1
EXHIBIT 3.29
CERTIFICATE OF INCORPORATION
OF
BSG EDUCATIONAL SERVICES, INC.
ARTICLE I
The name of the corporation is BSG EDUCATIONAL SERVICES, INC.
ARTICLE II
The address of the corporation's registered office in the State of
Delaware is 1209 Orange Street, New Castle County, Wilmington, Delaware 19801.
The name of its 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
lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware.
ARTICLE IV
The total number of shares of all classes of stock which the corporation
shall have authority to issues is 1,000 shares of common stock, par value
$.001 per share.
ARTICLE V
The governing board of the corporation shall be known as the board of
directors, and the number of directors comprising the same shall be determined
in accordance with the bylaws of the corporation. The initial board of
directors shall consist of one member. The name and mailing address of the
initial member of the board of directors, who shall hold office until the first
annual meeting of the stockholders, or until his successors are elected and
qualify, are as follows:
Steven G. Papermaster 11 Greenway Plaza, Suite 900
Houston, Texas 77046-1102
ARTICLE VI
The board of directors of the corporation is expressly and solely
authorized to make, alter or repeal bylaws of the corporation.
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ARTICLE VII
No director of the corporation shall be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; provided, however, that the foregoing clause shall not
apply to any 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 the law, (iii) under Section 174 of the General Corporation Law of
the State of Delaware, or (iv) for any transaction from which the director
derived an improper personal benefit. This Article shall not eliminate or limit
the personal liability of a director for any act or omission occurring prior to
the date of this Article becomes effective.
ARTICLE VII
8.1 The corporation 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 corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgements, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, 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 corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
8.2 The corporation 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 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 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 interests of the
corporation 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 corporation unless and only to the extent that 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
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person is fairly and reasonably entitled to indemnity for such expenses which
the court shall deem proper.
8.3. 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 Sections 8.1 and 8.2 of this Article,
or in defense of any claim, issue or matter therein, the corporation shall
indemnify such director, officer, employee or agent against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
8.4 Any indemnification under Sections 8.1 and 8.2 of this Article (unless
ordered by a court) shall be made by the corporation only a 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 of this
Article. 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.
8.5 Expenses incurred by an officer or director in defending a 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 such director or officer 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. Such expenses incurred by other
employees and agents shall be so paid upon such terms and conditions, if any,
as the board of directors deems appropriate.
8.6 The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in an official capacity and as to
action in another capacity while holding such office.
8.7 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 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 General Corporation Law of the State of Delaware of
this Article.
8.8 For purposes of this Article, references to "the Corporation" 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
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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 Article with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
8.9 For purposes of this Article, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan;
and references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation, which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an 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 corporation" as referred to in this
section.
8.10 The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article shall continue as 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.
ARTICLE IX
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 the General Corporation Law of the State of Delaware 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 the General
Corporation Law of the State of Delaware, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of the
corporation, as the case may be, to be summoned in such manner as the 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 a consequence of
such compromise or arrangement and the said reorganization shall, if sanctioned
by the court to which the said application has been made, by binding on all the
creditors or class of creditors, and/or on all of the stockholders or class of
stockholders, of the corporation, as the case may be, and also on the
corporation.
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ARTICLE X
The corporation is to have perpetual existence.
ARTICLE IX
The name and address of the incorporator is Mark R. Riley, Capital Center
Penthouse, 401 Louisiana, 8th Floor, Houston, Texas 77002.
I, 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, do make this certificate, hereby declaring that this is my
act and deed and that the facts herein stated are true and accordingly I have
hereunto set my hand this 15th day of May, 1991.
/s/ Mark R. Riley
----------------------------------
Mark R. Riley
STATE OF TEXAS SS
SS
COUNTY OF HARRIS SS
Before me, the undersigned authority, on this date personally appeared
Mark R. Riley, known to me to be the person whose name is subscribed to the
foregoing certificate, and acknowledged to me that he executed said certificate
as his free act and deed and that facts therein stated are true.
Given under my hand seal this 15th day of May, 1991.
(SEAL) /s/ Donna S. Cofield
----------------------------------
Notary Public in and for
the State of TEXAS
My commission expires:
January 25, 1992 Donna S. Cofield
- ----------------------------- ----------------------------------
Printed Name of Notary Public
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AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER is made this 30th day of December, 1992, between
Enterprise Technology Center, Inc., a Delaware corporation ("Merging
Company"), and BSG Educational Services, Inc., Delaware corporation
("Surviving Company").
