EXHIBIT 3.5
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DELAWARE
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The First State
I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE
CERTIFICATE OF INCORPORATION OF "AMERICAN BARGE LINE COMPANY", FILED IN
THIS OFFICE ON THE TWENTY-SECOND DAY OF DECEMBER, A.D. 2004, AT 5:49
O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS.
[SEAL] /s/ Harriet Smith Windsor
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Harriet Smith Windsor, Secretary of State
3901639 8100 AUTHENTICATION: 3573671
040934133 DATE: 12-23-04
State of Delaware
Secretary of State
Division of Corporations
Delivered 06:05 PM 12/22/2004
FILED 05:49 PM 12/22/2004
SRV 040934133 - 3901639
CERTIFICATE OF INCORPORATION
OF
AMERICAN BARGE LINE COMPANY
The undersigned incorporator, desiring to form a corporation
pursuant to the General Corporation Law of the State of Delaware (the
"Corporation Law"), hereby certifies as follows:
ARTICLE I
NAME
The name of the corporation is American Barge Line Company (the
"Corporation").
ARTICLE II
DELAWARE OFFICE AND REGISTERED AGENT
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, zip code 19801. The name of the Corporation's
registered agent at such address is The Corporation Trust Company.
ARTICLE III
PURPOSES
The nature of the business or purposes to be conducted or promoted
by the Corporation are:
(a) To engage in any lawful act or activity for which corporations
may be organized under the Corporation Law; and
(b) In general, to possess and exercise all the powers and
privileges granted by the Corporation Law or by any other law of Delaware or by
this Certificate of Incorporation, together with any powers incidental thereto,
so far as such powers and privileges are necessary or convenient to the conduct,
promotion or attainment of the business or purposes of the Corporation.
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ARTICLE IV
CAPITAL STOCK
Section 4.1. Authorized Shares. 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 cent ($0.01) per share ("Common Stock").
Section 4.2. General Terms. The Corporation shall have the power to
purchase, redeem, receive, take or otherwise acquire, own and hold, sell, lend,
exchange, transfer or otherwise dispose of, pledge, use and otherwise deal in
and with, its own shares of stock; provided, however, that the Corporation shall
not:
(a) Purchase or redeem its own shares of stock for cash or other
property when the capital of the Corporation is impaired or when such purchase
or redemption would cause any impairment of the capital of the Corporation;
(b) Purchase, for more than the price at which they may then be
redeemed, any of its shares of stock which are redeemable at the option of the
Corporation; or
(c) Redeem any of its shares of stock unless, immediately following
such redemption, the Corporation shall have outstanding one or more shares of
stock with full voting powers, and then only in accordance with the Corporation
Law and with this Certificate of Incorporation.
The Board of Directors may issue shares of stock in accordance with
the Corporation Law and the provisions of this Certificate of Incorporation, up
to the amount authorized by this Certificate of Incorporation, and for such
consideration as the Board of Directors shall determine, without the
authorization or approval by any stockholders of the Corporation; provided that
shares of stock with par value shall be issued for consideration having a value
not less than the par value thereof. The Board of Directors also may dispose of
treasury shares in accordance with the Corporation Law and the provisions of
this Certificate of Incorporation for such consideration as the Board of
Directors shall determine, without the authorization or approval by any
stockholders of the Corporation. The consideration, determined as set forth
above, for subscriptions to, or the purchase of, the stock to be issued by the
Corporation shall be paid in such form and in such manner as the Board of
Directors shall determine, and, absent actual fraud, the judgment of the
directors as to the value of such consideration shall be conclusive. The shares
of stock so issued shall be deemed to be fully paid and nonassessable stock if
the Corporation has received: (i) the entire amount of such consideration in the
form of cash, services rendered, personal property, real property, leases of
real property or a combination thereof; or (ii) not less than the amount of the
consideration
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determined to be capital pursuant to the Corporation Law in such form and a
binding obligation of the subscriber or purchaser to pay the balance of the
subscription or purchase price.
