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CERTIFICATE OF INCORPORATION
OF
INFOUSA INC.
ARTICLE I.
Name
The name of the Corporation shall be infoUSA Inc.
ARTICLE II.
Registered Office and Agent
The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle,
19801, and the name of the Registered Agent at such 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 General Corporation
Law of Delaware.
ARTICLE IV.
Authorized Stock
A. The total number of shares of all classes of capital stock which the
corporation shall have authority to issue is three hundred million
(300,000,000) shares which shall be divided into three classes as
follows:
(i) Two Hundred Twenty Million (220,000,000) shares of Class A
Common Stock of the par value of one fourth of one cent
($0.0025) per share;
(ii) Seventy-Five million (75,000,000) shares of Class B Common
Stock of the par value of one fourth of one cent ($0.0025) per
share; and
(iii) Five Million (5,000,000) shares of Preferred Stock with a par
value of one fourth of one cent ($0.0025) per share.
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Upon this Certificate of Amendment of Certificate of Incorporation
becoming effective pursuant to the General Corporation Law of the State of
Delaware (the "Effective Time"), and without any further action on the part of
the Corporation or its stockholders, each share of the Corporation's Common
Stock, one fourth of one cent ($0.0025) par value, then issued (including shares
held in the treasury of the Corporation), shall be automatically reclassified,
changed and converted into one (1) fully paid and non-assessable share of Class
B Common Stock, one fourth of one cent ($0.0025) par value. Any stock
certificate which, immediately prior to the Effective Time, represents shares of
Common Stock, one fourth of one cent ($0.0025) par value, will, from and after
the Effective Time, automatically and without the necessity of presenting the
same for exchange, represent that number of shares of Class B Common Stock equal
to the number of shares of Common Stock represented by such certificate prior to
the Effective Time. As soon as practicable after the Effective Time, the
corporation's transfer agent shall mail a transmittal letter to each record
holder who then holds shares of Class B Common Stock, informing such persons of
this reclassification with appropriate instructions on exchanging certificates
representing such shares and other relevant matters. The Class A Common Stock
and Class B Common Stock are hereinafter collectively referred to as the "Common
Stock."
The rights, preferences, privileges, restrictions and limitations
pertaining to the Common Stock, subject to applicable law, are set forth in
Section B of this Article IV. The rights, preferences, privileges, restrictions
and limitations pertaining to the Preferred Stock, subject to applicable law,
are set forth in Article V.
B. COMMON STOCK: Except as set forth expressly in this Section B and to
the fullest extent not otherwise required by applicable law, the Class
A Common Stock and Class B Common Stock shall be identical in every
respect.
(i) DIVIDENDS: Subject to all of the rights of any Preferred Stock
as to dividends, holders of shares of Class A Common Stock
shall be entitled to receive, when and as declared by the Board
of Directors, out of funds legally available therefor,
dividends at the rate per share of $0.02, per annum, as
adjusted for stock splits, stock dividends, recapitalizations,
and similar events, payable in preference and priority to any
payment of any dividend on the Class B Common Stock of the
Corporation (such preferential dividends, the "Class A
Preferential Dividends"). The Class A Preferential Dividends
shall not be cumulative, and no right to such dividends shall
accrue to holders of Class A Common Stock unless declared by
the Board of Directors. No dividends or other distributions
shall be made with respect to the Class B Common Stock in any
fiscal year, other than dividends payable solely in capital
stock, until (a) the Class A Preferential Dividends have been
paid to or declared and set apart upon all shares of Class A
Common Stock during that fiscal year, and (b) such dividend is
declared by the Board of Directors. All dividends other than
the Class A Preferential Dividends shall be paid, when, as and
if declared by the Board of Directors, at an equal per-share
rate on all then-outstanding shares of Class A Common Stock and
Class B Common Stock.
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(ii) VOTING: To the fullest extent not otherwise required by law,
the holder of each share of Class A Common Stock issued and
outstanding shall have one vote with respect to such share and
the holder of each share of Class B Common Stock shall have ten
(10) votes with respect to such share, such votes to be counted
together with all other shares of stock of the Corporation
having general voting power and not separately as a class.
Holders of Common Stock shall be entitled to notice of any
shareholders' meeting in accordance with the Bylaws of the
Corporation. Pursuant to Section 242(c) of the General
Corporation Law of Delaware, the number of authorized shares of
Class A Common Stock or Class B Common Stock may be increased
or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a
majority of the stock of the corporation entitled to vote,
voting together as a single class.
