EXHIBIT 3.1 - AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
WWAP, INC.
WWAP, Inc., a corporation organized and existing under the laws of the
State of Delaware, hereby certifies as follows:
1. The name of this corporation is WWAP, Inc. (the "Corporation"). The
date of filing of its original Certificate of Incorporation with the Secretary
of State of Delaware was July 15, 2004, under the name WWAP, INC.
2. This Amended and Restated Certificate of Incorporation restates and
integrates and further amends the Certificate of Incorporation of this
Corporation by, among other things, increasing the authorized capital of the
Corporation.
3. This Amended and Restated Certificate of Incorporation was duly
adopted by written consent of the stockholders of the Corporation in accordance
with the applicable provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware.
4. The text of the Certificate of Incorporation, as amended and
restated heretofore, is further amended and restated to read in its entirety as
follows:
ARTICLE I
NAME
The name of the Corporation shall be WWAP, Inc.
ARTICLE II
REGISTERED OFFICE; REGISTERED AGENT
The registered agent and registered office of the Corporation
is The Corporation Trust Company, 1209 Orange Street, Wilmington, Newcastle
County, Delaware.
EXHIBIT 3.1 - AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
ARTICLE III
CORPORATE POWERS
The purposes of the Corporation is to engage in any lawful act
or activity for which corporations may now or hereafter be organized under the
General Corporation Law of Delaware.
ARTICLE IV
AUTHORIZED CAPITAL
Section 4.1. CLASSES OF STOCK The total number of shares of all classes
of stock which the Corporation shall have authority to issue is one hundred and
ten million (110,000,000), which are divided into one hundred million
(100,000,000) shares of common stock, par value $0.01 per share (the "Common
Stock") and ten million (10,000,000) shares of preferred stock, par value $0.01
(the "Preferred Stock").
Section 4.2. PREFERRED STOCK. Shares of the Preferred Stock of the
Corporation may be issued from time to time in one or more classes or series,
each of which class or series shall have such distinctive designation or title
as shall be fixed by the Board of Directors of the Corporation (the "Board of
Directors") prior to the issuance of any shares thereof. Each such class or
series of Preferred Stock shall have such voting powers, full or limited, or no
voting powers, and such preferences and relative, participating, optional or
other special rights and such qualifications, limitations or restrictions
thereof, as shall be stated in such resolution or resolutions providing for the
issue of such class or series of Preferred Stock as may be adopted from time to
time by the Board of Directors prior to the issuance of any shares thereof
pursuant to the authority hereby expressly vested in it, all in accordance with
the laws of the State of Delaware.
ARTICLE V
BOARD OF DIRECTORS
The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors consisting of three
directors. The directors shall be divided into three classes, designated Class
I, Class II and Class III. Each class shall consist of one director. The term of
the initial Class I director shall terminate on the date of the 2005 annual
meeting of stockholders; the term of the initial Class II director shall
terminate on the date of the 2006 annual meeting of stockholders and the term of
the initial Class III director shall terminate on the date of the 2007 annual
meeting of stockholders. At each annual meeting of stockholders beginning in
2005, successors to the class of director whose term expires at the annual
meeting shall be elected for a three-year term. If the number of directors is
changed, any increase or decrease shall be apportioned among the classes so as
to maintain the number of directors in each class as nearly equal as possible,
and any additional director of any class elected to fill a vacancy resulting
from an increase in such class shall hold office for a term that shall coincide
with the remaining term of that class, but in no case will a decrease in the
number of directors shorten the
EXHIBIT 3.1 - AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
term of any incumbent director. A director shall hold office until the annual
meeting for the year in which his or her term expires and until his or her
successor shall be elected and shall qualify for office, subject, however, to
prior death, resignation, retirement, disqualification or removal from office.
Any vacancy on the Board of Directors, however resulting, may be filled only by
an affirmative vote of the majority of the directors then in office, even if
less than a quorum, or by an affirmative vote of the sole remaining director.
Any director elected to fill a vacancy shall hold office for a term that shall
coincide with the term of the class to which such director shall have been
elected. Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of this Certificate of Incorporation or the resolution or resolutions
adopted by the Board of Directors pursuant to Section 4.2 applicable thereto,
and such directors so elected shall not be divided into classes pursuant to this
Article V unless expressly provided by such terms.
