Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
COMDISCO HOLDING COMPANY, INC.
FIRST: The name of the Corporation is Comdisco Holding Company, 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 10,000,000 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 Board of Directors shall consist of five (5)
members. Members of the Board of Directors shall be elected for a
two (2) year term.
(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) Until the first annual meeting of shareholders of the
Corporation at which directors are to be elected, any vacancy
occurring on the Board of Directors (i) with respect to a member
originally selected to serve on the Board of Directors by the
Creditors' Committee pursuant to the First Amended Joint Plan of
Reorganization of Comdisco, Inc. and its Affiliated Debtors and
Debtors in Possession, dated as of June 13, 2002 (the "Plan"),
shall be filled by a person designated by the remaining directors
selected by the Creditors' Committee, even if less than a quorum,
as a replacement to serve out the remainder of the applicable term
and (ii) with respect to the member initially serving as the Chief
Executive Officer pursuant to the Plan shall be filled by a person
designated by a majority of the Board of Directors then in office,
even if less than a quorum, to serve out the remainder of the
applicable term.
(5) Any vacancy occurring on the Board of Directors after
the first annual meeting of shareholders at which directors are to
be elected 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.
(6) The directors shall have concurrent power with the
stockholders to make, alter, amend, change, add to or repeal the
By-Laws of the Corporation.
(7) 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 8th day of August, 2002.
/s/ Deborah M. Reusch
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Deborah M. Reusch
Sole Incorporator