Attached files
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S-1/A - FORM S-1/A - Roadrunner Transportation Systems, Inc. | c55423a7sv1za.htm |
EX-5 - EX-5 - Roadrunner Transportation Systems, Inc. | c55423a7exv5.htm |
EX-1 - EX-1 - Roadrunner Transportation Systems, Inc. | c55423a7exv1.htm |
EX-3.2 - EX-3.2 - Roadrunner Transportation Systems, Inc. | c55423a7exv3w2.htm |
EX-23.1 - EX-23.1 - Roadrunner Transportation Systems, Inc. | c55423a7exv23w1.htm |
EX-10.17 - EX-10.17 - Roadrunner Transportation Systems, Inc. | c55423a7exv10w17.htm |
EX-10.14 - EX-10.14 - Roadrunner Transportation Systems, Inc. | c55423a7exv10w14.htm |
EX-10.15 - EX-10.15 - Roadrunner Transportation Systems, Inc. | c55423a7exv10w15.htm |
EX-10.16 - EX-10.16 - Roadrunner Transportation Systems, Inc. | c55423a7exv10w16.htm |
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ROADRUNNER TRANSPORTATION SYSTEMS, INC.
(Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware)
General Corporation Law of the State of Delaware)
The undersigned, acting in his capacity as President of Roadrunner Transportation Systems,
Inc., a corporation organized and existing under the General Corporation Law of the state of
Delaware (the Corporation), hereby certifies as follows:
1. The name of the Corporation is Roadrunner Transportation Systems, Inc. The Corporations
Certificate of Incorporation was originally filed with the Secretary of State of the state of
Delaware on February 22, 2005, under the name Dawes Holding Corporation. A Certificate of
Amendment to the Corporations Certificate of Incorporation was filed with the Secretary of State
of the state of Delaware on June 13, 2008, to change the name of the Corporation to Roadrunner
Transportation Services Holdings, Inc. A Certificate of Amendment to the Corporations Certificate
of Incorporation was filed with the Secretary of State of the state of Delaware on March 25, 2010,
to change the name of the Corporation to Roadrunner Transportation Systems, Inc.
2. The undersigned hereby certifies, attests, and serves notice that the text of the
Certificate of Incorporation is hereby amended and restated to read in its entirety as follows:
Article I
Name
The name of the Corporation is Roadrunner Transportation Systems, Inc. (the
Corporation).
Article II
Registered Office
The address of the registered office of the Corporation in the State of Delaware is 1209
Orange Street, City of Wilmington, County of New Castle, Delaware 19801. The name of the
Corporations registered agent at such address is The Corporation Trust Company.
Article III
Purposes
The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of Delaware (the
DGCL).
Article IV
Capital Stock
1. Authorized Stock. The Corporation shall have authority to issue a total of one
hundred twenty million five thousand (120,005,000) shares of capital stock, consisting of (i) one
hundred five
million (105,000,000) shares of common stock, $0.01 par value per share (Common
Stock), and (ii) fifteen million five thousand (15,005,000) shares of preferred stock, $0.01
par value per share (Preferred Stock), of which five thousand (5,000) shares are
designated as Series A Redeemable Preferred Stock (the Series A Preferred Stock).
2. Common Stock.
A. General. The voting, dividend, and liquidation rights of the holders of Common
Stock are subject to and qualified by the rights, powers, privileges, preferences, and priorities
of the holders of Preferred Stock.
B. Voting Rights. Each holder of record of Common Stock shall be entitled to one vote
for each share of Common Stock standing in such holders name on the books of the Corporation.
Except as otherwise required by law or this Article IV, the holders of Common Stock and the holders
of Preferred Stock shall vote together as a single class on all matters submitted to stockholders
for a vote.
C. Dividends. Subject to provisions of law and this Article IV, the holders of Common
Stock shall be entitled to receive dividends out of funds legally available therefor at such times
and in such amounts as the Board of Directors of the Corporation (the Board) may
determine in its sole discretion.
