Exhibit 2.a
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CERTIFICATE OF INCORPORATION
OF
EMIGRANT SECURITIES CORP.
UNDER SECTION 102 OF
THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
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TABLE OF CONTENTS
Page
ARTLCLE I
NAME..............................................................................................................1
ARTICLE II
REGISTERED OFFICE AND AGENT.......................................................................................1
ARTICLE III
PURPOSE...........................................................................................................1
ARTICLE IV
CAPITAL STOCK.....................................................................................................1
Section 1. Shares, Classes and Series Authorized..................................................1
Section 2. Designations, Powers, Preferences, Rights, Qualifications,
Limitations and Restrictions Relating to the Capital Stock.............................2
ARTICLE V
BOARD OF DIRECTORS................................................................................................3
ARTICLE VI
INFORMAL ACTION BY STOCKHOLDERS...................................................................................4
ARTICLE VII
BYLAWS............................................................................................................4
ARTICLE VIII
LIMITATION OF LIABILITY OF DIRECTORS..............................................................................4
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ARTICLE IX
INDEMNIFICATION...................................................................................................4
Section 1. Actions, Suits or Proceedings other than by or in the
Right of the Corporation...............................................................4
Section 2. Actions or Suits by or in the Right of the Corporation.................................5
Section 3. Indemnification for Costs, Charges and Expenses of a
Successful Party.......................................................................6
Section 4. Indemnification for Expenses of a Witness..............................................6
Section 5. Determination of Right to Indemnification..............................................6
Section 6. Advancement of Costs, Charges and Expenses.............................................7
Section 7. Procedure for Indemnification..........................................................7
Section 8. Settlement.............................................................................8
Section 9. Other Rights; Continuation of Right to Indemnification;
Individual Contracts...................................................................8
Section 10. Savings Clause.........................................................................8
Section 11. Insurance..............................................................................8
Section 12. Definitions............................................................................9
Section 13. Subsequent Amendment and Subsequent Legislation.......................................10
ARTICLE X
AMENDMENTS.......................................................................................................10
ARTICLE XI
NOTICES..........................................................................................................11
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CERTIFICATE OF INCORPORATION
OF
EMIGRANT SECURITIES CORP.
THE UNDERSIGNED, for the purpose of organizing a corporation
pursuant to Section 102 of the General Corporation Law of the State of Delaware
(the "DGCL"), does hereby certify that the Certificate of Incorporation of
Emigrant Securities Corp. was duly adopted in accordance with the provisions of
Section 102 of the DGCL and further certifies as follows:
ARTICLE I
NAME
The name of the corporation is Emigrant Securities Corp. (the
"Corporation").
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the registered office of the Corporation in the
State of Delaware is Corporation Trust Center, 0000 Xxxxxx Xxxxxx, xx xxx Xxxx
xx Xxxxxxxxxx, Xxxxxx of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act
or activity for which a corporation may be organized under the DGCL.
ARTICLE IV
CAPITAL STOCK
Section 1. SHARES, CLASSES AND SERIES AUTHORIZED. The total
number of shares of all classes of capital stock which the Corporation shall
have authority to issue is two thousand, one hundred (2,100) shares, of which
one thousand (1,000) shares shall be shares of preferred stock, par value one
cent ($0.01) per share (the "Preferred Stock"), and one thousand, one hundred
(1,100)
shares shall be common stock, par value one cent ($0.01) per share (the "Common
Stock"). The Preferred Stock and Common Stock are sometimes hereinafter
collectively referred to as the "Capital Stock."
Section 2. DESIGNATIONS, POWERS, PREFERENCES, RIGHTS,
QUALIFICATIONS, LIMITATIONS AND RESTRICTIONS RELATING TO THE CAPITAL STOCK. The
following is a statement of the designations, powers, preferences and rights in
respect of the classes of the Capital Stock, and the qualifications, limitations
and restrictions thereof, and of the authority with respect thereto expressly
vested in the Board of Directors of the Corporation (the "Board of Directors"):
(a) Preferred Stock. The Preferred Stock may be issued from
time to time in one or more series, the number of shares and any designation of
each series and the powers, preferences and rights of the shares of each series,
and the qualifications, limitations and restrictions thereof, to be as stated
and expressed in a resolution or resolutions providing for the issue of such
series adopted by the Board of Directors, subject to the limitations prescribed
by law. The Board of Directors in any such resolution or resolutions is
expressly authorized to state for each such series:
(i) the rights of stockholders in respect of dividends,
if any, including, without limitation, the rate or
rates per annum and the time or times at which (or
the formula or other method pursuant to which such
rate or rates and such time or times may be
determined) and conditions upon which the holders of
stock of such series shall be entitled to receive
dividends and other distributions, and whether any
such dividends shall be cumulative or noncumulative
and, if cumulative, the terms upon which such
dividends shall be cumulative;
(ii) whether the stock of each such series shall be
redeemable by the Corporation at the option of the
Corporation or the holder thereof, and, if
redeemable, the terms and conditions upon which the
stock of such series may be redeemed;
(iii) the amount payable and the rights or preferences, if
any, to which the holders of the stock of such series
shall be entitled upon any voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation;
(iv) 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
(v) any other designations, powers, 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 fullest extent now or
hereafter permitted by the laws of the State of
Delaware.