WHEREAS, Merging Company has an authorized capitalization consisting of
1,000 shares of common stock par value $.001 per share ("Merging Company
Common Stock"), of which 1,000 shares have been validly issued and are now
outstanding and owned by BSG Capital Corporation; and
WHEREAS, Surviving Company has an authorized capitalization consisting of
1,000 shares of common stock, par value $.001 per share ("Surviving Company
Common Stock"), of which 1,000 shares have been validly issued and are now
outstanding and owned by BSG Capital Corporation; and
WHEREAS, the Boards of Directors of Merging Company and Surviving Company,
respectively, deem it desirable, upon the terms and conditions set forth
herein, that Merging Company merge with and into Surviving Company and that
Surviving Company be the surviving corporation.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties hereto hereby prescribe the terms and
conditions of said merger and the mode of carrying the same into effect as
follows:
1. Merger. At the Effective Time (as defined below) of the merger,
Merging Company shall be merged with and into Surviving Company, with Surviving
Company as the surviving corporation (the "Merger").
2. Effective Time. This Agreement of Merger shall become effective at
the close of business on December 31, 1992, the time of such effectiveness
being hereinafter referred to as the "Effective Time."
3. Merging Company. The Merging Company Common Stock shall not be
converted into shares of Surviving Company Common Stock. Upon the Effective
Time of the Merger, the Merging Company Common Stock shall be cancelled and the
separate corporate existence of Merging Company shall cease.
4. Name Change of Surviving Company. At and after the Effective Time of
the Merger, the name of Surviving Company
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shall be changed to "Enterprise Technology Institute International, Inc."
Article I of Surviving Company's Certificate of Incorporation is hereby amended
as of the Effective Time, pursuant to Section 251(e) of the General Corporation
Law of the State of Delaware, to read in its entirety as follows:
The name of the corporation is ENTERPRISE TECHNOLOGY
INSTITUTE INTERNATIONAL, INC.
5. Certificate of Incorporation. The Certificate of Incorporation of
Surviving Company as it exists at the Effective Time shall be the Certificate
of Incorporation of Surviving Company following the Effective Time until the
same shall be amended or repealed in accordance with the provisions thereof.
6. Bylaws. The Bylaws of Surviving Company as they exist at the
Effective Time shall be the Bylaws of Surviving Company following the Effective
Time until the same shall be amended or repealed in accordance with the laws of
the State of Delaware.
7. Officers and Directors. The officers and directors of Surviving
Company as they exist at the Effective Time shall be the officers and directors
of Surviving Company following the Effective Time until their successors have
been duly elected and qualified.
8. Further Assurance of Title. If at any time Surviving Company shall
consider or be advised that any acknowledgements or assurances in law or other
similar actions are necessary or desirable in order to acknowledge or confirm
in and to Surviving Company any right, title, or interest held by Merging
Company immediately prior to the Effective Time, Merging Company and its proper
officers and directors shall and will execute and deliver all such
acknowledgments or assurances in law and do all things necessary or proper to
acknowledge or confirm such right, title, or interest in Surviving Company as
shall be necessary to carry out the purposes of this Agreement of Merger, and
Surviving Company and the proper officers and directors thereof are fully
authorized to take any and all such action in the name of Merging Company or
otherwise.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
of Merger to be executed as of the date first written above.
ENTERPRISE TECHNOLOGY CENTER, INC.
ATTEST:
/s/ John A. Hinners By: /s/ Steven G. Papermaster
- ---------------------------- ---------------------------------
John A. Hinners Steven G. Papermaster
Secretary President
BSG EDUCATIONAL SERVICES, INC.
ATTEST:
/s/ John A. Hinners By: /s/ Steven G. Papermaster
- ---------------------------- ----------------------------------
John A. Hinners Steven G. Papermaster
Secretary President
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Certificate of the Secretary
of
Enterprise Technology Center, Inc.