D. Liquidation. Subject to provisions of law and this Article IV, upon any
liquidation, dissolution, or winding up of the Corporation, whether voluntary or involuntary, after
the payment or provisions for payment of all debts and liabilities of the Corporation and all
preferential amounts to which the holders of the Preferred Stock are entitled with respect to the
distribution of assets in liquidation, the holders of Common Stock shall be entitled to share
ratably the remaining assets of the Corporation available for distribution.
3. Preferred Stock.
A. General.
1. Issuance of Preferred Stock in Classes or Series. The Preferred Stock of the
Corporation may be issued in one or more classes or series at such time or times and for such
consideration as the Board may determine. Each class or series shall be so designated as to
distinguish the shares thereof from the shares of all other classes and series. Except as to the
relative designations, preferences, powers, qualifications, rights, and privileges referred to in
this Article IV, in respect of any or all of which there may be variations between different
classes or series of Preferred Stock, all shares of Preferred Stock shall be identical. Different
series of Preferred Stock shall not be construed to constitute different classes of shares for the
purpose of voting by classes unless otherwise specifically set forth herein.
2. Authority to Establish Variations Between Classes or Series of Preferred Stock.
The Board is expressly authorized, subject to the limitations prescribed by law and the provisions
of this Certificate of Incorporation, without stockholder action, to provide, by adopting a
resolution or resolutions, for the issuance of the undesignated Preferred Stock in one or more
classes or series, each with such designations, preferences, voting powers, qualifications, special
or relative rights and privileges as shall be stated in this Certificate of Incorporation or
Certificate of Amendment to the Certificate of Incorporation, which shall be filed in accordance
with the DGCL, and the resolutions of the Board creating such class or series. The authority of
the Board with respect to each such class or series shall include, without limitation of the
foregoing, the right to determine and fix:
(a) the distinctive designation of such class or series and the number of shares to constitute
such class or series;
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(b) the rate at which dividends on the shares of such class or series shall be declared and
paid, or set aside for payment, whether dividends at the rate so determined shall be cumulative or
accruing, and whether the shares of such class or series shall be entitled to any participating or
other dividends in addition to dividends at the rate so determined, and if so, on what terms;
(c) the right or obligation, if any, of the Corporation to redeem shares of the particular
class or series of Preferred Stock and, if redeemable, the price, terms, and manner of such
redemption;
(d) the special and relative rights and preferences, if any, and the amount or amounts per
share, which the shares of such class or series of Preferred Stock shall be entitled to receive
upon any voluntary or involuntary liquidation, dissolution, or winding up of the Corporation;
(e) the terms and conditions, if any, upon which shares of such class or series shall be
convertible into, or exchangeable for, shares of capital stock of any other class or series,
including the price or prices or the rate or rates of conversion or exchange and the terms of
adjustment, if any;
(f) the obligation, if any, of the Corporation to retire, redeem, or purchase shares of such
class or series pursuant to a sinking fund or fund of a similar nature or otherwise, and the terms
and conditions of such obligation;
(g) voting rights, if any, including special voting rights with respect to the election of
directors and matters adversely affecting any class or series of Preferred Stock;
(h) limitations, if any, on the issuance of additional shares of such class or series or any
shares of any other class or series of Preferred Stock; and
(i) such other preferences, powers, qualifications, special or relative rights and privileges
thereof as the Board, acting in accordance with this Certificate of Incorporation, may deem
advisable and are not inconsistent with law and the provisions of this Certificate of
Incorporation.
4. Series A Preferred Stock.
A. Designation. All shares of Series A Preferred Stock shall be designated Series A
Redeemable Preferred Stock and shall rank equally with respect to dividend payments and
liquidation preferences and be identical in all respects.
