EXHIBIT 3.7
CERTIFICATE OF AMENDMENT AND RESTATEMENT OF
CERTIFICATE OF INCORPORATION
OF
NEXGEN FUELING, INC.
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Pursuant to Sections 242 and 245 of the
Delaware General Corporation Law
The undersigned, John T. Romain, being the Chief Financial Officer and
Treasurer of NexGen Fueling, Inc., a Delaware corporation (the "Corporation"),
hereby certifies as follows:
1. The present name of the Corporation is NexGen Fueling, Inc., and
the date of filing of its original Certificate of Incorporation with the
Secretary of State of the State of Delaware is December 20, 2000.
2. The Amended and Restated Certificate of Incorporation attached
hereto as Exhibit A has been duly adopted by the sole stockholder of the
Corporation in accordance with the provisions of Sections 228, 242 and 245 of
the Delaware Corporation Law.
3. The Certificate of Incorporation of the Corporation, as amended, is
hereby amended and restated in full to read as set forth on Exhibit A attached
hereto.
Signed on January 30, 2001
NEXGEN FUELING, INC.
By: /s/ John T. Romain
------------------------------------
John T. Romain, Chief Financial
Officer and Treasurer
Exhibit A
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
NEXGEN FUELING, INC.
FIRST
The name of the Corporation is NexGen Fueling, Inc.
SECOND
The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, City of Wilmington, County of New Castle, 19801.
The name of its registered agent at such address is The Corporation Trust
Company.
THIRD
The nature of the business or purpose to be conducted or promoted by
the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the Delaware General Corporation Law. In
connection therewith, the Corporation shall possess and exercise all of the
powers and privileges granted by the Delaware General Corporation Law 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.
FOURTH
The total number of shares of all classes of capital stock which the
Corporation shall have the authority to issue is Thirty-One Million
(31,000,000), consisting of the following classes of capital stock:
(a) Thirty Million (30,000,000) shares of Common Stock, par value
$.01 per share (the "Common Stock"), and
(b) One Million (1,000,000) shares of Preferred Stock, par value $.01
per share (the "Preferred Stock").
The following is a statement of the powers, preferences and rights and
the qualifications, limitations and restrictions of the Common Stock and
Preferred Stock:
A. Preferred Stock. The Board of Directors of the Corporation may by
resolution authorize the issuance of shares of Preferred Stock from time to time
in one or more series. Shares of Preferred Stock that are redeemed, purchased or
otherwise acquired by the Corporation may be reissued except as otherwise
provided by law. The Board of Directors is hereby authorized to fix or alter the
designations, powers and preferences, and relative, participating, optional or
other rights of the Preferred Stock, if any, and the qualifications, limitations
or restrictions of the Preferred Stock, including, without limitation, dividend
rights (and whether dividends are cumulative), conversion rights, if any, voting
rights (including the number of votes, if any, per share, as well as the number
of members, if any, of the Board of Directors of the Corporation which each
series of Preferred Stock may be entitled to elect), rights and terms of
redemption (including sinking fund provisions, if any), redemption price and
liquidation preferences of any wholly unissued series of Preferred Stock, and
the number of shares constituting any such series and the designation thereof,
and to increase or decrease the number of shares of any such series subsequent
to the issuance of shares of such series, but not below the number of shares of
such series then outstanding. Notwithstanding the foregoing, the Board of
Directors shall have no power to alter the rights of any shares of Preferred
Stock then outstanding without the consent of the holders of a majority (or
other greater proportion established by the Board of Directors) of the
outstanding shares the rights of which are to be altered.
B. Common Stock.
1. Dividends. Subject to the preferences applicable to the Preferred Stock,
if any, outstanding at any time, the holders of the Common Stock shall be
entitled to receive such dividends, payable in cash or otherwise, as may be
declared thereon by the Board of Directors from time to time out of the assets
or funds of the Corporation legally available therefor.
2. Liquidation Rights. In the event of any dissolution, liquidation or
winding up of the affairs of the Corporation in accordance with applicable law,
whether voluntary or involuntary, each Common Stock shall be entitled to share
ratably, subject to the rights and preferences of the Preferred Stock, if any,
in all assets of the Corporation.
3. Voting Rights. The holders of Common Stock shall be entitled to one vote
for each share upon all matters presented to the stockholders of the
Corporation.
FIFTH
A. Indemnification of Directors and Officers. Each person who was or is
made a party to or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereunder a "proceeding"), by reason of the fact that he or she,
or a person of whom he or she is the legal representative, is or was a director
or officer of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the Delaware General Corporation Law, as the same exists or
may hereafter be amended (but, in, the case of any such amendment, only to the
extent that such amendment permits the Corporation to
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provide broader indemnification rights than such law permitted the Corporation
to provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, amounts owed under Employee
Retirement Income Security Act of 1974, excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of his or her heirs, executors and administrators; provided,
however, that, except as provided in Section B of this Article, the Corporation
shall indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board and by special approval of the
Board of Directors. The right to indemnification conferred in this Article shall
be a contract right and shall include the right to be paid by the Corporation
the expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that if the Delaware General Corporation Law
requires, the payment of such expenses incurred by a director or officer in his
or her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such director or officer, to
repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Article or
otherwise. The Corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
B. Unpaid Indemnification Claims. If a claim under Section A of this
Article is not paid in full by the Corporation within thirty (30) days after a
written claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim. It shall be a defense to
any such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standards of conduct which make
it permissible under the Delaware General Corporation Law for the Corporation to
indemnify the claimant 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, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
C. Rights Not Exclusive. The right to indemnification and the payment of
expenses incurred in defending a proceeding in advance of its final disposition
conferred in this Article shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision of this
Amended and Restated Certificate of Incorporation, by-laws, agreement, vote of
stockholders or disinterested directors or otherwise.
