EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
U.S. AUDIOTEX CORPORATION
ARTICLE I
NAME
The name of the corporation is U.S. Audiotex Corporation (the "Corporation").
ARTICLE II
ADDRESS OF REGISTERED OFFICE;
NAME OF REGISTERED AGENT
The address of the registered office of the Corporation in the State
of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle, 19801. The name of its registered agent at
that address is The Corporation Trust Company.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Delaware General
Corporation Law (the "Corporation Law").
ARTICLE IV
POWERS
The Corporation shall have all powers that may now or hereafter be
lawful for a corporation to exercise under the Corporation Law.
ARTICLE V
CAPITAL STOCK
Section 1. Authorization. The aggregate number of shares of stock which the
Corporation shall have authority to issue is fifty million (50,000,000) shares
of common stock having a par value of $.01 per share (the "Common Stock"). For
purposes of this Article V, references to "the Certificate of Incorporation of
the Corporation" shall refer to this Certificate of Incorporation as the same
may be amended from time to time.
Section 2. Common Stock. The shares of Common Stock of the Corporation shall
be of one and the same class. The holders of Common Stock shall have one vote
per share of Common Stock on all matters on which holders of Common Stock are
entitled to vote. Except as otherwise provided by law, the entire voting power
of the stockholders of the Corporation shall be vested in the holders of Common
Stock of the Corporation, who shall be entitled to vote on any matter on which
the holders of stock of the Corporation shall, by law or by the provisions of
the Certificate of Incorporation or bylaws of the Corporation, be entitled to
vote.
ARTICLE VI
NAME AND ADDRESS OF INCORPORATOR
The name and address of the incorporator is Dennis J. Block, Esq., 100
Maiden Lane, New York, New York 10038.
ARTICLE VII
BOARD OF DIRECTORS
Section 1. Number of Directors. The number of Directors shall be fixed
by the bylaws of the Corporation, but shall not be less than three nor more than
nine.
Section 2. Powers of the Board of Directors. The business and affairs of
the Corporation shall be managed by or under the direction of the Board of
Directors selected as provided by law and the Certificate of Incorporation and
the bylaws of the Corporation. In furtherance, and not in limitation, of the
powers conferred by the laws of the State of Delaware, the Board of Directors is
expressly authorized to:
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(a) adopt, amend, alter, change or repeal bylaws of the Corporation; provided,
however, that no bylaw hereafter adopted shall invalidate any prior act of
the Corporation that would have been valid if such new bylaws had not been
adopted;
(b) subject to the bylaws as from time to time in effect, determine the rules
and procedures for the conduct of the business of the Board of Directors
and the management and direction by the Board of Directors of the business
and affairs of the Corporation, including the power to designate and
empower committees of the Board of Directors, to elect, or authorize the
appointment of, and empower officers and other agents of the Corporation,
and to determine the time and place of, the notice requirements for, and
the manner of conducting, Board of Directors meetings, as well as other
notice requirements for, and the manner of taking, Board of Directors
action; and
(c) exercise all such powers and do all such acts as may be exercised or done
by the Corporation, subject to the provisions of the Corporation Law and
the Certificate of Incorporation and bylaws of the Corporation.
Section 3. Vacancies. Except as otherwise required by law, any vacancy
in the Board of Directors for any reason and any newly created directorship
resulting by reason of any increase in the number of directors may be filled
only by the Board of Directors (and not by the stockholders), by resolution
adopted by the affirmative vote of a majority of the remaining directors then in
office, even though less than a quorum (or by a sole remaining director);
provided, however, that if not so filled, any such vacancy shall be filled by
the stockholders at the next annual meeting or at a special meeting called for
that purpose. Any director so appointed shall hold office until the next meeting
of stockholders at which such director would be elected and until his or her
successor is elected and qualified.
Section 4. Removal of Directors. Any director (including all members of
the 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% of the
voting power of all of the shares of capital stock of the Corporation then
entitled to vote generally in the election of directors, voting together as a
single class. For the purposes of this Section 4, "cause" shall mean the willful
and continuous failure of a director to substantially perform such director's
duties to the Corporation (other than any such failure resulting from incapacity
due to physical or mental illness) or the willful engaging by a director in
gross misconduct materially and demonstrably injurious to the Corporation.
