Exhibit 3.3
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILLED 09:00 AM 07/07/1997
971223423 - 0797184
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
* * * * *
Costain Coal Inc., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That by unanimous written consent of the Board of Directors of
Costain Coal Inc., pursuant to Section 141 of the General Corporation Law of the
State of Delaware, resolutions were duly adopted setting forth a proposed
amendment of the Certificate of Incorporation of said corporation, declaring
said amendment to be advisable and directing that such amendment be submitted to
the sole stockholder of said corporation for consideration thereof. The
resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Board of Directors of the Corporation hereby declare it
advisable that the Certificate of Incorporation of the Corporation be
amended, effective at 8:00 a.m. Eastern Standard Time on July 21, 1997, to
change the name of the Corporation from Costain Coal Inc., its present
name, to Lodestar Energy, Inc.: and to that end, Article 1 thereof be
changed to read as follows: "The name of this Corporation is Lodestar
Energy, Inc."
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
the sole stockholder of said corporation approved the amendment, by written
consent pursuant to Section 228 of the General Corporation Law of the State of
Delaware.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware, to be effective at 8:00 a.m., Eastern Standard Time, on July 21, 1997.
FOURTH: That the capital of said corporation shall not be reduced under or
by reason of said amendment.
IN WITNESS WHEREOF, said Costain Coal Inc. has caused this certificate to
be signed by John W. Hughes, its President, and R. Eberley Davis, its Assistant
Secretary, on this 30th day of June, 1997.
COSTAIN COAL INC.
BY: /s/ John W. Hughes
---------------------------
John W. Hughes
ITS: President
ATTEST:
By: /s/ R. Eberley Davis
------------------------
R. Eberley Davis
Assistant Secretary
PAGE 1
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF CHANGE OF
REGISTERED AGENT OF "COSTAIN COAL INC.", FILED IN THIS OFFICE ON THE NINETEENTH
DAY OF DECEMBER, A.D. 1994, AT 10 O'CLOCK A.M.
[Seal of the Secretary of /s/ Edward J. Freel
State of the State of Delaware] ----------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION:
9071282
DATE: 05-08-98
0797184 8100
981177800
12-19-94
CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
* * * * *
COSTAIN COAL INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
The present registered agent of the corporation is THE PRENTICE-HALL
CORPORATION SYSTEM, INC. and the present registered office of the corporation is
in the county of Kent
The Board of Directors of COSTAIN COAL INC. adopted the following
resolution on the 29 day of NOV., 1994.
Resolved, that the registered office of COSTAIN COAL INC. in the state of
Delaware be and it hereby is changed to Corporation Trust Center, 1209 Orange
Street, in the City of Wilmington, County of New Castle, and the authorization
of the present registered agent of this corporation be and the same is hereby
withdrawn, and THE CORPORATION TRUST COMPANY, shall be and is hereby constituted
and appointed the registered agent of this corporation at the address of its
registered office.
IN WITNESS WHEREOF, COSTAIN COAL INC. has caused this statement to be signed by
George Oberg, its Vice President, and attested by Stephen W. Castle, its Asst.
Sec. this 29 day of NOV., 1994.
By /s/ George E. Oberg
---------------------------
ATTEST:
By /s/ Stephen W. Castle
---------------------------
(DEL. - 264 - 5/14/90)
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 12:31 PM 12/31 1991
913655234 - 0797184
CERTIFICATE OF OWNERSHIP AND MERGER
OF
BTU OPERATING COMPANY
(a Delaware corporation)
INTO
COSTAIN COAL HOLDINGS INC.
(a Delaware corporation)
Pursuant to Section 253 of the General Corporation Law of the State of
Delaware, it is hereby certified that:
1. Costain Coal Holdings Inc. (hereinafter sometimes referred to as the
"Corporation") is a business corporation of the State of Delaware.
2. The Corporation is the owner of all of the outstanding shares of each
class of the stock of BTU Operating Company, which is also a business
corporation of the State of Delaware.
3. On December 27, 1991, the Board Of Directors of the corporation adopted
the following resolutions to merge BTU Operating Company into the Corporation:
RESOLVED that BTU Operating Company be merged into this Corporation,
and that all of the estate, property, rights, privileges, powers and
franchises of BTU Operating Company be vested in and held and
enjoyed by this Corporation as fully and entirely and without change
or diminution as the same were before held and enjoyed by BTU
Operating Company in its name.
RESOLVED that this Corporation shall assume all of the obligations
of BTU Operating Company.
RESOLVED that upon the effective time of this merger, this
Corporation shall change its name to "Costain Coal Inc."
RESOLVED that this Corporation shall cause to be executed and filed
and/or recorded the documents prescribed by the laws of the State of
Delaware and by the laws of any other appropriate jurisdiction and
will cause to be performed all necessary acts
within the State of Delaware and within any other appropriate
jurisdiction.
4. The effective time of the merger herein provided shall be at 2:00 p.m.,
Eastern standard time, on December 31, 199l.
Dated: December 30, 1991.
COSTAIN COAL HOLDINGS INC.
