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Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
CAPTEC NET LEASE REALTY, INC.
FIRST: The name of the Corporation is Captec Net Lease Realty, Inc.
SECOND: The address of the Corporation's registered office in the
State of Delaware is 1013 Centre Road, Wilmington, Delaware 19805 in the
City of Wilmington, County of New Castle. The name of its registered agent at
such address is Corporation Service Company.
THIRD: The purpose of the Corporation 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.
FOURTH: The total number of shares of all classes of capital stock that
the Corporation shall have authority to issue is Seventy Million (70,000,000)
shares, consisting of Forty Million (40,000,000) shares of Common Stock, $.01
par value per share (the "Common Stock"), Twenty Million (20,000,000) shares
of Excess Stock, $.01 par value per share (the "Excess Stock") and Ten Million
(10,000,000) shares of Preferred Stock, $.01 par value per share (the
"Preferred Stock").
The Common Stock and the Excess Stock (each subject to the rights,
preferences and terms of the Preferred Stock as established by the Board of
Directors from time to time) shall have the preferences, qualifications,
limitations, restrictions and rights set forth below:
A. COMMON STOCK:
(1) DIVIDEND RIGHTS. The holders of shares of Common Stock
shall be entitled to received, when, as and if declared by the Board of
Directors of the Corporation, out of the assets of the Corporation which are by
law available therefore, dividends or distributions payable in cash, in property
or in securities of the Corporation.
(2) RIGHTS UPON LIQUIDATION. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of, or any distribution of
the assets of, the Corporation, each holder of shares of Common Stock shall be
entitled to receive, ratably with each other holder of Common Stock and Excess
Stock, that portion of the assets of the Corporation available for distribution
to its stockholders as the number of shares of Common Stock held by such holder
bears to the total number of shares of Common Stock and Excess Stock then
outstanding.
(3) VOTING RIGHTS. The holders of shares of Common Stock
shall be entitled to vote on all matters (for which holders of Common
Stock shall be entitled to vote thereon) at all meetings of the
stockholders of the Corporation and shall be entitled to one vote for each
share of Common Stock entitled to vote at such meeting.
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(4) RESTRICTIONS ON TRANSFER TO PRESERVE TAX BENEFIT; EXCHANGE
FOR EXCESS STOCK (a) DEFINITIONS. For the purposes of paragraphs A and B of this
Article FOURTH, the following terms shall have the following meanings:
"Beneficial Ownership" shall mean ownership of Equity Stock by
a Person who would be treated as an owner of such shares of Equity Stock either
directly or constructively through the application of Section 544 of the Code,
as modified by Section 856(h)(1)(B) of the Code. The terms "Beneficial Owner,"
"Beneficially Owns" and "Beneficially Owned" shall have the correlative
meanings.
"Beneficiary" shall mean the beneficiary of the Trust (as
defined herein) as determined pursuant to subparagraph B(5) of this Article
FOURTH.
"Board of Directors" shall mean the Board of Directors of the
Corporation.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Common Equity Stock" shall mean stock that is either Common
Stock or Excess Stock.
"Constructive Ownership" shall mean ownership of shares of
Equity Stock by a Person who would be treated as an owner of such shares of
Equity Stock either directly or constructively through the application of
Section 318 of the Code, as modified by Section 856(d)(5) of the Code. The terms
"Constructive Owner," "Constructively Owns" and "Constructively Owned" shall
have the correlative meanings.
"Equity Stock" shall mean the Common Stock, the Excess Stock,
and the Preferred Stock of the Corporation.
"Initial Public Offering" means the sale of shares of Common
Stock pursuant to the Company's first effective registration statement for such
Common Stock filed under the Securities Act of 1933, as amended.
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"Market Price" shall mean the last reported sales price of
Common Stock reported on the New York Stock Exchange on the trading day
immediately proceeding the relevant date or, if the Common Stock is not then
traded on the New York Stock Exchange, the last reported sales price of the
Common Stock on the trading day immediately preceding the relevant date as
reported on any exchange or quotation system over which the Common Stock may be
traded, or if the Common Stock is not then traded over any exchange or quotation
system, then the market price of the Common Stock on the relevant date as
determined in good faith by the Board of Directors.
