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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BLAXXUN INTERACTIVE, INC.
blaxxun interactive, Inc., a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), DOES HEREBY CERTIFY as
follows:
The date of filing of its original Certificate of Incorporation with
the Secretary of State of the State of Delaware was July 28, 1995.
The Board of Directors of the Corporation, by unanimous written
consent, duly adopted resolutions setting forth the Amended and Restated
Certificate of Incorporation herein contained, declaring its advisability and
directing that such Amended and Restated Certificate of Incorporation be
submitted to the holders of the issued and outstanding capital stock for
approval in accordance with the applicable provisions of Sections 242 and 245 of
the General Corporation Law of the State of Delaware and the Corporation's
Certificate of Incorporation, as previously amended.
The Amended and Restated Certificate of Incorporation was duly adopted,
after having been declared advisable by the Board of Directors of the
Corporation by the stockholders of the Corporation by written consent in
accordance with Sections 228 and 242 of the General Corporation Law of the State
of Delaware, and prompt written notice of the taking of the action without a
meeting by less than unanimous written consent has been given in accordance with
section 228(d) to the stockholders who did not consent in writing.
The text of the Amended and Restated Certificate of Incorporation of
the Corporation, as restated and amended (herein called the "Restated
Certificate of Incorporation") shall read in its entirety as follows:
FIRST: The name of the Corporation shall be:
BLAXXUN INTERACTIVE, INC.
SECOND: The registered office of the Corporation in the State of
Delaware is located at 1209 Orange Street, in the City of Wilmington, County of
New Castle, 19801, and its registered agent at such address is The Corporation
Trust Company.
THIRD: The purpose or purposes of the Corporation shall be 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: The total number of shares of stock which the Corporation
shall have authority to issue is 101,000,000 shares, which shares shall be
divided into two classes consisting of: (i) 100,000,000 shares of Common Stock
(with $.005 par value per share) ("Common Stock")
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and (ii) 1,000,000 shares of Preferred Stock (with $.005 par value per share)
("Blank Check Preferred Stock").
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions of the Common Stock and the
Preferred Stock shall be as follows:
A. COMMON STOCK
1. Voting Rights. Except as otherwise required by law or this Amended
and Restated Certificate of Incorporation, each holder of Common Stock shall
have one vote in respect of each share of Common Stock held by him of record on
the books of the Corporation for the election of directors and on all matters
submitted to a vote of stockholders of the Corporation.
2. Dividends. The holders of shares of Common Stock shall be entitled
to receive, when and if declared by the Board of Directors, out of the assets of
the Corporation which are by law available therefor, dividends payable either in
cash, in property or in shares of capital stock, subject, however, to the
limitations contained in Part B below.
3. Dissolution, Liquidation or Winding Up. After distribution in full
of the preferential amount, if any, to be distributed to the holders of series
of the Blank Check Preferred Stock (in accordance with the relative preferences
among such series) in the event of involuntary liquidation, distribution,
dissolution or winding-up, of the Corporation, the holders of the Common Stock
shall be entitled to receive all of the remaining assets of the Corporation,
tangible and intangible, or whatever kind available for distribution to
stockholders, ratably in proportion to the number of shares of Common Stock held
by them respectively.
B. BLANK CHECK PREFERRED STOCK
1. Issuance. Shares of Blank Check Preferred Stock may be issued from
time to time in one or more series as may from time to time be determined by the
Board of Directors, each of said series to be distinctly designated. All shares
of any one series of the Blank Check Preferred Stock shall be alike in every
particular, except that there may be different dates from which dividends, if
any, thereon shall be cumulative, if made cumulative. The voting powers, if any,
and the designations, relative preferences, participating, optional or other
special rights or privileges of each such series, and the qualifications,
limitations or restrictions thereof, if any, may differ from those of any and
all other series at any time outstanding.