I, John A. Hinners, Secretary of Enterprise Technology Center, Inc., a
Delaware corporation, hereby certify that the total number of outstanding
shares of common stock entitled to vote on the merger with BSG Educational
Services, Inc., a Delaware corporation, is 1,000 shares, that there is no other
class of stock outstanding and that the Agreement of Merger to which this
certificate has been attached and made a part was approved and adopted by the
sole stockholder of said Enterprise Technology Center, Inc. pursuant to Section
251 of the General Corporation Law of the State of Delaware.
WITNESS my hand and seal of said Enterprise Technology Center, Inc. this
30th day of December, 1992.
[CORPORATE SEAL]
/s/ John A. Hinners
--------------------------
John A. Hinners, Secretary
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Certificate of the Secretary
of
BSG Educational Services, Inc.
I, John A. Hinners, Secretary of BSG Educational Services, Inc., a Delaware
corporation, hereby certify that the total number of outstanding shares of
common stock entitled to vote on the merger with Enterprise Technology Center,
Inc., a Delaware corporation, is 1,000 shares, that there is no other class of
stock outstanding and that the Agreement of Merger to which this certificate has
been attached and made a part was approved and adopted by the sole stockholder
of said BSG Educational Services, Inc. pursuant to Section 251 of the General
Corporation Law of the State of Delaware.
WITNESS my hand and seal of said BSG Educational Services, Inc. this 30th
day of December, 1992.
[CORPORATE SEAL]
/s/ John A. Hinners
--------------------------
John A. Hinners, Secretary
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CERTIFICATE OF AMENDMENT TO
CERTIFICATE OF INCORPORATION OF
ENTERPRISE TECHNOLOGY INSTITUTE INTERNATIONAL, INC.
ARTICLE I
Article I of the Certificate of Incorporation of the Corporation, filed in
the Office of the Secretary of State of Delaware as of May 16, 1991, and
amended by that certain Agreement of Merger, dated December 30, 1992, by and
between Enterprise Technology Center, Inc. and BSG Educational Services, Inc.
("Merger Agreement"), provides:
"The name of the corporation is Enterprise Technology Institute
International, Inc."
ARTICLE II
By resolutions dated June 2, 1993, the board of directors of the
Corporation proposed that Article I of the Corporation's Certificate of
Incorporation be amended to read in full as follows:
"The name of the corporation is BSG Educational Services, Inc."
ARTICLE III
By resolutions dated June 2, 1993, the Corporation's sole shareholder
approved such proposed amendment.
ARTICLE IV
Article I of the Corporation's Certificate of Incorporation, as amended by
the Merger Agreement, is hereby amended to read in full as follows:
"The name of the corporation is BSG Educational Services, Inc."
IN WITNESS WHEREOF, the undersigned, being the duly authorized
representative of the Corporation, has set his hand hereto as of the 2nd day of
June, 1993.
/s/ Mark R. Riley
----------------------
Mark R. Riley
Executive Vice President
ATTEST:
/s/ John A. Hinners
- -------------------
John A. Hinners
Secretary
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THE STATE OF TEXAS SS
SS
COUNTY OF HARRIS SS
BEFORE ME, the undersigned authority, on this day personally appeared Mark
R. Riley, Executive Vice President of Enterprise Technology Institute
International, Inc., a Delaware corporation, known to me to be the person whose
name is subscribed to the foregoing instrument and acknowledged to me that he
executed the same for the purposes and consideration therein expressed, in the
capacity stated, and as the act and deed of said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 2nd day of June, 1993.
[SEAL] /s/ Donna S. Cofield
----------------------------
Notary Public in and for
The State of Texas
My commission expires: 1/25/96
-----------
THE STATE OF TEXAS SS
SS
COUNTY OF HARRIS SS
BEFORE ME, the undersigned authority, on this day personally appeared John
A. Hinners, Secretary of Enterprise Technology Institute International, Inc., a
Delaware corporation, known to me to be the person whose name is subscribed to
the foregoing instrument and acknowledged to me that he executed the same for
the purposes and consideration therein expressed, in the capacity stated, and
as the act and deed of said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 2nd day of June, 1993.
[SEAL]
/s/ Donna S. Cofield
----------------------------------
Notary Public in and for
The State of Texas
My Commission expires: 1/25/96
-----------
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CERTIFICATE OF AMENDMENT TO
CERTIFICATE OF INCORPORATION OF
BSG EDUCATIONAL SERVICES, INC.