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ARTICLE VIII
STOCKHOLDER ACTIONS AND MEETINGS OF STOCKHOLDERS
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
such holders and may not be effected by written consent in lieu of a meeting of
such holders; provided, however, that this sentence shall only be applicable if
a class of equity securities of the Corporation is registered pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended. Special meetings
of stockholders of the Corporation may be called only by the Chairman of the
Board of Directors of the Corporation or the Board of Directors pursuant to a
resolution adopted by a majority of the members of the Board of Directors then
in office. Elections of directors need not be by written ballot, unless
otherwise provided in the bylaws. For purposes of all meetings of stockholders,
a quorum shall consist of a majority of the shares entitled to vote at such
meeting of stockholders, unless otherwise required by law.
ARTICLE IX
LIMITATION ON LIABILITY OF DIRECTORS
No person shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
including, without limitation, for serving on a committee of the Board of
Directors; provided, however, that the foregoing shall not eliminate or limit
the liability of a 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) arising under Section 174 of the Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit. Any
amendment, repeal or modification of this Article IX shall not adversely affect
any right or protection of a director of the Corporation existing hereunder with
respect to any act or omission occurring prior to such amendment, repeal or
modification.
ARTICLE X
CERTAIN BUSINESS COMBINATIONS
Section 1. Vote Required for Certain Business Combinations. Except as
otherwise expressly provided in Section 2 of this Article, in addition to any
affirmative vote required by law or by any other provision of the Certificate of
Incorporation of the Corporation,
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the affirmative vote of the holders of at least 80% of the outstanding shares of
Voting Stock (as defined below) of the Corporation voting together as a single
class shall be required for the approval or authorization of any Business
Combination (as defined below) of the Corporation with any Related Person (as
defined below). For the purpose of this Article:
(a) The term "Business Combination" shall mean (i) any merger or
consolidation of the Corporation or a Subsidiary (as defined below) of the
Corporation with or into a Related Person or of a Related Person with or into
the Corporation or a Subsidiary of the Corporation; (ii) any sale, lease,
exchange, transfer, or other disposition, including, without limitation, a
mortgage or any other hypothecation or transfer as collateral, of all or any
Substantial Part (as defined below) of the assets either of the Corporation
(including, without limitation, any voting securities of a Subsidiary) or of a
Subsidiary of the Corporation to a Related Person; (iii) the issuance of any
securities (other than by way of a distribution to stockholders made pro rata to
all holders of the class of stock to receive the distribution) of the
Corporation or a Subsidiary of the Corporation to a Related Person; (iv) the
acquisition by the Corporation or a Subsidiary of the Corporation of any
securities of a Related Person; (v) any recapitalization that would have the
effect, directly or indirectly, of increasing the voting power of a Related
Person; (vi) any merger of the Corporation into a Subsidiary of the Corporation;
or (vii) any agreement, contract, or other arrangement providing for any of the
transactions described in this definition of Business Combination.
(b) The term "Continuing Director" shall mean any member of the Board of
Directors who is neither Affiliated (as defined below) nor Associated (as
defined below) with the Related Person and who was a member of the Board of
Directors prior to the time that the Related Person became a Related Person, and
any successor of a Continuing Director who is recommended to succeed a
Continuing Director by a majority of Continuing Directors then members of the
Board of Directors.
(c) The term "Related Person" shall mean and include any individual,
corporation, partnership, or other person or entity which, together with its
Affiliates (as defined below) and Associates (as defined below), Beneficially
Owns (as defined below), in the aggregate 10% or more of the outstanding Voting
Stock (as defined below) of the Corporation, and any Affiliate or Associate of
any such individual, corporation, partnership, or other person or entity.
(d) The term "Substantial Part" shall mean more than 80% of the book
value of the total consolidated assets of the Corporation as reported in the
consolidated financial statements of the Corporation and its Subsidiaries as of
the end of its most recent fiscal year ending prior to the time as of which a
Substantial Part is to be determined.
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(e) The term "Voting Stock" shall mean all outstanding shares of capital
stock of the Corporation entitled to vote generally in the election of directors
of the Corporation and each reference to a percentage of shares of Voting Stock
shall refer to such percentage of the votes entitled to be cast by such shares.
