State of Delaware
Office of the Secretary of State
I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "SCHUFF INTERNATIONAL, INC.", FILED IN THIS OFFICE ON THE
TWENTY-NINTH DAY OF JUNE, A.D. 2001, AT 8:30 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[SEAL OF THE DELAWARE /s/HARRIET SMITH WINDSOR
SECRETARY'S OFFICE] ------------------------
Harriet Smith Windsor,
3399749 8100 Secretary of State
CERTIFICATE OF INCORPORATION
SCHUFF INTERNATIONAL, INC.
The name of the Corporation is SCHUFF INTERNATIONAL, INC.
The address of the Corporation's registered office in the State of Delaware
is 1209 Orange Street, in the City of Wilmington, County of New Castle. The name
of its registered agent at such address is Corporation Trust Company.
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 Corporation shall have perpetual existence.
The total number of shares of stock which the Corporation shall have
authority to issue is Twenty-One Million (21,000,000), consisting of One Million
(1,000,000) shares of Preferred Stock, par value $0.001 per share (hereinafter
referred to as "Preferred Stock"), and Twenty Million (20,000,000) shares of
Common Stock, par value $0.001 per share (hereinafter referred to as "Common
The Preferred Stock may be issued from time to time in one or more series.
The Board of Directors is hereby authorized to provide for the issuance of
shares of Preferred Stock in series and, by filing a certificate pursuant to the
applicable law of the State of Delaware (hereinafter referred to as a "Preferred
Stock Designation"), to establish from time to time the number of shares to be
included in each such series, and to fix the designation, powers, preferences
and rights of the shares of each such series and the qualifications, limitations
and restrictions thereof. The authority of the Board of Directors with respect
to each series shall include, but not be limited to, determination of the
A. The designation of the series, which may be by distinguishing
number, letter or title.
B. The number of shares of the series, which number the Board of
Directors may thereafter (except where otherwise provided in the Preferred
Stock Designation) increase or decrease (but not below the number of shares
thereof then outstanding).
C. The amounts payable on, and the preferences, if any, of shares of
the series in respect of dividends, and whether such dividends, if any,
shall be cumulative or noncumulative.
D. Dates at which dividends, if any, shall be payable.
E. The redemption rights and price or prices, if any, for shares of
F. The terms and amount of any sinking fund provided for the purchase
or redemption of shares of the series.
G. The amounts payable on, and the preferences, if any, of shares of
the series in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation.
H. Whether the shares of the series shall be convertible into or
exchangeable for shares of any other class or series, or any other
security, of the Corporation or any other corporation, and, if so, the
specification of such other class or series of such other security, the
conversion or exchange price or prices or rate or rates, any adjustments
thereof, the date or dates at which such shares shall be convertible or
exchangeable and all other terms and conditions upon which such conversion
or exchange may be made.
I. Restrictions on the issuance of shares of the same series or of any
other class or series.
J. The voting rights, if any, of the holders of shares of the series.
The Common Stock shall be subject to the express terms of the Preferred
Stock and any series thereof. Except as may be provided in this Certificate of
Incorporation or in a Preferred Stock Designation, the holders of shares of
Common Stock shall be entitled to one vote for each such share upon all
questions presented to the stockholders. Except as may be provided in this
Certificate of Incorporation or in a Preferred Stock Designation, the Common
Stock shall have the exclusive right to vote for the election of directors and
for all other purposes, and holders of Preferred Stock shall not be entitled to
receive notice of any meeting of stockholders at which they are not entitled to
The Corporation shall be entitled to treat the person in whose name any
share of its stock is registered as the owner thereof for all purposes and shall
not be bound to recognize any
equitable or other claim to, or interest in, such share on the part of any other
person, whether or not the Corporation shall have notice thereof, except as
expressly provided by applicable law.
Except as otherwise provided in this Certificate of Incorporation, the
Board of Directors of the Corporation shall have the power to make, alter or
repeal the Bylaws of the Corporation. With respect to the power of the
stockholders of the Corporation to make, alter or repeal the Bylaws of the
Corporation, notwithstanding anything contained in this Certificate of
Incorporation or any provision of law that might otherwise require a lessor
vote, the Bylaws may not be made, altered or repealed by the stockholders, and
no provision inconsistent therewith shall be adopted by the stockholders,
without the affirmative vote of the holders of at least seventy-five percent
(75%) of the voting power of all of the shares of the Corporation entitled to
vote generally in the election of directors, voting together as a single class.
Election of members to the Board of Directors need not be by written ballot
unless the Bylaws of the Corporation shall so provide.
Meetings of the stockholders of the Corporation may be held within or
without the State of Delaware, as the Bylaws may provide. The books of the
Corporation may be kept (subject to any provision contained in the Delaware
General Corporation Law) 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
Bylaws of the Corporation.
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 Delaware General Corporation
Law; or (iv) for any transaction from which the director derived an improper
personal benefit. If the Delaware General Corporation Law is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended. Any repeal or modification of this
provision shall not adversely affect any right or protection of a director of
the Corporation existing at the time of such repeal or modification. The
limitation of liability provided herein shall continue after a director has
ceased to occupy such position as to acts or omissions occurring during such
director's term of terms of office.
