EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
CLAIMSNET.COM INC.
FIRST. The name of the corporation is CLAIMSNET.COM INC. (the
"Corporation").
SECOND. The address, including street, number, city, and county of the
Corporation's registered office in the State of Delaware is 15 East North
Street, in the City of Dover, County of Kent. The name of its registered
agent at such address is United Corporate Services, Inc.
THIRD. 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.
FOURTH. A. The aggregate number of shares which the Corporation
shall have authority to issue is 44,000,000, par value $.001 per share, of
which 40,000,000 shares shall be designated Common Shares and 4,000,000
shares shall be designated Preferred Shares.'
B. Authority is hereby expressly granted to the Board of Directors
of the Corporation (or a Committee thereof designated by the Board of
Directors pursuant to the by-laws of the Corporation, as from time to time
amended (the "By-Laws")) to issue the Preferred Shares from time to time as
Preferred Shares of any series and to declare and pay dividends thereon in
accordance with the terms thereof and, in connection with the creation of
each such series, to fix by the resolution or resolutions providing for the
issue of shares thereof, the number of such shares, the designations, powers,
preferences, and rights (including voting rights), and the qualifications,
limitations, and restrictions, of such series, to the full extent now or
hereafter permitted by the laws of the State of Delaware.
FIFTH. The name and mailing address of the incorporator is Stephen H.
Gray, c/o Brock Fensterstock Silverstein McAuliffe & Wade LLC, One Citicorp
Center, 153 East 53rd Street, 56th Floor, New York, New York 10022.
SIXTH. Election of directors need not be by written ballot.
SEVENTH. The Board of Directors is authorized to adopt, amend, or
repeal By-Laws of the Corporation.
EIGHTH. 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, officer, employee, or agent of the Corporation or any of its
direct or indirect subsidiaries or is or was serving at the request of the
Corporation as a director, officer, employee, or agent of any other
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 permitted prior thereto), against all expense,
liability, and loss (including attorneys' fees, judgments, fines, excise
taxes or penalties under the Employee Retirement Income Security Act of 1974,
as amended, and amounts paid in settlement) reasonably
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incurred or suffered by such indemnitee in connection therewith, and such
indemnification 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; provided, however, that,
except as provided in Paragraph C of this Article EIGHTH 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 Paragraph A of this
Article EIGHTH shall include the right to be paid by the Corporation the
expenses incurred in defending any proceeding for which such right to
indemnification is applicable 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 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
(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 Article EIGHTH or otherwise.
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C. The rights to indemnification and to the advancement of expenses
conferred in Paragraphs A and B of this Article EIGHTH shall be contract
rights. If a claim under Paragraph A or B of this Article EIGHTH 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 an
indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and (ii) 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
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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 EIGHTH or otherwise, shall be on the Corporation.
D. The rights to indemnification and to the advancement of expenses
conferred in this Article EIGHTH shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, this
certificate of incorporation, by-law, agreement, vote of stockholders or
disinterested directors, or otherwise.
E. The Corporation may maintain insurance, at the Corporation's
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's obligation, if any, to indemnify any person who
was or is serving as a director, officer, employee, or agent of any direct or
indirect subsidiary of the Corporation or, at the request of the Corporation,
of any other corporation or of a partnership, joint venture, trust, or other
enterprise shall be reduced by any amount such person may collect as
indemnification from such other corporation, partnership, joint venture,
trust, or other enterprise.
G. Any repeal or modification of the foregoing provisions of this
Article EIGHTH shall
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not adversely affect any right or protection hereunder of any person in
respect of any act or omission occurring prior to the time of such repeal or
modification.
NINTH. No director of the Corporation shall be liable to the
Corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director, provided that this provision does not eliminate
the liability of the director (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 Title 8 of the Delaware Code, or
(iv) for any transaction from which the director derived an improper personal
benefit. For purposes of the prior sentence, the term "damages" shall, to
the extent permitted by law, include without limitation, any judgment, fine,
amount paid in settlement, penalty, punitive damages, excise or other tax
assessed with respect to an employee benefit plan, or expense of any nature
(including, without limitation, counsel fees and disbursements). Each person
who serves as a director of the Corporation while this Article NINTH is in
effect shall be deemed to be doing so in reliance on the provisions of this
Article NINTH, and neither the amendment or repeal of this Article NINTH, nor
the adoption of any provision of this Certificate of Incorporation
inconsistent with this Article NINTH, shall apply to or have any effect on
the liability or alleged liability of any director or the Corporation for,
arising out of, based upon, or in connection with any acts or omissions of
such director occurring prior to such amendment, repeal, or adoption of an
inconsistent provision. The provisions of this Article NINTH are cumulative
and shall be in addition to and independent of any and all other limitations
on or eliminations of the liabilities of directors of the Corporation, as
such, whether such limitations or eliminations arise
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under or are created by any law, rule, regulation, by-law, agreement, vote of
shareholders or disinterested directors, or otherwise.
TENTH. 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
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.
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IN WITNESS WHEREOF, I have made, signed, and sealed this Certificate of
Incorporation this 11th day of September, 1997.
/S/ STEPHEN H. GRAY (L.S.)
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STEPHEN H. GRAY
INCORPORATOR
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