Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
iVoice Technology, Inc.
iVoice Technology, Inc., a corporation organized and existing under the laws
of the State of New Jersey (the "Corporation"), hereby certifies as follows:
1. The name of the corporation is iVoice Technology, Inc. The
Certificate of Incorporation of the Corporation was filed by the New Jersey
Secretary of State on November 10, 2004.
2. This Amended and Restated Certificate of Incorporation herein
certified was authorized by the unanimous written consent of the Board of
Directors on December 29, 2004 pursuant to the New Jersey Business
Corporation Act of the State of New Jersey (the "Corporation Law").
3. The Amended and Restated Certificate of Incorporation herein
certified effects the following change: Article III, Preferred Stock, shall
be amended to delete in its entirety Section C that designated thirty (30)
shares of Preferred Stock entitled "Series A 5% Convertible Preferred
Stock". To accomplish the foregoing amendment, Section C of Article III,
Preferred Stock of the Certificate of Incorporation is hereby deleted in its
entirety.
4. The undersigned, being the President of IVOICE TECHNOLOGY, INC.,
a Jersey Corporation (the "Corporation"), does hereby certify that this
Amended and Restated Certificate of Incorporation correctly set forth the
Certificate of Incorporation as adopted. The Restated Certificate of
Incorporation of the Corporation, as heretofore amended, is hereby amended
and restated in their entirety as follows:
CERTIFICATE OF INCORPORATION
OF
iVoice Technology, Inc.
ARTICLE I
Corporate Name
The name of the corporation (the "Corporation") is iVoice Technology,
Inc.
ARTICLE II
Corporate Purpose
The Corporation is organized to engage in any activity within the
purposes for which corporations may be organized under the New Jersey
Business Corporation Act (the "Corporation Law").
ARTICLE III
Capital Stock
The aggregate number of shares which the Corporation shall have
authority to issue is 10,071,000,000 shares of common stock and preferred
stock. The stock of this corporation shall be divided into four classes,
consisting of:
Class A Common Stock 10,000,000,000 shares authorized, no par value per share
Class B Common Stock 50,000,000 shares authorized, $.01 par value per share
Class C Common Stock 20,000,000 shares authorized, $.01 par value per share
Preferred Stock 1,000,000 shares authorized, $1 par value per share, and
The board of directors is hereby authorized to prescribe the classes, the
series, the number of each class or series of stock and the voting powers,
designations, preferences, limitations, restrictions and relative rights of
each class or series of stock. The shares of Preferred Stock may be issued
and reissued from time to time in one or more series. The Board of Directors
hereby is authorized to fix or alter the dividend rights, dividend rate,
conversion rights, voting rights and terms of redemption (including, without
limitation, sinking fund provisions and the redemption price or prices), the
liquidation preferences, and any other rights, preferences, privileges,
attributes or other matters with respect to any wholly unissued series of
Preferred Stock, including the authority (a) to determine the number of
shares constituting any such Series And the designation thereof; and (b) to
increase the number of shares of any Series At any time. In case the
outstanding shares of any such series shall be reacquired or shall not be
issued, such shares may be designated or redesignated and altered, and issued
or reissued, hereunder, by action of the Board of Directors. The Board of
Directors also shall have such other authority with respect to shares of
Preferred Stock that may be reserved to the Board of Directors by law.
Class A Common Stock Shares. The Class A Common Stock Shares shall
have no par value per share. With respect to all matters upon which
stockholders are entitled to vote or to which stockholders are entitled to
give consent, the holders of the outstanding shares of Class A Common Stock
shall be entitled on each matter to cast one (1) vote in person or by proxy
for each share of the Class A Common Stock standing in his, her or its name
without regard to class, except as to those matters on which separate class
voting is required by applicable law. Holders of Class A Common Stock have
no preemptive, subscription, conversion, or redemption rights. Upon
liquidation, dissolution or winding-up, the holders of Class A Common Stock
are entitled to receive net assets pro rata. Each holder of Class A Common
Stock is entitled to receive ratably any dividends declared by the Board of
directors out of funds legally available for the payment of dividends.
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Class B Common Stock Shares. The par value of each share of the Class
B Common Stock shall be $.01. Each holder of Class B Common Stock shall have
the right to convert each share of Class B Common Stock into the number of
Class A Common Stock calculated by dividing the number of Class B Common
Stock being converted by eighty percent (80%) of the lowest price that the
Company had ever issued its Class A Common Stock. Every holder of the
outstanding shares of the Class B Common Stock shall be entitled on each
matter to cast the number of votes equal to 100 Shares of Class A Common
Stock. With respect to all matters upon which shareholders are entitled to
vote or to which shareholders are entitled to give consent, the holders of
the outstanding shares of Class B Common Stock shall vote together with Class
A Common Stock without regard to class, except as to those matters on which
separate class voting is required by applicable law. There shall be no
cumulative voting by shareholders. Each holder of Class B Common Stock shall
receive dividends or other distributions, as declared, equal to the dividends
declared on such number of shares of Class A Common Stock that would be
issued upon the conversion of the Class B Common Stock, had all of the
outstanding Class B Common Stock been converted on the record date
established for the purposes distributing any dividend or other shareholder
distribution.
Class C Common Stock Shares. The par value of each share of the Class
C Common Stock shall be $.01. With respect to all matters upon which
stockholders are entitled to vote or to which stockholders are entitled to
give consent, the holders of the outstanding shares of Class C Common Stock
shall be entitled on each matter to cast one (1) vote in person or by proxy
for each 1,000 shares of the Class C Common Stock standing in his, her or its
name without regard to class, except as to those matters on which separate
class voting is required by applicable law. Holders of Class C Common Stock
have no preemptive, subscription, conversion, or redemption rights. Upon the
liquidation, dissolution or winding-up of the Corporation, the holders of
Class C Common Stock are not entitled to receive net assets pro rata. Each
holder of Class C Common Stock is not entitled to receive ratably any
dividends declared by the Board of directors out of funds legally available
for the payment of dividends.