By: /s/ Gordon Haworth
---------------------------
Title: President
--------------------
By: /s/ Jeannie M. Skepnek
---------------------------
Title: Asst. Secy.
--------------------
Attest:
/s/ Jeannie M. Skepnek
- -------------------------
Title: Asst. Secy.
------------------
FILED
10 AM
AUG 10 1989
/s/ [ILLEGIBLE]
SECRETARY OF STATE
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
PYRO ENERGY CORP., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the "GCL"), DOES
HEREBY CERTIFY:
FIRST: That the Board of Directors of PYRO ENERGY CORP. acting by written
consent pursuant to Section 141(f) of the GCL, adopted resolutions setting forth
a proposed amendment to the Certificate of Incorporation of said corporation,
declaring said amendment to be advisable and directing that the proposed
amendment be presented for the approval of the sole stockholder of said
corporation. The resolution setting forth the proposed amendment reads as
follows:
RESOLVED, that in the judgment of the Board of Directors of this
Corporation it is deemed advisable to amend the Certificate of
Incorporation of this Corporation so as to change the name of this
Corporation from Pyro Energy Corp., its present name, to Costain
Coal Holdings Inc., and to that end, to amend Article FIRST of the
Certificate of Incorporation to read as follows:
"The name of the Corporation is Costain Coal Holdings Inc."
SECOND: That the sole stockholder of said corporation, acting by written
consent pursuant to Section 228 of the GCL, adopted said amendment and the
wording of Article FIRST as amended is as set forth in the directors' resolution
in the paragraph above.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the GCL.
IN WITNESS WHEREOF, PYRO ENERGY CORP. has caused this certificate to be
signed by Charles W. Schulties, President and Chief Executive Officer, and
attested by Charles H. Arbaugh, Secretary, effective this 7 day of August, 1989.
PYRO ENERGY CORP.
By: /s/ CW Schulties
------------------------------------
Name: Charles W. Schulties
Title: President and Chief
Executive Officer
Attested:
/s/ Charles H. Arbaugh
- -----------------------------
Charles H. Arbaugh, Secretary
FILED
JUL 31 1989 8:30 AM
/s/ [ILLEGIBLE]
SECRETARY OF STATE
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
COSTAIN INVESTMENTS, INC.
INTO
PYRO ENERGY CORP.
-------------------------
COSTAIN INVESTMENTS, INC. (the "Company"), a corporation organized and
existing under the laws of the State of Delaware, pursuant to Sections 103 and
253 of the General Corporation Law of the State of Delaware (the "GCL"),
DOES HEREBY CERTIFY:
FIRST: That the Company was incorporated on the 2nd day of June, 1989,
pursuant to the GCL.
SECOND: That the Company owns at least ninety percent of the outstanding
shares of common stock of PYRO ENERGY CORP., a Delaware corporation originally
incorporated under New York law on the 19th day of November, 1969, reorganized
under Delaware law on the 19th day of December, 1973, and renamed Pyro Energy
Corp. on the 15th day of December, 1981 ("Pyro Energy" or the "Surviving
Corporation") and Pyro Energy has no other class of stock outstanding.
THIRD: That the Board of Directors of the Company, acting pursuant to
Section 141(f) of the GCL without the formality of a meeting, consented to the
adoption of the following resolutions,
and pursuant to such resolutions, determined to merge the Company with and into
Pyro Energy pursuant to Section 253 of the GCL:
RESOLVED, that Costain Investments, Inc. (the "Company") merge, and it
hereby does merge itself, with and into Pyro Energy Corp. ("Pyro Energy" or the
"Surviving Corporation"), which shall assume all of the obligations of the
Company in accordance with Section 259 of the General Corporation Law of the
State of Delaware (the "GCL"); and
FURTHER RESOLVED, that the merger shall become effective upon filing a
Certificate of Ownership and Merger with the Secretary of State of the State of
Delaware (the "Effective Time"); and
FURTHER RESOLVED, that the terms and conditions of the merger are as
follows:
(1) At the Effective Time, each share of Common Stock, par value
$.l0 per share (the "Shares") of Pyro Energy issued and outstanding
immediately prior to the Effective Time shall, by virtue of the merger and
without any action on the part of the holder thereof, be converted into
the right to receive $12.00 in cash. All Shares, by virtue of the merger
and without any action on the part of the holders thereof, shall cease to
exist, and each holder of a certificate representing any such Shares shall
thereafter cease to have any rights with respect to such Shares, except
the right of holders to receive cash for any such certificate upon
surrender to the Company or the right, if any, to receive payment from the
Surviving Corporation of the "fair value" of such Shares as determined in
accordance with Section 262 of the GCL.
(2) At the Effective Time, each Share issued and outstanding
immediately prior to the Effective Time and owned by the Company, Costain
Group PLC, any direct or indirect subsidiary thereof, Pyro Energy or any
direct or indirect subsidiary thereof, and each Share issued and held in
Pyro Energy's treasury immediately prior to the Effective Time, shall, by
virtue of the merger and without any action on the part of the holder
thereof, cease to be outstanding, shall be cancelled and retired without
payment of any consideration therefor and shall cease to exist.
