vote, irrespective of the number of shares of stock
that he may hold.
SECTION 12. Compensation. By resolution of the Board of Directors, the
directors may be paid their expenses, if any of attendance at each meeting of
the Board, and may be paid a fixed sum for attendance at meetings or a stated
salary of directors. No such payment shall preclude any director from serving
the corporation in any other capacity and receiving compensation therefor.
SECTION 13. Presumption of Assent. A director of the Corporation who
is present at a meeting of the Board of Directors
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at which action on any corporate matter is taken, shall be conclusively
presumed to have assented to the action taken unless his dissent shall be
entered in the minutes of the meeting or unless he shall file his written
dissent to such action with the person acting as the secretary of the meeting
before the adjournment thereof or shall forward such dissent by certified or
registered mail to the Secretary of the corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
ARTICLE IV
EXECUTIVE COMMITTEE
SECTION 1. Number and Election. The Board of Directors may, in its
discretion, appoint from its membership an Executive Committee of two or more
directors, each to serve at the pleasure of the Board of Directors.
SECTION 2. Authority. The Executive Committee is authorized to take
any action which the Board of Directors could take, except that the Executive
Committee shall not have the power either to issue or authorize the issuance of
shares of capital stock, to amend the By-Laws, or to take any action
specifically prohibited by the By-Laws, or a resolution of the Board of
Directors. Any authorized action taken by the Executive Committee shall be as
effective as if it had been taken by the full Board of Directors.
SECTION 3. Regular Meetings. Regular meetings of the Executive
Committee may be held within or without the State of
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Nevada at such time and place as the Executive Committee may provide from time
to time.
SECTION 4. Special Meetings. Special meetings of the Executive
Committee may be called by or at the request of the President or any member of
the Executive Committee.
SECTION 5. Notice. Notice of any special meeting shall be given at
least one day previous thereto by written notice, telephone, telegram or in
person. Neither the business to be transacted at, nor the purpose of a regular
or special meeting of the Executive Committee need be specified in the notice
or waiver of notice of such meeting. A member may waive notice of any meeting
of the Executive Committee. The attendance of a member at any meeting shall
constitute a waiver of notice of such meeting, except where a member attends a
meeting for the express purpose of objecting to the transaction of any business
because the meeting is not lawfully called or convened.
SECTION 6. Quorum. A majority of the members of the Executive
Committee shall constitute a quorum for the transaction of business at any
meeting of the Executive Committee; provided that if fewer than a majority of
the members are present at said meeting a majority of the members present may
adjourn the meeting from time to time without further notice.
SECTION 7. Manner of Acting. The act of the majority of the members
present at a meeting at which a quorum is present shall be the act of the
Executive Committee, and said Committee shall keep regular minutes of its
proceedings which shall at all times be open for inspection by the Board of
Directors.
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SECTION 8. Presumption of Assent. A member of the Executive Committee
who is present at a meeting of the Executive Committee at which action on any
corporate matter is taken, shall be conclusively presumed to have assented to
the action taken unless his dissent shall be entered in the minutes of the
meeting or unless he shall file his written dissent to such action with the
person acting as secretary of the meeting before the adjournment thereof, or
shall forward such dissent by certified or registered mail to the Secretary of
the Corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a member of the Executive Committee who voted in
favor of such action.
ARTICLE V
OFFICERS
SECTION 1. Number. The officers of the corporation shall be a
President, a Vice President, a Treasurer and a Secretary and such other or
subordinate officers as the Board of Directors may from time to time elect. One
person may hold the office and perform the duties of one or more of said
officers, except those of President and Secretary. No officer need be a member
of the Board of Directors.
SECTION 2. Election, Term of Office, Qualifications. The officers of
the Corporation shall be chosen by the Board of Directors and they shall be
elected annually at the meeting of the Board of Directors held immediately
after each annual meeting of the stockholders except as hereinafter otherwise
provided for filling vacancies. Each officer shall hold his office until his
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successor shall have been duly chosen and shall have qualified, or until his
death, or until he shall resign or shall have been removed in the manner
hereinafter provided.
SECTION 3. Removal. Any officer or agent elected or appointed by the
Board of Directors may be removed by the Board of Directors at any time
whenever in its judgment the best interests of the Corporation would be served
thereby, and such removal shall be without prejudice to the contract rights, if
any, of the person so removed.
SECTION 4. Vacancies. All vacancies in any office shall be filled by
the Board of Directors without undue delay, at any regular meeting, or at a
meeting specially called for that purpose.
SECTION 5. The President. The President shall be the chief executive
officer of the corporation and shall have general supervision over the business
of the corporation and over its several officers, subject, however, to the
control of the Board of Directors. He may sign, with the Treasurer or with the
Secretary or any other proper officer of the Corporation thereunto authorized
by the Board of Directors, certificates for shares of the capital stock of the
Corporation; may sign and execute in the name of the Corporation deeds,
mortgages, bonds, contracts or other instruments authorized by the Board of
Directors, except in cases where the signing and execution thereof shall be
expressly delegated by the Board of Directors or by these By-Laws to some other
officer or agent of the Corporation; and in general shall perform all duties
incident to
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the duties of the President, and such other duties as from time to time may be
assigned to him by the Board of Directors.
SECTION 6. Vice President. The Vice President shall in the absence or
incapacity of the President, or as ordered by the Board of Directors, perform
the duties of the President, or such other duties or functions as may be given
to him by the Board of Directors from time to time.
SECTION 7. Treasurer. The Treasurer shall have the care and custody of
all the funds and securities of the Corporation and deposit the same in the
name of the Corporation in such bank or trust company as the Board of Directors
may designate; he may sign or countersign all checks, drafts and orders for the
payment of money and may pay out and dispose of same under the direction of the
Board of Directors, and may sign or countersign all notes or other obligations
of indebtedness of the Corporation; he may sign with the President or Vice
President, certificates for shares of stock of the Corporation; he shall at all
reasonable times exhibit the books and accounts to any director or stockholder
of the Corporation under application at the office of the company during
business hours; and he shall, in general, perform all duties as from time to
time may be assigned to him by the President or by the Board of Directors. The
Board of Directors may at its discretion require of each officer authorized to
disburse the funds of the Corporation a bond in such amount as it may deem
adequate.
SECTION 8. Secretary. The Secretary shall keep the minutes of the
meetings of the Board of Directors and also the minutes of
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the meetings of the stockholders; he shall attend to the giving and serving of
all notices of the Corporation and shall affix the seal of the Corporation to
all certificates of stock, when signed and countersigned by the duly authorized
officers; he may sign certificates for shares of stock of the Corporation; he
may sign or countersign all checks, drafts and orders for the payment of money;
he shall have charge of the certificate book and such other books and papers as
the Board may direct; he shall keep a stock book containing the names,
alphabetically arranged, of all persons who are stockholders of the
Corporation, showing their places of residence, the number of shares of stock
held by them respectively, the time when they respectively became the owners
thereof, and the amount paid thereof; and he shall, in general, perform all
duties incident to the office of Secretary and such other duties as from time
to time may be assigned to him by the President or by the Board of Directors.
SECTION 9. Other Officers. The Board of Directors may authorize and
empower other persons or other officers appointed by it to perform the duties
and functions of the officers specifically designated above by special
resolution in each case.
SECTION 10. Assistant Treasurers and Assistant Secretaries. The
Assistant Treasurers shall respectively, as may be required by the Board of
Directors, give bonds for the faithful discharge of their duties, in such sums
and with such sureties as the Board of Directors shall determine. The Assistant
Secretaries as thereunto authorized by the Board of Directors may sign with the
President or Vice President certificates for shares of the
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capital stock of the Corporation, the issue of which shall have been authorized
by resolution of the Board of Directors. The Assistant Treasurers and Assistant
Secretaries shall, in general, perform such duties as may be assigned to them
by the Treasurer or the Secretary respectively, or by the President or by the
Board of Directors.
ARTICLE VI
INDENTFICATION OF OFFICERS AND DIRECTORS
Except as hereinafter stated otherwise, the Corporation shall
indemnify all of its officers and directors, past, present and future, against
any and all expenses incurred by them, and each of them including but not
limited to legal fees, judgments and penalties which may be incurred, rendered
or levied in any legal action brought against any or all of them for or on
account of any act or omission alleged to have been committed while acting
within the scope of their duties as officer or directors of this Corporation.
ARTICLE VII
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. Contracts. The Board of Directors may authorize any officer
or officers, agent or agents, to enter into any contract or execute and deliver
any instrument in the name of and on behalf of the Corporation, and such
authority may be general or confined to specific instances.
SECTION 2. Loans. No loans shall be contracted on behalf of the
Corporation and no evidence of indebtedness shall be issued in its name unless
authorized by the Board of Directors or
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approved by a loan committee appointed by the Board of Directors and charged
with the duty of supervising investments. Such authority may be general or
confined to specific instances.
SECTION 3. Checks, Drafts, Etc. All checks, drafts or other orders for
payment of money, notes or other evidences of indebtedness issued in the name
of the Corporation shall be signed by such officer or officers, agent or agents
of the Corporation and in such manner as shall from time to time be determined
by resolutions of the Board of Directors.
SECTION 4. Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositories as the Board of Directors
may select.
ARTICLE VIII
CAPITAL STOCK
SECTION 1. Certificates for Shares. Certificates for shares of stock
of the Corporation shall be in such form as shall be approved by the
incorporators or by the Board of Directors. The certificates shall be numbered
in the order of their issue, shall be signed by the President or the Vice
President and by the Secretary or the Treasurer, or by such other person or
officer as may be designated by the Board of Directors; provided, however, that
no certificates shall be both signed and countersigned by the same person; and
the seal of the Corporation shall be affixed thereto, which said signatures of
the said duly designated officers and of the seal of the Corporation. Every
certificate authenticated by a facsimile of such signatures and seal must be
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countersigned by a Transfer Agent to be appointed by the Board of Directors,
before issuance.
SECTION 2. Transfer of Stock. Shares of the stock of the Corporation
may be transferred by the delivery of the certificate accompanied either by an
assignment in writing on the back of the certificate or by written power of
attorney to sell, assign, and transfer the same on the books of the
Corporation, signed by the person appearing by the certificate to the owner of
the shares represented thereby, together with all necessary federal and state
transfer tax stamps affixed and shall be transferable on the books of the
Corporation upon surrender thereof so signed or endorsed. The person registered
on the books of the Corporation as the owner of any shares of stock shall be
entitled to all the rights of ownership with respect to such shares.
SECTION 3. Regulations. The Board of Directors may make such rules and
regulations as it may deem expedient not inconsistent with the By-Laws or with
the Articles of Incorporation, concerning the issue, transfer and registration
of certificates for shares of stock of the Corporation. It may appoint a
transfer agent or a registrar of transfers, or both, and it may require all
certificates to bear the signature of either or both.
SECTION 4. Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the person claiming
the
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certificate of stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost or destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or give the
Corporation a bond in such sum, as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate
alleged to have been lost or destroyed.
ARTICLE IX
DIVIDENDS
SECTION 1. The Corporation shall be entitled to treat the holder of
any share or shares of stock as the holder in fact thereof and, accordingly,
shall not be bound to recognize any equitable or other claim to or interest in
such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as expressly provided by the laws of
Nevada.
SECTION 2. Dividends on the capital stock of the Corporation, subject
to the provisions of the Articles of Incorporation, if any, may be declared by
the Board of Directors at any regular or special meeting, pursuant to law.
SECTION 3. The Board of Directors may close the transfer books in its
discretion for a period not exceeding fifteen days preceding the date fixed for
holding any meeting, annual or
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special of the stockholders, or the day appointed for the payment of a
dividend.
SECTION 4. Before payment of any dividend or making any distribution
of profits, there may be set aside out of funds of the Corporation available
for dividends, such sum or sums as the directors may from time to time, in
their absolute discretion, think proper as a reserve fund to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for any such other purpose as the directors
shall think conducive to the interest of the Corporation, and the directors may
modify or abolish any such reserve in the manner in which it was created.
ARTICLE X
SEAL
The Board of Directors shall provide a Corporate seal which shall be
in the form of a Circle and shall bear the full name of the Corporation, the
year of its incorporation and the words "Corporate Seal, State of Nevada".
ARTICLE XI
FISCAL YEAR
The fiscal year of the Corporation shall end on the 31st day of August
of each year.
ARTICLE XII
WAIVER OF NOTICE
Whenever any notice whatever is required to be given under the
provisions of these By-Laws, or under the laws of the State of Nevada, or under
the provisions of the Articles of
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Incorporation, a waiver in writing signed by the person or persons entitled to
such notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice.
ARTICLE XIII
AMENDMENTS
These By-Laws may be altered, amended or repeated and new By-Laws may
be adopted at any regular or special meeting of the Stockholders by a vote of
the stockholders owning a majority of the shares and entitled to vote thereat.
These By-Laws may also be altered, amended or repealed and new By-Laws may be
adopted at any regular or special meeting of the Board of Directors of the
Corporation (if notice of such alteration or repeal be contained in the notice
of such special meeting) by a majority vote of the directors present at the
meeting at which a quorum is present, but any such amendment shall not be
inconsistent with or contrary to the provision of any amendment adopted by the
stockholders.
KNOW ALL MEN BY THESE PRESENTS that the undersigned, being the
Secretary of HANNA-EPPRECHT DATSUN, INC., a Nevada Corporation hereby
acknowledges that the above and foregoing By-Laws were duly adopted as the
By-Laws of said Corporation on the 10th day of October, 1980.
IN WITNESS WHEREOF, I hereunto subscribed my name this 10th day of
October, 1980.
/s/
----------------------------------
Secretary
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EX 3.107
CERTIFICATE OF INCORPORATION
OF
UAG EAST, INC.
FIRST: The name of the corporation is UAG East, Inc.
SECOND: The address of the corporation's registered office in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of the corporation's registered agent at such address is
The Corporation Trust Company.
THIRD: the purpose of the corporation is to engage in any lawful act
or activity for which corporations may be organized under the Delaware General
Corporation Law.
FOURTH: The total number of shares of stock which the corporation is
authorized to issue is one thousand (1,000) shares of common stock, having a
par value of one dollar ($1.00) per share.
FIFTH: The business and affairs of the corporation shall be managed
by or under the direction of the board of directors, and the directors need
not be elected by ballot unless required by the by-laws of the corporation.
SIXTH: In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware, the board of directors is expressly
authorized to make, amend and repeal by-laws.
SEVENTH: 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 a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit. If
the Delaware General Corporation Law 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 Delaware General Corporation Law, as so
amended. Any repeal or modification of this provision shall not adversely
affect any right or protection of a director of the corporation existing at
the time of such repeal or modification.
EIGHTH: The corporation reserves the right to amend and repeal any
provision contained in this Certificate of Incorporation in the manner from
time to time prescribed by the laws of the State of Delaware.
All rights herein conferred are granted subject to this reservation.
NINTH: The incorporator is David G. Thunhorst, Esq. whose mailing
address is 2700 International Tower, Peachtree Center, 229 Peachtree Street,
N.E., Atlanta, Georgia 30303, County of Fulton.
I, the Undersigned, being the incorporator, for the purpose of
forming a corporation under the laws of the State of Delaware,
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do make, file and record this Certificate of Incorporation and, accordingly,
have hereto set my hand this 3rd day of March, 1997.
/s/ David G. Thunhorst
--------------------------
David G. Thunhorst
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EX 3.109
CERTIFICATE OF INCORPORATION
OF
AMITY AUTO PLAZA, LTD.
Under Section 402 of the Business Corporation Law
FILER:
Alan Richards
100 Ring Road West
Garden City, NY 11530
CERTIFICATE OF INCORPORATION
OF
AMITY AUTO PLAZA, LTD.
Under Section 402 of the Business Corporation Law
The undersigned, a natural person of the age of eighteen years or
over, desiring to form a corporation pursuant to the provisions of the
Business Corporation Law of the State of New York, hereby certifies as
follows:
FIRST: The name of the corporation is
AMITY AUTO PLAZA, LTD.
hereinafter sometimes called "the corporation."
SECOND: The purpose for which it is formed is as follows:
The purpose for which this corporation is organized is to engage in
any lawful act or activity for which corporations may be formed under the
Business Corporation Law provided that the corporation is not formed to engage
in any act or activity which requires the consent or approval of any state
official, department, board, agency or other body, without such consent or
approval first being obtained.
To buy and sell, manufacture and distribute, lease and otherwise deal
in at wholesale and retail, new and used automobiles, vehicles, trucks,
tractors, trailers, machinery, implements, equipment, accessories, and parts,
and to render services in connection with the same.
For the accomplishment of the aforesaid purposes, and in furtherance
thereof, the corporation shall have and may exercise all of the powers
conferred by the Business Corporation Law upon corporations formed thereunder,
subject to any limitations
contained in Article 2 of said law or in accordance with the provisions of any
other statute of the State of New York.
THIRD: The office of the corporation in the State of New York is to
be located in the County of Suffolk.
FOURTH: the aggregate number of shares which the corporation shall
have the authority to issue is 200, no par value.
FIFTH: The Secretary of State is designated as the agent of the
corporation upon whom process against the corporation may be served, and the
address to which the Secretary of State shall mail a copy of any process
against the corporation served upon him is 200 Sunrise Highway, Amityville, NY
11701.
IN WITNESS WHEREOF I hereunto sign my name and affirm that statements
made herein are true under the penalties of perjury this 23rd day of November,
1988.
Incorporator: /S/ Linda Pellitier
Address: Linda Pellitier
283 Washington Avenue
Albany, New York 12206
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EX-3.110
BY-LAWS
OF
AMITY AUTO PLAZA, LTD.
ARTICLE I. SHAREHOLDERS' MEETING
SECTION 1 - ANNUAL MEETING.
The annual meeting of the shareholders shall be held within five
months after the close of the fiscal year of the Corporation, for the purpose
of electing directors, and transacting such other business as may properly come
before the meeting.
SECTION 2 - SPECIAL MEETINGS.
Special meetings of the shareholders may be called at any time by the
Board of Directors or by the President or the Secretary at the written request
of the holders of fifty per cent (50%) of the shares then outstanding and
entitled to vote thereat, or as otherwise required under the provisions of the
Business Corporation Law.
SECTION 3 - PLACE OF MEETINGS.
All meetings of shareholders shall be held at the principal office of
the Corporation, or at such other places within or without the State of New
York as shall be designated in the notices or waivers of notice of such
meetings.
SECTION 4 - NOTICE OF MEETINGS.
(a) Written notice of each meeting of shareholders, whether annual or
special, stating the time when and place where it is to be held, shall be
served either personally or by mail, not less than ten or more than fifty days
before the meeting, upon each shareholder of record entitled to vote at such
meeting, and to any other shareholder to whom the giving of notice may be
required by law. Notice of a special meeting shall also state the purpose or
purposes for which the meeting is called, and shall indicate that it is being
issued by, or at the direction of, the person or persons calling the meeting.
If, at any meeting, action is proposed to be taken that would, if taken,
entitle shareholders to receive payment for their shares pursuant to the
Business Corporation Law, the notice of such meeting shall include a statement
of that purpose and to that effect. If mailed, such notice shall be directed to
each such shareholder at his address, as it appears on the records of the
shareholders of the Corporation, unless he shall have previously filed with the
Secretary of the Corporation a written request that notices intended for him be
mailed to some other address, in which case, it shall be mailed to the address
designated in such request.
BL 1
(b) Notice of any meeting need not be given to any person who may
become a shareholder of record after the mailing of such notice and prior to
the meeting, or to any shareholder who attends such meeting, in person or by
proxy, or to any shareholder who, in person or by proxy, submits a signed
waiver of notice either before or after such meeting. Notice of any adjourned
meeting of shareholders need not be given, unless otherwise required by
statute.
SECTION 5 - QUORUM:
(a) Except as otherwise provided herein, or by statute, or in the
Certificate of Incorporation (such Certificate and any amendments thereof being
hereinafter collectively referred to as the "Certificate of Incorporation"), at
all meetings of shareholders of the Corporation, the presence at the
commencement of such meetings in person or by proxy of shareholders holding of
record a majority of the total number of shares of the Corporation then issued
and outstanding and entitled to vote, shall be necessary and sufficient to
constitute a quorum for the transaction of any business. The withdrawal of any
shareholder after the commencement of a meeting shall have no effect on the
existence of a quorum, after a quorum has been established at such meeting.
(b) Despite the absence of a quorum at any annual or special meeting
of shareholders, the shareholders, by a majority of the votes cast by the
holders of shares entitled to vote thereon, may adjourn the meeting. At any
such adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as originally called
if a quorum had been present.
SECTION 6 - VOTING:
(a) Except as otherwise provided by statute or by the Certificate of
Incorporation, any corporate action, other than the election of directors to be
taken by vote of the shareholders, shall be authorized by a majority of votes
cast at a meeting of shareholders by the holders of shares entitled to vote
thereon.
(b) Except as otherwise provided by statute or by the Certificate of
Incorporation, at each meeting of shareholders, each holder of record of stock
of the Corporation entitled to vote thereat, shall be entitled to one vote for
each share of stock registered in his name on the books of the Corporation.
(c) Each shareholder entitled to vote or to express consent or dissent
without a meeting, may do so by proxy; provided, however, that the instrument
authorizing such proxy to act shall have been executed in writing by the
shareholder himself, or by his attorney-in-fact thereunto duly authroized in
writing. No proxy shall be valid after the expiration of eleven
BL 2
months from the date of its execution, unless the persons executing it shall
have specified therein the length of time it is to continue in force. Such
instrument shall be exhibited to the Secretary at the meeting and shall be
filed with the records of the Corporation.
(d) Any resolution in writing, signed by all of the shareholders
entitled to vote thereon, shall be and constitute action by such shareholders
to the effect therein expressed, with the same force and effect as if the same
had been duly passed by unanimous vote at a duly called meeting of shareholders
and such resolution so signed shall be inserted in the Minute Book of the
Corporation under its proper date.
BL 3
ARTICLE II. DIRECTORS
SECTION 1 - NUMBER.
The affairs and the business of the Corporation, except as otherwise
provided in the Certificate of Incorporation, shall be managed by the Board of
Directors. The number of the directors of The Corporation shall be one (1)
unless and until otherwise determined by vote of a majority of the entire Board
of Directors. The number of Directors shall not be less than three, unless all
of the outstanding shares are owned beneficially and of record by less than
three shareholders, in which event the number of directors shall not be less
than the number of shareholders.
SECTION 2 - HOW ELECTED.
At the annual meeting shareholders, the persons duly elected by the
votes cast at the election held thereat shall become the directors for the
ensuing year.
SECTION 3 - TERM OF OFFICE.
The term of office of each of the directors shall be until the next
annual meeting of shareholders and thereafter until a successor has been
elected and qualified.
SECTION 4 - DUTIES OF DIRECTORS.
The Board of Directors shall have the control and general management
of the affairs and business of the Corporation unless otherwise provided in the
certificate of Incorporation. Such directors shall in all cases act as a Board
regularly convened by a majority, and they may adopt such rules and regulations
for the conduct of their meetings, and the management and business of the
Corporation as they may deem proper, not inconsistent with these By-Laws and
the Laws of the State of New York.
SECTION 5 - DIRECTORS' MEETINGS.
Regular meetings of the Board of Directors shall be held immediately
following the annual meetings of the shareholders, and at such other times as
the Board of Directors may determine. Special meetings of the Board of
Directors may be called by the President at any time and must be called by the
President or the Secretary upon the written request of two Directors.
BL 4
SECTION 6 - NOTICE OF SPECIAL MEETINGS.
Notice of special meetings of the Board of Directors shall be served
personally or by mail addressed to each Director at his last known address no
less than five or more than twenty days prior to the date of such meeting. The
notice of such meeting shall contain a statement of the business to be
transacted thereat. No business other than that specified in the call for the
meeting shall be transacted at any such special meeting. Notice of special
meeting may be waived by any Director by written waiver or by personal
attendance thereat without protest of lack of notice to him.
SECTION 7 - QUORUM.
At any meeting of the Board of Directors, except as otherwise provided
by the Certificate of Incorporation, or by these By-Laws, a majority of the
Board of Directors shall constitute a quorum. However, a lesser number when not
constituting a quorum may adjourn the meeting from time to time until a quorum
shall be present or represented.
SECTION 8 - VOTING.
Except as otherwise provided by statute, or by the Certificate of
Incorporation, or by these By-Laws, the affirmative vote of a majority of the
Directors present at any meeting of the Board of Directors at which a quorum is
present shall be necessary for the transaction of any item of business thereat.
Any resolution in writing, signed by all of the directors entitled to vote
thereon, shall be and constitute action by such directors to the effect therein
expressed, with the same force and effect as if the same had been duly passed
by unanimous vote at a duly called meeting of directors and such resolution so
signed shall be inserted in the Minute Book of the Corporation under its proper
date.
SECTION 9 - VACANCIES.
Unless otherwise provided in the Certificate of Incorporation,
vacancies in the Board of Directors occurring between annual meetings of the
shareholders shall be filled for the unexpired portion of the term by a
majority vote of the remaining Directors, even though less than a quorum
exists.
SECTION 10 - REMOVAL OF DIRECTORS.
Any or all of the directors may be removed, either with or without
cause at any time by a vote of the shareholders at any meeting called for such
purpose.
BL 5
SECTION 11 - RESIGNATION.
Any director may resign at any time by giving written notice to the
Board of Directors, the President or the Secretary of the Corporation. Unless
otherwise specified in such written notice, such resignation shall take effect
upon receipt thereof by the Board of Directors or such officer, and the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 12 - SALARY.
No stated salary shall be paid to directors, as such, for their
services, but by resolution of the Board of Directors a fixed sum and expenses
of attendance, if any, may be allowed for attendance at each regular or special
meeting of the Board; provided, however, that nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
SECTION 13 - CONTRACTS.
(a) No contract or other transaction between this Corporation and any
other Corporation shall be impaired, affected or invalidated, nor shall any
director be liable in any way by reason of the fact that any one or more of the
directors of this Corporation is or are interested in, or is a director or
officer, or are directors or officer of such other Corporation, provided that
such facts are disclosed or made known to the Board of Directors.
(b) Any director, personally and individually, may be interested in
any contract or transaction of this Corporation, and no director shall be
liable in any way by reason of such interest, provided that the fact of such
interest be disclosed or made known to the Board of Directors, and provided
that the Board of Directors shall authorize, approve or ratify such contract or
transaction by the vote (not counting the vote of any such director) of a
majority of a quorum, notwithstanding the presence of any such director at the
meeting at which such action is taken. Such director or directors may be
counted in determining the presence of a quorum at such meeting. This Section
shall not be construed to impair or invalidate or in any way affect any
contract or other transaction which would otherwise be valid under the law
(common, statutory or otherwise) applicable thereto.
SECTION 14 - COMMITTEES.
The Board of Directors, by resolution adopted by a majority of the
entire Board, may from time to time designate from among its members an
executive committee and such other committees, and alternate members thereof,
as they deem desireable, each consisting of three or more members, with such
powers and authority (to the extent permitted by law) as may be
BL 6
provided in such resolution. Each such committee shall serve at the pleasure of
the Board.
BL 7
ARTICLE III.
OFFICERS
SECTION 1 - NUMBER OF OFFICERS.
(a) The officers of the Corporation shall consist of a President, a
Secretary, a Treasurer, and such other officers, including a Chairman of the
Board of Directors, and one or more Vice Presidents, as the Board of Directors
may from time to time deem advisable. Any officer other than the Chairman of
the Board of Directors may be, but is not required to be, a director of the
Corporation. Any officer may hold more than one office, except the same person
may not hold the office of President and Secretary.
SECTION 2 - ELECTION OF OFFICERS.
Officers of the Corporation shall be elected at the first meeting of
the Board of Directors. Thereafter, and unless otherwise provided in the
Certificate of Incorporation, the officers of the Corporation shall be elected
annually by the Board of Directors at its meeting held immediately after the
annual meeting of shareholders and shall hold office for one year and until
their successors have been duly elected and qualified.
SECTION 3 - REMOVAL OF OFFICERS.
Any officer elected by the Board of Directors may be removed, with or
without cause, and a successor elected, by vote of the Board of Directors,
regularly convened at a regular or special meeting. Any officer elected by the
shareholders may be removed, with or without cause, and a successor elected, by
vote of the shareholders, regularly convened at an annual or special meeting.
SECTION 4 - PRESIDENT.
The President shall be the chief executive officer of the Corporation
and shall have general charge of the business, affairs and property thereof,
subject to direction of the Board of Directors, and shall have general
supervision over its officers and agents. He shall, if present, preside at all
meetings of the Board of Directors in the absence of a Chairman of the Board
and at all meetings of shareholders. He may do and perform all acts incident to
the office of President.
SECTION 5 - VICE-PRESIDENT.
In the absence of or inability of the President to act, the
Vice-President shall perform the duties and exercise the powers of the
President and shall perform such other functions as the Board of Directors may
from time to time prescribe.
BL 8
SECTION 6 - SECRETARY.
The Secretary shall:
(a) Keep the minutes of the meetings of the Board of Directors and of
the shareholders in appropriate books.
(b) Give and serve all notice of all meetings of the Corporation.
(c) Be custodian of the records and of the seal of the Corporation and
affix the latter to such instruments or documents as may be authorized by the
Board of Directors.
