Exhibit 3.3
CERTIFICATE OF INCORPORATION
OF
Suburban Energy Finance Corp.
The undersigned, for the purpose of incorporating and organizing a
corporation under the General Corporation Law of the State of Delaware, hereby
adopts the following Articles of Incorporation:
First: The name of the corporation is
SUBURBAN ENERGY FINANCE CORP.
Second: The address of the corporation's initial registered office in the
State of Delaware is 1209 Orange Street, in the city of Wilmington, County of
New Castle, Delaware 19801. The name of the corporation's initial registered
agent at such address is The Corporation Trust 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 corporation shall have authority to issue 1,000 shares of
Common Stock having a par value of $0.01 per share.
Fifth: The name and mailing address of the incorporator is H. Gregory
Barksdale, c/o Suburban Propane Partners L.P., 240 Route 10 West, Whippany, New
Jersey 07981.
Sixth: The number of directors constituting the initial board of directors
is three (3). The names and addresses of such initial directors are as follows:
Michael J. Dunn, Jr.
c/o Suburban Propane Partners, L.P.
240 Route 10 West
Whippany, NJ 07981
David R. Eastin
c/o Suburban Propane Partners, L.P.
240 Route 10 West
Whippany, NJ 07981
Robert M. Plante
c/o Suburban Propane Partners, L.P.
240 Route 10 West
Whippany, NJ 07981
Seventh: The duration of the corporation is perpetual.
Eighth: 1. ELIMINATION OF CERTAIN LIABILITY OF DIRECTORS. A director of the
corporation shall not 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 General
Corporation Law of the State of Delaware, or (iv) for any transaction from which
the director derived an improper personal benefit. If the General Corporation
Law of the State of Delaware is amended subsequent to the date hereof to
authorize corporate action further limiting or eliminating the personal
liability of directors, then the liability of a director of the corporation
shall be limited or eliminated to the fullest extent permitted by the General
Corporation Law of the State of Delaware, as so amended. 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.
2. INDEMNIFICATION AND INSURANCE.
(a) Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter 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 General Corporation Law of the State of Delaware, 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 said law permitted the corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA 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 paragraph (b) hereof, 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 of Directors of the corporation.
The right to indemnification conferred in this Section 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 General Corporation Law of the State of Delaware 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 Section 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) Right of Claimant to Bring Suit. If a claim under paragraph (a) of this
Section is not paid in full by the corporation within thirty 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
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has not met the standards of conduct which make it permissible under the General
Corporation Law of the State of Delaware 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 General Corporation Law of the
State of Delaware, 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 or conduct, shall be a defense to
the action or create a presumption that the claimant has not met the applicable
standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification and the payment
of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
(d) Insurance. The corporation may at its option 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 General Corporation Law of the State of Delaware.
Ninth: The Board of Directors of the corporation is authorized and
empowered to make, alter, amend or repeal any or all of the Bylaws of the
corporation, subject to the power of the stockholders of the corporation to
make, alter, amend or repeal any or all of the Bylaws of the corporation.
Tenth: The Corporation reserves the right at any time and from time to time
to amend, alter, change, or repeal any provision contained in these Articles of
Incorporation, in the manner now or hereafter prescribed by law; and all rights
conferred upon stockholders, directors, or any other persons whomsoever by and
pursuant to these Articles of Incorporation in their present form or as
hereafter amended are granted subject to this reservation.
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IN WITNESS WHEREOF, the undersigned, being the sole incorporator
hereinbefore named, for the purpose of forming a corporation pursuant to the
General Corporation Law of the State of Delaware, hereby declares and certifies
that the foregoing Certificate of Incorporation is his act and deed and the
facts herein stated are true, and accordingly has hereunto set his hand this
26th day of November, 2003.
/s/ H. Gregory Barksdale
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Gregory Barksdale
Incorporator
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