(3) At the Effective Time, each share of capital stock of the
Company issued and outstanding immediately prior to the Effective Time
shall, by virtue of the merger and without any action on the part of the
Company or the holders
-2-
of such shares, be converted into one Share of the same class of capital
stock of the Surviving Corporation; and
FURTHER RESOLVED, that the Certificate of Incorporation of the Surviving
Corporation, with such amendments as are effected by the Merger, is attached to
these resolutions as Exhibit A and shall be attached to the Certificate of
Ownership and Merger setting forth a copy of these resolutions as Exhibit A, and
as so amended, shall constitute the Certificate of Incorporation, as amended, of
the Surviving Corporation; and
FURTHER RESOLVED, that the proposed merger shall be submitted to Costain
Holdings Inc., the sole stockholder of the Company, to be considered and adopted
by consent in lieu of meeting pursuant to Section 228 of the GCL; and upon the
execution of such consent in lieu of meeting by the sole stockholder of the
outstanding stock of the Company entitled to vote thereon, the merger shall be
approved; and
FURTHER RESOLVED, that, pursuant to Section 262(d) (2) of the GCL, the
proper officers of the Surviving Corporation be and they hereby are directed,
within 10 days after the Effective Time, to notify each stockholder of record
immediately prior to the merger of Pyro Energy entitled to notice, that the
merger has become effective and that appraisal rights are available for any or
all the Shares and to do all acts and things whatsoever, and to sign such
instruments, as may be necessary or proper in accordance with Section 262 of the
GCL; and
FURTHER RESOLVED, that the by-laws of the Company in effect immediately
prior to the Effective Time shall be the by-laws of the Surviving Corporation
from and after the Effective Time, until duly amended in accordance with their
terms and the GCL; and
FURTHER RESOLVED, that the directors of the Company and the officers of
Pyro Energy immediately prior to the Effective Time shall, from and after the
Effective Time, be and remain the directors and officers, respectively, of the
Surviving Corporation until their successors have been duly elected or appointed
and qualified or until their earlier death, resignation or removal in accordance
with the Surviving Corporation's certificate of incorporation and by-laws; and
FURTHER RESOLVED, that the proper officers of the Company be and hereby
are directed to make and execute a Certificate of Ownership and Merger setting
forth a copy of the resolutions authorizing the Company to merge itself with and
into Pyro Energy and the date of adoption thereof, and to cause the same to be
filed with the Secretary of State of the State of Delaware and a
-3-
certified copy recorded in the Office of the Recorder of Deeds in the County of
Delaware in which the registered offices of Pyro Energy and the Company are
located, and to do all acts and things whatsoever, and to sign such instruments,
whether within or without the State of Delaware, which may be in any way
whatsoever necessary or proper to effect said merger.
FOURTH: That the merger has been approved by the sole holder of the
outstanding stock of the Company entitled to vote thereon by unanimous written
consent in lieu of meeting pursuant to Section 228 of the GCL.
IN WITNESS WHEREOF, Costain Investments, Inc. has caused this certificate
to be signed by Gordon Haworth, its Chairman or Chester Grabowski, its
President, and attested by J. M. Skepnek, its Secretary, this 31st day of July,
1989.
COSTAIN INVESTMENTS, INC.
By: /s/ Chester Grabowski
------------------------------------
Name: Chester Grabowski
Title: President
ATTEST:
By: /s/ J. M. Skepnek
---------------------
Name: J. M. Skepnek
Title: Secretary
-4-
EXHIBIT A
CERTIFICATE OF INCORPORATION
OF
PYRO ENERGY CORP.
FIRST: The name of the Corporation is Pyro Energy Corp.
SECOND: The address of the Corporation's registered office in the State of
Delaware is 229 South State Street, in the City of Dover, County of Kent. The
name of its registered agent at such address is The Prentice-Hall Corporation
System, Inc.
THIRD: The nature of the business or purpose to be conducted or promoted
by the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 1000. All of said shares are to be common stock and
the par value of each such share of Common Stock shall be $.0l par value per
share.
FIFTH: The name and mailing address of the incorporator is as follows:
Richard L. Burns
334 West Third Street
Suite 400
San Bernardino, California 94201
SIXTH: The name and mailing address of each person who is to serve as a
director of the Corporation from and after the date of the Certificate of
Ownership and Merger merging Costain Investments, Inc. into Pyro Energy Corp.
shall be as follows, each to serve and hold office until the earliest of (a) the
first annual meeting of stockholders, (b) his or her successor is elected and
qualified, or (c) his or her earlier death, resignation or removal:
Name Mailing Address
----------------- -------------------------
Gordon Haworth c/o Costain Holdings Inc.
30 South Wacker Drive
Suite 3920
Chicago, Illinois 60606
Chester Grabowski c/o Costain Holdings Inc.
30 South Wacker Drive
Suite 3920
Chicago, Illinois 60606
SEVENTH: The Corporation is to have perpetual existence.
EIGHTH: (1) Directors of the Corporation shall have no personal liability
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except (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 knowing violations of
law, (iii) under Section 174 of the General Corporation Law of Delaware, or (iv)
for any transaction from which a director derived an improper personal benefit.