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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. Except as otherwise required by law
and except for such voting powers with respect to the election of directors or
other matters as may be stated in the resolution or resolutions of the Board of
Directors, or duly authorized committee thereof, creating any series of
Preferred Stock, the holders of any such series shall have no voting power
whatsoever.
Subject to any limitations or restrictions stated in the
resolution or resolutions of the Board of Directors originally fixing the number
of shares constituting a series, the Board of Directors may by resolution or
resolutions likewise adopted increase (but not above the total number of
authorized shares of that class) or decrease (but not below the number of shares
of the series then outstanding) the number of shares of the series subsequent to
the issue of shares of that series; and in case the number of shares of any
series shall be so decreased, the shares constituting the decrease shall resume
that status that they had prior to the adoption of the resolution originally
fixing the number of shares constituting such series.
(b) Common Stock. All shares of Common Stock shall be
identical to each other in every respect. The shares of Common Stock shall
entitle the holders thereof to one vote for each share on all matters on which
holders of Common Stock have the right to vote. The holders of Common Stock
shall not be permitted to cumulate their votes for the election of directors.
Subject to the designations, powers, preferences and rights
with respect to each series of Preferred Stock having any priority over the
Common Stock, and the qualifications, limitations and restrictions thereof, the
holders of the Common Stock shall have and possess all rights pertaining to the
Capital Stock.
ARTICLE V
BOARD OF DIRECTORS
Except as otherwise provided by law, the business and affairs
of the Corporation shall be managed by or under the direction of the Board of
Directors of the Corporation. The number of directors who shall constitute the
Board of Directors of the Corporation and the manner of their election shall be
as from time to time fixed by, or in the manner provided in, the Bylaws of the
Corporation, and the Bylaws may provide qualifications for directors. The
directors need not be elected by written ballot unless required by the Bylaws of
the Corporation.
In addition to the powers and authority herein or by statute
expressly conferred upon them, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done by
the Corporation, subject nevertheless to the provisions of the DGCL, this
Certificate of Incorporation, and any Bylaws adopted by the stockholders;
PROVIDED, HOWEVER, that no Bylaws hereafter adopted by the stockholders shall
invalidate any prior act of directors which would have been valid if such Bylaws
had not been adopted.
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ARTICLE VI
INFORMAL ACTION BY STOCKHOLDERS
Any action required to be taken at a meeting of the
stockholders, or any other action which may be taken at a meeting of
stockholders, may be taken without a meeting if consent in writing, setting
forth the action so taken, shall be given by all of the stockholders entitled to
vote with respect to the subject matter.
ARTICLE VII
BYLAWS
The Board of Directors shall have the power to adopt, amend or
repeal the Bylaws of the Corporation. However, any bylaw so adopted or amended
by the Board of Directors may be repealed, and any bylaw so repealed by the
Board of Directors may be reinstated, by vote of the holders of a majority of
the shares of Capital Stock of the Corporation entitled to vote, in which case
the Board of Directors shall not thereafter take any action with respect to the
Bylaws which is inconsistent with the action so taken by the stockholders.
ARTICLE VIII
LIMITATION OF LIABILITY OF DIRECTORS
A director of the Corporation shall not be personally liable
to the Corporation or 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 expressly prohibited by the DGCL, as the same exists or
may hereafter be amended.
Any amendment, termination or repeal of this Article VIII or
any provision hereof shall not adversely affect or diminish in any way any right
or protection of a director of the Corporation existing with respect to any act
or omission occurring prior to the effectiveness of such amendment, termination
or repeal.
