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.
[The remainder of this page intentionally blank.]
5 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
Deborah M. Reusch
Sole Incorporator
CERTIFICATE OF DISSOLUTION
OF
COMDISCO HOLDING COMPANY, INC.
-----------------------------------------
Pursuant to Sections 275 and 303 of the General
Corporation Law of the State of Delaware
-----------------------------------------
Comdisco Holding Company, Inc., a Delaware corporation (the "Corporation"),
hereby certifies as follows:
FIRST: The name of the Corporation is Comdisco Holding Company, Inc.
SECOND: The dissolution of the Corporation was authorized on August 12,
2004.
THIRD: This Certificate of Dissolution of the Corporation is being filed
pursuant to Sections 275 and 303 of the General Corporation Law of the State of
Delaware.
The making and filing of this Certificate of Dissolution has been
authorized by the First Amended Joint Plan of Reorganization of Comdisco, Inc.
and its Affiliated Debtors and Debtors in Possession, Case No. 01-24795 under
Chapter 11 of the United States Bankruptcy Code, as confirmed by the United
States Bankruptcy Court for the Northern District of Illinois, Eastern Division
at a hearing on July 30, 2002 (the "Plan") and the Order in Furtherance of the
First Amended Joint Plan of Reorganization of Comdisco, Inc. and its Affiliates
Seeking Authority to Complete the Administration of the Reorganized Debtors'
Reorganization Plan and Chapter 11 Cased dated April 15, 2004 (the "Order").
FOURTH: The name and address of the director and officer of the Corporation
are as follows:
Name Office Address
- ------------------- -------------------- ----------------------
Randolph I. Thornton Sole Director, Chief 6111 North River Road
Executive Officer, Rosemont, Illinois 60018
President and Secretary
IN WITNESS WHEREOF, this Certificate of Dissolution has been executed this
12th day of August, 2004.
Comdisco Holding Company, Inc.
/s/ Randolph I. Thornton
--------------------------------------------
Name: Randolph I. Thornton
Title: Chief Executive Officer, President and
Secretary