(2) The Corporation shall indemnify any person who was or is a party or is
threatened to be a party to any threatened, pending, or completed action, suit
or proceeding, whether civil, criminal, administrative, or investigative,
including all appeals (other than an action, suit or proceeding by or in the
right of the Corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, decrees, fines, penalties, and
amounts, paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith or in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(3) The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action or
suit, including all appeals, by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed
-1-
to be in or not opposed to the best interests of the Corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been finally adjudged to be liable to the
Corporation unless and only to the extent that the court in which such action or
suit was brought, or any other court of competent jurisdiction, shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as such court shall deem proper.
(4) To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (2) and (3) of this
article, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(5) Except in a situation governed by subsection (4), any indemnification
under subsections (2) and (3) of this article (unless ordered by a court) shall
be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because he has met the applicable standard of
conduct set forth in subsections (2) and (3) of this article. Such determination
shall be made (i) by a majority vote of directors acting at a meeting at which a
quorum consisting of directors who were not parties to such action, suit or
proceeding is present, or (ii) if such a quorum is not obtainable, or even if
obtainable and a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (iii) by the stockholders. The
determination required by clauses (i) and (ii) of this subsection may in either
event be made by written consent of the majority required by each clause.
(6) Expenses of each person hereunder indemnified incurred in defending a
civil or criminal action, suit or proceeding or threat thereof may be paid by
the Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such person to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the Corporation as authorized in this article. Such
expenses incurred by other employees and agents may be so paid upon such terms
and conditions, if any, as the board of directors deems appropriate.
(7) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this article shall not be deemed
exclusive of any other rights to which those
-2-
seeking indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his official capacity and as to action in another capacity
while holding such office.
(8) The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of the Delaware General Corporation Law.
(9) For purposes of this article, the terminology defined in Section
145(i) of Title 8 of the Delaware Code shall apply to the same terminology as
used herein.
(10) If any provision hereof is invalid or unenforceable in any
jurisdiction, the other provisions hereof shall remain in full force and effect
in such jurisdiction, and the remaining provisions hereof shall be liberally
construed to effectuate the provisions hereof, and the invalidity of any
provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
(11) No amendment to or repeal of these provisions shall apply to or have
any effect on the liability or alleged liability of any person for or with
respect to any acts or omissions of such person occurring prior to such
amendments.
NINTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, adopt, alter,
amend or repeal the by-laws of the Corporation.
TENTH: Meetings of the 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 the provisions of any law or regulation) 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. Elections of
directors need not be by written ballot unless the by-laws of the Corporation
shall so provide.
ELEVENTH: 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
-3-
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
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 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.
TWELFTH: 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.
-4-
727152021
FILED
JUN 1 1987
10 AM
/s/ [ILLEGIBLE]
SECRETARY OF STATE
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
* * * * * *
PYRO ENERGY CORP., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That at a meeting of the Board of Directors of PYRO ENERGY CORP.
held February 13, 1987 resolutions were duly adopted setting forth a proposed
amendment to the Certificate of Incorporation of said corporation, declaring
said amendment to be advisable and directing that the proposed amendment be
presented at the next annual meeting of the shareholders of said corporation for
consideration thereof. The text of the amendment, which will become Article 10
of the Certificate of Incorporation, is attached hereto as Exhibit A and
incorporated herein by reference.
SECOND: That the shareholders of said corporation adopted said amendment
by the following resolution at the corporation's annual meeting of shareholders
held in Nashville, Tennessee on May 15, 1987:
RESOLVED, that the shareholders of Pyro Energy Corp. hereby approve,
confirm, ratify and adopt an amendment to the Certificate of Incorporation
of Pyro Energy Corp. eliminating liability of directors to the corporation
in certain instances and providing for corporate indemnity of officers,
directors, employees, and other persons, all as set forth on Exhibit A on
pages 15, 16 and 17 of the proxy statement for this annual meeting.
The Exhibit A hereto is the same Exhibit A referred to in the foregoing
resolution, and said resolution was approved by a
-1-
vote of a majority of the issued and outstanding shares of the corporation's
common stock, $.l0 par value, the only class entitled to vote thereon.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said PYRO ENERGY CORP. has caused this certificate to
be signed by C. W. Schulties, its President, and attested by C. H. Arbaugh, its
Secretary, as of the 15th day of May, 1987.
PYRO ENERGY CORP.
By: /s/ CW Schulties
-------------------------
C. W. Schulties, President
ATTEST:
By: /s/ C H Arbaugh
---------------------------
C. H. Arbaugh, Secretary
-2-
(d) Rights After Successful Defense. To the extent that a director,
officer or employee, or agent has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsection 2(a) or in
the right of (but not by) the corporation under subsection 2(b), or in defense
of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(e) Other Determination of Rights. Except in a situation governed by
subsection 2(d), any indemnification under subsections 2(a) or 2(b) (unless
ordered by a court) shall be made by the corporation only as authorized in
the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in subsections 2(a) or 2(b).
