EXHIBIT 4.13
CERTIFICATE OF MERGER
OF
FASTLANE MERGER CORP.
(A DELAWARE CORPORATION)
WITH AND INTO
MURRAY'S INC.
(A DELAWARE CORPORATION)
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Under Section 251 of the
General Corporation Law of Delaware
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Murray's Inc., a Delaware corporation, hereby certifies that:
1. The name and state of incorporation of each of the constituent
corporations of the merger is as follows:
(a) Fastlane Merger Corp., a Delaware corporation; and
(b) Murray's Inc., a Delaware corporation.
2. The agreement of merger (the "Agreement of Merger") between the parties
to the merger has been approved, adopted, certified, executed and acknowledged
by each of the constituent corporations in accordance with the requirements of
Section 251 of the General Corporation Law of Delaware.
3. The name of the surviving corporation of the merger is Murray's Inc.
(the "Surviving Corporation").
4. The Certificate of Incorporation of Murray's Inc., attached hereto as
Exhibit A, shall be the Certificate of Incorporation of the Surviving
Corporation.
5. The executed Agreement of Merger is on file at an office of the
Surviving Corporation, the address of which is 645 E. Missouri Avenue, Suite
400, Phoenix, Arizona 85012-1373.
6. A copy of the Agreement of Merger will be furnished by the Surviving
Corporation, on request and without cost, to any stockholder of any constituent
corporation.
7. This Certificate of Merger shall be effective at 12:01 a.m. EST on
December 19, 2005, for accounting purposes only.
IN WITNESS WHEREOF, Murray's Inc. has caused this certificate to be signed
as of the 19th day of December, 2005.
MURRAY'S INC.,
a Delaware corporation,
By: /s/ Louis Mancini
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Name: Louis Mancini
Title: President and Chief Executive Officer
Exhibit A
CERTIFICATE OF INCORPORATION
OF
MURRAY'S INC.
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ARTICLE I
NAME OF CORPORATION
The name of this corporation (the "Corporation") is:
Murray's Inc.
ARTICLE II
REGISTERED OFFICE
The address of the registered office of the Corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of the registered agent of the
Corporation at such address is The Corporation Trust Company.
ARTICLE III
PURPOSE
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 (the "Delaware Code").
ARTICLE IV
AUTHORIZED CAPITAL STOCK
The corporation shall be authorized to issue one class of stock to be
designated Common Stock; the total number of shares which the Corporation shall
have authority to issue is one thousand (1,000), and each such share shall have
a par value of one cent ($0.01).
ARTICLE V
BOARD POWER REGARDING BYLAWS
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, repeal, alter, amend and
rescind the bylaws of the corporation.
ARTICLE VI
ELECTION OF DIRECTORS
Elections of directors need not be by written ballot unless the bylaws of
the corporation shall so provide.
ARTICLE VII
INDEMNIFICATION; LIMITATION OF DIRECTOR LIABILITY
A. Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding"), by reason of
the fact that he or she is or was a director or an officer of the Corporation or
is or was serving at the request of the Corporation as a director, officer, or
trustee of another corporation or of a partnership, joint venture, trust or
other enterprise, including service with respect to an employee benefit plan (an
"indemnitee"), whether the basis of such proceeding is alleged action in an
official capacity as a director, officer or trustee, or in any other capacity
while serving as a director, officer or trustee, must 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 provide broader indemnification rights than permitted prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid in settlement) reasonably incurred or suffered by such indemnitee in
connection therewith; provided, however, that, except with respect to
proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if such proceeding (or part thereof) was
authorized by the Board of Directors.
B. To the fullest extent permitted by the Delaware General Corporation Law
as the same exists or may hereafter be amended, a director of the corporation
shall not be liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director.
C. If the Delaware General Corporation Law is amended after the date of the
filing of this Certificate of Incorporation to authorize corporate action
further eliminating or limiting
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the personal liability of directors or permitting indemnification to a fuller
extent, then the liability of a director of the corporation shall be eliminated
or limited, and indemnification shall be extended, in each case to the fullest
extent permitted by the Delaware General Corporation Law, as so amended from
time to time. No repeal or modification of this Article VIII by the stockholders
shall adversely affect any right or protection of a director of the corporation
existing by virtue of this Article VIII at the time of such repeal or
modification.
ARTICLE VIII
CORPORATE POWER
The corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred on stockholders herein
are granted subject to this reservation.
ARTICLE IX
CREDITOR COMPROMISE OR ARRANGEMENT
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 Title 8 of the Delaware Code 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 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 the 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 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, 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 the Corporation, as the case may be, and also on the
Corporation.
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