Exhibit 3.1
FILED DEC 23, 1987
CERTIFICATE OF INCORPORATION
OF
CERBCO, Inc.
FIRST. The name of the corporation is CERBCO, Inc.
SECOND. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street in the City of Wilmington, County
of New Castle; the name of the registered agent at such address is The
Corporation Trust Company.
THIRD. 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
Delaware.
FOURTH. (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 3,000,000, consisting of 2,500,000
shares of common stock, par value $.10 per share (the "Common" stock), and
500,000 shares of Class B stock, par value $.10 per share (the "Class B" stock).
(b) No holder of shares of the Corporation of any class now or
hereafter authorized shall have any preferential or pre-emptive right to
subscribe for, purchase or receive any shares of the Corporation of any class
now or hereafter authorized, or any options or warrants for such shares, which
may at any time be issued, sold or offered for sale by the Corporation.
(c) Except as set forth in this Article FOURTH, the Common shares and
Class B shares shall be identical in all respects and shall have equal rights
and privileges.
A. Dividends and Distributions.
(1) Subject to paragraph (2) of this paragraph A, whenever a dividend (in cash
or property) is paid to holders of Class B shares, the Corporation shall also
pay to holders of Common shares a dividend at least equal in amount per share.
The Corporation may pay dividends to holders of Common shares in excess of
dividends paid, or without paying dividends, to holders of Class B shares.
(2) If at any time a distribution is to be paid in Common shares or Class B
shares (a "share distribution"), such share distribution may be declared and
paid only as follows:
(i) So long as no Common shares are outstanding, Common shares may be
paid to holders of Class B shares; and
(ii) In all other cases, Common shares may be paid only to holders of
Common shares and Class B shares may be paid only to holders of Class B shares.
Whenever a share distribution is paid, the same number of shares shall be paid
in respect of each outstanding Common share or Class B share. The Corporation
shall not combine or subdivide shares of either of such classes without at the
same time making a proportionate combination or subdivision of shares of the
other of such classes.
B. Voting. The holders of Class B shares shall have exclusive voting
power except as follows:
(1) With respect to the election of directors, effective with the Annual
Stockholders Meeting in 1989, the holders of Common shares voting as a separate
class shall be entitled to elect that number of directors which constitutes
twenty-five percent of the authorized number of members of the Board of
Directors and, if such twenty-five percent is not a whole number, then the
holders of Common shares shall be entitled to elect the nearest higher whole
number of directors that is at least twenty-five percent of such membership.
Holders of Class B shares voting as a separate class shall be entitled to elect
the remaining directors.
(2) The holders of Common shares shall be entitled to vote as a separate class
on the removal of any director elected by the holders of common shares, and the
holders of Class B shares shall be entitled to vote as a separate class on the
removal of any director elected by the holders of Class B shares.
(3) The holders of the Common shares and the holders of the Class B shares shall
be entitled to vote as separate classes on such other matters as may be required
by law or this Certificate of Incorporation to be submitted to such holders
voting as separate classes.
(4) The holders of Common shares and Class B shares shall in all matters not
specified in paragraph (1), (2) or (3) of this paragraph B vote together as a
single class; provided, however, that the holders of Common shares shall have
one (1) vote for each share and the holders of Class B shares shall have ten
(10) votes for each share.
(5) Any vacancy in the office of a director elected by the holders of the Common
shares may be filled by a vote of such holders voting as a separate class, and
any vacancy in the office of a director elected by the holders of the Class B
shares may be filled by a vote of such holders voting as a separate class, and,
in the absence of a stockholder vote, in the case of a vacancy in the office of
a director elected by either class, such vacancy may be filled by the remaining
directors as provided in the By-Laws. Any director elected by the Board of
Directors to fill a vacancy shall serve the same remaining term as that of his
predecessor and until his or her successor has been chosen and has qualified. If
permitted by the By-Laws, the Board of Directors may increase the number of
directors, and any vacancies so created may be filled by the Board of Directors;
provided that, so long as the holders of Common shares have the rights provided
in paragraphs B(l) and B(5) of this Article FOURTH in respect of the next
succeeding annual meeting of stockholders, the Board of Directors may be so
enlarged by the Board of Directors only to the extent that at least twenty-five
percent of the enlarged Board consists of directors elected by the holders of
the Common shares or by persons appointed to fill vacancies created by the
death, resignation or removal of persons elected by the holders of the Common
shares.