The undersigned does hereby certify that the amendment set forth in this
Certificate of Amendment to the Certificate of Incorporation of BSG Educational
Services, Inc. was adopted in accordance with Section 242(1) of the Delaware
General Corporation Law, and does hereby certify as follows:
ARTICLE I
Article I of the Certificate of Incorporation of the Corporation, filed in
the Office of the Secretary of State of Delaware as of May 16, 1991, provides:
"The name of the corporation is BSG Education, Inc."
ARTICLE II
By Written Consent dated April 22, 1994, the board of directors of the
Corporation proposed that Article I of the Corporation's Certificate of
Incorporation be deleted in its entirety and replaced with the following:
"The name of the corporation is BSG Education, Inc."
ARTICLE III
By Written Consent dated April 22, 1994, the Corporation's sole stockholder
approved such proposed amendment.
WITNESS the execution hereof as of the 22nd day of April, 1994.
/s/ Steven G. Papermaster
------------------------------------
Steven G. Papermaster
Chairman and Chief Executive Officer
ATTEST:
/s/ John A. Hinners
- -------------------
John A. Hinners
Secretary
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THE STATE OF TEXAS SS
SS
COUNTY OF HARRIS SS
BEFORE ME, the undersigned authority, on this day personally appeared
Steven G. Papermaster, Chairman and Chief Executive Officer of BSG Educational
Services, Inc., a Delaware corporation, known to me to be the person whose
name is subscribed to the foregoing instrument and acknowledged to me that he
executed the same for the purposes and consideration therein expressed, in the
capacity stated, and as the act and deed of said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 22nd day of April, 1994.
[SEAL] /s/ MARTHA GROLL
----------------------------
Notary Public in and for
The State of Texas
My commission expires: 11/16/94
-----------
THE STATE OF TEXAS SS
SS
COUNTY OF HARRIS SS
BEFORE ME, the undersigned authority, on this day personally appeared
John A. Hinners, Secretary of BSG Educational Services, Inc., a Delaware
corporation, known to me to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that he executed the same for the
purposes and consideration therein expressed, in the capacity stated, and as the
act and deed of said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 22nd day of April, 1994.
[SEAL] /s/ MARTHA GROLL
----------------------------
Notary Public in and for
The State of Texas
My commission expires: 11/16/94
-----------
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ARTICLE THREE
By written consent dated December 20, 1994, the Company's Board of
Directors adopted a resolution proposing, and declaring advisable, the
following amendment to the Certificate:
Article VII of the Certificate is amended in its entirety to read as
follows:
"No director of the corporation shall be personally liable to the
corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director; provided, however, that the foregoing
clause shall not apply to any 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 the law,
(iii) under Section 174 of the Delaware General Corporation Law (the
"DGCL"), or (iv) for any transaction from which the director derived
an improper personal benefit. If the DGCL is hereafter amended to
authorize the further elimination or limitation of the liability of
directors, then the liability of a director of the corporation, in
addition to the limitation on personal liability provided herein,
shall be limited to the fullest extent permitted by the DGCL, as
amended. Any repeal or modification of this Article by the
stockholders of the corporation shall be prospective only, and shall
not adversely affect any limitation on the personal liability of a
director of the corporation existing at the time of such repeal or
modification."
ARTICLE FOUR
By written consent dated December 20, 1994, the Company's Board of
Directors adopted a resolution proposing, and declaring advisable, the
following amendment to the Certificate:
Article VIII of the Certificate is amended in its entirety to read as
follows:
"8.1 The corporation 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 corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any
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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
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
8.2 The corporation 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 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 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 interests
of the corporation, 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 corporation unless and only to the extent that 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 shall deem proper.
8.3 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 Sections 8.1 and 8.2 of this Article,
or in defense of any claim, issue or matter therein, the corporation shall
indemnify such director, officer, employee or agent against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
8.4 Any indemnification under Sections 8.1 and 8.2 of this Article
(unless ordered by a court) 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 8.1 and 8.2 of this
Article. 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 and a quorum of disinterested directors so directs, by
independent counsel in a written opinion, or (3) by the stockholders.
