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EXHIBIT 4(a)
CERTIFICATE OF INCORPORATION
OF
ABLEST INC.
ARTICLE FIRST
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The name of the corporation is Ablest Inc.
ARTICLE SECOND
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The name and address of the corporation's registered office in the
State of Delaware is The Corporation Trust Company, Corporation Trust Center,
1209 Orange Street, New Castle County, Wilmington, Delaware.
ARTICLE THIRD
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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.
ARTICLE FOURTH
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The total number of shares which the corporation shall have authority
to issue shall be 8,000,000, divided into two classes, namely: 500,000 shares of
Preferred Stock, par value $.05 per share ("Preferred Stock"), and 7,500,000
shares of Common Stock, par value $.05 per share ("Common Stock").
The designation, relative rights, preferences and limitations of the
shares of each class and the authority of the Board of Directors of the
corporation to establish and to designate series of the Preferred Stock and to
fix the variations in the relative rights, preferences and limitations as
between such series, and the relative rights, preferences and limitations of
each such series, shall be as follows:
1. Preferred Stock.
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(a) The Board of Directors of the corporation is authorized, subject
to the limitations prescribed by law and the provisions of this Section 1 of
this Article FOURTH, to provide for the issuance of the Preferred Stock in
series, to establish or change the number of shares to be included in each such
series and to fix the designation, powers, rights, and preferences, and the
qualifications, restrictions or limitations, of the shares of each such series.
The authority of the Board of Directors of the corporation with respect to each
series shall include, but not be limited to, determination of the following:
(i) the number of shares constituting that series and the
distinctive designation of that series;
(ii) the dividend rate or rates on the shares of that series
and/or the method of determining such rate or rates, and whether dividends shall
be cumulative and, if so, from which date or dates;
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(iii) whether and to what extent the shares of that series
shall have voting rights in addition to the voting rights provided by law, which
might include the right to elect a specified number of directors in any case or
if dividends on such series are not paid for a specified period of time;
(iv) whether the shares of that series shall be convertible
into shares of stock of any other series or class, and, if so, the terms and
conditions of such conversion, including the price or prices or the rate or
rates of conversion and the terms of adjustment thereof;
(v) whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such redemption, including
the date or dates upon or after which they shall be redeemable and the amount
per share payable in case of redemption, which amount may vary under different
conditions and at different redemption dates;
(vi) the rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
corporation;
(vii) the obligation, if any, of the corporation to retire
shares of that series pursuant to a sinking fund; and
(viii) any other relative rights, preferences and limitations
of the Series.
(b) Subject to the designations, powers, rights, and preferences and
the limitations, qualifications and restrictions provided pursuant to Subsection
1(a) of this Article FOURTH, each share of Preferred Stock of a series shall be
of equal rank with each other share of Preferred Stock of such series.
(c) The number of authorized shares of Preferred Stock may be
increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the Common
Stock, without a vote of the holders of the Preferred Stock, or of any series
thereof, unless a vote of any such holders is required pursuant to the terms of
the Preferred Stock or any series thereof.
2. Common Stock.
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(a) DIVIDENDS. Subject to the express terms of the Preferred Stock
outstanding from time to time, such dividend or distribution as may be
determined by the Board of Directors of the corporation may from time to time be
declared and paid or made upon the Common Stock out of any source at the time
lawfully available for the payment of dividends.
(b) VOTING. Except as otherwise provided by law, each share of
Common Stock shall entitle the holder thereof to one vote in any matter which is
submitted to a vote of the holders of shares of Common Stock of the corporation.
(c) LIQUIDATION. The holders of Common Stock shall be entitled to
share ratably upon any liquidation, dissolution or winding up of the affairs of
the corporation (voluntary or involuntary) in all assets of the corporation, if
any, remaining after payment in full to the holders of Preferred Stock of the
preferential amounts, if any, to which they are entitled. Neither the
consolidation nor the merger of
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the corporation with or into any other corporation or corporations, nor a
reorganization of the corporation alone, nor the sale or transfer by the
corporation of all or any part of its assets, shall be deemed to be a
liquidation, dissolution or winding up of the corporation for the purposes of
this subparagraph (2)(c).
3. ISSUANCE OF CAPITAL STOCK. Shares of capital stock of the
corporation may be issued by the corporation from time to time in such amounts
and proportions and for such consideration (not less than the par value thereof
in the case of capital stock having par value) as may be fixed and determined
from time to time by the Board of Directors and as shall be permitted by law.
