EXHIBIT 3.9
CERTIFICATE OF INCORPORATION
OF
COOLTEL, INC.
FIRST
The name of the Corporation is CoolTel, 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 stock which the Corporation shall have
the authority to issue is Three Thousand (3,000) shares of Common Stock, $.01
par value per share.
FIFTH
The name and mailing address of the sole incorporator of the
Corporation is as follows:
NAME MAILING ADDRESS
- ---- -------------------------------
Gregory J. Dziak 1400 McDonald Investment Center
800 Superior Avenue
Cleveland, Ohio 44114
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.
THE UNDERSIGNED, being the sole incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the Delaware General
Corporation Law, does make this Certificate, hereby declaring and certifying
that this is my act and deed and the facts herein stated are true under
penalties of perjury, and accordingly I have hereunto set my hand this 19th day
of January, 2001.
/s/ Gregory J. Dziak
----------------------------------------
Gregory J. Dziak
Sole Incorporator
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
COOLTEL, INC.
----------
Pursuant to Section 242 of the
Delaware General Corporation Law
The undersigned, Michael F. Biehl, being the Treasurer of CoolTel,
Inc., a Delaware corporation (the "Corporation"), hereby certify as follows:
1. The name of the Corporation is CoolTel, 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 CoolTel, 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 OWNERSHIP AND MERGER
MERGING
COOLER SERVICE COMPANY, INCORPORATED
(AN OKLAHOMA CORPORATION)
INTO
COOLTEL, INC.
(A DELAWARE CORPORATION)
Pursuant to Section 253 of the General Corporation Law of Delaware,
the undersigned corporation hereby certifies that:
1. CoolTel, Inc. ("Parent") is a business corporation of the State of
Delaware, incorporated on the 19th day of January, 2001.
2. Parent is the owner of all of the outstanding shares of stock of
Cooler Service Company, Incorporated ("Subsidiary"), a business corporation of
the State of Oklahoma, which was incorporated on the 10th day of January, 1991.
3. The laws of the jurisdiction of organization of Subsidiary permit
the merger of a business corporation of that jurisdiction with a business
corporation of another jurisdiction.
4. Parent, as the owner of all of the outstanding shares of stock of
Subsidiary, hereby merges Subsidiary into Parent, such merger to be effective at
11:59 p.m. on May 26, 2006.
5. The following is a copy of the resolutions adopted by the Board of
Directors of Parent effective as of May 26, 2006 to merge Subsidiary into
Parent:
RESOLVED, that the Board of Directors of the Corporation believes that the
merger of Cooler Service Company, Incorporated, an Oklahoma corporation and
a wholly-owned subsidiary of the Corporation (the "Subsidiary") with and
into the Corporation (the "Merger"), pursuant to Section 253 of the DGCL
and Section 1083 of the Oklahoma General Corporation Act, and in accordance
with the terms of an Agreement of Merger, in substantially the form
attached hereto as Exhibit A (the "Merger Agreement"), is advisable and in
the best interests of the Corporation (as the parent and sole stockholder
of Subsidiary) and of the Corporation's sole stockholder;
RESOLVED FURTHER, that the Merger and the Merger Agreement are hereby
authorized and approved, pursuant to which the Subsidiary shall merge into
the
Corporation, and that all of Subsidiary's estate, property, rights,
privileges, powers and franchises be vested in and held and enjoyed by the
Corporation as fully and entirely and without change or diminution as the
same were before held and enjoyed by Subsidiary in its name and that all of
the obligations of Subsidiary be assumed by the Corporation, to be
effective at the time specified in the Certificates of Ownership and Merger
to be filed in connection with the Merger (the "Effective Time");
RESOLVED FURTHER, that the Corporation hereby relinquishes its corporate
name, effective as of the Effective Time, and assumes in place thereof the
name "Chart Cooler Service Company, Inc.";
RESOLVED FURTHER, that the Corporation hereby agrees, effective as of the
Effective Time, that it may be served with process in the State of Oklahoma
in any proceeding for enforcement of any obligation of the Subsidiary, as
well as for enforcement of any obligation of the Corporation arising from
the Merger, and hereby irrevocably appoints the Secretary of State of
Oklahoma as its agent to accept service of process in any such proceeding,
and hereby specifies the following address to which a copy of such process
shall be mailed by the Secretary of State of Oklahoma:
Chart Cooler Service Company, Inc.