8.5 Expenses (including attorneys' fees) incurred by an officer,
director, or employee in defending any civil, criminal, administrative or
investigative action, suit or proceeding referred to in Sections 8.1 and 8.2 of
this Article shall be paid by the corporation in advance of the final
disposition of such
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action, suit or proceeding upon receipt of an undertaking by or on behalf of
such director, officer, or employee 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. Such expenses (including attorneys' fees)
incurred by other employees and agents shall be so paid upon such terms and
conditions, if any, as the board of directors deems appropriate.
8.6 The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in an official capacity and as to
action in another capacity while holding such office.
8.7 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 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 Delaware General Corporation Law (the "DGCL") or this
Article.
8.8 For purposes of this Article, references to "the corporation" 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 as 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 Article with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
8.9 For purposes of this Article, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an 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
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18
to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this Article.
8.10 The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article 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.
8.11 In the event the DGCL is here after amended to, or other
applicable laws are enacted that, authorize additional or broader rights
to indemnification or advancement of expenses for directors, officers,
employees or agents of the corporation (or persons serving at the request
of the corporation as directors, officers, employees or agents of another
corporation, partnership, joint venture, trust or other entity,) the
indemnification and advancement of expenses provided by, or granted
pursuant to, this Article shall be modified to include such additional or
broader rights to the fullest extent permitted by the DGCL, as amended, or
such other applicable laws as may be enacted from time to time. Any repeal
or modification of this Article by the stockholders of the corporation
shall be prospective only, and shall not adversely affect any
indemnification or expense advancement rights of a director, officer,
employee or agent of the corporation existing at the time of such repeal or
modification.
8.12 The indemnification provided by this Article shall not be deemed
exclusive of any other rights to which a person seeking indemnification may
be entitled under any statute, bylaw, other provisions of this Certificate
of Incorporation, as amended, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office."
ARTICLE FIVE
By written consent dated December 20, 1994, the Company's sole stockholder
approved the foregoing amendments to the Certificate set forth in Articles
One, Two, Three, and Four of this Certificate of Amendment to Certificate of
Incorporation.
ARTICLE SIX
The foregoing amendments to the Certificate were duly adopted in
accordance with Section 242 of the General Corporation Law of the State of
Delaware.
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19
IN WITNESS WHEREOF, the Company has caused this Certificate of Amendment
to Certificate of Incorporation to be signed on its behalf by its Chairman,
Chief Executive Officer, and President on December 20, 1994.
/s/ Steven G. Papermaster
------------------------------------------------
Steven G. Papermaster
Chairman, Chief Executive Officer, and President
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20
BSG EDUCATION, INC.
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
BSG Education, Inc., a Delaware corporation (the "Company"), does hereby
certify:
ARTICLE ONE
The Company was originally incorporated as "BSG Educational Services,
Inc." on May 16, 1991. Pursuant to an Agreement of Merger dated December
30, 1992, by and between Enterprise Technology Center, Inc. and the Company,
the Company's name was changed to "Enterprise Technology Institute
International, Inc." The Company subsequently filed a Certificate of Amendment
to its Certificate of Incorporation on June 2, 1993, pursuant to which it
changed its name to "BSG Educational Services, Inc." On April 26, 1994, the
Company filed a Certificate of Amendment to its Certificate of Incorporation
that changed its name to "BSG Education, Inc."
By written consent dated December 20, 1994, the Company's Board of
Directors adopted a resolution proposing, and declaring advisable, the following
amendment to the Company's Certificate of Incorporation, as amended as
described in the foregoing paragraph (the "Certificate"):
Article I of the Certificate is amended in its entirety to read as
follows:
"The name of the corporation is BSG ALLIANCE/IT, INC."
ARTICLE TWO
By written consent dated December 20, 1994, the Company's Board of
Directors adopted a resolution proposing, and declaring advisable, the
following amendment to the Certificate:
Article IV of the Certificate is amended in its entirety to read as
follows:
"The total number of shares of all classes of stock which the
corporation shall have the authority to issues is 3,000 shares of
common stock, par value $.001 per share."