"Ownership Limit" shall mean 9.8% of the number of outstanding
shares of any class of the Equity Stock.
"Person" shall mean an individual, corporation, partnership,
estate, trust (including a trust qualified under Section 401(a) or 501(c)(17) of
the Code), a portion of a trust permanently set aside for or to be used
exclusively for the purpose described in Section 642(c) of the Code, an
association, a private foundation within the meaning of Section 509(a) of the
Code, a joint stock company, other entity or a group as that term is used for
purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended;
provided, however, that a "person" does not mean an underwriter that
participates in a public offering of the Common Stock, for a period of 25 days
following the purchase by such underwriter of the Common Stock.
"Purported Beneficial Transferee" shall mean, with respect to
any purported Transfer which results in Excess Stock, the person that would have
been the purported beneficial transferee for whom the Purported Record
Transferee would have acquired shares of Equity Stock, if such Transfer had been
valid under subparagraph A(4)(b) of this Article FOURTH.
"Purported Record Transferee" shall mean, with respect to any
purported Transfer which results in Excess Stock, the record holder of the
Equity Stock if such Transfer had been valid under subparagraph A(4)(b) of this
Article FOURTH.
"REIT" shall mean a Real Estate Investment Trust under Section
856 of the Code.
"Related Party Limit" shall mean 9.8% of the outstanding
Equity Stock of the Corporation.
"Transfer" shall mean any sale, transfer, gift, assignment,
devise or other disposition of Equity Stock, (including, without limitation, (i)
the granting of any option or entering in to any agreement or the sale, transfer
or other disposition of Equity Stock or (ii) the sale, transfer, assignment or
other disposition of any securities or rights convertible into or
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exchangeable for Equity Stock), whether voluntary or involuntary, whether of
record or beneficially and whether by operation of law or otherwise.
"Trust" shall mean the trust created pursuant to subparagraph
B(1) of this Article FOURTH.
"Trustee" shall mean the Corporation as trustee for the Trust,
and any successor trustee appointed by the Corporation.
(b) RESTRICTIONS ON TRANSFERS.
(i) From and after the date of the Initial Public Offering,
no Person shall Beneficially Own shares of Equity Stock in excess of the
Ownership Limit and no Person shall Constructively Own shares of Equity Stock in
excess of 9.8% of the outstanding Equity Stock.
(ii) From and after the date of the Initial Public Offering,
any Transfer that, if effective, would result in any Person Beneficially Owning
Equity Stock in excess of the Ownership Limit shall be void AB INITIO as to the
Transfer of such shares of Equity Stock which would be otherwise Beneficially
Owned by such Person in excess of the Ownership Limit; and the intended
transferee shall acquire no rights in such shares of Equity Stock.
(iii) From and after the date of the Initial Public Offering,
any transfer that, if effective, would result in any Person Constructively
Owning Equity Stock in excess of the Related Party Limit shall be void AB INITIO
as to the Transfer of such shares of Equity Stock which would be otherwise
Constructively Owned by such Person in excess of such amount; and the intended
transferee shall acquire no rights in such shares of Equity Stock.
(iv) From and after the date of the Initial Public Offering,
any Transfer that, if effective, would result in any class of Equity Stock being
beneficially owned by less than 100 Persons (determined without reference to any
rules of attribution) shall be void AB INITIO as to the Transfer of such shares
of Equity Stock which would be otherwise beneficially owned by the transferee;
and the intended transferee shall acquire no rights in such shares of Equity
Stock.
(v) From and after the date of the Initial Public Offering,
any Transfer that, if effective, would result in the Corporation being "closely
held" within the meaning of Section 856(h) of the Code shall be void AD INITIO
as to the Transfer of the shares of Common Stock which would cause the
Corporation to be "closely held' within the meaning of Section
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856(h) of the Code; and the intended transferee shall acquire no rights in
such shares of Equity Stock.
(c) CONVERSION INTO EXCESS STOCK.
