STATE OF DELAWARE
[STATE INSIGNIA]
Office of Secretary of State
I, MICHAEL HARKINS, 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 NEWBURYPORT ACQUISITION CORP. FILED IN THIS OFFICE ON THE
TWENTY-SIXTH DAY OF JUNE, A.D. 1990, AT 2 O'CLOCK P.M.
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[SEAL] /s/ Michael Harkins
750177013 -----------------------------------
Michael Harkins, Secretary of State
AUTHENTICATION: |2704495
DATE: 06/26/1990
CERTIFICATE OF INCORPORATION
of
NEWBURYPORT ACQUISITION CORP.
The undersigned incorporator, in order to form a corporation under the
General Corporation Law of the State of De1aware, certifies as follows:
1. Name. The name of the corporation is NEWBURYPORT ACQUISITION CORP.
2. Address; Registered Agent. The address of the Corporation's registered
office is 32 Loockerman Square, Suite L-100, City of Dover 19901, County of
Kent, State of Delaware; and its registered agent at such address is The
Prentice-Hall Corporation System, Inc.
3. Purposes. The nature of the business and purposes to be conducted or
promoted by the Corporation are to engage in, carry on and conduct any lawful
act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
4. Number of Shares. The total number of shares of stock which the
Corporation shall have authority to issue is: Sixty Thousand (60,000) of which
Fifty Thousand (50,000) shall be shares of Preferred Stock of the par value of
One Dollar ($1.00) each and Ten Thousand (10,000) shall
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be shares of Common Stock of the par value of Ten Cents ($0.10) each.
5. Designation of Classes; Relative Rights, etc. The designation, relative
rights, preferences and limitations of the shares of each class are as follows:
The shares of Preferred Stock may be issued from time to time in one or
more series of any number of shares, provided that the aggregate number of
shares issued and not cancelled of any and all such series shall not exceed the
total number of shares of Preferred Stock hereinabove authorized, and with
distinctive serial designations, all as shall hereafter be stated and expressed
in the resolution or resolutions providing for the issue of such share of
Preferred Stock from time to time adopted by the Board of Directors pursuant to
authority so to do which is hereby vested in the Board of Directors. Each series
of shares of Preferred Stock (a) may have such voting powers, full or limited,
or may be without voting powers; (b) may be subject to redemption at such time
or times and at such prices; (c) may be entitled to receive dividends (which may
be cumulative or non-cumulative) at such rate or rates, on such conditions and
at such times, and payable in preference to, or in such relation to, the
dividends payable on any other class or classes or series of stock; (d) may have
such rights upon the dissolution of, or upon any distribution of the assets of,
the Corporation; (e) may be made convertible
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into or exchangeable for, shares of any other class or classes or of any other
series of the same or any other class or classes or shares of the Corporation at
such price or prices or at such rates of exchange and with such adjustments; (f)
may be entitled to the benefit of a sinking fund to be applied to the purchase
or redemption of shares of such series in such amount or amounts; (g) may be
entitled to the benefit of conditions and restrictions upon the creation of
indebtedness of the Corporation or any Subsidiary, upon the issue of any
additional share (including additional shares of such series or of any other
series) and upon the payment of dividends or the making of other distributions
on, and the purchase, redemption or other acquisition by the Corporation or any
subsidiary of, any outstanding shares of the Corporation and (h) may have such
other relative, participating, optional or other special rights, qualifications,
limitations or restrictions thereof; all as shall be stated in said resolution
or resolutions providing for the issue of such shares of Preferred Stock. Shares
of Preferred Stock of any series which have been redeemed (whether through the
operation of a sinking fund or otherwise) or which, if convertible or
exchangeable, have been converted into or exchanged for shares of any other
class or classes shall have the status of authorized and unissued shares of
Preferred Stock of the same series and may be reissued as a part of the series
of
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which they were originally a part or may be reclassified and reissued as part of
a new series of shares of Preferred Stock to be created by resolution or
resolutions of the Board of Directors or as part of any other series of shares
of Preferred Stock, all subject to the conditions or restrictions on issuance
set forth in the resolution or resolutions adopted by the Board of Directors
providing for the issue of any series of shares of Preferred Stock.
Subject to the provisions of any applicable law, or of the By-laws of the
Corporation as from time to time amended, with respect to the closing of the
transfer books or the fixing of a record date for the determination of
shareholders entitled to vote and except as otherwise provided by law or by the
resolution or resolutions providing for the issue of any series of shares of
Preferred Stock, the holders of outstanding shares of Common Stock shall
exclusively possess voting power for the election of directors and for all other
purposes, each holder of record of shares of Common Stock being entitled to one
vote for each share of Common Stock standing in his name on the books of the
Corporation. Except as otherwise provided by the resolution or resolutions
providing for the issue of any series of shares of Preferred Stock, the holders
of shares of Common Stock shall be entitled, to the exclusion of the holders of
shares of Preferred Stock of any and all series, to receive such dividends as
from time to time may be
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declared by the Board of Directors. In the event of any liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary, after
payment shall have been made to the holders of shares of Preferred Stock of the
full amount for which they shall be entitled pursuant to the resolution or
resolutions providing for the issue of any series of shares of Preferred Stock,
the holders of shares of Common Stock shall be entitled, to the exclusion of the
holders of shares of Preferred Stock of any and all series, to share, ratably
according to the number of shares of Common Stock held by them, in all remaining
assets of the Corporation available for distribution to its shareholders.
