COMMONWEALTH OF PENNSYLVANIA
Department of State
CERTIFICATE OF INCORPORATION
To All to Whom These Presents Shall come, Greetings:
WHEREAS; under the provisions of the Laws of the Commonwealth, the Secretary of
the Commonwealth is authorised and required to issue a "Certificate of
Incorporation" evidencing the incorporation of an entity.
WHEREAS, the stipulations and conditions of the Law have been fully complied
with by
D.S.& W., INC.
Given under my Hand and the Great
Seal of the Commonwealth, at the
City of Harrisburg, this 26th day
of February in the year of our Lord
one thousand nine hundred and
eighteight and of the Commonwealth
the two hundred twelfth.
/s/ illegible
Secretary of the Commonwealth
REED SMITH SHAW & MCCLAY ESQS
ATTN: CHRISTOPHER ZETTLEMOYER
P.O. BOX 11844
HARRISBURG, PA 17108
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88141671
Applicant's Acct. No. _____ Filed FEB 26 1988
Commonwealth of Pennsylvania
Department of State
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF STATE /s/ illegible
CORPORATION BUREAU Secretary of the Commonwealth
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ARTICLES OF INCORPORATION
of
D.S.& W., INC.
In compliance with the requirements of Section 204 of the
Business Corporation Law, Act of May 5, 1933, P.L. 364, as amended (15 P.S.
ss.1204), the undersigned, desiring to incorporate a business corporation,
hereby certifies that:
9. Corporate Name. The name of the Corporation is D.S. & W.,
Inc.
10. Registered Office. The location and post office address of
the initial registered office of the Corporation in this Commonwealth is 512
Foreland Street, Pittsburgh, Pennsylvania 15212.
11. Purpose. The Corporation is incorporated under the
Pennsylvania Business Corporation Law to have unlimited power to engage in and
to do any lawful act concerning any or all lawful business for which
corporations may be incorporated under the Act of May 5, 1933, P.L. 364, as
amended.
12. Corporate Existence. The term for which the Corporation is
to exist is perpetual.
13. Stock. The aggregate number of shares which the
Corporation shall have authority to issue is 100 shares of Common Stock, par
value $1.00 per share.
14. Incorporator. The name and post office address of the
incorporator is Carol A. Soltes, 435 Sixth Avenue, Pittsburgh, Pennsylvania
15219, and the number and class of shares subscribed for by such incorporator
is one share of Common Stock, par value $1.00 per share.
15. Personal Liability of Directors.
(a) Elimination of Liability. To the fullest extent
that the laws of the Commonwealth of Pennsylvania, as now in effect or as
hereafter amended, permit elimination or limitation of the liability of
directors, no director of the Corporation shall be personally liable for
monetary damages as such for any action taken, or any failure to take any
action, as a director.
(b) Nature and Extent of Rights. The provisions of
this Article shall be deemed to be a contract with each director of the
corporation who serves as such at any time while this Article is in effect and
each such director shall be deemed to be so serving in reliance on the
provisions of this Article. Any amendment or repeal of this Article or adoption
of any ByLaw or provision of the Articles of the Corporation which has the
effect of increasing director liability shall operate prospectively only and
shall not have any effect with respect to any action taken, or any failure to
act, by a director prior thereto.
16. Indemnification of, and Advancement of Expenses to,
Directors, Officers and Others.
(a) Right to Indemnification. Except as prohibited
by law, every director and officer of the Corporation shall be entitled as of
right to be indemnified by the Corporation against expenses and any liabilities
paid or incurred by such person in connection with any actual or threatened
claim, action, suit or proceeding, civil, criminal, administrative,
investigative or other, whether brought by or in the right of the Corporation
or otherwise, in which he or she may be involved in any manner, as a party,
witness or otherwise, or is threatened to be made so involved, by reason of
such person being or having been a director or officer of the Corporation or of
a subsidiary of the corporation or by reason of the fact that such person is or
was serving at the request of the Corporation as a director, officer, employee,
fiduciary or other representative of another company, partnership, joint
venture, trust, employee benefit plan or other entity (such claim, action, suit
or proceeding hereinafter being referred to as "Action"); provided, that no
such right of indemnification shall exist with respect to an Action initiated
by an indemnitee (as hereinafter defined) against the Corporation (an
"Indemnitee Action") except as provided in the last sentence of this Section
(a). Persons who are not directors or officers of the Corporation may be
similarly indemnified in respect of service to the Corporation or to another
such entity at the request of the Corporation to the extent the Board of
Directors at any time denominates any of such persons as entitled to the
benefits of this Article. As used in this Article, "indemnitee" shall include
each director and officer of the Corporation and each other person denominated
by the Board of Directors as entitled to the benefits of this Article,
"expenses" shall mean all expenses actually and reasonably incurred, including
fees and expenses of counsel selected by an indemnitee, and "liabilities" shall
mean amounts of judgments, excise taxes, fines, penalties and amounts paid in
settlement. An indemnitee shall be entitled to be indemnified pursuant to this
Section (a) for expenses incurred in connection with any Indemnitee Action only
(i) if the Indemnitee Action is instituted under Section (c) of this Article
and the indemnitee is successful in whole or in part in such Action, (ii) if
the indemnitee is successful in whole or in part in another Indemnitee Action
for which expenses are claimed or (iii) if the indemnification for expenses is
included in a settlement of, or is awarded by a court in, such other Indemnitee
Action.