ARTICLE VI
REMOVAL OF DIRECTORS
Subject to the rights, if any, of the holders of shares of
Preferred Stock then outstanding, any or all of the directors of the Corporation
may be removed from office at any time, but only for cause and only by (i) the
affirmative vote of the holders of a majority of the outstanding securities of
the Corporation then entitled to vote generally in the election of directors,
considered for purposes of this Article VI as one class or (ii) the affirmative
vote of a majority of the total number of directors of the Corporation.
ARTICLE VII
WRITTEN BALLOT
Elections of directors at an annual or special meeting of
stockholders shall be by written ballot unless the By-Laws of the Corporation
shall otherwise provide.
ARTICLE VIII
SPECIAL MEETING OF STOCKHOLDERS
Special meetings of the stockholders of the Corporation for
any purposes may be called at any time by the Chairman of the Board of
Directors, if one be elected, the Chief Executive Officer, the President or by
the Board of Directors pursuant to a resolution approved by a majority of the
total number of directors of the Corporation if there were no vacancies. Special
meetings of the stockholders of the Corporation may not be called by any other
person or persons.
EXHIBIT 3.1 - AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
ARTICLE IX
OFFICERS
The officers of the Corporation shall be chosen in such
manner, shall hold their offices for such terms and shall carry out such duties
as are determined solely by the Board of Directors, subject to the right of the
Board of Directors to remove any officer or officers at any time with or without
cause.
ARTICLE X
INDEMNIFICATION; LIMITATION OF DIRECTOR LIABILITY
The Corporation shall indemnify to the full extent authorized
or permitted by law any person made, or threatened to be made, a party to or
otherwise involved in any action, suit or proceeding (whether civil, criminal,
administrative or investigative), by reason of the fact that he or she 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
or of a partnership, joint venture, trust, or other enterprise, including
service with respect to an employee benefit plan, in any capacity. Nothing
contained herein shall affect any rights to indemnification to which employees
other than directors and officers may be entitled by law. No director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for any breach of fiduciary duty by such a director as a
director. Notwithstanding the foregoing sentence, a director shall be liable to
the extent provided by applicable law (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) pursuant to Section 174 of the General Corporation Law of
Delaware, or (iv) for any transaction from which such director derived an
improper personal benefit. No amendment to or repeal of this Article XI shall
apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment.
ARTICLE XI
AMENDMENT OF BY-LAWS
Except to the extent that the By-Laws or this Certificate of
Incorporation otherwise provides, the Board of Directors shall have the power
without the assent or vote of the stockholders to adopt, amend, alter or repeal
the By-Laws of the Corporation, upon the affirmative vote of a majority of the
total number of directors of the Corporation if there were no vacancies. In
addition to any requirements of law and any other provision of this Certificate
of Incorporation, the stockholders of the Corporation may adopt, amend, alter or
repeal any provision of the By-Laws upon the affirmative vote of at least fifty
percent (50%) 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.
EXHIBIT 3.1 - AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
ARTICLE XII
AMENDMENT OF CERTIFICATE OF INCORPORATION
Notwithstanding any other provision of this Certificate of
Incorporation, the affirmative vote of at least fifty percent (50%) 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 shall be
required to amend, alter, change or repeal, or to adopt any provisions as part
of this Certificate of Incorporation or as part of the Corporation's By-Laws
inconsistent with the purpose and intent of Articles V (Board of Directors), VI
(Removal of Directors), VII (Special Meeting of Stockholders), X
(Indemnification; Limitation of Director Liability), XI (Amendment of By-Laws)
and this Article XII (Amendment of Certificate of Incorporation).
ARTICLE XIII
ADDRESS OF INCORPORATOR
The name and the mailing address of the incorporator are as follows:
NAME MAILING ADDRESS
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Steven Schuster c/o McLaughlin & Stern, LLP
260 Madison Avenue, 18th Floor
New York, New York 10016
IN WITNESS WHEREOF, the undersigned has executed this Amended and
Restated Certificate of Incorporation this 6th day of October, 2004.
/s/ Moshe Ofer
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Moshe Ofer, President