B. Dividends. Subject to provisions of law and to all limitations on payment in the
Corporations financing documents, the holders of record of shares of the Series A Preferred Stock
shall be entitled to receive cash dividends, out of assets which are legally available for the
payment of such dividends, at an annual rate equal to $40.00 per share of Series A Preferred Stock
(which amount shall be subject to equitable adjustment whenever there shall occur a stock dividend,
stock split, combination, reorganization, recapitalization, reclassification, or other similar
event involving the Series A Preferred Stock) (the Series A Dividend). Series A
Dividends shall be paid in cash or by wire transfer on April 30 in each year to holders of Series A
Preferred Stock as of April 15 of such year. If any Series A Dividends are not paid when due, the
annual Series A Dividend rate shall be increased to $60.00 per share of Series A Preferred Stock
until all delinquent dividends are paid in full. Series A Dividends shall be cumulative, without
compounding, and shall accrue daily on each share of Series A Preferred Stock from the date of
issue thereof. Series A Dividends payable on the Series A Preferred Stock for any period less than
a full year shall be computed on the basis of the actual number of days elapsed and a 365-day year.
No dividends (either those payable solely in the shares of capital stock of the Corporation or
cash) shall be paid with respect to any of the Corporations capital stock, including on any other
class or series of Preferred Stock or on Common Stock until all delinquent Series A Dividends, if
any, have been paid in full. No dividends shall be paid or declared, and no other distribution
shall be made, on or with respect to
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the Common Stock of the Corporation as long as there are shares of Series A Preferred Stock
issued and outstanding. Accruals of dividends shall not bear interest.
C. Liquidation, Dissolution, or Winding Up.
1. Treatment at Sale, Liquidation, Dissolution, or Winding Up. In the event of any
Sale Transaction (defined below), liquidation, dissolution, or winding up of the Corporation,
whether voluntary or involuntary, before any distribution or payment is made to any holders of any
shares of Common Stock or any other class or series of capital stock of the Corporation, the
holders of shares of Series A Preferred Stock shall be entitled to be paid first out of the assets
of the Corporation available for distribution to holders of the Corporations capital stock whether
such assets are capital, surplus, or earnings, an amount equal to $1,000.00 per share of Series A
Preferred Stock (which amount shall be subject to equitable adjustment whenever there shall occur a
stock dividend, stock split, combination, reorganization, recapitalization, reclassification, or
other similar event involving the Series A Preferred Stock) plus any dividends accrued but unpaid
on such shares (such amount, as so determined, is referred to herein as the Series A
Liquidation Value with respect to such shares).
2. Insufficient Funds. If upon such Sale Transaction (as defined below) liquidation,
dissolution, or winding up the assets or surplus funds of the Corporation to be distributed to the
holders of shares of Series A Preferred Stock shall be insufficient to permit payment to such
respective holders of the full Series A Liquidation Value payable with respect to the Series A
Preferred Stock, then the assets available for payment or distribution to such holders shall be
allocated among the holders of the Series A Preferred Stock, pro rata, in proportion to the full
respective preferential amounts to which the holders of Series A Preferred Stock are each entitled.
3. Certain Transactions Treated as Liquidation. For purposes of this Section 4.C.,
(A) any sale of the Corporation by means of the sale or transfer of the outstanding shares of
capital stock of the Corporation or a merger or other form of corporate reorganization or
consolidation with or into another entity in which outstanding shares of capital stock of the
Corporation, including shares of Preferred Stock, are exchanged for securities or other
consideration issued, or caused to be issued, by the other entity or its subsidiary and, as a
result of which transaction, the stockholders of the Corporation immediately prior to such
transaction own 50% or less of the voting power of the Corporation (in the case of a sale of shares
of capital stock) or the surviving entity (in the case of a merger, corporate reorganization, or
consolidation) immediately after such transaction, or (B) a sale, transfer, or lease (other than a
pledge or grant of a security interest to a bona fide lender) of all or substantially all of the
assets of the Corporation (other than to or by a wholly-owned subsidiary or parent of the
Corporation), shall be treated as a liquidation, dissolution, or winding up of the Corporation and
shall entitle the holders of Preferred Stock to receive the amount that would be received in a
liquidation, dissolution, or winding up pursuant to this Section 4.C (each of the transactions in
(A) and (B) above, a Sale Transaction). The Corporation will provide the holders of
Preferred Stock with notice of all transactions which may be treated as a Sale Transaction twenty
(20) days prior to the earlier of the vote relating to such transaction or the closing of such
transaction.
