CERTIFICATE OF INCORPORATION
OF
COMTEX NEWS NETWORK, INC.
FIRST: The name of the Corporation is Comtex News
Network, Inc. (hereinafter referred to as the "Corporation").
SECOND: The address of the registered office of the
Corporation in the State of Delaware is 2711 Centerville Road,
Suite 400, in the City of Wilmington, County of New Castle. The
name of the registered agent at that address is the Corporation
Service Company.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which a corporation 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 thirty
million (30,000,000) consisting of:
1. Five million (5,000,000) shares of Preferred
Stock, par value one cent ($.01) per share (the "Preferred
Stock"); and
2. Twenty-five million (25,000,000) shares of Common
Stock, par value one cent ($.01) per share (the "Common
Stock").
B. The Board of Directors is authorized, subject to any
limitations prescribed by law, to provide for the issuance of the
shares of Preferred Stock in series, and by filing a certificate
pursuant to the applicable law of the State of Delaware (such
certificate being 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 any qualifications, limitations or
restrictions thereof. 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 any Preferred Stock Designation.
C. Except as otherwise provided by law, the presence, in
person or by proxy, of holders of a majority of the shares of
capital stock of the Corporation entitled to vote at the meeting
shall constitute a quorum at all meetings of the stockholders
(unless or except to the extent that the presence of a larger
number may be required by law), and every reference in this
Certificate of Incorporation to a majority or other proportion of
capital stock (or the holders thereof) for purposes of
determining any quorum requirement or any requirement for
stockholder consent or approval shall be deemed to refer to such
majority or other proportion of the votes (or the holders
thereof) then entitled to be cast in respect of such capital
stock.
FIFTH: The following provisions are inserted for the
management of the business and the conduct of the affairs of the
Corporation, and for further definition, limitation and
regulation of the powers of the Corporation and of its Directors
and stockholders:
A.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 this
Certificate of Incorporation or the Bylaws 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.
B.The Directors of the Corporation need not be
elected by written ballot unless the Bylaws so provide.
Stockholders shall not be permitted to cumulate their votes
for the election of Directors.
C.Subject to the rights of any class or series of
Preferred Stock of the Corporation, any action required or
permitted to be taken by the stockholders of the Corporation
must be effected at a duly called annual or special meeting
of stockholders of the Corporation and may not be effected
by any consent in writing by such stockholders.
D.Special meetings of stockholders of the
Corporation may be called (i) by the Board of Directors
pursuant to a resolution adopted by a majority of the total
number of authorized directorships (whether or not there
exist any vacancies in previously authorized directorships
at the time any such resolution is presented to the Board
for adoption) (the "Whole Board"), (ii) by the Chairman of
the Board, or (iii) as otherwise provided in the Bylaws.
SIXTH:
A. 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. The
Directors shall be divided into three classes, with the term of
office of the first class to expire at the first annual meeting
of stockholders, the term of office of the second class to expire
at the annual meeting of stockholders one year thereafter and the
term of office of the third class to expire at the annual meeting
of stockholders two years thereafter. At each annual meeting of
stockholders following such initial classification and election,
Directors elected to succeed those Directors whose terms expire
shall be elected for a term of office to expire at the third
succeeding annual meeting of stockholders after their election.
B. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, newly created directorships
resulting from any increase in the authorized number of Directors
or any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office or
other cause may be filled only by a majority vote of the
Directors then in office, though less than a quorum, and
Directors so chosen shall hold office for a term expiring at the
annual meeting of stockholders at which the term of office of the
class to which they have been chosen expires. No decrease in the
number of Directors constituting the Board of Directors shall
shorten the term of any incumbent Director.
C. 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 Bylaws
of the Corporation.
D. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, any Director, 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 80 percent 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.