(d) Keep the shareholder records in such a manner as to show at any
time the amount of shares, the manner and the time the same was paid for, the
names of the owners thereof alphabetically arranged and their respective places
of residence, or their Post Office addresses, the number of shares owned by
each of them and the time at which each person became owner, and keep such
shareholder records available daily during the usual business hours at the
office of the Corporation subject to the inspection of any person duly
authorized, as prescribed by law.
(e) Do and perform all other duties incident to the office of
Secretary.
SECTION 7 - TREASURER.
The Treasurer shall:
(a) Have the care and custody of and be responsible for all of the
funds and securities of the Corporation and deposit of such funds in the name
and to the credit of the Corporation in such a bank and safe deposit vaults as
the Directors may designate.
(b) Exhibit at all reasonable times his books and accounts to any
Director or shareholder of the Corporation upon application at the office of
the Corporation during business hours.
(c) Render a statement of the condition of the finances of the
Corporation at each stated meeting of the Board of Directors if called upon to
do so, and a full report at the annual meeting of shareholders. He shall keep
at the office of the Corporation correct books of account of all of its
business and transactions and such books of account as the Board of Directors
may require. He shall do and perform all other duties incident to the office of
Treasurer.
BL 9
SECTION 8 - DUTIES OF OFFICERS MAY BE DELEGATED.
In the case of the absence of any officer of the Corporation, or for
any reason the Board may deem sufficient, the Board may, except as otherwise
provided in these By-Laws, delegate the powers or duties of such officers to
any other officer or any Director for the time being, provided a majority of
the entire Board concur therein.
SECTION 9 - VACANCIES - HOW FILLED.
Should any vacancy in any office occur by death, resignation or
otherwise, the same shall be filled, without undue delay, by the Board of
Directors at its next regular meeting or at a special meeting called for that
purpose, except as otherwise provided in the Certificate of Incorporation.
SECTION 10 - COMPENSATION OF OFFICERS.
The officers shall receive such salary or compensation as may be fixed
and determined by the Board of Directors, except as otherwise provided in the
certificate of Incorporation.
BL 10
ARTICLE IV.
CERTIFICATES REPRESENTING SHARES
SECTION 1 - ISSUE OF CERTIFICATES REPRESENTING SHARES.
The President shall cause to be issued to each shareholder one or more
certificates, under the seal of the Corporation, signed by the President (or
Vice-President) and the Treasurer (or Secretary) certifying the number of
shares owned by him in the Corporation.
SECTION 2 - LOST OR DESTROYED CERTIFICATES.
The holder of any certificate representing shares of the Corporation
shall immediately notify the corporation of any loss or destruction of the
certificate representing the same. The Corporation may issue a new certificate
in the place of any certificate theretofore issued by it, alleged to have been
lost or destroyed. On production of such evidence of loss or destruction as the
Board of Directors in its discretion may require, the Board of Directors may,
in its discretion, require the owner of the lost or destroyed certificate, or
his legal representatives, to give the Corporation a bond in such suim as the
Board may direct, and with such surety or sureties as may be satisfactory to
the Board, to indemnify the Corporation against any claims, loss, liability or
damage it may suffer on account of the issuance of the new certificate. A new
certificate may be issued without requiring any such evidence or bond when, in
the judgment of the Board of Directors, it is proper so to do.
SECTION 3 - TRANSFERS OF SHARES.
(a) Transfers of shares of the Corporation shall be made on the shares
records of the Corporation only by the holder of record thereof, in person or
by his duly authorized attorney, upon surrender for cancellation of the
certificate or certificates representing such shares, with an assignment or
power of transfer endorsed thereon or delivered therewith, duly executed, with
such proof of the authenticity of the signature and of authority to transfer
and of payment of transfer taxes as the Corporatin or its agents may require.
(b) The Corporation shall be entitled to treat the holder of record of
any share or shares as the absolute owner thereof for all purposes and,
accordingly, shall not be bound to recognize any legal, equitable or other
claim to, or interest in, such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise expressly provided by law.
BL 11
ARTICLE V.
SEAL
The seal of the Corporation shall be as follows:
ARTICLE VI. DIVIDENDS OR OTHER DISTRIBUTIONS
The Corporation, by vote of the Board of Directors, may declare and
pay dividends or make other distributions in cash or its bonds or its property
on its outstanding shares to the extent as provided and permitted by law,
unless contrary to any restriction contained in the Certificate of
Incorporation.
ARTICLE VII. NEGOTIABLE INSTRUMENTS
All checks, notes or other negotiable instruments shall be
signed on behalf of this Corporation by such of the officers, agents and
employees as the Board of Directors may from time to time designate, except as
otherwise provided in the certificate of Incorporation.
ARTICLE VIII. FISCAL YEAR
The fiscal year of the Corporation shall be determined by resolution
of the Board of Directors.
ARTICLE IX. AMENDMENTS
SECTION 1 - BY SHAREHOLDERS.
All by-laws of the Corporation shall be subject to alteration or
repeal, and new by-laws may be made, by a majority vote of the shareholders at
the time entitled to vote in the election of directors.
SECTION 2 - BY DIRECTORS.
The Board of Directors shall have power to make, adopt, alter, amend
and repeal, from time to time, by-laws of the Corporation; provided, however,
that the shareholders entitled to vote with respect thereto as in this Article
IX above-provided may alter, amend or repeal by-laws made by the Board of
Directors, except that the Board of Directors shall have no power to change the
quorum for meetings of shareholders or of the Board of Directors, or to change
any provisions of the by-laws with respect to the removal of directors or the
filling of vacancies in the Board resulting from the removal by the
shareholders. If
BL 12
any by-law regulating an impending election of directors is adopted, amended or
repealed by the Board of Directors, there shall be set forth in the notice of
the next meeting of shareholders for the election of directors, the by-law so
adopted, amended or repealed, together with a concise statement of the changes
made.
ARTICLE X. OFFICES
The offices of the Corporation shall be located in the City, County
and State designated in the Certificate of Incorporation. The Corporation may
also maintain offices at such other places within or without the United States
as the Board of Directors may, from time to time, determine.
The undersigned Incorporator certifies that he has adopted the
foregoing by-laws as the first by-laws of the Corporation, in accordance with
the requirements of the Business Corporation Law.
Dated. November 29, 1988
---------------------------------
Director
BL 13
EX 3.111
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
AMITY DATSUN OF MASSAPEQUA, LTD.
Under Section 805 of the Business Corporation Law
Filer:
ALAN RICHARDS
100 RING ROAD WEST
GARDEN CITY, NY 11530
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
AMITY DATSUN OF MASSAPEQUA, LTD.
Under Section 805 of the Business Corporation Law
IT IS HEREBY CERTIFIED THAT:
(1) The name of the Corporation is:
AMITY DATSUN OF MASSAPEQUA, LTD.
(2) The Certificate of Incorporation was filed by the Department of State on
the 25th day of April 1977, under the name of AMITYVILLE DATSUN LTD.
(3) The Certificate of Incorporation is hereby amended to effect the
following changes:
The name of the corporation to:
AMITY NISSAN OF MASSAPEQUA, LTD.
(4) The above amendment to the Certificate of Incorporation was authorized
by vote of the board of directors, followed by vote of the holder of all
outstanding shares entitled to vote thereon.
IN WITNESS WHEREOF, this certificate has been subscribed this 22nd day of
January 1985, by the undersigned who affirms that the statements made herein
are true under the penalties of perjury.
Fred DeStefano Sole Shareholder /s/ Fred DeStefano
------------------
CERTIFICATE OF AMENDMENT OF THE
CERTIFICATE OF INCORPORATION OF
AMITYVILLE DATSUN INC.
Under Section 805 of the Business Corporation Law
IT IS HEREBY CERTIFIED THAT:
(1) The name of the Corporation is
AMITYVILLE DATSUN INC.
(2) The Certificate of Incorporation was filed at the Department of State on
the 25th day of April, 1977.
(3) The Certificate of Incorporation of this Corporation is hereby amended to
effect the following changes:
The name of the corporation is hereby changed to AMITY DATSUN OF MASSAPEQUA,
LTD.
(4) The amendment to the Certificate of Incorporation was authorized by the
Sole Shareholder.
IN WITNESS WHEREOF, this Certificate has been subscribed this 18th day of March
1982, by the undersigned who affirms that statements made herein are true under
the penalties of perjury.
FREDERICK DeSTEFANO SOLE SHAREHOLDER /S/ FRED DeSTEFANO
- ----------------------------------------- ------------------
CERTIFICATE OF INCORPORATION
OF
AMITYVILLE DATSUN INC.
Under Section 402 of the Business Corporation Law
IT IS HEREBY CERTIFIED THAT:
1. The name of the corporation is:
AMITYVILLE DATSUN INC.
2. The purpose or purposes for which the corporation is formed are as
follows, to wit:
To buy, manufacture, assemble, lease (either as lessee or lessor),
sublease (either as lessee or lessor), purchase, or in any other
manner dispose of, export, import, use, operate, rent, hire, furnish,
grant the use of, repair, and generally deal in automobiles, trucks,
trailers, buses, motor cars, airplanes, hydroplanes, airships,
helicopters, vehicles, boats, and watercraft of every kind and
description, and property of any and every kind and description,
usable or adaptable for the transportation of passengers and goods,
for public conveyances, private conveyances, for pleasure and for
income-producing purposes, which may be operated or propelled by
motors, engines, machines, or any other contrivance or contrivances
(either singly or in combination thereof), operated by means of
gasoline, electricity, steam, compressed air, oil, gas, or any other
form or kind of power (either singly or in combination thereof).
To manufacture, buy, sell, and deal in new and used automobiles,
trucks, trailers, buses, motors, engines, cars, carriages, wagons,
airplanes, airships, helicopters, boats, and other vehicles, their
parts and accessories, and kindred articles, for the transportation
of passengers and goods.
To purchase or otherwise acquire, construct, equip, make, improve,
and operate, or aid or subscribe toward the acquisition,
construction, equipping, making, improving and operating of plants,
mills, factories,
storehouses, garages, buildings, and works of all kinds, in so far as
the same may appertain to, or be useful for, or in connection with,
the conduct of the business enterprises of this corporation.
To acquire such property, real and personal, as may be necessary to
the conduct of such business.
To do everything necessary, suitable or proper for the
accomplishment, attainment or furtherance of to do every other act or
thing incidental to, appurtenant to, growing out of or connected
with, the purposes, objects or powers set forth in this Certificate
of Incorporation, whether alone or in association with others; to
possess all the rights powers and privileges now or hereafter
conferred by the laws of the State of New York upon a corporation
organized under the laws of the State of New York and, in general, to
carry on any of the activities and to do any of the things herein set
forth to the same extent and as fully as a natural person or
partnership might or could do; provided, that nothing herein set
forth shall be construed as authorizing the corporation to posssess
any purpose, object, or power, or to do any act or thing forbidden by
law to a Corporation or organized under the laws of the State of New
York. To acquire such property, real and personal, as may be
necessary to the conduct of such business.
Without limiting any of the objects, or purposes or powers, of the
corporation, it shall be within the powers of the corporation from
time to time to do any one or more or all of the acts and things
herein set forth, and all such other acts, things and business or
businesses in any manner connected therewith, or necessary,
convenient or auxiliary thereto, or likely, directly or indirectly,
to promote the interests of the corporation or enhance the value of
or render profitable any of its property or rights, as such a
corporation may lawfully do; in carrying on its business, or for the
purpose of attaining or furthering any of its objects, it shall have
power to do any and all acts and things, and to exercise any and all
other powers which a copartnership or natural person could do and
exercise, which
-2-
now or hereafter may be authorized by law, either as, or by and
through principals, agents, representatives contractors, factors,
lessors, lessees, or otherwise, either alone or in conjunction with
others, and in any part of the world; in addition, it shall have and
exercise all rights, powers and privileges now or hereafter belonging
to or conferred upon corporations organized under the provisions of
the law authorizing the formation of corporations of its nature.
3. The office of the corporation is to be located in the Village of
Amityville, County of Suffolk, State of New York.
4. The aggregate number of shares which the corporation shall have
authority to issue is 200 shares, no par value.
5. The Secretary of State is designated as agent of the corporation
upon whom process against it may be served. The post office address to which
the Secretary of State shall mail a copy of any process against the
corporation served upon him is:
Siegel & Leibowitz
c/o Roy Siegel
26 Court St.
Brooklyn, NY 11412
6. The accounting period which the corporation intends to establish
as its first calendar or fiscal year for reporting the franchise tax shall end
on March 31, 1978.
IN WITNESS WHEREOF, the undersigned incorporator, being at least
eighteen years of age, hereby affirms that the statements contained herein are
true under penalties of perjury.
Dated: April 21, 1977
/s/ Pamela Kochanski
----------------------------
Pamela Kochanski
90 South Swan Street
Albany, New York 12210
-3-
CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION
OF
AMITYVILLE DATSUN INC.
under Section 805 of the Business Corporation Law
IT IS HEREBY CERTIFIED THAT:
(1) The name of the corporation is
AMITYVILLE DATSUN INC.
(2) The certificate of incorporation was filed by the department of
state on the 25th day of April, 1977.
(3) The certificate of incorporation of this corporation is hereby
amended to effect the following change* to amend the name of the corporation
from:
AMITYVILLE DATSUN INC. to: AMITYVILLE DATSUN LTD.
(4) The amendment to the certificate of incorporation was
authorized:
* by the sole incorporator for the reason that no shares have been
issued, no directors or officers have been elected, and there are
no subscribers for shares whose subscriptions have been accepted.
*SET FORTH THE SUBJECT MATTER OF EACH PROVISION OF THE CERTIFICATE OF
INCORPORATION WHICH IS TO BE AMENDED OR ELIMINATED AND THE TEXT OF THE
PROVISION(S), IF ANY, WHICH ARE TO BE SUBSTITUTED OR ADDED. IF ANY AMENDMENT
PROVIDES FOR A CHANGE OF ISSUED SHARES, THE NUMBER AND KIND OF SHARES CHANGED,
THE NUMBER AND KIND OF SHARES RESULTING FROM SUCH CHANGE AND THE TERMS OF
CHANGE. IF AN AMENDMENT MAKES TWO OR MORE SUCH CHANGES, A LIKE STATEMENT SHALL
BE INCLUDED IN RESPECT TO EACH CHANGE.
IN WITNESS WHEREOF, this certificate has been subscribed this 6th day of May
1977 by the undersigned who affirm(s) that the statements made herein are true
under the penalties of perjury.
Type name Capacity in which signed Signature
- --------- ------------------------ ---------
Pamela Kochanski Sole Incorporator /s/Pamela Kochanski
- ---------------- ----------------- -------------------
- ---------------- ----------------- -------------------
- ---------------- ----------------- -------------------
===============================================================================
CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION
OF
AMITYVILLE DATSUN INC.
Under Section 805 of the Business Corporation Law
===============================================================================
Filed By: SIEGEL & LIEBOWITZ
Address: 26 COURT STREET
BROOKLYN, NEW YORK 11242
EX 3.113
ARTICLES OF INCORPORATION
OF
AUTO MALL PAYROLL SERVICES, INC.
The undersigned subscribes to these Articles of Incorporation to form
a corporation for profit under the laws of the State of Florida.
ARTICLE I
The name of the corporation shall be:
AUTO MALL PAYROLL SERVICES, INC.
and its principal office for the conduct of business shall be:
551 South Military Trail, West Palm Beach, FL. 33415.
The Board of Directors may from time to time move the principal office to any
other address in Florida.
ARTICLE II
The general nature of the business to be conducted by this
corporation is to engage in any activities or business permitted under the
laws of the United States and Florida; in the transaction of any or all lawful
business for which corporations may be incorporated under the laws of the laws
of the State of Florida.
ARTICLE III
The maximum number of shares of stock that this corporation is
authorized to have outstanding at any one time is two hundred (200) shares of
common stock at One Dollar ($1.00) par value. Said capital stock shall be
fully paid and nonassessable, which shall be equal and uniform in all respects
but subject to all restrictions and conditions of the by-laws of the
corporation pertaining hereto, and shall be payable in lawful money of the
United States, or in property, labor, or in services at a just valuation to be
fixed by the stockholders at a meeting duly convened and held. The amount of
capital with which the corporation shall begin shall be the sum of TWO HUNDRED
AND NO/100 ($200.00) DOLLARS.
ARTICLE IV
The transferability of any of the shares of stock in this corporation
may be restricted by any shareholders agreement entered into by all of the
holders of any share or shares of the
stock of this corporation at the time the stockholders agreement is executed.
ARTICLE V
The term for which this corporation shall exist shall be perpetual
and the business of the corporation shall be conducted, carried on, and
managed by the officers of this corporation and a Board of Directors composed
of one or more members, which number may be altered from time to time by the
by-laws of this corporation within the time limitations prescribed by the law.
The officers of this corporation shall be a President, Vice-President,
Secretary, Treasurer, and any other officer as to the Board of Directors may
seem expedient. Any two or more offices may be held by the same person.
ARTICLE VI
The names and addresses of the Directors constituting the initial
Board of Directors are as follows:
Name Address Office
- ---- ------- ------
John Staluppi 205 Sunrise Avenue Director, President,
West Islip, NY 11795 Secretary
ARTICLE VII
The name and street address of the corporation's initial registered
agent is:
Douglas E. Thompson
2345 Okeechobee Blvd.
West Palm Beach, FL 33409
ARTICLE VIII
The name and address of the incorporator is as follows:
John Staluppi 205 Sunrise Avenue
West Islip, NY 11795
-2-
ARTICLE IX
No contract, act or transaction of this corporation with any person
or persons, firm, or other corporation, in the absence of fraud or wrongdoing,
shall be affected or invalidated by the fact that any director of this
corporation is a party to or interested in such contract, act, or transaction,
or in any way connected with such person or persons, firm, or corporation.
Each and every person who may become a director of this corporation is hereby
relieved from any liability that might otherwise exist from thus contracting
with this corporation for the benefit of himself or herself or any other firm,
association, or corporation in which he or she may in any way be interested.
Any director of this corporation may vote upon any contract or other
transaction between the corporation and any subsidiary or controlled company
without regard to the fact that he or she is also a director of such
subsidiary or controlled company.
ARTICLE X
These Articles of Incorporation may be amended, changed, altered or
repealed in the manner now or hereafter prescribed by the Florida Statutes and
all rights conferred upon stockholders herein are granted subject to this
reservation.
ARTICLE XI
This corporation shall commence its existence on the date the charter
for this corporation is approved by the Secretary of State.
Witness my hand and seal this 1st day of December 1989.
/s/ John Staluppi
---------------------
John Staluppi
-3-
I hereby accept appointment as Registered Agent.
Witness my hand and seal this 1st day of December 1989.
/s/ Douglas E. Thompson
--------------------------
Douglas E. Thompson
STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH )
I HEREBY CERTIFY that on this day before me, a Notary
Public, duly authorized to take acknowledgments, personally appeared John
Staluppi, to me known to be the person described as subscriber to the
foregoing Articles of Incorporation and who executed the same, and
acknowledged before me that he subscribed to these Articles of Incorporation.
WITNESS my hand and official seal in the County and State
named above this 1st day of December 1989.
/s/
----------------------------------
NOTARY PUBLIC, STATE OF FLORIDA
AT LARGE
My commission Expires:
STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH )
I HEREBY CERTIFY that on this day before me, a Notary
Public, duly authorized to take acknowledgments, personally appeared Douglas
E. Thompson, to me known to be the person described as Registered Agent of the
above Corporation and who executed the same, and acknowledged before me that
he accepted the office of Registered Agent.
WITNESS my hand and official seal in the County and State
named above this 1st day of December 1989.
/s/
----------------------------------
NOTARY PUBLIC, STATE OF FLORIDA
AT LARGE
My Commission Expires:
ART2. INC./1A
EX-3.114
AUTO MALL PAYROLL SERVICES, INC.
CORPORATE BYLAWS
ARTICLE I. MEETINGS OF SHAREHOLDERS
Section 1. Annual Meeting. The annual shareholder meeting of the above
named corporation will be held on the 1st Monday of January, of each year or at
such other time and place as designated by the Board of Directors of the above
named corporation provided that if said day falls on a Sunday or legal holiday,
then the meeting will be held on the first business day thereafter. Business
transacted at said meeting will include the election of directors of the above
named corporation.
Section 2. Special Meetings. Special meetings of the shareholders will
be held when directed by the President, Board of Directors, or the holders of
not less than 10 percent of all the shares entitled to be cast on any issue
proposed to be considered at the proposed special meeting; provided that said
persons sign, date and deliver to the above named corporation one or more
written demands for the meeting describing the purposes(s) for which it is to
be held. A meeting requested by shareholders of the above named corporation
will be called for a date not less than 10 nor more than 60 days after the
request is made, unless the shareholders requesting the meeting designate a
later date. The call for the meeting will be issued by the Secretary, unless
the President, Board of Directors or shareholders requesting the meeting
designate another person to do so.
Section 3. Place. Meetings of shareholders will be held at the
principal place of business of the above named corporation or at such other
place as is designated by the Board of Directors.
Section 4. Record Date and List of Shareholders. The Board of
Directors of the above named corporation shall fix the record date; however, in
no event may a record date fixed by the Board of Directors be a date prior to
the date on which the resolution fixing the record date is adopted.
After fixing a record date for a meeting, the Secretary shall prepare
an alphabetical list of the names of all the above named corporation's
shareholders who are entitled to notice of a shareholders' meeting, arranged by
voting group with the address of and the number and class and series, if any,
of shares held by each. Said list shall be available for inspection in
accordance with Florida Law.
Section 5. Notice. Written notice stating the place, day and hour of
the meeting, and the purpose(s) for which said special meeting is called, will
be delivered not less than 10 nor more than 60 days before the meeting, either
personally or by first class mail, by or at the direction of the President, the
1 of 11
Secretary or the officer or persons calling the meeting to each shareholder of
record entitled to vote at such meeting. If mailed, such notice will be deemed
to be effective when deposited in the United States mail and addressed to the
shareholder at the shareholder's address as it appears on the stock transfer
books of the above named corporation, with postage thereon prepaid.
The above named corporation shall notify each shareholder, entitled to
a vote at the meeting, of the date, time and place of each annual and special
shareholders' meeting no fewer than 10 or more than 60 days before the meeting
date. Notice of a special meeting shall describe the purpose(s) for which the
meeting is called. A shareholder may waive any notice required hereunder either
before or after the date and time stated in the notice; however, the waiver
must be in writing, signed by the shareholder entitled to the notice and be
delivered to the above named corporation for inclusion in the minutes or filing
in the corporate records.
Section 6. Notice of Adjourned Meeting. When a meeting is adjourned to
another time or place, it will not be necessary to give any notice of the
adjourned meeting provided that the time and place to which the meeting is
adjourned are announced at the meeting at which the adjournment is taken. At
such an adjourned meeting, any business may be transacted that might have been
transacted on the original date of the meeting. If, however, a new record date
for the adjourned meeting is made or is required, then, a notice of the
adjourned meeting will be given on the new record date as provided in this
Article to each shareholder of record entitled to notice of such meeting.
Section 7. Shareholder Quorum and Voting. A majority of the shares
entitled to vote, represented in person or by proxy, will constitute a quorum
at a meeting of shareholders.
If a quorum, as herein defined, is present, the affirmative vote of a
majority of the shares represented at the meeting and entitled to vote on the
subject matter thereof will be the act of the shareholders unless otherwise
provided by law.
Section 8. Voting of Shares. Each outstanding share will be entitled
to one vote on each matter submitted to a vote at a meeting of shareholders.
Section 9. Proxies. A shareholder may vote either in person or by
proxy provided that any and all proxies are executed in writing by the
shareholder or his duly authorized attorney-in-fact. No proxy will be valid
after the duration of 11 months from the date thereof unless otherwise provided
in the proxy.
Section 10. Action by Shareholders Without a Meeting. Any action
required or permitted by law, these bylaws, or the Articles of Incorporation of
the above named corporation to be taken at any annual or special meeting of
shareholders may be
2 of 11
taken without a meeting, without prior notice and without a vote, provided that
the action is taken by the holders of outstanding stock of each voting group
entitled to vote thereon having not less than the minimum number of votes with
respect to each voting group that would be necessary to authorize or take such
action at a meeting at which all voting groups and shares entitled to vote
thereon were present and voted, as provided by law. The foregoing actions(s)
shall be evidenced by written consents describing the action taken, dated and
signed by approving shareholders having the requisite number of votes of each
voting group entitled to vote thereon and delivered to the above named
corporation in accordance with Florida Law. Within 10 days after obtaining such
authorization by written consent, notice shall be given to those shareholders
who have not consented in writing or who are not entitled to vote. Said notice
shall fairly summarize the material features of the authorized action and if
the action requires the providing of dissenters' rights, said notice will
comply with the disclosure requirements pertaining to dissenters' rights of
Florida Law.
ARTICLE II. DIRECTORS
Section 1. Function. All corporate powers, business, and affairs will
be exercised, managed and directed under the authority of the Board of
Directors.
Section 2. Qualification. Directors must be natural persons of 18
years of age or older but need not be residents of this state and need not be
shareholders of the above named corporation.
Section 3. Compensation. The Board of Directors will have authority to
fix the compensation for directors of the above named corporation.
Section 4. Presumption of Assent. A director of the above named
corporation who is present at a meeting of the Board of Directors at which
action on any corporate matter is taken will be presumed to have assented to
the action taken unless such director votes against such action or abstains
from voting in respect thereto because of an asserted conflict of interest.
Section 5. Number. The above named corporation will have 1 to 3
directors .
Section 6. Election and Term. Each person named in the Articles of
Incorporation as a member of the initial Board of Directors will hold office
until said directors will have been qualified and elected at the first annual
meeting of shareholders, or until said directors earlier resignation, removal
from office or death.
3 of 11
At the first annual meeting of shareholders and at each annual meeting
thereafter, the shareholders will elect directors to hold office until the next
annual meeting. Each director will hold office for a term for which said
director is elected until said director's successor will have been qualified
and elected, said director's prior resignation, said director's removal from
office or said director's death.
Section 7. Vacancies. Any vacancy occurring in the Board of Directors
will be filled by the affirmative vote of a majority of the shareholders or of
the remaining directors even though less than a quorum of the Board of
Directors. A director elected to fill a vacancy will hold office only until the
next election of directors by the shareholders.
Section 8. Removal and Resignation of Directors. At a meeting of
shareholders called expressly for that purpose, any director or the entire
Board of Directors may be removed, with or without cause, by a vote of the
holders of a majority of the shares then entitled to vote at an election of
directors.
A director may resign at any time by delivering written notice to the
Board of Directors or its chairman or to the above named corporation by and
through one of its officers. Such a resignation is effective when the notice is
delivered unless a later effective date is specified in said notice.
Section 9. Quorum and Voting. A majority of the number of directors
fixed by these Bylaws shall constitute a quorum for the transaction of
business. The act of a majority of the directors present at a meeting at which
a quorum is present will be the act of the Board of Directors.
Section 10. Executive and other Committees. A resolution, adopted by a
majority of the full Board of Directors, may designate from among its members
an executive committee and/or other committees which will have and may exercise
all the authority of the Board of Directors to the extent provided in such
resolution, except as is provided by law. Each committee must have two or more
members who serve at the pleasure of the Board of Directors. The board may, by
resolution adopted by a majority of the full Board of Directors, designate one
or more directors as alternate members of any such committee who may act in the
place and instead of any absent member or members at any meeting of such
committee.
Section 11. Place of Meeting. Special or regular meetings of the Board
of Directors will be held within or without the State of Florida.
Section 12. Notice, Time and Call of Meetings. Regular meetings of the
Board of Directors will be held without notice on such dates as are designated
by the Board of Directors. Written notice of the time and place of special
meetings of the Board of
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Directors will be given to each director by either personal delivery, telegram
or cablegram at least two (2) days before the meeting or by notice mailed to
the director at least five (5) days before the meeting.
Notice of a meeting of the Board of Directors need not be given to any
director who signs a waiver of notice either before or after the meeting.
Attendance of a director at a meeting will constitute a waiver of notice of
such meeting and waiver of any and all objections to the place of the meeting,
the time of the meeting, or the manner in which it has been called or convened,
except when a director states, at the beginning of the meeting, any objection
to the transaction of business because the meeting is not lawfully called or
convened.
Neither the business to be transacted nor the purpose of, regular or
special meetings of the Board of Directors need be specified in the notice or
waiver of notice of such meeting.
A majority of the directors present, whether or not a quorum exists,
may adjourn any meeting of the Board of Directors to another time and place.
Notice of any such adjourned meeting will be given to the directors who were
not present at the time of the adjournment.
Meetings of the Board of Directors may be called by the Chairman of
the Board, the President of the above named corporation or any two directors.
Members of the Board of Directors may participate in a meeting of such
board by means of a conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other at
the same time. Participation by such means shall constitute presence in person
at a meeting.
Section 13. Action Without a Meeting. Any action required to be taken
at a meeting of the Board of Directors, or any action which may be taken at a
meeting of the Board of Directors or a committee thereof, may be taken without
a meeting if a consent in writing, setting forth the action to be so taken,
signed by all the directors, or all the members of the committee, as the case
may be, is filed in the minutes of the proceedings of the board or of the
committee. Such consent will have the same effect as a unanimous vote.
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ARTICLE III. OFFICERS
Section 1. Officers. The officers of the above named corporation will
consist of a president, a vice president, a secretary and a treasurer, each of
whom will be elected by the Board of Directors. Such other officers and
assistant officers and agents as may be deemed necessary may be elected or
appointed by the Board of Directors from time to time. Any two or more offices
may be held by the same person.