4. Valuation of Consideration. For purposes of this Section 4.C., if the
consideration received by the Corporation in a Sale Transaction is other than cash, its value will
be deemed its fair market value as determined in good faith by the Board of Directors. Any
securities shall be valued as follows:
(i) If traded on a securities exchange, the value shall be deemed to be the volume-weighted
average of the closing prices of the securities on such exchange over the thirty-day period ending
three days prior to the closing of a Sale Transaction;
(ii) If actively traded over the counter, the value shall be deemed to be the volume weighted
average of the closing bid or sale prices (whichever is applicable) over the thirty-day period
ending three days prior to the closing of a Sale Transaction; and
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(iii) If there is no active public market, the value shall be the fair market value thereof,
as determined in good faith by the Board of Directors.
5. Distributions of Property. Whenever the distribution provided for in this Section
4.C. shall be payable in property other than cash, the value of such distribution shall be the fair
market value of such property as determined in good faith by the Corporations Board of Directors.
D. Voting Power. Except as otherwise expressly provided in Section 4.I. hereof or as
otherwise required by law, the holders of shares of Series A Preferred Stock shall not be entitled
to vote on any matters required or permitted to be submitted to the stockholders of the Corporation
for their approval.
E. Optional Redemption.
1. General. At any time and from time to time the Corporation may, at the option of
its Board of Directors, with funds legally available for such purpose under Delaware law, redeem
the whole or any part of the outstanding shares of Series A Preferred Stock at a redemption price
of $1,000.00 per share (which amount shall be subject to equitable adjustment whenever there shall
occur a stock dividend, stock split, combination, reorganization, recapitalization,
reclassification, or other similar event involving the Series A Preferred Stock) plus an amount
equal to all accrued but unpaid dividends thereon to and including the redemption date.
2. Pro Rata Redemption. If less than all shares of Series A Preferred Stock are
redeemed at any time under this Section 4.E., shares of Series A Preferred Stock held by each
holder of record thereof shall be called for redemption pro rata, according to the number of shares
of Series A Preferred Stock held by such holder, subject, however, to such adjustment as may be
equitably determined by the Corporation in order to avoid the redemption of fractional shares.
3. Redemption Procedures. Any redemption of any or all of the outstanding shares of
Series A Preferred Stock pursuant to this Section 4.E. shall be effected in accordance with the
provisions of this Section 4.E.3.
(a) Any such redemption shall be effected by written notice given by certified or registered
mail, postage prepaid, not less than thirty (30) days nor more than fifty (50) days prior to the
date fixed for redemption to the holders of record of Series A Preferred Stock. Each such notice
of redemption shall specify the date fixed for redemption, the redemption price, and place of
payment thereof, and if less than all outstanding shares of Series A Preferred Stock are to be
redeemed, the number of shares of Series A Preferred Stock held by each holder of record thereof
that are being called for redemption.
(b) On the date fixed for the redemption of any shares of Series A Preferred Stock, the
Corporation shall, and at any time not more than five (5) days prior to such date may, deposit the
aggregate amount of the redemption price of the shares called for redemption, with a bank, trust
company or transfer agent, designated in the notice of such redemption, having a combined capital
and surplus aggregating at least one hundred million dollars ($100,000,000) and formed under the
laws of the United States or any state thereof, in trust for payment to the holders of the shares
of Series A Preferred Stock being called for redemption, and deliver irrevocable written
instructions authorizing such bank or trust company to apply such deposit solely to the redemption
of the shares of Series A Preferred Stock called for redemption.