Preferred Stock. The par value of each share of Preferred Stock shall
be $1.00.
(A) Issuance, Designations, Powers, Etc.
The Board of Directors expressly is authorized, subject to
limitations prescribed by the New Jersey Business Corporations
Act and the provisions of this Certificate of Incorporation, to
provide, by resolution and by filing an amendment to the
Certificate of Incorporation pursuant to the New Jersey Business
Corporations Act, for the issuance from time to time of the
shares of Preferred Stock in one or more series, to establish
from time to time the number of shares to be included in each
series, and to fix the designation, powers, preferences and other
rights of the shares of each such series and to fix the
qualifications, limitations and restrictions thereon, including,
but without limiting the generality of the foregoing, the
following:
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(a) the number of shares constituting that series and the
distinctive designation of that series;
(b) the dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or
dates, and the relative rights of priority, if any, of payment
of dividends on shares of that series;
(c) whether that series shall have voting rights, in
addition to voting rights provided by law, and, if so, the
terms of such voting rights;
(d) whether that series shall have conversion privileges,
and, if so, the terms and conditions of such conversion,
including provisions for adjustment of the conversion rate in
such events as the Board of Directors shall determine;
(e) whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such
redemption, including the dates upon or after which they shall
be redeemable, and the amount per share payable in case of
redemption, which amount may vary under different conditions
and at different redemption dates;
(f) whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so,
the terms and amount of such sinking fund;
(g) the rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding
up of the Corporation, and the relative rights of priority, if
any, of payment of shares of that series; and
(h) any other relative powers, preferences and rights of
that series, and qualifications, limitations or restrictions
on that series.
(B) Dissolution, Liquidation, Winding Up.
In the event of any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, the holders
of Preferred Stock of each series shall be entitled to receive
only such amount or amounts as shall have been fixed by the
certificate of designations or by the resolution or
resolutions of the Board of Directors providing for the
issuance of such series.
ARTICLE IV
Registered Office and Registered Agent
The address of the initial registered office of the corporation within
the State of New Jersey is: 750 Highway 34, Matawan, NJ 07747; and the name
of the initial registered representative at such address is Jerome Mahoney,
an individual residing within the State of New Jersey.
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ARTICLE V
Board of Directors and Number of Directors
The number of directors shall be governed by the By-Laws of the
Corporation. The number of directors constituting the initial Board of
Directors of the Corporation shall be one (1). The names and addresses of
the initial member of the Board of Directors is as follows:
Jerome Mahoney c/o The Corporation
750 Highway 34
Matawan, NJ 07747
ARTICLE VI
Limitation of Liability
Subject to the following, a director or officer shall not be
personally liable to the Corporation or its shareholders for any breach of
any duty owed to the Corporation or its shareholders. The preceding sentence
shall not relieve a director or officer from liability for any breach of duty
based upon an act or omission (i) in breach of such person's duty of loyalty
to the Corporation or its shareholders, (ii) not in good faith or involving a
knowing violation of law or (iii) resulting in receipt by such person of an
improper personal benefit. If the New Jersey Business Corporation Act is
amended to authorize a corporate action further eliminating or limiting the
personal liability of directors or officers, then the liability of a director
or officer or both of the Corporation shall be eliminated or limited to the
fullest extent permitted by the New Jersey Business Corporation Act as so
amended. No amendment to or repeal of this Certificate of Incorporation
shall apply to or have any adverse effect on the liability or alleged
liability of any director or officer for or with respect to any acts or
omissions of such director or officer occurring prior to such amendment or
repeal.
ARTICLE VII
Indemnification of Corporate Agents
Every Corporate Agent of the Corporation who was or is made a party or
is threatened to be made a party to or is involved in any proceeding by
reason of his or her service as a Corporate Agent, whether or not the basis
of such proceeding is an alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity (including
service with respect to an employee benefit plan), shall be indemnified and
held harmless by the Corporation to the fullest extent permitted by the New
Jersey Business Corporation Act, as the same exists today 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 the New Jersey Business Corporation Act permitted the Corporation to
provide prior to such amendment), against all Expenses and Liabilities
(including, without limitation, ERISA excise taxes or penalties). The rights
provided herein are intended to extend to all Proceedings (including, without
limitation, Proceedings by or in the right of the Corporation), and the
indemnification against Expenses and Liabilities in connection with
Proceedings by or in the right of the Corporation is specifically provided
for to the fullest extent permitted by law. The rights to indemnification
provided hereunder shall also include the right to advancement of expenses to
the fullest extent permitted by law. Such right of indemnification shall
continue as to a person who has ceased to be a director, officer, employee,
trustee or agent and shall inure to the benefit
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of the heirs, executor or administrator of such a person. The rights
provided hereunder shall not exclude any other rights to which a Corporate
Agent may be entitled under the By-Laws of the Corporation or under any
agreement, vote of shareholders or otherwise.
All terms not defined hereby are used in accordance with the
definitions contained in the New Jersey Business Corporation Act at N.J.S.A.
ss.14A:3-5(1).
ARTICLE VIII
Name and Address of Incorporator
The name and address of the incorporator shall be Lawrence A. Muenz,
Esquire, Meritz & Muenz LLP., 2021 O Street, NW, Washington, DC 20036.
ARTICLE IX
Date of Incorporation
The effective date of this Certificate of Incorporation is the date of
its filing with the Treasurer of the State of New Jersey.
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