(i) If, notwithstanding the other provisions contained in
this Article FOURTH, at any time after the date of the Initial Public Offering,
there is a purported Transfer or other change in the capital structure of the
Corporation such that any Person would either (A) Beneficially Own Equity Stock
in excess of the applicable Ownership Limit, or (B) Constructively Own Equity
Stock in excess of the applicable Related Party Limit then, such shares of
Equity Stock in excess of such Ownership Limit (rounded up to the nearest whole
share) shall be automatically converted into, with no further action required,
an equal number of shares of Excess Stock. Such conversion shall be effective as
of the close of business on the business day prior to the date of the Transfer
or change in capital structure.
(ii) If, notwithstanding the other provisions contained in
this Article FOURTH, at any time after the date of the Initial Public Offering,
there is a purported Transfer or other change in the capital structure of the
Corporation such that any Person Constructively Owns shares of Equity Stock in
excess of 9.8% of the outstanding Equity Stock then, such shares of Equity Stock
in excess of such amount (rounded up to the nearest whole share) shall be
automatically converted into, with no further action required, an equal number
of shares of Excess Stock. Such conversion shall be effective as of the close of
business on the business day prior to the date of the Transfer or change in
capital structure.
(iii) If, notwithstanding the other provisions contained in
this Article FOURTH, at any time after the date of the Initial Public Offering,
there is a purported Transfer or other change in the capital structure of the
Corporation which, if effective, would cause the Corporation to become "closely
held" within the meaning of Section 856(h) of the Code, then the shares of
Equity Stock being Transferred which would cause the Corporation to be "closely
held" within the meaning of Section 856(h) of the Code (rounded up to the
nearest whole share) shall be automatically converted into, with no further
action required, an equal number of shares of Excess Stock. Such conversion
shall be effective as of the close of business on the business day prior to the
date of Transfer or change in capital structure.
(d) REMEDIES FOR BREACH. If the Board of Directors or its
designees shall at any time determine in good faith that a Transfer has taken
place in violation of subparagraph A(4)(b) of this Article FOURTH or that a
Person intends to acquire or has attempted to acquire beneficial ownership
(determined without reference to any rules or attribution), Beneficial Ownership
or Constructive Ownership of any shares of the Corporation in violation of
subparagraph A(4)(b) of this Article FOURTH, the Board of Directors or its
designees shall take such actions as it deems advisable to refuse to give effect
or to prevent such Transfer,
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including, but not limited to, refusing to give effect to such Transfer on the
books of the Corporation or instituting proceedings to enjoin such Transfer;
provided, however, that any Transfer or attempted Transfer in violation of
subparagraphs A(4)((b)(ii), (iii) or (v) of this Article Fourth shall
automatically result in the conversion described in subparagraph A(4)(c),
irrespective of any action (or non-action) by the Board of Directors.
(e) NOTICE OF RESTRICTED TRANSFER. Any Person who acquires or
attempts to acquire shares in violation of subparagraph A(4)(b) of this Article
FOURTH, or any Person who is a transferee such that Excess Stock results under
subparagraph A(4)(c) of this Article FOURTH, shall immediately give written
notice to the Corporation of such event and shall provide to the Corporation
such other information as the Corporation may request in order to determine the
effect, if any, of such Transfer or attempted Transfer on the Corporation's
status as a REIT.
(f) OWNERS REQUIRED TO PROVIDE INFORMATION. From and after the
date of the Initial Public Offering:
(i) every Beneficial Owner of more than 5.0% (or such other
percentage, between 0.5% and 5.0%, as may be required from time to time by the
Treasury Regulations) of the outstanding shares of any class of the Equity Stock
of the Corporation shall, within 30 days after January 1 of each year, give
written notice to the Corporation stating the name and address of such
Beneficial Owner, the number of shares Beneficially Owned, and description of
how such shares are held. Each such Beneficial Owner shall provide to the
Corporation such additional information as the Corporation may require in order
to determine the effect, if any, of such Beneficial Ownership on the
Corporation's status as a REIT.
(ii) each Person who is a Beneficial Owner or Constructive
Owner of Equity Stock and each Person (including the stockholder of record) who
is holding Equity Stock for a Beneficial Owner or Constructive Owner shall
provide to the Corporation such information that the Corporation may request, in
good faith, in order to determine the Corporation's status as a REIT.