One Infinity Corporate Centre Drive
Garfield Heights, Ohio 44125-5370
Facsimile: 440-753-1491
Attn: Vice President, General Counsel and Secretary
RESOLVED FURTHER, that each of the Corporation's officers, either alone or
in conjunction with any other officer, is hereby authorized and empowered,
for and on behalf of the Corporation, to make and execute Certificates of
Ownership and Merger setting forth a copy of the resolution to merge
Subsidiary into the Corporation and to assume Subsidiary's liabilities and
obligations and the date of adoption thereof, and to file the same in the
office of the Secretary of State of Delaware and in the office of the
Secretary of State of Oklahoma;
RESOLVED FURTHER, that the Chief Executive Officer and President, the Chief
Financial Officer and Treasurer, and each Vice President of the Corporation
(the "Authorized Officers"), either alone or in conjunction with any other
Authorized Officer, is hereby authorized and empowered, for and on behalf
of the Corporation, to consummate the Merger and to do and perform such
other acts and things and to make, execute, deliver, file and record, and
to perform under all documents, instruments and agreements (including,
without limitation, the Merger Agreement), including amendments thereof and
with any and all such additional, modified or revised terms as are
acceptable to an Authorized Officer, and to pay such fees, costs and
expenses as may in an Authorized Officer's judgment be necessary or
appropriate in connection with the Merger or related to or
contemplated by the Merger Agreement, and any such document, instrument or
agreement so executed, or act or thing done or caused to be done by them or
any of them, shall be conclusive evidence of the Authorized Officer's
authority in so doing; and
RESOLVED FURTHER, that all actions taken by the officers, agents or
representatives of the Corporation, for and on behalf of the Corporation,
in connection with the transactions described or referred to in these
resolutions, whether heretofore or hereafter done of performed, which are
in conformity with the intent and purposes of these resolutions, the Merger
and the Merger Agreement are hereby confirmed, ratified and approved in all
respects.
Executed on May 26, 2006
COOLTEL, INC.
By: /s/ Michael F. Biehl
------------------------------------
Name: Michael F. Biehl
Title: Executive Vice President
3
EXHIBIT A
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER (this "Agreement") is entered into on this
26th day of May, 2006, by and between COOLTEL, INC., a Delaware corporation
("Parent"), and COOLER SERVICE COMPANY, INCORPORATED, an Oklahoma corporation
and wholly-owned subsidiary of Parent ("Subsidiary"). Parent and Subsidiary are
sometimes referred to collectively herein as the "Constituent Corporations."
WHEREAS, Parent and Subsidiary desire to effect a merger of Subsidiary
with and into Parent pursuant to Section 253 of the Delaware General Corporation
Law ("DGCL") and Section 1083 of the Oklahoma General Corporation Act ("OGCA");
WHEREAS, the respective Boards of Directors of Parent and Subsidiary
have deemed it advisable and in the best interests of each of the Constituent
Corporations and their respective stockholders that Subsidiary merge with and
into Parent pursuant to the above mentioned statutes and upon the terms and
subject to the conditions hereinafter set forth;
WHEREAS, the respective Boards of Directors of Parent and Subsidiary
have duly authorized and approved this Agreement and the Merger (as hereinafter
defined); and
WHEREAS, notwithstanding the Constituent Corporations' decision to
describe the Merger in and to enter into this Agreement, the Constituent
Corporations are relying on Section 253 of the DGCL and Section 1083 of the OGCA
in connection with the Merger.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree that Subsidiary shall be merged with and into
Parent and that the terms and conditions of the Merger (as hereinafter defined),
the mode of carrying the Merger into effect and certain other provisions
relating thereto shall be as hereinafter set forth.
ARTICLE 1 - The Merger
1.1 Surviving Corporation. Subject to the terms and provisions of this
Agreement, and in accordance with Section 253 of the DGCL and Section 1083 of
the OGCA, at the Effective Time (as defined in Section 1.3 hereof), Subsidiary
shall be merged with and into Parent (the "Merger"). Parent shall be the
surviving corporation from and after the Effective Time and is sometimes
hereinafter referred to as the "Surviving Corporation," and Parent shall
continue its corporate existence under the DGCL. At the Effective Time, the
separate existence of Subsidiary, which is sometimes hereinafter referred to as
the "Terminating Corporation," shall cease in accordance with the provisions of
the OGCA, and Parent, to the extent permitted by applicable law, shall succeed
to all of the business, properties, assets and liabilities of Subsidiary. Also
at the Effective Time, Parent shall relinquish its corporate name and assume in
place thereof the name "Chart Cooler Service Company, Inc." The Surviving
Corporation shall maintain its principal office at One Infinity Corporate Centre
Drive, Garfield Heights, Ohio 44125.
1.2 Effect of Merger. At the Effective Time, the Merger shall have the effects
provided for herein and in the relevant provisions of the DGCL and the OGCA.
1.3 Effective Time. The Merger shall become effective at the time specified in
the Certificates of Ownership and Merger to be filed with the Delaware Secretary
of State and with the Oklahoma Secretary of State in connection with the Merger
(the "Effective Time").
1.4 Certificate of Incorporation. The certificate of incorporation of Parent, as
in force and effect immediately prior to the Effective Time in the State of
Delaware, shall be the certificate of incorporation of the Surviving
Corporation, and said certificate of incorporation, shall continue in full force
and effect until amended and changed in the manner prescribed by DGCL; provided,
however, that the appropriate provisions of the certificate of incorporation of
Parent shall be amended, as of the Effective Time, to reflect the change in
Parent's corporate name described in Section 1.1 of this Agreement.