(b) Right to Advance of Expenses. Every indemnitee
shall be entitled as of right to have his or her expenses in defending any
Action, or in initiating and pursuing any Indemnitee Action for indemnity or
advancement of expenses under Section (c) of this Article, paid in advance by
the Corporation prior to final disposition of such Action or Indemnitee Action,
provided that the Corporation receives a written undertaking by or on behalf of
the
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indemnitee to repay the amount advanced if it should ultimately be determined
that the indemnitee is not entitled to be indemnified for such expenses.
(c) Right of Indemnitee to Initiate Action. If a
written claim under Section (a) or Section (b) of this article is not paid in
full by the Corporation within thirty days after such claim has been received
by the Corporation, the indemnitee may at any time thereafter initiate an
Indemnitee Action to recover the unpaid amount of the claim and, if successful
in whole or in part, the indemnitee shall also be entitled to be paid the
expense of prosecuting such Indemnitee Action. The only defense to an
Indemnitee Action to recover on a claim for indemnification under Section (a)
of this article shall be that the indemnitee's conduct was such that under
Pennsylvania law the corporation is prohibited from indemnifying the indemnitee
for the amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its board of
directors, independent legal counsel and its shareholders) to have made a
determination prior to the commencement of such Indemnitee Action that
indemnification of the indemnitee is proper in the circumstances, nor an actual
determination by the Corporation (including its board of directors, independent
legal counsel or its shareholders) that the indemnitee's conduct was such that
indemnification is prohibited by Pennsylvania law, shall be a defense to such
Indemnitee Action or create a presumption that the indemnitee's conduct was
such that indemnification is prohibited by Pennsylvania law. The only defense
to an Indemnitee Action to recover on a claim for advancement of expenses under
Section (b) of this Article shall be the indemnitee's failure to provide the
undertaking required by Section (b) of this Article.
(d) Insurance and Funding. The Corporation may
purchase and maintain insurance to protect itself and any person eligible to be
indemnified hereunder against any liability or expense asserted or incurred by
such person in connection with any Action, whether or not the Corporation would
have the power to indemnify such person against such liability or expense by
law or under the provisions of this Article. The Corporation may create a trust
fund, grant a security interest, cause a letter of credit to be issued or use
other means (whether or not similar to the foregoing) to ensure the payment of
such sums as may become necessary to effect indemnification as provided herein.
(e) Non-Exclusivity; Nature and Extent of Rights.
The rights to indemnification and advancement of expenses provided for in this
Article shall (i) not be deemed exclusive of any other rights, whether now
existing or hereafter created, to which any indemnitee may be entitled under
any agreement or by-law, charter provision, vote of shareholders or directors
or otherwise, (ii) be deemed to create contractual rights in favor of each
indemnitee who serves the Corporation at any time while this Article is in
effect (and each such indemnitee shall be deemed to be so serving in reliance
on the provisions of this Article), and (iii) continue as to each indemnitee
who serves the Corporation at any time while this Article is in effect (and
each such indemnitee shall be deemed to be so serving in reliance on the
provisions of this Article), and (iii) continue as to each indemnitee who has
ceased to have the status pursuant to which he or she was entitled or was
denominated as entitled to indemnification under this Article and shall inure
to the benefit of the heirs and legal representatives of each indemnitee. Any
amendment or repeal of this Article or adoption of any By-Law or provision of
the Articles of the
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Corporation which has the effect of limiting in any way the rights to
indemnification or advancement of expenses provided for in this Article shall
operate prospectively only and shall not affect any action taken, or failure to
act, by an indemnitee prior to the adoption of such amendment, repeal, By-Law
or other provision.
(f) Partial Indemnity. If an indemnitee is entitled
under any provision of this Article to indemnification by the Corporation for
some or a portion of the expenses or liabilities paid or incurred by the
indemnitee in the preparation, investigation, defense, appeal or settlement of
any Action or Indemnitee Action but not, however, for the total amount thereof,
the Corporation shall indemnify the indemnitee for the portion of such expenses
or liabilities to which the indemnitee is entitled.
IN TESTIMONY WHEREOF, the incorporator has signed and sealed
these Articles of Incorporation this 25th day of February, 1988.
/s/ Carol A. Soltes (SEAL)
Carol A. Soltes,
Sole Incorporator
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