ARTICLE FIFTH
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The business and affairs of the corporation shall be managed by or
under the direction of the Board of Directors. In addition to the powers and
authority expressly conferred upon them by statute or by the certificate of
incorporation or the by-laws of the Corporation, 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 to the rights of the holders of any series of Preferred Stock
to elect additional directors under specified circumstances, the number of
directors shall be fixed from time to time exclusively by the board of directors
pursuant to a resolution adopted by a majority of the Whole Board. For purposes
of the certificate of incorporation of the corporation, the term "Whole Board"
shall mean the total number of authorized directors whether or not there exist
any vacancies in previously authorized directorships.
The directors, other than those who may be elected by the holders of
any series of Preferred Stock, or any other series or class of stock as set
forth in the certificate of incorporation of the corporation, shall be elected
annually by the holders of common stock, and each director shall hold office
until his or her successor shall have been duly elected and qualified.
Advance notice of stockholder nominations for the election of directors
and of business to be brought by stockholders before any meeting of the
stockholders of the corporation shall be given in the manner provided in the
by-laws of the corporation.
The name and mailing address of the incorporator is as follows:
Name Mailing Address
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William Appleton, Esq. Baker & Hostetler LLP
312 Walnut Street, Suite 2650
Cincinnati, Ohio 45202
ARTICLE SIXTH
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The corporation is to have perpetual existence.
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ARTICLE SEVENTH
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In furtherance and not in limitation of the power conferred by statute,
the Board of Directors of the corporation is expressly authorized to adopt,
amend or repeal the by-laws of the corporation. Any adoption, amendment or
repeal of the by-laws of the corporation by the board of directors shall require
the approval of a majority of the directors. The stockholders may adopt, amend
or repeal by-laws of the corporation only upon the affirmative vote of the
holders of not less than 66-2/3% of the total number of votes entitled to be
cast generally in the election of directors.
ARTICLE EIGHTH
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Any action required or permitted to be taken by the holders of any
class or series of stock of the corporation entitled to vote generally in the
election of directors may be taken only by vote at an annual or special meeting
at which such action may be taken and may not be taken by written consent.
ARTICLE NINTH
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1. DIRECTORS' LIABILITY. To the fullest extent permitted by the General
Corporation Law of the State of Delaware as the same exists or may hereafter be
amended, 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. Any repeal or modification of this Article NINTH by the
stockholders of the corporation shall not adversely affect any right or
protection of a director of the corporation existing at the time of such repeal
or modification.
2. RIGHT TO INDEMNIFICATION. Each person who was or is made a party or
is threatened to be made a party to or is otherwise involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she is or was a
director or officer of the corporation or is or was serving at the request of
the corporation as a director, officer, employee, member or agent of another
corporation (including a subsidiary of the corporation) or of a partnership,
limited liability company, joint venture, trust or other enterprise, including
service with respect to employee benefit plans (hereinafter an "indemnitee"),
whether the basis of such proceeding is alleged action in an official capacity
as such a director, officer, employee, trustee, member or agent or in any other
capacity while serving as such, shall be indemnified and held harmless by the
corporation to the fullest extent authorized by the General Corporation of the
State of Delaware, as the same 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), against all expense,
liability and loss (including, without limitation, attorneys' fees, judgments,
fines, ERISA excise taxes or penalties, and amounts paid in settlement)
reasonably incurred or suffered by such indemnitee in connection therewith, and
such indemnification shall continue as to an indemnitee who has ceased to be
such a director, officer, employee, trustee, member or agent and shall inure to
the benefit of the indemnitee's heirs, executors and administrators; provided,
however, that, except as provided in section 3 of this Article NINTH with
respect to proceedings to enforce rights to indemnification, the corporation
shall indemnify any such indemnitee in connection with a proceeding (or part
thereof) initiated by such indemnitee only if such proceeding (or part thereof)
was authorized by the Board of Directors of the corporation. The right to
indemnification conferred in this section 2 shall be a contract right and shall
include the right to be paid by the corporation the expenses incurred in
defending any such proceeding in advance of its final
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disposition (hereinafter an "advancement of expenses'); provided, however, that
if the General Corporation Law of the State of Delaware requires, an advancement
of expenses incurred by an indemnitee in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the corporation of an undertaking, by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal that such indemnitee is not entitled to be indemnified
for such expenses under this section or otherwise (hereinafter an
"undertaking").
3. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim for indemnification
pursuant to this Article NINTH is not paid in full by the corporation within
sixty days after a written claim has been received by the Corporation, except in
the case of a claim for an advancement of expenses, in which case the applicable
period shall be twenty days, the indemnitee may at any time thereafter bring
suit against the corporation to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit or in a suit brought by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall be entitled to be paid also the expense of
prosecuting or defending such suit. In any suit brought by the indemnitee to
enforce a right to indemnification hereunder (but not in a suit brought by the
indemnitee to enforce a right to an advancement of expenses), it shall be a
defense that the indemnitee has not met the applicable standard of conduct set
forth in the General Corporation Law of the State of Delaware. Similarly, in any
suit by the corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the corporation shall be entitled to recover such
expenses upon a final adjudication that the indemnitee has not met the
applicable standard of conduct set forth in the General Corporation Law of the
State of Delaware. Neither the failure of the corporation (including its Board
of Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification of the
indemnitee is proper in the circumstances because the indemnitee has met the
applicable standard of conduct set forth in the General Corporation Law of the
State of Delaware nor an actual determination by the corporation (including its
Board of Directors, independent legal counsel, or its stockholders) that the
indemnitee has not met such applicable standard of conduct shall create a
presumption that the indemnitee has not met the applicable standard of conduct
or, in the case of such suit brought by the indemnitee, be a defense to such
suit. In any suit brought by the indemnitee to enforce a right hereunder, or by
the corporation to recover an advancement of expenses pursuant to the terms of
an undertaking, the burden of proving that the indemnitee is not entitled to be
indemnified or entitled to such advancement of expenses under this Article NINTH
or otherwise shall be on the corporation.
4. NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and
advancement of expenses conferred in this Article NINTH shall not be exclusive
of any other right that any person may have or hereafter acquire under any
statute, certificate of incorporation, by-law, agreement, vote of stockholders
or disinterested directors, or otherwise.
5. INSURANCE. The corporation may purchase and maintain insurance, at
its expense, to protect itself and any director, officer, employee, trustee,
member or agent of the corporation or another corporation, partnership, limited
liability company, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not the corporation would have the power to
indemnify such person against such expense, liability or loss under the General
Corporation Law of the State of Delaware.
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6. INDEMNITY CONTRACTS. The corporation may enter into contracts from
time to time with such of its directors, officers, agents or employees and
providing for such indemnification, insurance, and advancement of expenses as
the Board of Directors determines to be appropriate.
ARTICLE TENTH
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The Board of Directors of the corporation, when evaluating any
offer of another party to make a tender or exchange offer for any equity
security of the corporation, to merge or consolidate the corporation with
another corporation or to purchase or otherwise acquire all or substantially all
of the assets of the corporation, shall, in connection with the exercise of its
judgment in determining what is in the best interests of the corporation and its
stockholders, give due consideration to the effect that such a transaction would
have on the integrity, character and quality of the corporation's operations,
all other relevant factors, including, without limitation, long-term as well as
short-term interests of the corporation and stockholders (including the
possibility that these interests may be best served by the continued
independence of the corporation), and the social, legal, and economic effects on
the employees, customers, suppliers, and creditors of the corporation and its
subsidiaries, on the communities and geographical areas in which the corporation
and its subsidiaries operate or are located, and on any of the businesses and
properties of the corporation or any of its subsidiaries, as well as such other
factors as the directors deem relevant.
ARTICLE ELEVENTH
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Subject to the rights of the holders of any series of
Preferred Stock then outstanding, any directors, or the entire board of
directors, may be removed from office at any time, but only for cause and only
by the affirmative vote of the holders of at least two-thirds of the voting
power of all of the then-outstanding shares of capital stock of the corporation
entitled to vote generally in the election of directors, voting together as a
single class.
ARTICLE TWELFTH
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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 herein and by the laws of the State of
Delaware, and all rights conferred upon stockholders herein are granted subject
to this reservation. Notwithstanding any other provision herein or any provision
of law that might otherwise permit a lesser vote or no vote, but in addition to
any vote of the holders of any class or series of the stock of the Corporation
required by law or by the Certificate of Incorporation, the affirmative vote of
the holders of at least two-thirds of the voting power of all of the
then-outstanding shares of the capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to amend or repeal Articles FIFTH, SEVENTH, EIGHTH, NINTH, TENTH,
ELEVENTH AND TWELFTH.
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The undersigned, being the incorporator above named for the purposes of
forming a corporation pursuant to the General Corporation Law of the State of
Delaware, has signed this instrument the 3rd day of February, 2000, and does
thereby acknowledge that it is his act and deed and that the facts stated
therein are true.
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William Appleton, Incorporator
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The undersigned, being the incorporator above named for the purposes of
forming a corporation pursuant to the General Corporation Law of the State of
Delaware, has signed this instrument the 3rd day of February, 2000, and does
thereby acknowledge that it is his act and deed and that the facts stated
therein are true.
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William Appleton, Incorporator
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