ARTICLE IX
INDEMNIFICATION
Section 1. ACTIONS, SUITS OR PROCEEDINGS OTHER THAN BY OR IN
THE RIGHT OF THE CORPORATION. To the fullest extent permitted by the DGCL, and
except as may be expressly prohibited by applicable law, the Corporation shall
indemnify any person who is or was or has agreed to become a director or officer
of the Corporation who was or is made a party to or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
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whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Corporation) by reason of the fact that he or she is
or was or has agreed to become a director or officer of the Corporation, or is
or was serving or has agreed to serve at the written request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, or by reason of any action alleged to
have been taken or omitted in such capacity, and the Corporation may (but shall
not be required to) indemnify any other person who is or was or has agreed to
become an employee or agent of the Corporation who was or is made a party to or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he or she is or was or has agreed to become an employee or agent of
the Corporation, or is or was serving or has agreed to serve at the written
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action alleged to have been taken or omitted in such capacity, against
costs, charges, expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her or on
his or her behalf in connection with such action, suit or proceeding and any
appeal therefrom, if he or she acted in good faith and in a manner he or she
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 or her 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 and in a manner that he or
she 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 or her conduct was unlawful.
Notwithstanding anything contained in this Article IX, the Corporation shall not
be obligated to indemnify any director, officer, employee or agent in connection
with an action, suit or proceeding, or part thereof, initiated by such person
against the Corporation unless such action, suit or proceeding, or part thereof,
was authorized or consented to by the Board of Directors.
Section 2. ACTIONS OR SUITS BY OR IN THE RIGHT OF THE
CORPORATION. To the fullest extent permitted by the DGCL, and except as may be
expressly prohibited by applicable law, the Corporation shall indemnify any
person who is or was or has agreed to become a director or officer of the
Corporation who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he or
she is or was or has agreed to become a director or officer of the Corporation,
or is or was serving or has agreed to serve at the written request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity, and the
Corporation may indemnify any other person who is or was or has agreed to become
an employee or agent of the Corporation who was or is made a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he or she is or was or has agreed to become an employee
or agent of the Corporation, or is or was serving or has agreed to serve at the
written request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, or
by reason of any action alleged to have been taken or omitted in such capacity,
against costs, charges and expenses (including
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attorneys' fees) actually and reasonably incurred by him or her or on his or her
behalf in connection with the defense or settlement of such action or suit and
any appeal therefrom, if he or she acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, except no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable to
the Corporation unless, and then only to the extent that, the Court of Chancery
of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of such liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such costs, charges and expenses that the
Court of Chancery or such other court shall deem proper. Notwithstanding
anything contained in this Article IX, the Corporation shall not be obligated to
indemnify any director, officer, employee or agent in connection with an action
or suit, or part thereof, initiated by such person against the Corporation
unless such action or suit, or part thereof, was authorized or consented to by
the Board of Directors.
Section 3. INDEMNIFICATION FOR COSTS, CHARGES AND EXPENSES OF
A SUCCESSFUL PARTY. Notwithstanding any other provision of the Certificate of
Incorporation, to the extent that a director, officer, employee or agent of the
Corporation has been successful, on the merits or otherwise (including, without
limitation, the dismissal of an action without prejudice), in defense of any
action, suit or proceeding referred to in Section 1 or 2 of this Article IX, or
in defense of any claim, issue or matter therein, such person shall be
indemnified against all costs, charges and expenses (including attorneys' fees)
actually and reasonably incurred by such person or on such person's behalf in
connection therewith.
Section 4. INDEMNIFICATION FOR EXPENSES OF A WITNESS. To the
extent that any person who is or was or has agreed to become a director or
officer of the Corporation is made a witness to any action, suit or proceeding
to which he or she is not a party by reason of the fact that he or she was, is
or has agreed to become a director or officer of the Corporation, or is or was
serving or has agreed to serve as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, at
the written request of the Corporation, such person shall be indemnified against
all costs, charges and expenses actually and reasonably incurred by such person
or on such person's behalf in connection therewith.
To the extent that any person who is or was or has agreed to
become an employee or agent of the Corporation is made a witness to any action,
suit or proceeding to which he or she is not a party by reason of the fact that
he or she was, is or has agreed to become an employee or agent of the
Corporation, or is or was serving or has agreed to serve as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, at the written request of the Corporation, such person may be
indemnified against all costs, charges and expenses actually and reasonably
incurred by such person or on such person's behalf in connection therewith.