Subject to the provisions of this Certificate of Incorporation and except
as otherwise provided by law, the stock of the Corporation, regardless of class,
may be issued for such consideration and for such corporate purposes as the
Board of Directors may from time to time determine.
6. Name and Address of Incorporator. The name and mailing address of the
incorporator are: James L. Purcell, 1285 Avenue of the Americas, New York, New
York 10019-6064.
7. Election of Directors. Members of the Board of Directors may be elected
either by written ballot or by voice vote.
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8. Limitation of Liability. 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, 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 any improper personal benefits.
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.
9. Indemnification.
9.1 The Corporation shall, to the extent not prohibited by law,
indemnify any person who is or was made, or 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 to procure a judgment in its favor (hereinafter a
"Proceeding"), by reason of the fact that such person, or a person of whom such
person is the legal representative, is or was a director or officer of the
Corporation, or is or was serving in
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any capacity at the request of the Corporation for any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against judgments, fines, penalties, excise taxes, amounts paid in settlement
and costs, charges and expenses (including attorneys' fees and disbursements).
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 such persons entitled to the benefits of this Section 9.
9.2 The Corporation shall, from time to time, reimburse or advance
to any director or officer or other person entitled to indemnification hereunder
the funds necessary for payment of expenses, including attorneys' fees and
disbursements, incurred in connection with any Proceeding, in advance of the
final disposition of such Proceeding, provided, however, that, if required by
the Delaware General Corporation Law, such expenses incurred by or on behalf or
any director or officer or other person may be paid in advance of the final
disposition of a Proceeding only upon receipt by the Corporation of an
undertaking, by or on behalf of such director or officer (or other person
indemnified hereunder), to repay any such amount so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right of appeal that such
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director, officer or other person is not entitled to be indemnified for such
expenses.
9.3 The right to indemnification and reimbursement or advancement of
expenses provided by, or granted pursuant to, this Section 9 shall not be deemed
exclusive of any other rights to which those seeking indemnification or
reimbursement or advancement of expenses may have or hereafter be entitled under
any law, by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office.
9.4 The right to indemnification and reimbursement or advancement of
expenses provided by, or granted pursuant to, this Section 9 shall continue as
to a person who has ceased to be a director or officer (or other person
indemnified hereunder) and shall inure to the benefit of the heirs, executors
and administrators of such person.
9.5 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, employee benefit plan or other enterprise against any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of such person's
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status as such, whether or not the Corporation would have the power to indemnify
such person against such liability under the provisions of this Section 9, the
By-laws of the Corporation or under Section 145 of the Delaware General
Corporation Law or any other provision of law.
9.6 The provisions of this Section 8 shall be a contract between the
Corporation, on the one hand, and each director and officer who serves in such
capacity at any time while this Section 9 is in effect and any other person
indemnified hereunder, on the other hand, pursuant to which the Corporation and
each such director, officer, or other person intend to be legally bound. No
repeal or modification or this Section 9 shall affect any rights or obligations
then existing or thereafter arising with respect to any state of facts then or
theretofore existing or thereafter arising or any proceeding theretofore or
thereafter brought or threatened based in whole or in part upon any such state
of facts.
9.7 The right to indemnification and reimbursement or advancement or
expenses provided by, or granted pursuant to, this Section 9 shall be
enforceable by any person entitled to such indemnification or reimbursement or
advancement of expenses in any court of competent jurisdiction. The burden of
proving that such indemnification or reimbursement or advancement of expenses
are not appropriate shall be on the Corporation. Neither the failure of the
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Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that such indemnification or reimbursement or advancement of expenses is
proper in the circumstances nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that such person is not entitled to such indemnification or
reimbursement or advancement of expenses, shall constitute a defense to the
action or create a presumption that such person is not so entitled. Such person
shall also be indemnified for any expenses incurred in connection with
successfully establishing his or her right to such indemnification or
reimbursement or advancement of expenses, in whole or in part, in any such
proceeding.
9.8 Any director or officer of the Corporation serving (1) another
corporation of which a majority of the shares entitled to vote in the election
of its directors is held by the Corporation, or (2) any employee benefit plan of
the Corporation or any corporation referred to in clause (1), in any capacity,
shall be deemed to be doing so at the request of the Corporation.
9.9 Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this section 9 may
elect to have the right to indemnification or reimbursement or advancement of
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expenses interpreted on the basis of the applicable law in effect at the time of
the occurrence of the event or events giving rise to the applicable Proceeding,
to the extent permitted by law, or on the basis of the applicable law in effect
at the time such indemnification or reimbursement or advancement of expenses is
sought. Such election shall be made, by a notice in writing to the Corporation,
at the time indemnification or reimbursement or advancement of expenses is
sought; provided that if no such notice is given, the right to indemnification
or reimbursement or advancement of expenses shall be determined by the law in
effect at the time indemnification or reimbursement or advancement of expenses
is sought.
10. Adoption, Amendment and/or Repeal of By-Laws. The Board of Directors
may from time to time (after adoption by the undersigned of the original
by-laws of the Corporation) make, alter or repeal the by-laws of the
Corporation; provided, that any by-laws made, amended or repealed by the Board
of Directors may be amended or repealed, and any by-laws may be made, by the
stockholders of the Corporation.
IN WITNESS WHEREOF, this Certificate has been signed on this 25th day of
June, 1990.
/s/ James L. Purcell
-----------------------
James L. Purcell
Incorporator