Such determination shall be made (i) by a majority vote of directors acting
at a meeting at which a quorum consisting of directors who were not parties
to such action, suit or proceeding is present, (ii) if such a quorum is not
obtainable (or even if obtainable and a majority of disinterested directors
so directs), by independent legal counsel (compensated by the corporation) in
a written opinion, or (iii) by the affirmative vote in person or by proxy of
the holders of a majority of the shares entitled to vote in the election of
directors.
(f) Advances of Expenses. Expenses of each person indemnified hereunder
incurred in defending a civil, criminal, administrative or investigative action,
suit, or proceeding (including all appeals), or threat thereof, may be paid by
the corporation in advance of the final disposition of such action, suit or
proceeding as authorized (i) by a majority vote of directors acting at a duly
constituted meeting at which a quorum consisting of directors who are not
parties to such action, suit or proceeding is present, or (ii) if such quorum is
not obtainable, by any majority vote of directors acting at a duly constituted
meeting, in either case upon receipt of an undertaking by or on behalf of the
director, trustee, officer, employee or agent, to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified under
subsections 2(a) or 2(b) or otherwise. The determination required by clauses
(i) and (ii) of this subsection may in either event be made by the written
consent of the majority required by each clause.
(g) Right of Claimant to Bring Suit. If a claim under subsections 2(a) or
2(b) 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 that the claimant has not met the standards of conduct which
make it permissible under the Delaware General Corporation Law for the
corporation 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 the 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
Delaware General Corporation Law, 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.
(h) Nonexclusiveness; Heirs. The indemnification and advancement of
expenses provided by, or granted pursuant to the other subsections of these
articles shall not be deemed exclusive of any other rights to which any person
seeking indemnification may be entitled as a matter of law or under any
agreement, by-law, vote of shareholders, insurance policy purchased by the
corporation, or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
(i) Continuance of Rights. The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections of these articles
shall continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
(j) Purchase of Insurance. The corporation may purchase and maintain
insurance, at its expense, to protect itself and any person who is or was a
director, officer, employee or agent, or is or was serving at the request of the
corporation as a director, trustee, partner, officer, employee or agent of
another corporation, partnership, joint venture, trust, or other enterprise
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would have the power to indemnify him against such liability under the
provisions of the Delaware General Corporation Law.
Exhibit A
Page 2 of 3
(k) Certain Definitions. For purposes of these articles, references to
"independent legal counsel" shall not include any lawyer who as a director,
officer or employee of the corporation, or a professional associate of a
director, officer or employee of the corporation; references to "director,
officer or employee" shall include only those persons who are directors,
officers, or employees of the corporation on or after the date this section is
approved by the shareholders of this corporation, and all directors, officers
and employees of the corporation who on or after such approval date serve at the
request of the corporation as a director, trustee, partner, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise; and references to "agents" shall include only those persons
designated by a majority vote of the Board of Directors as (i) agents of the
corporation, (ii) persons serving at the request of the corporation as a
director, trustee, partner, officer, employee or agent of another corporation,
partnership, joint venture, trust, or other enterprise, or (iii) both. In
addition to the foregoing, the terminology defined in Sections l45(i) of the
Delaware General Corporation Law shall apply to the same terminology as used in
these articles.
(l) Serverability. If any provision hereof is invalid or unenforceable
in any jurisdiction, the other provisions hereof shall remain in full force
and effect in such jurisdiction, and the remaining provisions hereof shall be
liberally construed to effectuate the provisions hereof, and the invalidity
of any provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
Exhibit A
Page 3 of 3
CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
R. L. BURNS CORP. a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware. DOES HEREBY
CERTIFY:
The present registered agent of the corporation is Prentice-Hall
Corporation System, Inc. and the present registered office of the corporation is
in the county of Kent
The Board of Directors of R. L. BURNS CORP. adopted the following
resolution on the 16th day of December 1980.
Resolved, that the registered office of R. L. BURNS CORP.
in the state of Delaware be and it hereby is changed to No. 100 West Tenth
Street, in the City of Wilmington, County of New Castle, and the
authorization of the present registered agent of this corporation be and
the same is hereby withdrawn, and THE CORPORATION TRUST COMPANY, shall be
and is hereby constituted and appointed the registered agent of this
corporation at the address of its registered office.
IN WITNESS WHEREOF. R.L. BURNS CORP. has caused this statement to be
signed by Robert J. Kiechlin, its Vice President and attested by Charles
Arbaugh, its ____________ Secretary this 5th day of January, 1981.
By /s/ Robert J. Kiechlin
----------------------
Vice President
Robert J. Kiechlin
By /s/ Charles Arbaugh
----------------------
__________ Secretary
Charles Arbaugh
(DEL. 284-8/7/78)
FILED
DEC 15, 1981
/s/ [ILLEGIBLE]
SECRETARY OF STATE
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
* * * * *
R. L. BURNS CORP., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That at a meeting of the Board of Directors of R. L. BURNS CORP.
held May 8, 1981 resolutions were duly adopted setting forth a proposed
amendment to the Certificate of Incorporation of said corporation, declaring
said amendment to be advisable and directing that the proposed amendment be
presented at the next meeting of the stockholders of said corporation for
consideration thereof. The resolution setting forth the proposed amendment is as
follows:
RESOLVED, that in the judgment of the Board of Directors of this Company,
it is deemed advisable to amend the Certificate of Incorporation so as to
change the name of this company from R. L. Burns Corp., its present name,
to Pyro Energy Corp., and to that end, Article 1 be changed to read as
follows:
"The name of this corporation is Pyro Energy Corp."