Section 5. DETERMINATION OF RIGHT TO INDEMNIFICATION. Any
indemnification under Section 1 or 2 of this Article IX (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 under the circumstances because he or she has met the applicable
standard of conduct set forth in Section 1 or 2 of this Article IX. Any
indemnification under Section 4 of this Article IX (unless ordered by a court)
shall be made, if at all, by the Corporation only as
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authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper under the circumstances. Such
determination shall be made, with respect to a person who is a director or
officer at the time of such determination, (a) by a majority vote of directors
who were not parties to such action, suit or proceeding, even though less than a
quorum, or (b) by a committee of such directors designated by a majority vote of
such directors, even though less than a quorum, or (c) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (d) by the stockholders of the Corporation. To obtain
indemnification under this Article IX, any person referred to in Section 1, 2, 3
or 4 of this Article IX shall submit to the Corporation a written request,
including therewith such documents as are reasonably available to such person
and are reasonably necessary to determine whether and to what extent such person
is entitled to indemnification.
Section 6. ADVANCEMENT OF COSTS, CHARGES AND EXPENSES. Costs,
charges and expenses (including attorneys' fees) incurred by or on behalf of a
director or officer in defending a civil or criminal action, suit or proceeding
referred to in Section 1 or 2 of this Article IX shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding; PROVIDED, HOWEVER, that the payment of such costs, charges and
expenses incurred by or on behalf of a director or officer in advance of the
final disposition of such action, suit or proceeding shall be made only upon
receipt of a written undertaking by or on behalf of the director or officer to
repay all amounts so advanced to the extent that it shall ultimately be
determined that such director or officer is not entitled to be indemnified by
the Corporation as authorized in this Article IX or by law. No security shall be
required for such undertaking, and such undertaking shall be accepted without
reference to the recipient's financial ability to make repayment. The majority
of the directors who were not parties to such action, suit or proceeding may,
upon approval of such director or officer of the Corporation, authorize the
Corporation's counsel to represent such person, in any action, suit or
proceeding, whether or not the Corporation is a party to such action, suit or
proceeding.
Section 7. PROCEDURE FOR INDEMNIFICATION. Any indemnification
required or agreed to under Section 1, 2, 3 or 4 of this Article IX or
advancement of costs, charges and expenses under Section 6 of this Article IX
shall be made promptly, and in any event within sixty (60) days (except
indemnification to be determined by stockholders, which will be determined at
the next annual meeting of stockholders), upon the written request of the
director, officer, employee or agent. The right to indemnification or
advancement of expenses as granted by this Article IX shall be enforceable by
the director or officer in any court of competent jurisdiction, if the
Corporation denies such request, in whole or in part, or if no disposition of
such request is made within sixty (60) days of the request. Such person's costs,
charges and expenses incurred in connection with successfully establishing his
or her right to indemnification or advancement, to the extent successful, in any
such action shall also be indemnified by the Corporation. It shall be a defense
to any such action (other than an action brought to enforce a claim for the
advancement of costs, charges and expenses under Section 6 of this Article IX
where the required undertaking, if any, has been received by the Corporation)
that the claimant has not met the standard of conduct set forth in Section 1 or
2 of this Article IX, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel and 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 Section 1 or 2 of this Article IX,
nor the fact that there has
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been an actual determination by the Corporation (including its Board of
Directors, its independent legal counsel and its stockholders) that the claimant
has not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that the claimant has not met the applicable
standard of conduct.
Section 8. SETTLEMENT. The Corporation shall not be obligated
to reimburse the costs, charges and expenses of any settlement to which it has
not agreed. If in any action, suit or proceeding (including any appeal) within
the scope of Section 1 or 2 of this Article IX, the person to be indemnified
shall have unreasonably failed to enter into a settlement thereof offered or
assented to by the opposing party or parties in such action, suit or proceeding,
then, notwithstanding any other provision of this Article IX, the
indemnification obligation of the Corporation to such person in connection with
such action, suit or proceeding shall not exceed the total of the amount at
which settlement could have been made and the expenses incurred by or on behalf
of such person prior to the time such settlement could reasonably have been
effected.
Section 9. OTHER RIGHTS; CONTINUATION OF RIGHT TO
INDEMNIFICATION; INDIVIDUAL CONTRACTS. The indemnification and advancement of
costs, charges and expenses provided by or granted pursuant to this Article IX
shall not be deemed exclusive of any other rights to which those persons seeking
indemnification or advancement of costs, charges and expenses may be entitled
under law (common or statutory) or any bylaw, agreement, policy of
indemnification insurance or vote of stockholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action in
any other capacity while holding office, and 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 legatees, heirs, distributees, executors and administrators of
such person. Nothing contained in this Article IX shall be deemed to prohibit
the Corporation from entering into, and the Corporation is specifically
authorized to enter into, agreements with directors, officers, employees and
agents providing indemnification rights and procedures different from those set
forth herein. All rights to indemnification under this Article IX shall be
deemed to be a contract between the Corporation and each director, officer,
employee or agent of the Corporation who serves or served in such capacity (or
at the request of the Corporation, in the capacity of director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise) at any time while this Article IX is in effect.