(c) Notice of redemption having been duly given, the redemption price of the shares being
called for redemption having been deposited as aforesaid, then on the date for such redemption, the
certificates for the Series A Preferred Stock called for redemption (whether or not surrendered)
shall be deemed no longer outstanding for any purpose, and all rights with respect to such shares
shall thereupon cease and terminate, except the right of the holders of such shares to receive, out
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of such deposit in trust, on the redemption date, the redemption price to which they are
entitled, without interest.
(d) In case any certificate for shares of Series A Preferred Stock shall be surrendered by the
holder thereof for payment in connection with the redemption of only a portion of the shares
represented thereby, the Corporation shall deliver to or upon the order of the holder thereof a
certificate or certificates for the number of shares of Series A Preferred Stock represented by
such surrendered certificate that are not being redeemed.
(e) In case any holder of Series A Preferred Stock called for redemption shall not, within
ninety (90) days after deposit by the corporation of funds for the redemption thereof, claim the
amount deposited for redemption thereof, the bank, trust company, or transfer agent with which such
funds were deposited shall, upon demand, pay over to the Corporation the balance of such amount so
deposited and such bank, trust company, or transfer agent shall thereupon be relieved of all
responsibility to such holder, who shall thereafter look solely to the Corporation for payment of
the redemption price of its shares.
4. No Reissue. Shares of Series A Preferred Stock that have been redeemed, purchased,
or otherwise acquired by the Corporation shall be cancelled and may not be reissued.
F. Mandatory Redemption.
1. General. On November 30, 2012 (the Series A Redemption Date),
the Corporation shall redeem all (but not less than all) of the outstanding shares of Series A
Preferred Stock. The redemption price for each share of Preferred Stock redeemed pursuant to this
Section 4.F.1. shall initially be $1,000.00 per share in cash plus all accrued but unpaid
dividends on such shares up to and including the date fixed for redemption (the Series A
Redemption Price). The Series Redemption Price shall be subject to equitable adjustment
whenever there shall occur a stock split, stock dividend, combination, recapitalization,
reclassification, or other similar event involving a change in the Series A Preferred Stock. The
Series A Redemption Price shall be payable in cash or by wire transfer on the Series A Redemption
Date.
2. Insufficient Funds for Redemption.
(a) If the funds of the Corporation legally available for redemption of the Series A Preferred
Stock on the Series A Redemption Date are insufficient to redeem all of the outstanding shares of
Series A Preferred Stock, the holders of shares of Series A Preferred Stock shall share ratably in
any funds legally available for redemption of such shares according to the respective amounts which
would be payable with respect to the number of shares owned by them if the shares to be so redeemed
on such Series A Redemption Date were redeemed in full. The shares of Series A Preferred Stock not
redeemed shall remain outstanding and entitled to all rights and preferences provided herein.
(b) At any time thereafter when additional funds of the Corporation are legally available for
the redemption of such shares of Series A Preferred Stock, such funds will be used, as soon as
practicable but no later than the end of the next succeeding fiscal quarter, to redeem the balance
of such shares, or such portion thereof for which funds are then legally available, on the basis
set forth above.
3. Redemption Proportionate. Each redemption of Series A Preferred Stock pursuant to
this Section 4.F. shall be made so that the number of shares of Series A Preferred Stock to be
redeemed from each registered owner shall be on a pro rata basis according to the respective
liquidation preferences of shares of Series A Preferred Stock which each such holder of Series A
Preferred Stock owns of record as of the applicable Series A Redemption Date.