Section 2. Duties. The officers of the above named corporation will
have the following duties:
The President will be the chief executive officer of the above named
corporation, who generally and actively manages the business and affairs of the
above named corporation subject to the directions of the Board of Directors.
Said officer will preside at all meetings of the shareholders and Board of
Directors.
The Vice President will, in the event of the absence or inability of
the President to exercise his office, become acting president of the
organization with all the rights, privileges and powers as if said person had
been duly elected president.
The Secretary will have custody of, and maintain all of the corporate
records except the financial records. Furthermore, said person will record the
minutes of all meetings of the shareholders and Board of Directors, send all
notices of meetings and perform such other duties as may be prescribed by the
Board of Directors or the President. Furthermore, said officer shall be
responsible for authenticating records of the above named corporation.
The Treasurer shall retain custody of all corporate funds and
financial records, maintain full and accurate accounts of receipts and
disbursements and render accounts thereof at the annual meetings of
shareholders and whenever else required by the Board of Directors or the
President, and perform such other duties as may be prescribed by the Board of
Directors or the President.
Section 3. Removal and Resignation of Officers. An officer or agent
elected or appointed by the Board of Directors may be removed by the Board of
Directors whenever in the Board's judgment the best interests of the above
named corporation will be served thereby.
Any officer may resign at any time by delivering notice to the above
named corporation. Said resignation is effective upon delivery unless the
notice specifies a later effective date.
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Any vacancy in any office may be filled by the Board of Directors.
ARTICLE IV. STOCK CERTIFICATES
Section 1. Issuance. Every holder of share(s) in the above named
corporation will be entitled to have a certificate representing all share(s) to
which he is holder. No certificate representing share(s) will be issued until
such share(s) is/are fully paid.
Section 2. Form. Certificates representing share(s) in the above named
corporation will be signed by the President or Vice President and the Secretary
or an Assistant Secretary and will be sealed with the seal of the above named
corporation.
Section 3. Transfer of Stock. The above named corporation will
register a stock certificate presented for transfer if the certificate is
properly endorsed by the holder of record or by his duly authorized agent.
Section 4. Lost, Stolen, or Destroyed Certificates. If a shareholder
claims that a stock certificate representing shares issued and recorded by the
above named corporation has been lost or destroyed, a new certificate will be
issued to said shareholder, provided that said shareholder presents an
affidavit claiming the certificate of stock to be lost, stolen or destroyed. At
the discretion of the Board of Directors, said shareholder may be required to
deposit a bond or other indemnity in such amount and with such sureties, if
any, as the board may require.
ARTICLE V. BOOKS AND RECORDS
Section 1. Books and Records. The above named corporation shall keep
as permanent records minutes of all meetings of its shareholders and Board of
Directors, a record of all actions taken by the shareholders or Board of
Directors without a meeting, and a record of all actions taken by a committee
of the Board of Directors in place of the Board of Directors on behalf of the
above named corporation. Furthermore, the above named corporation shall
maintain accurate accounting records. Furthermore, the above named corporation
shall maintain the following:
(i) a record of its shareholders in a form that permits
preparation of a list of the names and addresses of all shareholders
in alphabetical order by class of shares showing the number and series
of shares held by each;
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(ii) The above named corporation's Articles or Restated Articles
of Incorporation and all amendments thereto currently in effect;
(iii) The above named corporation's Bylaws or Restated Bylaws and
all amendments thereto currently in effect;
(iv) Resolutions adopted by the Board of Directors creating one
or more classes or series of shares and fixing their relative rights,
preferences and limitations if shares issued pursuant to those
resolutions are outstanding;
(v) The minutes of all shareholders' meetings and records of all
actions taken by shareholders without a meeting for the past 3 years;
(vi) written communications to all shareholders generally or all
shareholders of a class or series within the past 3 years including
the financial statements furnished for the past 3 years to
shareholders as may be required under Florida Law;
(vii) A list of the names and business street addresses of the
above named corporation's current directors and officers; and
(viii) A copy of the above named corporation's most recent annual
report delivered to the Department of State.
Any books, records and minutes may be in written form or in any other
form capable of being converted into written form.
Section 2. Shareholder's Inspection Rights. A shareholder of the above
named corporation (including a beneficial owner whose shares are held in a
voting trust or a nominee on behalf of a beneficial owner) may inspect and
copy, during regular business hours at the above named corporation's principal
office, any of the corporate records required to be kept pursuant to Section 1,
of this Article of these Bylaws, if said shareholder gives the above named
corporation written notice of such demand at least 5 business days before the
date on which the shareholder wishes to inspect and copy. The foregoing right
of inspection is subject however to such other restrictions as are applicable
under Florida Law, including, but not limited to, the inspection of certain
records being permitted only if the demand for inspection is made in good faith
and for a proper purpose (as well as the shareholder describing with reasonable
particularity the purpose and records desired to be inspected and such records
are directly connected with the purpose).
Section 3. Financial Information. Unless modified by resolution of the
shareholders within 120 days of the close of each fiscal year, the above named
corporation shall furnish the shareholders annual financial statements which
may be
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consolidated or combined statements of the above named corporation and one or
more of its subsidiaries as appropriate, that include a balance sheet as of the
end of the fiscal year, an income statement for that year, and a statement of
cash flow for that year. If financial statements are prepared on the basis of
generally accepted accounting principles, the annual financial statements must
also be prepared on that basis. If the annual financial statements are reported
on by a public accountant, said accountant's report shall accompany said
statements. If said annual financial statements are not reported on by a public
accountant, then the statements shall be accompanied by a statement of the
president or the person responsible for the above named corporation's
accounting records (a) stating his reasonable belief whether the statements
were prepared on the basis of generally accepted accounting principles and if
not, describing the basis of preparation; and (b) describing any respects in
which the statements were not prepared on a basis of accounting consistent with
the statements prepared for the preceding year. The annual financial statements
shall be mailed to each shareholder of the above named corporation within 120
days after the close of each fiscal year or within such additional time as is
reasonably necessary to enable the above named corporation to prepare same, if,
for reasons beyond the above named corporation's control, said annual financial
statement cannot be prepared within the prescribed period.
Section 4. Other Reports to Shareholders. The above named corporation
shall report any indemnification or advanced expenses to any director, officer,
employee, or agent (for indemnification relating to litigation or threatened
litigation) in writing to the shareholders with or before the notice of the
next shareholders' meeting, or prior to such meeting if the indemnification or
advance occurs after the giving of such notice but prior to the time such
meeting is held, which report shall include a statement specifying the persons
paid, the amounts paid, and the nature and status, at the time of such payment,
of the litigation or threatened litigation.
Additionally, if the corporation issues or authorizes the issuance of
shares for promises to render services in the future, the above named
corporation shall report in writing to the shareholders the number of shares
authorized or issued and the consideration received by the above named
corporation, with or before the notice of the next shareholders' meeting.
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ARTICLE VI. DIVIDENDS
The Board of Directors of the above named corporation may, from time
to time declare dividends on its shares in cash, property or its own shares,
except when the above named corporation is insolvent or when the payment
thereof would render the above named corporation insolvent, subject to Florida
Law.
ARTICLE VII. CORPORATE SEAL
The Board of Directors will provide a corporate seal which will be in
circular form embossing in nature and stating "Corporate Seal", "Florida", year
of above named incorporation and name of said above named corporation.
ARTICLE VIII. AMENDMENT
These Bylaws may be altered, amended or repealed, and altered, amended
or new Bylaws may be adopted by a majority vote of the full Board of Directors.
ARTICLE IX. CORPORATE INDEMNIFICATION PLAN
The above named corporation shall indemnify any person:
(1) 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 (other than an action by, or in the
right of, the above named corporation) by reason of the fact that he is or was
a director, officer, employee, or agent of the above named corporation or is or
was serving at the request of the above named corporation as a director,
officer, employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise against such costs and expenses, and to the extent
and in the manner provided under Florida Law.
(2) Who was or is a party, or is threatened to be made a party, to any
threatened, pending, or completed action or suit by or in the right of the
above named corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee, or agent of the above
named corporation or is or was serving at the request of the above named
corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise against such costs and
expenses, and to the extent and in the manner provided under Florida Law.
The extent, amount, and eligibility for the indemnification provided
herein will be made by the Board of Directors. Said
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determinations will be made by a majority vote to a quorum consisting of
directors who were not parties to such action, suit, or proceeding or by the
shareholders by a majority vote of a quorum consisting of shareholders who were
not parties to such action, suit, or proceeding.
The above named corporation will have the power to make further
indemnification as provided under Florida Law except to indemnify any person
against gross negligence or willful misconduct.
The above named corporation is further authorized to purchase and
maintain insurance for indemnification of any person as provided herein and to
the extent provided under Florida Law.
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Exhibit 3.115
ARTICLES OF INCORPORATION
OF
AUTO MALL STORAGE, INC.
The undersigned subscribes to these Articles of Incorporation to form a
corporation for profit under the laws of the State of Florida.
ARTICLE I
The name of the corporation shall be:
AUTO MALL STORAGE, INC.
and its principal office for the conduct of business shall be:
551 South Military Trail
West Palm Beach, Florida 33415
The Board of Directors may from time to time move the principal office to any
other address in Florida.
ARTICLE II
The general nature of the business to be conducted by this corporation
is to engage in any activities or business permitted under the laws of the
United States and Florida; in the transaction of any or all lawful business
for which corporations may be incorporated under the laws of the laws of the
State of Florida.
ARTICLE III
The maximum number of shares of stock that this corporation is
authorized to have outstanding at any one time is two hundred (200) shares of
common stock at One Dollar ($1.00) par value. Said capital stock shall be
fully paid and nonassessable, which shall be equal and uniform in all
respects but subject to all restrictions and conditions of the by-laws of the
corporation pertaining hereto, and shall be payable in lawful money of the
United States, or in property, labor, or in services at a just valuation to
be fixed by the stockholders at a meeting dully convened and held. The
amount of capital with which the corporation shall begin shall be the sum of
Two Hundred and No/100 Dollars.
ARTICLE IV
The transferability of any of the shares of stock in this corporation
may be restricted by any shareholders agreement entered into by all of the
holders of any share or shares of the stock of this corporation at the time
the stockholders agreement is executed.
ARTICLE V
The term for which this corporation shall exist shall be perpetual and
the business of the corporation shall be conducted, carried on, and managed
by the officers of this corporation and a Board of Directors composed of one
or more members, which number may be altered from time to time by the by-laws
of this corporation within the time limitations prescribed by the law. The
officers of this corporation shall be a President, Vice-President, Secretary,
Treasurer, and any other officer as to the Board of Directors may seem
expedient. Any two or more offices may be held by the same person.
ARTICLE VI
The name and addresses of the Directors constituting the initial Board
of Directors are as follows:
Name Address Office
John Stalupp: 551 South Military Trail Director/President/
West Palm Beach, FL 33415 Secretary
ARTICLE VII
The name and street address of the corporation's initial registered
agent is:
Douglas E. Thompson
645 South Military Trail, Suite 6
West Palm Beach, Florida 33415
ARTICLE VIII
The name and address of the incorporator is as follows:
John Staluppi 551 South Military Trail
West Palm Beach, Florida 33415
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ARTICLE IX
No contract, act or transaction of this corporation with any person or
persons, firm, or other corporation, in the absence of fraud or wrongdoing,
shall be affected or invalidated by the fact that any director of this
corporation is a party to or interested in such contract, act, or
transaction, or in any way connected with such person or persons, firm, or
corporation. Each and every person who may become a director of this
corporation is hereby relieved from any liability that might otherwise exist
from thus contracting with this corporation for the benefit of himself or
herself or any other firm, association, or corporation in which he or she may
in any way be interested. Any director of this corporation may vote upon any
contract or other transaction between the corporation and any subsidiary or
controlled company without regard to the fact that he or she is also a
director of such subsidiary or controlled company.
ARTICLE X
These Articles of Incorporation may be amended, changed, altered or
repealed in the manner now or hereafter prescribed by the Florida Statutes
and all rights conferred upon stockholders herein are granted subject to this
reservation.
ARTICLE XI
This corporation shall commence its existence on the date the charter
for this corporation is approved by the Secretary of State.
Witness my hand and seal this 7th of February 1995
/s/ John Staluppi
John Staluppi, Incoporator
I hereby accept appointment as Registered Agent.
Witness my hand and seal this 8th day of February 1995.
/s/ Douglas E. Thompson
Douglas E. Thompson
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STATE OF FLORIDA )
) ss:
COUNTY OF PALM BEACH )
I HEREBY CERTIFY THAT ON THIS DAY BEFORE ME, a Notary Public, duly
authorized to take acknowledgements, personally appeared John Staluppi, to me
known to be the person described as subscriber to the foregoing Articles of
incorporation and who executed the same, and acknowledged before me that he
subscribed to these Articles of Incorporation.
WITNESS my hand and official seal in the County and State named above
this 7th day of February 1995.
/s/Douglas E.Thompson
NOTARY PUBLIC, STATE OF FLORIDA
AT LARGE
My Commission Expires:
STATE OF FLORIDA )
) ss:
COUNTY OF PALM BEACH )
I HEREBY CERTIFY that on this day before me, a Notary Public, duly
authorized to take acknowledgments, personally appeared Douglas E. Thompson,
to me know to be the person described as Registered Agent of the above
Corporation and who executed the same, and acknowledged before me that he
accepted the office of Registered Agent.
WITNESS my hand and official seal in the County and State named above
this 8th day of February 1995.
/s/Dana E. Merritt
NOTARY PUBLIC, STATE OF FLORIDA
AT LARGE
My Commission Expires:
Exhibit 3.117
ARTICLES OF INCORPORATION
OF
STALUPPI CHRYSLER-PLYMOUTH, INC.
The undersigned subscribe to these Articles of Incorporation to
form a corporation for profit under the laws of the State of Florida.
ARTICLE I
The name of the corporation shall be:
STALUPPI CHRYSLER-PLYMOUTH, INC.
and its principal office for the conduct of business is:
2707 Okeechobee Road, West Palm Beach, Florida 33401. The Board of
Directors may from time to time move the principal office to any other
address in Florida.
ARTICLE II
The general nature of the business to be conducted by this
corporation is to engage in any activities or business permitted under the
laws of the United States and Florida; in the transaction of any or all lawful
business for which corporations may be incorporated under the laws of the
State of Florida.
ARTICLE III
The maximum number of shares of stock that this corporation is
authorized to have outstanding at any one time is five hundred (500) shares of
common stock at One Dollar ($1.00)
par value. Said capital stock shall be fully paid and nonassessable, which
shall be equal and uniform in all respects but subject to all restrictions and
conditions of the by-laws of the corporation pertaining hereto, and shall be
payable in lawful money of the United States, or in property, labor, or in
services at a just valuation to be fixed by the stockholders at a meeting duly
convened and held. The amount of capital with which the corporation shall
begin shall be the sum of FIVE HUNDRED AND NO/100 ($500.00) DOLLARS.
ARTICLE IV
The transferability of any of the shares of stock in this
corporation may be restricted by any shareholders agreement entered into by
all of the holders of any share or shares of the stock of this corporation at
the time the stockholders agreement is executed.
ARTICLE V
In the event of an issue of non-issued capital stock or of new
stock, should the stock be increased, the existing stockholders at the time of
such issue shall have the right to subscribe for and to purchase such stock so
issued in a number of shares proportionate to the amount owed at the time of
said subsequent issue. In the event that one or more of the stockholders shall
fail or refuse to exercise their option, his or their right to subscribe shall
inure to the benefit of the other stockholders. Written notice of intention to
issue non-
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issued capital stock or new stock shall be given by the corporation to all
stockholders and stockholders shall notify the corporation of their intention
to subscribe within thirty (30) days after such notice.
ARTICLE VI
The term for which this corporation shall exist shall be perpetual
and the business of the corporation shall be conducted, carried on, and
managed by the officers of this corporation and a Board of Directors composed
of one or more members, which number may be altered from time to time by the
by-laws of this corporation within the limitations prescribed by law. The
officers of this corporation shall be a President, Vice President and
Secretary, and any other officer as to the Board of Directors may seem
expedient. Any two or more officers may be held by the same person.
ARTICLE VII
The names and addresses of the Directors constituting the initial
Board of Directors are as follows:
Name Address Office
JOHN STALUPPI 151 Wagstaff Lane President and
West Islip, New York 11795 Secretary
VINCENT R. MAIONE 1435 Sykes Creek Road Treasurer
Merritt Island, Florida
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ARTICLE VIII
The name and street address of the corporation's initial
registered agent is:
JOS. D. FARISH, JR., ESQ.
316 First Street, Denco Building
West Palm Beach, Florida 33401
ARTICLE IX
The name and address of the incorporator is as follows:
Name Address
---- -------
JOHN STALUPPI 151 Wagstaff Lane
West Islip, New York 11795
ARTICLE X
No contract, act or transaction of this corporation with any
person or persons, firm or other corporation, in the absence of fraud or
wrongdoing, shall be affected or invalidated by the fact that any director of
this corporation is a party to or interested in such contract, act, or
transaction, or in any way connected with such person or persons, firms or
corporation. Each and every person who may become a director of this
corporation is hereby relieved from any liability that might otherwise exist
from thus contracting with this corporation for the benefit of himself or
herself or any other firm, association or corporation in which he or she may
in any way be interested. Any director of this corporation may vote upon any
contract or other transaction between the corporation and any subsidiary or
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controlled company without regard to the fact that he or she is also a
director of such subsidiary or controlled company.
ARTICLE XI
These Articles of Incorporation may be amended, changed, altered
or repealed in the manner now or hereafter prescribed by the Florida Statutes
and all rights conferred upon stockholders herein are granted subject to this
reservation.
ARTICLE XII
This corporation shall commence its existence on the date the
charter for this corporation is approved by the Secretary of State.
WITNESS my hand and seal this 22 day of Jan, 1986.
/s/JOHN STALUPPI
----------------
JOHN STALUPPI
-5-
AMENDMENT OF CERTIFICATE OF INCORPORATION
STALUPPI CHRYSLER-PLYMOUTH, INC.
WE, THE UNDERSIGNED, being the total number of directors and
shareholders of STALUPPI CHRYSLER-PLYMOUTH, INC., Palm Beach County, West Palm
Beach, Florida, do hereby state that it is our intention and desire that
Article I of the Certificate of Incorporation be amended to read:
ARTICLE I.
NAME
The name of this Corporation shall be FLORIDA
CHRYSLER-PLYMOUTH, INC. The principal place of business shall be
Palm Beach County, Florida, and the corporation shall maintain
such other branches and places of business in the State of Florida
or such other states as the directors may designate.
Dated at West Palm Beach, Palm Beach County, Florida, This 3rd day
of March, 1986.
/s/JOHN STALUPPI Director and owner of 250 shares
of 500 shares outstanding
STATEMENT OF CHANGE OF REGISTERED OFFICE
AND REGISTERED AGENT
To the Secretary of State of the State of Florida:
Pursuant to the provisions of Sections 607,034 and 607.037, Florida statutes,
the undersigned corporation, organized under the laws of the State of Florida,
submits the following statement for the purpose of changing its registered
office and registered agent in the State of Florida.
FIRST: The name of the Corporation is Florida Chrysler-Plymouth, Inc.
SECOND: The address of its present registered agent is 316 First Street,
Danco Bldg, West Palm Beach, Fl 33401.
THIRD: The address to which its registered agent is to be changed is
2301 Okeechobee Boulevard, Fl 33409.
FOURTH: The name of its present registered agent is Jos. D. Farish, Jr.
FIFTH: The name of its successor registered agent is Douglas E. Thompson.
SIXTH: The address of its registered office and the address of the
business office of its registered agent, as changed, will be
identical.
SEVENTH: Such change was authorized by resolution duly adopted by its
board of directors.
Dated September 14, 1987
Florida Chrysler-Plymouth, Inc.
by: /s/ John Staluppi
---------------------
John Staluppi, President
9/11/87
---------------------------------------
Date
/s/
---------------------------------------
Agent
9/14/87
---------------------------------------
Date
STATEMENT OF CHANGE OF REGISTERED OFFICE
To the Secretary of State of the State of Florida:
Pursuant to the provisions of Sections 607,034 and 607.037, Florida statutes,
the undersigned corporation, organized under the laws of the State of
Florida, submits the following statement for the purpose of changing its
registered office in the State of Florida.
FIRST: The name of the Corporation is Florida Chrysler-Plymouth, Inc.
SECOND: The address of its present registered agent is 2301 Okeechobee
Boulevard, West Palm Beach, Fl 33409.
THIRD: The address to which its registered agent is to be changed is
1937 Okeechobee Boulevard, West Palm Beach, Fl 33401.
FOURTH: The name of its present registered agent is Douglas E. Thompson.
FIFTH: The name of its registered office and the address of the business
office of its registered agent, as changed, will be identical.
SIXTH: Such change was authorized by resolution duly adopted by its
board of directors.
Dated January 26, 1988
Florida Chrysler-Plymouth, Inc.
by: /s/ John Staluppi
---------------------------------------
John Staluppi, President
1/26/88
---------------------------------------
Date
/s/
---------------------------------------
Agent
1/26/88
---------------------------------------
Date
EX-3.118
BYLAWS
OF
FLORDA CHRYSLER-PLYMOUTH, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS.
Section 1. Annual Meeting. The annual shareholder meeting of this
corporation will be held on the 1st Monday of January of each year or at such
other time and place designated by the Board of Directors of the corporation
provided that if said day falls on a Sunday or legal holiday, then the meeting
will be held on the first business day thereafter. Business transacted at said
meeting will include the election of directors of the corporation.
Section 2. Special Meetings. Special meetings of the shareholders
will be held when directed by the President, Board of Directors, or the
holders of not less than 10 percent of all the shares entitled to vote at the
meeting. A meeting requested by shareholders of the corporation will be called
for a date not less than 10 nor more than 60 days after the request is made,
unless the shareholders requesting the meeting designate a later date. The
call for the meeting will be issued by the Secretary, unless the President,
Board of Directors, or shareholders requesting the meeting will designate
another person to do so.
Section 3. Place. Meetings of shareholders will be held at the principal
place of business of the corporation or at such other place as is designated
by the Board of Directors.
Section 4. Notice. Written notice stating the place, day and hour of
the meeting and, in the case of a special meeting,
Page
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the purpose(s) for which said special meeting is called, will be delivered not
less than 10 nor more than 60 days before the meeting, either personally or by
first class mail, by or at the direction of the President, the Secretary or
the officer or persons calling the meeting to each shareholder of record
entitled to vote at such meeting. If mailed, such notice will be deemed to be
delivered when deposited in the United States mail and addressed to the
shareholder at his address as it appears on the stock transfer books of the
corporation, with postage thereon prepaid.
Section 5. Notice of Adjourned Meeting. When a meeting is adjourned
to another time or place, it will not be necessary to give any notice of the
adjourned meeting provided that the time and place to which the meeting is
adjourned are announced at the meeting at which the adjournment is taken. At
such an adjourned meeting any business may be transacted that might have been
transacted on the original date of the meeting. If, however, after the
adjournment, the Board of Directors fixes a new record date for the adjourned
meeting, a notice of the adjourned meeting will be given on the new record
date as provided in this Article to each shareholder of record entitled to
vote at such meeting.
Section 6. Shareholder Quorum and Voting. All of the shares entitled to
vote, represented in person or by proxy, will constitute a quorum at a meeting
of shareholders.
If a quorum, as herein defined, is present, the affirmative vote of
all of the shares represented at the meeting and entitled
Page
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to vote on the subject matter thereof will be the act of the shareholders
unless otherwise provided by law.
Section 7. Voting of Shares. Each outstanding share will be entitled to
one vote on each matter submitted to a vote at a meeting of shareholders.
Section 8. Proxies. A shareholder may vote either in person or by proxy
provided that any and all proxies are executed in writing by the shareholder
or his duly authorized attorney-in-fact. No proxy will be valid after the
duration of 11 months from the date thereof unless otherwise provided in the
proxy.
Section 9. Action by Shareholders Without a Meeting. Any action
required or permitted by law, these bylaws, or the Articles of Incorporation
of this corporation to be taken at any annual or special meeting of
shareholders may be taken without a meeting, without prior notice and without
a vote, provided that a written consent is filed setting forth the action so
taken, and signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted, as provided by law.
ARTICLE II. DIRECTORS
Section 1. Function. All corporate powers, business, and affairs will be
exercised, managed and directed under the authority of the Board of Directors.
Section 2. Qualification. Directors John Staluppi be residents of this
state and John Staluppi be shareholders of this corporation.
Page
III
Section 3. Compensation. John Staluppi will have authority to fix the
compensation for directors of this corporation.
Section 4. Presumption of Assent. A director of the corporation who is
present at a meeting of the Board of Directors at which action on any
corporate matter is taken will be presumed to have assented to the action
taken unless he votes against such action or abstains from voting in respect
thereto because of an asserted conflict of interest.
Section 5. Number. This corporation will have one director.
Section 6. Election and Term. Each person named in the Articles of
Incorporation as a member of the initial Board of Directors will hold office
until his successor will have been qualified and elected at the first annual
meeting of shareholders, or until said director's earlier resignation, removal
from office or death.
At the first annual meeting of shareholders and at each annual meeting
thereafter, the shareholders will elect directors to hold office until the
next annual meeting. Each director will hold office for a term for which he is
elected until his successor will have been qualified and elected, his prior
resignation, his removal from office or his death.
Section 7. Vacancies. Any vacancy occurring in the Board of Directors
will be filled by the affirmative vote of a majority of the remaining
directors though less than a quorum of the Board of Directors. A director
elected to fill a vacancy will hold
Page
IV
office only until the next election of directors by the shareholders.
Section 8. Removal of Directors. At a meeting of shareholders called
expressly for that purpose, any director or the entire Board of Directors may
be removed, with or without cause, by a vote of the holders of All of the
shares then entitled to vote at an election of directors.
Section 9. Quorum and Voting. All of the number of directors fixed by
these bylaws shall constitute a quorum for the transaction of business. The
act of all of the directors present at a meeting at which a quorum is present
will be the act of the Board of Directors. ---
Section 10. Executive and Other Committees. A resolution adopted by all
of the Board of Directors, may designate from among its members an executive
committee and/or other committee(s) which will have and may exercise all the
authority of the Board of Directors to the extent provided in such resolution,
except as is provided by law.
Section 11. Place of Meeting. Special or regular meetings of the Board of
Directors will be held written notice of the directors.
Section 12. Notice, Time and Call of Meetings. Regular meetings of the
Board of Directors will be held without notice on December 31st of each year.
Written notice of the time and place of special meetings of the Board of
Directors will be given to each director by either personal delivery, telegram
or cablegram
Page
V
at least two days before the meeting or by notice mailed to the director at
least two days before the meeting.
Notice of a meeting of the Board of Directors need not be given to any
director who signs a waiver of notice either before or after the meeting.
Attendance of a director at a meeting will constitute a waiver of notice of
such meeting and waiver of any and all objections to the place of the meeting,
the time of the meeting, or the manner in which it has been called or
convened, except when a director states, at the beginning of the meeting, any
objection to the transaction of business because the meeting is not lawfully
called or convened.
Neither the business to be transacted nor the purpose of, regular or
special meetings of the Board of Directors need be specified in the notice or
waiver of notice of such meeting.
A majority of the directors present, whether or not a quorum exists, may
adjourn any meeting of the Board of Directors to another time and place.
Notice of any such adjourned meeting will be given to the directors who were
not present at the time of the adjournment.
Meetings of the Board of Directors may be called by the chairman of the
board, the president of the corporation or any two directors.
Members of the Board of Directors may participate in a meeting of such
board by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other
at the same
Page
VI
time. Participation by such means shall constitute presence in person at a
meeting.
Section 13. Action Without a Meeting. Any action required to be taken at
a meeting of the Board of Directors, or any action which may be taken at a
meeting of the Board of Directors or a committee thereof, may be taken without
a meeting if a consent in writing, setting forth the action so to be taken,
signed by all the directors, or all the members of the committee, as the case
may be, is filed in the minutes of the proceedings of the board or of the
committee. Such consent will have the same effect as a unanimous vote.
ARTICLE III. OFFICERS
Section 1. Officers. The officers of this corporation will consist of a
president, a vice president, a secretary and a treasurer, each of whom will be
elected by the Board of Directors. Such other officers and assistant officers
and agents as may be deemed necessary may be elected or appointed by the Board
of Directors from time to time. Any two or more offices may be held by the
same person.
Section 2. Duties. The officers of this corporation will have the
following duties:
The President will be the chief executive officer of the corporation, who
generally and actively manages the business and affairs of the corporation
subject to the directions of the Board of Directors. He will preside at all
meetings of the shareholders and Board of Directors.
Page
VII
The Vice President will in the event of the absence or inability of
the President to exercise his office become acting president of the
organization with all the rights, privileges and powers as if he had been duly
elected president.
The Secretary will have custody of, and maintain all of the corporate
records except the financial records. Furthermore, he will record the minutes
of all meetings of the shareholders and Board of Directors, send all notices
of meetings and perform such other duties as may be prescribed by the Board of
Directors or the President.
The Treasurer shall retain custody of all corporate funds and
financial records, maintain full and accurate accounts of receipts and
disbursements and render accounts thereof at the annual meetings of
shareholders and whenever else required by the Board of Directors or the
President, and perform such other duties as may be prescribed by the Board of
Directors or the President.