(g) REMEDIES NOT LIMITED. Nothing contained in this Article FOURTH
shall limit the authority of the Board of Directors to take such other action as
it deems necessary or advisable to protect the Corporation and the interests of
its stockholders by preservation of the Corporation's status as a REIT.
(h) AMBIGUITY. In the case of an ambiguity in the application of
any of the provisions of subparagraph A(4) of this Article FOURTH, including any
definition contained in subparagraph A(4)(a), the Board of Directors shall have
the power to determine the application of the provisions of this subparagraph
A(4) with respect to any situation based on the facts known to it.
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(i) MODIFICATION OF OWNERSHIP LIMIT. Subject to the limitations
provided in subparagraph A(4)(j), the Board of Directors may from time to time
increase the Ownership Limit.
(j) LIMITATIONS ON MODIFICATIONS. Notwithstanding any other
provision of this Article FOURTH:
(i) The Ownership Limit may not be increased if, after
giving effect to such increase (or creation), five Beneficial Owners of Equity
Stock could Beneficial Own, in the aggregate, more than 49.6% of the outstanding
Equity Stock.
(ii) Prior to the modification of the Ownership Limit
pursuant to subparagraph A(4)(i) of this Article FOURTH, the Board of Directors
may require such opinions of counsel, affidavits, undertakings or agreements as
it may deem necessary or advisable in order to determine or ensure the
Corporation's status as a REIT.
(iii) The Ownership Limit may not be increased to a
percentage which his greater than 9.8%.
(k) EXCEPTIONS.
(i) The Board of Directors, with a ruling from the Internal
Revenue Service or an opinion of counsel, may exempt a Person from the Ownership
Limits if such Person is not an individual for purposes of Section 542(a)(2) of
the Code and the Board of Directors obtains such representations and
undertakings from such Person as are reasonably necessary to ascertain that no
individual's Beneficial Ownership of such Equity Stock will violate the
Ownership Limit, and agrees that any violation or attempted violation will
result in such Equity Stock being converted into Excess Stock in accordance with
subparagraph A(4)(c) of this Article FOURTH.
(ii) The Board of Directors, with a ruling from the Internal
Revenue Service or an opinion of counsel, may exempt a Person from the
limitation on such Person Constructively Owning shares of Equity Stock in excess
of the Related Party Limit, if such person does not and represents that it will
not own, directly or constructively (by virtue of the application of Section 318
of the Code, as modified by Section 856(d)(5) of the Code, more than a 9.8%
interest (as set forth in Section 856(d)(2)(B) in a tenant of any real property
owned or leased by the Corporation and the Corporation obtains such
representations and undertakings from such Person as are reasonably
necessary to ascertain this fact and such Person agrees that any violation or
attempted violation would result in such shares of Equity Stock in excess of
9.8% of the outstanding Equity Stock being converted into Excess Shares in
accordance with subparagraph (4)(c) of this Article FOURTH.
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(5) LEGEND. Each certificate for Equity Stock shall bear the
following legend:
"The shares of [Common Stock, Preferred Stock] represented by this
certificate are subject to restrictions on transfer for the purpose of the
Corporation's maintenance of its status as a Real Estate Investment Trust under
the Internal Revenue Code of 1986, as amended. Subject to certain provisions of
the Corporation's Certificate of Incorporation, no Person may Beneficially Own
or Constructively Own shares of Equity Stock in excess of 9.8% (or greater
percentage as may be determined by the Board of Directors of the Corporation) of
the outstanding Equity Stock of the Corporation. Any Person who attempts to
Beneficially Own or Constructively Own shares of Equity Stock in excess of the
above limitations must immediately notify the Corporation. All capitalized terms
in this legend have the meanings defined in the Corporation's Certificate of
Incorporation, a copy of which, including the restrictions on transfer, will be
sent without charge to each stockholder who so requests. If the restrictions on
transfer are violated, the shares of Equity Stock represented hereby will be
automatically converted into shares of Excess Stock which will be held in Trust
by the Corporation."