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4. Redemption Notice. At least 15 days prior to the Series A Redemption Date, written
notice (hereinafter referred to as the Series A Redemption Notice) shall be mailed, first
class or certified mail, postage prepaid, by the Corporation to each holder of record of Series A
Preferred Stock, at its address shown on the records of the Corporation; provided,
however, that the Corporations failure to give such Series A Redemption Notice as to any
holder shall not affect its obligation to redeem the Series A Preferred Stock as provided in this
Section 4.F. hereof as to such holder. The Series A Redemption Notice shall contain the following
information:
(a) the number of shares of Series A Preferred Stock held by the holder which are to be
redeemed by the Corporation;
(b) the Series A Redemption Date and the Series A Redemption Price; and
(c) that the holder is to surrender to the Corporation, at the place designated therein, its
certificate or certificates representing the Series A Preferred Stock to be redeemed.
5. Surrender of Certificates. Each holder of Series A Preferred Stock shall surrender
the certificate(s) representing such shares to the Corporation at the place designated in the
Series A Redemption Notice, and thereupon the Series A Redemption Price for such shares as set
forth in this Section 4.F. shall be paid to the order of the person whose name appears on such
certificate(s) and each surrendered certificate shall be canceled and retired. In the event some
but not all of the Series A Preferred Stock represented by a certificate(s) surrendered by a holder
are being redeemed, the Corporation shall execute and deliver to or on the order of the holder, at
the expense of the Corporation, a new certificate representing the number of shares of Series A
Preferred Stock which were not redeemed.
6. Dividends after Redemption. From and after payment in full of the Series A
Redemption Price, no shares of Series A Preferred Stock subject to redemption shall be entitled to
any further dividends pursuant to Section 4.B. hereof; provided, however, that in
all events such redemption is consummated.
G. Registration of Transfer. The Corporation will keep at its principal office a
register for the registration of shares of Series A Preferred Stock. Upon the surrender of any
certificate representing shares of Series A Preferred Stock at such place, the Corporation will, at
the request of the record holders of such certificate, execute and deliver (at the Corporations
expense) a new certificate or certificates in exchange therefor representing the aggregate number
of shares of Series A Preferred Stock represented by the surrendered certificate. Each such new
certificate will be registered in such name and will represent such number of shares of Series A
Preferred Stock as is required by the holder of the surrendered certificate and will be
substantially identical in form to the surrendered certificate.
H. Replacement. Upon receipt of evidence reasonably satisfactory to the Corporation
(an affidavit of the registered holder will be satisfactory) of the ownership and the loss, theft,
destruction, or mutilation of any certificate evidencing shares of Series A Preferred Stock, and in
the case of any such loss, theft, or destruction, upon receipt of an unsecured indemnity from the
holder reasonably satisfactory to the Corporation or, in the case of such mutilation upon surrender
of such certificate, the Corporation will (at its expense) execute and deliver in lieu of such
certificate a new certificate of like kind representing the number of shares of Series A Preferred
Stock represented by such lost, stolen, destroyed, or mutilated certificate and dated the date of
such lost, stolen, destroyed, or mutilated certificate.
I. Restrictions and Limitations on Amendments to Charter. The Corporation shall not
amend this Certificate of Incorporation without the approval by vote or written consent of the
holders of at least 50% of the then outstanding shares of Series A Preferred Stock, if such
amendment would:
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1. amend any of the rights, preferences, privileges of, or limitations provided for herein for
the benefit of any shares of Series A Preferred Stock;
2. authorize or issue, or obligate the Corporation to authorize or issue, (A) additional
shares of Series A Preferred Stock or (B) shares of Preferred Stock senior to (or on parity with)
the Series A Preferred Stock with respect to liquidation preferences, dividend rights, or
redemption rights; or
3. amend any provisions of this Section 4.I.
J. Notices. Except as otherwise expressly provided, all notices referred to herein
will be in writing and will be delivered by registered or certified mail, return receipt requested,
postage prepaid and will be deemed to have been given when so mailed (a) to the Corporation, at its
principal executive offices and (b) to any holder of Series A Preferred Stock, at such holders
address as it appears in the stock records of the Corporation (unless otherwise indicated in
writing by any such holder).