(f) The terms "Affiliate" and "Associate" shall have the meanings set
forth in Rule 12b-2 under the Securities Exchange Act of 1934, as amended.
(g) The term "Beneficially Owns" shall have the meaning set forth in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended; provided,
however, that, any shares of Voting Stock of the Corporation that any Related
Person has the right to acquire pursuant to any agreement, or upon exercise of
conversion rights, warrants or options, or otherwise, shall be deemed
Beneficially Owned by the Related Person whether immediately exercisable or
exercisable within ten years of the date as of which Beneficial Ownership is to
be determined.
(h) The term "Subsidiary" with respect to the Corporation shall mean any
corporation, partnership, limited liability company, business trust or similar
entity in which a majority of any class of any equity security is owned directly
or indirectly by the Corporation.
Section 2. When Higher Vote is Not Required. The provisions of Section 1
of this Article shall not be applicable to any particular Business Combination
and such Business Combination shall require only such affirmative vote as may be
required by law or by any other provision of the Certificate of Incorporation of
the Corporation, if all of the conditions specified in either of the following
paragraphs (a) or (b) are met:
(a) the Business Combination shall have been approved by a vote of not
less than a majority of the Continuing Directors; or
(b) all of the following conditions shall have been met:
(i) The aggregate amount of cash and the Fair Market Value (as defined
below) as of the date of the consummation of the Business Combination of the
consideration, other than cash, to be received per share by holders of Common
Stock in such Business Combination shall be at least equal to the highest of the
following:
(A) if applicable, the highest price per share (including
any brokerage commissions, transfer taxes, and soliciting
dealers' fees) paid by the Related Person for any shares of
Common Stock acquired by it (1) within the two year period
immediately prior to the first public announcement of the
proposal of the
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Business Combination (the "Announcement Date") or (2) in the
transaction in which it became a Related Person; or
(B) the Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Related Person
became a Related Person (such latter date is referred to in this
Article as the "Determination Date"), whichever is higher; and
(ii) The aggregate amount of the cash and the Fair Market Value as of
the date of the consummation of the Business Combination of the consideration,
other than cash, to be received per share by holders of shares of any class or
series of outstanding Voting Stock, other than Common Stock, shall be at least
equal to the highest of the following (it being intended that the requirements
of this subparagraph (b)(ii) shall be required to be met with respect to every
class or series of outstanding capital stock of the Corporation other than
Common Stock, whether or not the Related Person has previously acquired any
shares of such class or series of Voting Stock):
(A) if applicable, the highest per share price (including
any brokerage commission, transfer taxes, and soliciting
dealers' fees) paid by the Related Person for any shares of such
class or series of Voting Stock acquired by it (1) within the
two year period immediately prior to the Announcement Date or
(2) in the transaction in which it became a Related Person,
whichever is higher; or
(B) if applicable, the redemption price of the shares of
such class or series, or if such shares have no redemption
price, the highest amount per share which such class or series
would be entitled to receive upon liquidation of the Corporation
on the Announcement Date or the Determination Date, whichever is
higher; or
(C) the Fair Market Value per share of such class or
series of Voting Stock on the Announcement Date or on the
Determination Date, whichever is higher; and
(iii) the consideration to be received in such Business Combination by
holders of each class or series of outstanding Voting Stock (including Common
stock) shall be in cash or in the same form as the Related Person has previously
paid for shares of such class or series of Voting Stock; provided, however, that
if the Related Person has paid for shares of any class or series of Voting Stock
with varying forms of consideration, the form of consideration for such class or
series of Voting Stock shall be either cash or the
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form used to acquire the largest number of shares of such class or series of
Voting Stock previously acquired by it; and
(iv) a proxy statement responsive to the requirements of the Securities
Exchange Act of 1934, as amended, shall have been mailed to public stockholders
of the Corporation for the purpose of soliciting stockholder approval of the
Business Combination and shall have contained at the front thereof, in a
prominent place, any recommendations as to the advisability (or inadvisability)
of the Business Combination that the Continuing Directors, or any of them, may
choose to state and, if deemed advisable by a majority of the Continuing
Directors, an opinion of a reputable investment banking firm as to the fairness
(or not) of the terms of the Business Combination, from the point of view of the
remaining public stockholders of the Corporation (such investment banking firm
to be selected by a majority of the Continuing Directors and to be paid a
reasonable fee for their services by the Corporation upon receipt of the
opinion); provided, however, that this clause (iv) shall only be applicable if a
class of equity securities of the Corporation is registered pursuant to Section
12 of the Securities Exchange Act of 1934, as amended.