B. EXCESS STOCK.
(1) Ownership In Trust. Upon any purported Transfer that
results in Excess Stock pursuant to subparagraph A(4)(c) of this Article FOURTH,
such Excess Stock shall be deemed to have been transferred to the Corporation,
as Trustee of a Trust for the exclusive benefit of such Beneficiary or
Beneficiaries to whom an interest in such Excess Stock may later be transferred
pursuant to subparagraph B(5). Shares of Excess Stock so held in trust shall be
issued and outstanding stock of the Corporation. The Purported Beneficial
Transferee shall have no rights in such Excess Stock, except as provided in
subparagraph B(5).
(2) DIVIDEND RIGHTS. Excess Stock shall not be entitled to
any dividends. Any dividend or distribution paid prior to the discovery by the
Corporation that the shares of Equity Stock have been converted into Excess
Stock shall be repaid to the Corporation upon demand.
(3) RIGHTS UPON LIQUIDATION. In the event of any voluntary
or involuntary liquidation, dissolution or winding up of, or any distribution of
the assets of, the Corporation, each holder of shares of Excess Stock shall be
entitled to receive, ratably with each other holder of Common Stock and Excess
Stock, and subject to any preferences or rights of the Preferred Stock, that
portion of the assets of the Corporation available for distribution to its
stockholders as the number of shares of Excess Stock, held by such holder bears
to the total number of shares of Common Stock and Excess Stock then outstanding.
The Corporation, as holder of the Excess Stock in trust, or if the Corporation
shall have been dissolved, any trustee
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appointed by the Corporation prior to its dissolution, shall distribute
ratably to the Beneficiaries of the Trust, when determined, any such assets
received in respect of Excess Stock in any liquidation, dissolution or winding
up of, or any distribution of the assets of the Corporation.
(4) VOTING RIGHTS. The holders of shares of Excess Stock
shall not be entitled to vote on any matters (except as required by law).
(5) RESTRICTIONS ON TRANSFER; DESIGNATION OF BENEFICIARY.
(a) Excess Stock shall not be transferrable. The Purported Record Transferee may
freely designate a Beneficiary of an interest in the Trust (representing the
number of shares of Excess Stock held by the Trust attributable to a purported
Transfer that resulted in the Excess Stock) if (i) the shares of Excess Stock
held in the Trust would not be Excess Stock in the hands of such Beneficiary and
(ii) the Purported Beneficial Transferee does not receive a price for
designating such Beneficiary that reflects a price per share for such Excess
Stock that exceeds (x) the price per share such Purported Beneficial Transferee
paid for the Equity Stock in the purported Transfer that resulted in the Excess
Shares, or (y) if the Purported Beneficial Transferee did not give value for
such Excess Shares (through a gift, devise or other transaction), a price per
share equal to the Market Price on the date of the purported Transfer that
resulted in the Excess Stock. Upon such transfer of an interest in the Trust,
the corresponding shares of Excess Stock in the Trust shall be automatically
exchanged for an equal number of shares of Equity Stock and such shares of
Equity Stock shall be transferred of record to the transferee of the interest in
the Trust if such Equity Stock would not be Excess Stock in the hands of such
transferee. Prior to any transfer of any interest in the Trust, the Purported
Record Transferee must give advance notice to the Corporation of the intended
transfer and the Corporation must have waived in writing its purchase rights
under subparagraph A(6) of this Article FOURTH.
(b) Notwithstanding the foregoing, if a Purported
Beneficial Transferee receives a price for designating a Beneficiary of an
interest in the Trust that exceeds the amounts allowable under subparagraph
B(5)(a) of this Article FOURTH, such Purported Beneficial Transferee shall pay,
or cause such Beneficiary to pay, such excess to the Corporation.
(6) PURCHASE RIGHT IN EXCESS STOCK. Beginning on the date
of the occurrence of a Transfer which results in Excess Shares, such shares of
Excess Stock shall be deemed to have been offered for sale to the Corporation,
or its designee, at a price per share equal to the lesser of (i) the price per
share in the transaction that created such Excess Stock (or, in the case of a
devise or gift, the Market Price at the time of such devise or gift) and (ii)
the Market Price on the date the Corporation, or its designee, accepts such
offer. The Corporation shall have the right to accept such offer for a period of
ninety days after the later of (i) the date of the Transfer which resulted in
such Excess Shares and (ii) the date the Board
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of Directors determines in good faith that a Transfer which resulted in Excess
Shares has occurred, if the corporation does not receive a notice of such
Transfer pursuant to subparagraph A(4)(e) of this Article FOURTH.