Article V
Bylaws
In furtherance and not in limitation of the powers conferred by statute and except as provided
herein, the Board shall have the power to adopt, amend, repeal or otherwise alter the bylaws of the
Corporation (the Bylaws) without any action on the part of the stockholders;
provided, however, that any Bylaws made by the Board and any and all powers
conferred by any of said Bylaws may be amended, altered, or repealed by the stockholders. The
Bylaws may only be amended or repealed by the stockholders at an annual or special meeting of the
stockholders the notice for which designates that an amendment or repeal of one or more of such
sections is to be considered and then only by an affirmative vote of the stockholders holding 66
2/3% of the shares entitled to vote upon such amendment or repeal, voting as a single voting group.
Article VI
Indemnification of Directors
1. Limitation of Liability. No current or former director of the Corporation shall be
personally liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except, to the extent provided by applicable law, for liability (i)
for breach of the directors duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) pursuant to Section 174 of the DGCL or (iv) for any transaction from which the director
derived an improper personal benefit. If the DGCL is hereafter amended to authorize corporate
action further limiting or eliminating the personal liability of directors, then the liability of
each current or former director of the Corporation shall be limited or eliminated to the fullest
extent permitted by the DGCL as so amended from time to time. Neither any amendment nor repeal of
this Article VI, nor the adoption of any provision of this Certificate of Incorporation
inconsistent with this Article VI, shall eliminate or reduce the effect of this Article VI in
respect of any matter occurring, or any cause of action, suit or claim that, but for this Article
VI, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent
provision.
2. Indemnification. The Corporation shall, in accordance with this Certificate of
Incorporation and the Bylaws, indemnify and hold harmless, to the fullest extent permitted by
applicable law as it presently exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to provide broader
indemnification rights than such law permitted the Corporation to provide prior to such amendment),
any person who was or is made or is threatened to be made a party or is otherwise involved in any
action, suit, or proceeding, whether civil, criminal, administrative, or investigative (a
proceeding), by reason of the fact that he or she or a person for whom he or she is the
legal representative, is or was a director of the Corporation or is or was
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serving at the request of the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including
service with respect to employee benefits plans (an indemnitee), against all expense, liability,
and loss (including attorneys fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid in settlement) reasonably incurred or suffered by such indemnitee. The Corporation shall be
required to indemnify an indemnitee in connection with a proceeding (or part thereof) initiated by
such indemnitee only if the initiation of such proceeding (or part thereof) by the indemnitee was
authorized by the Board. Each person who was, is or becomes a director shall be deemed to have
served or to have continued to serve in such capacity in reliance upon the indemnity provided for
in this Article VI. All rights to indemnification (and the advancement of expenses) under this
Article VI shall be deemed to be provided by a contract between the Corporation and the person who
serves or has served as a director of the Corporation. Such rights shall be deemed to have vested
at the time such person becomes or became a director of the Corporation, and such rights shall
continue as to an indemnitee who has ceased to be a director and shall inure to the benefit of the
indemnitees heirs, executors, and administrators. Any repeal or modification of the foregoing
provisions of this Article VI shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such repeal or
modification.
3. A director or any officer of the Corporation shall not be personally liable to the
Corporation or its stockholders for the breach of any duty owed to the Corporation or its
stockholders except to the extent that an exemption from personal liability is not permitted by the
DGCL.
Article VII
Meetings and Keeping of Books
Meetings of stockholders may be held within or without the State of Delaware as the Bylaws may
provide. The books of the Corporation may be kept at such place within or without the State of
Delaware as the Bylaws may provide or as may be designated from time to time by the Board.
Article VIII
Directors
1. Number, Term, and Classes of Directors. The current Board consists of eight (8)
members. The exact number of directors shall be fixed from time to time by resolution of the
Board. The Board shall be divided into three classes designated Class I, Class II, and Class III.
