Exhibit 1.1
CERTIFICATE OF INCORPORATION
OF
COMDISCO LEASING MERGER SUBSIDIARY, INC.
FIRST: The name of the Corporation is Comdisco Leasing Merger
Subsidiary, Inc. (the "Corporation").
SECOND: The address of the registered office of the Corporation in
the State of Delaware is 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at that address is The
Corporation Trust Company.
THIRD: The business purpose of the Corporation is to sell, collect
or otherwise reduce to money the assets of the Corporation in the ordinary
course in an orderly manner, pay and discharge the Corporation's liabilities
and distribute any excess to the Corporation's shareholders in the form of
dividends or other distributions. The Corporation shall not be permitted to
engage in any activities inconsistent with the foregoing purpose. The
Corporation may engage in any lawful transaction of any or all lawful
purposes for which corporations may be incorporated under the General
Corporation Law of the State of Delaware as set forth in Title 8 of the
Delaware Code (the "GCL") to accomplish that business purpose.
FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is 1,000 shares of Common Stock, each having a
par value of one cent ($0.01).
Notwithstanding any other provisions contained herein to the
contrary, the Corporation shall not issue nonvoting equity securities. This
prohibition on the issuance of nonvoting equity securities is included in
this Certificate of Incorporation in compliance with Section 1123(a)(6) of
the Bankruptcy Code (11 U.S.C. ss. 1123(a)(6)).
The holders of Common Stock shall not have cumulative voting
rights. The holders of Common Stock shall not be entitled to preemptive or
subscription rights.
FIFTH: The following provisions are inserted for the management of
the business and the conduct of the affairs of the Corporation, and for
further definition, limitation and regulation of the powers of the
Corporation and of its directors and stockholders:
(1) The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors and, in
so managing the business and affairs of the Corporation with the
business purpose to sell, collect or otherwise reduce to money the
assets of the Corporation in the ordinary course and in an orderly
manner, pay and discharge the Corporation's liabilities and
distribute any excess to the Corporation's shareholders in the form
of dividends or other distributions, the Board of Directors shall
have no duty or obligation whatsoever to consider re-commencing
ordinary operations.
(2) The number of directors of the Corporation shall be as
from time to time fixed by, or in the manner provided in, the
By-Laws of the Corporation. Election of directors need not be by
written ballot unless the By-Laws so provide.
(3) A director shall hold office until the annual meeting
for the year in which his or her term expires and until his or her
successor shall be elected and shall qualify, subject, however to
prior death, resignation, retirement, disqualification or removal
from office.
(4) Any vacancy occurring on the Board of Directors may be
filled by a majority of the Board of Directors then in office, even
if less than a quorum, or by a sole remaining director. Any
director elected to fill a vacancy shall have the same remaining
term as that of his predecessor.
(5) The directors shall have concurrent power with the
stockholders to make, alter, amend, change, add to or repeal the
By-Laws of the Corporation.
(6) No director shall be personally liable to the
Corporation or any of its stockholders for monetary damages for
breach of fiduciary duty as a director, except to the extent such
exemption from liability or limitation thereof is not permitted
under the GCL as the same exists or may hereafter be amended. If
the GCL is amended hereafter to authorize the further elimination
or limitation of the liability of directors, then the liability of
a director of the Corporation shall be eliminated or limited to the
fullest extent authorized by the GCL, as so amended. Any repeal or
modification of this Article Fifth shall not adversely affect any
right or protection of a director of the Corporation existing at
the time of such repeal or modification with respect to acts or
omissions occurring prior to such repeal or modification.
SIXTH: The Corporation shall indemnify its directors and officers
to the fullest extent authorized or permitted by applicable law, as now or
hereafter in effect, and such right to indemnification shall continue as to
a person who has ceased to be a director or officer of the Corporation and
shall inure to the benefit of his or her heirs, executors and personal and
legal representatives; provided, however, that, except for proceedings to
enforce rights to indemnification, the Corporation shall not be obligated to
indemnify any director or officer (or his or her heirs, executors or
personal or legal representatives) in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or part thereof)
was authorized or consented to by the Board of Directors. The right to
indemnification conferred by this Article Sixth shall include the right to
be paid by the Corporation the expenses incurred in defending or otherwise
participating in any proceeding in advance of its final disposition upon
receipt by the Corporation of an undertaking by or on behalf of the director
or officer receiving advancement to repay the amount advanced if it shall
ultimately be determined that such person is not entitled to be indemnified
by the Corporation under this Article Sixth.
The Corporation may, to the extent authorized from time to time by
the Board of Directors, provide rights to indemnification and to the
advancement of expenses to employees and agents of the Corporation similar
to those conferred in this Article Sixth to directors and officers of the
Corporation.
The rights to indemnification and to the advance of expenses
conferred in this Article Sixth shall not be exclusive of any other right
which any person may have or hereafter acquire under this Certificate of
Incorporation, the By-Laws of the Corporation, any statute, agreement, vote
of stockholders or disinterested directors or otherwise.
Any repeal or modification of this Article Sixth by the
stockholders of the Corporation shall not adversely affect any rights to
indemnification and to the advancement of expenses of a director or officer
of the Corporation existing at the time of such repeal or modification with
respect to any acts or omissions occurring prior to such repeal or
modification.
SEVENTH: Meetings of stockholders may be held within or without the
State of Delaware, as the By-Laws may provide. The books of the Corporation
may be kept (subject to any provision contained in the GCL) outside the
State of Delaware at such place or places as may be designated from time to
time by the Board of Directors or in the By-Laws of the Corporation.
EIGHTH: In furtherance and not in limitation of the powers
conferred upon it by the laws of the State of Delaware, the Board of
Directors shall have the power to adopt, amend, alter or repeal the
Corporation's By-Laws. The affirmative vote of at least a majority of the
entire Board of Directors shall be required to adopt, amend, alter or repeal
the Corporation's By-Laws. The Corporation's By-Laws also may be adopted,
amended, altered or repealed by the affirmative vote of the holders of at
least eighty percent (80%) of the voting power of the shares entitled to
vote at an election of directors.
NINTH: 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
upon stockholders herein are granted subject to this reservation, provided
that, notwithstanding Section 242(b)(1) of the GCL, any amendment shall be
approved by the affirmative vote of the holders of at least eighty percent
(80%) of the voting power of the shares entitled to vote thereon.
TENTH: The name and mailing address of the Sole Incorporator is as
follows: Deborah M. Reusch, P.O. Box 636, Wilmington, Delaware 19899.
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I, THE UNDERSIGNED, being the Sole Incorporator hereinbefore named,
for the purpose of forming a corporation pursuant to the GCL, do make this
Certificate, hereby declaring and certifying that this is my act and deed
and the facts herein stated are true, and accordingly have hereunto set my
hand this 7th day of August, 2002.
/s/Deborah M. Reusch
--------------------------------
Deborah M. Reusch
Sole Incorporator