Section 3. Removal of Officers. An officer or agent elected or appointed
by the Board of Directors may be removed by the Board of Directors whenever in
its judgment the best interests of the corporation will be served thereby. Any
vacancy in any office may be filled by the Board of Directors.
ARTICLE IV. STOCK CERTIFICATES
Section 1. Issuance. Every holder of share(s) in this corporation will be
entitled to have a certificate representing
Page
VIII
all share(s) to which he is holder. No certificate representing share(s) will
be issued until such share(s) is/are fully paid.
Section 2. Form. Certificates representing share(s) in this corporation
will be signed by the President or Vice President and the Secretary or an
Assistant Secretary and will be sealed with the seal of this corporation.
Section 3. Transfer of Stock. The corporation will register a stock
certificate presented for transfer if the certificate is properly endorsed by
the holder of record or by his duly authorized agent.
Section 4. Lost, Stolen, or Destroyed Certificates. If the
shareholder will claim to have lost or destroyed a stock certificate
representing shares issued and recorded by the corporation, a new certificate
will be issued upon said shareholder presenting an affidavit claiming the
certificate of stock to be lost, stolen or destroyed. At the discretion of the
Board of Directors, said shareholder will deposit a bond or other indemnity in
such amount and with such sureties, if any, as the board may require.
ARTICLE V. BOOKS AND RECORDS.
Section 1. Books and Records. This corporation will keep accurate and
complete books, records of account, and minutes of the proceedings of all
meetings of shareholders, Board of Directors, committees of directors.
This corporation will keep, at its registered office, principal place of
business or office of its attorneys a record
Page
IX
of all shareholders indicating the name, address and number of shares held by
each registered shareholder. Any books, records and minutes may be in written
form or in any other form capable of being converted into written form.
Section 2. Shareholder's Inspection Rights. Any person who has been or
presently is a holder of record of shares or of voting trust certificates at
least six months immediately preceding his demand or for at least five percent
of the outstanding shares of the corporation, upon written demand stating the
purpose thereof, will have the right to examine and to make extracts in person
or by agent or attorney, at any reasonable time(s), for any proper purpose,
the corporation's relevant books, records of accounts, minutes and records of
shareholders.
Section 3. Financial Information. Not later than four months after the
close of each fiscal year, this corporation will prepare a balance sheet
showing the financial condition of the corporation at the close of the fiscal
year, and a profit and loss statement showing the results of the operations of
the corporation during the fiscal year.
Upon the written request of any shareholder or holder of voting trust
certificates for shares of the corporation, the corporation will mail to each
shareholder or holder of voting trust certificates a copy of the most recent
such balance sheet and profit and loss statement.
The balance sheet and profit and loss statement will be filed in the
registered office of the corporation in this state,
Page
X
will be kept for at least five years, and will be subject to inspection during
business hours by any shareholder or holder of voting trust certificates, in
person or by agent.
ARTICLE VI. DIVIDENDS.
The Board of Directors of this corporation may, from time to time declare
dividends on its shares in cash, property or its own shares, except when the
corporation is insolvent or when the payment thereof would render the
corporation insolvent, subject to the provisions of the Florida Statutes.
ARTICLE VII. CORPORATE SEAL.
The Board of Directors will provide a corporate seal which will be in
circular form embossing in nature and stating "Corporate Seal", "Florida",
year of incorporation and name of said corporation.
ARTICLE VIII. AMENDMENT.
These bylaws may be altered, amended or repealed, and altered, amended or
new bylaws may be adopted by
ARTICLE IX. CORPORATE INDEMNIFICATION PLAN
The corporation shall indemnify any person:
(1) 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 (other than an action 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
Page
XI
venture, trust, or other enterprise against such costs and expenses, and to
the extent and in the manner provided in Florida Statute 607.014;
(2) 1Who was or is a party, or is threatened to be made a party, to any
threatened, pending, or completed action or suit by or in the right of the
corporation to procure a judgment in its favor 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 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
such costs and expenses, and to the extent and in the manner provided in
Florida Statute 607.014.
The extent, amount, and eligibility for the indemnification provided
herein will be made by the Board of Directors. Said determinations will be
made by a majority vote of a quorum consisting of directors who were not
parties to such action, suit, or proceeding or by the shareholders by a
majority vote of a quorum consisting of shareholders who were not parties to
such action, suit, or proceeding.
The corporation will have the power to make further indemnification as
provided in Florida Statute 607.014(6) except to indemnify any person against
gross negligence or willful misconduct.
The corporation is further authorized to purchase and maintain insurance
for indemnification of any person as provided
Page
XII
herein and to the extent provided in Florida Statutes 607.014(8) and
607.014(9).
Page
XIII
EXHIBIT 3.119
CERTIFICATE OF INCORPORATION
OF
J & S AUTO REFINISHING, LTD.
FILER:
ALAN RICHARDS
100 RING ROAD WEST
GARDEN CITY, NY 11530
CERTIFICATE OF INCORPORATION
OF
J & S AUTO REFINISHING, LTD.
Under Section 402 of the Business Corporation Law
The undersigned, a natural person of the age of eighteen years or over,
desiring to form a corporation pursuant to the provisions of the Business
Corporation Law of the State of New York, hereby certifies as follows:
FIRST: The name of the corporation is:
J & S AUTO REFINISHING, LTD.
SECOND: The purpose for which it is formed is as follows:
To engage in any lawful act or activity for which corporations may be
formed under the Business Corporation Law provided that the corporation is not
formed to engage in any act or activity which requires the consent or approval
of any state official, department, board agency or other body, without such
approval or consent first being obtained.
For the accomplishment of the aforesaid purposes, and in furtherance
thereof, the corporation shall have and may exercise all of the powers
conferred by the Business Corporation Law upon corporations formed thereunder,
subject to any limitations contained in Article 2 of said law or in accordance
with the provisions of any other statute of the State of New York.
THIRD: The office of the corporation in the State of New York is to
be located in the County of Suffolk.
FOURTH: The aggregate number of shares which the corporation shall
have the authority to issue is 200, no par value.
FIFTH: The secretary of the state is designated as agent of the
corporation upon whom process against the corporation may
-1-
be served, and the address to which the Secretary of State shall mail a copy
of any process against the corporation served upon him is: 655 Muncy Avenue,
W. Babylon, NY 11704.
SIXTH: A director of the corporation shall not be personally liable to
the corporation or its shareholders for damages for any breach of duty in such
capacity except for liability if a judgment or other final adjudication
adverse to a director establishes that his or her acts or omissions were in
bad faith or involved intentional misconduct or a knowing violation of law or
that the director personally gained in fact a financial profit or other
advantage to which he or she was not legally entitled or that the director's
acts violated Section 719 of the Business Corporation Law; or liability for
any act or omission prior to the adoption of this provision.
IN WITNESS WHEREOF, I hereunto sign my name and affirm that the
statements made herein are true under the penalties of perjury.
Dated: May 10, 1995
/s/ Scott J. Schuster
Scott J. Schuster, Incorporator
283 Washington Avenue
Albany, New York 12206
-2-
Ex-3.120
BY-LAWS
OF
J & S AUTO REFINISHING, LTD.
ARTICLE I. SHAREHOLDERS' MEETING
SECTION 1. ANNUAL MEETING.
The annual meeting of the shareholders shall be held within five
months after the close of the fiscal year of the Corporation, for the purpose
of electing directors, and transacting such other business as may properly come
before the meetings.
SECTION 2. AGENDA AT THE SHAREHOLDERS' ANNUAL MEETING.
(a) Calling the meeting to order;
(b) Roll call;
(c) Reading of the minutes of the last meeting;
(d) Reports of the Officers;
(e) Reports of the Committees;
(f) Election of the Directors;
(g) Adjournment
SECTION 3. SPECIAL MEETINGS.
Special meetings of the shareholders may be called at any time by the
Board of Directors or by the President or the Secretary at the written request
of the holders of fifty percent (50%) of the shares then outstanding and
entitled to vote thereat, or as otherwise required under the provisions of the
Business Corporation Law.
SECTION 4. PLACE OF MEETINGS.
All meetings of shareholders shall be held at the principal office of
the Corporation, or at such other places within or without the State of New
York as shall be designated in the notices or waivers of notice of such
meetings.
SECTION 5. NOTICE OF MEETINGS.
(a) Written notice of each meeting of shareholders, whether annual
or special, stating the time when and place where it is to be held, shall be
served either personally or by mail, not less than ten or more than fifty days
before the meeting,
1
upon each shareholder of record entitled to vote at such meeting, and to any
other shareholder to whom the giving of notice may be required by law. Notice
of a special meeting shall also state the purpose or purposes for which the
meeting is called, and shall indicate that it is being issued by, or at the
direction of, the person or persons calling the meeting. If, at any meeting,
action is proposed to be taken that would, if taken, entitle shareholders to
receive payment for their shares pursuant to the Business Corporation Law, the
notice of such meeting shall include a statement of that purpose and to that
effect. If mailed, such notice shall be directed to each such shareholder at
his address, as it appears on the records of the shareholders of the
Corporation, unless he shall have previously filed with the Secretary of the
Corporation a written request that notices intended for him be mailed to some
other address, in which case, it shall be mailed to the address designated in
such request.
(b) Notice of any meeting need not be given to any person who may
become a shareholder of record after the mailing of such notice and prior to
the meeting, or to any shareholder who attends such meeting, in person or by
proxy, or to any shareholder who, in person or by proxy, submits a signed
waiver of notice either before or after such meeting. Notice of any adjourned
meeting of shareholders need not be given, unless otherwise required by
statute.
SECTION 6. QUORUM OF SHAREHOLDERS:
(a) Except as otherwise provided herein, or by statute, or in the
Certificate of Incorporation (such Certificate and any amendments thereof being
hereinafter collectively referred to as the "Certificate of Incorporation"), at
all meetings of shareholders of the Corporation, the presence at the
commencement of such meetings in person or by proxy of shareholders holding of
record a majority of the total number of shares of the Corporation then issued
and outstanding and entitled to vote, shall be necessary and sufficient to
constitute a quorum for the transaction of any business. The withdrawal of any
shareholder after the commencement of a meeting shall have no effect on the
existence of a quorum, after a quorum has been established at such meeting.
(b) Despite the absence of a quorum at any annual or special meeting
of shareholders, the shareholders, by a majority of the votes cast by the
holders of shares entitled to vote thereon, may adjourn the meeting. At any
such adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as originally called
if a quorum had been present. However, if after the adjournment, the Board of
Directors fixes a new record date for the adjourned meeting, a notice of the
adjourned meeting shall be given to each shareholder of record on the new
record date.
2
SECTION 7. VOTING:
(a) Except as otherwise provided by statute or by the Certificate of
Incorporation, any corporate action, other than the election of directors to be
taken by vote of the shareholders, shall be authorized by a majority of votes
cast at a meeting of shareholders by the holders of shares entitled to vote
thereon. Election of directors shall be accomplished by a candidate receiving a
plurality of the votes cast at a shareholder's meeting by the shareholders
entitled to vote in the election.
(b) Except as otherwise provided by statute or by the Certificate of
Incorporation, at each meeting of shareholders, each holder of record of stock
of the Corporation entitled to vote thereat, shall be entitled to one vote for
each share of stock registered in his name on the books of the Corporation.
Upon demand of the shareholders holding ten percent (10%) in interest of the
shares, present in person or by proxy, and entitled to vote, and voting shall
be by ballot.
SECTION 8. PROXIES.
Each shareholder entitled to vote or to express consent or dissent
without a meeting, may do so by proxy; provided, however, that the instrument
authorizing such proxy to act shall have been executed in writing by the
shareholder himself, or by his attorney-in-fact thereunto duly authorized in
writing. No proxy shall be valid after the expiration of eleven months from the
date of its execution, unless the persons executing it shall have specified
therein the length of time it is to continue in force. Such instrument shall be
exhibited to the Secretary at the meeting and shall be filed with the records
of the Corporation.
SECTION 9. ACTION WITHOUT A MEETING
Any resolution in writing, signed by all of the shareholders entitled
to vote thereon, shall constitute action by such shareholders to the effect
therein expressed, with the same force and effect as if the same had been duly
passed by unanimous vote at a duly called meeting of shareholders, and such
resolution so signed shall be inserted in the minute book of the Corporation
under its proper date.
ARTICLE II. DIRECTORS
SECTION 1. NUMBER.
The affairs and the business of the Corporation, except as otherwise
provided in the Certificate of Incorporation, shall be managed by the Board of
Directors. The number of the directors of the Corporation shall be one (1)
unless and until
3
otherwise determined by vote of a majority of the entire Board of Directors.
The "entire Board" as used in this Article shall mean the total number of
directors which the Corporation would have if there were no vacancies. The
number of directors shall not be less than three, unless all of the outstanding
shares are owned beneficially and of record by less than three shareholders, in
which event the number of directors shall not be less than the number of
shareholders.
SECTION 2. HOW ELECTED.
At the annual meeting of shareholders, the persons duly elected by the
votes cast at the election held thereat shall become the directors for the
ensuing year.
SECTION 3. TERM OF OFFICE AND QUALIFICATIONS.
The term of office of each of the directors shall be until the next
annual meeting of shareholders and thereafter until a successor has been
elected and qualified. Each director shall be at least eighteen years of age.
SECTION 4. DUTIES OF DIRECTORS.
The Board of Directors shall have the control and general management
of the affairs and business of the Corporation unless otherwise provided in the
certificate of Incorporation. Such directors shall in all cases act as a Board
regularly convened by a majority, and they may adopt such rules and regulations
for the conduct of their meetings, and the management and business of the
Corporation as they may deem proper, not inconsistent with these By-Laws and
the Laws of the State of New York.
SECTION 5. DIRECTORS' MEETINGS.
Regular meetings of the Board of Directors shall be held immediately
following the annual meetings of the shareholders, and at such other times as
the Board of Directors may determine. Special meetings of the Board of
Directors may be called by the President at any time and must be called by the
President or the Secretary upon the written request of two directors. All
meetings, both regular and special, shall be held at the principal office of
the Corporation or at such other location, within or without the State of New
York, as the Board of Directors may from time to time determine.
SECTION 6. NOTICE OF MEETINGS.
Notice of the place, day and hour of every regular and special meeting
shall be given to each director by delivering the same to him personally or
sending the same to him by telegraph or leaving the same at his residence or
usual place of business, at least one (1) day before the meeting, or shall be
mailed to each
4
director, postage prepaid and addressed to him at the last known Post Office
address according to the records of the Corporation, at least three (3) days
before the meeting. No notice of any adjourned meeting of the Board of
Directors needs to be given other than by announcement at the meeting, subject
to the provisions of Section 7 of this Article.
SECTION 7. QUORUM OF DIRECTORS.
At any meeting of the Board of Directors, except as otherwise provided
by the Certificate of Incorporation, or by these By-Laws, a majority of the
Board of Directors shall constitute a quorum for the transaction of business.
However, a lesser number, when not constituting a quorum, may adjourn the
meeting until a quorum shall be present or represented.
SECTION 8. DIRECTOR AND COMMITTEE ACTION BY CONFERENCE TELEPHONE.
Any one or more members of the Board of Directors, or of any committee
thereof, may participate in a meeting of such Board or committee by means of a
conference telephone or similar equipment which allows all persons
participating in the meeting to hear each other at the same time. Participation
by such means shall constitute presence in person at such a meeting.
SECTION 9. VOTING.
Except as otherwise provided by statute, or by the Certificate of
Incorporation, or by these By-Laws, the affirmative vote of a majority of the
Directors present at any meeting of the Board of Directors at which a quorum is
present shall be necessary for the transaction of any item of business thereat.
Any resolution in writing, signed by all of the directors entitled to vote
thereon, shall constitute action by such directors to the effect therein
expressed, with the same force and effect as if the same had been duly passed
by unanimous vote at a duly called meeting of directors and such resolution so
signed shall be inserted in the minute book of the Corporation under its proper
date.
SECTION 10. VACANCIES.
Unless otherwise provided in the Certificate of Incorporation,
vacancies in the Board of Directors occurring between annual meetings of the
shareholders, other than vacancies due to the removal of directors without
cause, shall be filled for the unexpired portion of the term by a majority vote
of the remaining directors, even though less than a quorum exists. Vacancies
occurring in the Board by reason of the removal of directors without cause may
be filled only by vote of the shareholders. A director so elected shall hold
office for the unexpired term of his predecessor, and until his successor has
been elected and qualified.
5
SECTION 11. REMOVAL OF DIRECTORS.
Any or all of the directors may be removed, either with or without
cause at any time by a vote of the shareholders at any meeting called for such
purpose, and another director, or more than one may be elected by such
shareholders in the place of the director(s) so removed, to serve for the
remainder of the term.
SECTION 12. RESIGNATION.
Any director may resign at any time by giving written notice to the
Board of Directors, the President or the Secretary of the Corporation. Unless
otherwise specified in such written notice, such resignation shall take effect
upon receipt thereof by the Board of Directors or such officer, and the
acceptance of such resignation shall not be necessary to make it effective.
However, such resignation will not be effective to discharge any accrued
obligations or duties of a director.
SECTION 13. SALARY.
No stated salary shall be paid to directors, as such, for their
services, but by resignation of the Board of Directors a fixed sum and expenses
of attendance, if any, may be allowed for attendance at each regular or special
meeting of the Board, provided, that nothing herein contained shall be
construed to prevent any director from serving the Corporation in any other
capacity and receiving compensation therefor.
SECTION 14. CONTRACTS.
(a) No contract or other transaction between this Corporation and any
other Corporation shall be impaired, affected or invalidated, nor shall any
director be liable in any way by reason of the fact that any one or more of the
directors of this Corporation is or are interested in, or is a director or
officer, or are directors or officers of such other Corporation, provided that
such facts are disclosed or made known to the Board of Directors.
(b) Any director, personally and individually, may be interested in
any contract or transaction of this Corporation, and no director shall be
liable in any way by reason of such interest, provided that the fact of such
interest be disclosed or made known to the Board of Directors, and provided
that the Board of Directors shall authorize, approve or ratify such contract or
transaction by the vote (not counting the vote of any such director) of a
majority of a quorum, notwithstanding the presence of any such director at the
meeting at which such action is taken. Such director or directors may be
counted in determining the presence of a quorum at such meeting. This Section
shall not be construed to impair or invalidate or in any way affect any
contract or other transaction which would otherwise be valid
6
under the law (common, statutory or otherwise) applicable thereto.
(c) However, if there was no such disclosure or knowledge, or if the
vote of such interested director was necessary for the approval of such
contract or transaction at a meeting of the Board or committee at which it was
approved, the Corporation may avoid the contract or transaction, unless the
party or parties thereto shall establish affirmatively that the contract or
transaction was fair and reasonable as to the Corporation, at the time it was
approved by the Board, a committee or the shareholders.
SECTION 15. COMMITTEES.
The Board of Directors, by resolution adopted by a majority of the
entire Board, may designate from among its members an executive committee and
such other committees, and alternate members thereof, as they deem desirable,
each consisting of three or more members, with such powers and authority (to
the extent permitted by law) as may be provided in such resolution. Each such
committee shall serve at the pleasure of the Board of Directors.
7
ARTICLE III. OFFICERS
SECTION 1. NUMBER OF OFFICERS.
The officers of the Corporation shall consist of a President, a
Secretary, a Treasurer, and such other officers, including a Chairman of the
Board of Directors, and one or more Vice Presidents, as the Board of Directors
may from time to time deem advisable. Any officer other than the Chairman of
the Board of Directors may be, but is not required to be, a director of the
Corporation. Any officer may hold more than one office except the same person
may not hold the office of President and Secretary.
SECTION 2. ELECTION OF OFFICERS.
Officers of the Corporation shall be elected at the first meeting of
the Board of Directors. Thereafter, and unless otherwise provided in the
Certificate of Incorporation, the officers of the Corporation shall be elected
annually by the Board of Directors at its meeting held immediately after the
annual meeting of shareholders and shall hold office for one year and until
their successors have been duly elected and qualified.
SECTION 3. REMOVAL OF OFFICERS.
Any officer elected by the Board of Directors may be removed, with or
without cause, and a successor elected, by a vote of the Board of Directors.
Any officer elected by the shareholders may be removed, with or without cause,
and a successor elected, only by a vote of the shareholders. Additionally, an
officer elected by the shareholders may have his authority suspended, for
cause, by the Board of Directors.
SECTION 4. PRESIDENT.
The President shall be the chief executive officer of the Corporation
and shall have general charge of business, affairs and property thereof,
subject to direction of the Board of Directors, and shall have general
supervision over its officers and agents. He shall, if present, preside at all
meetings of the Board of Directors in the absence of a Chairman of the Board
and at all meetings of shareholders. He may do and perform all acts incident to
the office of President.
SECTION 5. VICE PRESIDENT.
In the absence of or inability of the President to act, the Vice
President shall perform the duties and exercise the powers of the President and
shall perform such other functions as the Board of Directors may from time to
time prescribe.
8
SECTION 6. SECRETARY.
The Secretary shall:
(a) Keep the minutes of the meetings of the Board of Directors and of
the shareholders in appropriate books.
(b) Give and serve all notice of all meetings of the Corporation.
(c) Be custodian of the records and of the seal of the Corporation and
affix the latter to such instruments or documents as may be authorized by the
Board of Directors.
(d) Keep the shareholder records in such a manner as to show at any
time the amount of shares, the manner and the time the same was paid for, the
names of the owners thereof alphabetically arranged and their respective places
of residence, or their Post Office addresses, the number of shares owned by
each of them and the time at which each person became owner, and keep such
shareholder records available daily during the usual business hours at the
office of the Corporation subject to the inspection of any person duly
authorized, as prescribed by law.
(e) Do and perform all other duties incident to the office of
Secretary.
SECTION 7. TREASURER.
The Treasurer shall:
(a) Have the care and custody of and be responsible for all of the
funds and securities of the Corporation and deposit of such funds in the name
and to the credit of the Corporation in such a bank and safe deposit vaults as
the directors may designate.
(b) Exhibit at all reasonable times his books and accounts to any
director or shareholder of the Corporation upon application at the office of
the Corporation during business hours.
(c) Render a statement of the condition of the finances of the
Corporation at each stated meeting of the Board of Directors if called upon to
do so, and a full report at the annual meeting of shareholders. He shall keep
at the office of the Corporation correct books of account of all of its
business and transactions and such books of account as the Board of Directors
may require. He shall do and perform all other duties incident to the office of
Treasurer.
(d) Give the Corporation security for the faithful performance of his
duties in such sum and with such surety as the Board of Directors may require.
9
SECTION 8. DUTIES OF OFFICERS MAY BE DELEGATED.
In the case of the absence of any officer of the Corporation, or for
any reason the Board may deem sufficient, the Board may, except as otherwise
provided in these By-Laws, delegate the powers or duties of such officers to
any other officer or any director for the time being, provided a majority of
the entire Board concur therein.
SECTION 9. VACANCIES - HOW FILLED.
Should any vacancy in any office occur by death, resignation or
otherwise, the Board of Directors may appoint any qualified person to fill such
vacancy, without undue delay, at its next regular meeting or at a special
meeting called for that purpose, except as otherwise provided in the
Certificate of Incorporation.
SECTION 10. COMPENSATION OF OFFICERS.
The officers shall receive such salary or compensation as may be fixed
and determined by the Board of Directors, except as otherwise provided in the
Certificate of Incorporation. No officer shall be precluded from receiving any
compensation by reason of the fact that he is also a director of the
Corporation.
10
ARTICLE IV. CERTIFICATES REPRESENTING SHARES
SECTION 1. ISSUE OF CERTIFICATES REPRESENTING SHARES.
The President shall cause to be issued to each shareholder one or more
certificates, under the seal of the Corporation, signed by the President (or
Vice-President) and the Treasurer (or Secretary) certifying the number of
shares owned by him in the Corporation. Each certificate shall state upon the
face thereof: (1) That the Corporation is formed under the laws of this state.
(2) The name of the person or persons to whom issued. (3) The number and class
of shares, and the designation of the series, if any, which such certificate
represents. Any restrictions upon transfers imposed by the Corporation should
be conspicuously noted on the certificate.
SECTION 2. LOST, DESTROYED AND STOLEN SHARE CERTIFICATES.
The holder of any certificate representing shares of the Corporation
shall immediately notify the corporation of any loss, destruction or wrongful
taking of the certificate representing the same. The Corporation may issue a
new certificate in the place of any certificate thereto issued by it, alleged
to have been lost, destroyed or wrongfully taken. On production of such
evidence of loss as the Board of Directors in its discretion may require, the
Board of Directors may require the owner of the missing certificate, or his
legal representatives, to give the Corporation a bond in such sum as the Board
may direct, and with such surety or sureties as may be satisfactory to the
Board, to indemnify the Corporation against any claims, loss, liability or
damage it may suffer on account of the issuance of the new certificate. A new
certificate may be issued without requiring any such evidence or bond when, in
the judgment of the Board of Directors, it is proper so to do.
SECTION 3. TRANSFERS OF SHARES.
(a) Transfers of shares of the Corporation shall be made on the shares
records of the Corporation only by the holder of record thereof, in person or
by his duly authorized attorney, upon surrender for cancellation of the
certificate or certificates representing such shares, with an assignment or
power of transfer endorsed thereon or delivered therewith, duly executed, with
such proof of the authenticity of the signature and of authority to transfer
and of payment of transfer taxes as the Corporation or its agents may require.
(b) The Corporation shall be entitled to treat the holder of record of
any share or shares as the absolute owner thereof for all purposes and,
accordingly, shall not be bound to recognize any legal, equitable or other
claim to, or interest in, such share or shares on the part of any other person,
whether or
11
not it shall have express or other notice thereof, except as otherwise
expressly provided by law.
ARTICLE V. SEAL
The seal of the Corporation shall be as follows:
ARTICLE VI. INDEMNIFICATION.
The Corporation shall indemnify any person, made a party to an action
by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he, his testator or intestate, is or was a director,
officer, or employee of the Corporation, against the reasonable expenses,
including attorneys' fees, actually and necessarily incurred by him in
connection with the defense of such action, or in connection with an appeal
therein, except in relation to matters as to which such person is adjudged to
have breached his duty to the Corporation. The Corporation shall indemnify any
person made a party to an action against judgments, fines, amounts paid in
settlement and reasonable expenses, including attorneys' fees actually and
necessarily incurred as a result of such action, if such person acted in good
faith, for a purpose which he reasonably believed to be in the best interests
of the Corporation, and, in criminal actions, had no reasonable cause to
believe that his conduct was unlawful. Such rights of indemnification shall not
exclude other rights to which such person may be entitled.
ARTICLE VII. DIVIDENDS OR OTHER DISTRIBUTIONS
The Corporation, by vote of the Board of Directors, may declare and
pay dividends or make other distributions in cash or its bonds or its property
on its outstanding shares to the extent as provided and permitted by law,
unless contrary to any restriction contained in the Certificate of
Incorporation.
ARTICLE VIII. NEGOTIABLE INSTRUMENTS
All checks, notes or other negotiable instruments shall be signed on
behalf of this Corporation by such of the officers, agents and employees as the
Board of Directors may from time to time designate, except as otherwise
provided in the Certificate of Incorporation.
12
ARTICLE IX. FISCAL YEAR
The fiscal year of the Corporation shall be determined by resolution
of the Board of Directors.
ARTICLE X. AMENDMENTS
SECTION 1. BY SHAREHOLDERS.
All by-laws of the Corporation shall be subject to alteration or
repeal, and new by-laws may be made, by a majority vote of the shareholders at
the time entitled to vote in the election of directors.
SECTION 2. BY DIRECTORS.
The Board of Directors shall have power to make, adopt, alter, amend
and repeal, from time to time, the by-laws of the Corporation; provided,
however, that the shareholders entitled to vote with respect thereto, as in
this Article X above-provided, may alter, amend or repeal by-laws made by the
Board of Directors; except that the Board of Directors shall have no power to
change the quorum for meetings of shareholders or of the Board of Directors, or
to change any provisions of the by-laws with respect to the removal of
directors or the filling of vacancies in the Board resulting from the removal
by the shareholders. If any by-law regulating an impending election of
directors is adopted, amended or repealed by the Board of Directors, there
shall be set forth in the notice of the next meeting of shareholders for the
election of directors, the by-law so adopted, amended or repealed, together
with a concise statement of the changes made therein.
ARTICLE XI. OFFICES
The offices of the Corporation shall be located in the City, County
and State designated in the Certificate of Incorporation. The Corporation may
also maintain offices at such other places within or without the United States
as the Board of Directors may, from time to time, determine.
The undersigned Incorporator certifies that he has adopted the
foregoing by-laws as the first by-laws of the Corporation, in accordance with
the requirements of the Business Corporation Law.
Dated: May 22, 1995
/s/ [Illegible]
------------------------------
Director
13
ACTION OF THE SOLE STOCKHOLDER OF
AMITY AUTO PLAZA, LTD.,
AMITY NISSAN OF MASSAPEQUA, LTD.,
AUTO MALL PAYROLL SERVICES INC.,
AUTO MALL STORAGE, INC.,
FLORIDA CHRYSLER PLYMOUTH, INC.,
J&S AUTO REFINISHING, LTD.,
JS IMPORTS, INC.,
NORTHLAKE AUTO FINISH, INC.,
PALM AUTO PLAZA, INC.,
WESTBURY NISSAN, LTD.,
WESTBURY SUPERSTORE, LTD.,
WEST PALM AUTO MALL, INC.