21
ARTICLE THREE
By written consent dated December 20, 1994, the Company's Board of
Directors adopted a resolution proposing, and declaring advisable, the
following amendment to the Certificate:
Article VII of the Certificate is amended in its entirety to read as
follows:
"No director of the corporation shall be personally liable to
the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director; provided, however, that the foregoing
clause shall not apply to any 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 the law,
(iii) under Section 174 of the Delaware General Corporation Law (the
"DGCL"), or (iv) for any transaction from which the director derived
an improper personal benefit. If the DGCL is hereafter amended to
authorize the further elimination or limitation of the liability of
directors, then the liability of a director of the corporation, in
addition to the limitation on personal liability provided herein,
shall be limited to the fullest extent permitted by the DGCL, as
amended. Any repeal or modification of this Article by the
stockholders of the corporation shall be prospective only, and shall
not adversely affect any limitation on the personal liability of a
director of the corporation existing at the time of such repeal or
modification."
ARTICLE FOUR
By written consent dated December 20, 1994, the Company's Board of
Directors adopted a resolution proposing, and declaring advisable, the
following amendment to the Certificate:
Article VIII of the Certificate is amended in its entirety to read as
follows:
"8.1 The corporation 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 corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any
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22
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 corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.
8.2 The corporation 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 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 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 interests of the corporation, 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
corporation unless and only to the extent that 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 shall deem
proper.
8.3 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 Sections 8.1
and 8.2 of this Article, or in defense of any claim, issue or matter
therein, the corporation shall indemnify such director, officer,
employee or agent against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
8.4 Any indemnification under Sections 8.1 and 8.2 of this
Article (unless ordered by a court) 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 8.1 and 8.2 of this Article. 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 and a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or (3) by the stockholders.
8.5 Expenses (including attorneys' fees) incurred by an officer,
director, or employee in defending any civil, criminal, administrative
or investigative action, suit or proceeding referred to in Sections
8.1 and 8.2 of this Article shall be paid by the corporation in
advance of the final disposition of such
-3-
23
action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director, officer, or employee 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. Such
expenses (including attorneys' fees) incurred by other employees and
agents shall be so paid upon such terms and conditions, if any, as the
board of directors deems appropriate.
8.6 The indemnification and advancement of expenses provided by,
or granted pursuant to, this Article shall not be deemed exclusive of
any other rights to which those seeking indemnification or advancement
of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action
in an official capacity and as to action in another capacity while
holding such office.
8.7 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
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 Delaware General Corporation Law (the "DGCL")
or this Article.
8.8 For purposes of this Article, references to "the
corporation" 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 Article with respect to the resulting or surviving corporation as
he would have with respect to such constituent corporation if its
separate existence had continued.
8.9 For purposes of this Article, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at the
request of the corporation" shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on,
or involves services by, such director, officer, employee or agent with
respect to an 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
-4-
24
to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this Article.
8.10 The indemnification and advancement of expenses provided
by, or granted pursuant to, this Article 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.
8.11 In the event the DGCL is hereafter amended to, or other
applicable laws are enacted that, authorize additional or broader
rights to indemnification or advancement of expenses for directors,
officers, employees or agents of the corporation (or persons serving at
the request of the corporation as directors, officers, employees or
agents of another corporation, partnership, joint venture, trust or
other entity), the indemnification and advancement of expenses provided
by, or granted pursuant to, this Article shall be modified to include
such additional or broader rights to the fullest extent permitted by
the DGCL, as amended, or such other applicable laws as may be enacted
from time to time. Any repeal or modification of this Article by the
stockholders of the corporation shall be prospective only, and shall
not adversely affect any indemnification or expense advancement rights
of a director, officer, employee or agent of the corporation existing
at the time of such repeal or modification.
8.12 The indemnification provided by this Article shall not be
deemed exclusive of any other rights to which a person seeking
indemnification may be entitled under any statute, bylaw, other
provisions of this Certificate of Incorporation, as amended, agreement,
vote of stockholders or disinterested directors or otherwise, both as
to action in such person's official capacity and as to action in
another capacity while holding such office."
ARTICLE FIVE
By written consent dated December 20, 1994, the Company's sole stockholder
approved the foregoing amendments to the Certificate set forth in Articles One,
Two, Three, and Four of this Certificate of Amendment to Certificate of
Incorporation.
ARTICLE SIX
The foregoing amendments to the Certificate were duly adopted in
accordance with Section 242 of the General Corporation Law of the State of
Delaware.
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25
IN WITNESS WHEREOF, the Company has caused this Certificate of
Amendment to Certificate of Incorporation to be signed on its behalf by its
Chairman, Chief Executive Officer, and President on December 20, 1994.