SECOND: That the stockholders of said corporation adopted said amendment
by resolution at a meeting held in Nashville, Tennessee on December 15, 1981 and
the wording of Article 1 as amended is as set forth in the director's resolution
in the First paragraph above. The resolution in the First paragraph above was
adopted by a vote of a majority of the issued and outstanding shares of Common
Stock, the only class entitled to vote thereon.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
-1
IN WITNESS WHEREOF, said R. L. BURNS CORP. has caused this certificate
to be signed by C. W. Schulties, its President, and attested by C. H.
Arbaugh, its Secretary, this 15th day of December, 1981.
R.L. BURNS CORP.
By /s/ C. W. Schulties
--------------------------------
C. W. Schulties, President
ATTEST:
By /s/ C. H. Arbaugh
-------------------------
C. H. Arbaugh, Secretary
-2
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Charles W. Schulties and John Cavins certify:
1. That they are the President and Assistant Secretary,
respectively, of R. L. Burns Corp., a Delaware corporation.
2. That at a meeting of the Board of Directors of said corporation
duly held at Denver, Colorado on October 23, 1979, the following resolution
solely to increase to 25,000,000 shares the number of authorized shares of
Common Stock, par value $.lO per share, of the corporation was adopted:
"BE IT RESOLVED, that Article 4 of the Company's Certificate of
Incorporation be amended in pertinent part to read as follows:
ARTICLE 4
The number of shares which this corporation shall have authority to
issue, itemized by classes, par value of shares, shares without par value,
and series, if any within a class is as follows:
Par Value Per
Share or Statement
That Shares
Number of Are Without
Class Series (if any) Shares Par Value
------ --------------- ---------- ------------------
Common None 25,000,000 $.10
3. That the Stockholders of said corporation adopted said amendment
by resolution, at a meeting held at Denver, Colorado, on December 11, 1979 and
the wording of Article 4, as amended in pertinent part, is as set forth in the
directors' resolution in Paragraph 2 above. The resolution in Paragraph 2 above
was adopted by the vote of a majority of the number of issued and outstanding
shares of Common Stock, the only class of stock entitled to vote thereon.
4. That the foregoing amendment was duly adopted in accordance with
the provisions of Section 242 of the Delaware General Corporation Law.
DATED: January 21, 1980
/s/ Charles W. Schulties
-----------------------------------
Charles W. Schulties, President
ATTEST:
/s/ John Cavins
- ----------------------------
John Cavins, Assistant
Secretary
STATE OF INDIANA )
) ss.
COUNTY OF Vanderburgh )
Before me Charlette F. Walts, a notary public, resident of the County of
Vanderburgh, Indiana, this 21st day of January, 1980, personally appeared R. L.
Burns Corp. by Charles W. Schulties and John Cavins, its President and Assistant
Secretary, respectively, and acknowledged the execution of the foregoing
instrument.
/s/ Charlette F. Walts
-------------------------
Notary Public
[SEAL]
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Kenneth M. Poovey and Otto E. Sorensen certify:
1. That they are the President and Assistant Secretary,
respectively, of R. L. Burns Corp., a Delaware corporation.
2. That at a meeting of the Board of Directors of said corporation,
duly held at San Diego, California on November 23, 1977, the following
resolution was adopted:
"RESOLVED, Article 4 of the Certificate of Incorporation of this
Corporation is hereby amended to read in full as follows:
ARTICLE 4
The number of shares which this Corporation shall have authority to
issue, itemized by classes, par value of shares, shares without par value,
and series, if any within a class is as follows:
Par Value
or Statement
That Shares
Number of Are Without
Class Series (if any) Shares Par Value
--------- --------------- ---------- ------------
Preferred To be issued in 5,000,000 $.10
series
Common None 20,000,000 $.10
The powers, preferences and rights, and the qualifications,
limitations or restrictions thereof relating to the Preferred Stock and the
Common Stock are:
The Preferred Stock:
(1) The Preferred Stock may be issued from time to time in one or
more series and with such designation for each such series as shall be
stated and expressed in the resolution or resolutions providing for the
issue of each such series adopted by the board of directors. The board of
directors in any such resolution or resolutions is expressly authorized to
state and express for each such series:
(i) The voting rights, if any, of the holders of stock of such
series;
(ii) The rate per annum and the times at and conditions upon
which the holders of stock of such series shall be entitled to receive
dividends, and whether such dividends shall be cumulative or noncumulative
and if cumulative the terms upon which such dividends shall be cumulative;
(iii) The price or prices and the time or times at and the
manner in which the stock of such series shall be redeemable;
(iv) The right to which the holders of the shares of stock of
such series shall be entitled upon any voluntary or involuntary
liquidation, dissolution or winding up of this corporation;
(v) The terms, if any, upon which shares of stock of such
series shall be convertible into, or exchangeable for, shares of stock of
any other class or classes or of any other series of the same or any other
class or classes, including the price or prices or the rate or rates of
conversion or exchange and the terms of adjustment, if any; and
(vi) Any other designations, preferences, and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof so far as they are not inconsistent
with the provisions of this certificate of incorporation, and to the full
extent now or hereafter permitted by the laws of the State of Delaware.