2. Authority of the Board of Directors. The Board of Directors is
authorized, subject to limitations prescribed by law and the provisions of this
Article FOURTH, to provide for the issuance of the shares of the Blank Check
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 in the
resolution or resolutions providing for the issue of such stock adopted by the
Board of Directors of the Corporation the voting powers, if any, and the
designations, relative preferences, participating, optional or other special
rights or privileges, and the qualifications, limitations or restrictions of
such series, including, but without limiting the generality of the foregoing,
the following:
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(a) The distinctive designation of, and the number of
shares of the Blank Check Preferred Stock which shall
constitute such series. The designation of a series of
preferred stock need not include the words "preferred" or
"preference" and may be designated "special" or other
distinctive term. Unless otherwise provided in the resolution
issuing such series, the number of shares of any series of the
Blank Check Preferred Stock may be increased or decreased (but
not below the number of shares thereof then outstanding) by
the Board of Directors in the manner prescribed by law;
(b) The rate and times at which, and the terms and
conditions upon which, dividends, if any, on the Blank Check
Preferred Stock of such series shall be paid, the extent of
the preference or relation, if any, of such dividends to the
dividends payable on any other class or classes, or series of
the same or other classes of stock and whether such dividends
shall be cumulative or non-cumulative and, if cumulative, the
date from which such dividends shall be cumulative;
(c) Whether the series shall be convertible into, or
exchangeable for, at the option of the holders of the Blank
Check Preferred Stock of such series or the Corporation or
upon the happening of a specified event, shares of any other
class or classes or any other series of the same or any other
class or classes of stock of the Corporation, and the terms
and conditions of such conversion or exchange, including
provisions for the adjustment of any such conversion rate in
such events as the Board of Directors shall determine;
(d) Whether or not the Blank Check Preferred Stock of such
series shall be subject to redemption at the option of the
Corporation or the holders of such series or upon the
happening of a specified event, and the redemption price or
prices and the time or times at which, and the terms and
conditions upon which, the Blank Check Preferred Stock of such
series may be redeemed;
(e) The rights, if any, of the holders of the Blank Check
Preferred Stock of such series upon the voluntary or
involuntary liquidation, merger, consolidation, distribution
or sale of assets, dissolution or winding-up, of the
Corporation;
(f) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Blank Check Preferred
Stock of such series; and
(g) Subject to subparagraph 5 of Paragraph C hereof,
whether such series of the Blank Check Preferred Stock shall
have full, limited or no voting powers including, without
limiting the generality of the foregoing, whether such series
shall have the right, voting as a series by itself or together
with other series of the Blank Check Preferred Stock or all
series of the Blank Check Preferred Stock as a class, to elect
one or more directors of the Corporation if there shall have
been a default in the payment of dividends on any one or more
series of the Blank Check Preferred Stock or under such other
circumstances and on such conditions as the Board of Directors
may determine.
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C. OTHER PROVISIONS.
1. No holder of any of the shares of any class or series of stock or
of options, warrants or other rights to purchase shares of any class or series
of stock or of other securities of the Corporation shall have any preemptive
right to purchase or subscribe for any unissued stock of any class or series or
any additional shares of any class or series to be issued by reason of any
increase of the authorized capital stock of the Corporation of any class or
series, or bonds, certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any class or
series, or carrying any right to purchase stock of any class or series, but any
such unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock, or
carrying any right to purchase stock, may be issued and disposed of pursuant to
resolution of the Board of Directors to such persons, firms, corporations or
associations (including such holders or others) and upon such terms as may be
deemed advisable by the Board of Directors in the exercise of its sole
discretion.
2. The relative powers, preferences and rights of each series of the
Blank Check Preferred Stock in relation to the powers, preferences and rights of
each other series of the Blank Check Preferred Stock shall, in each case, be as
fixed from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in Paragraph B hereof. The
consent, by class or series vote or otherwise, of the holders of such of the
series of the Blank Check Preferred Stock as are from time to time outstanding
shall not be required for the issuance by the Board of Directors of any other
series of the Blank Check Preferred Stock whether or not the powers, preferences
and rights of such other series shall be fixed by the Board of Directors as
senior to, or on a parity with, the powers, preferences and rights of such
outstanding series, or any of them; provided, however, that the Board of
Directors may provide in the resolution or resolutions as to any series of the
Blank Check Preferred Stock adopted pursuant to Paragraph B hereof, the
conditions, if any, under which the consent of the holders of a majority (or
such greater proportion as shall be fixed therein) of the outstanding shares of
such series shall be required for the issuance of any or all other series of the
Blank Check Preferred Stock.
3. Subject to the provisions of subparagraph 2 of this Paragraph C,
shares of any series of the Blank Check Preferred Stock may be issued from time
to time as the Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of Directors.
4. Shares of authorized Common Stock may be issued from time to time
as the Board of Directors of the Corporation shall determine and on such terms
and for such consideration as shall be fixed by the Board of Directors.
5. The number of authorized shares of Common Stock and of the Blank
Check Preferred Stock, without a class or series vote, may be increased or
decreased from time to time (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 thereon.