Section 4.3. Voting. Except as otherwise required by law, each share
of Common Stock shall entitle the holder thereof to one vote per share on all
matters as to which stockholders have the right to vote. Except as otherwise
required by law, the holders of shares of Common Stock shall vote together as a
single class.
Section 4.4. Restriction on the Issuance of Non-Voting Equity
Securities. The Corporation shall not issue non-voting equity securities. The
foregoing restriction on the issuance of non-voting equity securities may be
changed, modified or amended in accordance with the Corporation Law.
Section 4.5. Dividends. Except as otherwise provided by law, the
holders of shares of Common Stock shall be entitled to receive, when and as
declared by the Board of Directors, out of the assets of the Corporation which
are by law available therefor, all dividends payable either in cash, propoerty
or securities of the Corporation, and the holders thereof shall be entitled to
participate ratably in all dividends so declared and paid.
Section 4.6. Dissolution. The holders of shares of Common Stock
shall be entitled to receive pro rata all of the remaining assets of the
Corporation available for distribution to such holders in the event of any
liquidation, dissolution or winding up of the Corporation, and the holders
thereof shall be entitled to participate ratably in all such distributions.
Section 4.7. Amendment of Terms. Except as otherwise provided
herein, the rights, terms and provisions of the Common Stock shall not be
changed, modified or amended without the affirmative vote of the holders of at
least a majority of the issued and outstanding shares of the Common Stock.
ARTICLE V
SOLE INCORPORATOR
The name and mailing address of the incorporator is:
Name Mailing Address
Peter J. Gillin 205 West Jefferson Boulevard, South Bend,
Indiana 46601
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ARTICLE VI
POWER OF BOARD OF DIRECTORS
The Board of Directors is expressly authorized to exercise all
powers granted to the directors by law except insofar as such powers are limited
herein or in the Bylaws of the Corporation. In furtherance of such powers, the
Board of Directors is expressly authorized to make, alter or repeal the Bylaws
of the Corporation in such manner as shall be prescribed in the Bylaws of the
Corporation.
ARTICLE VII
DIRECTORS
Section 7.1. Number of Directors. The Board of Directors, at the
time of adoption of this Certificate of Incorporation, is composed of three (3)
members. The aggregate number of members of the Board of Directors may be
changed from time to time in the manner provided in the Bylaws of the
Corporation; provided, however, that no such change shall be inconsistent with
the requirements of any provision of this Certificate of Incorporation.
Section 7.2. Removal of Directors. Notwithstanding any other
provisions of this Certificate of Incorporation or the Bylaws of the Corporation
(and notwithstanding the fact that some lesser percentage may be specified by
law, this Certificate of Incorporation or the Bylaws of the Corporation) and
except as provided in this Section 7.2, any director or the entire Board of
Directors may be removed at any time, with or without cause, by the affirmative
vote of the holders of a majority of the outstanding shares of stock of the
Corporation entitled to vote generally in the election of directors cast at a
meeting of the stockholders called for that purpose.
ARTICLE VIII
MEETINGS OF STOCKHOLDERS
Meetings of stockholders may be held within or without the State
of Delaware, as the Bylaws may provide. The books of the Corporation may be
kept (subject to any provision contained in the 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 Bylaws of the Corporation.
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ARTICLE IX
LIMITATION ON DIRECTOR LIABILITY
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 any act or
omission not in good faith or which involves intentional misconduct or a knowing
violation of the 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
after the filing of the Certificate of Incorporation of which this Article is a
part to authorize corporate action further eliminating or limitng 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 the foregoing paragraph shall not
adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
ARTICLE X
AMENDMENT
Other than as expressly provided herein, the Corporation reserves
the right to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation in the manner now or hereafter prescribed by
statute.
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IN WITNESS WHEREOF, the undersigned, being the incorporator of the
Corporation designated in Article V, has executed this Certificate of
Incorporation on the 22nd day of December, 2004.
/s/ Peter J. Gillin
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Peter J. Gillin
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