A. The Corporation shall to the fullest extent authorized by the Delaware
General Corporation Law, 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), indemnify and
hold harmless any person who was or is a party, or is threatened to be made a
party to or is otherwise involved in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative 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, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (hereinafter an "Indemnitee") against
expenses, liabilities and losses (including attorneys' fees, judgments, fines,
excise taxes or penalties paid in connection with the Employee Retirement Income
Security Act of 1974, as amended, and amounts paid in settlement) reasonably
incurred or suffered by such Indemnitee in connection therewith; provided,
however, that except as provided in this section 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 this Corporation.
B. The right to indemnification conferred in this section shall include the
right to be paid by the Corporation the expenses (including attorneys' fees)
incurred in defending any such proceeding in advance of its final disposition;
provided, however, that, if the Delaware General Corporation Law requires, an
advancement of expenses incurred by an Indemnitee in his 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 not
further right to appeal that such Indemnitee is not entitled to be indemnified
for such expenses under this section or otherwise. The rights to indemnification
and to the advancement of expenses conferred in this section shall be contract
rights and such rights shall continue as to an Indemnitee who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
Indemnitee's heirs, executors and administrators.
C. If a claim under the two preceding paragraphs of this section is not
paid in full by the Corporation within sixty (60) 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
(20) 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 (i) 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) and (ii) in any suit brought 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
adjudication that the Indemnitee has not met any applicable standard for
indemnification set forth in the Delaware General Corporation Law. 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 Delaware General Corporation Law, 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 a suit
brought by the Indemnitee, be a defense to such suit. In any suit brought by the
Indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or brought 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 to such advancement of expenses
under this section or otherwise, shall be on the Corporation.
D. The rights to indemnification and advancement of expenses conferred in
this section shall not be exclusive of any other rights which any person may
have or hereafter acquire under any statute, this Corporation's Certificate of
Incorporation, as it may be amended or restated from time-to-time, any
agreement, vote of stockholders or disinterested directors, or otherwise. No
amendment or repeal of this Article Nine shall apply to or have any effect on
any right to indemnification provided hereunder with respect to any acts or
omissions occurring prior to such amendment or repeal.
E. The Corporation shall have the power to purchase and maintain insurance,
at its expense, to protect itself and any director, officer, employee or agent
of the Corporation or another corporation, partnership, joint venture, trust or
other enterprise (including an employee benefit plan) 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 Delaware
General Corporation Law. The Corporation may also create a trust fund, grant a
security interest and/or use other means (including, but not limited to, letters
of credit, surety bonds and/or similar arrangements), as well as enter into
contracts providing indemnification to the full extent authorized or permitted
by law and including as part thereof provisions with respect to any or all of
the foregoing, to ensure the payment of such amounts as may become necessary to
effect indemnification as provided therein, or elsewhere.
F. For purposes of this section, references to the "Corporation" shall
include any subsidiary of this Corporation from and after the acquisition
thereof by this Corporation, so that any person who is a director, officer,
employee or agent of such subsidiary after the acquisition thereof by this
Corporation shall stand in the same position under the provisions of this
section as such person would have had had such person served in such position
for this Corporation.
G. The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification and to the advancement of
expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this section with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
The name and mailing address of the incorporator is Michael R. Hill, 1841
West Buchanan Street, Phoenix, Arizona 85009.
The number of directors constituting the initial Board of Directors of the
Corporation is six (6). The size of the Board of Directors may be increased or
decreased in the manner provided in the Bylaws of the Corporation. All corporate
powers of the Corporation shall be exercised by or under the direction of the
Board of Directors except as otherwise provided herein or by law. The name and
address of the persons who are to serve as directors until the first annual
meeting of stockholders or until their successors are elected and qualified are:
Scott A. Schuff 1841 West Buchanan Street
Phoenix, Arizona 85009
David A. Schuff 1841 West Buchanan Street
Phoenix, Arizona 85009
Edward M. Carson 1841 West Buchanan Street
Phoenix, Arizona 85009
Dennis DeConcini 1841 West Buchanan Street
Phoenix, Arizona 85009
H. Wilson Sundt 1841 West Buchanan Street
Phoenix, Arizona 85009
Michael R. Hill 1841 West Buchanan Street
Phoenix, Arizona 85009
A director may only be removed by the stockholders for cause at a special
meeting of stockholders duly called for such purpose and only by the affirmative
vote of at least two-thirds (2/3) of the stock of this Corporation issued and
outstanding and entitled to vote thereon, notwithstanding that a lesser
percentage may be specified by law. As used herein, "cause" for the removal of a
director shall be deemed to exist (i) if there has been a finding by not less
than a majority of the disinterested directors not subject to the action that
cause exists and such disinterested directors have recommended removal to the
stockholders, or (ii) as otherwise provided by law. A director may not be
removed from office prior to the expiration of his term except as provided
Special meetings of the stockholders of the Corporation, for any lawful
purpose or purposes, may be called only by the Chairman of the Board or the
President, and shall be called by the Chairman of the Board or the President at
the written request, or by resolution adopted by the affirmative vote of a
majority of the Board of Directors. Such request shall state the purpose or
purposes of the proposed meeting. Stockholders of the Corporation shall not be
entitled to request a special meeting of the stockholders.
Subject to any conditions imposed by law, the Corporation expressly denies
the application of the Arizona Corporate Takeover Laws, Arizona Revised Statutes
Sections 10-2701 et seq., or any successor thereto.
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 the Delaware General Corporation Law.
I, THE UNDERSIGNED, for the purposes of forming a Corporation under the
laws of the State of Delaware, do make, file and record this Certificate, and do
certify that the facts herein stated are true.
DATED this 28th day of June, 2001.
/s/ Michael R. Hill
Michael R. Hill, Incorporator