SEVENTH: The Board of Directors is expressly empowered to
adopt, amend or repeal the Bylaws of the Corporation. Any
adoption, amendment or repeal of the Bylaws of the Corporation by
the Board of Directors shall require the approval of the majority
of the Whole Board. The stockholders shall also have power to
adopt, amend or repeal the Bylaws of the Corporation; provided,
however, that, in addition to any vote of the holders of any
class or series of stock of the Corporation required by law or by
this Certificate of Incorporation, the affirmative vote of the
holders of at least 80 percent 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 adopt, amend or
repeal any provisions of the Bylaws of the Corporation.
EIGHTH: The Board of Directors of the Corporation, when
evaluating any offer of another Person to (A) make a tender or
exchange offer for any equity security of the Corporation, (B)
merge or consolidate the Corporation with another corporation or
entity or (C) purchase or otherwise acquire all or substantially
all of the properties and assets of the Corporation, may, in
connection with the exercise of its judgment in determining what
is in the best interest of the Corporation and its stockholders,
give due consideration to all relevant factors, including,
without limitation, the social and economic effect of acceptance
of such offer on: the Corporation's present and future customers
and employees and those of its Subsidiaries; the communities in
which the Corporation and its Subsidiaries operate or are
located; and the ability of the Corporation to fulfill its
corporate objectives. A "Person" shall include an individual, a
group acting in concert, a corporation, a partnership, an
association, a joint venture, a pool, a joint stock company, a
trust, an unincorporated organization or similar company, a
syndicate or any other group formed for the purpose of acquiring,
holding or disposing of securities. "Subsidiary" means any
corporation of which a majority of any class of equity security
is owned, directly or indirectly, by the Corporation.
NINTH:
A. 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 an 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 or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit
plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a
Director, Officer, employee or agent or in any other capacity
while serving as a Director, Officer, employee or agent, shall be
indemnified and held harmless by the Corporation 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), 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 in connection therewith; provided,
however, that, except as provided in Section C hereof 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.
B. The right to indemnification conferred in Section A of
this Article NINTH shall include the right to be paid by the
Corporation the expenses incurred in defending any such
proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"); provided, however, that, if the
Delaware General Corporation Law requires, an advancement of
expenses incurred by an indemnitee in his or her capacity as a
Director of 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
(hereinafter 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 (hereinafter a "final
adjudication") 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 Sections A and B of this Article NINTH 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 Section A or B of 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 (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) it shall be a defense
that, and (ii) 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 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 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 Article NINTH or
otherwise shall be on the Corporation.
D. The rights to indemnification and to the advancement of
expenses conferred in this Article NINTH shall not be exclusive
of any other right which any person may have or hereafter acquire
under any statute, the Corporation's Certificate of
Incorporation, Bylaws, agreement, vote of stockholders or
disinterested Directors or otherwise.
E. The Corporation may 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 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.
F. 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 Article NINTH with respect to the
indemnification and advancement of expenses of Directors and
Officers of the Corporation.
TENTH: A Director of this 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 the foregoing paragraph 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.
ELEVENTH: The Corporation reserves the right to amend or
repeal any provision contained in this Certificate of
Incorporation in the manner prescribed by the laws of the State
of Delaware and all rights conferred upon stockholders are
granted subject to this reservation; provided, however, that,
notwithstanding any other provision of this Certificate of
Incorporation or any provision of law which 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 this Certificate of
Incorporation, the affirmative vote of the holders of at least 80
percent 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 this Article
ELEVENTH, Sections C or D of Article FIFTH, Article SIXTH,
Article SEVENTH or Article NINTH.
TWELFTH: The name and mailing address of the sole
incorporator are as follows:
Name Mailing Address
Marc P. Levy 5335 Wisconsin Avenue, N.W.
Suite 400
Washington, D.C. 20015
I, THE UNDERSIGNED, being the incorporator, for the purpose
of forming a corporation under the laws of the State of Delaware,
do make, file and record this Certificate of Incorporation, do
certify that the facts herein stated are true, and accordingly,
have hereto set my hand this 20th day of December, 2002.
/s/Marc P. Levy
Marc P. Levy
Incorporator