WEST PALM INFINITI, INC., AND
WEST PALM NISSAN, INC.
TAKEN BY WRITTEN CONSENT
IN LIEU OF A MEETING
Pursuant to Section 228 of the General Corporation Law of the State of
Delaware, the undersigned, being the sole stockholder of Amity Auto Plaza,
Ltd., Amity Nissan of Massapequa, Ltd., Auto Mall Payroll Services, Inc., Auto
Mall Storage, Inc., Florida Chrysler Plymouth, Inc., J&S Auto Refinishing,
Ltd., JS Imports, Inc., Northlake Auto Finish, Inc., Palm Auto Plaza, Inc.,
Westbury Nissan Ltd., Westbury Superstore, Ltd., West Palm Auto Mall, Inc.,
West Palm Infiniti, Inc., and West Palm Nissan, Inc. (the "Companies") does
hereby consent to and adopt the following resolutions, as the action of the
sole stockholder of the Companies in lieu of a meeting, and hereby directs that
this written consent to such action be filed with the minutes of the
proceedings of the stockholder of the Companies.
NOW, THEREFORE, BE IT RESOLVED, that the number of directors
constituting the Board of Directors of the Companies is hereby set at three
(3); and
FURTHER RESOLVED, that the following persons be, and hereby are,
elected as Directors of the Companies, the term of office of each such person
to be until their respective successors shall be elected and qualified:
Marshall S. Cogan
James R. Davidson
Robert H. Nelson
IN WITNESS WHEREOF, the undersigned stockholder hereunto sets its hand
as of the 30 day of April, 1997.
UAG EAST, INC.
By: /s/ George G. Lowrance
-------------------------------
George G. Lowrance
Vice President
ACTION OF THE BOARD OF DIRECTORS
OF AMITY AUTO PLAZA, LTD.,
AMITY NISSAN OF MASSAPEQUA, LTD.,
J&S AUTO REFINISHING, LTD.,
WESTBURY NISSAN LTD. AND
WESTBURY SUPERSTORE, LTD.
TAKEN BY UNANIMOUS WRITTEN CONSENT
IN LIEU OF A MEETING
Pursuant to Section 708(b) of the New York Business Corporation Law,
the undersigned, being all of the members of the Boards of Directors (the
"Boards") of Amity Auto Plaza, Ltd. ("Amity Toyota"), Amity Nissan of
Massapequa, Ltd. ("Amity Nissan"), J&S Auto Refinishing, Ltd. ("J&S"), Westbury
Nissan Ltd. ("Westbury Nissan") and Westbury Superstore, Ltd. ("Westbury
Toyota", and together with Amity Toyota, Amity Nissan, J&S and Westbury Nissan,
the "Corporations"), hereby consent to and adopt the following resolutions by
unanimous written consent in lieu of a meeting, and hereby waive any and all
rights to notice of time, place, or purpose of the meeting to consider the
action taken herein and hereby direct that this instrument be filed with the
minutes of the proceedings of each of the Boards.
I. ELECTION OF OFFICERS.
RESOLVED, that the following named persons are hereby declared elected
to the offices of each of the Corporations set forth opposite their respective
names to serve as such officers pursuant to the Bylaws of each Corporation:
Marshall S. Cogan Chairman of the Board, Chief
Executive Officer and President
Robert H. Nelson Vice President and Treasurer
Karl H. Winters Vice President
Philip N. Smith, Jr. Vice President and Secretary
George G. Lowrance Vice President and Assistant
Secretary
Lauren Dowling Vice President and Assistant
Secretary
James R. Davidson Vice President
John A. Staluppi, Jr. Vice President
Tambra S. King Assistant Secretary
II. APPROVAL OF GUARANTIES.
RESOLVED, that the Corporations are hereby authorized and empowered to
serve as guarantors of the obligations of United Auto Group, Inc., a Delaware
corporation ("Borrower") under a loan agreement between Borrower and John A.
Staluppi ("Lender") and under any other financing by Borrower from Lender, and
to subordinate any indebtedness of Borrower to the Corporations to the
indebtedness of Borrower to Lender under any financing obtained by Borrower
from Lender;
FURTHER RESOLVED, that any one of the President, and Vice President,
the Treasurer, the Secretary or any other officer of the Corporations be and
they are hereby each and all authorized, empowered and directed in the name and
on behalf of the Corporations, whether or not under its corporate seal, to
guaranty the obligations of Borrower to Lender and to subordinate indebtedness
to the Corporations to the indebtedness of Borrower to Lender under the loan
agreement or under any other financing by Borrower from Lender, and in
connection therewith, in furtherance thereof and pursuant thereto, to make,
enter into, execute and deliver to Lender, any guaranties, subordinations,
security agreements, Uniform Commercial Code Financing Statements, drafts,
assignments, and any amendments to any of the foregoing, and any other
agreements, documents, certificates or instruments, and any amendments thereto,
arising out of, related to, or in connection with, any of the forgoing
agreements, documents, or transactions, as such officer in his or her sole
discretion deems appropriate and which may be requested or required by Lender
in connection any business between the Corporations and Lender;
FURTHER RESOLVED, that the foregoing Resolution is adopted in addition
to, and not in replacement of, and shall not be limited by, any and all
Resolutions heretofore adopted by these Corporations governing any transaction
with or involving Lender, and the foregoing Resolution contained herein shall
continue in force until express written notice of its prospective rescission or
modification as to the future transactions not then existing or committed to by
Lender has been furnished to and received by Lender, respectively;
FURTHER RESOLVED, that any and all prior and existing guaranties
granted by these Corporations in favor of Lender be and the same hereby are in
all respects ratified, approved and confirmed; and
FURTHER RESOLVED, that the Secretary or any Assistant Secretary of
these Corporations be and they are hereby each and all authorized and empowered
to certify the authenticity and completeness of these Resolutions, the Articles
of Incorporation and Bylaws of these Corporations, and the names of the
officers
and employees of these Corporations and that their signatures are true.
III. APPROVAL OF FLOOR PLAN FINANCING.
RESOLVED, that Amity Toyota, Amity Nissan, Westbury Nissan and
Westbury Toyota (each a "Dealer" and collectively the "Dealers") are hereby
authorized and empowered to enter into a wholesale floor plan security
agreement between such Dealer and World Omni Financial Corp., a Florida
corporation ("WOFCO") or VT Inc. as Trustee of World Omni, LT, and to enter
into any documents related thereto;
FURTHER RESOLVED, that the officers of the Corporations be, and each
of them hereby is, duly authorized and empowered to take all action and to
execute and deliver and to file or record, as the case may be, any and all such
documents, agreements, instruments, certificates or instructions as they or any
of them may deem necessary or advisable in order to carry into effect the
purpose and intent of the foregoing resolutions or the transactions
contemplated therein or thereby, as shall be evidenced conclusively by the
taking of such actions or the execution and delivery and the filing and
recording, as the case may be, of such documents, agreements, instruments,
certificates or instructions by such officers; and
FURTHER RESOLVED, that any and all such actions heretofore taken and
any and all documents, agreements, instruments, certificates or instructions
(however characterized or described) heretofore executed and delivered or filed
and recorded, as the case may be, on behalf of the Corporations, by the
officers of the Corporations, or any of them, in order to carry into effect the
purposes and intent of the foregoing resolutions or the transactions
contemplated therein or thereby (including, but not limited to, a wholesale
floor plan security agreement) are hereby ratified, confirmed and adopted and
approved in all respects.
This Consent may be executed in counterparts, each of which shall be
an original but all of which taken together shall continue one and the same
instrument.
IN WITNESS WHEREOF, the undersigned Directors of each of the
Corporations have executed this Consent as of the 30 day of April, 1997.
/s/ Marshall S. Cogan
-------------------------
MARSHALL S. COGAN
/s/ James R. Davidson
-------------------------
JAMES R. DAVIDSON
/s/ Robert H. Nelson
-------------------------
ROBERT H. NELSON
EXHIBIT 3.121
ARTICLES OF INCORPORATION
OF
NORTHLAKE AUTO FINISHING, INC.
The undersigned subscribes to these Articles of Incorporation to form a
corporation for profit under the laws of the State of Florida.
ARTICLE I
The name of the corporation shall be:
NORTHLAKE AUTO FINISHING, INC.
and its principal office for the conduct of business shall be:
3701 Northlake Boulevard, Lake Park, FL. 33403.
The Board of Directors may from time to time move the principal office to any
other address in Florida.
ARTICLE II
The general nature of the business to be conducted by this corporation
is to engage in any activities or business permitted under the laws of the
United States and Florida; in the transaction of any or all lawful business
for which corporations may be incorporated under the laws of the laws of the
State of Florida.
ARTICLE III
The maximum number of shares of stock that this corporation is
authorized to have outstanding at any one time is two hundred (200) shares of
common stock a the One Dollar ($1.00) par value. Said capital stock shall be
fully paid and nonassessable, which shall be equal and uniform in all respects
but subject to all restrictions and conditions of the by-laws of the
corporation pertaining hereto, and shall be payable in lawful money of the
United States, or in property, labor, or in services at a just valuation to be
fixed by the stockholders at a meeting duly convened and held. The amount of
capital with which the corporation shall begin shall be the sum of TWO HUNDRED
AND NO/100 ($200.00) DOLLARS.
ARTICLE IV
The transferability of any of the shares of stock in this corporation
may be restricted by any shareholders agreement entered into by all of the
holders of any share or shares of the stock of this corporation at the time
the stockholders agreement is executed.
ARTICLE V
The term for which this corporation shall exist shall be perpetual and
the business of the corporation shall be conducted, carried on, and managed by
the officers of this corporation and a Board of Directors composed of one or
more members, which number may be altered from time to time by the by-laws of
this corporation within the time limitations prescribed by the law. The
officers of this corporation shall be a President, Vice-President, Secretary,
Treasurer, and any other officer as to the Board of Directors may seem
expedient. Any two or more offices may be held by the same person.
ARTICLE VI
The names and addresses of the Directors constituting the initial Board
of Directors are as follows:
Name Address Office
- ---- ------- ------
John Staluppi 205 Sunrise Avenue Director
West Islip, NY 11795
Michael Passaro 3701 Northlake Blvd. President
Lake Park, FL 33403
Jeanette Staluppi 205 Sunrise Avenue Secretary,
West Islip, NY 11795 Treasurer
ARTICLE VII
The name and street address of the corporation's initial registered
agent is:
Douglas E. Thompson
1937 Okeechobee Blvd.
West Palm Beach, FL 33401
ARTICLE VIII
The name and address of the incorporator is as follows:
John Staluppi 205 Sunrise Avenue
West Islip, NY 11795
ARTICLE IX
No contract, act or transaction of this corporation with any person or
persons, firm, or other corporation, in the absence of fraud or wrongdoing,
shall be affected or invalidated by the fact that any director of this
corporation is a party to or interested in such contract, act, or transaction,
or in any way connected with such person or persons, firm, or corporation.
Each and every person who may become a director of this corporation is hereby
relieved from any liability that might otherwise exist from thus contracting
with this corporation for the benefit of himself or herself or any other firm,
association, or corporation in which he or she may in any way be interested.
Any director of this corporation may vote upon any contract or other
transaction between the corporation and any subsidiary or controlled company
without regard to the fact that he or she is also a director of such
subsidiary or controlled company.
ARTICLE X
These Articles of Incorporation may be amended, changed, altered or
repealed in the manner now or hereafter prescribed by the Florida Statutes and
all rights conferred upon stockholders herein are granted subject to this
reservation.
-2-
ARTICLE XI
This corporation shall commence its existence on the date the charter
for this corporation is approved by the Secretary of State.
Witness my hand and seal this 18th of August 1988.
/s/ John Staluppi
-----------------------------------
John Staluppi
I hereby accept appointment as Registered Agent.
Witness my hand and seal this 18th day of August 1988.
/s/ Douglas E. Thompson
-----------------------------------
Douglas E. Thompson
STATE OF FLORIDA )
)ss:
COUNTY OF PALM BEACH )
I HEREBY CERTIFY that on this day before me, a Notary Public, duly
authorized to take acknowledgments, personally appeared John Staluppi, to me
known to be the person described as subscriber to the foregoing Articles of
Incorporation and who executed the same, and acknowledged before me that he
subscribed to these Articles of Incorporation.
WITNESS my hand and official seal in the County and State named above
this 18th day of August 1988.
/s/ Douglas E. Thompson
---------------------------------------
NOTARY PUBLIC, STATE OF FLORIDA
AT LARGE
My Commission Expires:
STATE OF FLORIDA )
)ss:
COUNTY OF PALM BEACH )
I HEREBY CERTIFY that on this day before me, a Notary Public, duly
authorized to take acknowledgments, personally appeared Douglas E. Thompson,
to me known to be the person described as Registered Agent of the above
Corporation and who executed the same, and acknowledged before me that he
accepted the office of Registered Agent.
WITNESS my hand and official seal in the County and State named above
this 18 day of August 1988.
/s/
--------------------------------------
NOTARY PUBLIC, STATE OF FLORIDA
AT LARGE
My Commission Expires:
-3-
AMENDMENT OF CERTIFICATE OF INCORPORATION
OF
NORTHLAKE AUTO FINISHING, INC.
WE, THE UNDERSIGNED, being the total number of directors and
shareholders of NORTHLAKE AUTO FINISHING, INC., Palm Beach County, Lake Park,
Florida, do hereby state that it is our intention and desire to amend the name
of the corporation as stated in the Articles of Incorporation as follows:
ARTICLE I
The name of this corporation shall be NORTHLAKE AUTO FINISH, INC.
The foregoing amendment was adopted by the stockholders and directors
of the corporation on the 6 day of September, 1988.
IN WITNESS WHEREOF, the undersigned president and secretary of this
corporation have executed these Articles of Amendment this 6 day of Sept.,
1988.
/s/ Michael Passaro
--------------------------------------
Michael Passaro, as President
/s/ Jeanette Staluppi
--------------------------------------
Jeanette Staluppi, as Secretary
STATE OF FLORIDA
COUNTY OF PALM BEACH
BEFORE ME, the undersigned authority, personally appeared Michael
Passaro, to me well known to be the person described in and who executed the
foregoing instrument, and acknowledged before me that he executed the same for
the purpose therein expressed.
WITNESS my hand and official seal at the county and state aforesaid this
6th day of September, 1988.
/s/
--------------------------------------
Notary Public
State of Florida at Large
EX 3.123
ARTICLES OF INCORPORATION
OF
PALM AUTO PLAZA, INC.
The undersigned subscribes to these Articles of Incorporation to form
a corporation for profit under the laws of the State of Florida.
ARTICLE I
The name of the corporation shall be:
PALM AUTO PLAZA, INC.
and its principal office for the conduct of business shall be:
2707 Okeechobee Blvd., West Palm Beach, FL. 33409.
The Board of Directors may from time to time move the principal office to any
other address in Florida.
ARTICLE II
The general nature of the business to be conducted by this
corporation is to engage in any activities or business permitted under the
laws of the United States and Florida; in the transaction of any or all lawful
business for which corporations may be incorporated under the laws of the laws
of the State of Florida.
ARTICLE III
The maximum number of shares of stock that this corporation is
authorized to have outstanding at any one time is two hundred fifty (250)
shares of common stock at One Dollar ($1.00) par value. Said capital stock
shall be fully paid and nonassessable, which shall be equal and uniform in all
respects but subject to all restrictions and conditions of the by-laws of the
corporation pertaining hereto, and shall be payable in lawful money of the
United States, or in property, labor, or in services at a just valuation to be
fixed by the stockholders at a meeting duly convened and held. The amount of
capital with which the corporation shall begin shall be the sum of TWO HUNDRED
FIFTY AND NO/100 ($250.00) DOLLARS.
ARTICLE IV
The transferability of any of the shares of stock in this corporation
may be restricted by any shareholders agreement entered into by all of the
holders of any share or shares of the stock of this corporation at the time
the stockholders agreement is executed.
ARTICLE V
The term for which this corporation shall exist shall be perpetual
and the business of the corporation shall be conducted, carried on, and
managed by the officers of this corporation and a Board of Directors composed
of one or more members, which number may be altered from time to time by the
by-laws of this corporation within the time limitations prescribed by the law.
The officers of this corporation shall be a President, Vice-President,
Secretary, Treasurer, and any other officer as to the Board of Directors may
seem expedient. Any two or more offices may be held by the same person.
ARTICLE VI
The names and addresses of the Directors constituting the initial
Board of Directors are as follows:
Name Address Office
- ---- ------- ------
John Staluppi 205 Sunrise Avenue Director,
West Islip, NY 11795 President
Jeanette Staluppi 205 Sunrise Avenue Secretary
West Islip, NY 11795
ARTICLE VII
The name and street address of the corporation's initial registered
agent is:
Douglas E. Thompson
2345 Okeechobee Blvd.
West Palm Beach, FL 33409
ARTICLE VIII
The name and address of the incorporator is as follows:
John Staluppi 205 Sunrise Avenue
West Islip, NY 11795
ARTICLE IX
No contract, act or transaction of this corporation with any person
or persons, firm, or other corporation, in the absence of
-2-
fraud or wrongdoing, shall be affected or invalidated by the fact that any
director of this corporation is a party to or interested in such contract,
act, or transaction, or in any way connected with such person or persons,
firm, or corporation. Each and every person who may become a director of this
corporation is hereby relieved from any liability that might otherwise exist
from thus contracting with this corporation for the benefit of himself or
herself or any other firm, association, or corporation in which he or she may
in any way be interested. Any director of this corporation may vote upon any
contract or other transaction between the corporation and any subsidiary or
controlled company without regard to the fact that he or she is also a
director of such subsidiary or controlled company.
ARTICLE X
These Articles of Incorporation may be amended, changed, altered or
repealed in the manner now or hereafter prescribed by the Florida Statutes and
all rights conferred upon stockholders herein are granted subject to this
reservation.
ARTICLE XI
This corporation shall commence it existence on the date the charter
for this corporation is approved by the Secretary of State.
Witness my hand and seal this 11th day of October 1990.
/s/ John Staluppi
--------------------------
John Staluppi
-3-
I hereby accept appointment as Registered Agent.
Witness my hand and seal this 10th day of October 1990.
/s/ Douglas E. Thompson
----------------------------
Douglas E. Thompson
STATE OF NEW YORK )
) SS:
COUNTY OF SUFFOLK )
I HEREBY CERTIFY that on this day before me, a Notary Public, duly
authorized to take acknowledgments, personally appeared John Staluppi, to me
known to be the person described as subscriber to the foregoing Articles of
Incorporation and who executed the same, and acknowledged before me that he
subscribed to these Articles of Incorporation.
WITNESS my hand and official seal in the County and State named above
this 11th day of October 1990.
/s/ Gretchen A. Regis
------------------------------------
NOTARY PUBLIC, STATE OF NEW YORK
My commission Expires:
STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH )
I HEREBY CERTIFY that on this day before me, a Notary Public, duly
authorized to take acknowledgments, personally appeared Douglas E. Thompson,
to me known to be the person described as Registered Agent of the above
Corporation and who executed the same, and acknowledged before me that he
accepted the office of Registered Agent.
WITNESS my hand and official seal in the County and State named this
10th day of October 1990.
/s/
-----------------------------------
NOTARY PUBLIC, STATE OF FLORIDA
AT LARGE
My Commission Expires:
ARTSTAL.INC./7A
EX 3.125
ARTICLES OF INCORPORATION
OF
WEST PALM AUTO INC.
The undersigned, for the purpose of forming a corporation for profit
under and by virtue of the laws of the State of Florida do hereby make,
subscribe and acknowledge this certificate for that purpose.
ARTICLE I
The name of the corporation shall be WEST PALM AUTO MALL, INC.
ARTICLE II
The general nature of the business or businesses to be transacted by
the corporation, as principal, as agent or as broker, is as follows:
1. To engage in any activity or business permitted under the laws of
the United States and of the State of Florida.
2. To do all and everything necessary and appropriate for the
accomplishment of the business and objects enumerated in this Certificate or
any amendment thereof, necessary or incidental to the attainment of the
business or objects of the corporation, whether or not such business or objects
of the corporation are similar in nature to the business or objects set forth
in this Certificate or any amendment thereof.
3. To buy, purchase, exchange, sell, hire, lease, mortgage, deal in,
and encumber real estate and personal property, either improved or unimproved,
of every kind and description.
The foregoing shall be construed as objects and powers in furtherance
not in limitation of the general powers conferred from time to time by laws of
the State of Florida; and it is hereby expressly provided that the enumeration
of specific powers shall not be held to limit or restrict in any manner the
powers of the corporation, and that the corporation shall and may do all and
everything necessary, suitable or proper for the accomplishment of any of the
purposes or objects herein enumerated, either alone or in association with
other corporations, firms or individual to the same extent and as fully as
individuals might or could do as principals, agents, contractors or
otherwise.
ARTICLE III
The maximum number of shares of capital stock which the corporation is
authorized to have outstanding at any time is Two Hundred (200) shares of
common stock with a par value of One Dollar ($1.00) per share.
ARTICLE IV
The amount of capital with which the corporation shall begin business
shall not be less than Five Hundred Dollars ($500.00).
ARTICLE V
The corporation shall have perpetual existence unless sooner dissolved
according to law, and its existence shall commence upon filing.
ARTICLE VI
The principal office of this corporation is to be located at 701 U.S.
One, Suite 402, North Palm Beach, 33408, County of Palm Beach, State of
Florida.
The Board of Directors shall have the power and the authority to
establish branch offices and places of business of this corporation at any
point in the State of Florida, or in any state, territory, or district of the
United States, or in any foreign country, as they may deem necessary for the
best interests of the business.
-2-
ARTICLE VII
This corporation shall have one (1) Director initially. The business of
this corporation shall be conducted by a Board of Directors of not less than
one (1) nor more than three (3) Directors. The Board of Directors shall have
the power and authority to prescribe the consideration to be paid to the
corporation in exchange for the issuance and disposal of its capital stock.
The Board of Directors shall also have the authority and power to adopt bylaws
which shall govern the operation of the business of this corporation, and to
thereafter amend the same from time to time if necessary.
The name and post office address of the Incorporator signing these
Articles of Incorporation is as follows:
NAME ADDRESS
---- -------
Lawrence W. Smith, Esq. 701 U.S. Highway One, Suite 402
North Palm Beach, Florida 33408
The value of consideration which the subscribers shall pay for each
share of stock shall be at least One Dollar ($1.00) per share, and the
proceeds of the stock subscribed for will be at least as much as the amount
necessary to begin the business of the corporation at the time the stock
certificates thereof are issued and the corporation otherwise activated.
ARTICLE IX
The names and post office address of the directors and officers who
shall hold office for the first year of the corporation's existence or until
their successors have been elected and qualified are as follows:
NAME ADDRESS
---- -------
John Staluppi 701 U.S. Highway One, Suite 402
President/Director/Secretary No. Palm Beach, Florida 33408
-3-
ARTICLE X
This corporation reserves the right to amend, alter, change or repeal
any provisions contained in the Articles 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 XI
All of the subscribers to these Articles of Incorporation are over the
age of twenty-one years, are suijuris, and citizens of the United States.
Stock certificates of this corporation shall not be issued unless and
until the same are paid for in full with cash, or its equivalent. Stock
certificates shall be not valid unless signed and issued by the president and
attested by the secretary, who shall affix thereon the corporate seal.
The name of the initial registered agent and the address of the initial
registered office of the corporation is as follows:
NAME ADDRESS
---- -------
Lawrence W. Smith, Esq. 701 U.S. One, Suite 402
No. Palm Beach, Florida 33408
ARTICLE XIII
Nothing in these Articles of Incorporation shall be taken to limit the
power of this corporation, and this corporation shall have all the rights and
powers that are expressly stated under the Florida Statutes and Laws (F.S. 607
and as amended in the future.)
-4-
IN WITNESS WHEREOF, the undersigned, being the original subscriber to
the capital stock herein, has made and subscribed these Articles of
Incorporation this 23rd day of March, 1987.
Signed, sealed and delivered
in the presence of:
/s/ /s/ Lawrence W. Smith
- --------------------------- --------------------------------
Lawrence W. Smith, Incorporator
/s/ Kathryn P. Kirby and Registered Agent
- ---------------------------
STATE OF FLORIDA
COUNTY OF PALM BEACH
Before me, the undersigned officer duly authorized to take
acknowledgments and administer oaths, this day personally appeared
Lawrence W. Smith, to me known to be the person described in and who executed
the foregoing Articles of Incorporation, and he acknowledged before me that he
executed the same for the purposes herein expressed.
WITNESS my hand and official seal in the State and County aforesaid
this 23rd day of March, 1987.
/s/ Doris P. Lunsford
---------------------------
Notary Public
My Commission Expires
EX 3.127
ARTICLES OF INCORPORATION
OF
WEST PALM INFINITI, INC.
The undersigned subscribes to these Articles of Incorporation to form a
corporation for profit under the laws of the State of Florida.
ARTICLE I
The name of the corporation shall be:
WEST PALM INFINITI, INC.
and its principal office for the conduct of business shall be:
551 So. Military Trail, West Palm Beach, FL. 33415.
The Board of Directors may from time to time move the principal office to
any other address in Florida.
ARTICLE II
The general nature of the business to be conducted by this corporation is
to engage in any activities of business permitted under the laws of the United
States and Florida; in the transaction of any or all lawful business for which
corporations may be incorporated under the laws of the State of Florida.
ARTICLE III
The maximum number of shares of stock that this corporation is authorized
to have outstanding at any one time is two hundred (200) shares of common
stock at One Dollar ($1.00) par value. Said capital stock shall be fully paid
and nonassessable, which shall be equal and uniform in all respects but
subject to all restrictions and conditions of the by-laws of the corporation
pertaining hereto, and shall be payable in lawful money of the United States,
or in property, labor, or in services at a just valuation to be fixed by the
stockholders at a meeting duly convened and held. The amount of capital with
which the corporation shall begin shall be the sum of TWO HUNDRED AND NO/100
($200.00) DOLLARS.
ARTICLE IV
The transferability of any of the shares of stock in this corporation may
be restricted by any shareholders agreement entered into by all of the holders
of any share or shares of the stock of this corporation at the time the
stockholders agreement is executed.
ARTICLE V
The term for which this corporation shall exist shall be perpetual and
the business of the corporation shall be conducted, carried on, and managed by
the officers of this corporation and a Board of Directors composed of one or
more members, which number may be altered from time to time by the by-laws of
this corporation within the time limitations prescribed by the law. The
officers of this corporation shall be a President, Vice-President, Secretary,
Treasurer, and any other officer as to the Board of Directors may seem
expedient. Any two or more offices may be held by the same person.
ARTICLE VI
The names and addresses of the Directors constituting the initial Board
of Directors are as follows:
Name Address Office
- ---- ------- ------
John Staluppi 205 Sunrise Avenue Director,
West Islip, NY 11795
ARTICLE VII
The name and street address of the corporation's initial registered agent is:
Douglas E. Thompson
1937 Okeechobee Blvd.
West Palm Beach, FL 33409
ARTICLE VIII
The name and address of the incorporator is as follows:
John Staluppi 205 Sunrise Avenue
West Islip, NY 11795
ARTICLE IX
No contract, act or transaction of this corporation with any person or
persons, firm, or other corporation, in the absence of fraud or wrongdoing,
shall be affected or invalidated by the fact that any director of this
corporation is a party to or interested in such contract, act, or transaction,
or in any way connected
-2-
with such person or persons, firm, or corporation. Each and every person who
may become a director of this corporation is hereby relieved from any
liability that might otherwise exist from thus contracting with this
corporation for the benefit of himself or herself or any other firm,
association, or corporation in which he or she may in any way be interested.
Any director of this corporation may vote upon any contract or other
transaction between the corporation and any subsidiary or controlled company
without regard to the fact that he or she is also a director of such
subsidiary or controlled company.
ARTICLE X
These Articles of Incorporation may be amended, changed, altered or
repealed in the manner now or hereafter prescribed by the Florida Statutes and
all rights conferred upon stockholders herein are granted subject to this
reservation.
ARTICLE XI
This corporation shall commence its existence on the date the charter for
this corporation is approved by the Secretary of State.
Witness my hand and seal this 16th day of June, 1989.
/s/ John Staluppi
-------------------------
John Staluppi
-3-
I hereby accept appointment as Registered Agent.
Witness my hand and seal this 14th day of June, 1989.
/s/ Douglas E. Thompson
-------------------------------
Douglas E. Thompson
STATE OF NEW YORK )
) SS:
COUNTY OF SUFFOLK )
I HEREBY CERTIFY that on this day before me, a Notary Public, duly
authorized to take acknowledgements, personally appeared John Staluppi, to me
know to be the person described as subscriber to the foregoing Articles of
Incorporation and who executed the same, and acknowledged before me that he
subscribed to these Articles of Incorporation.
WITNESS my hand and official seal in the County and State named above
this 16th day of June, 1989.
/s/
---------------------------------
NOTARY PUBLIC, STATE OF FLORIDA
AT LARGE
My commission Expires: 4/20/91
STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH )
I HEREBY CERTIFY that on this day before me, a Notary Public, duly
authorized to take acknowledgments, personally appeared Douglas E. Thompson,
to me known to be the person described as Registered Agent of the above
Corporation and who executed the same, and acknowledged before me that he
accepted the office of Registered Agent.
