EXHIBIT NO. 3.5
CERTIFICATE OF INCORPORATION
OF
YELLOW DOT COM SUBSIDIARY, INC.
FIRST: The name of the Corporation is YELLOW DOT COM SUBSIDIARY, INC.
(the "Corporation").
SECOND: The address of the Corporation's registered office in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, City of
Wilmington, County of New Castle, Delaware 19801. The name of its registered
agent at such address is The Corporation Trust Company.
THIRD: The purpose for which the Corporation is organized is to engage
in any lawful act or activity for which corporations may now or hereafter be
organized under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of all classes of capital stock
that the Corporation shall have the authority to issue is 1000 shares, par value
$.0001 per share, designated common stock.
FIFTH: The name and mailing address of the incorporator is:
Name Mailing Address
- ---- ---------------
Megan E. Gula Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
SIXTH: The business and affairs of the Corporation shall be managed by
the Board of Directors.
SEVENTH: The Board of Directors shall have the power to adopt, amend
or repeal the by-laws of the Corporation.
EIGHTH: Election of directors need not be by ballot unless the by-laws
of the Corporation so provide. 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 General
Corporation Law of the State of Delaware) 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.
NINTH: (1) A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director to the fullest extent permitted by the General Corporation
Law of the State of Delaware as the same exists or may hereafter be amended.
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(2) (a) Each person (and the heirs, executors or administrators of
such person) who was or is a party or is threatened to be made a party to, or is
involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise, shall be
indemnified and held harmless by the Corporation to the fullest extent permitted
by applicable law as the same exists or may hereafter be amended. The right to
indemnification conferred in this ARTICLE NINTH shall also include the right to
be paid by the Corporation the expenses incurred in connection with any such
proceeding in advance of its final disposition to the fullest extent authorized
by applicable law as the same exists or may hereafter be amended.
(b) The Corporation may, by action of its Board of Directors, provide
indemnification to such of the officers, employees and agents of the Corporation
to such extent and to such effect as the Board of Directors shall determine to
be appropriate and authorized by applicable law as the same exists or may
hereafter be amended.
(3) The rights and authority conferred in this ARTICLE NINTH shall not
be exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of this Certificate of Incorporation or the by-laws
of the Corporation, agreement, vote of stockholders or disinterested directors
or otherwise.
(4) Neither the amendment nor repeal of this ARTICLE NINTH, nor the
adoption of any provision of this Certificate of Incorporation or the by-laws of
the Corporation, nor, to the fullest extent permitted by applicable law, any
modification of law, shall eliminate or reduce the effect of this ARTICLE NINTH
in respect of any acts or omissions occurring prior to such amendment or repeal
or such adoption of an inconsistent provision.
TENTH: The Corporation shall have power to 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 General Corporation Law of
the State of Delaware.
ELEVENTH: The Corporation reserves the right to amend this Certificate
of Incorporation in any manner permitted by the General Corporation Law of the
State of Delaware, as amended from time to time, and all rights and powers
conferred herein on stockholders, directors and officers, if any, are subject to
this reserved power.
TWELFTH: The Corporation shall have perpetual existence.
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IN WITNESS WHEREOF, I have hereunto signed my name this 11th day of
May, 2000.
/s/ MEGAN E. GULA
---------------------------------------
Megan E. Gula
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EXHIBIT NO. 3.5
CERTIFICATE OF MERGER
MERGING
ECP (DELAWARE), INC.
WITH AND INTO
YELLOW DOT COM SUBSIDIARY, INC.
The undersigned corporation organized and existing under and by virtue
of the General Corporation Law of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the
constituent corporations of the merger is as follows:
NAME STATE OF INCORPORATION
---- ----------------------
ECP (Delaware), Inc. Delaware
Yellow Dot Com Subsidiary, Inc. Delaware
SECOND: That the Agreement of Merger has been approved, adopted,
certified, executed and acknowledged by each of the constituent corporations in
accordance with the requirements of Section 251 of the General Corporation Law
of Delaware.
THIRD: That Yellow Dot Com Subsidiary, Inc. shall be the surviving
corporation (the "Surviving Corporation").
FOURTH: That the Articles of Incorporation of Yellow Dot Com
Subsidiary, Inc. shall be the Articles of Incorporation of the Surviving
Corporation.
FIFTH: The merger is to become effective at 5:00 p.m. on December 31,
2001.
SIXTH: That the executed Merger Agreement is on file at the principal
place of business of the Surviving Corporation, the address of which is P.O. Box
7563, 10990 Roe Avenue, Overland Park, Kansas 66211.
SEVENTH: That a copy of the Merger Agreement will be furnished by the
Surviving Corporation, on request and without cost, to any stockholder of any
constituent corporation.
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IN WITNESS WHEREOF, this certificate of Merger has been executed by
William F. Martin, Jr., President of ECP (Delaware), Inc. and by William F.
Martin, Jr., President of the Surviving Corporation on this 31st day of December
2001.
By: /s/ WILLIAM F. MARTIN, JR.
-----------------------------------
Name: William F. Martin, Jr.
Title: President
By: /s/ WILLIAM F. MARTIN, JR.
-----------------------------------
Name: William F. Martin, Jr.
Title: President
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EXHIBIT NO. 3.5
CERTIFICATE OF MERGER
MERGING
TL VENTURES SIX (DELAWARE), INC.
WITH AND INTO
YELLOW DOT COM SUBSIDIARY, INC.