(iii) ALLOCATIONS OF PROCEEDS UPON LIQUIDATION: In the event of any
liquidation, dissolution or winding up of the Corporation (a
"Liquidation Event") the assets or funds of the Corporation
legally available for distribution to its stockholders by
reason of their ownership of the stock of the Corporation
shall, subject to all of the rights of any Preferred Stock to
receive assets of the Corporation upon a Liquidation Event, be
distributed as follows: first, the holders of Common Stock
shall be entitled to receive for each outstanding share of
Common Stock then held by them an amount equal to all declared
but unpaid dividends on such share; second, all remaining
assets and funds of the Corporation legally available for
distribution to stockholders by reason of their ownership of
stock of the Corporation shall be distributed ratably among the
holders of Common Stock in proportion to the number of shares
of Common Stock held by them. For purposes of this paragraph, a
merger or consolidation of the Corporation with or into any
other corporation or corporations, or a sale of all or
substantially all of the assets of the Corporation, shall be
treated as a liquidation, dissolution or winding up, unless the
stockholders of the Corporation immediately prior to such
transaction hold at least 50% of the outstanding voting equity
securities of the surviving corporation in such merger,
consolidation or sale of assets reorganization.
C. ISSUANCES AND REPURCHASES OF COMMON STOCK: The Board of Directors
shall have the power to issue and sell all or any part of any class of
stock herein or hereafter authorized to such persons, firms,
associations or corporations, and for such consideration as the Board
of Directors shall from time to time, in its discretion, determine,
whether or not greater consideration could be received upon the issue
or sale of the same number of shares of another class, and as otherwise
permitted by law. In addition, the Board of Directors shall have the
power to purchase any class of stock herein or hereafter authorized
from such persons, firms, associations or corporations, and for such
consideration as the Board of Directors shall from time to time, in its
discretion, determine, whether or not less consideration could be paid
upon the purchase of the same number of shares of another class, and as
otherwise permitted by law."
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ARTICLE V.
Rights and Preferences of Holders
of Preferred Stock
The Board of Directors is authorized, subject to limitations prescribed
by law and the provisions of Article IV, to provide for the issuance of the
shares of Preferred Stock in series, and by filing a Certificate pursuant to the
applicable law of the State of Delaware, to establish from time to time the
number of shares to be included in each such series, and to fix the designation,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions thereof.
The authority of the Board of Directors with respect to each series of
Preferred Stock shall include, but not be limited to, determination of the
following:
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 data 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 the 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 privileges, including provision
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 date or
date 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 funds;
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;
H. Any other relative rights, preferences and limitations of that series.
Dividends on outstanding shares of Preferred Stock shall be paid or
declared and set apart for payment before any dividend shall be paid or declared
and set apart for payment on the Common Stock with respect to the same dividend
period.
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If upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the assets available for distribution to holders
of shares of Preferred Stock of all series shall be insufficient to pay such
holders the full preferential amount to which they are entitled, then such
assets shall be distributed ratably among the shares of each series of Preferred
Stock in accordance with each such series respective preferential amounts
(including unpaid cumulative dividends, if any).
ARTICLE VI.
Incorporator
The name and mailing address of the Incorporator is Vinod Gupta, 5711
South 86th Circle, Omaha, Nebraska 68127. Until the directors are elected, the
Incorporator shall manage the affairs of the Corporation, including the adoption
of the original bylaws of the Corporation and may do whatever is necessary and
proper to effect the organization of the Corporation and the election of
directors.
ARTICLE VII.
Premptive Rights
The holders of Common Stock or Preferred Stock of the Corporation shall
have no preemptive rights to subscribe for any shares of any class of stock of
the Corporation whether now or hereafter authorized.
ARTICLE VIII.
Board of Directors
A. The number of Directors constitution the entire Board shall be not less
than three (3) nor more than fifteen (15), as fixed from time to time
by vote of the majority of the entire Board; provided, however, that
the number of Directors shall not be reduced so as to shorten the term
of any Director at the time in office.