WITNESS my hand and official seal in the County and State named this
14th day of June, 1989.
/s/
--------------------------------
NOTARY PUBLIC, STATE OF FLORIDA
AT LARGE
My commission Expires:
EX-3.129
ARTICLES OF INCORPORATION
OF
WEST PALM NISSAN, INC.
The undersigned subscribe to these Articles of Incorporation to form a
corporation for profit under the laws of the State of Florida.
ARTICLE I
The name of the corporation shall be:
WEST PALM NISSAN, INC.
and its principal office for the conduct of business is:
2815 Okeechobee Boulevard, West Palm Beach, Florida 33409
The Board of Directors may from time to time move the principal office to any
other address in Florida.
ARTICLE II
The general nature of the business to be conducted by this corporation
is to engage in any activities or business permitted under the laws of the
United States and Florida; in the transaction of any or all lawful business for
which corporations may be incorporated under the laws of the State of Florida.
ARTICLE III
The maximum number of shares of stock that this corporation is
authorized to have outstanding at any one time is five hundred (500) shares of
common stock at One Dollar ($1.00) par value. Said capital stock shall be fully
paid and nonassessable, which shall be equal and uniform in all respects but
subject to all restrictions and conditions of the by-laws of
the corporation pertaining hereto, and shall be payable in lawful money of the
United States, or in property, labor, or in services at a just valuation to be
fixed by the stockholders at a meeting duly convened and held. The amount of
capital with which the corporation shall begin shall be the sum of FIVE HUNDRED
AND NO/100 ($500.00) DOLLARS.
ARTICLE IV
The transferability of any of the shares of stock in this corporation
may be restricted by any shareholders agreement entered into by all of the
holders of any share or shares of the stock of this corporation at the time the
stockholders agreement is executed.
ARTICLE V
In the event of an issue of non-issued capital stock or of new stock,
should the stock be increased, the existing stockholders at the time of such
issue shall have the right to subscribe or and to purchase such stock so issued
in a number of shares proportionate to the amount owed at the time of said
subsequent issue. In the event that one or more of the stockholders shall fail
or refuse to exercise their option, his or their right to subscribe shall
insure to the benefit of the other stockholders. Written notice of intention to
issue non-issued capital stock or new sock shall be given by the corporation to
all stockholders and stockholders shall notify the corporation of their
intention to subscribe within thirty (30) days after such notice.
-2-
ARTICLE IV
The term for which this corporation shall exist shall be perpetual and
the business of the corporation shall be conducted, carried on, and managed by
the officers of this corporation and a Board of Directors composed of one or
more members, which number may be altered from time to time by the by-laws of
this corporation within the limitations prescribed by law. The officers of this
corporation shall be a President, Vice President and Secretary, and any other
officer as to the Board of Directors may seen expedient. Any two or more
offices may be held by the same person.
ARTICLE VII
The names and addresses of the Directors constituting the initial
Board of Directors are as follows:
Name Address Office
---- ------- ------
JOHN STALUPPI 205 Sunrise Highway President, Secretary
West Islip, N.Y. 11795 and Treasurer
The name and street address of the corporation's initial _____________:
JOS D. FARISH, JR., ESQ.
816 First Street, Denco Building
West Palm Beach, Florida 33402
-3-
ARTICLE IX
The name and address of the incorporator is as follows:
Name Address
---- -------
JOHN STALUPPI 205 Sunrise Highway
West Islip, New York 11795
No contract, act or transaction of this corporation with any person or
persons, firm or other corporation, in the absence of fraud or wrongdoing,
shall be affected or invalidated by the fact that any director of this
corporation is a party to or interested in such contract, act, or transaction,
or in any way connected with such person or persons, firms or corporation. Each
and every person who may become a director of this corporation is hereby
relieved from any liability that might otherwise exist from thus contracting
with this corporation for the benefit of himself or herself or any other firm,
association or corporation in which he or she may in any way be interested. Any
director of this corporation may vote upon any contract or other transaction
between the corporation and any subsidiary or controlled company without regard
to the fact that he or she is also a director of such subsidiary or controlled
company.
ARTICLE XI
These Articles of Incorporation may be amended, changed, altered or
repealed in the manner now or hereafter prescribed by the Florida Statutes and
all rights conferred upon stockholders herein are granted subject to this
reservation.
-4-
ARTICLE XII
The corporation shall commence its existence on the date the charter
for this corporation is approved by the Secretary of State.
WITNESS my hand and seal this 11th day of April, 1986.
/s/ John Staluppi
-----------------
JOHN STALUPPI
-5-
EX 3.131
CERTIFICATE OF INCORPORATION
OF
WESTBURY NISSAN LTD.
FILER:
ALAN RICHARDS
100 RING ROAD WEST
GARDEN CITY, NY 11530
CERTIFICATE OF INCORPORATION
OF
WESTBURY NISSAN LTD.
Under Section 402 of the Business Corporation Law
The undersigned, a natural person of the age of eighteen years or
over, desiring to form a corporation pursuant to the provisions of the
Business Corporation Law of the State of New York, hereby certifies as
follows:
FIRST: The name of the corporation is:
WESTBURY NISSAN LTD.
SECOND: The purpose for which it is formed is as follows:
To engage in any lawful act or activity for which corporations may be
formed under the Business Corporation Law provided that the corporation is not
formed to engage in any act or activity which requires the consent or approval
of any state official, department, board agency or other body, without such
approval or consent first being contained.
For the accomplishment of the aforesaid purposes, and in furtherance
thereof, the corporation shall have and may exercise all of the powers
conferred by the Business Corporation Law upon corporations formed thereunder,
subject to any limitations contained in Article 2 of said law or in accordance
with the provisions of any other statute of the State of New York.
THIRD: The office of the corporation in the State of New York is to
be located in the County of Suffolk.
FOURTH: The aggregate number of shares which the corporation shall
have the authority to issue is 200, no par value.
FIFTH: The Secretary of State is designated as agent of the
corporation upon whom process against the corporation may be served, and the
address to which the Secretary of State shall
mail a copy of any process against the corporation served upon him is: 205
Sunrise Highway, West Islip, NY 11795.
SIXTH: A director of the corporation shall not be liable to the
corporation or its shareholders for damages for any breach of duty in such
capacity except for liability if a judgment or other final adjudication
adverse to a director establishes that his or her acts or omissions were in
bad faith or involved intentional misconduct or a knowing violation of law or
that the director personally gained in fact a financial profit or other
advantage to which he or she was not legally entitled or that the director's
acts violated Section 719 of the Business Corporation Law; or liability for
any act or omission prior to the adoption of this provision.
IN WITNESS WHEREOF, I hereunto sign my name and affirm that the
statements made herein are true under the penalties of perjury.
DATED: February 5, 1991
/s/Scott J. Schuster
- -----------------------
Scott J. Schuster, Incorporator
283 Washington Avenue
Albany, New York 12206
-2-
EX 3.133
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
WESTBURY TOYOTA, LTD.
Under Section 805 of the Business Corporation Law
FILER:
ALAN RICHARDS
100 RING ROAD WEST
GARDEN CITY, NY 11530
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
WESTBURY TOYOTA, LTD.
Under Section 805 of the Business Corporation Law
IT IS HEREBY CERTIFIED THAT:
(1) The name of the corporation is:
WESTBURY TOYOTA, LTD.
(2) The certificate of incorporation was filed by the Department
of State on the 3rd day of October, 1989.
(3) The certificate of incorporation is hereby amended to effect
the following change(s):
To amend the name of the corporation in the first paragraph.
The first paragraph shall now read as follows:
FIRST: The name of the corporation is:
WESTBURY SUPERSTORE, LTD.
(4) The above amendment to the certificate of incorporation was
authorized by vote of the board of directors followed by a vote of the holders
of a majority of all outstanding shares entitled to vote thereon.
IN WITNESS WHEREOF, this certificate has been subscribed by the
undersigned who affirm(s) that the statements made herein are true under
penalties of perjury.
DATED: July 2, 1996
------------
/S/JOHN STALUPPI /S/JEANETTE STALUPPI
- ------------------ --------------------------
JOHN STALUPPI JEANETTE STALUPPI
PRESIDENT SECRETARY
CERTIFICATE OF INCORPORATION
OF
WESTBURY TOYOTA LTD.
Under Section 402 of the Business Corporation Law
FILER:
Alan Richards
100 Ring Road West
Garden City, NY 11530
CERTIFICATE OF INCORPORATION
OF
WESTBURY TOYOTA LTD.
Under Section 402 of the Business Corporation Law
The undersigned, a natural person of the age of eighteen years or
over, desiring to form a corporation pursuant to the provisions of the
Business Corporation Law of the State of New York, hereby certifies as
follows:
FIRST: The name of the corporation is
WESTBURY TOYOTA LTD.
hereinafter sometimes called "the corporation."
SECOND: The purpose for which it is formed is as follows:
The purpose for which this corporation is organized is to engage in
any lawful act or activity for which corporations may be formed under the
Business Corporation Law provided that the corporation is not formed to engage
in any act or activity which requires the consent or approval of any state
official, department, board, agency or other body, without such consent or
approval first being obtained.
For the accomplishment of the aforesaid purposes, and in furtherance
thereof, the corporation shall have and may exercise all of the powers
conferred by the Business Corporation Law upon corporations formed thereunder,
subject to any limitations contained in Article 2 of said law or in accordance
with the provisions of any other statute of the State of New York.
THIRD: The office of the corporation in the State of New
York is to be located in the County of Nassau.
FOURTH: The aggregate number of shares which the corporation
shall have the authority to issue is 200, no par value.
FIFTH: The Secretary of State is designated as the agent of
the corporation upon whom process against the corporation may be served, and
the address to which the Secretary of State shall mail a copy of any process
against the corporation served upon him is c/o Alan Richards, 100 Ring Road
West, Garden City, NY 11530.
IN WITNESS WHEREOF I hereunto sign my name and affirm that statements
made herein are true under penalties of perjury this 2nd day of October, 1989.
Incorporator: /s/Linda Pellitier
--------------------------
Address: Linda Pellitier
283 Washington Avenue
Albany, New York 12206
-2-
EX 3.135
CERTIFICATE OF INCORPORATION
OF
UAG CAROLINA, INC.
FIRST: The name of the corporation is UAG Carolina, Inc.
SECOND: The address of the corporation's registered office in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City
of Wilmington, County of New Castle. The name of the corporation's registered
agent at such address is The Corporation Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act
or activity for which corporations may be organized under the Delaware General
Corporation Law.
FOURTH: The total number of shares of stock which the corporation is
authorized to issue is one thousand (1,000) shares of common stock, having a
par value of one dollar ($1.00) per share.
FIFTH: The business and affairs of the corporation shall be managed
by or under the direction of the board of directors, and the directors need
not be elected by ballot unless required by the by-laws of the corporation.
SIXTH: In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware, the board of directors is expressly
authorized to make, amend and repeal by-laws.
SEVENTH: 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 international misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit. If
the Delaware General Corporation Law 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 Delaware General Corporation Law, as so
amended. Any repeal or modification of this provision shall not adversely
affect any right or protection of a director of the corporation existing at
the time of such repeal or modification.
EIGHTH: The corporation reserves the right to amend and repeal any
provision contained in this Certificate of Incorporation in the manner from
time to time prescribed by the laws of the State of Delaware. All rights
herein conferred are granted subject to this reservation.
NINTH: The incorporator is David G. Thunhorst, Esq. whose mailing
address is 2700 International Tower, Peachtree Center, 229 Peachtree Street,
N.E., Atlanta, Georgia 30303, County of Fulton.
I, the Undersigned, being the incorporator, for the purpose of
forming a corporation under the laws of the State of Delaware,
-2-
do make, file and record this Certificate of Incorporation and, accordingly,
have hereto set my hand this lst day of May, 1997.
/s/ David G. Thunhorst
---------------------------
David G. Thunhorst
-3-
EX 3.137
DUPLICATE ORIGINAL
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF INCORPORATION
OF
GENE REED CHEVROLET, INC.
For Use By (File This Form in This Space For Use By
The Secretary of State The Secretary of State
File No............... Duplicate Originals)
Fee Paid $............
R.N...................
Date..................
......................
......................
(INSTRUCTIONS ON PAGE 4)
1. The name of the proposed corporation is Gene Reed Chevrolet, Inc.
2. The initial registered office of the corporation is
4001 Dorchester Road
(Street and Number)
located in the city of Charleston , county of Charleston and
the State of South Carolina and the name of its initial registered agent
at such address is Gene Reed
3. The period of duration of the corporation shall be perpetual.
4. The corporation is authorized to issue shares of stock as follows:
CLASS OF SHARES AUTHORIZED NO. OF EACH CLASS PAR VALUE
Common 5,000 $ 100.00
-------------------------------- ----------------------------------- ----------------------------------------
-------------------------------- ----------------------------------- ----------------------------------------
-------------------------------- ----------------------------------- ----------------------------------------
-------------------------------- ----------------------------------- ----------------------------------------
-------------------------------- ----------------------------------- ----------------------------------------
-------------------------------- ----------------------------------- ----------------------------------------
If shares are divided into two or more classes or if any class of shares
is divided into series within a class, the relative rights, preferences, and
limitations of the shares of each class, and of each series within a class,
are as follows:
Only one class of shares and that class in not divided into series
within the class.
5. Total authorized capital stock $500,000.00
Please see instructions on Page 4.
6. It is represented that the corporation will not begin business until
there has been paid into the corporation the minimum consideration for
the issue of shares, which is $1,000.00 of which at least $500.00 is in
cash.
7. The number of directors constituting the initial board of directors of the
corporation is ,and the names and addresses of the persons who
are to serve as directors until the first annual meeting of shareholders
or until their successors be elected and qualify are:
/s/ Gene Reed 256 Winfield Drive, Spartanburg, S.C. 29302
------------------------------ --------------------------------------------------
Name Address
/s/ Charles J. Bradshaw 609 Crystal Drive, Spartanburg, S.C. 29302
------------------------------ --------------------------------------------------
Name Address
/s/ Johnnie B. Reed 256 Winfield Drive, Spartanburg, S.C. 29302
------------------------------ --------------------------------------------------
Name Address
------------------------------ --------------------------------------------------
Name Address
------------------------------ --------------------------------------------------
Name Address
------------------------------ --------------------------------------------------
Name Address
------------------------------ --------------------------------------------------
Name Address
8. The general nature of the business for which the corporation is organized
is (it is not necessary to set forth in the purposes powers enumerated in
Section (33-3-10 of 1976 Code).
To engage in the business of purchasing, acquiring, owning, leasing
as lessee or lessor, selling at retail or wholesale, transferring,
encumbering, generally dealing in, repairing, renovating, and servicing all
types of new and used automobiles, trucks, other motor vehicles, and marine
and industrial engines of every kind and description whatsoever and any parts
or accessories used in connection therewith; and the purchasing, acquiring,
owning, selling, and generally dealing in all types of supplies used by all
types of motor vehicles and marine and industrial engines; to handle,
purchase, sell, trade, lease, exchange and generally deal in, at wholesale or
retail, any and all types of personal property and real estate; and to do any
and all acts and things in connection therewith or related thereto or in
furtherance thereof.
9. Provisions which the incorporators elect to include in the articles of
incorporation are as follows:
None
10. The name and address of each incorporator is.
NAME STREET & BOX NO. CITY COUNTY STATE
Gene Reed 256 Winfield Drive, Spartanburg, Spartanburg, S. C. 29302
/s/ Gene Reed
-----------------------------------
(Signature of Incorporator)
Date February 25, 1981 Gene Reed
------------------------------ -----------------------------------
(Type or Print Name)
-----------------------------------
(Signature of Incorporator)
-2-
----------------------------------------
(Type or Print Name)
----------------------------------------
(Signature of Incorporator)
-----------------------------------------
(Type or Print Name)
STATE OF SOUTH CAROLINA
-------------------------------------------------------------
COUNTY OF SPARTANBURG
-------------------------------------------------------------
The undersigned Gene Reed does
-------------------------------------------------------------
- -------------------------------------------------------------------------------
hereby certify that he is the incorporator of Gene Reed Chevrolet, Inc.
Corporation and is authorized to execute this verification; that the
undersigned for himself does hereby further certify that he has read the
foregoing document, understands the meaning and purport of the statements
therein contained and the same are true to the best of his information and
belief.
/s/ Gene Reed
-----------------------------
(Signature of Incorporator)
Gene Reed
-----------------------------
(Signature of Incorporator)
-----------------------------
(Signature of Incorporator)
(Each Incorporator Must Sign)
CERTIFICATE OF ATTORNEY
11. I, Dwight F. Patterson, Jr., an attorney licensed to practice in the
State of South Carolina, certify that the corporation, to whose
articles of incorporation this certificate is attached, has complied
with the requirements of chapter 7 of Title 33 of the South Carolina
Code of 1976, relating to the organization of corporations, and that
in my opinion, the corporation is organized for a lawful purpose.
Date February 25, 1981 /s/ Dwight F. Patterson, Jr.
------------------ ------------------------------------------
(Signature)
Dwight F. Patterson, Jr.,
-------------------------------------------
(Type or Print Name)
Address: P.O. Box 1655
---------------------------------
Spartanburg, South Carolina 29304
---------------------------------
-3-
SCHEDULE OF FEES
(Payable at time of filing Articles of With Secretary of State)
Fee for filing Articles $ 5.00
In addition to the above, $.40 for each
$1,000.00 of the aggregate value of
shares which the Corporation is autho-
rized to issue, but in not case less than 40.00
nor more than 1,000.00
NOTE: THIS FORM MUST BE COMPLETED IN ITS ENTIRETY BEFORE IT
WILL BE ACCEPTED FOR FILING. THIS FORM MUST BE ACCOMPANIED
BY THE FIRST REPORT OF CORPORATIONS AND A CHECK IN THE
AMOUNT OF $10 PAYABLE TO THE SOUTH CAROLINA TAX COMMISSION.
Please see instructions on the reverse side.
-4-
STATE OF SOUTH CAROLINA
OFFICE OF THE SECRETARY OF STATE
JOHN T. CAMPBELL
INSTRUCTIONS FOR PREPARING ARTICLES OF INCORPORATION
No. 1 NAME - must NOT be similar to an existing CORPORATION, INCORPORATION, LIMITED or the
abbreviation of one of these.
No. 2 Must have a complete street address (as POST OFFICE BOX IS NOT ACCEPTABLE) and it may be the
address of the corporation or one of its officers.
The AGENT may be an officer or employee of the corporation
or it may be an attorney.
No. 3 Self explanatory.
No. 4 CLASS OF SHARES -- must be common and may include some preferred.
AUTHORIZED SHARES -- is the number of shares which the
corporation may issue.
PAR VALUE -- will be the value of each share to be sold.
No. 5 AUTHORIZED CAPITAL -- is equal to number of shares times par value as shown by No. 4.
No. 6 Self explanatory.
No. 7 Name and COMPLETE address (street or box number) for the initial board of directors.
The number of directors shall consist of at least three
except if shareholders are less than three -- then you have
one (1) director for each shareholder.
No. 8 MUST BRIEFLY state the SPECIFIC purposes for which the corporation is organized.
No. 9 Usually not used.
No. 10 Must have name and address (street or box number) of EACH incorporator (may be one or more
incorporators).
No. 10 - PAGE 2. Each incorporator must sign.
No. 10 - PAGE 3. Verification must be COMPLETED and SIGNED by EACH incorporator.
No. 11 CERTIFICATE OF ATTORNEY -- must be signed by an attorney LICENSED to practice in the STATE OF
SOUTH CAROLINA.
FEES -- Authorized capital NOT exceeding $100,000, fee is $45.
Authorized capital exceeding $100,000, fee is $45 PLUS $.40 for each $1,000 exceeding $100,000.
MAXIMUM FEE IS $1,005.
When no par stock is used, a $10 par is assumed for the
basis of computing the filing fee.
NOTE-- These articles are filed in duplicate and must be accompanied by the first report of
corporations and check of $10, MADE PAYABLE TO THE S.C. TAX COMMISSION.
NAME AVAILABILITY SHOULD BE CLEARED IN WRITING. CLEARANCE BY TELEPHONE IS NOT RECOMMENDED AS IT IS NOT OFFICIAL.
-5-
EX-3.138
BY-LAWS
OF
GENE REED CHEVROLET, INC.
ARTICLE I.
Name and Location
Section 1. Name. The name of this Corporation shall be Gene Reed Chevrolet,
Inc.
Section 2. Principal Office. Its principal office shall be located in the
County of Charleston, State of South Carolina.
Section 3. Other Offices. Other offices for the transaction of business shall
be located at such places as the Board of Directors may from time to time
determine.
ARTICLE II.
Capital Stock
Section 1. Authorized Capital Stock. The amount of the authorized capital stock
of the Corporation shall be Five Hundred Thousand and 00/100 ($500,000.00)
Dollars, which shall be divided into five thousand (5,000) shares of cam-on
stock of the par value of one Hundred and 00/100 ($100.00) Dollars per share.
Section 2. Certificate of Stock. All certificates of stock shall be signed by
the President and the Secretary shall be sealed with the corporate seal.
Section 3. Transfers of Stock. Transfers of stock shall be made only on the
backs of the- Corporation and the old certificate, properly endorsed, shall be
surrendered and cancelled before a new certificate is issued. For the purpose
of determining shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, the Board of Directors may close the
stock transfer books for a period not to exceed fifty (50) days but not less
than ten (10) full days immediately preceeding the date of such meeting. For
the purpose of determining shareholders entitled to receive payment of a
dividend or other distribution, or in order to make a determination of
shareholders for any other purpose, the Board of Directors my close the stock
transfer books for a period not to exceed fifty (50) days prior to the date on
which the particular action requiring such determination of shareholders is to
be taken.
Section 4. Loss or Destruction of Certificate. In case of loss or destruction
of a certificate of stock, no new certificate shall be issued in lieu thereof
except upon satisfactory proof to the Board of Directors of such loss or
destruction, and upon the giving of satisfactory security, by bond
or otherwise, against loss to the Corporation. Any new certificate issued
shall be plainly marked "Duplicate" upon its face.
Section 5. Certificate Notation. Each certificate of the common stock of the
Corporation shall have printed or typed thereon the words "This common stock
cannot be hypothecated, sold, given or otherwise transferred unless and until
all provisions and conditions of Sections 6, 7, 8, 9, 10 and 11 of Article II
of the By-laws, as now in effect, have been fully complied with".
Section 6. Hypothecation. Hypothecation of the shares of common stock of the
Corporation is hereby expressly prohibited and any such hypothecation shall be
invalid and of no force nor effect, UNLESS at the time of the proposed
hypothecation all holders of shares of the cannon stock of the Corporation
consent in writing to the hypothecation.
Section 7. Transfer Restrictions. In the event a shareholder during his
lifetime desires or intends to dispose of, by sale, gift or other type
transfer, any or all of the shares of common stock of the Corporation owned by
him, or in the event of the death of a shareholder, the Corporation and/or the
remaining shareholders shall have the following options:
a. In the event of a proposed sale, gift or other type
transfer by a shareholder during his lifetime, the Corporation shall
have the option to purchase any or all of the shares of common stock
of the Corporation proposed to be sold or proposed to be the subject
of the gift or proposed to be otherwise transferred at its appraised
value and all remaining shareholders shall have the option of
purchasing at its appraised value any or all of such shares not
purchased by the Corporation.
b. In the event of the death of a shareholder, the
Corporation shall have the option to purchase any or all of the
shares of common stock of the Corporation owned by the deceased
shareholder at the time of his death at its appraised value and all
remaining shareholders shall have the option of purchasing at its
appraised value any or all of such shares not purchased by the
Corporation.
Section 8. Notices and Payment. In the event a shareholder desires or intends
to dispose of such common stock, he shall promptly give written notice of such
desire or intention to the Corporation and to all remaining shareholders and
shall include in such notice full and complete information regarding the
proposed transfer. In the event of the death of a shareholder, his executors
or administrators or heirs shall promptly give
-2-
written notice of such death to the Corporation and to all remaining
shareholders. Within sixty (60) days after receipt of the appraisers' report
provided for in Section 9 hereof, the Corporation shall give written notice to
the concerned shareholder or to the deceased shareholder's executors,
administrators or heirs and to all remaining shareholders of its election as
to whether or not it will exercise its option. Failure on the part of the
Corporation to give such written notice within said sixty (60) day period
shall be tantamount to and construed as refusal to exercise the option. In the
event of failure or refusal of the Corporation to exercise its option, then
within sixty (60) days after such refusal or failure each remaining
shareholder shall give written notice to the concerned shareholder or to the
deceased shareholder's executors, administrators or heirs and to the
Corporation and to all other remaining shareholders of his election as to
whether or not he elects to participate with the other remaining shareholders
in exercising their option. No transfer of any shares of stock of the
Corporation shall be valid or effected on the books of the Corporation unless
the above referred to written notice has been given to the Corporation and to
the remaining shareholders and all other provisions and conditions hereof have
been fully complied with. The purchase price for any and all shares of stock
of the Corporation being sold either to the Corporation or to the
shareholders, or both, shall be paid within sixty (60) days after notice of
election to exercise the option has been given or, in the event appraisal is
required, within sixty (60) days after receipt of the appraiser's report.
Section 9. Determination of Appraised Value. Whenever herein reference is made
to "appraised value", such appraised value shall be determined in the
following manner. The concerned shareholder or his representative shall
promptly nominated one appraiser; the Board of Directors of the Corporation
shall promptly nominate one appraiser; and the two appraisers so nominated
shall promptly nominated the third appraiser. These three appraisers shall
promptly determine the value of each share of the stock of the Corporation and
in doing so shall take into consideration the prices paid in connection with
other sales of shares of said stock, if any, the book value, price-earnings
ratio, dividends paid, potential earning capacity, value of stock of
corporations similar in size and activity and such other factors as the
appraisers may deem to be helpful and appropriate and shall furnish a copy of
their appraisal to the concerned shareholder, to the Corporation and to the
remaining shareholders. The appraisal so made and reported by a majority of
the appraisers shall be final and binding upon the concerned shareholder, the
Corporation and the remaining shareholders. The cost of such appraisal shall
be borne equally by the Corporation and the concerned shareholder.
Section 10. Remaining Shareholders. Whenever reference is hereinabove made to
"remaining shareholders", such reference shall be construed to mean all
holders of shares of common stock
-3-
of the Corporation as reflected upon the books of the Corporation at the time
except the shareholder desiring or intending to dispose of his shares of stock
or the deceased shareholder or the representatives of the deceased
shareholder.
Section 11. Corporate Actions. All actions by the Corporation concerning its
foregoing options shall be by its Board of Directors. In the event the
concerned shareholder is a member of the Board, he shall not participate in
its action.
ARTICLE III.
Shareholders' Meetings
Section 1. Annual Meetings. The annual meeting of the shareholders shall be
held each year on the first Monday of the third month following the close of
the fiscal year of the Corporation, if such date is not a legal holiday, and
if a legal holiday, then on the first following day that is not a legal
holiday. Such meting shall be held at the principal office of the Corporation
or at such other place as the notice thereof may designate. At such meting the
shareholders shall elect directors to serve until their successors shall be
elected and qualified and shall transact such other business as may properly
come before the meeting.
Section 2. Special Meetings. A special meeting of the shareholders to be held
at such place as the notice thereof may designate my be called at any time by
the President, by a majority of the Board of Directors or by the holders of
not less than ten (10%) percent of the stock of the Corporation. It shall be
the duty of the President, and in his absence of the directors, to call such a
special meeting whenever so requested by a majority of the directors or by the
holders of not less than ten (10%) percent of the stock of the Corporation.
Section 3. Notice of Meeting. Notice of the time and place of all annual and
special meetings shall be mailed by the Secretary to each shareholder of
record not less than ten (10) nor more than fifty (50) days before the date of
the meeting. Notice of a special meeting shall also specify the purpose or
purposes for which the meeting is called. By unanimous consent of the
shareholders, special meetings may be held without notice at any time and
place.
Section 4. Voting. At every such meeting each holder of stock shall be
entitled to cast one vote for each share of stock held in his name, which vote
may be cast by him either in person or by proxy. All proxies shall be in
writing and shall be filed with the Secretary and by him entered of record in
the minutes of the meeting.
-4-
Section 5. Quorum. A majority of the shares entitled to vote thereat shall
constitute a quorum at a meeting of shareholders, for the transaction of any
business, provided that when a specified item of business is required to be
voted an by a class or classes, a majority of the shares of such class or
classes shall constitute a quorum for the transaction of such items of
business.
Section 6. Adjournment. In the absence of a quorum, any meeting of
shareholders may be adjourned from time to time by vote of a majority of the
shares present.
Section 7. Removal of Director. A director may be removed, with or without
cause, by a vote of the holders of the majority of shares then entitled to
vote at an election of the directors provided that no director who has been
elected by cumulative voting may be removed if the votes cast against his
removal would be sufficient to elect him if then cumulatively voted at an
election of the entire Board of Directors.
Section 8. Waiver of Notice. Notice of a meeting of shareholders need not be
given to any shareholder who signs a waiver of notice, in person or by proxy,
either before or after the meeting. Neither the business transacted nor the
purpose of the meeting need be specified in the waiver.
Section 9. Proxies. Every shareholder entitled to vote may appoint one or more
agents to vote on his behalf. Such appointment shall be by a printed or
written proxy executed by the shareholder or by his duly appointed attorney in
fact, or by a telegram or cablegram appearing to have been transmitted by a
shareholder. No proxy shall be valid after the expiration of eleven (11)
months from the date of its execution.