Section 10. SAVINGS CLAUSE. If this Article IX or any portion
shall be invalidated on any ground by any court of competent jurisdiction, the
Corporation shall nevertheless indemnify each director or officer, and may (but
shall not be required to) indemnify each employee or agent, of the Corporation
as to any costs, charges, expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative (including an action by
or in the right of the Corporation), to the full extent permitted by any
applicable portion of this Article IX that shall not have been invalidated and
to the full extent permitted by applicable law.
Section 11. 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 of the Corporation or who 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
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any costs, charges or expenses, liability or loss incurred by such person in any
such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify such person against such costs,
charges or expenses, liability or loss under the Certificate of Incorporation or
applicable law; PROVIDED, HOWEVER, that such insurance is available on
acceptable terms as determined by a vote of a majority of the Board of
Directors. To the extent that any director, officer, employee or agent is
reimbursed by an insurance company under an indemnification insurance policy for
any costs, charges, expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement to the fullest extent permitted by any applicable
portion of this Article IX, the Bylaws, any agreement, the policy of
indemnification insurance or otherwise, the Corporation shall not be obligated
to reimburse the person to be indemnified in connection with such proceeding.
Section 12. DEFINITIONS. For purposes of this Article IX, the
following terms shall have the following meanings:
(a) "The Corporation" shall include any constituent
corporation (including any constituent of a constituent) absorbed by
way of an acquisition, consolidation, merger or otherwise, which, if
its separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees or agents so
that any person who is or was a director, officer, employee or agent of
such constituent corporation, or is or was serving at the request of
such constituent corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Article
IX with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate
existence had continued;
(b) "Other enterprises" shall include employee benefit plans,
including, but not limited to, any employee benefit plan of the
Corporation;
(c) "Director or officer" of the Corporation shall include any
partner or trustee who is or was or has agreed to serve at the request
of the Corporation as a partner or trustee of another corporation,
partnership, joint venture, trust or other enterprise;
(d) "Serving at the request of the Corporation" shall include
any service that imposes duties on, or involves services by, a
director, officer, employee or agent of the Corporation with respect to
an employee benefit plan, its participants or beneficiaries, including
acting as a fiduciary thereof;
(e) "Fines" shall include any penalties and any excise or
similar taxes assessed on a person with respect to an employee benefit
plan;
(f) A person shall be deemed to have acted in "good faith and
in a manner he or she 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 or her
conduct was unlawful," if his or her action is based on the records or
books of account of the Corporation or its direct or indirect
subsidiaries, or on information supplied to him or her by the officers
of the Corporation or its direct or indirect subsidiaries in the course
of his
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or her duties, or on the advice of legal counsel for the Corporation or
its direct or indirect subsidiaries or on information or records given
or reports made to the Corporation or its direct or indirect
subsidiaries by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the
Corporation or another enterprise; and
(g) A person shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" with respect to
employee benefit plans, as referred to in Sections 1 and 2 of this
Article IX if such person acted in good faith and in a manner he or she
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan.
Section 13. SUBSEQUENT AMENDMENT AND SUBSEQUENT LEGISLATION.
Neither the amendment, termination or repeal of this Article IX or of relevant
provisions of the DGCL or any other applicable laws, nor the adoption of any
provision of this Certificate of Incorporation or the Bylaws of the Corporation
or of any statute inconsistent with this Article IX shall eliminate, affect or
diminish in any way the rights of any director, officer, employee or agent of
the Corporation to indemnification under the provisions of this Article IX with
respect to any action, suit or proceeding arising out of, or relating to, any
actions, transactions or facts occurring prior to the effectiveness of such
amendment, termination or repeal.
ARTICLE X
AMENDMENTS
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.
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ARTICLE XI
NOTICES
The name and mailing address of the incorporator of this Corporation
is:
Xxxxxxx X. XxXxxxxxxx, Esq.
Xxxxxxx Xxxxxxxx & Wood
Two World Trade Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
By: /s/ Xxxxxxx X. XxXxxxxxxx
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Xxxxxxx X. XxXxxxxxxx
Incorporator
Dated: August 12, 1999
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