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Exhibit 3.5
CERTIFICATE OF INCORPORATION
OF
USC MAY VERPACKUNGEN HOLDING INC.
Article 1. NAME. The name of the corporation (hereinafter called the
"Corporation") is USC May Verpackungen Holding Inc.
Article 2. ADDRESS. The address of the Corporation's 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 its registered agent at
such address is The Corporation Trust Company.
Article 3. PURPOSES. The nature of the business or purposes to be conducted
or promoted by the Corporation is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of
Delaware.
Article 4. CAPITAL STOCK.
Section 4.01. NUMBER OF SHARES. The total number of shares of stock which
the Corporation shall have authority to issue is 1,000 shares of common stock,
par value $.01 per share ("Common Stock").
Section 4.02. VOTING RIGHTS. All shares of Common Stock shall have the
right to vote on all matters presented for stockholder action and shall have one
vote for each share of Common Stock.
Section 4.03. LIQUIDATION. All shares of Common Stock shall share equally
in the event of any liquidation, dissolution or winding up of the affairs of the
Corporation.
Article 5. PERPETUAL EXISTENCE. The Corporation is to have perpetual
existence.
Article 6. BOARD OF DIRECTORS.
Section 6.01. NUMBER OF DIRECTORS. The number of directors of the
Corporation shall be fixed, and may be increased or decreased from time to time,
in such a manner as may be prescribed by the By-laws.
Section 6.02. REMOVAL; VACANCIES. Any director, or the entire Board of
Directors, may be removed from office at any time, with or without cause, by the
affirmative
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vote of the holders of a majority of all of the then outstanding shares of
Common Stock. Vacancies resulting from death, resignation, retirement,
disqualification, removal from office or other cause, and newly created
directorships resulting from any increase in the authorized number of directors,
may be filled by a majority of the remaining directors, though less then a
quorum of the Board of Directors, and directors so chosen shall, subject to the
preceding sentence, hold office for a term expiring at the next annual meeting
of stockholders and until their successors have been duly elected and qualified.
No decrease in the number of authorized directors shall shorten the term of any
incumbent director.
Article 7. ELIMINATION OF CERTAIN 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 for liability (i) for any breach of the director's 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) under
Section 174 of the General Corporation Law of the State of Delaware, or (iv) for
any transaction from which the director derived any improper personal benefit.
Any amendment or repeal of this Article 7 shall not adversely affect any right
or protection existing hereunder in respect of any act or omission occurring
prior to such amendment or repeal.
Article 8. INDEMNIFICATION.
Section 8.01. RIGHT TO INDEMNIFICATION. To the full extent permitted by
Delaware law from time to time in effect, and subject to the provisions of
Section 8.02 of this Article 8, the Corporation (i) shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (whether or not by or in the right of the
Corporation) by reason of the fact that such person is or was a director or
officer of the Corporation, or is or was serving at the request of the
Corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, and (ii) may, in the sole discretion of the
Board of Directors, indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (whether or
not by or in the right of the Corporation) by reason of the fact that such
person is or was an employee or agent of the Corporation, or is or was serving
at the request of the Corporation as an employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person 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 such person's 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 such person
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did not act in good faith and in a manner which such person 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 such person's conduct was unlawful.
Section 8.02. DETERMINATION OF STANDARD OF CONDUCT. Any indemnification
under Section 8.01 of this Article 8 (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 such person has met the applicable standard of conduct
set forth in said Section 8.01. Such determination shall be made (1) by the
Board of Directors by a majority vote of the directors who were not parties to
such action, suit or proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by a majority vote of such directors,
even though less than a quorum, or (3) if there are no such directors, or if
such directors so direct, by independent legal counsel (compensated by the
Corporation) in a written opinion, or (4) by the stockholders.
Section 8.03. EXPENSES. To the extent that a director or officer of the
Corporation (or of another corporation, partnership, joint venture, trust or
other enterprise, in which capacity such person is serving at the request of the
Corporation) has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 8.01 of this Article 8, or
with respect to any claim, issue or matter therein (to the extent that a portion
of such person's expenses can be reasonably allocated thereto), such person
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
Section 8.04. ADVANCEMENT OF EXPENSES. Expenses (including attorney's fees)
incurred by a director or officer of the Corporation (or of another corporation,
partnership, joint venture, trust or other enterprise, in which capacity such
person is serving at the request of the Corporation) in defending a civil,
criminal, administrative or investigative action, suit or proceeding referred to
in Section 8.01 of this Article 8, or threat thereof, shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the Corporation as authorized in
this Article 8. Such expenses (including attorney's fees) incurred by an
employee or agent of the Corporation (or of another corporation, partnership,
joint venture, trust or other enterprise, in which capacity such person is
serving at the request of the Corporation) may be so paid upon the receipt of
such an undertaking and such other terms and conditions as the Board of
Directors deems appropriate.
Section 8.05. NON-EXCLUSIVITY OF RIGHTS. The indemnification and
advancement of expenses provided by this Article 8 shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be
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entitled under any statute, certificate of incorporation, by-law, agreement,
vote of stockholders or disinterested directors, or otherwise, both as to action
in such person's official capacity and as to action in another capacity while
holding such 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
heirs, executors and administrators of such a person.
Section 8.06. INSURANCE. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against any liability asserted against
such person and incurred by such person in any such capacity, or arising out of
such person's status as such, whether or not the Corporation would have the
power to indemnify such person against such liability under the provisions of
this Article 8 or of Section 145 of the General Corporation Law of the State of
Delaware.
Section 8.07. EMPLOYEE BENEFIT PLANS. For purposes of this Article 8,
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the request
of the Corporation" shall include any service as a director, officer, employee
or agent of the Corporation which imposes duties on, or involves services by,
such director, officer, employee or agent with respect to an employee benefit
plan, its participants or beneficiaries. A person who acted in good faith and in
a manner he or she reasonably believed to be in the best interests of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Corporation" as
referred to in this Article 8.
Article 9. LOCATION OF STOCKHOLDERS MEETINGS. Meetings of stockholders may
be held within or without the State of Delaware, as the By-laws of the
Corporation may provide. The books of the Corporation may be kept (subject to
any provision contained in the statutes) outside the State of Delaware at such
place or places as may be designated from time to time by the Board of Directors
or in the By-laws of the Corporation.
Article 10. CHANGES TO CERTIFICATE. The Corporation reserves the right at
any time and from time to time to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, and any other provisions
authorized by the laws of the State of Delaware at the time in effect may be
added or inserted, in the manner now or hereafter prescribed herein or by
applicable law.
Article 11. CHANGES TO BY-LAWS. The Board of Directors, in furtherance and
not in limitation of the powers conferred by the laws of the State of Delaware
and by this Certificate of Incorporation, is expressly authorized to make, amend
or repeal the By-laws of the Corporation.
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Article 12. INCORPORATOR. The name and address of the incorporator of the
Corporation are, Karen S. Smith, c/o Mayer, Brown & Platt, 190 South LaSalle
Street, Chicago, Illinois 60603.
I, THE UNDERSIGNED, being the 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 of Incorporation, hereby declaring
and certifying that this is my act and deed and the facts stated herein are
true, and accordingly, have hereunto set my hand this __ day of December, 1999.
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Karen S. Smith, Incorporator
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