B. The Board of Directors shall be divided into three classes, as
nearly equal in numbers as the then total number of Directors
constituting the entire Board permits with the term of office of one
class expiring each year. At the first annual meeting of shareholders
in 1992, the term of office of the first class of Directors will expire
and at which them their successors shall be elected for a term expiring
at the third succeeding annual meeting after their election. At the
annual meeting of the shareholders in 1993, the term of office of the
second class of Directors will expire and at which time their
successors shall be elected for a term expiring at the third succeeding
annual meeting after their election. At the annual meeting of the
shareholders in 1994, the term of office of the third class of
Directors will expire and at which time their successors shall be
elected for a term expiring at the third succeeding annual meeting
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after their election. Any vacancies in the Board of Directors for any
reason, and any directorships resulting from any increase in the number
of Directors, may be filled by the Board of Directors, acting by a
majority of the Directors then in office, although less than a quorum,
and any Director so chosen shall hold office until the next election of
the class for which such Director shall have been chosen. Subject to
the foregoing, at each annual meeting of shareholders, the successors
to the class of Directors whose term shall then expire shall be elected
to hold office for a term expiring at the third succeeding annual
meeting after their election.
C. Notwithstanding any other provisions of this Certificate of
Incorporation or the Bylaws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this
Certificate of Incorporation or the Bylaws of the Corporation), any
director or the entire Board of Directors of the Corporation may be
removed at any time, but only for cause and only by affirmative vote of
the holders of fifty percent (50%) or more of the outstanding shares of
capital stock of the Corporation entitled to vote generally in the
election of Directors (considered for this purpose as one class) cast
at a meeting of the shareholders called for that purpose.
ARTICLE IX.
Bylaws
All of the powers of the Corporation, insofar as the same may be
lawfully vested by this Certificate of Incorporation in the Board of Directors,
are hereby conferred upon the Board of Directors of the Corporation. Except as
otherwise provided in this Article IX, and in furtherance, and not in limitation
of that power, the Board of Directors shall have the power to make, adopt,
alter, amend and repeal from time to time the Bylaws of the corporation, subject
to the right of the shareholders entitled to vote with respect thereto to adopt,
alter, amend and repeal Bylaws made by the Board of Directors. The shareholders
may expressly provide in any bylaw that such bylaw may not be altered, amended
or repealed by the Board of Directors; and a bylaw so providing may not be
altered, amended or repealed by the Board of Directors.
ARTICLE X.
Amendment of Articles
Notwithstanding any other provision of this Certificate of
Incorporation or the Bylaws of the Corporation (in addition to any other vote
that may be required by law, this Certificate of Incorporation or the Bylaws),
the affirmative vote of the holders of at least sixty percent (60%) of the
outstanding shares of the Common Stock of the Corporation, and any series of
Preferred Stock entitled to vote generally in the election of Directors
(considered for this purpose as one class) shall be required to amend, alter or
repeal any provision of this Certificate of Incorporation.
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ARTICLE XI.
Liability of Directors
No Director of the Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for breach of fiduciary
duty as a Director; provided, however, that the foregoing clause shall not apply
to any liability of a Director: (i) for any breach of the Director's duty of
loyalty to the Corporation or its shareholders; (ii) for acts or omissions not
in good faith or which involved intentional misconduct or a knowing violation of
law; (iii) under Section 174 of the General Corporation Law of the State of
Delaware; or (iv) for any transaction from which the Director derived an
improper personal benefit. If the General Corporation Law of the State of
Delaware is amended to authorize corporate action further eliminating or
limiting the personal liability of the Directors, then the liability of the
Director of the Corporation shall be eliminated or limited to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as so
amended. Any repeal or modification of this Article XI shall not adversely
effect any right or protection of a Director of the Corporation existing
hereunder with respect to any act or omission occurring prior to such repeal or
modification.
ARTICLE XII.
Director Voting
Unless otherwise provided by resolution by the Board of Directors, it
shall not be required that elections of Directors be conducted by written
ballot.
ARTICLE XIII.
Indemnification
The Corporation shall to the extent required, and may, to the extent
permitted, by Section 145 of the Delaware General Corporation Law, as amended
from time to time, indemnify and reimburse all persons whom it may indemnify and
reimburse pursuant thereto. Notwithstanding the foregoing, the indemnification
provided for in this Article XIII shall not be deemed exclusive of any other
rights to which those entitled to receive indemnification or reimbursement
hereunder may be entitled under any bylaw of this Corporation, agreement, vote
or consent of shareholders or disinterested directors or otherwise.