The number of directors elected to each class shall be as nearly equal in number as possible.
Directors shall be assigned to each class in accordance with a resolution or resolutions adopted by
the Board. Each Class I director shall be elected to an initial term to expire at the 2011 annual
meeting of stockholders, each Class II director shall be elected to an initial term to expire at
the 2012 annual meeting of stockholders; and each Class III director shall be elected to an initial
term to expire at the 2013 annual meeting of stockholders. Upon the expiration of the initial
terms of office for each class of directors, the directors of each class shall be elected for a
term of three years to serve until their successors are duly elected and qualified or until their
earlier resignation, death, or removal from office. No decrease in the number of directors
constituting the Board shall shorten the term of any incumbent director. Unless and except to the
extent that the Bylaws shall so require, the election of directors of the Corporation need not be
by written ballot.
2. Director Vacancies. Any director may resign at any time upon written notice to the
Corporation. At a special meeting of stockholders called expressly for that purpose, the entire
Board, or any member or members thereof, may be removed, but only for cause by vote for removal of
a specific director by stockholders holding at least 66 2/3% of the shares then entitled to vote at
an election for directors of the Corporation, voting as a single voting group. The notice of such
special meeting must state that the purpose, or one of the purposes, of the meeting is removal of
the director or directors, as the case may be. Any newly created directorship or any vacancy
occurring in the Board for any cause may be filled by a majority of the remaining members of the
Board, although such majority is less than a
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quorum, or by the sole remaining director, and each director so elected shall hold office
until the expiration of the term of office of the director whom he has replaced or until his or her
successor is elected and qualified.
Article IX
Special Meetings of Stockholders
A special meeting of stockholders (a Special Meeting) for any purpose or purposes
may be called at any time only by (i) the Chairman of the Board, or (ii) the Board to be held at
such place, date and time as shall be designated in the notice or waiver of notice thereof. Only
business within the purposes described in the Corporations notice of meeting required by the
Bylaws may be conducted at the Special Meeting. The ability of the stockholders to call a Special
Meeting is specifically denied. No action shall be taken by the stockholders except at an annual
or Special Meeting called in accordance with this Certificate of Incorporation and the Bylaws, and
no action shall be taken by the stockholders by written consent without a meeting.
Article X
Special Stockholder Notice Provisions
1. Nominations for Directorship Positions. Any stockholder or stockholders of the
Corporation who wish to nominate a person or persons for election to the Board must deliver written
notice to the Secretary of the Corporation in accordance with the provisions set forth in the
Bylaws.
2. Business at Stockholders Meetings. Any stockholder or stockholders of the
Corporation who wish to place business before a meeting of the stockholders, other than nominations
for election to the Board, must deliver written notice to the Secretary of the Corporation in
accordance with the provisions set forth in the Bylaws.
Article XI
Special Stockholder Voting Requirements
Articles IX, X, XI and XII of this Certificate of Incorporation may only be amended or
repealed by an affirmative vote of at least 80% of the outstanding shares of all capital stock
entitled to vote upon such amendment or repeal, voting as a single voting group, unless such
amendment or repeal is declared advisable by the Board by the affirmative vote of at least
seventy-five percent (75%) of the entire Board, notwithstanding the fact that a lesser percentage
may be specified by the DGCL.
Article XII
Amendment
Except as expressly provided herein, the Corporation reserves the right to amend or repeal any
provision contained in this Certificate of Incorporation, or any amendment thereto, in the manner
now or hereafter provided by statute, and any and all rights conferred upon the stockholders herein
is subject to this reservation.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation has been signed by
the President of the Corporation this 7th day of May, 2010, and affirm that the statements made
herein are true under the penalties of perjury.
/s/ Mark A. DiBlasi | ||||
Mark A. DiBlasi, President | ||||
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