(7) NEW YORK STOCK EXCHANGE TRANSACTIONS. Notwithstanding
any provision contained herein to the contrary, nothing in this Certificate of
Incorporation shall preclude the settlement of any transaction entered into
through the facilities of the New York Stock Exchange.
C. PREFERRED STOCK. Authority is hereby expressly granted to the Board
of Directors to issue from time to time the Preferred Stock as Preferred Stock
of any series and in connection with the creation of each such series, to fix by
the resolution or resolutions providing for the issue of shares thereof, the
number of shares of such series, and the designations, powers, preferences and
rights, and the qualifications, limitations and restrictions, of such series, to
the full extent now or hereafter permitted by the laws of the State of Delaware.
FIFTH: Election of directors need not be by written ballot unless
and to the extent that the Bylaws of the Corporation, so provide.
SIXTH: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized to make,
alter or repeal the Bylaws of the Corporation, except that any bylaw adopted by
the stockholders may be altered or repealed only by the stockholders if such
bylaw specifically so provides.
SEVENTH: At all times following the consummation of the Initial
Public Offering (as defined in Article FOURTH), at least a majority of the
members of the Board of Directors shall, except during the period of a vacancy
or vacancies therein, be Independent Directors. An "Independent Director" shall
mean a person who is not (i) employed by the Corporation or (ii) an "affiliate"
(as defined in Rule 405 under the Securities Act of 1933, as amended) of the
Corporation, any subsidiary of the Corporation or any entity in which the
Corporation owns, beneficially or of record, a 10% or greater equity interest,
or (C) or an affiliate (as defined above) of any entity described in this
Article SEVENTH.
EIGHTH: Whenever a compromise or arrangement is proposed between
this Corporation and its creditors or any class of them and/or between this
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 this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of Section 279 of Title 8
of the Delaware Code, order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this
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Corporation, as the case may be, to be summoned in such manner as the said
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 this Corporation, as the case may be, agree to any compromise
or arrangement and to any reorganization of this Corporation as a consequence
of such compromise or arrangement, the said compromise or arrangement and the
said reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of
creditors, and/or on all the stockholders or class of stockholders, of this
Corporation, as the case may be, and also on this Corporation.
NINTH: The personal liability of the directors to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a director
is hereby eliminated;
provided, however, that this Article NINTH shall not eliminate or limit the
liability of a director (i) for any breach of a 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 General Corporation Law of the State of Delaware,
or (iv) for any transaction from which the director derived an improper personal
benefit.
TENTH: The name and mailing address of the sole incorporator are as
follows: W. Ross Martin, Captec Net Lease Realty, Inc., 24 Frank Lloyd Wright
Drive, Ann Arbor, Michigan 48106.
ELEVENTH: In the event any provision (or portion thereof) of this
Certificate of Incorporation shall be found to be invalid, prohibited, or
unenforceable for any reason, the remaining provisions (or portions hereof) of
this Certificate of Incorporation shall be deemed to remain in full force and
effect, and shall be construed as if such invalid, prohibited, or unenforceable
provision had been stricken herefrom or otherwise rendered inapplicable it being
the intent of the Corporation and its stockholders that such remaining provision
(or portion thereof) of this Certificate of Incorporation remain, to the fullest
extent permitted by law, applicable and enforceable as to all stockholders,
notwithstanding any such finding.
TWELFTH: The Corporation reserves the right to amend, alter, change or
repeal and provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
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THE UNDERSIGNED, being the incorporator above named for the purpose of
forming a Corporation pursuant to the General Corporation Law of the State of
Delaware, has executed this instrument this 29th day of August, 1997, and does
thereby acknowledge that it is his act and deed and that the facts stated
therein are true.
/s/ W. Ross Martin
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W. Ross Martin, Sole Incorporator
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