1.5 By-laws. The by-laws of Parent as in force and effect immediately prior to
the Effective Time shall be the by-laws of the Surviving Corporation and will
continue in full force and effect until changed, altered, or amended as therein
provided and in the manner prescribed by the provisions of the DGCL; provided,
however, that the appropriate provisions of the by-laws of Parent shall be
amended, as of the Effective Time, to reflect the change in Parent's corporate
name described in Section 1.1 of this Agreement.
1.6 Directors and Officers. The Directors and Officers of the Parent as in force
and effect immediately prior to the Effective Time shall be the Directors and
Officers of the Surviving Corporation at the Effective Time, all of whom shall
hold their respective offices until the election and qualification of their
respective successors or until their tenure is otherwise terminated in
accordance with the by-laws of the Surviving Corporation.
1.7 Additional Actions. If, at any time after the Effective Time, the Surviving
Corporation shall consider or be advised that any further assignments or
assurances in law or any other acts are necessary or desirable (a) to vest,
perfect or confirm, of record or otherwise, in the Surviving Corporation, title
to and possession of any property or right of Subsidiary acquired or to be
acquired by reason of, or as a result of, the Merger, or (b) otherwise to carry
out the purpose of this Agreement, Subsidiary and the proper officers thereof
shall be deemed to have granted hereby to the Surviving Corporation an
irrevocable power of attorney to execute and deliver all such proper deeds,
assignments and assurances in law and to do all acts necessary or proper to
vest, perfect or confirm title to and the possession of such property or rights
in the Surviving Corporation and otherwise to carry out the purposes of this
Agreement; and the proper officers and directors of the Surviving Corporation
are hereby fully authorized in the name of Subsidiary or otherwise to take any
and all such action.
ARTICLE II - Treatment of Shares of the Constituent Corporations
2.1 Common Stock of Parent. Parent has 100 shares of its common stock, par value
$0.01 per share, outstanding, all of which are of one class and owned by Chart
Inc.
2.2 Common Stock of Subsidiary. Subsidiary has 2,000 shares of its common
shares, par value $0.01 per share, outstanding, all of which are of one class
and owned by Parent.
2.3 No Conversion of Shares. No shares of Parent or Subsidiary shall be
converted or substituted. Upon the Effective Time, all of the issued and
outstanding shares of Subsidiary shall be surrendered and extinguished, and each
of the issued and outstanding shares of Parent shall continue to represent an
issued share of Parent.
ARTICLE III - Amendment; Termination
3.1 Amendment. This Agreement may be amended only by the Board of Directors of
the Constituent Corporations by a writing executed by each of the parties
hereto; provided, however, that there shall be no amendments which (a) alter or
change any term of the certificate of incorporation of the Surviving
Corporation, except for alterations or changes that could otherwise be adopted
by the Board of Directors of the Surviving Corporation, or (b) alter or change
any of the terms and conditions of this Agreement if such alteration or change
would adversely affect the holders of any class of stock of any of the
Constituent Corporations.
3.2 Termination. At any time prior to the Effective Time, this Agreement may be
terminated and the Merger may be abandoned by the Board of Directors of Parent.
3.3 Effect of Termination. If this Agreement is terminated pursuant to Section
3.2 hereof, this Agreement shall become null and void and of no further force
and effect, and all obligations of the parties hereto shall terminate and there
shall be no liability or obligation of any party hereto or its representatives.
ARTICLE IV - Miscellaneous
4.1 Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original and the same agreement.
4.2 Statutory Agent in Delaware. The name and address of the statutory agent in
Delaware upon whom any process, notice or demand against Subsidiary or the
Surviving Corporation may be served is:
The Corporation Trust Company
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
County of New Castle
4.3 Designated Agent in Oklahoma. Effective at the Effective Time, the Surviving
Corporation hereby agrees that it may be served with process in the State of
Oklahoma in any proceeding for enforcement of any obligation of Subsidiary, as
well as for enforcement of any obligation of the Surviving Corporation arising
from the Merger, and the Surviving Corporation hereby irrevocably appoints the
Oklahoma Secretary of State as its agent to accept service of
process in any such suit or proceeding, a copy of such process to be mailed by
the Secretary of State of Oklahoma to:
Chart Cooler Service Company, Inc.
One Infinity Corporate Centre Drive
Garfield Heights, Ohio 44125-5370
Facsimile: 440-753-1491
Attn: Vice President, General Counsel and Secretary
4.4 Assignment. This Agreement shall be binding upon and inure to the benefit of
the successors and assigns of each party hereto.
4.5 Waivers. Any waiver by any party of any violation of, breach of, or default
under, any provision of this Agreement, or any other agreements provided for
herein, by any other party shall not be construed as, or constitute a continuing
waiver of such provision, or waiver of any other violation of, breach of, or
default under, any other provision of this Agreement or such other agreements.
4.6 Severability. In case any provision in this Agreement shall be held invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions hereof will not in any way be affected or impaired thereby.
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