The undersigned corporation organized and existing under and by virtue
of the General Corporation Law of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the
constituent corporations of the merger is as follows:
NAME STATE OF INCORPORATION
---- ----------------------
TL Ventures Six (Delaware), Inc. Delaware
Yellow Dot Com Subsidiary, Inc. Delaware
SECOND: That the Agreement of Merger has been approved, adopted,
certified, executed and acknowledged by each of the constituent corporations in
accordance with the requirements of Section 251 of the General Corporation Law
of Delaware.
THIRD: That Yellow Dot Com Subsidiary, Inc. shall be the surviving
corporation (the "Surviving Corporation").
FOURTH: That the Articles of Incorporation of Yellow Dot Com
Subsidiary, Inc. shall be the Articles of Incorporation of the Surviving
Corporation.
FIFTH: The merger is to become effective at 5:00 p.m. on December 31,
2001.
SIXTH: That the executed Merger Agreement is on file at the principal
place of business of the Surviving Corporation, the address of which is P.O. Box
7563, 10990 Roe Avenue, Overland Park, Kansas 66211.
SEVENTH: That a copy of the Merger Agreement will be furnished by the
Surviving Corporation, on request and without cost, to any stockholder of any
constituent corporation.
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IN WITNESS WHEREOF, this certificate of Merger has been executed by
William F. Martin, Jr., President of TL Ventures Six (Delaware), Inc. and by
William F. Martin, Jr., President of the Surviving Corporation on this 31st day
of December 2001.
By: /s/ WILLIAM F. MARTIN, JR.
-----------------------------------
Name: William F. Martin, Jr.
Title: President
By: /s/ WILLIAM F. MARTIN, JR.
-----------------------------------
Name: William F. Martin, Jr.
Title: President
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EXHIBIT NO. 3.5
CERTIFICATE OF MERGER
MERGING
OCTOBER CAPITAL TRANSPORTATION, INC.
WITH AND INTO
YELLOW DOT COM SUBSIDIARY, INC.
The undersigned corporation organized and existing under and by virtue
of the General Corporation Law of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the
constituent corporations of the merger is as follows:
NAME STATE OF INCORPORATION
---- ----------------------
October Capital Transportation, Inc. Missouri
Yellow Dot Com Subsidiary, Inc. Delaware
SECOND: That the Agreement of Merger has been approved, adopted,
certified, executed and acknowledged by each of the constituent corporations in
accordance with the requirements of Section 252 of the General Corporation Law
of Delaware.
THIRD: That Yellow Dot Com Subsidiary, Inc. shall be the surviving
corporation (the "Surviving Corporation").
FOURTH: That the Articles of Incorporation of Yellow Dot Com
Subsidiary, Inc. shall be the Articles of Incorporation of the Surviving
Corporation.
FIFTH: That the authorized stock and par value of October Capital
Transportation, Inc. is 1,000 shares, with a par value of $1.00 per share.
SIXTH: That the executed Merger Agreement is on file at the principal
place of business of the Surviving Corporation, the address of which is P.O. Box
7563, 10990 Roe Avenue, Overland Park, Kansas 66211.
SEVENTH: That a copy of the Merger Agreement will be furnished by the
Surviving Corporation, on request and without cost, to any stockholder of any
constituent corporation.
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IN WITNESS WHEREOF, this certificate of Merger has been executed by
William F. Martin, Jr., President of October Capital Transportation, Inc. and by
William F. Martin, Jr., President of the Surviving Corporation on this 31st day
of December 2001.
By: /s/ WILLIAM F. MARTIN, JR.
-----------------------------------
Name: William F. Martin, Jr.
Title: President
By: /s/ WILLIAM F. MARTIN, JR.
-----------------------------------
Name: William F. Martin, Jr.
Title: President
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EXHIBIT NO. 3.5
CERTIFICATE OF MERGER
MERGING
YELLOW CUSTOMER SOLUTIONS, INC.
WITH AND INTO
YELLOW DOT COM SUBSIDIARY, INC.
The undersigned corporation organized and existing under and by virtue
of the General Corporation Law of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the
constituent corporations of the merger is as follows:
NAME STATE OF INCORPORATION
---- ----------------------
Yellow Customer Solutions, Inc. Delaware
Yellow Dot Com Subsidiary, Inc. Delaware
SECOND: That the Agreement of Merger has been approved, adopted,
certified, executed and acknowledged by each of the constituent corporations in
accordance with the requirements of Section 251 of the General Corporation Law
of Delaware.
THIRD: That Yellow Dot Com Subsidiary, Inc. shall be the surviving
corporation (the "Surviving Corporation").
FOURTH: That the Articles of Incorporation of Yellow Dot Com
Subsidiary, Inc. shall be the Articles of Incorporation of the Surviving
Corporation.
FIFTH: The merger is to become effective at 5:00 p.m. on January 23,
2002.
SIXTH: That the executed Merger Agreement is on file at the principal
place of business of the Surviving Corporation, the address of which is P.O. Box
7563, 10990 Roe Avenue, Overland Park, Kansas 66211.
SEVENTH: That a copy of the Merger Agreement will be furnished by the
Surviving Corporation, on request and without cost, to any stockholder of any
constituent corporation.
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IN WITNESS WHEREOF, this certificate of Merger has been executed by
William F. Martin, Jr., President of Yellow Customer Solutions, Inc., and by
William F. Martin, Jr., President of the Surviving Corporation on this 24th day
of January 2002.
By: /s/ WILLIAM F. MARTIN, JR.
-----------------------------------
Name: William F. Martin, Jr.
Title: President
By: /s/ WILLIAM F. MARTIN, JR.
-----------------------------------
Name: William F. Martin, Jr.
Title: President
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