/s/ Steven G. Papermaster
------------------------------------------------
Steven G. Papermaster
Chairman, Chief Executive Officer, and President
- 6 -
26
CERTIFICATE OF MERGER
OF
BUSINESS SYSTEMS GROUP, INC AND
BSG CONSULTING, INC.
MERGING INTO
BSG ALLIANCE/IT, INC.
In accordance with Sections 103 and 251 of the Delaware General
Corporation Law (the "DGCL"), the undersigned hereby adopts this Certificate of
Merger:
FIRST: Business Systems Group, Inc., a Delaware corporation ("BSGI"),
and BSG Consulting, Inc., a Delaware corporation ("Consulting"), are merging
with and into BSG Alliance/IT, Inc., a Delaware corporation (collectively, the
"Merging Entities").
SECOND: Each of the Merging Entities has approved, adopted, certified,
executed, and acknowledged the Agreement and Plan of Merger dated December 20,
1994, among the Merging Entities (the "Merger Agreement"), in accordance with
Section 251(c) of the DGCL.
THIRD: The name of the surviving entity is BSG Alliance/IT, Inc.
("BSG/AIT" or the "Surviving Entity").
FOURTH: The Certificate of Incorporation of BSG/AIT, as amended, shall
be the Certificate of incorporation of the Surviving Entity.
FIFTH: The executed Merger Agreement is on file at the principal place
of business of the Surviving Entity whose address is:
BSG Alliance/IT, Inc.
11 Greenway Plaza, Suite 900
Houston, Texas 77046-1102
Attention: Legal Department
SIXTH: An executed copy of the Merger Agreement will be furnished by
the Surviving Entity, on request and without cost, to any stockholder of any of
the Merging Entities.
SEVENTH: The Merger shall be effective at the close of business on
December 31, 1994 (the "Effective Time").
27
WITNESS the execution hereof on December 20, 1994, effective as of the
Effective Time set forth above.
BSG ALLIANCE/IT, INC.
By: /s/ Steven G. Papermaster
-----------------------------------
Steven G. Papermaster
Chairman, Chief Executive Officer,
and President
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28
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
BSG ALLIANCE/IT, INC.
2. The registered office of the corporation within the State of Delaware is
hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New
Castle.
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 8/8, 1996.
/s/ Peggy Sherman
---------------------------------
PEGGY SHERMAN, VICE PRESIDENT
29
CERTIFICATE OF MERGER
OF
SAGE COMMUNICATIONS CORPORATION
WITH AND INTO
BSG ALLIANCE/IT, INC.
The undersigned corporation, organized and existing under and by virtue of
the Delaware General Corporation Law (the "DGCL"), DOES HEREBY CERTIFY:
1. Sage Communication Corporation ("Sage"), an Arizona corporation, is
merging with and into BSG Alliance/IT, Inc. ("Alliance"), a Delaware
corporation (the "Merger").
2. The Amended and Restated Merger Agreement (the "Merger Agreement")
has been approved, adopted, certified, executed and acknowledged by Alliance and
Sage, in accordance with Section 252(c) of the DGCL and in the same manner as
is provided in Section 251 of the DGCL.
3. Alliance will be the surviving Delaware corporation following the
Merger, using the name "BSG Alliance/IT, Inc."
4. The Certificate of Incorporation of Alliance will continue after the
merger as the Certificate of Incorporation of the surviving corporation until
thereafter duly amended in accordance with its terms and the DGCL.
5. The executed Merger Agreement pursuant to which the Merger is being
consummated is on file at the principal place of business of the surviving
corporation. The address of the principal place of business of the surviving
corporation is c/o Medaphis Corporation, 2700 Cumberland Parkway, Suite 300,
Atlanta, Georgia 30339.
6. A copy of the Merger Agreement will be furnished by the surviving
corporation, on request and without cost, to any stockholder of any constituent
corporation.
7. The authorized capital stock of Sage consists of 10,000,000 shares of
a par value of $.01 each.
IN WITNESS WHEREOF, Alliance has caused its duly authorized officer to
execute and deliver this Certificate of Merger as of the 8th day of October ,
1996.
BSG ALLIANCE/IT, INC.
By: /s/ William R. Spalding
----------------------------------
Name: William R. Spalding
--------------------------------
Title: Senior Vice President,
-------------------------------
General Counsel and Secretary