-2-
(2) All shares of the Preferred Stock of any one series
shall be identical to each other in all respects, except that shares of
any one series issued at different times may differ as to the dates from
which dividends thereon, if cumulative, shall be cumulative.
(3) The number of authorized shares of Preferred Stock
may be increased or decreased by the vote of a majority of the stock of
this corporation entitled to vote.
The Common Stock:
At all elections of directors of this corporation, each holder of
Common Stock shall be entitled to as many votes as shall equal the number
of votes which (except for this provision as to cumulative voting) he
would be entitled to cast for the election of directors with respect to
his shares of Common Stock multiplied by the number of directors to be
elected by him, and he may cast all of such votes for a single nominee for
director or may distribute them among the number to be voted for, or for
any two or more of them as he may see fit."
3. That the Stockholders of said corporation adopted said amendment
by resolution at a meeting held at San Diego, California, on December 16, 1977
and the wording of the amended Article 4, is as set forth in the directors'
resolution in Paragraph 2 above. The resolution in Paragraph 2 above was adopted
by the vote of a majority of the number of issued and outstanding shares of
Common Stock, the only class of stock entitled to vote thereon.
4. That the foregoing amendment was duly adopted in accordance with
the provisions of Section 242 of the Delaware General Corporation Law.
DATED: December 29, 1977
/s/ Kenneth M. Poovey
----------------------------------
Kenneth M. Poovey, President
ATTEST:
/s/ Otto E. Sorensen
- ---------------------------------
Otto E. Sorensen, Assistant
Secretary
-3-
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
R. L. Burns and Harriet E. Clements certify:
1. That they are the Chairman of the Board and Secretary,
respectively, of R. L. Burns Corp., a Delaware Corporation.
2. That at a meeting of the Board of Directors of said corporation,
duly held at San Bernardino, California on October 6, 1975, the following
resolution was adopted:
"RESOLVED, that Article 4 of the Certificate of Incorporation of
this corporation be amended to read as follows:
ARTICLE 4
The number of shares which this corporation shall have authority
to issue, itemized by classes, par value of shares, shares without par
value, and series, if any within a class, is as follows:
Par Value
Per Share
or Statement
That Shares
Number of Are Without
Class Series (if any) Shares Par Value
--------- ---------------- --------- ------------
Preferred To be issued in 500,000 $.10
series
Common None 10,000,000 $.10
The powers, preferences and rights, and the qualifications,
limitations or restrictions thereof relating to the Preferred Stock and
the Common Stock are:
The Preferred Stock:
(1) The Preferred Stock may be issued from time to time in one or
more series and with such designation for
each such series as shall be stated and expressed in the resolution or
resolutions providing for the issue of each such series adopted by the
board of directors. The board of directors in any such resolution or
resolutions is expressly authorized to state and express for each such
series:
(i) The voting rights, if any, of the holders of stock of such
series;
(ii) The rate per annum and the times at and conditions upon
which the holders of stock of such series shall be entitled to receive
dividends, and whether such dividends shall be cumulative or noncumulative
and if cumulative the terms upon which such dividends shall be cumulative;
(iii) The price or prices and the time or times at and the
manner in which the stock of such series shall be redeemable;
(iv) The right to which the holders of the shares of stock of
such series shall be entitled upon any voluntary or involuntary
liquidation, dissolution or winding up of this corporation;
(v) The terms, if any, upon which shares of stock of such
series shall be convertible into, or exchangeable for, shares of stock of
any other class or classes or of any other series of the same or any other
class or classes, including the price or prices or the rate or rates of
conversion or exchange and the terms of adjustment, if any; and
(vi) Any other designations, preferences, and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof so far as they are not inconsistent
with the provisions of this certificate of incorporation, and to the full
extent now or hereafter permitted by the laws of the State of Delaware.
(2) All shares of the Preferred Stock of any one series shall be
identical to each other in all respects, except that shares of any one
series issued at different times may differ as to the dates from which
dividends thereon, if cumulative, shall be cumulative.
-2-
(3) The number of authorized shares of Preferred Stock may be
increased or decreased by the vote of a majority of the stock of this
corporation entitled to vote.
The Common Stock:
At all elections of directors of this corporation, each holder of
Common Stock shall be entitled to as many votes as shall equal the number
of votes which (except for this provision as to cumulative voting) he
would be entitled to cast for the election of directors with respect to
his shares of Common Stock multiplied by the number of directors to be
elected by him, and he may cast all of such votes for a single nominee for
director or may distribute them among the number to be voted for, or for
any two or more of them as he may see fit."
3. That the Stockholders of said corporation adopted said amendment
by resolution at a meeting held at San Bernardino, California, on November 21,
1975 and the wording of the amended Article 4, is as set forth in the directors'
resolution in Paragraph 2 above. The resolution in Paragraph 2 above was adopted
by the vote of a majority of the number of issued and outstanding shares of
Common Stock, the only class of stock entitled to vote thereon.