Section 3. Certain Definitions and Additional Provisions. For the
purposes of this Article:
(a) "Fair Market Value" shall mean:
(i) in the case of stock, the highest closing bid quotation with respect
to a share of such stock during the 30-day period preceding the date in question
on the Nasdaq National Market or any quotations system then generally in use,
or, if no such quotations are available, the highest closing sale price during
the 30-day period immediately preceding the date in question of a share of such
stock on the Composite Tape for New York Stock Exchange Listed Stocks, or, if
such stock is not quoted on the Composite Tape, on the New York Stock Exchange,
or, if such stock is not listed on such Exchange, on the principal United States
securities exchange registered under the Securities Exchange Act of 1934, as
amended, on which such stock is listed, or, if such stock is not listed on any
such exchange, the fair market value on the date in question of a share of such
stock as determined by the Continuing Directors in good faith, which
determination shall be final; and
(ii) in the case of property other than cash or stock, the fair market
value of such property on the date in question as determined by the Continuing
Directors in good faith, which determination shall be final.
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(b) The Board of Directors, with the approval of a majority of the total
number of Continuing Directors, shall have the power and duty to determine, on
the basis of information known to it after reasonable inquiry, all facts
necessary to determine compliance with this Article, including, without
limitation, (i) whether a person is a Related Person, (ii) the number of shares
of Voting Stock Beneficially Owned by any person, (iii) whether a person is an
Affiliate or Associate of another person, (iv) whether the applicable conditions
set forth in paragraph (b) of Section 2 of this Article have been met with
respect to any Business Combination, and (v) whether the proposed transaction is
a Business Combination. Any such determinations shall be final.
Section 4. Amendment of this Article. This Article may be amended,
altered, changed, or repealed only by the affirmative vote of the holders of at
least 80% of the outstanding shares of Voting Stock voting together as a single
class unless the proposed amendment, alteration, change, or repeal has been
recommended to the stockholders by the Board of Directors with the approval of
at least two-thirds of the Continuing Directors, in which event the proposed
amendment, alteration, change, or repeal shall require for approval the
affirmative vote of the holders of at least 66 2/3% of the outstanding shares of
Voting Stock, voting as a single class.
ARTICLE XI
BYLAWS
The Board of Directors shall have the power to adopt, amend, alter,
change or repeal bylaws of and for the Corporation by the affirmative vote of 66
2/3% of the members then in office. The affirmative vote of the holders of at
least 80% of the voting power of all of the shares of capital stock of the
Corporation then entitled to vote generally in the election of directors, voting
together as a single class shall be required to adopt, amend, alter, change or
repeal bylaws of the Corporation (notwithstanding the fact that approval by a
lesser percentage may be permitted by the Corporation Law).
ARTICLE XII
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation hereby reserves the right from time to time to amend,
alter, change or repeal any provision contained in the Certificate of
Incorporation of the Corporation in any manner permitted by the Corporation Law
and all rights and powers conferred upon
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stockholders, directors and officers herein are granted subject to this
reservation. In addition to any vote otherwise required by law, and except as
may otherwise be provided in Article V or X hereof, any such amendment,
alteration, change or repeal shall require approval of both (i) the Board of
Directors by the affirmative vote of a majority of the members then in office
and (ii) the holders of a majority of the voting power of all of the shares of
capital stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class, except that any proposal to amend,
alter, change or repeal the provisions of Section 4 of Article VII, Article
VIII, Article XI and this Article XII shall require the affirmative vote of the
holders of at least 80% of the voting power of all of the shares of capital
stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class.
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In Witness Whereof, the undersigned has signed this Certificate of
Incorporation on August 24, 1999.
By: /s/ Dennis J. Block
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Dennis J. Block, Esq.
Sole Incorporator