Section 10. Consent Action. Action which shareholders are required or
permitted to take may be taken without a meeting if a written consent, setting
forth the action so taken, is signed by the holders of all outstanding shares
entitled to vote an such action and is filed with the Secretary of this
Corporation as part of the corporate records. Such written consent shall have
the same effect as a unanimous vote of the shareholders.
ARTICLE IV.
Directors
Section 1. Number of Directors. The business and property of the Corporation
shall be managed by a board of not less than three (3) nor more than five (5)
directors who shall be elected by the shareholders; provided, however, if all
shares of the Corporation are owned beneficially and of record by fewer than
three (3) shareholders, the number of directors may be less than three (3) but
not less than the number of shareholders.
-5-
Section 2. Organizational Meeting. As soon as practicable after the filing
date of the Articles of Incorporation, an organizational meeting of the Board
of Directors named in the Articles of Incorporation shall be held to adopt
by-laws of the Corporation, to elect officers, to do any other or further acts
to complete the organization of the Corporation and to transact such other
business as may come before the meeting. At least three (3) days' notice of
such meeting shall be given to each director who fails to sign a waiver of
notice. No notice of such meeting need be given to any director who signs such
waiver.
Section 3. Regular Meetings. Regular meetings of the Board of Directors shall
be held at such time and place as may be fixed from time to time by resolution
of the Board of Directors. Notice of such meetings need not be given.
Section 4. Special Meetings. Special meetings of the Board of Directors may be
held whenever called by the President or any two directors. Notice of the time
and place of such special meting shall be given to each director personally or
by mail, telephone, telegraph, wire or cable at least twenty-four (24) hours
prior to the time fixed for the meeting.
Section 5. Quorum. A quorum for the transaction of business at any regular or
special meeting of the directors shall consist of a majority of the members of
the Board then in office; but a majority of those present at any regular or
special meting shall have the power to adjourn the meting to a future time.
Section 6. Election of Officers. The directors shall elect the officers of the
Corporation, such election to be held at the first regular directors' meeting
following the annual shareholders' meeting. The directors may fill any
vacancies in any of the offices of the Corporation at any meeting of the
Board. The directors shall fix the compensation of the officers of the
Corporation.
Section 7. Vacancies. Vacancies on the Board of Directors may be filled by a
majority of the remaining directors or by a sole remaining director.
Section 8. Waiver of Notice. Notice of a meeting of directors need not be
given to any director who signs a waiver of notice, either before or after the
meeting. Attendance of a director at a meeting shall of itself constitute a
waiver of notice of such meeting, except where a director attends a meeting
solely for the purpose of stating his objection, at the beginning of the
meeting, to the transaction of any business on the ground that the meeting is
not lawfully called or convened. Neither the business to be transacted at, nor
the purpose of any regular or special meeting of the Board of Directors need
be specified in the notice or waiver of notice.
-6-
Section 9. Consent Action. Action taken without a meeting by a majority of
directors shall be deemed action of the Board of Directors if all directors
execute either before or after the action is taken, a written consent thereto,
and the consent is filed with the records of the Corporation.
ARTICLE V.
Officers
Section 1. Officers. The officers of the Corporation shall be a President, one
or more Vice Presidents, a Secretary and a Treasurer, each of whom shall hold
office until his successor is duly elected and qualified. The directors may
also elect an Assistant Secretary and an Assistant Treasurer, each of whom
shall hold office until his successor is elected and qualified or his office
abolished, whichever may first occur. Officers shall perform such duties as
are hereinafter prescribed for the respective office and such other duties as
may be prescribed by the Board of Directors and/or by the President. Any two
or more offices may be held by the same person, but no officer may act in more
than one capacity where action by two or more officers is required.
Section 2. President. The President shall preside at all shareholders'
meetings and at all directors' meetings. He shall be the chief executive
officer and shall have general supervision over the affairs of the Corporation
and over the other officers and the employees of the Corporation. He shall
have authority to fix compensation of all employees and he may delegate such
authority. He shall have authority to employ a general manager or to designate
an officer as general manager and to fix the compensation for such position.
All contracts, deeds and leases shall be signed either by him or by such other
officer as he or the Board of Directors may designate. He shall perform such
other duties as are incident to his office.
Section 3. Vice President(s). In the absence of the President, the Vice
President with the longest seniority shall preside at all shareholders'
meetings and at all directors' meetings. The Vice President(s) shall perform
such duties as are assigned to him or them by the Board of Directors and/or by
the President. In the event of the death, disability and/or absence of the
President or when directed to perform such duties by the President or by the
Board of Directors, the Vice President with the longest seniority shall have
authority to perform all of the duties of the President.
Section 4. Secretary. The Secretary shall keep and have charge of all
corporate books, records and papers, shall issue notices of all directors' and
shareholders' meetings, shall attend and keep the minutes of all directors'
and shareholders' meetings, shall be custodian of the corporate seal, shall
attest with his
-7-
signature and impress with the corporate seal all stock certificates, and
shall perform all such other duties as are incident to his office or are
assigned to him by the President or by the Board of Directors.
Section 5. Treasurer. The Treasurer shall have custody of all money and
securities of the Corporation and, if the directors so require, shall give
bond in such sum and with such sureties as the directors may require
conditioned upon the faithful performance of the duties of his office. He
shall keep regular books of accounts and shall submit them, together with all
vouchers, receipts, records and other papers related thereto, to the directors
and/or the President for examination and approval as often as they or the
President may require, and shall perform all such other duties as are incident
to his office or are assigned to him by the President or by the Board of
Directors.
ARTICLE VI.
Indemity of Directors, Officers,
Employees and Agents
Section 1. Right of Indemnity. The Corporation shall indemnify and save
harmless all directors, officers, employees or agents of the Corporation
against all liability and expenses arising from his or her encumbency in such
capacity to the fullest extent permitted by the laws of the State of South
Carolina.
Section 2. Right Inures to Estate, et al. The right of indemnity shall inure
to the estate, executor, administrator, heirs, legatees, or devisees of any
person entitled to indemnification hereunder.
Section 3. Insurance. 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 of the Corporation
against any liability and expenses asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
Corporation would have power to indemnify him against such liability and
expenses.
ARTICLE VII.
Finance and Dividends
Section 1. Fiscal Year. The fiscal year of the Corporation shall be determined
by the Board of Directors.
-8-
Section 2. Dividends. Dividends may be declared out of unreserved and
unrestricted earned surplus from time to time by resolution of the Board of
Directors.
Section 3. Deposit of Funds. The funds of the Corporation shall be deposited
in such banks, trust companies or other depositories as the directors shall
designate and shall be withdrawn only upon the check or order of such officer
or officers of the Corporation as the directors shall designate.
ARTICLE VIII.
Amendments
Section 1. The by-laws may be adopted, amended or repealed, in whole or in
part, by the directors by a vote of the majority of the directors then holding
office or by the shareholders by a vote of a majority of all shares entitled
to vote to elect directors. Any notice of a meeting of shareholders or of
directors at which by-laws are to be adopted, amended or repealed, in whole or
in part, shall include notice of such proposed action.
-9-
EXHIBIT 3.139
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF INCORPORATION
1. The name of the proposed corporation is Michael Chevrolet -- Oldsmobile,
Inc.
2. The initial registered office of the corporation is 7501 Rivers Avenue
---------------------
Street & Number
North Charleston Charleston 29410
- ------------------------------------------------------------------------------
City Country Zip Code
and the initial registered agent as such address is Gene Reed, Jr.
---------------------
3. The corporation is authorized to issue shares of stock as follows:
Complete a or b, whichever is applicable:
a. [x] If the corporation is authorized to issue a single class of
shares, the total number of shares authorized is 100,000.
-------------
b. [ ] The corporation is authorized to issue more than one class of
shares:
Class of Shares Authorized No. of Each Class
--------------------- --------------------------------
--------------------- --------------------------------
--------------------- --------------------------------
The relative rights, preferences, and limitations of the shares of each
class, and of each series within a class, are as follows:
N/A
4. The existence of the corporation shall begin when these articles are filed
with the Secretary of State unless a delayed date is indicated (See
(Section) 33-1-230(b)): N/A
-------
5. The optional provisions which the corporation elects to include in the
articles of incorporation are as follows (See (Section)33-2-102 and the
applicable comments thereto; and 35-2-105 and 35-2-221 of the 1976 South
Carolina Code):
N/A
The name and address of each incorporator is as follows (only one is required):
Name Address Signature
Gene Reed, Jr. 7501 Rivers Ave., N.Charleston, SC 29410 /s/ Gene Reed, Jr.
- --------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
I, Irvin G.Condon, an attorney licensed to practice in the State of South
Carolina, certify that the corporation, to whose articles of incorporation this
certificate is attached, has complied with the requirements of Chapter 2,
Title 33 of the 1976 South Carolina Code relating to the articles of
incorporation.
Date June 21, 1990 /s/ Irvin G. Condon
------------- ----------------------------
Signature
Irvin G. Condon
----------------------------
(Type or Print Name)
Rosen, Rosen & Hagood
Address P.O. Box 893
---------------------
Charleston, SC 29402
------------------------------
FILING INSTRUCTIONS
1. Two copies of this form, the original and either a duplicate or a
conformed copy, must be filed.
2. If the space in this form is insufficient, please attach additional sheets
containing a reference to the appropriate paragraph in this form.
3. Schedule of Fees -- payable at time of filing this document
Fee for filing Application -- payable to Secretary of State $10.00
Filing Tax -- Payable to Secretary of State 100.00
Minimum License Fee -- payable to SC Tax Commission 25.00
4. THIS FORM MUST BE ACCOMPANIED BY THE FIRST REPORT OF CORPORATIONS (SEE
(SECTION)12-19-201), AND A CHECK IN THE AMOUNT OF $25.00 PAYABLE TO THE
SOUTH CAROLINA TAX COMMISSION.
Form Approved by South Carolina
Secretary of State 1/89
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF AMENDMENT
Pursuant (Section)3-10-106 of the 1976 South Carolina Code, as amended,
the undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
1. The name of the corporation is Michael Chevrolet -- Oldsmobile, Inc..
2. On August 2, 1990, the corporation adopted the following Amendment(s) of
its Articles of Incorporation:
(Type or attach the complete text of Each Amendment)
Resolved that the corporation is authorized to issue 200,000 shares of
stock and Paragraph 3.a of the Articles of Incorporation shall be amended
to state the authorized shares as 200,000.
3. The manner, if not set forth in the amendment, in which any exchange,
reclassification, or cancellation of issued shares provided for in the
Amendment shall be effected, is as follows: (if not applicable, insert
"not applicable" or "NA").
N/A
4. Complete either a or b, whichever is applicable.
a. [ ] Amendment(s) adopted by shareholder action.
At the date of adoption of the amendment, the number of outstanding
shares of each voting group entitled to vote separately on the
Amendment, and the vote of such shares was:
Number of Number of Number of Votes Number of Undisputed*
Voting Outstanding Votes Entitled Represented at the Shares Voted
Group Shares to be Cast meeting For Against
- ----- ------ ---------- ------- --------------
N/A
*NOTE: Pursuant to Section 33-10-106(6)(i), the corporation can alternatively
state the total number of undisputed shares cast for the amendment by
each voting group together with a statement that the number of cast
for the amendment by each voting group was sufficient for approval
by that voting group.
b. [x] The Amendment(s) was duly adopted by the incorporators or
board of directors without shareholder approval pursuant to
(Section)33-6-102(d), 33-10-102 and 33-10-105 of the 1976
South Carolina Code as amended, and shareholder action was
not required.
5. Unless a delayed date is specified, the effective date of these Articles
of Amendment shall be the date of acceptance for filing by the Secretary
of State (See (Section)33-1-230(b)): ____________
DATE 3/1/91 Michael Chevrolet -- Oldsmobile, Inc.
- ---- ------ -------------------------------------
(Name of Corporation)
By: /s/ Gene Reed, Jr.
-----------------------------------
(Signature)
Gene Reed, Jr. President
-------------------------------------
(Type or Print Name and Office)
FILING INSTRUCTIONS
1. Two copies of this form, the original and either a duplicate original or
a conformed copy, must be filed.
2. If the space in this form is insufficient, please attach additional sheets
containing a reference to the appropriate paragraph in this form.
3. Filing fees and taxes payable to the Secretary of State at time of filing
application.
Filing Fee $10.00
Filing tax 100.00
Total $110.00
Form Approved by South Carolina
Secretary of State 1/89
EX-3.140
BY-LAWS OF MICHAEL CHEVROLET-OLDSMOBILE, INC.
ARTICLE I. OFFICES
SS. 1.1 BUSINESS OFFICE.
The original principal office of the corporation shall be within in
the State of South Carolina and shall be located in the City of North
Charleston, County of Charleston. The board of directors may change
the location of the principal office. The corporation shall maintain
at its principal office a copy of certain records, as specified in ss.
2.14 of Article II. The corporation may have such other offices,
either within or without the State of South Carolina, as the board of
directors may designate or as the business of the corporation may
require from time to time.
SS. 1.2 REGISTERED OFFICE.
The registered office of the corporation, required by ss. 33-5-101,
S.C. Revised Code may be, but need not be, identical with the
principal office in the state of South Carolina, and the address of
the registered office may be changed from time to time.
ARTICLE II. SHAREHOLDERS
SS. 2.1 ANNUAL MEETING.
The annual meeting of the shareholders shall be held on the first
Monday of March, in each year, beginning with the year 1991, at the
hour of 10 o'clock a.m. or at such other time on such other day within
such month as shall be fixed by the board of directors, for the
purpose of electing directors and for the transaction of such other
business as may come before the meeting. If the day fixed for the
annual meeting shall be a legal holiday in the State of South
Carolina, such meeting shall be held on the next succeeding business
day.
If the election of directors shall not be held on the day designated
herein for any annual meeting of the shareholders, or at any
subsequent continuation after adjournment thereof, the board of
directors shall cause the election to be held at a special meeting of
the shareholders as soon thereafter as convenient.
SS. 2.2 SPECIAL MEETINGS.
Special meetings of the shareholders, for any purpose or purposes,
described in the meeting notice, may be called by
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the president, or by the board of directors, and shall be called by
the president at the request of the holders of not less than one-tenth
of all outstanding votes of the corporation entitled to be cast on any
issue at the meeting.
SS. 2.3 PLACE OF MEETING.
The board of directors may designate any place within the county in
South Carolina where the company has its principal office as the place
of meeting for any annual or special meeting of the shareholders,
unless all the shareholders entitled to vote at the meeting agree by
written consents (which may be in the form of waiver of notice or
otherwise) to another location, which may be either within or without
the state of South Carolina. If no designation is made, the place of
meeting shall be the principal office of the corporation in the state
of South Carolina.
SS. 2.4 NOTICE OF MEETING.
(a) Required notice.
Written notice stating the place, day and hour of any annual or
special shareholder meeting shall be delivered not less than ten
nor more than sixty days before the date of the meeting, either
personally or by mail, by or at the direction of the president,
the board of directors or other persons calling the meeting, to
each shareholder of record entitled to vote at such meeting and
to any other shareholder entitled by the South Carolina Business
Corporation Act of 1988 or the articles of incorporation to
receive notice of the meeting. Notice shall be deemed to be
effective at the earlier of: (1) when deposited in the United
States mail, addressed to the shareholder at his address as it
appears on the stock transfer books of the corporation, with
postage thereon prepaid, (2) on the date shown on the return
receipt if sent by registered or certified mail, return receipt
requested, and the receipt is signed by or on behalf of the
addressee, (3) when received, or (4) 5 days after deposit in the
United States mail, if mailed postpaid and correctly addressed to
an address other than that shown in the corporation's current
record of shareholders.
(b) Adjourned Meeting.
If any shareholder meeting is adjourned to a different date,
time, or place, notice need not be given of the new date, time or
place, if the new date, time and place is announced at the
meeting before adjournment. If a new record date for the
adjourned meeting is, or must be, fixed (see ss. 2.5 of
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this Article II) then notice must be given pursuant to the
requirements of paragraph (a) of this ss. 2.4, to those persons
who are shareholders as of the new record date.
(c) Waiver of Notice.
The shareholder may waive notice of the meeting (or any notice
required by the Act, articles of incorporation, or bylaws), by a
writing signed by the shareholder entitled to the notice, which
is delivered to the corporation (either before or after the date
and time stated in the notice) for inclusion in the minutes or
filing with the corporate records.
A shareholder's attendance at a meeting:
(1) waives objection to lack of notice or defective notice of
the meeting, unless the shareholder at the beginning of the
meeting objects to holding the meeting or transacting
business at the meeting;
(2) waives objection to consideration of a particular matter at
the meeting that is not within the purpose or purposes
described in the meeting notice, unless the shareholder
objects to considering the matter when it is presented.
(d) Contents of Notice.
The notice of each special shareholder meeting shall include a
description of the purpose or purposes for which the meeting is
called. Except as provided in this ss.2.4(d), or as provided in
the corporation's articles, or otherwise in the South Carolina
Business Corporation Act, the notice of an annual shareholder
meeting need not include a description of the purpose or purposes
for which the meeting is called.
If a purpose of any shareholder meeting is to consider either:
(1) a proposed amendment to the articles of incorporation
(including any restated articles requiring shareholder approval);
(2) a plan of merger or share exchange; (3) the sale, lease,
exchange or other disposition of all, or substantially all of the
corporation's property; (4) the adoption, amendment or repeal of
a bylaw; (5) dissolution of the corporation; or, (6) removal of a
director, the notice must so state and be accompanied by
respectively a copy or summary of the: (1) articles of amendment;
(2) plan of merger or share exchange; (3) transaction for
disposition of all the corporation's property; or (4) bylaw
proposal. If
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the proposed corporation action creates dissenter's rights, the
notice must state that shareholders are, or may be entitled to
assert dissenter's rights, and must be accompanied by a copy of
Chapter #13 of South Carolina Business Corporation Act. If the
corporation issues, or authorizes the issuance of shares for
promissory notes or for promises to render services in the
future, the corporation shall report in writing to all the
shareholders the number of shares authorized or issued, and the
consideration received with or before the notice of the next
shareholder meeting. Likewise, if the corporation indemnities or
advances expenses to a director (as defined in ss.33-16-210 South
Carolina Revised Code Ann.), this shall be reported to all the
shareholders with or before notice of the next shareholder's
meeting.
SS. 2.5 FIXING OF RECORD DATE.
For the purpose of determining shareholders of any voting group
entitled to notice of or to vote at any meeting of shareholders, or
shareholders entitled to receive payment of any distribution or
dividend, or in order to make a determination of shareholders for any
other proper purpose, the board of directors may fix in advance a date
as the record date. Such record date shall not be more than seventy
days prior to the date on which the particular action, requiring such
determination of shareholders, is to be taken. If no record date is so
fixed by the board for the determination of shareholders entitled to
notice of, or to vote at a meeting of shareholders, or shareholders
entitled to receive a share dividend or distribution, the record date
for determination of such shareholders shall be at the close of
business on:
(a) With respect to an annual shareholder meeting or any special
shareholder meeting called by the board or any person
specifically authorized by the board or these bylaws to call a
meeting, the day before the first notice is delivered to
shareholders;
(b) With respect to a special shareholder's meeting demanded by the
shareholders, the date the first shareholder signs the demand;
(c) With respect to the payment of a share dividend, the date the
board authorizes the share dividend;
(d) With respect to actions taken in writing without a meeting
(pursuant to Article IIss. 2.12), the date the first shareholder
signs a consent;
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(e) And with respect to a distribution to shareholders, (other than
one involving a repurchase or reacquisition of shares), the date
the board authorizes the distribution.
When a determination of shareholders entitled to vote at any meeting
of shareholders has been made as provided in this section, such
determination shall apply to any adjournment thereof unless the board
of directors fixes a new record date which it must do if the meeting
is adjourned to a date more than 120 days after the date fixed for the
original meeting.
SS. 2.6 SHAREHOLDER LIST.
The officer or agent having charge of the stock transfer books for
shares of the corporation shall make a complete record of the
shareholders entitled to vote at each meeting of shareholders thereof,
arranged in alphabetical order, with the address of and the number of
shares held by each. The list must be arranged by voting group (if
such exists, see Art. II, ss. 2.7) and within each voting group by
class or series of shares. The shareholder's list must be available
for inspection by any shareholder, beginning on the date on which
notice of the meeting is given for which the list was prepared and
continuing through the meeting. The list shall be available at the
corporation's principal office or at a place identified in the meeting
notice in the city where the meeting is to be held. A shareholder, his
agent or attorney is entitled on written demand to inspect, and
subject to the requirements of ss. 2.14 of this Article II, to copy
the list at his expense during regular business hours, and during the
period it is available for inspection. The corporation shall maintain
the shareholder list in written form or in another form capable of
conversion into written form within a reasonable time.
SS. 2.7 QUORUM AND VOTING REQUIREMENTS.
If the articles of incorporation or the South Carolina Business
Corporation Act of 1988 provides for voting by a single voting group
on a matter, action on that matter is taken when voted upon by that
voting group.
Shares entitled to vote as a separate voting group may take action on
a matter at a meeting only if a quorum of those shares exists with respect to
that matter. Unless the articles of incorporation, a bylaw adopted pursuant to
ss. 2.8 of this Article II, or the South Carolina Business Corporation Act of
1988 provide otherwise, a majority of the votes entitled to be cast on the
matter by the voting group constitutes a quorum of that voting group for action
on that matter.
If the articles of incorporation or the South Carolina Business
Corporation Act provide for voting by two or more
5
voting groups on a matter, action on that matter is taken only when
voted upon by each of those voting groups counted separately. Action
may be taken by one voting group on a matter even though no action is
taken by another voting group entitled to vote on the matter.
Once a share is represented for any purpose at a meeting, it is deemed
present for quorum purposes If a quorum exists, action on a matter (other than
the election of directors) by a voting group is approved if the votes cast
within the voting group favoring the action exceed the votes cast opposing the
action, unless the articles of incorporation, a bylaw adopted pursuant to ss.
2.8 of this Article II, or the South Carolina Business Corporation Act of 1988
require a greater number of affirmative votes.
SS. 2.8 INCREASING EITHER QUORUM OR VOTING REQUIREMENTS.
For purposes of this ss. 2.8 a "supermajority" quorum is a requirement
that more than a majority of the votes of the voting group be present
to constitute a quorum; and a "supermajority" voting requirement is
any requirement that requires the vote of more than a majority of the
affirmative votes of a voting group at a meeting.
The shareholders, but only if specifically authorized to do so by the
articles of incorporation, may adopt, amend or delete a bylaw which fixes a
"supermajority" quorum or "supermajority" voting requirement.
The adoption or amendment of a bylaw that adds, changes, or deletes a
"supermajority" quorum or voting requirement for shareholders must meet the
same quorum requirement and be adopted by the same vote and voting groups
required to take action under the quorum and voting requirement then in effect
or proposed to be adopted, whichever is greater.
A bylaw that fixes a supermajority quorum or voting requirement for
shareholders may not be adopted, amended, or repealed by the board of
directors.
SS. 2.9 PROXIES.
At all meetings of shareholders, a shareholder may vote in person, or
vote by proxy which is executed in writing by the shareholder or which
is executed by his duly authorized attorney-in-fact. Such proxy shall
be dated and filed with the secretary of the corporation or other
person authorized to tabulate votes before or at the time of the
meeting. Unless a time of expiration is otherwise specified, a proxy
is valid for eleven months. A proxy is revocable unless executed in
compliance with S.C. Code Ann. ss. 33-7-220(d), or any succeeding
statute of like tenor and effect.
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SS. 2.10 VOTING OF SHARES.
Unless otherwise provided in the articles, and subject to the
cumulative voting provisions of ss.2.13 of this Article II, each
outstanding share entitled to vote shall be entitled to one vote upon
each matter submitted to a vote at a meeting of shareholders.
Except as provided by specific court order, no shares held by another
corporation, if a majority of the shares entitled to vote for the election of
directors of such other corporation are held by the corporation, shall be voted
at any meeting or counted in determining the total number of outstanding shares
at any given time for purposes of any meeting. Provided, however, the prior
sentence shall not limit the power of the corporation to vote any shares,
including its own shares, held by it in a fiduciary capacity.
Redeemable shares are not entitled to vote after notice of redemption
is mailed to the holders and a sum sufficient to redeem the shares has been
deposited with a bank, trust company, or other financial institution under an
irrevocable obligation to pay the holders the redemption price on surrender of
the shares.
SS. 2.11 CORPORATION'S ACCEPTANCE OF VOTES.
(a) If the name signed on a vote, consent, waiver, or proxy
appointment corresponds to the name of a shareholder, the
corporation if acting in good faith is entitled to accept the
vote, consent, waiver, or proxy appointment and give it effect as
the act of the shareholders.
(b) If the name signed on a vote, consent, waiver, or proxy
appointment does not correspond to the name of its shareholder,
the corporation if acting in good faith is nevertheless entitled
to accept the vote, consent, waiver, or proxy appointment and
give it effect as the act of the shareholder if:
(1) the shareholder is an entity as defined in the South
Carolina Business Corporation Act of 1988 and the name
signed purports to be that of an officer or agent of the
entity;
(2) the name signed purports to be that of an administrator,
executor, guardian, or conservator representing the
shareholder and, if the corporation requests, evidence of
fiduciary status acceptable to the corporation has been
presented with respect to the vote, consent, waiver, or
proxy appointment;
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(3) the name signed purports to be that of a receiver or trustee
in bankruptcy of the shareholder and, if the corporation
requests, evidence of this status acceptable to the
corporation has been presented with respect to the vote,
consent, waiver, or proxy appointment;
(4) the name signed purports to be that of a pledgee, beneficial
owner, or attorney-in-fact of the shareholder and, if the
corporation requests, evidence acceptable to the corporation
of the signatory's authority to sign for the shareholder has
been presented with respect to the vote, consent, waiver, or
proxy appointment;
(5) two or more persons are the shareholder as co-tenants or
fiduciaries and the name signed purports to be the name of
at least one of the co-owners and the person signing appears
to be acting on behalf of all the co-owners.
(c) The corporation is entitled to reject a vote, consent, waiver, or
proxy appointment if the secretary or other officer or agent
authorized to tabulate votes, acting in good faith, has
reasonable basis for doubt about the validity of the signature on
it or about the signatory's authority to sign for the
shareholder.
(d) The corporation and its officer or agent who accepts or rejects a
vote, consent, waiver, or proxy appointment in good faith and in
accordance with the standards of this section are not liable in
damages to the shareholder for the consequences of the acceptance
or rejection.
(e) Corporate action based on the acceptance or rejection of a vote,
consent, waiver, or proxy appointment under this section is valid
unless a court of competent jurisdiction determines otherwise.
SS. 2.12 INFORMAL ACTION BY SHAREHOLDERS.
Any action required or permitted to be taken at a meeting of the
shareholders may be taken without a meeting if one or more consents in
writing, setting forth the action so taken, shall be signed by all of
the shareholders entitled to vote with respect to the subject matter
thereof and are delivered to the corporation for inclusion in the
minute book. If the act to be taken requires that notice be given to
non-voting shareholders, the corporation shall give the non-voting
shareholders written notice of the proposed action at least 10 days
before the action is taken, which notice shall contain or be
accompanied by the same material that would
8
have been required if a formal meeting had been called to consider the
action. A consent signed under this section has the effect of a
meeting vote and may be described as such in any document.
SS. 2.13 VOTING FOR DIRECTORS.
(a) General Provision.
Unless otherwise provided in the articles, at each election for
directors every shareholder entitled to vote at such election
shall have the right to vote, in person or by proxy, the number
of votes he is entitled to cast for as many persons as there are
directors to be elected and for whose election he has a right to
vote, and, if notice of cumulative voting has been given either
as provided in subsection (b)(1) or (b)(2) , to cumulate his
votes.
(b) Notice of Cumulative Voting.
Notice of cumulative voting shall be given either by:
(1) the meeting notice or proxy statement accompanying the
notice, which states conspicuously that cumulative voting is
authorized; or
(2) a shareholder who has the right to cumulate his votes shall
either (a) give written notice of his intention to the
president or other officer of the corporation not less than
forty-eight hours before the time fixed for the meeting,
which notice must be announced in the meeting before the
voting, or (b) announce his intention in the meeting before
the voting for directors commences; and all shareholders
entitled to vote at the meeting shall without further notice
be entitled to cumulate their votes.
(c) Recess.
If cumulative voting is to be used, the person presiding may, or
if requested by any shareholder shall, recess the meeting for a
reasonable time to allow deliberation by shareholders, not to
exceed two hours.
(d) Plurality Requirement.
Unless otherwise provided in the articles of incorporation,
directors are elected by a plurality of the votes cast by the
shares entitled to vote in
9
the election at a meeting at which a quorum is present.
SS. 2.14 SHAREHOLDER'S RIGHTS TO INSPECT CORPORATE RECORDS.
(a) Minutes and Accounting Records.
The corporation shall keep as permanent records minutes of all
meetings of its shareholders and board of directors, a record of
all actions taken by the shareholders or board of directors
without a meeting, and a record of all actions taken by a
committee of the board of directors in place of the board of
directors on behalf of the corporation. The corporation shall
maintain appropriate accounting records.
(b) Absolute Inspection Rights of Records Required at Principal
Office.