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D. Directors and Officers Insurance. The Corporation may maintain
insurance, at its expense, to protect itself and any director, officer, employee
or agent of the Corporation or another corporation, partnership, joint venture,
trust or other enterprise against any such expense, liability or loss, whether
or not the Corporation would have the power to indemnify such person against
such expense, liability or loss under the Delaware General Corporation Law.
E. Construction. As used in this Article, references to "the Corporation"
shall include, in addition to the resulting or surviving corporation, any
constituent corporation absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to
indemnify its directors, officers, employees and 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.
F. Severability. If this Article or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each director, officer, employee and agent of the
Corporation as to expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, including a grand jury
proceeding and an action by the Corporation, to the fullest extent permitted by
any applicable portion of this Article that shall not have been invalidated or
by any other applicable law.
SIXTH
The Board of Directors of the Corporation shall have the power to
adopt, amend or repeal the by-laws of the Corporation.
SEVENTH
Section 203 of the Delaware General Corporation Law shall not apply to
any business combination (as defined in Section 203(c)(3) of the Delaware
General Corporation Law, as amended from time to time, or in any successor
thereto, however denominated) in which the Corporation shall engage.
EIGHTH
The directors of the Corporation shall incur no personal liability to
the Corporation or its stockholders for monetary damages for the breach of
fiduciary duty as a director; provided, that such director liability shall not
be limited or eliminated (i) for any breach of the director's duty of loyalty to
the Corporation or its stockholders, (ii) for any acts or omissions by the
director not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit.
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CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
NEXGEN FUELING, INC.
----------
Pursuant to Section 242 of the
Delaware General Corporation Law
The undersigned, Michael F. Biehl, being the Treasurer of NexGen
Fueling, Inc., a Delaware corporation (the "Corporation"), hereby certify as
follows:
1. The name of the Corporation is Nexgen Fueling, Inc.
2. The amendment of the Certificate of Incorporation as hereinafter
set forth has been duly adopted in accordance with Section 242 of the Delaware
General Corporation Law.
3. The Certificate of Incorporation of NexGen Fueling, Inc. is hereby
amended, effective September 15, 2003, so that Article FOURTH shall henceforth
read, in its entirety, as follows:
"A. Authorized Capital. The total number of shares of stock which
the Corporation shall have the authority to issue is Three Thousand
(3,000) shares of Common Stock, $.01 par value per share.
B. Limitation on Issuance of Non-Voting Equity Securities.
Notwithstanding any other provision in this Article FOURTH, pursuant
to Section 1123(a)(6) of Chapter 11 of Title 11 of the United States
Code, the Corporation will not issue non-voting equity
securities(which shall not be deemed to include any warrants or
options to purchase capital stock of the Corporation); provided,
however, that this provision (i) will have no further force or effect
beyond that required under Section 1123 of the Bankruptcy Code, (ii)
will have such force and effect, if any, only for so long as such
section is in effect and applicable to the Corporation or any of its
wholly-owned subsidiaries and (iii) in all events may be amended or
eliminated in accordance with applicable law as from time to time in
effect."
IN WITNESS WHEREOF, the undersigned subscribes this Certificate of
Amendment and affirm that the facts stated herein are true under penalties of
perjury, this 12th day of September, 2003.
/s/ Michael F. Biehl
----------------------------------------
Michael F. Biehl, Chief Financial
Officer and Treasurer
Effective Date: September 15, 2003
CERTIFICATE OF MERGER
OF
CHELP, INC.
(a Delaware corporation)
and
COASTAL FABRICATION, LLC
(a Delaware limited liability company)
into
NEXGEN FUELING, INC.
(a Delaware corporation)
Pursuant to Sections 264(c) and 251 of the General Corporation
Law of the State of Delaware (the "DGCL"), the undersigned corporation, DOES
HEREBY CERTIFY THAT:
1. The name and state of incorporation of each of the constituent
entities (the "Constituent Entities") are as follows:
Name State of Formation
- ---- ------------------
CHELP, Inc..................... Delaware
Coastal Fabrication, LLC....... Delaware
NexGen Fueling, Inc............ Delaware
2. An Agreement and Plan of Merger by and among the Constituent
Entities, dated October 14, 2005 (the "Agreement and Plan of Merger"), which
provides for the merger of CHELP, Inc. and Coastal Fabrication, LLC with and
into NexGen Fueling, Inc. (the "Merger"), has been approved, adopted, certified,
executed and acknowledged by each of the Constituent Entities in accordance with
the provisions of Sections 264 and 251, as applicable, of the DGCL.
3. The Merger shall become effective at 12:00 pm Eastern Time on
October 14, 2005
4. The surviving entity shall be NexGen Fueling, Inc. and simultaneous
herewith its name shall be changed to Chart Energy & Chemicals, Inc.
(hereinafter referred to as the "Surviving Corporation").
5. The Certificate of Incorporation of NexGen Fueling, Inc. currently
in effect shall be the Certificate of Incorporation of the Surviving Corporation
and shall be amended to reflect the above name change by virtue of the Merger.
6. The executed Agreement and Plan of Merger is on file at an office
of the Surviving Corporation, the address of which is One Infinity Corporate
Centre Drive, Suite 300, Garfield Heights, Ohio 44125.
7. A copy of the Agreement and Plan of Merger will be furnished, on
request without cost, to all stockholders and members of the Constituent
Entities.
* * * * *
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IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Merger as of the 14th day of October, 2005.
NEXGEN FUELING, INC.
By: /s/ Michael F. Biehl
------------------------------------
Name: Michael F. Biehl
Title: Chief Financial Officer
and Treasurer
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