Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
CHEAP TICKETS, INC.
I. Name
The name of the Corporation is Cheap Tickets, Inc. (hereinafter sometimes
referred to as the "Company").
II. Registered Office and Agent
The address of its registered office of the Corporation in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, 19801, County of New
Castle. The name of its registered agent at such address is The Corporation
Trust Company.
III. Purpose
The nature of the business of the Corporation and the objects or purposes
to be transacted, promoted or carried on by it are as follows: To engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
IV. Shares
The total number of shares of all classes of capital stock which the
corporation shall have authority to issue is 10,000,000 shares, of which
5,000,000 shares shall be shares of Preferred Stock with a par value of $1.00
per share, of which 425,000 shares shall be designated 8% Redeemable Preferred
Stock, and 5,000,000 shares shall be shares of Common Stock with a par value of
$0.01 per share.
A. Preferred Stock. Any of the shares of Preferred Stock authorized by
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this Certificate of Incorporation may be issued from time to time in one or more
series. Subject to the limitations and restrictions in this Article IV set
forth and the Certificate of Designation filed with the Secretary of State of
Delaware, the Board of Directors by resolution or resolutions, is authorized to
create or provide for any such series, and to fix the designations, preferences
and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, including, without
limitation, the authority to fix or alter the dividend rights, dividend rates,
conversion rights, exchange rights, voting rights, rights and terms of
redemption (including sinking and purchase fund provisions), the redemption
price or prices, the dissolution preferences and the rights in respect to any
distribution of assets of any wholly unissued series of Preferred Stock and the
number of shares constituting any such series, and the designation thereof, or
any of them and to increase or decrease the number of shares of any series so
created, subsequent to the issue of that series but not below the number of
shares of such series then outstanding. In case the number of shares of any
series shall be so decreased, the shares
constituting such decrease shall resume the status which they had prior to the
adoption of the resolution originally fixing the number of shares of such
series.
There shall be no limitation or restriction on any variation between any of
the different series of Preferred Stock as to the designations, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof; and the several series of
Preferred Stock may, except as hereinafter otherwise expressly provided, vary in
any and all respects as fixed and determined by the Board of Directors,
providing for the issuance of the various series; provided, however, that all
shares of any one series of Preferred Stock shall have the same designation,
preferences and relative, participating, optional or other special rights and
qualifications, limitations and restrictions.
Except as otherwise required by law, or as otherwise fixed by resolution or
resolutions of the Board of Directors with respect to one or more series of
Preferred Stock, the entire voting power and all voting rights shall be vested
exclusively in the Common Stock, and each stockholder of the Corporation who at
the time possesses voting power for any purpose shall be entitled to one vote
for each share of such stock standing in his name on the books of the
Corporation. The Corporation shall exercise its power to issue Preferred Stock
with the view of avoiding the issuance of fractional shares. No stockholder
shall have the right to split the whole shares into fractions.
B. Common Stock.
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The Corporation shall have the power from time to time to issue two or
more classes of stock with the preferences, voting powers, restrictions and
qualifications thereof fixed in the resolutions authorizing the issue thereof.
The Board of Directors shall have the authority to divide any or all of the
classes into a series and fix and determine the relative rights, preferences,
voting powers, restrictions and qualifications of the shares of any series
established. The corporation shall exercise its power to issue stock with the
view of avoiding the issuance of fractional shares. No stockholder shall have
the right to split whole shares into fractions or to split fractions.
A stockholder shall have pre-emptive right to purchase his, her or its
pro rata portion of any additional shares of stock of a class he, she or it
owns, whether then or thereafter authorized. Set forth below is a statement of
the preferences, limitations and relative rights of the Common Stock.
1. Dividends. The holders of shares of Common Stock shall be
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entitled to receive such dividends as from time to time may be declared by the
Board of Directors of the Corporation, subject to the provisions of Subdivision
A of this Article IV with respect to rights of holders of the Preferred Stock.
2. Liquidation. Upon any liquidation, dissolution or winding up of
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the Corporation whether voluntary or involuntary, after payment in full of the
amounts to be paid to holders of Preferred Stock pursuant to Subdivision A of
this Article IV, the holders of Common
Stock shall share ratably based upon the number of shares of Common Stock held
by them in all of the remaining assets of the Corporation available for
distribution to its stockholders.
3. Voting Rights. Except as otherwise required by law and subject to
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the provisions set forth in this Article IV, the holders of Common Stock issued
and outstanding shall be entitled to one vote for each share thereof held.
V. Incorporator
The name and mailing address of the sole incorporator is as follows:
Michael J. Hartley
1440 Kapiolani Boulevard, Suite 800
Honolulu, Hawaii 96814
VI. Board of Directors
The Board of Directors is expressly authorized to make, alter, or repeal
the Bylaws of the Corporation.
VII. Election of Directors
Elections of directors need not be by written ballot unless the Bylaws
of the Corporation shall so provide. The number of directors shall be fixed
from time to time by the Board of Directors pursuant to a resolution adopted by
a majority of the total number of authorized directors (whether or not there
exist any vacancies in previously authorized directorships at the time any such
resolution is presented to the Board for adoption).
VIII. Related Transactions
No contract or other transaction between the Corporation and any other
person, firm, corporation, association or other organization, and no act of the
Corporation, shall in any way be affected or invalidated by the fact that any of
the directors or officers of the Corporation are parties to such contract,
transaction, or act or are pecuniarily or otherwise interested in the same or
are directors or officers or members of any such other firm, Corporation,
association or other organization, provided that the interest of such director
or officer shall be disclosed or shall have been known to the Board of Directors
authorizing or approving the same, or to a majority thereof. Any director of
the Corporation who is a party to such transaction, contract, or act or who is
pecuniarily or otherwise interested in the same or is a director or officer or
member of such other firm, Corporation, association or other organization, may
be counted in determining a quorum. of any meeting of the Board of Directors
which shall authorize or approve any such contract, transaction or act, and may
vote thereon with like force and effect as if he were in no way interested
therein. Neither any director nor any officer of the Corporation, being so
interested in such contract, transaction or act of the Corporation which shall
be approved by the Board of Directors of the Corporation, nor any such other
person, firm, Corporation, association or other organization in which such
director or officer may be interested or of which such officer
or director may be a director, officer or member, shall be liable or accountable
to the Corporation, or to any stockholder thereof, for any loss incurred by the
Corporation pursuant to or by reason of such contract, transaction or act, or
for any gain received by any such other party pursuant thereto or by reason
thereof.
IX. Creditors
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 a 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.
X. Stockholder Action
Effective upon the closing of the Corporation's initial public offering of
securities pursuant to a registration statement filed under the Securities Act
of 1933, as amended, stockholders of the Corporation may not take action by
written consent in lieu of a meeting but must take any such action at a duly
called annual or special meeting.
XI. Amendments
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. In addition to any affirmative
vote of the holders of the capital stock required by law or this Certificate of
Incorporation the affirmative vote of the holders of at least two-thirds (2/3)
of the Combined Voting power of all of the then outstanding shares of the
Corporation entitled to vote shall be entitled to alter, amend or repeal
Articles X and XI or any provision thereof.
XII. Director Liability
To the fullest extent permitted by Delaware statutory or decisional
law, as amended or interpreted, no director of this Corporation shall be
personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
This Article XII does not affect the availability of equitable remedies for
breach of fiduciary duties.
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 the facts herein stated are true, and,
accordingly, have hereunto set my hands this 3rd day of September, 1998.
/s/ Michael J. Hartley
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Michael J. Hartley, Sole Incorporator