If he gives the corporation written notice of his demand at least
five business days before the date on which he wishes to inspect
and copy, a shareholder (or his agent or attorney) has the right
to inspect and copy, during regular business hours any of the
following records, all of which the corporation is required to
keep at its principal office:
(1) its articles or restated articles of incorporation and all
amendments to them currently in effect;
(2) its bylaws or restated bylaws and all amendments to them
currently in effect;
(3) resolutions adopted by its board of directors creating one
or more classes or series of shares, and fixing their
relative rights, preferences, and limitations, if shares
issued pursuant to those resolutions are outstanding;
(4) the minutes of all shareholders' meetings, and records of
all action taken by shareholders without a meeting, for the
past 10 years;
(5) all written communications to shareholders generally within
the past three years, including the financial statement
furnished for the past three years to the shareholders;
(6) a list of the names and business addresses of its current
directors and officers;
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(7) its most recent annual report delivered to the Tax
Commission; and
(8) if the shareholder owns at least one percent of any class of
shares, he may inspect and copy its federal and state income
tax returns for the last ten years.
(c) Conditional Inspection Right.
In addition, if he gives the corporation a written demand made in
good faith and for a proper purpose at least five business days
before the date on which he wishes to inspect and copy, he
describes with reasonable particularity his purpose and the
records he desires to inspect, and the records are directly
connected with his purpose, a shareholder of a corporation (or
his agent or attorney) is entitled to inspect and copy, during
regular business hours at a reasonable location specified by the
corporation, any of the following records of the corporation:
(1) excerpts from minutes of any meeting of the board of
directors, records of any action of a committee of the board
of directors on behalf of the corporation, minutes of any
meeting of the shareholders, and records of action taken by
the shareholders or board of directors without a meeting, to
the extent not subject to inspection under paragraph (a) of
thisss. 2.14.
(2) accounting records of the corporation; and
(3) the record of shareholders (compiled no earlier than the
date of the shareholder's demand).
(d) Copy Costs.
The right to copy records includes, if reasonable, the right to
receive copies made by photographic, xerographic, or other means.
The corporation may impose a reasonable charge, covering the
costs of labor and material, for copies of any documents provided
to the shareholder. The charge may not exceed the estimated cost
of production or reproduction of the records.
SS. 2.15 FINANCIAL STATEMENTS SHALL BE FURNISHED TO THE SHAREHOLDERS.
(a) The corporation shall furnish its shareholders annual financial
statements, which may be consolidated or combined statements of
the corporation and one or more of its subsidiaries, as
appropriate, that
11
include a balance sheet as of the end of the fiscal year, an
income statement for that year, and a statement of changes in
shareholders' equity for the year unless that information appears
elsewhere in the financial statements. If financial statements
are prepared for the corporation on the basis of generally
accepted accounting principles, the annual financial statements
for the shareholders also must be prepared on that basis.
(b) If the annual financial statements are reported upon by a public
accountant, his report must accompany them. If not, the
statements must be accompanied by a statement of the president or
the person responsible for the corporation's accounting records:
(1) stating his reasonable belief whether the statements were
prepared on the basis of generally accepted accounting
principles and, if not, describing the basis of preparation;
and
(2) describing any respects in which the statements were not
prepared on a basis of accounting consistent with the
statements prepared for the preceding year.
(c) A corporation shall mail the annual financial statements to each
shareholder within 120 days after the close of each fiscal year.
Thereafter, on written request from a shareholder who was not
mailed the statements, the corporation shall mail him the latest
financial statements
SS. 2.16 DISSENTER'S RIGHTS
Each shareholder shall have the right to dissent from, and obtain
payment for his shares when so authorized by the South Carolina
Business Corporation Act of 1988, articles of incorporation, these
bylaws, or in a resolution of the board of directors.
ARTICLE III. BOARD OF DIRECTORS
SS. 3.1 GENERAL POWERS.
Unless the articles of incorporation have dispensed with or limited
the authority of the board of directors by describing who will perform
some or all of the duties of a board of directors, all corporate
powers shall be exercised by or under the authority of, and the
business and affairs of the corporation shall be managed under the
direction of the board of directors.
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SS. 3.2 NUMBER, TENURE AND QUALIFICATIONS OF DIRECTORS.
Unless otherwise provided in the articles of incorporation, the number
of directors of the corporation shall be one. Each director shall hold
office until the next annual meeting of shareholders or until removed.
However, if his term expires, he shall continue to serve until his
successor shall have been elected and qualified or until there is a
decrease in the number of directors. Directors need not be residents
of the state of South Carolina or shareholders of the corporation
unless so required by the articles of incorporation.
SS. 3.3 REGULAR MEETINGS.
Unless otherwise provided in the articles, a regular meeting of the
board of directors shall be held without other notice than this bylaw
immediately after, and at the same place as, the annual meeting of
shareholders. The board of directors may provide, by resolution, the
time and place (which shall be within the county where the company's
principal office is located) for the holding of additional regular
meetings without other notice than such resolution. (If so permitted
by ss. 3.7, any such regular meeting may be held by telephone.)
SS. 3.4 SPECIAL MEETINGS.
Unless otherwise provided in the articles, special meetings of the
board of directors may be called by or at the request of the president
or any one director. The person authorized to call special meetings of
the board of directors may fix any place, only within the County of
South Carolina where this corporation has its principal office as the
place for holding any special meeting of the board of directors, or if
permitted by ss. 3.7, such meeting may be held by telephone.
SS. 3.5 NOTICE OF SPECIAL MEETING.
Unless the articles of incorporation provide for a longer or shorter
period, notice of any special meeting shall be given at least two days
previously thereto either orally or in writing. If mailed, such notice
shall be deemed to be effective at the earlier of: (1) when received;
(2) 5 days after deposited in the United States mail, addressed to the
director's business office, with postage thereon prepaid; or (3) the
date shown on the return receipt if sent by registered or certified
mail, return receipt requested, and the receipt is signed by or on
behalf of the director. Any director may waive notice of any meeting.
Except as provided in the next sentence, the waiver must be in
writing, signed by the director entitled to the notice, and filed with
the minutes or corporate records. The attendance of a director at a
meeting shall constitute a waiver of notice of such meeting, except
where a director
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attends a meeting for the express purpose of objecting to the
transaction of any business and at the beginning of the meeting (or
promptly upon his arrival) objects to holding the meeting or
transacting business at the meeting, and does not thereafter vote for
or assent to action taken at the meeting.
SS. 3.6 DIRECTOR QUORUM.
A majority of the number of directors in office immediately before the
meeting begins shall constitute a quorum for the transaction of
business at any meeting of the board of directors, unless the articles
require a greater number. Any amendment to this quorum requirement is
subject to the provisions ofss.3.8 of this Article III.
SS. 3.7 MANNER OF ACTING.
(a) Required Vote
The act of the majority of the directors present at a meeting at
which a quorum is present when the vote is taken shall be the act
of the board of directors unless the articles of incorporation
require a greater percentage. Any amendment which changes the
number of directors needed to take action, is subject to the
provisions ofss.3.8 of this Article III.
(b) Telephone Meeting
Unless the articles of incorporation provide otherwise, any or
all directors may participate in a regular or special meeting by,
or conduct the meeting through the use of, any means of
communication by which all directors participating may
simultaneously hear each other during the meeting. A director
participating in a meeting by this means is deemed to be present
in person at the meeting.
(c) Failure To Object To Action
A director who is present at a meeting of the board of directors
or a committee of the board of directors when corporate action is
taken is deemed to have assented to the action taken unless: (1)
he objects at the beginning of the meeting (or promptly upon his
arrival) to holding it or transacting business at the meeting; or
(2) his dissent or abstention from the action taken is entered in
the minutes of the meeting; or (3) he delivers written notice of
his dissent or abstention to the presiding officer of the meeting
before its adjournment or to the corporation immediately after
adjournment of the meeting. The
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right of dissent or abstention is not available to a director who
votes in favor of the action taken.
SS. 3.8 ESTABLISHING A "SUPERMAJORITY" QUORUM OR VOTING REQUIREMENT.
For purposes of this ss. 3.8, a "supermajority" quorum is a
requirement that more than a majority of the directors in office
constitute a quorum; and a "supermajority" voting requirement is any
requirement that requires the vote of more than a majority of those
directors present at a meeting at which a quorum is present to be the
act of the directors.
A bylaw that fixes a supermajority quorum or supermajority voting
requirement may be amended or repealed:
(1) if originally adopted by the shareholders, only by the
shareholders (unless otherwise provided by the shareholders);
(2) if originally adopted by the board of directors, either by the
shareholders or by the board of directors.
A bylaw adopted or amended by the shareholders that fixes a
supermajority quorum or supermajority voting requirement for the board of
directors may provide that it may be amended or repealed only by a specified
vote of either the shareholders or the board of directors.
Subject to the provisions of the preceding paragraph, action by the
board of directors to adopt, amend, or repeal a bylaw that changes the
quorum or voting requirement for the board of directors must meet the
same quorum requirement and be adopted by the same vote required to
take action under the quorum and voting requirement then in effect or
proposed to be adopted, whichever is greater.
SS. 3.9 ACTION WITHOUT A MEETING.
Unless the articles of incorporation provide otherwise, action
required or permitted by this the South Carolina Business Corporation
Act of 1988, to be taken at a board of directors' meeting may be taken
without a meeting if the action is assented to by all members of the
board.
The action may be evidence by one or more written consents describing
the action taken, signed by each director, and included in the minutes or filed
with the corporate records reflecting the action taken. Action evidenced by
written consents under this section is effective when the last director signs
the consent, unless the consent specifies a different effective date. A consent
signed under this section has the effect of a meeting vote and may be described
as such in any document.
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SS. 3.10 REMOVAL OF A DIRECTOR
The shareholders may remove one or more directors at a meeting called
for that purpose if notice has been given that a purpose of the
meeting is such removal. The removal may be with or without cause
unless the articles provide that directors may only be removed with
cause. If a director is elected by a voting group of shareholders,
only the shareholders of that voting group may participate in the vote
to remove him. If cumulative voting is authorized, a director may not
be removed if the number of votes sufficient to elect him under
cumulative voting is voted against his removal. If cumulative voting
is not authorized, a director may be removed only if the number of
votes cast to remove him exceeds the number of votes cast not to
remove him.
SS. 3.11 VACANCIES.
Unless the articles of incorporation provide otherwise, if a vacancy
occurs on a board of directors, including a vacancy resulting from an
increase in the number of directors, the shareholders may fill the
vacancy. During such time that the shareholders fail or are unable to
fill such vacancies then and until the shareholders act:
(1) the board of directors may fill the vacancy; or
(2) if the directors remaining in office constitute fewer than a
quorum of the board, they may fill the vacancy by the affirmative
vote of a majority of all the directors remaining in office.
If the vacant office was held by a director elected by a voting group
of shareholders, only the holders of shares of that voting group are entitled
to vote to fill the vacancy if it is filled by the shareholders.
A vacancy that will occur at a specific later date (by reason of a
resignation effective at a later date) may be filled before the vacancy occurs
but the new director may not take office until the vacancy occurs.
The term of a director elected to fill a vacancy expires at the next
shareholders' meeting at which directors are elected. However, if his term
expires, he shall continue to serve until his successor is elected and
qualifies or until there is a decrease in the number of directors.
SS. 3.12 COMPENSATION.
Unless otherwise provided in the articles, by resolution of the board
of directors, each director may be paid his expenses, if any, of
attendance at each meeting of the board of directors, and may be paid
a stated salary as director or
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a fixed sum for attendance at each meeting of the board of directors
or both. No such payment shall preclude any director from serving the
corporation in any capacity and receiving compensation therefor.
SS. 3.13 COMMITTEES.
(a) Creation of Committees.
Unless the articles of incorporation provide otherwise, the board
of directors may create one or more committees and appoint
members of the board of directors to serve on them. Each
committee must have two or more members, who serve at the
pleasure of the board of directors.
(b) Selection of Members.
The creation of a committee and appointment of members to it must
be approved by the greater of (1) a majority of all the directors
in office when the action is taken or (2) the number of directors
required by the articles of incorporation to take such action,
(or if not specified in the articles the numbers required by, ss.
3.7 of this Article III to take action).
(c) Required Procedures.
ss.ss. 3.4, 3.5, 3.6, 3.7, 3.8 and 3.9 of this Article III, which
govern meetings, action without meetings, notice and waiver of
notice, quorum and voting requirements of the board of directors,
apply to committees and their members.
(d) Authority.
Unless limited by the articles of incorporation, each committee
may exercise those aspects of the authority of the board of
directors which the board of directors confers upon such
committee in the resolution creating the committee. Provided,
however, a committee may not:
(1) authorize distributions;
(2) approve or propose to shareholders action that the South
Carolina Business Corporation Act of 1988 requires be
approved by shareholders;
(3) fill vacancies on the board of directors or on any of its
committees;
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(4) amend the articles of incorporation pursuant to the
authority of directors, to do so granted byss.33-10-102 of
the South Carolina Revised Code;
(5) adopt, amend, or repeal bylaws;
(6) approve a plan of merger not requiring shareholder approval;
(7) authorize or approve reacquisition of shares, except
according to a formula or method prescribed by the board of
directors; or
(8) authorize or approve the issuance or sale or contract for
sale of shares or determine the designation and relative
rights, preferences, and limitations of a class or series of
shares, except that the board of directors may authorize a
committee (or a senior executive officer of the corporation)
to do so within limits specifically prescribed by the board
of directors.
ARTICLE IV. OFFICERS
SS. 4.1 NUMBER.
The officers of the corporation shall be a president, a secretary, and
a treasurer, each of whom shall be appointed by the board of
directors. Such other officers and assistant officers as may be deemed
necessary, including any vice-presidents, may be appointed by the
board of directors. If specifically authorized by the board of
directors, an officer may appoint one or more officers or assistant
officers. The same individual may simultaneously hold more than one
office in the corporation.
SS. 4.2 APPOINTMENT AND TERM OF OFFICE.
The officers of the corporation shall be appointed by the board of
directors for a term as determined by the board of directors. (The
designation of a specified term grants to the officer no contract
rights, and the board can remove the officer at any time prior to the
termination of such term). If no term is specified, they shall hold
office until they resign, die, or until they are removed in the manner
provided in ss. 4.3 of this Article IV.
SS. 4.3 REMOVAL.
Unless appointed by the shareholders, any officer or agent may be
removed by the board of directors at any time, with or without cause.
Any officer or agent appointed by the
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shareholders may be removed by the shareholders with or without cause.
Such removal shall be without prejudice to the contract rights, if
any, of the person so removed. Appointment of an officer or agent
shall not of itself create contract rights.
SS. 4.4 PRESIDENT.
The president shall be the principal executive officer of the
corporation and, subject to the control of the board of directors,
shall in general supervise and control all of the business and affairs
of the corporation. He shall, when present, preside at all meetings of
the shareholders and of the board of directors. He may sign, with the
secretary or any other proper officer of the corporation thereunto
authorized by the board of directors, certificates for shares of the
corporation and deeds, mortgages, bonds, contracts, or other
instruments which the board of directors has authorized to be
executed, except in cases where the signing and execution thereof
shall be expressly delegated by the board of directors or by these
bylaws to some other officer or agent of the corporation, or shall be
required by law to be otherwise signed or executed; and in general
shall perform all duties incident to the office of president and such
other duties as may be prescribed by the board of directors from time
to time.
SS. 4.5 THE VICE-PRESIDENTS.
If appointed, in the absence of the president or in the event of his
death, inability or refusal to act, the vice-president (or in the
event there be more than one vice-president, the vice-presidents in
the order designated at the time of their election, or in the absence
of any designation, then in the order of their appointment) shall
perform the duties of the president, and when so acting, shall have
all the powers of and be subject to all the restrictions upon the
president. (If there is no vice-president, then the treasurer shall
perform such duties of the president). Any vice-president may sign,
with the secretary or an assistant secretary, certificates for shares
of the corporation the issuance of which have been authorized by
resolution of the board of directors; and shall perform such other
duties as from time to time may be assigned to him by the president or
by the board of directors.
SS. 4.6 THE SECRETARY.
The secretary shall: (a) keep the minutes of the proceedings of the
shareholders and of the board of directors in one or more books
provided for that purpose; (b) see that all notices are duly given in
accordance with the provisions of these bylaws or as required by law;
(c) be custodian of the corporate records and of any seal of the
corporation and if
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there is a seal of the corporation, see that it is affixed to all
documents the execution of which on behalf of the corporation under
its seal is duly authorized; (d) when requested or required,
authenticate any records of the corporation; (e) keep a register of
the post office address of each shareholder which shall be furnished
to the secretary by such shareholder; (f) sign with the president, or
a vicepresident, certificates for shares of the corporation, the
issuance of which shall have been authorized by resolution of the
board of directors; (g) have general charge of the stock transfer
books of the corporation; and (h) in general perform all duties
incident to the office of secretary and such other duties as from time
to time may be assigned to him by the president or by the board of
directors.
SS. 4.7 THE TREASURER.
The treasurer shall: (a) have charge and custody of and be responsible
for all funds and securities of the corporation; (b) receive and give
receipts for moneys due and payable to the corporation from any source
whatsoever, and deposit all such moneys in the name of the corporation
in such banks, trust companies or other depositories as shall be
selected by the board of directors; and (c) in general perform all of
the duties incident to the office of treasurer and such other duties
as from time to time may be assigned to him by the president or by the
board of directors. If required by the board of directors, the
treasurer shall give a bond for the faithful discharge of his duties
in such sum and with such surety or sureties as the board of directors
shall determine.
SS. 4.8 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS.
The assistant secretaries, when authorized by the board of directors,
may sign with the president or a vice-president certificates for
shares of the corporation the issuance of which shall have been
authorized by a resolution of the board of directors. The assistant
treasurers shall respectively, if required by the board of directors,
give bonds for the faithful discharge of their duties in such sums and
with such sureties as the board of directors shall determine. The
assistant secretaries and assistant treasurers, in general, shall
perform such duties as shall be assigned to them by the secretary or
the treasurer, respectively, or by the president or the board of
directors.
SS. 4.9 SALARIES.
The salaries of the officers shall be fixed from time to time by the
board of directors.
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ARTICLE V. INDEMNIFICATION
OF DIRECTORS, OFFICERS, AGENTS,
AND EMPLOYEES
SS. 5.1 INDEMNIFICATION OF DIRECTORS.
Unless otherwise provided in the articles, the corporation shall
indemnify any individual made a party to a proceeding because he is or
was a director of the company, against liability incurred in the
proceeding, but only if such indemnification is both (i) permissible
and (ii) authorized, as defined in subsection (a) of this ss. 5.1.
(Such indemnification is further subject to the limitation specified
in subsection (c).)
(a) Determination and Authorization
The corporation shall not indemnify a director under this ss. 5.1
of Article V unless:
(1) Determination:
A determination has been made in accordance with the
procedures set forth in ss. 33-8-550(b) of the South
Carolina Revised Code that the director met the standard of
conduct set forth in subsection (b) below, and
(2) Authorization:
The board of directors (as specified in ss. 33-8550(c))
authorizes payment after they have concluded that the
expenses are reasonable, the corporation has the financial
ability to make the payment, and that the financial
resources of the company should be devoted to this use
rather than some other use by the corporation.
(b) Standard of Conduct
The individual shall demonstrate that:
(1) he conducted himself in good faith; and
(2) he reasonably believed:
(i) in the case of conduct in his official capacity with the
corporation, that his conduct was in its best interests; and
(ii) in all other cases, that his conduct was at least not
opposed to its best interests; and
(iii) in the case of any criminal proceeding, he had no
reasonable cause to believe his conduct was unlawful.
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The corporation shall not indemnify a director under this ss. 5.1
of Article V:
(1) in connection with a proceeding by or in the right of the
corporation in which the director was adjudged liable to the
corporation; or
(2) in connection with any other proceeding charging improper
personal benefit to him, whether or not involving action in his
official capacity, in which he was adjudged liable on the basis
that personal benefit was improperly received by him.
(c) Indemnification in Derivative Actions Limited
Indemnification permitted under this ss. 5.1 of Article V in
connection with a proceeding by or in the right of the
corporation is limited to reasonable expenses incurred in
connection with the proceeding.
SS. 5.2 ADVANCE EXPENSES FOR DIRECTORS
If a determination is made, following the procedures of Article V ss.
5.1(a), that the director has met the following requirements; and if an
authorization of payment is made, also following the procedures and standards
set forth in Article V ss. 5.1(a); then unless otherwise provided in the
articles of incorporation, the company shall pay for or reimburse the
reasonable expenses incurred by a director who is a party to a proceeding in
advance of final disposition of the proceeding, if:
(1) the director furnishes the corporation a written affirmation of
his good faith belief that he has met the standard of conduct
described in subsection (b) ofss.5.1 of this Article V.
(2) the director furnishes the corporation a written undertaking,
executed personally or on his behalf, to repay the advance if it
is ultimately determined that he did not meet the standard of
conduct (which undertaking must be an unlimited general
obligation of the director but need not be secured and may be
accepted without reference to financial ability to make
repayment); and
(3) a determination is made that the facts then known to those making
the determination would not preclude indemnification under
section 5.1 of this Article V orss. 33-8-500 throughss.33-8-580
of the South Carolina Revised Code.
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SS. 5.3 INDEMNIFICATION OF OFFICERS, AGENTS, AND EMPLOYEES WHO ARE NOT
DIRECTORS.
Unless otherwise provided in the articles of incorporation, the board
of directors may indemnify and advance expenses to any officer,
employee, or agent of the corporation, who is not a director of the
corporation, to any extent, consistent with public policy, as
determined by the general or specific action of the board of
directors.
ARTICLE VI. CERTIFICATES FOR
SHARES AND THEIR TRANSFER
SS. 6.1 CERTIFICATES FOR SHARES.
(a) Content.
Certificates representing shares of the corporation shall at
minimum, state on their face the name of the issuing corporation
and that it is formed under the laws of South Carolina; the name
of the person to whom issued; and the number and class of shares
and the designation of the series, if any, the certificate
represents; and be in such form as determined by the board of
directors. Such certificates shall be signed (either manually or
by facsimile) by the president or a vice-president and by the
secretary or an assistant secretary and may be sealed with a
corporate seal or a facsimile thereof. Each certificate for
shares shall be consecutively numbered or otherwise identified.
(b) Legend as to Class or Series.
If the corporation is authorized to issue different classes of
shares or different series within a class, the designations,
relative rights, preferences, and limitations applicable to each
class and the variations in rights, preferences, and limitations
determined for each series (and the authority of the board of
directors to determine variations for future series) must be
summarized on the front or back of each certificate.
Alternatively, each certificate may state conspicuously on its
front or back that the corporation will furnish the shareholder
this information on request in writing and without charge.
(c) Shareholder List.
The name and address of the person to whom the shares represented
thereby are issued, with the number of
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shares and date of issue, shall be entered on the stock transfer
books of the corporation.
(d) Transferring Shares.
All certificates surrendered to the corporation for transfer
shall be cancelled and no new certificate shall be issued until
the former certificate for a like number of shares shall have
been surrendered and cancelled, except that in case of a lost,
destroyed or mutilated certificate a new one may be issued
therefor upon such terms and indemnity to the corporation as the
board of directors may prescribe.
SS. 6.2 [RESERVED]
SS. 6.3 REGISTRATION OF THE TRANSFER OF SHARES.
Registration of the transfer of shares of the corporation shall be
made only on the stock transfer books of the corporation. In order to
register a transfer, the record owner shall surrender the shares to
the corporation for cancellation, properly endorsed by the appropriate
person or persons with reasonable assurances that the endorsements are
genuine and effective. Subject to the provisions of ss. 33-7-300(d) of
the South Carolina Revised Code (relating to shares held in a voting
trust), and unless the corporation has established a procedure by
which a beneficial owner of shares held by a nominee is to be
recognized by the corporation as the owner, the person in whose name
shares stand on the books of the corporation shall be deemed by the
corporation to be the owner thereof for all purposes.
SS. 6.4 RESTRICTIONS ON TRANSFER OF SHARES PERMITTED.
The board of directors (or shareholders) may impose restrictions on
the transfer or registration of transfer of shares (including any security
convertible into, or carrying a right to subscribe for or acquire shares). A
restriction does not affect shares issued before the restriction was adopted
unless the holders of the shares are parties to the restriction agreement or
voted in favor of the restriction.
A restriction on the transfer or registration of transfer of shares
may be authorized:
(1) to maintain the corporation's status when it is dependent on the
number or identity of its shareholders;
(2) to preserve exemptions under federal or state securities law;
(3) for any other reasonable purpose.
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A restriction on the transfer or registration of transfer of shares
may:
(1) obligate the shareholder first to offer the corporation or other
persons (separately, consecutively, or simultaneously) an
opportunity to acquire the restricted shares;
(2) obligate the corporation or other persons (separately,
consecutively, or simultaneously) to acquire the restricted
shares;
(3) require the corporation, the holders or any class of its shares,
or another person to approve the transfer of the restricted
shares, if the requirement is not manifestly unreasonable;
(4) prohibit the transfer of the restricted shares to designated
persons or classes of persons, if the prohibition is not
manifestly unreasonable.
A restriction on the transfer or registration of transfer of shares
is valid and enforceable against the holder or a transferee of the holder if
the restriction is authorized by this section and its existence is noted
conspicuously on the front or back of the certificate. Unless so noted, a
restriction is not enforceable against a person without knowledge of the
restriction.
SS. 6.5 ACQUISITION OF SHARES.
The corporation may acquire its own shares and unless otherwise
provided in the articles of incorporation, the shares so acquired
constitute authorized but unissued shares.
If the articles of incorporation prohibit the reissue of acquired
shares, the number of authorized shares is reduced by the number of shares
acquired, effective upon amendment of the articles of incorporation, which
amendment shall be adopted by the shareholders or the board of directors
without shareholder action. The article of amendment must be delivered to the
Secretary of State and must set forth:
(1) the name of the corporation;
(2) the reduction in the number of authorized shares, itemized by
class and series; and
(3) the total number of authorized shares, itemized by class and
series, remaining after reduction of the shares.
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ARTICLE VII. DISTRIBUTIONS
SS. 7.1 DISTRIBUTIONS.
The board of directors may authorize, and the corporation may make,
distributions (including dividends on its outstanding shares) in the
manner and upon the terms and conditions provided by law and in the
corporation's articles of incorporation.
ARTICLE VIII. CORPORATE SEAL
SS. 8.1 CORPORATE SEAL.
The board of directors may provide a corporate seal which may be
circular in form and have inscribed thereon any designation including
the name of the corporation, South Carolina as the state of
incorporation, and the words "Corporate Seal."
ARTICLE IX. EMERGENCY BYLAWS
SS. 9.1 EMERGENCY BYLAWS.
Unless the articles of incorporation provide otherwise, the following
provisions of this Article IX, ss. 9.1 "Emergency Bylaws" shall be
effective during an emergency which is defined as when a quorum of the
corporation's directors cannot be readily assembled because of some
catastrophic event.
During such emergency:
(a) Notice of Board Meetings
Any one member of the board of directors or any one of the
following officers: president, any vice-president, secretary, or
treasurer, may call a meeting of the board of directors. Notice of
such meeting need be given only to those directors whom it is
practicable to reach, and may be given in any practical manner,
including by publication and radio. Such notice shall be given at
least six hours prior to commencement of the meeting.
(b) Temporary Directors and Quorum
One or more officers of the corporation present at the
emergency board meeting, as is necessary to achieve a
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quorum, shall be considered to be directors for the meeting, and shall
so serve in order of rank, and within the same rank, in order of
seniority. In the event that less than a quorum (as determined by
Article III ss. 3.6) of the directors are present (including any
officers who are to serve as directors for the meeting), those
directors present (including the officers serving as directors) shall
constitute a quorum.
(c) Actions Permitted to be taken
The board may as constituted in paragraph (b), and after
notice as set forth in paragraph (a):
(1) Officers Powers
Prescribe emergency powers to any officer of the
corporation;
(2) Delegation of any Power
Delegate to any officer or director, any of the powers
of the board of directors;
(3) Lines of succession
Designate lines of succession of officers and agents,
in the event that any of them are unable to discharge
their duties;
(4) Relocate principal place of business
Relocate the principal place of business, or designate
successive or simultaneous principal places of
business;
(5) All Other Action
Take any other action, convenient, helpful, or
necessary to carry on the business of the corporation.
ARTICLE X. AMENDMENTS
SS. 10.1 AMENDMENTS.
The corporation's board of directors may amend or repeal any of the
corporation's bylaws unless:
(1) the articles of incorporation or the South Carolina Business
Corporation Act of 1988 reserve this power exclusively to the
shareholders in whole or part; or
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(2) the shareholders in adopting, amending, or repealing a particular
bylaw provide expressly that the board of directors may not amend
or repeal that bylaw; or
(3) the bylaw either establishes, amends, or deletes, a supermajority
shareholder quorum or voting requirement (as defined inss.2.8 of
Article II).
Any amendment which changes the voting or quorum requirement for the
board must comply with Article III ss. 3.8, and for the shareholders, must
comply with Article II ss. 2.8.
The corporation's shareholders may amend or repeal the corporation's
bylaws even though the bylaws may also be amended or repealed by its
board of directors. Any notice of a meeting of shareholders at which
bylaws are to be adopted, amended, or repealed shall state that the
purpose, or one of the purposes, of the meeting is to consider the
adoption, amendment, or repeal of bylaws and contain or be accompanied
by a copy or summary of the proposal.
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