(6) The holders of Common shares will not have the right to elect directors set
forth in paragraphs B(1) and B(5) of this Article FOURTH if, on the record date
for any stockholder meeting at which directors are to be elected, the number of
issued and outstanding Common shares is less than ten percent of the aggregate
number of issued and outstanding Common shares and Class B shares. In such case,
all directors to be elected at such meeting shall be elected by holders of
Common shares and Class B shares voting together as a single class; provided,
however, that with respect to said election the holders of Common shares shall
have one (1) vote for each share, and the holders of Class B shares shall have
ten (10) votes for each share.
(7) Notwithstanding anything in this paragraph B to the contrary, the holders of
Common shares shall have exclusive voting power on all matters at any time when
no Class B shares are issued and outstanding.
C. Conversion.
(1) Each holder of record of Class B shares may at any time or from time to
time, in such holder's sole discretion and at such holder's option, convert any
whole number or all of such non-assessable Common shares at the rate of one
Common share for each Class B share surrendered for conversion. Any such
conversion may be effected by any holder of Class B shares surrendering such
holder's certificate or certificates for the Class B shares to be converted,
duly endorsed, at the office of the Corporation or any transfer agent for the
Class B shares, together with a written notice to the Corporation at such office
that such holder elects to convert all or a specified number of Class B shares
and stating the name or names in which such holder desires the certificate or
certificates for such Common shares to be issued. Promptly thereafter, the
Corporation shall issue and deliver to such holder or such holder's nominee or
nominees, a certificate or certificates for the number of Common shares to which
such holder shall be entitled as aforesaid. Such conversion shall be deemed to
have been made at the close of business on the date of each surrender, and the
person or persons entitled to receive the Common shares issuable on such
conversion shall be treated for all purposes as the record holder or holders of
such Common shares on that date.
(2) No fraction of a Common share shall be issued on conversion of any Class B
share but, in lieu thereof, the Corporation shall pay in cash therefor the pro
rata fair market value of any such fraction. Such fair market value on the date
of such conversion shall be: (i) if the trading prices for the Common Stock are
reported on the consolidated transaction reporting system (the "consolidated
system") operated by the Consolidated Tape Association, the average of the high
and low prices at which the Common Stock is reported in the consolidated system
to have been traded; (ii) if the principal market for the Common shares is an
exchange and if the trading prices for the Common shares are not reported in the
consolidated system, the average of the high and low prices at which the Common
shares are reported to have traded on such exchange; (iii) if the principal
market for the Common shares is otherwise than on an exchange and bids and
offers for such security are reported in the automated quotation system operated
by the National Association of Securities Dealers, Inc. ("NASDAQ"), the mean
between the highest current independent bid price and the lowest current
independent asked price, reported on "level 2" of NASDAQ; (iv) if the principal
market for the Common shares is otherwise than on an exchange and bids and
offers for the Common shares are not reported in NASDAQ, the mean between the
highest current independent bid price and the lowest current independent asked
price, determined on the basis of reasonable inquiry; or (v) if there is no
market for the Common shares, such price as the Board in its discretion, acting
in good faith, shall determine. If there is a market for the Common shares and
if, on the pertinent date, no transactions or bid and asked prices, as the case
may be, are reported for the Common shares under the relevant clause above, the
fair market value of the Common shares shall be determined on the next day on
which transactions or bid and asked prices, as the case may be, are reported for
the Common Stock under such clause.
(3) The Corporation shall at all times reserve and keep available out of the
authorized and unissued Common shares, solely for the purpose of effecting the
conversion of the outstanding Class B shares, such number of Common shares as
shall from time to time be sufficient to effect the conversion of all
outstanding Class B shares, and if, at any time, the number of authorized and
unissued Common shares shall not be sufficient to effect conversion of the then
outstanding Class B shares, the Corporation shall take such corporate action as
may be necessary to increase the number of authorized and unissued Common shares
to such number as shall be sufficient for such purposes.
FIFTH. The name and mailing address of the sole incorporator is as follows:
Name Mailing Address
George Wm Erikson c/o CERBERONICS, Inc.
5600 Columbia Pike
Bailey's Crossroads, VA 22041
SIXTH. The Corporation is to have perpetual existence.
SEVENTH. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter, or
repeal the By-Laws of the Corporation.