4. That the foregoing amendment was duly adopted in accordance with
the provisions of Section 242 of the Delaware General Corporation Law.
DATED: November 21, 1975
/s/ R.L. Burns
--------------------------------
R.L. Burns
Chairman of the Board
ATTEST:
/s/ Harriet E. Clements
- --------------------------
Harriet E. Clements
Secretary
[SEAL]
-3-
CERTIFICATE OF INCORPORATION
OF
R. L. BURNS CORP.
ARTICLE 1
The name of this corporation is R. L. Burns Corp.
ARTICLE 2
The address of this corporation's registered office in the State of
Delaware is 229 South State Street, in the City of Dover, County of Kent. The
name of this corporation's registered agent at such address is The Prentice-Hall
Corporation System, Inc.
ARTICLE 3
The purpose of this corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
ARTICLE 4
The number of shares which this corporation shall have authority to
issue, itemized by classes, par value of shares, shares without par value, and
series, if any within a class, is as follws:
Par Value
Per Share
or Statement
That Shares
Number of Are Without
Class Series (if any) Shares Par Value
--------- ---------------- --------- ------------
Preferred To be issued in 500,000 $.10
series
Common None 5,000,000 $.10
The powers, preferences and rights, and the qualifications,
limitations or restrictions thereof relating to the Preferred Stock and the
Common Stock are:
The Preferred Stock:
(1) The Preferred Stock may be issued from time to time in one or
more series and with such designation for each such series as shall be stated
and expressed in the resolution or resolutions providing for the issue of each
such series adopted by the board of directors. The board of directors in any
such resolution or resolutions is expressly authorized to state and express for
each such series:
(i) The voting rights, if any, of the holders of stock of such
series;
(ii) The rate per annum and the times at and conditions upon
which the holders of stock of such series shall be entitled to receive
dividends, and whether such dividends shall be cumulative or noncumulative
and if cumulative the terms upon which such dividends shall be cumulative;
(iii) The price or prices and the time or times at and the
manner in which the stock of such series shall be redeemable;
(iv) The right to which the holders of the shares of stock of
such series shall be entitled upon any voluntary or involuntary
liquidation, dissolution or winding up of this corporation;
(v) The terms, if any, upon which shares of stock of such
series shall be convertible into, or exchangeable for, shares of stock of
any other class or classes or of any other series of the same or any other
class or classes, including the price or prices or the rate or rates of
conversion or exchange and the terms of adjustment, if any; and
(vi) Any other designations, preferences, and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof so far as they are not inconsistent
with the provisions of this certificate of incorporation, and to the full
extent now or hereafter permitted by the laws of the State of Delaware.
(2) All shares of the Preferred Stock of any one series shall be
identical to each other in all respects, except that shares of any one series
issued at different times may differ as to the dates from which dividends
thereon, if cumulative, shall be cumulative.
2
(3) The number of authorized shares of Preferred Stock may be
increased or decreased by the vote of a majority of the stock of this
corporation entitled to vote.
The Common Stock:
At all elections of directors of this corporation, each holder of
Common Stock shall be entitled to as many votes as shall equal the number of
votes which (except for this provision as to cumulative voting) he would be
entitled to cast for the election of directors with respect to his shares of
Common Stock multiplied by the number of directors to be elected by him, and he
may cast all of such votes for a single nominee for director or may distribute
them among the number to be voted for, or for any two or more of them as he may
see fit.
ARTICLE 5
The name and mailing address of the incorporator is as follows:
Name Mailing Address
--------------- --------------------------------
Richard L. Burns 334 West Third Street
Suite 400
San Bernardino, California 92401
ARTICLE 6
The board of directors shall have the power, by resolution passed by
a majority of the whole board, to make, alter or repeal by-laws.
ARTICLE 7
No action shall be taken by the stockholders except at an annual or
special meeting of stockholders.
ARTICLE 8
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
3
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 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 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.
ARTICLE 9
Section 1. The provision as to cumulative voting set forth in
ARTICLE 4 shall not be altered, amended or repealed except by the vote of eighty
percent or more of the outstanding Common Stock.
Section 2. By-laws shall not be made, altered or replealed by the
stockholders of this corporation except by the vote of eighty percent or more of
the stock of this corporation entitled to vote.
THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, does 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 18th day of December, 1973.
/s/ Richard L. Burns
---------------------------------
Richard L. Burns
4
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN BERNARDINO )
BE IT REMEMBERED THAT on this 18th day of December, 1973, personally
came before me, a Notary Public for the State of California, Richard L. Burns,
the party to the foregoing Certificate of Incorporation, known to me personally
to be such, and acknowledged the said certificate to be the act and deed of the
signer and that the facts stated therein are true.
GIVEN under my hand and seal of office the day and year aforesaid.
- -------------------------------------
[SEAL] WANDA R. WOLFF
NOTARY PUBLIC /s/ Wanda R. Wolff
SAN BERNARDINO COUNTY ----------------------
CALIFORNIA Notary Public
My Commission Expires July 5, 1977
- -------------------------------------
5