FIFTH:
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A. Number, Election and Terms of Directors. The number of directors
shall be fixed from time to time exclusively by the Board of Directors pursuant
to a resolution adopted by the Board of Directors. The Directors of the
Corporation shall be divided into three classes: Class I, Class II and Class
III. Each class shall consist, as nearly as may be possible, of one-third of the
whole number of the Board of Directors. If the Board of Directors is not evenly
divisible by three, the Board of Directors shall determine the number of
Directors to be elected to each class. The initial members of Class I shall be
_______ and _________ and they shall hold office for a term to expire at the
Annual Meeting of the Stockholders to be held in 2001; the initial member of
Class II shall be _____________ and he shall hold office for a term to expire at
the Annual Meeting of the Stockholders to be held in 2002; the initial member of
Class III shall be _____________ and he shall hold office for a term to expire
at the Annual Meeting of the Stockholders to be held in 2003; and in the case of
each class, until their respective successors are duly elected and qualified. At
each annual election held commencing with the annual election in 2001, the
Directors elected to succeed those whose terms expire shall be identified as
being of the same class as the Directors they succeed and shall be elected to
hold office for a term to expire at the third Annual Meeting of the Stockholders
after their election, and until their respective successors are duly elected and
qualified. If the number of Directors changes, any increase or decrease in
Directors shall be apportioned among the classes so as to maintain all classes
as equal in number as possible, and any additional Director elected to any class
shall hold office for a term which shall coincide with the terms of the other
Directors in such class and until his successor is duly elected and qualified.
B. Removal. Any Director or the entire Board of Directors may be
removed with or without cause by the holders of a majority of the shares then
entitled to vote at an election of Directors, or a majority vote of the Board of
Directors.
C. Amendment, Repeal or Alteration. Notwithstanding any other
provisions of the Restated Certificate of Incorporation or the Restated By-Laws
of the Corporation or the fact that a lesser percentage may be specified by law,
the affirmative vote of the holders of greater than fifty percent (50%) of the
combined voting power of the outstanding stock of the Corporation entitled to
vote generally in the election of Directors, voting together as a single class,
shall be required to amend, alter, adopt any provision inconsistent with or to
repeal this Article FIFTH.
SIXTH: The Corporation hereby affirmatively elects in this Restated
Certificate of Incorporation to be governed by Section 203 of the General
Corporation Law of Delaware.
SEVENTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
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 the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the 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 the
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 the 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,
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and/or of the stockholders or class of stockholders of the Corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of
the Corporation as a 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 the Corporation, as the case may be, and also on the
Corporation.
EIGHTH: No director shall be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a director
notwithstanding any provision of law imposing such liability; provided that, to
the extent provided by applicable law, this provision shall not eliminate 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) under Section 174 of the General Corporation Law of Delaware, or (iv) for
any transaction from which the director derived an improper personal benefit. No
amendment to or repeal of this provision shall apply to or have any effect on
the liability or alleged liability of any director for or with respect to any
acts or omissions of such director occurring prior to such amendment or repeal.
NINTH: In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware.
A. The Board of Directors of the Corporation is expressly authorized
to adopt, amend, or repeal the By-laws of the Corporation.
B. Elections of directors need not be by written ballot unless the
By-laws of the Corporation shall so provide.
C. The books of the Corporation may be kept at such place within or
without the State of Delaware as the By-laws of the Corporation may provide or
as may be designated from time to time by the Board of Directors of the
Corporation.
TENTH: Except as otherwise stated elsewhere in this Restated
Certificate of Incorporation, the Corporation reserves the right to amend or
repeal any provision contained in this Restated Certificate of Incorporation, in
the manner now or hereafter prescribed by statute, and all rights conferred upon
a stockholder herein are granted subject to this reservation.
ELEVENTH: The Corporation is to have perpetual existence.
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Exhibit 3.1
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IN WITNESS WHEREOF, blaxxun interactive, Inc. has caused this Restated
Certificate of Incorporation to be signed by Franz Buchenberger, its President,
who hereby acknowledges under penalties of perjury that the facts herein stated
are true and that this Restated Certificate of Incorporation is his act and
deed, and attested by Bernd-Michael Habermeyer, its Secretary, as of the day
of _________, 2000.
BLAXXUN INTERACTIVE, INC.
By: _______________________
Name: Franz Buchenberger
Title: President
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