EIGHTH. Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
NINTH. No Director shall be personally liable to the Corporation or any
stockholder for monetary damages for breach of fiduciary duty as a director,
except for any matter in respect of which such director shall be liable under
Section 174 of Title 8 of the Delaware Code (relating to the Delaware General
Corporation Law) or any amendment thereto or successor provision thereto or
shall be liable by reason that, in addition to any and all other requirements
for such liability, he (i) shall have breached his duty of loyalty to the
Corporation or its stockholders, (ii) shall not have acted in good faith or, in
failing to act, shall not have acted in good faith, (iii) shall have acted in a
manner involving intentional misconduct or a knowing violation of law or, in
failing to act, shall have acted in a manner involving intentional misconduct or
a knowing violation of law or, (iv) shall have derived an improper personal
benefit. Neither the amendment nor repeal of this Article NINTH, nor the
adoption of any provision of the Certificate of Incorporation inconsistent with
this Article NINTH, shall eliminate or reduce the effect of this Article NINTH
in respect of any matter occurring, or any cause of action, suit or claim that
but for this Article NINTH would accrue or arise, prior to such amendment,
repeal or adoption of an inconsistent provision.
TENTH. 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.
I, the undersigned, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, hereby declaring and certifying
that this is my act and deed and that the facts herein stated are true, and
accordingly have herewith set my hand this 22nd day of December 1987.
GEORGE Wm. ERIKSON
COMMONWEALTH OF VIRGINIA )
)
) SS
)
COUNTY OF FAIRFAX )
BE IT KNOWN that on this 22nd day of December 1987, personally came before me, a
Notary Public in and for the County and Commonwealth aforesaid, George Wm.
Erikson, and he duly executed said Certificate of Incorporation before me and
acknowledged the said Certificate to be his act and deed and that the facts
stated therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the day and
year aforesaid.
CYNTHIA A. LEENERTS
Notary Public
My commission expires on 27 June 1988.
<PAGE>
CERTIFICATE OF CORRECTION FILED TO CORRECT
A CERTAIN ERROR IN THE CERTIFICATE OF INCORPORATION
OF CERBCO, INC.
FILED IN THE OFFICE OF THE SECRETARY OF STATE
OF DELAWARE ON DECEMBER 23, 1987.
CERBCO,Inc., a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware, does hereby certify:
1. The name of the corporation is CERBCO, Inc. (the "Corporation").2. That a
Certificate of Incorporation (the "Certificate") was filed in the office of the
Secretary of State of Delaware on December 23, 1987 and that said Certificate
requires correction as permitted by Section 103(f) of the General Corporation
Law of the State of Delaware.
3. The inaccuracy of said Certificate to be corrected is that Article FOURTH (a)
erroneously provides that the total number of shares of all classes of stock
which the Corporation shall have authority to issue is 3,000,000, consisting of
2,500,000 shares of common stock, par value $.10 per share, and 500,000 shares
of Class B stock, par value $.10 per share, but should provide that the total
number of shares of all classes of stock which the Corporation shall have
authority to issue is 4,200,000, consisting of 3,500,000 shares of common stock,
par value $.10 per share, and 700,000 shares of Class B stock, par value $.10
per share.
4. Article FOURTH (a) of the Certificate is corrected to read as follows:
FOURTH. (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 4,200,000, consisting of 3,500,000
shares of common stock, par value $.10 per share (the "Common" stock), and
700,000 shares of Class B stock, par value $.10 per share the ("Class B" stock).
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be signed by
Robert W. Erikson, its President, and attested by George Wm. Erikson, its
Secretary, this 17th day of September, 1990.
CERBCO, Inc.
By: Robert W. Erikson
President
ATTEST:
By: George Wm. Erikson
Secretary
COMMONWEALTH OF VIRGINIA )
)
) SS.
)
COUNTY OF FAIRFAX )
BE IT KNOWN that on this 17th day of September, 1990, personally came before me,
a Notary Public in and for the County and Commonwealth aforesaid, Robert W.
Erikson, the President of CERBCO, Inc., and he duly executed said Certificate of
Correction before me and acknowledged the said Certificate of Correction to be
the act and deed of CERBCO, Inc. and that the facts stated therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the day and
year aforesaid.
Sharon E. Lavelle
Notary Public/Commonwealth of Virginia
County of Fairfax
My Commission expires 30 November 1993.
